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[2011] ZALCCT 49
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MEC for Education, Western Cape Education Department v Engelbrecht and Others (C663/06) [2011] ZALCCT 49 (19 April 2011)
NOT REPORTABLE
IN THE LABOUR COURT
OF SOUTH AFRICA
HELD AT CAPE TOWN
Case no: C663/06
In the matter
between:
MEMBER OF THE
EXECUTIVE COUNCIL FOR EDUCATION,
WESTERN CAPE
EDUCATION DEPARTMENT
.......................................................
Applicant
and
J J ENGELBRECHT
............................................................................................
First
Respondent
L.O. MARTIN N.O.
.........................................................................................
Second
Respondent
EDUCATION LABOUR
RELATIONS COUNCIL
..........................................
Third
Respondent
Date of hearing :
19/4/2011
Date of judgment :
JUDGMENT
Introduction
This
is an application in terms of section 145 of the Labour Relations Act
66 of 1995 (the LRA) to review and set aside the decision
of the
second respondent (the commissioner). The application was unopposed.
The applicant seeks, inter alia, an order reviewing
and correcting
and/or setting aside the arbitration award of the second respondent.
The further order sought is that this Court
makes an order that it
deems appropriate for the further conduct of the proceedings.
Mr
J J Engelbrecht (Engelbrecht) is employed by the Western Cape
Education Department (the Department) as an Educator. Disciplinary
action was taken against Engelbrecht. It was alleged that on
13 September 2005 and whilst on duty at school Engelbrecht
used racist and abusive language when referring to some or all of the
learners in his class. In particular Engelbrecht is alleged
to have
uttered the following words: “Julle is nie net hotnots nie maar
erger as kaffirs”. Allegations of misconduct
were put to
Engelbrecht and a disciplinary hearing was convened and held. At the
disciplinary hearing Engelbrecht pleaded guilty
to the allegations of
misconduct (charge 1) and conceded that the words used by him were
wrong, unprofessional and inappropriate.
The chairperson of the
disciplinary hearing then had to determine an appropriate sanction.
Under the Employment of Educators Act
1, 76 of 1998 (the Act) a
number of possible sanctions are listed. The chairperson of the
disciplinary enquiry imposed a sanction
of a final written warning
and a suspension for three months without pay. Engelbrecht did not
appeal the sanction as imposed by
the chairperson. Further
Engelbrecht did not file a grievance in relation to the sanction
imposed by the chairperson. That sanction
was determined on
17 January 2006. In the absence of an appeal in relation to
that sanction, the disciplinary hearing
and its associated
proceedings were concluded.
During
February 2006 Engelbrecht, assisted by the National Union of
Educators applied to the Department for permission to
work during the
period of his suspension. Engelbrecht proposed to work for the
Governing Body of President High School, the very
school at which
Engelbrecht worked when disciplinary action was taken against him, in
respect of which he was found guilty and
for which he was suspended
without pay for three months and given a final written warning valid
for six months.
Unsurprisingly
perhaps, the Department did not give Engelbrecht the permission he
sought. Engelbrecht was informed in writing that:
“
Die
goedkeuring van so ‘n diens sal beteken dat die sanksie
ondermyn word. Die persepsie sal bestaan dat geen sanksie toegepas
is
nie and dit sal meebring dat hy dan steeds ononderbroke diens by die
skool verrig.”
Engelbrecht
first took steps to avoid the ordinary consequences of sanction
imposed upon him after he was informed that the Department
would not
give permission for him to work for the Governing Body of the
President High School and to be paid by it. Only after
Engelbrecht
was informed of the decision of the Department did Engelbrecht refer
an alleged unfair labour practice dispute to the
Education Labour
Relations Council, the third respondent. The dispute referral form is
dated 16 March 2006. The dispute
referral form itself in
summarising the facts on which Engelbrecht’s relies is very
telling. The form records the following:
“
Mr J
Engelbrecht received a sanction of final written warning and a
suspension of three months without pay after a disciplinary
hearing.
Mr Engelbrecht accepted the sanction at the time, but as the WCED is
refusing to grant permission for Mr Engelbrecht to
work for the SGB
(another employer) during the period of suspension, Mr Engelbrecht
has no option other than to dispute the sanction
and the decision of
the WCED”
The
arbitration award comprises some three pages. The award is dated
26 August 2006. It appears that the arbitration
took place
on 27 July 2006. The record indicates that no oral evidence
was led before the commissioner. In fact the arbitration
award
records the following:
“
The
Respondent, the Department of Education Western Cape, was represented
by Mr H Mazaca, an assistant director. The parties agreed
that at the
outset of the arbitration proceedings that they would argue the
matter in writing. The parties agreed to submit heads
of argument
with the final rebutting arguments of the Applicant being due on
15 August 2006. The award for this matter
is accordingly
due on 29 August 2006.”
The
arbitrator and the parties appear to have approached this matter as
being one that could be resolved on a “stated case
approach”.
In the alleged unfair labour dispute Engelbrecht contended that the
refusal by the Department to grant permission
for him to work for the
School Governing Body of the President High School constitutes a
further sanction imposed upon Engelbrecht.
It is clear that
Engelbrecht sought to revisit the fairness of the sanction in light
of the decision of the Department to not grant
permission as sought
by him to work for the school governing body and to be paid by it.
In
assessing the sanction the commissioner has the following to say:
“
In
respect therefore of the argument of [Engelbrecht] that the sanction
of suspension without pay is unfair as far as Engelbrecht
had not
consented to any deduction from his salary in terms of Schedule 2(a)
of the Employment of Educators Act I am of the view
that for the
Respondent to have commuted a sanction of dismissal to one of
suspension without pay without Engelbrecht’s consent
is
unfair... Having considered all the evidence and argument presented
at this arbitration I find that an unfair labour practice
had been
committed by the Respondent in terms of section 186(2) of the Act.”
There
is simply no evidentiary basis whatsoever for the finding of the
commissioner as to an unfair labour practice having been
committed in
the determination of an appropriate sanction. Engelbrecht accepted
the sanction at the time (17 January 2006).
He consented to
the sanction. He only sought to challenge the sanction after the
Department refused permission for him to work
for the SGB of
President High School. The sanction imposed by the chairperson of the
disciplinary hearing, Ms Henriette Bouwer,
was within range of
competence sanctions as contemplated in the Employment Act. There was
no proper factual basis in the material
before the commissioner for
him to conclude that Engelbrecht did not accept the sanction and that
imposing a sanction which would
include suspension without pay is
unfair. Further, the fairness or otherwise of a suspension without
pay does not turn upon whether
Engelbrecht may enter the premises of
President High School for other purposes. The commissioner’s
award is one which is
informed by a misappreciation of the material
facts and the legal position.
In
the matter of
Sil Farming CC t/a Wigwam v CCMA
(unreported LC
Judgment) Van Niekerk AJ held that:
“
A
Commissioner arrives at a decision which no reasonable decision maker
could reach if the decision is unsupported by any evidence,
or by
evidence that is insufficient to reasonably justify the decision
arrived at or where the decision-maker ignores contradicted
evidence.”
Further,
in the matter of
Bestel
v Astral Operations Ltd,
1
the
Court held that:
“
Although
the judgment in
Sidumo,
supra
,
superceded
the test for the review as contained in the decision of this Court in
Carephone
(Pty) Ltd v Marcus
1999 (3) SA384 (LAC) [also reported at
[1998] 11 BLLR 1093
(LAC) –
Ed] at paragraph 37, the following dictum in the latter judgment is
helpful in order to illustrate the nature of
the test:
‘
Is
there a rational objective basis justifying the conclusion made by
the administrative decision-maker between the material properly
available to him and the conclusion he or she eventually arrived
at.’”
Further
it appears from the record that the commissioner was of the view that
the alleged unfair labour practice dispute referred
to the Education
Labour Relations Council was one capable of resolution by having
regard to the documents placed before the Education
Labour Relations
Council and then submissions on facts and argument by the dispudant.
This too is incorrect. At the very least
there were a number of
questions of fact on which the parties held differing views or
approaches. These included Engelbrecht’s
purported
understanding of the terms of his suspension (i.e. that he would not
withstanding the suspension without pay be allowed
to apply for and
be granted permission to work for the School Governing Body and be
paid for such work). In the ordinary course
these disputes would
require the hearing and assessment of evidence and then argument in
relation to such evidence. Irrespective
of the wishes of the parties,
it is not open to an arbitrator in these circumstances to have
adopted the approach which the commissioner
did.
In
the circumstances I make the following order:
The
arbitration award of the commissioner is set aside and the matter is
remitted to the third respondent for arbitration before
a
commissioner other than the second respondent.
There
is no order as to costs.
__________________________
VAN
VOORE AJ
Appearances:
For
the applicant : Adv. C Carolissen
Instructed
by : The State Attorney
For
the Respondent - Unopposed
1
[2011]
2 BLLR 129
(LAC) at para 17.