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[2012] ZALCJHB 66
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MEC: Department of Education Gauteng v Msweli and Others (JR2145/2008) [2012] ZALCJHB 66; (2013) 34 ILJ 650 (LC) (12 July 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 2145 / 2008
In the matter between:
MEC: DEPARTMENT OF
EDUCATION GAUTENG
….............................................
Applicant
and
J MSWELI
….................................................................................................
First
Respondent
GPSSBC
…..............................................................................................
Second
Respondent
DESMOND LYNCH N.O.
….........................................................................
Third
Respondent
Heard: 10 July 2012
Delivered
:
12 July 2012
Summary
:
Bargaining
Council arbitration proceedings - Review of proceedings, decisions
and awards of arbitrator - Test for review of finding
of procedural
unfairness by arbitrator - Test whether arbitrator committed a
material error of law so as to justify granting of
review
Public
Service Act (Proc 103 of
1994) - Dismissal - By operation of law - Public service employee
absent without authorization for period
exceeding one month - Section
17(5)(a)(i)
and
(b) – employee not reporting for duty after being deployed into
post – employee ignoring several instructions to
report for
duty - Such constituting absconding - employee's services terminated
by operation of law.
Public
Service Act - Dismissal –
Procedural fairness – the provisions of procedural fairness in
the case of absconding in private
sector do not apply – no
hearing required before dismissal – arbitrator committed
material error of law by seeking
to apply private sector provisions
relating to procedural fairness for absconding
Public
Service Act - Dismissal –
requirements for the application of Section 17(5) – effect of
the application of such requirements
– onus shifted to employee
to justify absence, show good cause and report for duty –
employee’s failure to do
so means employee cannot challenge
fairness of dismissal
JUDGMENT
SNYMAN AJ
Introduction
[1] This matter concerns
an application by the applicant to review and set aside an
arbitration award of the third respondent in
his capacity as an
arbitrator of the GPSSBC (the second respondent). This application
has been brought in terms of Section 145
of the Labour Relations Act
(“the LRA”),
1
as read with
Section 158(1) (g).
[2] The first respondent
was dismissed by the applicant by way of a notice dated 20 February
2008, with effect from 25 February
2008, for what appears to be an
issue of absconding. In an award dated 20 July 2008, the third
respondent determined that the dismissal
of the first respondent by
the applicant was substantively fair, but procedurally unfair. The
third respondent then made a determination
that the applicant had to
pay the first respondent compensation for such procedural unfairness
in the sum of R25 212.00, being
an amount equivalent to four months’
salary of the first respondent. It is this determination by the third
respondent that
forms the subject matter of the review application
brought by the applicant.
Preliminary issues
[3] From the outset,
there is no issue with regard to the fact that the dismissal of the
first respondent by the applicant was substantively
fair. This
finding of the third respondent thus stands.
[4] The review
application by the applicant is limited to two specific grounds. The
first ground is an attack on the determination
of procedural
unfairness itself, in that the applicant contends that due to the
application of Section 17 of the Public Service
Act (“PSA”),
2
the dismissal could
not have been procedurally unfair, and the third respondent had
committed a gross irregularity in not so determining.
[5] The second ground of
review concerns the award of compensation itself made by the third
respondent for such procedural unfairness,
in the event of it being
found that the dismissal of the first respondent by the applicant was
indeed procedurally unfair. The
applicant contends that an award of
four months’ salary was excessive to the extent of constituting
a fundamental error of
law and an improper exercise of the discretion
in respect of the award of compensation.
[6] I will accordingly
only deal with the facts of this matter insofar as the same is
relevant for the determination of the above
issues.
Background facts
[7] From the evidence, it
is clear that the conduct of the first respondent in this instance
was entirely unsatisfactory. The third
respondent correctly
appreciated and determined this in finding that the dismissal of the
first respondent was substantively justified.
The problem I however
have with the award of the third respondent is that he simply does
not take his own findings with regard
to the conduct of the first
respondent, and the nature of his evidence presented in the
arbitration far enough, and this will be
addressed hereunder.
[8] The above being said,
it is clear from the record that prior to 2007, there was a problem
that existed with regard to the deployment
of the first respondent in
a position at the applicant. This led to the fact that for a
protracted period of time, the first respondent
was not at work and
not working, but still being paid. This situation clearly could not
continue.
[9] In the end, and on 19
July 2007, the first respondent was then placed into a position in
the Sub-Directorate Finance and Administration
(Office Service Pool)
of the applicant. The first respondent was required to report for
work on 24 July 2007 at 07h45.
[10] The first respondent
did report at work on 24 July 2007, and a meeting then took place
between him and the Acting Deputy Director
Finance and
Administration, being Mrs E Simbine (“Simbine”). In this
meeting, the first respondent’s position
was confirmed, it was
determined who he would report to, what his job description would be,
and that he would actually commence
his work by reporting for work on
Thursday 25 July 2007.
[11] The applicant’s
case in the arbitration was that after 24 July 2007, the first
respondent never reported for work. The
first respondent’s case
in the arbitration was that he was in fact at work and was never
absent from work. The third respondent
rejected the case of the first
respondent and accepted the case of the applicant. This necessarily
meant that the first respondent
was indeed absent from work and
simply had no cause or reason whatsoever for being absent from work.
[12] The third respondent
further accepted the evidence of Simbine as to the interaction
between her and the first respondent and
in particular the documents
relating to the same. There is simply no cause or reason to interfere
with this conclusion. However,
and of relevance to this matter, and
having so found, what the third respondent then does not adequately
consider is the fact that
as at 24 July 2007, the first respondent
actually knows that he had to report for work on 25 July 2007, what
he was required to
do as his job, and who he reported to. In the
absence of any explanation of any kind by the first respondent for
then not so doing,
it can reasonably be accepted that his decision
not to report for work was deliberate.
[13] My view with regard
to the fact that this decision was deliberate is confirmed by the
events that followed. In this regard,
the evidence is as follows:
[13.1] Firstly, and on
the record, there is a letter dated 4 October 2007 to the first
respondent recording his absence without
authorization since 24 July
2007, and it was conveyed that because of this, there was an
intention to discharge him in terms of
the PSA. The first respondent
was asked to make representations within 14 days. No response was
received.
[13.2] Secondly, the
salary of the first respondent was stopped in November 2007 because
of his absence and his trade union was
informed accordingly in terms
of a letter dated 10 November 2007. Still the first respondent took
no action, did not challenge
the issue and more importantly, made no
attempt to resume his duties;
[13.3] Finally, and on 25
February 2008, the first respondent was then given formal notice of
the termination of his employment,
because of his continued absence.
However, the first respondent was still informed in this notice he
could made application for
reinstatement. Again, no such application
was received, and the first respondent did not report for work.
[14] The first respondent
then referred his unfair dismissal dispute to the second respondent
on 12 March 2008, ultimately giving
rise to these proceedings.
The relevant test for
review
[15] In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
3
Navsa AJ held that in the
light of the constitutional requirement (in s 33 (1) of the
Constitution) that everyone has the right
to administrative action
that is lawful, reasonable and procedurally fair, ‘the
reasonableness standard should now suffuse
s 145 of the LRA’.
The majority of the Constitutional Court set the threshold test for
the reasonableness of an award or
ruling as the following: ‘Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?’
[16] In
CUSA
v Tao Ying Metal Industries and Others,
4
O'Regan J held: ‘It
is clear…that a commissioner is obliged to apply his or her
mind to the issues in a case. Commissioners
who do not do so are not
acting lawfully and/or reasonably and their decisions will constitute
a breach of the right to administrative
justice.’
[17] The Labour Appeal
Court in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation &
Arbitration and Others
5
specifically interpreted
the
Sidumo
test. The Court held as
follows: ‘To this end a CCMA arbitration award is required to
be reasonable because, if it is not
reasonable, it fails to meet the
constitutional requirement that an administrative action must be
reasonable and, once it is not
reasonable, it can be reviewed and set
aside.’
[18] Van Niekerk J in
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration and Others
6
held that
:
“If a commissioner fails to take material evidence into
account, or has regard to evidence that is irrelevant, or the
commissioner
commits some other misconduct or a gross irregularity
during the proceedings under review and a party is likely to be
prejudiced
as a consequence, the commissioner's decision is liable to
be set aside regardless of the result of the proceedings or whether
on the basis of the record of the proceedings, that result is
nonetheless capable of justification.”
[19] Against the above
principles and test, the award of the second respondent in this
instance must to be determined, especially
considering the grounds of
review as articulated by the applicant.
Merits of the review:
The issue of procedural fairness
[25] In this matter, it
is clear from the evidence and the factual determinations of the
third respondent as arbitrator that the
first respondent was absent
without authorization for a period in excess of a month, without any
explanation, and without any attempt
to report for work. As will be
discussed hereunder, this brings this matter into the realm of
Section 17(5) of the PSA, which in
my view clearly did apply. This
being the case, the finding of the third respondent in the
arbitration should have been that the
first respondent’s
employment was terminated by way of operation of law, and as such,
the second respondent had no jurisdiction
to entertain this matter
(see
Hospersa
& Another v MEC for Health
(2003)
24 ILJ 2320 (LC) ;
Maidi
v MEC for Department of Education and Others
(2003)
24 ILJ 1552 (LC) ;
MEC
for Education & Culture v Mabika and Others
(2005)
26 ILJ 2368 (LC) ;
Phenithi
v Minister of Education and Others (2006)
27 ILJ 477 (SCA)
;
Jammin
Retail (Pty) Ltd v Mokwane and Others
(2010)
31 ILJ 1420 (LC) ;
Mahlangu
v Minister of Sport & Recreation
(2010)
31 ILJ 1907 (LC) ;
Solidarity
on behalf of Kotze v Public Health & Welfare Sectoral Bargaining
Council and Others
(2010)
31 ILJ 3022 (LC) ;
Member
of the Executive Council for Health v Khoetha and Others
(2011) 32 ILJ 647 (LC)).
The applicant was in fact alive to this, and made submissions to this
effect in the arbitration. The applicant
however did not raise this
jurisdictional issue on review, and it is trite that the applicant is
bound to the case as made out
in its founding affidavit (see
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another
[2007] ZASCA 143
;
2008 (2) SA 448
(SCA) ;
Sonqoba
Security Services MP (Pty) Ltd VvMotor Transport Workers Union
(2011) 32 ILJ 730 (LC) ;
De Beer
v Minister of Safety & Security and Another
(2011) 32 ILJ 2506 (LC) ;
Northam
Platinum Ltd v Fganyago No and Others
(2010)
31 ILJ 713 (LC)).
[26] The above being
said, and aside from issues of jurisdiction, the application of
Section 17(5)(a) and (b) of the PSA in any
event does have direct
impact on the determination of the issue of procedural fairness,
being the first issue at stake in this
review application.
[27] Section 17(5)(a) of
the PSA provides that ‘
An officer, other
than a member of the
services or an
educator or a member of the Agency or the Service, who absents
himself or herself from his or her official duties
without permission
of his or her head of department, office or institution for a period
exceeding one calendar month, shall be
deemed to have been discharged
from the public service on account of misconduct with effect from the
date immediately succeeding
his or her last day of attendance at his
or her place of duty.’
[28] Section 17(5)(b) of
the PSA then provides ‘
If an officer who
is deemed to have been
so discharged,
reports for duty at any time after the expiry of the period referred
to in paragraph (a), the relevant executing
authority may, on good
cause shown and notwithstanding anything to the contrary contained in
any law, approve the reinstatement
of that officer in the public
service in his or her former or any other post or position...’
[30] The third respondent
accepted that Section 17(5) of the PSA did apply in this case. The
sole reason for the third respondent
however then finding that the
dismissal of the first respondent was nonetheless procedurally unfair
was that according to the third
respondent, the applicant still had
to adhere to the provisions of Section 4 of Schedule 8 of the LRA. As
will be set out hereunder,
this conclusion of the third respondent
constitutes a material and gross error in law.
[31] The crux of the
determination of the third respondent thus is that in effecting the
dismissal of the first respondent, accepting
for the purposes of this
matter that the application of Section 17(5)(a) of the PSA does
constitute a dismissal (as stated above
it is actually a termination
by operation of law), the applicant had to comply with all the
guidelines required in law in terms
of the LRA in order to effect a
fair dismissal for an employee that is considered to have absconded.
For purposes of completeness,
these provisions are the following:
[31.1]
In
SABC
v CCMA and Others,
7
it
was held that as ‘It is not desertion when an employee who is
absent from work intends returning to work. Desertion necessarily
entails the employee’s intention no longer to return to work.
’
The
employer would have to establish this intention in a fair process.
[31.2]
As to whether the first respondent would be entitled to a hearing in
this process, it is important to refer to how the Labour
Court dealt
with the matter in
SABC
v CCMA and Others
(
supra
).
The
LAC upheld the Labour Court decision, and did not overturn the ratio
in the Labour Court judgment itself. The Labour Court decision
is
reported at
SABC
v CCMA and Others
(2001)
22 ILJ 487 (LC). The Labour Court acknowledged that it would be
''silly” to require an employer to hold a hearing for
an
employee who had deserted and indicated an unequivocal intention not
to return, and that the problem really arises in cases
of
''unexplained” desertion, being when employees give no
indication of whether they intend to resume work. The Court held
that
if the intention to leave is established, there is no need to hold a
hearing.
[31.3]
The question then necessarily is how does one establish the intention
not to return to work. The Labour Court in
SABC
v CCMA and Others
held
as follows at paragraph 13:
‘
The
real problem arises from circumstances of unexplained absence. Mere
absence is no more conclusive evidence of desertion (which
is absence
plus an intention not to return), than it is evidence of wilful
absence without leave (which axiomatically includes
an intention to
return, albeit at a time of the employee's choosing). The means by
which the employer established the existence
or absence of the
intention to return is the critical point of the debate. What
constitutes desertion is of course a matter of
fact. In some
instances an unexplained absence for a reasonable period, that is to
say, reasonable in relation to the employer's
operational
requirements, will establish the fact of desertion. In the instance
of an employee who remains away from the workplace
and whose
whereabouts are not known and who is out of reach of the employer, it
is plainly impractical to impose upon an employer
the obligation to
convene a disciplinary enquiry before reaching the conclusion that
the fact of desertion has occurred and in
consequence of which it is
entitled in response thereto to elect to terminate the contract.’
And at paragraph 18:
‘
Whether
or not an employer should convene a disciplinary enquiry before
taking a decision to dismiss, is dependent on the relevant
circumstances, and the practicality of so doing. The grievant was
within reach of the applicant. The grievant was in breach of
his
obligation to tender his services from 27 November 1997. The
applicant put him on terms to return to work. In my view, when
the
grievant failed to respond positively to the letter of 4 December,
the
applicant
should have furnished him with a notice to appear at a determined
date and time to show cause why he should not be dismissed
by reason
of his persistent desertion of his post. There was nothing
impractical about such step and I am of the view that the
circumstances which presented themselves to the applicant were not
exceptional in the sense contemplated by item 4(4) of the Code
of
Good Practice.’
[31.4] The above is
clearly what the third respondent did in this instance. Whilst I
would disagree with the conclusion of the third
respondent even when
applying these principles, as in my view and on the facts the first
respondent actually showed a clear intention
not to return to work,
it is simply not necessary to determine this, because, as will be set
out below, none of these principles
find application in this
instance.
[32] Mr Molemoeng, who
appeared for the applicant, submitted to me that the crux of this
matter is that the provisions as set out
above do not apply in this
instance, because once the PSA applies, there is a deeming provision.
Therefore, and according Mr Molemoeng,
the nub of the problem with
the determination of the third respondent is that the provisions as
set out above do not apply in the
case of the absconding of an
employee in the public service where the PSA finds specific
application.
[33] As stated above, and
where Section 17(5) of the PSA applies, it is termination of
employment by operation of law. As was held
in
Director
General: Office of the Premier of the Western Cape & another v SA
Medical Association on behalf of Broens and Others
:
8
‘
In
Phenithi v Minister of Education & others the Supreme Court of
Appeal explained the purpose of a deeming provision in the
Employment
of Educators Act similar to that in s 17(5)(a) of the Public Service
Act as follows:
"In
my view, the provision creates an essential and reasonable mechanism
for the employer to infer 'desertion' when the statutory
prerequisites are fulfilled. In such a case, there can be no
unfairness, for the educator's absence is taken by the statute to
amount to a 'desertion'. Only the very clearest cases are covered.
Where this is in fact not the case, the Act provides ample means
to
rectify or reverse the outcome.”’
[34] The Court in
PAWUSA
and Another v Department of Education, Free State Province and
Others
9
dealt with the
facts that need to be shown by an employer before the application on
Section 17(5) of the PSA can be relied on. It
was held as follows at
paragraph 15 – 16:
‘
The
provisions of s 17(5)(a)(i) clearly contemplate the existence of
certain facts before an officer shall be deemed to have been
discharged from the public service. These facts are:
•
the
officer,
•
absents
himself or herself from his or her official duties,
•
without
permission of his or her head of department, office or institution,
•
for
a period exceeding one calendar month.
It
is clearly the existence of each of the facts hereinabove outlined
that triggers the deeming provision of the subsection. No
action of
the employer will accordingly trigger the deeming provision to come
into operation, which occurs
ex lege
’
[35]
The Court in
PAWUSA and Another v Department of Education,
Free State Province and Others
went further and held at paragraph
18 that it was
Section 17(5)
(b)
that was ‘clearly intended by the
legislature to satisfy the audi alteram partem rule which hitherto
would not have come into
operation.’ The Court held further
that in terms of Section 17(5)(b) ‘The employee is thereby
accorded an opportunity
to explain whether he or she indeed absented
himself or herself from his or her official duties without the
permission of his or
her head of department, office or institution
for a period exceeding one calendar month. The employer is then to
consider whether
or not to approve the reinstatement of that
employee.’
[36]
In
Hospersa and Another v MEC for Health
(
supra
)
the Court held that where Section 17(5) of the PSA applies:
‘
Because
the employees are discharged, they are deprived of all the rights and
protections afforded by the unfair dismissal laws.
As a discharge is
deemed to be on account of misconduct, the employees are condemned
before they have been given a hearing. There
may be reasons other
than misconduct for their absence. After the employees have been
deemed to be so discharged, and provided
they, firstly, report for
duty and, secondly, they show good cause, their reinstatement into
their former or other positions may
be approved subject to conditions
(s 17(5)(b)). When exercising their right to a hearing in terms of s
17(5)(b)
the
employees bear the onus of showing good cause. Section 17(5)(a)
not
merely restricts, but excludes the employees' right to a fair hearing
before being found guilty and dismissed.’
[37]
In
Grootboom
v National Prosecuting Authority and Another,
10
the Court also dealt with
Section 17(5) (b) and held that:
‘
It
is clear in my view that the requirement of good cause in terms of s
17(5)(b) of the PSA entails the employee having to provide
a
reasonable explanation for his or her absence without authority. The
duty is thus on the employee to provide the employer with
a
satisfactory explanation as to what were the reasons for being absent
without authorization. The employer in considering whether
or not to
reinstate the employee has to exercise a discretion given by s
17(5)(b) of the PSA. In this respect the decision by the
employer has
to be influenced by fairness and justice…The key factor
amongst others, which the employer has to take into
account, is
whether or not the unauthorized absence was wilful on the part of the
employee.’
[38]
Reference is also made to
Public
Servants Association of SA obo Van der Walt v Minister of Public
Enterprises and Another
(2010)
31 ILJ 420 (LC)
at
paragraph 18. I am in full agreement with all of the above decisions.
[39]
In the end, and as was said in
Mahlangu v Minister of Sport
& Recreation
at paragraph 13: ‘…
an employee
deemed to be dismissed in terms of s 17(5)(a) has no right to a
hearing
’ when it comes to the implementation of the
discharge in terms of Section 17(5)(a) of the PSA.
[40]
Of direct relevance to the current matter, the judgment of
Jammin
Retail (Pty) Ltd v Mokwane and Others
(
supra
) deals
specifically with the distinction between employees that have
absconded in the public sector and those in the private sector.
It
was held as follows at paragraph 13 with specific reference to public
service employees:
‘
The
authorities are in agreement that such a termination is not a
dismissal as the contract is not terminated by virtue of the decision
of the employer but by the operation of law. In other words the
employment contract is deemed to have been terminated due to absence
from work by the employee and not the decision of the employer. This
approach is generally applicable in the public sector and
the same
does not apply in the private sector.’
[41] Similarly, in
Solidarity on behalf of Kotze v Public Health & Welfare
Sectoral Bargaining Council and Others
(
supra
) at
paragraph 8 – 9, it was held as follows:
‘
The
argument of the applicant is based on the concept of abscondment as
applied in private sector cases. The general approach adopted
in
private sector cases of abscondment was enunciated in the case of
SABC v CCMA & others (2002)
23 ILJ 1549 (LAC);
[2002] 8 BLLR 693
(LAC).
In
the private sector cases of abscondment entail both absence from work
without authority and evidence of the intention on the
part of the
employee not to return to work. To satisfy the requirements of
fairness in abscondment cases the employer had to show
that it took
steps to locate the whereabouts of the employee.
Unlike
in the case of absconding in the private sector cases the respondent
did not dismiss the applicant but the dismissal occurred
by operation
of law. The requirement of a fair reason before termination does not
apply. In other words the employer does not have
to show what steps
it took to locate the whereabouts of the applicant before invoking
the deeming provisions of the PSA.’
[42] For the purposes of
completeness, Mr Molemoeng also referred me to the judgment in
Phenithi
v Minister of Education and Others
(2008)
(1) SA 420
(SCA) which concerns the consequences of the application
of
Section 14(1)(a)
of the
Employment of Educators Act 76 of 1998
where the Court held that the application of this provision was that
the employee was not required to be given a hearing before
a
discharge in terms of that Section, and he submitted this equally
applies to
Section 17(5)(a)
of the PSA. I agree with this submission,
which in any event has been confirmed in
Director
General: Office of the Premier of the Western Cape & another v SA
Medical Association on behalf of Broens and Others
(supra)
.
[43] Therefore, and based
on all of the above, the application of
Section 17(5)
of the PSA
excludes the operation of the normal procedural requirements to
effect the termination of employment of an employee
where the
employee has absconded as envisaged by the LRA. The provisions of
Schedule 8 of the LRA in fact do not apply, The “process
provisions”, for want of a better term, as applicable in the
case of
Section 17(5)
of the PSA, can be found in two parts. The
first part is that the employer must show that the employee was
absent for more than
one calendar month and did not have permission
for the employee’s absence, and then the employee’s
employment is considered
to be terminated. The second part in fact
prescribes a shift in the onus, and entails that even where an
employee is now deemed
to be “discharged” as contemplated
by the first part, the employee can actually still report for duty at
any time after
this and then show good cause as to why the employee
should be reinstated, which must then be considered and determined by
the
employer.
[43] In this matter,
there can be no doubt that the first respondent was absent for more
than a calendar month without authorization.
The applicant proved
that this was the case and thus discharged the duty on it as
envisaged by
Section 17(5)
of the PSA. It was also common cause that
the first respondent did receive this termination notification from
the applicant, as
envisaged by
Section 17(5)(a)
of the PSA, on 25
February 2008. The duty then shifted to the first respondent. The
first respondent could then, at any time after
receiving this notice,
still formally report for duty and make representations to the
applicant in order to show good cause as
to why he should be
reinstated. The notice received on 25 February 2008 in fact notifies
the first respondent of this. The first
respondent however did
nothing in this regard, never reported for work, never asked to be
reinstated, and finally never attempted
to show good cause, which he
had the onus to do. He simply referred his matter to the second
respondent. In the circumstances,
all the pre-requisites for the
lawful termination of employment of the first respondent in terms of
Section 17(5)
are present in this instance. Insofar as it may be
applicable, this would include any requirements for achieving
procedural fairness.
[44] In the
circumstances, the third respondent committed a gross error of law in
his determination of the issue of procedural fairness
in this matter.
This error of law strikes at the heart of the determination in this
matter and applying the test for review as
set out above, this in my
view constitutes a reviewable irregularity. There is simply no basis
that a reasonable decision maker,
in applying the proper legal
principles relating to the application of
Section 17(5)
of the PSA,
could have come to the conclusion of procedural unfairness that the
third respondent did in this instance. As was said
in
Pam
Golding Properties (Pty) Ltd v Erasmus and Others
11
):
‘If a commissioner fails to take material evidence into
account, or has regard to evidence that is irrelevant, or the
commissioner commits some other misconduct or a gross irregularity
during the proceedings under review including, for example, a
material mistake of law, and a party is likely to be prejudiced as a
consequence, the commissioner's decision is liable to be set
aside
regardless of the result of the proceedings or whether on the basis
of the record of the proceedings, that result is nonetheless
capable
of justification.’ The finding of procedural unfairness of the
third respondent therefore falls to be reviewed and
set aside.
[45] As a result of the
conclusion as set out above, there is no need for me to determine the
second ground of review raised by
the applicant concerning the issue
of compensation.
[46] There is no reason
or cause to remit this matter back to the second respondent. It
concerns the application of a provision
of law, which can be properly
and finally done in these proceedings, especially considering that
the determination of the facts
in this matter are unchallenged. I
shall therefore determine this matter, and substitute the finding of
procedural unfairness of
the third respondent with a determination
that the termination of employment of the first respondent by the
applicant was procedurally
fair.
[47] This then only
leaves the issue of costs. In the Court file, there is a notice from
the first respondent dated 17 January 2012
withdrawing the opposition
of the first respondent to the review. In my view, this was a wise
approach. As such, I shall consider,
for the purposes of costs, that
this review is unopposed, and consequently, shall make no order as to
costs.
Order
[48] In the premises, I
make the following order:
[48.1] The arbitration
award of the third respondent dated 20 July 2008 under case number
PGGA 1265-07/08 is reviewed and set aside.
[48.2] The award of the
third respondent is substituted with an award that the dismissal of
the first respondent by the applicant
was procedurally fair.
[48.3] There is no order
as to costs.
____________________
Snyman AJ
APPEARANCES:
APPLICANT: Adv K M
Molemoeg
Instructed by the State
Attorney, Pretoria
FIRST RESPONDENT: None
1
66
of 1995.
2
103
of 1994.
3
(
2007)
28 ILJ 2405 (CC).
4
(2008)
29 ILJ 2461 (CC)
.
5
(2008)
29 ILJ 964 (LAC).
6
(2010)
31 ILJ 452 (LC).
7
(2002)
8 BLLR 693 (LAC).
8
(2011)
32 ILJ 1077 (LC)
at
para 22.
9
(2008)
29 ILJ 3013 (LC).
10
(2010)
31 ILJ 1875 (LC) at para 56.
11
(2010)
31 ILJ 1460 (LC).