About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 100
|
|
Minister of Correctional Services v Safety and Security Sectoral Bargaining Council and Others (JR 925/09) [2012] ZALCJHB 100 (20 September 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: JR 925/09
In the matter between:
MINISTER OF
CORRECTIONAL SERVICES
.................................................
Applicant
and
SAFETY AND SECURITY
SECTORAL
BARGAINING COUNCIL
......................................................................
1st
Respondent
JOSEPH M MASEKO
NO
.....................................................................
2
nd
Respondent
PUBLIC SERVICE
ASSOCIATION
Obo EMSHABANGU
............................................................................
3
rd
Respondent
Date of application: 10
August 2012
Date of judgment: 20
September 2012
___________________________________________________________________
judgment
___________________________________________________________________
VAN NIEKERK J
Introduction
[1] This is an
application to review and set aside an arbitration award issued by
the second respondent (the commissioner) on 17
January 2009 under
case number PSGA 633 – 08\09. In his award, the commissioner
concluded that the demotion of the employee
on whose behalf the third
respondent acts (Shabangu) was unfair.
Factual background
[2] The material facts
are not in dispute, and are summarised in some detail in the
arbitration award under review. Shabangu was
employed by the
applicant at the Nelspruit Correctional Centre. On or about 7 June
2007 he was charged with contravening resolution
1 of 2006, in that
he had allegedly poorly or inadequately discharged his duties for
reasons other than incapacity’ by failing
to check and control
fingerprints of an awaiting trial offender. The incident that was the
subject of the allegations against Shabangu
concerned an exchange of
cards in circumstances where the offender was in possession of a card
indicating that he had been granted
bail. The card was that of
another offender, who had been granted bail and was to be released.
It was common cause that Shabangu
was the most senior checker at the
time the incident occurred. After a disciplinary enquiry, Shabangu
was found guilty and demoted
from the position that he held
immediately prior to the incident that gave rise to the charges
against him.
[3] Shabangu disputed the
fairness of his demotion and the matter was ultimately referred to
arbitration before the commissioner.
The issue before the
commissioner was whether the applicant had committed an unfair labour
practice by demoting Shabangu as a consequence
of the misconduct that
he was alleged to have committed. Shabangu’s defence in the
arbitration hearing was that he could
not be guilty of any failure to
check and control fingerprints since he had not been trained to read
fingerprints, nor had he had
been trained to analyse or compare them.
It was not disputed that Shabangu had never undergone any training in
this regard.
The applicable legal
principles
[4] In broad terms, the
test to be applied in the present instance is whether the conclusion
reached by the commissioner is one
that falls outside of the band of
decisions to which a reasonable commissioner could come on the
available material (see
Sidumo& another the Rustenburg
Platinum mines Ltd & others
(2007) 28
ILJ
to 405
(CC)). The Labour Appeal Court has recently affirmed that it does not
necessarily follow that the reasonableness requirement
is limited to
outcome. In other words, an arbitration award will be reviewable if
it suffers from process-related unreasonableness.
So, for example, if
a commissioner fails to have regard to material facts, this will
constitute a gross irregularity in the conduct
of the arbitration
proceedings because the commissioner would have unreasonably failed
to perform his or her mandate and thereby
have prevented the
aggrieved party from having its case fully and fairly determined.
This is so because the proper consideration
of the relevant and
material facts and issues is a pre-requisite to a reasonable
decision, and if a decision maker fails to take
account of a relevant
factor which he or she is bound to consider, the resulting decision
will not be reasonable (see
Herholdt v Nedbank Ltd
(DA 20/10,
4 May 2012 at paragraph [39] of the judgment, and
Southern Sun
Hotel Interests (Pty) Ltd vCCMA& others
[2009] 11 BLLR 1128
(LC)). To the extent that the applicant’s grounds for review
are process-related, I intend to apply this approach.
The commissioner's
award
[5] In his award, the
commissioner recorded that Shabangu's records did not disclose that
he had been trained in the reading and
analysis of fingerprints. The
commissioner then set out in some detail and analysis of item 9 of
schedule 8 to the Labour Relations
Act, a provision dealing with the
work performance. The commissioner found, amongst other things, that
the applicant had failed
to prove that is had given the necessary
training and that Shabangu could have been expected to have
discharged the duty concerned.
On this basis, the commissioner
discounted evidence that Shabangu had performed duties relating to a
custodian and keeper of detainees
and offenders. The commissioner's
reasoning is best disclosed by his conclusion which reads as follows:
‘
(1) The
employee cannot be found guilty for failing to do something that he
had not been trained to do – especially after
the employer's
key witness testified that this is a technical aspect of the work
that can only be done by a skilled individual;
(2) The verdict was not informed by
the provisions of schedule 8 of the LRA and in terms of the case law
above, it should have been.
Should the employer have taken this code
(Schedule 8) into account, this verdict would not have been breached.
But also apart from
that, in the view of this panellist and taking
into account the provisions of the said schedule, the employee was
simply not guilty
of committing the charges preferred against him; …’
Grounds for review
[6] The applicant seeks
to review the commissioner's award on a number of grounds. The first
is that in his award, the incorrectly
referred to the applicant as GJ
Human, when in fact he was EMShabangu. The second is that he recorded
that the demotion took effect
on 12 October 2007, when in fact it's
was demoted on 23 August 2007. The third ground is related to the
commissioner's finding
that Shabangushould not have been found guilty
on account of the fact that he had never received any formal training
in fingerprint
comparison. The precise ground for review is best
articulated by quoting from the founding affidavit, which reads as
follows:
‘
The second
respondent erred by finding on face value that there was no formal
training, that the third respondent was not in a position
to execute
his duties properly. In addition to the aforementioned, he also
overemphasised the lack of formal training in the face
of ample
practical experience that the third respondent had, which practical
experience was approximately 24 years.’
Analysis
[7] There is no merit in
the grounds for review that are placed in what the face of it appears
to be no more than typographical
errors. Certainly, the reference to
‘GJ Human’ (as opposed to ME Shabangu) in paragraph 5(a)
of that part of the award
headed‘Background to the issue’
fallsinto this category, as does the objection relating to the date
on which the demotion
took place. In this regard, the pre-arbitration
minute, on which the commissioner clearly relied, stipulated 12
October 2007 as
thedate on which he was demoted. These are not
material issues, and certainly not an indication, as the applicant
contends, that
the commissioner failed to apply his mind to the
evidence before him.
[8] In regard to the
commissioner's handling of the facts, and in particular the assertion
that he afforded inadequate weight to
Shabangu’s 24 years’
experience as a factor relevant to his culpability, it is not clear
from the record whether Shabangu
had occupied the same position (in
which checks were conducted) for 24 years, or that he had prior
experience in a position which
required the analysis and comparison
of fingerprints. The evidence on which the commissioner relied in
coming to the conclusion
appears to be that of a Mr Fouche, a
fingerprint expert at the SAPS, who in a sworn statement referred to
the proceedings stated
in unequivocal terms that it is not possible
to expect from any person to make a correct fingerprint comparison
and to establish
the correct identity of any person in circumstances
where the comparing official was not trained and certified as
competent in
the comparison and identification of fingerprints. There
is no evidence in the record that served to rebut this assertion, nor
is there any evidence that Shabangu could be expected to perform his
duties properly without training in fingerprinting analysis.
In
short, the factual conclusion to which the commissioner can sustain
by the evidence before him. In my view, it cannot be said
that the
decision to which he came was one that falls outside of a band of
decisions to which reasonable people could come on the
available
material. On this basis, and having regard to the threshold
established by
Sidumo& another v Rustenburg Platinum Mines Ltd
& others
[2007] 12 BLLR 1097
(CC), the application stands to
be dismissed.
Costs
[9] The third respondent
sought costs in the event that the application is dismissed. There is
no reason why costs ought not to
follow the result, and I intend to
make an order on that basis.
I make the following
order:
The application is
dismissed, with costs.
André van Niekerk
Judge of the Labour court
Representation
For the Applicant:
AdvFMMSnyman, instructed by the State Attorney
For the Respondent: Adv
AM Pheto, instructed by Macbeth Hlongwane Attorneys