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[2012] ZALCJHB 104
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South African Municipal Workers Union and Another v South African Local Government Bargaining Council and Others (JR 05/10) [2012] ZALCJHB 104 (8 October 2012)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOAHNNESBURG
JUDGMENT
Reportable
Case no: JRJR 05/10
In the matter between:
SOUTH AFRICAN
MUNICIPAL WORKERS UNION
..............................
First
Applicant
MAZIBUKO JC
.
..................................................................................
Second
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
....................................................................
First
Respondent
MABUSELA TL
N.O
......................................................................
Second
Respondent
RAND WATER
...................................................................................
Third
Respondent
Heard: 10 February
2012
Delivered: 08 October
2012
Summary:
JUDGMENT
MOLAHLEHI J
Introduction
This is an application
to review and set aside the arbitration award made by the second
respondent (the arbitrator) under case
number GPD090802, dated 5
October 2009. In terms of the arbitration award, the arbitrator
upheld the decision of the third respondent
to dismiss the second
applicant, as being fair.
The applicant has also
applied for condonation for the late filing of the review
application. In the circumstance of this case,
taking into account
the short period of 28 days delay, I see no reason why condonation
should not be granted.
Background facts
The second applicant, Mr
Mazibuko, (the employee) who at the time of his dismissal was
employed as a conference coordinator, was
charged with the following
offences:
“
Charge 1
Being in possession of Rand Water’s
property without authority in that you were found in possession of
decanter and 18 glasses
belonging to Rand Water on 13 February 2007
at the main reception of Rand Water’s head office building.
Charge 2
Attempting to defeat the process of
investigation by the forensic audit unit in that on 13 February 2007,
at about 17h30, you attempted
to bring the above stated decanter and
glasses into Rand Water’s head office knowing that the Forensic
Audit Unit is making
investigations into the whereabouts of the said
decanter and glasses.
Charge 3
Damage to Rand Water’s property
in that when you were found in possession of the above mentioned
decanter and glasses by the
Protective Service personnel, some of the
glasses were damaged.
Charge 4
Deliberately giving untrue and
misleading information in that when you were asked telephonically
about the whereabouts of the above-mentioned
decanter and glasses on
the 13th of the right 2007, you stated that the items where in a
cupboard in your office, however, when
the office was searched the
glasses could not be found.’
The chairperson of the
disciplinary enquiry found the employee guilty of charges one, three
and four. In terms of charge two the
third respondent alleged that
the employee attempted to defeat the process of investigation by the
auditors. This charge was
discarded.
The applicant was
accordingly dismissed for being found in possession of the third
respondent's property, damage to that property
and for giving untrue
and misleading information regarding its whereabouts.
The employee disputed
the fairness of the dismissal and accordingly referred the matter to
the first respondent for concilliation
and thereafter to
arbitration.
The testimony of the
various witnesses that testified during the arbitration hearing has
been summarised by the arbitrator and
have not in any material
manner been challenged by any of the parties and therefore will not
be repeated in this judgment except
where it is necessary.
The facts that gave rise
to the charges against the second applicant arose from the discovery
by the forensic department that
certain crystal glasses and decanter
which had been purchased by the third respondent went missing.
On discovering that the
glasses and decanter were missing, the forensic auditor, Mr Kometsi
required Ms Mmushi, to investigate.
The person who purchased the
glasses was Ms Mabena who gave the glasses to the second applicant
during early February.
Ms Mmushi firstly
checked whether the missing glasses were not at the other conference
centre and when the glasses could not be
found there, the auditor
requested Ms Mmushi to enquire from the applicant as to what
happened to the glasses. Initially when
asked about the glasses, the
applicant said that they were in his office in the cupboard. The
glasses could not however be found
in the office. In light of this,
Ms Mmushi advised the security to be on the lookout for the missing
glasses.
It was alleged that
initially on arrival at the gate on the day when the glasses were
brought in, the employee resisted being
searched by the security. On
searching the employee’s car, the security found the glasses
in the boot, one of which was
broken.
The employee testified
that the glasses were given to him earlier by his superior, Ms
Mabena, who had phoned him to pick them
up from her home as she was
not feeling well on that day. In this respect, the employee
testified that after taking the glasses
from his superior, he
enquired as to when he was expected to take the glasses to the
workplace as it was already late at that
time. The answer he got
from his superior was that he could take them the following day.
It is common cause that
the employee did not take the glasses to the workplace the following
day but did so only after about 11
days. The employee gave a number
of reasons for the delay in taking the glasses to work. The first
reason is that on the day
he was instructed to take the glasses to
work he was busy with arrangements of attending a family funeral.
The other reason is
that he thereafter went on leave for few days
and the other reason was that he forgot that he had the glasses in
the boot of
his car. The reason for taking the glasses to the
workplace on that particular day was according to him because he was
told by
his colleague as to what kind of glasses the third
respondent was looking for.
Grounds for review
The applicants in their
challenge of the arbitration award contend that the arbitrator
failed to have regard to the direct evidence
which had been placed
before her but rather took into account irrelevant considerations
based on evidence which was not before
her. The applicants further
contend that there was no basis for the arbitrator to arrive at the
conclusion that the employee’s
conduct amounted to breach of
duty of good faith. The other ground upon which the applicants are
challenging the arbitration
award is that it was not fair in the
circumstances of this case to impose the sanction of dismissal in
particular having regard
to the fact that there was no evidence of
breakdown in the trust relationship between the parties. It was for
these reasons that
the applicants contend that the arbitration award
is unreasonable.
In the supplementary
affidavit, the applicants contend that in determining whether the
second applicant should have been dismissed,
the arbitrator ought to
have determined firstly whether the second applicant was guilty of
the three charges he was charged with.
It was argued on behalf of
the applicants in this respect that save for dealing with the charge
of damage to property the arbitrator
did not deal with all the other
charges for which the second applicant was charged with.
It was argued on behalf
of the applicants during the review that there was no basis upon
which the arbitrator came to the conclusion
as she did.
The arbitration award
After a brief analysis
of the nature and the duties of both parties arising from their
contract of employment, the arbitrator
observes that in considering
the fairness of a dismissal regard must be had to the
Labour
Relations Act 66 of 1995
and the Code of good Practice: dismissal.
The arbitrator then found that the glasses were handed over to the
employee by his
manager, Ms Mabena. The arbitrator further found in
this respect that the applicant was authorised by his manager to
deliver
them to the office on Friday, 2 February 2007.
As concerning the
testimony of Ms Mabena, who at the time of testifying was no longer
in the employ of the third respondent, the
arbitrator accepted her
version that she had authorised applicant to take possession of the
glasses and that that version was
not rebutted by the third
respondent.
After making the above
findings, the arbitrator raises the issue of the delay by the
employee in delivering the glasses and observed
that a period of 11
days was a very long period for the employee to have delivered the
glasses. As concerning the query raised
with him regarding the
whereabouts of the glasses, the arbitrator found that even if the
second applicant did not know as to
which glasses the auditor was
looking for at the time she called him, why did he not call her
after realising that he had them.
As concerning the charge
of damage to the property (breaking of one of the glasses) the
arbitrator found that the third respondent
had failed to prove ‘any
wilful damage to the glasses’, by the employee. The arbitrator
found that charging the employee
with damage to the property was
unreasonable because there was no element of intention on the part
of the employee to cause the
damage.
After observing that,
‘an unauthorised use of company property is generally regarded
as sufficient to warrant a dismissal,
the arbitrator then makes the
following finding:
”…
In
the current matter the respondent could not prove that indeed the
applicant was in an unauthorised possession of the glasses
since Busi
testified that she authorised him to carry those glasses and deliver
them to the office and the respondent did not present
contrary
evidence to rebut her testimony.”
In finding the dismissal
to be fair, the arbitrator reasoned that the employee, ‘failed
in his duty of good faith.’
It is apparent from the reading of
the arbitration award that the reason for finding that the employee
‘failed in his duty
of good faith,’ is because he kept
the glasses for a lengthy period which according to the arbitrator
the reason thereof
‘is only known by him.’
Evaluation
The essence of the
applicant’s challenge to the arbitration award is that the
arbitrator reached an unreasonable conclusion
in finding the
dismissal to be for a fair reason. It then follows that the test to
apply in considering the review application
is that of a reasonable
decision maker as set out in
Sidumo
.
1
The Labour Appeal Court
in
Fidelity
Cash Management Service v CCMA and Others
,
2
interpreted the
reasonable decision maker test as set out by the Constitutional
Court as being a stringent test which would ensure
that arbitration
awards are not lightly interfered with. In relation to the
determination of the fairness of a dismissal the
LAC held that:
‘
It is an
elementary principle of not only our labour law in this country but
also of labour law in many other countries that the
fairness or
otherwise of the dismissal of an employee must be determined on the
basis of the reasons for dismissal which the employer
gave at the
time of the dismissal.’
3
It would appear that in
addition to the contradiction between the reasoning and the
conclusion made in the award, the arbitrator
reached a conclusion
that is unreasonable because of the failure to adhere to the above
principle. It therefore follows that
there can be no doubt in
applying the
Sidumo
test that the arbitrator in reaching the
conclusion that the dismissal was for a fair reason, made an
arbitration award which
a reasonable decision maker could not have
reached. It is for this reason and the others set out below that I
am of the view
that the arbitration award of the arbitrator stands
to be reviewed.
The important aspect
that supports the view that the decision of the arbitrator is
unreasonable is the fact that the arbitrator
arrived at a decision
which is not supported by the facts of the case. The arbitrator
somehow found the employee guilty of a
charge which was never before
the third respondent nor formed the basis or reason for the
dismissal of the employee. It would
appear that the ‘bad
faith’ for which the arbitrator found the employee guilty of
arises from the fact that he delayed
in delivering the glass to
work. There is no evidence that for a moment suggest that the
employee was charged with the delay
in delivery the glasses after
taking them from his superior.
The arbitration award is
unreasonable because the decision reached by the arbitrator is not
reasonably connected to the material
and the evidence which was
before her. In other words the arbitrator determined the matter not
on the basis of the reasons given
by the third respondent for
dismissing the employee but on some other basis upon which the case
of the third respondent was not
based on. It is clear from the
reading of the record that the employee was dismissed for three
reasons which are set out in the
third respondent’s Discharge
Form number 0041 as follows:
‘
1. Being in
possession of RW property without authority.
2. Damage to RW property.
3. Deliberately giving untrue and
misleading infor’
It is very clear that in
as far as the first reason is concerned the third respondent failed
to prove that the employee did not
have authority to be in
possession of the glasses. In that regard, the arbitrator does in
fact make a finding that is correct
and that is that the employee
was not guilty of unauthorised possession of the glasses. There is
no evidence that the authority
given to the employee to take
possession of the glasses was ever revoked by the manager that
authorised him in the first instance
to take possession thereof.
There was also
insufficient evidence for the arbitrator in arriving at the
conclusion that the trust relationship between the
parties had
broken down to the extent that it would not be fair to expect the
third respondent to continue with the employment
relationship. In
this respect, what was before the arbitrator was an opinion by the
forensic auditor about the trust relationship
between the parties.
There was no evidence as to the impact of the employee’s
conduct on the trust relationship. In any
case there could never
have been a breakdown in the trust because the facts which the
auditor placed before the arbitrator did
not support a finding of a
breakdown in the relationship. Her version upon which she based her
opinion that the relationship
between the parties had broken down
was based on the allegation of unauthorised possession of the
property of the third respondent
by the employee which the
arbitrator found to have no merit. In other words there could be no
breakdown in the relationship with
the third respondent when the
arbitrator had found that the third respondent had failed to show
that the employee did not have
authority to be in possession of the
glasses. And furthermore there could also be no breakdown in the
relationship when the arbitrator
found that the third respondent had
failed to show that the employee maliciously damaged one of the
glasses of the third respondent.
The same applies to the
allegation that the employee misled the forensic auditor when he
informed her that the glasses were in
an office. In this respect,
the version of the employee that at the time the auditor asked him
about the glasses he was not aware
which or what type of glasses she
was referring to. In finding the employee guilty of misleading the
auditor on the basis that
he had the duty to contact the auditor
once he had become aware which glasses was referred to, seems to me
to shift the burden
on to the employee. It is trite that the
onus
to show that the dismissal was for a fair reason is on the employer
and not the employee.
In light of the above
and as already indicated, the arbitrator's arbitration award stands
to be reviewed. In my view, although
there are some deficiencies in
the record, I do not believe that it would serve any purpose in
remitting this matter back to
the first respondent. There are
sufficient material upon which this Court can determine the fairness
or otherwise of the dismissal.
In as far as the relief
is concerned, there is no basis from the record upon which it can be
said that the primary remedy of reinstatement
should not be granted.
And with regard to the issue of costs, I see no reason why the costs
should not follow the results.
Order
In the premises, the
following order is made:
The arbitration award
made under case number GPD 090802 on 5 October 2009 is reviewed
and set aside.
The arbitration award
is substituted with the following award:
‘
a) The
dismissal of the applicant, Mr Mazibuko, was substantively unfair.
b) The respondent is ordered to
reinstate the applicant retrospective to the date of his dismissal
without lost of any benefits
that may have accrued.’
3. The third respondent
is ordered to pay the costs of the applicants.
________________
Molahlehi J
Judge of the Labour Court
of South Africa
APPEARANCES
:
FOR THE APPLICANT: Adv C
Orr instructed by Cheadle Thompson & Haysom Inc.
FOR THE RESPONDENT: Cliff
Dekker Hofmayer Inc
.
1
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405.
2
[2008]
3 BLLR 197
(LAC).
3
Fidelity
Cash Management Service
at para 32.