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 182
|
|
Madywabe v van der Merwe and Others (JR 2999/07) [2012] ZALCJHB 182 (10 October 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
case
no: JR 2999/07
In the matter between:
TENJIWE
MADYWABE
.........................................................................
Applicant
and
F.
VAN DER MERWE
...............................................................
First
Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
....................................................
Second
Respondent
MINISTER
OF SAFETY AND SECURITY
..............................
Third
Respondent
SOUTH
AFRICAN POLICE SERVICE
COMMISSIONER
..................................................................
Fourth
Respondent
Heard
:
10
October 2012
Order : 10 October
2012
Summary : Application
to review dismissed, principles re-stated.
JUDGMENT-REASONS FOR
ORDER
AC
BASSON J
Introduction
[1] This was an
application to review and set aside an award by the first respondent
(“the arbitrator”) in terms of
which the arbitrator held
that the applicant’s claim is dismissed with costs. The
applicant is currently employed as a police
official in the rank of
Sergeant.
[2] The parties had
agreed that it was unnecessary to lead oral evidence during the
hearing and argued the matter before the arbitrator
on the papers (a
bundle of documents).
[3] The crux of the issue
before the arbitrator was whether the employer (the Minister of
Safety and Security and the South African
Police Service
Commissioner) committed an unfair labour practice in withdrawing the
applicant’s promotion to a higher rank
on the basis that she
had failed to disclose the fact that she had a pending disciplinary
hearing against her. The question to
be answered was whether the
applicant, at the time when she completed the application form knew
or ought to have known that the
disciplinary hearing against her had
not yet been finalised. The applicant’s case was that she had
acted in good faith when
she completed her application and that she
was not aware of the fact that the employer still considered
proceeding with the disciplinary
hearing against her.
[4] The applicant’s
case was that the findings of the arbitrator are reviewable. It was
further argued that the arbitrator’s
actions were
“unjustifiable and irrational” in finding,
inter alia
,
that it was unreasonable for the applicant to have assumed that there
no longer was a case pending against her.
[5] In a well-reasoned
and detailed award the arbitrator summarised the facts that were
placed before the arbitration. More in particular,
the arbitrator
recorded that when the disciplinary hearing involving the applicant
was postponed, she was informed that a notice
would be given her to
appear at the hearing should the office of the Provincial
Commissioner decide to proceed with the disciplinary
hearing. The
applicant did not disclose in her application that the disciplinary
proceedings against her had not been finalised.
It was only after the
applicant’s promotion that the Head Office became aware of the
fact that the disciplinary proceedings
against the applicant was
still pending. The applicant was afforded an opportunity to submit
written representations as to why
her promotion should not be
withdrawn. The applicant’s submissions were considered before a
decision was made to withdraw
her promotion. In withdrawing her
promotion, the employer relied on clause 15(3) of the National
Instruction 1/2004 which states
that failure to disclose information
regarding pending disciplinary action may result in the withdrawal of
promotion of such employee.
[6] The arbitrator after
having evaluated all the evidence, arrived at the conclusion that the
applicant knew, at the time when
she completed the application form
or ought to have known that the disciplinary hearing against her had
not been finalised. In
this regard the arbitrator also took into
account that the disciplinary hearing against her was not withdrawn
but postponed indefinitely,
inter alia
, because of her own
absence from the hearing. The arbitrator was mindful of the fact that
it was difficult to decide whether the
applicant had intentionally
misled the employer bearing in mind that no
viva voce
evidence
was led which had deprived him of the opportunity to make a
credibility finding in respect of witnesses. However, despite
this
fact the arbitrator was satisfied that the withholding of the
information was not
bona fide
. At least the applicant should
have made enquiries if she was uncertain. The arbitrator also
concluded that it was not reasonable
to have formed the view that the
disciplinary hearing would never have proceeded. Lastly, the
arbitrator also took into consideration
the fact that the applicant
had been afforded a reasonable opportunity to be heard prior to
deciding to withdraw her promotion.
[7] In arriving at this
decision the arbitrator took into account the overwhelming and
undisputed evidence that was placed before
the arbitration. I can
find no reason to interfere with the decision. I am further in
agreement with the respondent’s submission
that the merits of
the pending hearing are irrelevant for purposes of this application.
[8] I am satisfied that
the arbitrator has arrived at a reasonable conclusion. I am therefore
of the view that the review should
be dismissed. I have, despite the
fact that there is an on-going relationship between the parties,
decided to order that the applicant
pay the costs.
[9] Therefore the
following order is made;
9.1 The application to
review is dismissed.
9.2 The applicant is
ordered to pay the costs.
_______________________
AC BASSON J
Judge of the Labour Court
APPEARANCES:
For the Applicant : Mr.
J.M Gouws of Johan Gouws Attorneys
For the Respondent :
Advocate Makhubela
Instructed by : The State
Attorney