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[2012] ZALCJHB 186
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Lisanyane v Wessels NO and Others (JR 202/10) [2012] ZALCJHB 186 (11 October 2012)
Not reportable
Not
of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 202/10
In the matter between:
K J LISANYANE
..............................................................................................
Applicant
and
C J WESSELS N. O
............................................................................
First
Respondent
S.A POLICE SERVICES
................................................................
Second
Respondent
SAFETY AND SECURITY
SECTORAL
BARAGIANG COUNCIL
....................................................................
Third
Respondent
Heard
:
26
January 2012
Delivered
:
11
October 2012
Summary:
JUDGMENT
MOLAHLEHI J
Introduction
This is an application
to review and set aside the arbitration award made by first
respondent (the arbitrator) under case number
PSSS 210-08/09 dated
17 July 2009. In terms of the arbitration award, the arbitrator
found the dismissal of the applicant to
have been both substantively
and procedurally fair and accordingly the applicant’s claim
that he was unfairly dismissed
fell away.
This application is
accompanied by a condonation application for the late filing of the
review application. The reason for the
delay is according to the
applicant because he only came to know about the outcome of the
arbitration hearing long after the
arbitration award was issued. The
reason for this was because the union official did not inform him on
time about the arbitration
award. After being advised of the outcome
of the arbitration award, the applicant kept enquiring about what
was happening about
the matter from the person who represented him.
At some point that person informed him that matter was taken from
him and was
given to another union official Mr Sechele. Mr Sechele
informed the applicant when he finally managed to contact him that
he
did not know anything about his matter. From there on he was sent
from pillar to post by the union regarding what was happening
to his
matter.
The law and the
principles governing the consideration of condonation are well known
in our law. There is no need to repeat them
same in this judgment.
In my view the applicant has shown good cause which warrants the
granting of condonation.
The background facts of
this case are in general common cause. The applicant who was
employed as station commissioner and cluster
commander, was charged
and dismissed for the following offences:
‘
In
terms of Section 40 of the South African Police Act, 1995, read with
the South African Police Services Regulations of 2006, you
are
charged with misconduct in that you allegedly contravened Regulation
20 (c) of the said regulations at between 23h00 near Wolmanstad,
[in
that] you used the property of the State without permission namely
Toyota Corral with registration FS 416 NW.’
The applicant was found
guilty and fined R300.00 suspended for a period of six months. The
applicant was unhappy with the outcome
of the disciplinary hearing
and accordingly appealed against that decision. He thereafter
launched an internal appeal against
that finding. The chairperson of
the internal appeal upheld the decision of the chairperson of the
disciplinary hearing but imposed
a different sanction. The
chairperson of the disciplinary appeal ordered that applicant be
dismissed.
The matter was then
referred to the SSSBC for arbitration. The arbitrator upheld the
decision of the appeal and thus confirmed
the dismissal of the
applicant. It is the outcome of that arbitration award that is the
subject of the present review application.
The facts which gave
rise to the charges against the applicant are set out in the
arbitrator’s award and have not been challenged
by any of the
parties. It is common cause that at the time of his dismissal the
applicant who was the station commissioner and
cluster commander at
Wolmaranstad had been in the employ of the second respondent for a
period of just under 20 years.
The applicant was during
February 2007 involved in an accident whilst driving the second
respondent’s vehicle. At the time
the applicant was resident
at a guest house in Wolmaranstat whilst his family was at
Tweespruit. The accident occurred on the
Makwasie/Wolmaranstad road.
As would appear from the
charge quoted above the applicant was charged with unauthorized use
of the state vehicle. The applicant
was found not guilty for other
charges concerning the allegations that he intentionally and or
negligently damaged or caused
loss to the state property.
Grounds for review
The applicant contends
that the arbitration award is reviewable because it suffers from the
defects envisaged in
section 145
of the
Labour Relations Act 66 of
1995
, in that the arbitrator committed a misconduct or alternatively
exceeded his powers. In this respect, the applicant contends that
the arbitrator flagrantly disregarded the provisions of the
regulation 17
of the Regulations promulgated in terms of the
South
African Police Service Act 68 of 1995
which set out the powers of
the appeals authority. The relevant sub-regulations of
Regulation 17
for the purposes of this judgment reads as follows:
‘
(7)
The appeals authority-
(a)
Uphold the appeal; or reduce the sanction to any lesser sanction
allowed in terms of regulation15(1); or
(b)
Reduce the sanction to any lesser sanction allowed in terms of
regulation 15(1)
;
(c)
or confirm the outcome of the of the disciplinary hearing.’
The arbitrator’s
award
The first critical
finding of the arbitrator is that he did not have the authority to
pronounce on whether the applicant’s
‘appeal Authority
had the power to impose a more severe penalty than that imposed by
the chairperson of the disciplinary
enquiry as that is not the issue
in dispute.’ After rejecting the evidence of the applicant on
the basis that he (the applicant)
was not a credible witness, the
arbitrator found the applicant guilty and ordered that he be
dismissed.
As concerning procedural
fairness, the arbitrator accepted that the period of nine months
lapsed before the applicant was informed
of the decision to proceed
with the disciplinary inquiry. However, the arbitrator found that
the failure to comply with the regulation
concerning the time frame
stipulated therein was not unfair because the, ‘Disciplinary
Regulations and codes are guidelines
and in my view deviations under
certain circumstances are permissible.’
Evaluation
The second respondent
(the SAPS) in opposing the applicant’s application did not
file any answering affidavit but based
its defence on what is stated
in the heads of argument. The applicant also relied on the
arbitrator’s award and not on
the transcript of the
arbitration proceedings.
There are several cases
that have dealt with the issue of the binding effect of disciplinary
codes that have been or not been
incorporated into the contract of
employment. The general approach that the courts have adopted is
that an employer may deviate
from the provisions of the disciplinary
code where such a code has not been incorporated into the contract
of employment. The
disciplinary code in that regard is regarded as
being a guideline from which an employer may in certain
circumstances deviate
from.
In
Highveld
District Council v Commission for Conciliation Mediation and
Arbitration and Others
,
1
the Labour Appeal Court
in dealing with the situation where the employer had failed to
comply with the provisions of the disciplinary
code held held that:
‘
Where
the parties to a collective agreement or an employment contract agree
to a procedure to be followed in disciplinary proceedings,
the fact
of their agreement will ordinarily go a long way towards proving that
the procedure is fair as contemplated in s 188(1)(b).
The mere fact
that a procedure is an agreed one does not, however, make it fair. By
the same token, the fact that an agreed procedure
was not followed
does not in itself mean that the procedure actually followed was
unfair.
When
deciding whether a particular procedure was fair, the tribunal
judging the fairness must scrutinize the procedure actually
followed.
It must decide whether in all the circumstances the procedure was
fair.’
2
In
Denel
(Pty) Ltd v Vorster,
3
the Supreme Court of
Appeal held that the provisions of the disciplinary code were
binding on the employer because they were incorporated
into the
contract of employment. The SAPS contended that
Denel
was distinguishable from
the present in that the wording of the disciplinary code in that
case was peremptory.
SAPS’s contention
that it was entitled to reverse the decision of the chairperson and
impose a harsher sanction is based
on the authority
Ekhuruleni
Metropolitan Municipality v Mashazi and Another
,
4
and
BMW
(South Africa) (Pty) Ltd v Van der Walt
.
5
In
Mashazi’s
matter, the court dealt
with the review concerning the appropriateness of the sanction
imposed by the chairperson of the disciplinary
hearing. The facts of
that case are distinguishable from the present case. In that case,
an official of the municipality had
been found guilty of fraud but a
lesser sanction was imposed by the chairperson of the disciplinary
inquiry, an independent attorney.
The attorney had during the cause
of the disciplinary proceedings attended a meeting with the accused
employee and promised him
that he would impose a lenient sanction.
The issue before the
court was whether the municipality as an employer could review its
decision arising from a disciplinary inquiry.
The employee contended
that the municipality as an employer could not review the decision
of the chairperson of the disciplinary
hearing whereas the
municipality on the other hand contended that it was entitled to do
that because the decision of the chairperson
of the disciplinary
hearing constituted an administrative act.
In dealing with the
issue of whether the state as an employer could review its decisions
concerning disciplinary matters the court
referred to its decision
in
MEC
for Finance (KZN) and another vs Dorkin and Another
under case number
D505/2002, where it had found that the State as an employer could
not review its own decisions in terms of
section 158(1)(h)
of the
Labour Relations Act of 1995
. That decision was overturned on appeal
in
Member
of the Executive Council for Finance, KwaZulu - Natal and Another v
Dorkin NO and Another
,
6
where Labour Appeal
Court held that in the case of a State entity, as a general
principle, it was in the public interest that
the State as an
employer, should be able to reverse a sanction incorrectly imposed.
The court found that the
decision in
Member
of the
Executive
Council for Finance, KwaZulu – Natal
had
been overruled by the Constitutional Court in
Chirwa
v Transnet Ltd and Others
.
7
And in dismissing the
review application the court reasoned as follows:
‘
It
would appear that the LAC was not referred to the judgment of the
Constitutional Court in
Chirwa
v Transnet Ltd and others
(2008)
29 ILJ 73 (CC) which was delivered on 28 November 2007 which was
approximately three weeks before its decision.
Chirwa
conclusively
decided that the decision to dismiss an employee, even when taken by
an organ of State, does not amount to administrative
action that is
reviewable, either in terms of s 33 of the Constitution or the
Promotion of Administrative Justice Act 3 of 2000
(PAJA). The Court
held that it was no longer necessary to treat public sector employees
differently and subject them to the protection
of administrative law.
There was no longer a distinction between private and public sector
employees under our Constitution. There
was no reason in principle
why public sector employees who fall within the ambit of the Act
should be treated differently from
private sector employees and be
given more rights than private sector employees. I am of the view
that the fact that Ngcobo J held
in
Chirwa
that
a decision to dismiss a civil servant involves the exercise of a
public power is of no moment, since it does not follow that
such
decision constitutes administrative action that is reviewable in
terms of the Constitution or PAJA.’
8
The court further held
that:
‘
The
review application was brought in terms of s 158(1) (h) of the Act.
It is clear from the authorities cited above that no other
cause of
action on which to build a review exists in our law. This conclusion
was endorsed in
Transman
(Pty) Ltd v Dick and another
(2009)
30 ILJ 1565 (SCA) where it was held inter alia that there was no need
to permit a challenge based on the judicial review
in employment
dismissals. See also
Kriel
v Legal Aid Board
(2009)
30ILJ 1735 854 (SCA);
[2009] 9 BLLR 854
(SCA)
and
Makambi v MEC, Department of Education, Eastern Cape
Province
(2008) 29 ILJ 2129 (SCA);
[2008] 8 BLLR 711
(SCA).’
9
In the
BMW
matter, the court held
that an employer has a right to subject an employee to a second
disciplinary enquiry on the same issue
in respect of which he has
already been found guilty and has had a sanction imposed upon him
when ‘it is, in all the circumstances,
fair to do so’
.
10
However the Labour
Appeal Court in
Dorkin
further held that:
‘
[i]t
would probably not be considered to be fair to hold more than one
disciplinary enquiry save in exceptional circumstances”
that
cannot be absolute as there may be exceptional circumstances in which
every reasonable person would agree that senior authorities
in an
organization, particularly a government department, must be able to
intervene to reverse a decision on sanction reached by
a chairman of
a disciplinary enquiry who has been appointed by them. A good example
in this regard is whether the decision reached
by the chairman of the
enquiry has been induced by corruption. In the public interest this
had to be so. However, the courts will
have constantly to endeavour
to ensure that the right of senior authorities in such an
organization to reverse or approach a court
to reverse such a
decision on sanction.’
11
It is clear that the
court in the
BMW
matter was dealing with
an issue slightly different to that in the present instance. In that
case, the court pronounced on the
issue of whether an employer was
entitled to subject an employee to a second disciplinary enquiry on
the same issue in respect
of which he has already been found guilty
and has had a sanction imposed upon him or her. Even then it is
apparent that the court
in that case did not pronounce as a rule of
law that the employer was entitled as a matter cause to subject an
employee to the
second disciplinary hearing.
SAPS further
distinguished the decision in
SAMWU
obo Mahlangu v SALGBC and Others
,
12
from the present case on
the basis that the
provisions
of the disciplinary code in that case were peremptory. In that case
the
court
per Lagrange J in dealing with a situation where the employer had
failed to comply with the peremptory provisions of the
disciplinary
code had the following to say:
‘
A
reading of the provisions of the collective agreement cited above
makes it clear, in my view, that the parties to the agreement
had
jointly decided that disciplinary hearings would be conducted by a
specially appointed tribunal on each occasion and that tribunal
would
be exclusively charged with the task of making findings of fact and
determining a sanction if any. No provision is made in
the agreement
for anyone other than the appointed presiding officer to determine
these issues.’
13
The court further held
that:
‘
Under
circumstances in which the employer unilaterally assumed the power to
determine the sanction to be imposed whereas it was
bound by an
agreed peremptory code assigning such power to an appointed
chairperson, and where it did not give effect to the sanction
recommended by the only person entitled to decide on it, the
employer’s dismissal of Mahlangu was in flagrant breach of the
provisions of the code, which did not allow it to determine if a fair
reason existed for his dismissal. Its action had the effect
of the
sanction being decided by someone other than the only person
authorised by the code to do so. Had the employer acted correctly
and
reaffirmed the chairperson’s obligation to finalise the
imposition of a sanction, there is no reason to believe the
chairperson would not have imposed the sanction he had recommended.
Accordingly, there is every reason to believe the dismissal
would not
have occurred, had the employer not acted as it did. Thus it seems
the most appropriate remedy is to give effect to the
chairperson’s
recommendation.
If
the employer was unhappy with the sanction the chairperson would have
imposed, it would not have been without recourse: it could
have
applied to review the chairperson’s decision.’
14
It is common cause that
the SAPS’s disciplinary regulations are a product of the
agreement reached between the parties to
the Safety and Security
Sectoral Bargaining Council (“SSSBC). The agreement concluded
at the SSSBC were promulgated into
regulations by the Minister in
terms of section 24 of the South African Police Service Act 68 of
1995 (the Act). Section 24 of
the Act gives the Minister the power
to promulgate regulations regarding amongst others:
‘
(f)
labour relations, including matters regarding suspension, dismissal
and grievances;
(g)
(i) the institution and conduct of disciplinary proceedings or
inquiries;
(ii)
conduct by members that will constitute misconduct;
(iii)
the provisions, if any, of the Criminal Procedure Act, 1977 (Act No.
51 of 1977), that shall apply mutatis mutandis to disciplinary
proceedings or inquiries under this Act;
(iv)
the attendance by a member or any witness, of such disciplinary
proceedings or inquiries;
(v)
the circumstances under which such disciplinary proceedings or
inquiries may be conducted or proceeded with in the absence of
the
member accused of misconduct or affected by such an inquiry;
(vi)
the hearing and submission of evidence at such disciplinary
proceedings or inquiries;
(vii)
competent findings and sanctions in respect of such disciplinary
proceedings
or inquiries; and
(viii)
review and appeal in respect of such disciplinary proceedings or
inquiries.”
It would seem SAPS’s
case is that the regulations are not peremptory because the Minister
has discretion whether to promulgate
them or not. It would also
appear that it is also on this basis that SAPS argues that the
regulations are not peremptory but
serve as a guideline in dealing
with disciplinary matters and can therefore not be enforced
contractually. In this respect SAPS
relied on the decision in
Lamprecht
and
Nissan
SA (Pty) Ltd v McNeillie
,
15
where the court held
that:
‘
On
the face of it the guidelines also do not evince any contractual
intent in spite of the use of the word “right”.
Its use
in its setting refers to the rights created by the
Labour Relations
Act and
not to contractual rights.’
In my view, the issue of
the Minster exercising discretion is relevant up to the point before
the promulgation of the regulations
under section 24 of the Act. The
only issue that may arise once the collective bargaining agreement
has been promulgated into
regulations is whether such discretion has
been properly exercised, which has not been raised as an issue in
the present case.
In the present case, the
issue which the arbitrator had to decide was both the procedural and
substantive fairness of the dismissal.
In my view, it is correctly
submitted on behalf of the applicant that it followed logically that
the arbitrator had to determine
the fairness of the appeal authority
substituting the finding of the chairperson of the disciplinary
hearing with a more severe
sanction of dismissal.
The question that then
arises is whether the finding by the arbitrator that he did not have
the power to pronounce on whether
the applicant’s ‘appeal
Authority had the power to impose a more severe penalty than that
imposed by the chairperson
of the disciplinary enquiry as that is
not the issue in dispute,’ constitutes a gross irregularity
justifying interference
with the arbitration award.
In dealing with the
issue of gross irregularity in
Sidumo,
16
Ngcobo J in the often
quoted passage had the following to say:
‘
It
follows, therefore, that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot, in
principle, be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing …the commissioner’s
action prevents
the aggrieved party from having its case fully and fairly determined.
This constitutes a gross irregularity in
the conduct of the
arbitration proceedings, as contemplated in section 145(2)(a)(ii) of
the LRA. And the ensuing award falls to
be set aside not because the
result is wrong but because the commissioner has committed a gross
irregularity in the conduct of
the arbitration proceedings.’
The above approach was
followed by the Labour Appeal Court in the recent cases of
Gaga
v Anglo Platinum Ltd and Others;
17
Afrox Healthcare Ltd
v Commission for Conciliation, Mediation & Arbitration and
Others
18
and
Herholdt
v Nedbank Ltd
.
19
In the
Gaga
matter, Murphy AJA, in
dismissing the appeal where the commissioner had found the employee
not guilty of sexual harassment held
that:
‘
Where
a commissioner fails properly to apply his mind to material facts and
unduly narrows the inquiry by incorrectly construing
the scope of an
applicable rule, he will not fully and fairly determine the case
before him. The ensuing decision inevitably will
be tainted by
dialectical unreasonableness (process-related unreasonableness),
characteristically resulting in a lack of rational
connection between
the decision and the evidence and most likely an unreasonable outcome
(substantive unreasonableness). There
will often be an overlap
between the ground of review based on a failure to take into
consideration a relevant factor and one based
on the unreasonableness
of a decision. If a commissioner does not take into account a factor
that he is bound to take into account,
his or her decision invariably
will be unreasonable.
The
flaw in process alone will usually be sufficient to set aside the
award
on
the grounds of it being a latent gross irregularity, permitting a
review in terms of section 145(1) read with section 145(2)(a)(ii)
of
the LRA’
20
In my view, the
submission on behalf of SAPS is incorrect in equating the provisions
of regulation 17 to guidelines or as being
contractually
unenforceable. The validity of the regulation has not been
challenged. It can therefore be safely concluded that
the regulation
forms part of subordinate legislation and consequently derives its
legal force from the empowering provisions
of section 24 of the Act.
In the absence of a provision to the contrary the provisions of the
regulation cannot be equated to
a guideline which SAPS may disregard
or deviate from.
It therefore follows
that in flagrantly ignoring the provisions of regulation 17, the
arbitrator failed to apply his mind to the
material relevant to the
consideration whether the appeal authority had the power to impose a
harsher sanction than that imposed
by the chairperson of the
disciplinary hearing and therefore unduly narrowed the enquiry into
the fairness of the dismissal.
This, in my view, constitutes a gross
irregularity in terms of section 145 of the LRA, the consequence of
which is that the applicant
was deprived of a fair hearing. It was
as a result of the failure to apply his mind to material relevant to
a fair determination
of the dispute that the arbitrator arrived at a
conclusion that is grossly irregular which accordingly warrants
interference
with the arbitration award.
In my view, the reading
of regulation 17 cited above makes it clear that the powers of the
appeal authority are limited to upholding
the appeal, or reducing
the sanction or confirming the outcome of the disciplinary hearing.
There is no provision in this regulation
giving the appeals
authority the power to give a harsher sanction than that imposed by
the disciplinary hearing. The question
of whether the appeal
authority had the power to change the sanction imposed by the
chairperson of the disciplinary hearing was
an important aspect in
the consideration of whether the dismissal was fair. The arbitrator
misconceived his powers which resulted
in him failing to apply his
mind to the critical question of powers of the appeal authority.
In light of the above, I
am satisfied that the applicant has made a case for review which
warrants interference with the arbitrator’s
arbitration award.
In the circumstances of this case, I see no reason why costs should
not in law and fairness follow the results.
It seems to me that
ordinarily, I should be remitting this matter back to the first
respondent. However, in the interest of expediting
the resolution of
this dispute, it seems fair and proper to deal with it on the basis
of an assumption. The assumption has to
be made on the basis that
there was only two bases upon which the appeal authority could have
dealt with the decision of the
chairperson of the disciplinary
hearing i.e confirmation or reduction of the sanction. That being
the case it would mean that
the suspended sanction would by now have
lapsed. Except for the finding of guilt the matter has now become
academic and it is
for this reason that I belief sending the matter
back to the first respondent for fresh determination would defeat
the spirit
of expeditious dispute resolution as envisaged in the
Labour Relations Act of 1995
.
Order
In the premises, the
following order is made:
The arbitration award
made by first respondent under case number PSSS 210-08/09 dated
17 July 2009 is reviewed and set aside.
The arbitrator’s
arbitration award is substituted with an order to the effect that
the dismissal of the applicant
Mr Lisanyane was substantively
unfair and the second respondent, the South African Police
service is accordingly ordered
to reinstate him retrospective to
the date of the dismissal without loss of benefits and with back
pay.
The second respondent
is to pay the costs of the applicant.
______________________
Molahlehi J
Judge of the Labour Court
APPEARANCES:
FOR APPLICANT: Mr E Louw
of Eric H Louw Attorneys
FOR FIRST RESPONDENT: Adv
M Zulu instructed by the State Attorney
1
(2003)
24 ILJ 517 (LAC).
2
Highveld
District Council
at para 15.
3
2004
(4) SA 481
(SCA).
4
(2010)
31 ILJ 614 (LC).
5
(2000)
2 BLLR 121
(LAC).
6
(2008)
29 ILJ 1707 (LAC).
7
(2008)
29 ILJ 73 (CC).
8
Mashazi
at para 32.
9
Mashazi
at para 35.
10
BMW
at para 12.
11
Dorkin
at para 13.
12
[2011]
9 BLLR 920
(LC).
13
SAMWU
obo Mahlangu
at para 27.
14
SAMWU
obo Mahlangu
at paras 32 and 33
.
15
[1994]
11 BLLR 1
(AD) at 5 G.
16
Sidumo
v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC).
17
(2012)
33 ILJ 329 (LAC).
18
(2012)
33 ILJ 1381 (LAC).
19
(2012)
33 ILJ 1789 (LAC).
20
Gaga
at para 44
.