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[2012] ZALCCT 50
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Department of Correctional Services v Muller and Others (C 406/2009) [2012] ZALCCT 50 (1 January 2012)
Not Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case no: C406/2009
In the matter between:
DEPARTMENT OF CORRECTIONAL SERVICES
...................................................
Applicant
and
FRANS MULLER
..........................................................................................
First
Respondent
RETIEF OLIVIER N.O.
.............................................................................
Second
Respondent
THE GENERAL PUBLIC SECTORAL
BARGAINING COUNCIL
.............................................................................
Third
Respondent
Heard: 12 May 2011
Delivered: January 2012
Summary: review, formulation of allegation of
misconduct, appropriate sanction
JUDGMENT
VAN VOORE AJ
[1] This is an application to review and set aside an
arbitration award of the second respondent (the commissioner) in
arbitration
proceedings under the auspices of the General Public
Service Sectoral Bargaining Council (the bargaining council). The
applicant
is the Department of Correctional Services (the
Department). It also seeks further relief as set out in the notice of
motion.
[2] The review application was filed late and the
applicant has applied for condonation. For the reasons set out below
condonation
is granted.
Background
[3] The First Respondent, Frans Muller (Muller) was
employed by the Department at the Pollsmoor Correctional Facility as
a co-ordinator,
health care. A disciplinary hearing was convened into
serious allegations of misconduct against Muller. Muller was found
guilty
of serious misconduct and was dismissed. Muller lodged an
internal appeal. Muller’s dismissal was confirmed on appeal.
[4] Muller then referred an alleged unfair dismissal
dispute to the bargaining council. Following arbitration proceedings,
the commissioner
issued an arbitration award. In that award, the
commissioner writes:
‘
26. The
sanction of dismissal of the Applicant was unfair. The Applicant
stated that he wished he wished to be reinstated. The employer
argued
that should an award be issued it must also be considered that the
Applicant’s position has been filled as it was
a critical
position.
27. I therefore order the following which I consider just and
equitable:
The Applicant is reinstated from the date of dismissal on the 18
July 2007.
The Applicant is to report for duty on 4 May 2009.
The Respondent is ordered to pay the Applicant’s salary he
would have earned from the date of dismissal to reinstatement
(from
19 July 2007 to 3 May 2009). That the parties quantify and agree to
this amount, including taking into account any salary
increases that
would have accrued [to] the Applicant. If the parties fail to reach
agreement on the amount of the outstanding
payment, it can be
referred back to the arbitrator.
Payment is to be effected on or before 4 May 2009.
Considering the fact that the Applicant’s position has been
filled I further order the Respondent to reinstate the Applicant
in
a similar and reasonably suitable position in terms of the
conditions of service that are not less favourable than to the
position he previously held.’
[5] This outcome is remarkable and troubling on a number
of levels. The undisputed material facts before the commissioner
include
the following:
Muller was employed by the Department at Pollsmoor
Correctional Facility.
Muller has been employed by the Department for a very
long time and understands the correctional services environment.
In the ordinary course of his work, Muller interacts
with persons in prison at the Pollsmoor Correctional Facility.
Muller’s duties include facilitating the
provision of health services to persons in prison at the Pollsmoor
Correctional
Facility.
Muller was in contact with an inmate and with
associates of an inmate. Muller facilitated transactions between an
inmate and
persons outside the correctional services facility. This
conduct was quite obviously in breach of the terms and conditions
of Muller’s employment and the Department’s policies
and procedures.
[6] In the face of these and other undisputed facts, the
commissioner awarded
inter alia
, that Muller be reinstated.
The allegation of misconduct against Muller is as
follows:
‘
You are
alleged to have committed misconduct in terms of the Department of
Correctional Service Disciplinary Code and procedure
resolution 1 of
2006 paragraph A, in that on or about 30 November 2006 and on or
about 14 February 2007 you received / accepted
money from an offender
and / or from an offender’s representative for your benefit
whilst employed in the Department of Correctional
services at
Pollsmoor Management Area.’
[7] The formulation of the charge left Muller in no
doubt that very serious misconduct was alleged against him. Further,
Muller
could not have been in any doubt that the serious allegations
of misconduct against him included an allegation that Muller was
involved in a transaction or dealings in which monies changed hands
and that Muller had received this money. It appears from the
record
of the arbitration proceedings that at some point Muller, through the
mouth of his representative, denied that money was
received for his
‘benefit’ and that on that basis he ought not to have
been found guilty of the misconduct alleged
against him. This
contention is alarming to say the least.
[8] There can be no doubt that Muller was charged with
facilitating an interaction or transaction involving monies between a
prisoner
at the Pollsmoor Correctional Facility and persons who are
either prisoners or but were associated with or acting on behalf of a
prisoner. The attempt to undo a finding of guilt of such serious
misconduct on the basis contended for,
i.e.
not for Muller’s
‘benefit’ is at the very least ill-informed and misguided
and, in reality, offensive. On any
assessment, Muller knew what the
nature of the allegations of misconduct against him was and knew what
the facts were on which
they were based. I draw this conclusion not
only from an assessment of the documents but also from contentions by
Muller’s
representative during the arbitration proceedings.
[9] In the arbitration proceedings,
there were a number of occasions on which Muller’s
representative said that Muller was
not disputing the charge
1
and that Muller is disputing the
‘verdict’. This too is a mealy-mouthed formulation to
escape the inescapable. On a
proper assessment, the main plank of
Muller’s case at the arbitration proceedings was that the
sanction of dismissal was
too harsh.
[10] The arbitration award itself
records that Muller contended that dismissal was too harsh a sanction
and that he had a clean
disciplinary record at the time of his
dismissal.
2
[11] The arbitration proceedings also include the fact
that Muller had made a number of admissions at the disciplinary
hearing.
An arbitrator is not at liberty to simply ignore such
admissions without more. Muller himself made those admissions. Muller
said
that R530 was for a sheep and that the money was deposited into
an account. Muller quite clearly was involved in receiving or
accepting
moneys. During the arbitration proceedings, Muller himself
testified that he had been approached by a prisoner at the ‘maximum
prison’ to collect money allegedly for a sick child. Further,
Muller himself testified that he did indeed get involved in
the
collection of the money and that this included him going to a ‘yacht
club’ during his lunch hour to collect money
from the
prisoner’s lawyer. However, Muller and most improbably,
contends that he was motivated by good faith and that his
intention
was to assist the prisoner and the sick child.
[12] The largely undisputed evidence before the
arbitrator was that Muller was improperly and most irregularly
involved in financial
dealings between a prisoner and those outside
the Pollsmoor Correctional Services facility. This is a very serious
transgression
on Muller’s part. In fact, the arbitrator at
paragraph 18 of the arbitration award records the following:
‘
The
applicant explained that he did not dispute the incident, but that
according to the Act he was engaged in ‘pecuniary dealings’
with an inmate, which was not the conclusion arrived at by the
Chairperson. The Chairperson found that he did not benefit from
his
actions and was therefore not engaged in corruption, and therefore
not guilty of the main charge.’
[13] Muller was engaged in
interactions, transactions and or dealings with a prisoner and those
outside the correctional services
facility. Such conduct is a serious
breach of the rules and procedures of the Department. Muller was
charged with misconduct and
was found guilty and dismissed. It is
indeed so that the allegations of misconduct might not have been
phrased very clearly. It
might even be that the framing of the
allegation of misconduct is more than just a bit inelegant. However,
at no stage was Muller
prejudiced by the manner in which the charges
were phrased.
3
As noted above, Muller knew precisely
on which events the allegations of misconduct were based and knew
that his conduct was against
the rules and procedures of the
Department. In those circumstances, Muller cannot escape the ordinary
consequences of so serious
a breach of the Department’s rules
and procedures on the basis that the allegation of misconduct is not
a model of clarity.
[14] Muller conceded and in fact admitted that he was
involved in transactions including transactions involving money. The
only
real basis of Muller’s challenge is that the sanction of
dismissal was too harsh. In this regard Muller seeks to rely on long
service of some 32 years, and a clean disciplinary record.
[15] An instructive assessment of
what section 145 of the LRA requires is to be found in the judgment
of Van Niekerk J
in
Pam Golding Properties (Pty) Ltd v Erasmus and Others
.
4
In that matter, Van Niekerk J held
that:
‘
. In summary, s 145 requires that the
outcome of CCMA arbitration proceedings (as represented by the
commissioner’s decision)
must fall within a band of
reasonableness. The Court is also empowered to scrutinize the process
in terms of which the decision
was made. 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 the
result
is nonetheless capable of justification.’
[16] It has long been part of our law
that in respect of a certain category of serious misconduct no amount
of long service and
clean disciplinary record can constitute
mitigating factors of such a nature as to avoid dismissal. In my
view, this is one of
those cases. There was simply no proper basis in
the evidentiary material before the commissioner for his finding that
the sanction
of dismissal was unfair.
5
[17] Accordingly, the commissioner ignored evidentiary
material properly before him and had given too little weight to other
material
properly before him (the fact that Muller admitted the
essential facts on which the allegations of misconduct are based) and
further
that he applied the incorrect test in our law in determining
or assessing the fairness of the sanction of dismissal.
[18] In those circumstances, I make the following order:
The arbitration award of the second respondent is
reviewed and set aside. The matter is remitted back to the third
respondent
for arbitration before an arbitrator other than the
second respondent.
The first respondent is ordered to pay the applicant’s
costs.
_____________
Van Voore AJ
Acting Judge of the Labour Court
APPEARANCES:
For the applicant: Adv R Nyman
Instructed by: The State Attorney
For the respondent: Adv C.A Casner
Instructed by: AP Botes & Associates
1
transcript
page 13 line 20 is but one example
2
arbitration
award paragraph 3
3
Num
& Others v CCMA
(2011) 32 lLJ
956 LC.
4
(2010)
31 ILJ 1460 (LC) at para 8.
5
arbitration
award, paragraph 26