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[2013] ZALCD 18
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Simunyola v General Public Service Sectoral Bargaining Council and Others (D934/09) [2013] ZALCD 18 (5 April 2013)
13
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, AT DURBAN
JUDGMENT
Not Reportable
Case no: D934/09
In the matter between:-
JOYCE SIMUNYOLA
.......................................................................................
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
....................................................................
First
Respondent
S. MCGLADDERY
..........................................................................
Second
Respondent
DEPARTMENT OF JUSTICE
AND
CONSTITUTIONAL
DEVELOPMENT
................................................
Third
Respondent
Heard
:
30 August 2012
Delivered
:
5 April 2013.
Summary
:
Review of award – onus not
shifted where applicant’s evidence was analysed before that of
respondent bearing such onus.
Approachof commissioner to evidence in
dismissal disputes.
judgment
CELE J
Introduction
[1] In terms of s 158(1)(
g) of the Act,
1
the applicant seeks a
review of the award of the second respondent, who sat as an
arbitrator in an alleged unfair dismissal dispute
brought by the
applicant, under the auspices of the first respondent. The award in
question is dated 9 October 2009. The third
respondent (hereafter
also referred to as the Department) opposed the review application in
its capacity as the erstwhile employer
of the applicant and in whose
favour the assailed award was issued.
Factual background.
[2] The applicant
commenced her employment with the Department in November 2002 and in
2007 she was based in the Pietermaritzburg
Magistrate’s Office
as an Administration Officer. Her duties included dealing with human
relations matters, such as the short
listing and interviewing of
personnel for the third respondent and making recommendations for the
appointment of a suitable candidate
or candidates. She worked
underMrMark Naicker who held the position of anArea Court Manager to
which he was appointed after the
applicant had been a contesting
candidate. The applicant believed she was the most favoured candidate
for that appointment.
[3] Sometime around June
2005, the applicant had been the Chairperson of the Selection
Committee which shortlisted and interviewed
candidates. One of the
candidates, a Mr S.R.O. Hlongwane, was the applicant’s
biological son. The applicant did not disclose
the fact that she was
Mr Hlongwane’s mother either to her employer or to any of the
other panelists. The applicant suggested
to one of the panelists, Mr
Nkosinathi Mangaliso that she would draw up all questions to be used
in the interview and indeed she
provided such questions. All other
panel members did nottake issue withthe source of the questions to be
used and anumber of those
questions were used in the interview in
question. Her son was finally recommended for the appointment, to the
exclusion of all
other candidates.
[4] There was another
occasion either on 4 or 6 July 2005,when the applicant returned to
the Pietermaritzburg office during the
day, after performing her
duties elsewhere. She went into an open plan type of office where
there were a number of clerks and acting
clerks supposedly working.
Gospel music by a group known as Joyous Celebration was either played
from office computers or compact
discs of the group were handled by
the clerks.
[5] From these two
incidents, the third respondent charged the applicant with 6 acts of
misconduct. For the first incident relating
to her son, she was, in
the main, charged for fraud,on the basis of her failure to disclose
that one of the candidates to be interviewed
was her son, and there
were various alternative charges relating to showing favourism
towards her son, acting in abuse of her authority
and giving
questions for the interview to her son, or priming him, to afford him
an advantage in the interview. In respect of the
second incident, she
was charged with intimidation of a colleague who was to testify at
her disciplinary hearing. There were then
4 similar charges of
corruption,in that, she allegedly offered to accept gratification
from the clerks who were to freely supply
her with gospel music
compact discs, failing which they might not get permanent
appointments into the Department. On count one
she was found guilty
of the main count and was found guilty on the second and the other
four counts of corruption. The chairperson
of the internal
disciplinary hearing, Mr Viyani Kenneth Mqaqula recommended that she
be dismissed and the Department dismissed
her. She referred an unfair
dismissal dispute for conciliation and later for arbitration. The
second respondent was appointed to
arbitrate the dispute. At
arbitration the second count and one count of corruption were not
pursued by the third respondent.
Chief findings of the
second respondent
[6] By and large, the
facts on the first charge were common cause between the parties. The
second respondent was called upon to
determine whether the admitted
facts constituted fraud. He found that:
notwithstanding whatever
might be included in a disciplinary code or policy, or even excluded
for that matter, it was trite that
employees had a common law duty
to act diligently and to protect the interests and the property of
their employers. Workplace
rules of employers had different sources.
Some flow from common law, some are specifically and expressly
provided for in disciplinary
codes and there were rules or standards
that might arise impliedly from the conduct of the parties;
no recruitment policy
was produced at arbitration and there was a lack of certainty that
the third respondent had one, as was
the case in other departments,
with specific reference to a need for a recusal or to have to
withdraw from a process if a panel
member had a strong tie with a
candidate;
it was conventional
wisdom that it was undesirable to have a selection committee with a
panelist who had strong ties to one of
the candidates. The applicant
was the Head of Human Resources in her work place, having the
responsibility to carry out functions
such as convene and head
selection panels.She ought to have known the need for a recusal
better than anyone else;
she had been involved in
a number of selection committees and was consequently experienced
enough to know that her duty in the
selection process was that of
being impartial and unbiased. It was improbable that anyone
interviewing his or her own child would
remain completely
disaffected by the relationship;
with the end in mind, of
objectively and fairly selecting the best candidate, and with the
code of conduct at the back of her
mind, she was required to act
ethically. While she was correct in contending a need for a set of
rules and legal obligations
to be in place to obviate any
contentions and ambiguity, she could not claim to be ignorant of
what was required of her in terms
of conduct and behavior as a
senior manager in her office;
an employer was not
confined to acting against employees for a breach of rules expressly
set down in a disciplinary code. Taking
action against an employee
was justified when that employee should reasonably have known that
his conduct was wrong;
in the circumstances,
the third respondent had proved that there existed rules and
expected standards of conduct and these were
known to the applicant;
it was common cause that
the applicant was the Chairperson of the selection committee
involving both the short listing and interview
processes. One of the
candidates was her biological son, MrHlongwane. The applicant did
not disclose that fact to the other panelists.
In this regard, the
applicant had a legal duty to disclose that one of the candidates
was her sonand to recuse herself from the
process, or at least, to
leave it to the panelists to decide the issue and such
non-disclosure was material. By her omission
she committed a
culpable misrepresentation.The prejudice to the third respondent was
that the whole process was compromised,
leaving the third respondent
vulnerable to unfair labour practice disputes by other
candidates.The applicant therefore acted
unlawfully;
by failing to disclose
the fact, which was considered to be material in the circumstances,
the applicant misrepresented that there
was in reality no cause for
concern in her sitting as the Chairperson and that there was no need
for her to either disclose,
or to recuse herself from the interview
process;
she was guilty of the
acts of misconduct charged on that count.
Grounds for review
[7] Various grounds of
review, which are inter-related, have been outlined by the applicant.
Essentially in this application, it
is contended, inter alia, that
the second respondent committed a defect as defined in s 145 of the
Act in that:
7.1. when analyzing the
evidence presented before him during the arbitration, he was expected
to start with the evidence presented
by, and/or on behalf of, the
third respondent. This was essential as it had to do with the
consideration and/or the identification
of the party who bore the
onus to prove.However, for some reasons unknown to the applicant, the
second respondent began with the
evidence of the applicant when he
made his analysis. There was a misconception on his part which
influenced the award he made and
that same misconception amounted to
misconduct in relation to his duties as an arbitrator;
7.2. his non-comment or
disregard of the evidence pertaining to the evidence given by the
applicant, that Mr Naicker championed
her dismissal as he regarded
her as a threat to his position, constituted a misconduct in relation
to his duties as an arbitrator;
7.3. when he misconstrued
and disregarded the significance of the applicant’s evidence
pertaining to Ms Mnguni’s involvement
in the appointment of her
sister, the second respondent committed a misconduct in relation to
his duties as the arbitrator;
7.4. he committed a
misconduct in relation to his duties as an arbitrator when he found
that the Department had discharged the onus
pertaining to the
existence and breach of the rule or policy requiring a member of the
selection committee to disclose any relationship
they might have with
the candidate. His finding in that regard was contrary to his
analysis of the evidence and/or the material
placed before him in
connection with this issue. As such, it is not justifiable or
reasonable;
7.5. he made an error of
law amounting to a gross mistake in relation to his duties as an
arbitrator when he merely accepted that
the chairperson of the
disciplinary hearing had done the necessary when he placed the
Department’s inconsistencies on record
and had it brought to
the attention of the authorities.The Department did not dispute the
applicant’s evidence to the effect
that Mr Naicker was aware of
the said inconsistencies. Hence, it was not necessary for Mr Mqaqula
to alert the Department about
it. The second respondent made an error
of law amounting to a gross mistake when he failed to apply a parity
principle on the basis
that if the Department did not follow up on Mr
Mqaqula’s initiative, there would be no fault on the latter. It
was submitted
that the Department and Mr Mqaqula were, for the
purposes of the disciplinary enquiry, one and the same and that the
distinction
that the second respondent tried to create between the
two, was both unnecessary and unjustified.Further, that it was
intended
to cloud the issue pertaining to whether or not there was
any inconsistency on the part of the Department in that regard.It was
submitted that the second respondent’s reasoning in that regard
showed that he also misconceived the whole nature of the
enquiry or
of his duties in connection therewith;
7.6. he made an error of
law amounting to a gross mistake when he inferred that for
inconsistency to exist there should be a trend
in this regard;
7.7. he made an errorof
fact when he found that the applicant was the Head of Human Resources
at the workplace.The applicant gave
clear evidence that she was
employed as an Administration Officer and nothing was produced by the
Department to discredit that
evidence.As a result of the said
mistake, the second respondent made a wrong decision.
Grounds in opposition
to the review
[8] In opposing this
application, the third respondent submitted that the applicant had
not shown that the award is reviewable and
without traversing all
grounds of review, it submitted inter alia that:
8.1. there is no rule
that prescribes how an arbitrator should begin his/her arbitration
award. By commencing with the evidence
of the third respondent, the
second respondent could not be held to have shifted the onus.In fact
the second respondent correctly
commenced with the evidence of the
third respondent and the very point made by the applicant’s
legal representation appeared
to contain an internal contradiction;
8.2. the applicant
complains that the second respondent arrived at a finding that was
contrary to his analysis of the evidence and/or
the material placed
before him, but she has not taken the Court into her confidence by
demonstrating where in the papers such misconduct
could be found;
8.3. the submissions made
in support of the error of law do not make sense. It is not an error
of law nor is it a gross mistake
for an arbitrator to accept the
evidence of one witness in relation to general and vague allegations
of inconsistency. Mr Naicker
testified that he was not aware of the
regular exchange of gifts at Christmas time and testified that as far
as he was concerned,
a senior employee was not entitled to accept a
gift from a junior employee.
8.4. theapplicant
contended in the arbitration that the third respondent had acted
inconsistently in the sanctions that it had imposed
against its
employees. She argued that the Presiding Officer at the internal
enquiry should have had regard to sanctions imposed
by the third
respondent on others, and drawing therefrom, should have imposed a
different sanction, partly or wholly, to correct
the alleged
inconsistency on the part of the third respondent. The issues
involved in this case have nothing to do with the parity
principle.
The second respondent correctly found that in terms of the parity
principle, the third respondent was required to treat
like cases
alike. He also correctly found that in doing so, the third respondent
was not obliged to impose the same penalty which
had been opposed
upon the applicant, on others.The third respondent correctly analyzed
the law relating to the consistency in disciplinary
actions. He
correctly held that consistency is an element of disciplinary
fairness.
Evidence in brief
[9] On the first count,
the issue for a decision by the second respondent turned on whether
there existed a rule which the applicant
might have breached. The
applicant contended that there was no rule which she breached, as
other colleagues had acted in a similar
manner as herself on previous
occasions to the knowledge of the third respondent with impunity. She
referred to two instances firstly
where Ms Zodwa Mnguni failed to
disclose at the time, that she was related to her sister who was a
candidate for appointment. When
the applicant came to know of the
relationship, she asked Ms Mnguni about it, only to be told that
MrNaicker had told her to appoint
someone she was familiar with and
would be happy to work with. Secondly, Mr Anesh Lalbahadur did not
disclose that he was related
to a candidate,Mr A Ramdeen, his nephew.
The applicant had also sat in on the interview of Mr Ramdeen and her
son was also interviewed
for the same post but was not appointed. She
had disclosed her relationship to her son and permission was granted
for her to sit
in. She added that in any event, the sanction imposed
on her was too harsh in the circumstances. It was against that
background
that the evidence had to be seen.
[10] Mr Nkosinathi
Mangaliso testified for the third respondent and said that he took
part in the short listing and interview of
candidates, including
applicant’s son, in or around June 2005. The panelists elected
the applicant to be the chairperson
on the basis of her experience in
human resources. As a group leader, she would be able to tell the
panelists what the correct
procedure would be to follow. He
volunteered to supply the questions to be used but the applicant
interjected by saying, albeit
jocularly, that she wouldprepare the
questions as he might know someone or some candidates, as he was
based at Eshowe at the time.
He went along with the suggestion of the
applicant and she came up with the questions they used for the
interview. All candidates
had taken some time to answer questions
except Mr Hlongwane who answered as if he were reading from a book,
making it even difficult
for more questions to be put as his
responses kept flowing. Once the interview was over, the applicant
asked who the best candidate
was. He stated that it was an Indian
Female who had shown great experience and had answered questions
well. The applicant said
that Mr Naicker would not agree to employ an
Indian. The panelists then agreed that Mr Hlongwane was the best
candidate. Mr Hlongwane
was duly appointed and worked with Mr
Mangaliso at Eshowe. The applicant would occasionally call him to
find out how was doing
but Mr Mangaliso did not think anything of it
as he did not know that Mr Hlongwane was her son until the matter was
investigated
into.
[11] Mr Naicker testified
that the applicant was in charge of human resources and as such
chaired and convened the selection panels.
In his evidence, various
codes were referred to as being applicable in the Department, dealing
with and regulating misconducts.
He conceded that relations between
him and the applicant at some stage in 2005 took a turn for the
worse, in that a report was
given to him by Ms Mathe,of what was
allegedly said by the applicant about him in the office, as a result
of which he collected
affidavits from the clerks on the matter for
onward submission to the Senior Court Manager. He denied being aware
that Ms Mathe
and the applicant were at odds with each other. He
denied that it was the combination of him and Ms Mathe, as
adversaries of the
applicant, which led to her being charged for this
matter. He was aware that the applicant had lodged a grievance
pertaining to
the post against which he had been appointed. He denied
being aware of a grievance lodged by the applicant against him
relating
to the manner in which she was treated by him.
[12] The applicant
testified that she had had good relations with Mr Naicker until she
heard, before their job interview for the
post subsequently held by
him, that he was collecting statements from the clerks to make some
case against her. A meeting was also
held in Mr Naicker’s
office where she was discussed. She then lodged a grievance against
him. After their job interview,information
leaked out to her that she
had done very well. When she was not appointed, she then lodged a
grievance of an unfair labour practice
relating to promotion.
[13] In her office
establishment, worked Ms Mathe. When applicant could not meet Ms
Mathe’s requests about the transfer of
her husband-to-be and
about the purchase of her wedding ring, relations between her and Ms
Mathe were strained. Ms Mathe and Mr
Naicker then jointly
orchestrated these charges against her, well knowing that other
colleagues had sat in on interviews of their
relatives without
disclosing their ties and no action was taken against them.She said
that she had reported Mr Lalbadur’s
relationship with an
interview candidate to Mr Naicker but he did nothing about it. Page
376 of the paginated transcript of the
arbitration proceedings has a
record of what she said in the disciplinary hearing concerning the
appointment of Mr Lalbahadur’s
nephew and was quoted to read:
‘
Did
you report the fact that he appointed his nephew to anybody of his
senior or at the magistrate’s court here?
No
I could not have reported this. I wouldn’t have done that
because everybody’s related there. There are also even
sisters
working at the same department in the same office.’
[14] According to her, Mr
Naicker was not truthful in denying knowledge of the two grievances
she had lodged against him, as there
was a letter from Mr Denise
Hartse as confirmation of the receipt of the grievances and Mr
Naicker signed for those grievances.
As already pointed out, she
denied the existence of a rule in favour of a recusal and referred to
the two cases discussed earlier.
In terms of sanction, she felt she
was treated differently from other staff. As a chairperson of the
disciplinary hearing, Mr Mqaqula
had been told to find her guilty and
to dismiss her. He was therefore biased against her. As a result, Mr
Mqaqula failed to act
on the report she had made to him during the
internal disciplinary hearing of the failures of other staff to
recuse themselves
where their relatives appeared before them as
candidates for interview. His failure to act should be ascribed to
the third respondent.
[15] In my view, the
charges relating to corruption and giving of presents were of a minor
nature and could not alone find a basis
for dismissal. In their
closing submissions, the parties correctly said very little of these
charges as this matter should be disposed
of on the basis of the
first charge. No further reference will therefore be made to those
charges.
Evaluation
[16] As to how a
commissioner should approach dismissal disputes, the Court held in
Sidumoand
another v Rustenburg Platinum Mines Ltd and Others
2
,that:-
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached.The commissioner must of course consider the
reason the
employer imposed the sanction of dismissal, as he or she must take
into account the basis of the employee’s challenge
to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record. This is not an exhaustive list.’
3
[17] The second
respondent issued an award without numbering the paragraphs (which
would have made reference to them easy). For
ease of reference, I
will accordingly make use of the typed page numbers at the bottom of
the page of the award and not to the
paginated numbers of the
bundles. The question is whether the second respondent, in
approaching the evidence, wrongly placed the
onus of proof on the
applicant by beginning the analysis with her evidence, instead of
firstly analysing the evidence of the third
respondent.
[18] Page 35 of the award
contains the subtopic marked as “Analysis of evidence and
argument”. From page 35 to the middle
of page 38, the award
then has some introductory remarks which are followed by an
identification of the issues, as raised by the
applicant, for
consideration and item 7 of the Code of Good Conduct helped to
identify the issue.In the first three paragraphs
on page 38, the
second respondent outlined the version of the applicant. From page 38
to the middle of page 42, the second respondent
then deals with
evidence of the respondent through which it had to discharge the onus
resting on it. The applicant is therefore
correct in sayingthat the
second respondent commenced the approach to the evidence by analysing
her evidence.A contextual reading
of the award clearly shows that the
second respondent was alive to where the onus rested. This is borne
out, inter alia, by the
positive finding he made in favour of the
applicant in the third paragraph on page 38 and his opening remarks
on page 40. I am
accordingly not persuaded by the applicant, that she
was burdened with an onus that was never hers. In a neat picking
style, the
applicant was really being opportunistic. No defect
visited the award in this regard and this ground must accordingly
fail.
[19] The next grounds
relate to Mr Naicker having championed her dismissal as he regarded
her as a threat to his position and Ms
Mnguni’s involvement in
the appointment of her sister and the failure of the second
respondent to deal with these issues
and their significance. Once it
was found that a valid and reasonable rule or standard existed which
the employee was aware of,or
could reasonably be expected to have
been aware of,and that it had consistently been applied, the motive
for which other employees
reported the infringement of the rule
becomes less important. The central focus should then be about
whether the rule was infringed
or not. Simply put, the elements of a
charge of misconduct are the relevant considerations at the hearing,
over the motive on why
the infringement was reported. The case of the
applicant was that her two adversaries, Ms Mnguni and Mr Naicker,
fabricated charges
against her. If the evidence on the charges could
not stick, it could be inferred that the charges were fabricated. The
success
or failure of these grounds of review is accordingly
dependent on the next ground.
[20] The next
consideration is whether the second respondent committed any
misconduct in relation to his duties as an arbitrator
when he found
that the Department had discharged the onus pertaining to the
existence and breach of the rule or policy requiring
a member of the
selection committee to disclose any relationship they might have with
a candidate. It was further contended that
his finding in that regard
was contrary to his analysis of the evidence and/or the material
placed before him, in connection with
this issue, and,as such, it is
not justifiable or reasonable. As to the existence of the rule, the
second respondent extensively
dealt with this from page 37 to 42 of
the award. The applicant has not demonstrated how the second
respondent misconducted himself
in the light of evidence tendered
andanalysed, on how the applicable legal principles were applied and
on how the second respondent
reasoned his way through until he
reached a conclusion. In my view, the second respondent acquitted
himself very well in this regard,
thus making it difficult for the
applicant to hold on to any particular defect and merely generalising
for lack of particulars.
The reliance by the second respondent on the
case of
Verwy
v Volkswagen of SA (Pty) Ltd
4
cannot befaulted, when he
found that an employer was not confined to acting against employees
for a breach of rules expressly set
down in a disciplinary code.
Taking action against an employee was justified when that employee
should reasonably have known that
his conduct was wrong.Accordingly,
groundstwo, three and four are dismissed.
[21] The second
respondent accepted that the chairperson of the disciplinary hearing
had done the necessary when he placed the Department’s
inconsistencies on record and had it brought to the attention of the
authorities. The submissions of the applicant suggest that
a
chairperson of an internal disciplinary hearing has more powers than
a consideration of the misconduct with which an employee
before him
or her has been charged. The applicant’s evidence, to the
effect that MrNaicker was aware of the said inconsistencies,
was
challenged at the arbitration and her contradictory evidence at the
disciplinary hearing was shown to cast doubt on the veracity
of her
version. The second respondent even found that she was an untruthful
witness. The second respondent cannot be faulted for
regarding the
allegations against Mr Naicker and Ms Mnguni as new issues that the
third respondent had not been enabled to deal
with. These allegations
could therefore not serve as a basis for the application of the
parity principle. The applicant was extensively
challenged under
cross examination on whether the third respondent was informed of the
other breaches of the rule by other employees.
She went on an errand
and said that it was well known that some staff worked with their
sisters, without demonstrating how a breach
of the rule was
committed. Working with one’s sister is by that fact alone not
a breach of any rule. More needed to be said
in that regard. No error
of law amounting to a gross mistake in relation to his duties as an
arbitrator has therefore been shown
to have been committed by the
second respondent.
[22] The final probe
turns on whether the second respondent made an error of law amounting
to a gross mistake when he inferred that
for inconsistency to exist
there should be a trend in this regard and whether he made an errorof
fact when he found that the applicant
was the Head of Human Resources
at the workplace.Inconsistency, inter alia, refers to a discrepancy,
contradiction, variation or
irregularity. It therefore involves a
comparison of at least two states, which can be the present state
compared with the past.
To this extent, reference to some trend is
accordingly not a misnomer.
[23] In respect of the
finding that the applicant was the Head of Human Resources at her
work place, it remained common cause that
she dealt with human
resource matters at her work place and even colleagues who were
senior to her within her cluster, such as
Messrs Naicker and
Mangaliso respected her opinion on human resources matters. The fact
that she was not paid as a human resources
officer, as she moaned
about, did not detract from the fact that, at her work place (or
cluster), she was regarded as the most
senior. No evidence to the
contrary was led by her. Accordingly, the findings of the second
respondent in this regard cannot be
assailed. These grounds must
similarly fail. I do not consider it necessary to deal with any other
grounds outlined by the applicant,for
lack of merits in them.
Accordingly the following order shall issue:
The review application
is dismissed;
No costs order is made.
_______________________
Cele, J
Judge of the Labour Court
.
Appearances:
For the applicant: Adv Z.
Luthuli.
Instructed by AP
Shangase& Associates, Durban.
For the third respondent:
Adv. L. Naidoo.
Instructed by the State
Attorney, Durban.
1
The
Labour Relations Act 66 of 1995
.
2
2008
(2) SA 24
(CC).
3
Above
page 52E-G.
4
[1996]
9 BLLR 1198
(IC).