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[2013] ZALCD 30
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Ndwedwe Municipality v Mngadi and Others (D963/09) [2013] ZALCD 30 (20 December 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case
no: D963/09
Not
Reportable
DATE:
20 DECEMBER 2013
In
the matter between:-
NDWEDWE
MUNICIPALITY
...........................................................................................
Applicant
And
GORDON
SIZWESIHLE
MNGADI
.................................................................
First
Respondent
COMMISSIONER
H. NDABA
NO
............................................................
Second
Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
..............................................................................
Third
Respondent
Heard: 8
August 2013
Delivered: 20
December 2013.
Summary:
Review
of award – review test applied – failure of employee to
comply with an instruction – reasonableness of
instruction -
award not reviewable.
JUDGMENT
CELE,
J
Introduction
[1]
This is an application in terms of section 145 (2) of the Labour
Relations Act,
1
hereinafter referred to as “the Act” in which the
applicant seeks to review and set aside an arbitration award made
by
the second respondent under case Number KPD 030913 on 14 November
2009. The arbitration concerned the unfair dismissal of the
first
respondent by the applicant. The second respondent found the
dismissal of the first respondent to have been procedurally
fair but
substantively unfair. The first respondent filed his answering
affidavit late and he then sought condonation for such
lateness so as
to oppose the review application.
Factual
Background
[2]
The first respondent was employed by the applicant as Administration
Manager on 1 August 2002. Among the staff that he worked
with was Ms
Luthuli who disappeared from work after committing various acts of
misconducts against her colleagues and members of
the public. That
included amongst others, stealing a fellow employee’s credit
card and using it for her own benefit. She
was criminally prosecuted
for this act of fraud. She pleaded guilty and received a sentence of
a fine or two years imprisonment
suspended for five years. She,
subsequently, referred an unfair dismissal dispute. The dispute was
resolved in her favour by way
of a settlement agreement after the
applicant conceded that it had failed to follow due process before
dismissing her.
[3]
On her return to work, the Executive Council of the Municipality
resolved to reinstate her in her position at work. Her father
was a
member of the Municipal Council. The Municipal Manager, Mr Phakama
Mhlongo, delegated the duty to carry out the re-instatement
to the
Human Resources Manager, Mr Bhekithemba Buthelezi. He delegated the
task further to the first respondent who duly placed
her with other
general workers. That was in line with a decision of the Management
Committee of the applicant which felt that it
would be unethical to
place her at the registry and reception areas she had been at, when
she committed the fraud and thereafter
absconded. Ms Luthuli was not
happy with that placement and she apparently lodged a grievance
through her union, averring that
she had to continue with duties she
performed prior to her dismissal. The applicant never disciplined her
for those acts of misconduct
before and after her return to work and
yet insisted that Ms Luthuli be placed where she could resume her old
duties. The first
respondent was reluctant to carry out the
instruction as he felt that the staff would be vulnerable to further
criminal activities
by Ms Luthuli.
[4]
In one of the meetings held, the issue of the proper placement of Ms
Luthuli came for a discussion between the first respondent,
Mr
Mhlongo and other officials. The first respondent indicated that it
was against his conscience to re-instate Ms Luthuli to her
previous
position after she had defrauded her colleague and had also taken a
customer’s money. Tempers were then raised and
the first
respondent might have said that he would rather be dismissed than
re-instate Ms Luthuli to her previous post. It was
in August 2008
that the first respondent was given the instruction. Mr Mhlongo then
issued three letters dated 12, 15 and 17 September
2008, putting the
first respondent on terms to comply with the instruction to place Ms
Luthuli in a position where she could do
her work in terms of her
contractual duties.
[5]
On 18 September 2008, the applicant took the position that the first
respondent was not complying with its instruction to place
Ms Luthuli
and it suspended him. It also charged him with insubordination to the
instruction of Mr Mhlongo, given in August 2008,
in that he had
refused to comply with it and that he instead shouted back at Mr
Mhlongo. Also, on 18 September 2008, the first
respondent telephoned
Mr Simphiwe Zondi who was also a colleague of his and told him that
he (first respondent) had been suspended.
On 19 September 2008, Mr
Zondi told Ms Luthuli to report at his office, where she was placed
in compliance with the given instruction.
The first respondent was
found guilty and was dismissed. He referred an unfair dismissal
dispute for conciliation and later for
arbitration. The second
respondent was appointed to arbitrate the dispute. He found the
dismissal to have been substantively unfair
and he ordered the
applicant to compensate the first respondent in an amount of money
equivalent to 12 months of the salary that
he earned on the date of
his dismissal.
Chief
findings of the second respondent
[6]
The second respondent concluded that it was clear to him that the
first respondent had refused to remove Ms Luthuli from the
hall where
she was initially placed and therefore that he had refused to carry
out the instruction during August 2008. He was not
satisfied of the
evidence relating to the charge of shouting at Mr Mhlongo but found
that the refusal to carry the instruction
constituted aggression on
its own. As to the allegation that the instruction was carried out on
16 September 2008, the second respondent
found that the instruction
given in August 2008 was still not carried out. The delay in charging
the first respondent was a procedural
issue. He found that the
Executive Council acted in compliance with clause 5.3 of its
Disciplinary Policy and therefore properly
to re-instate Ms Luthuli.
He found that in terms of clause 5.1 of the Policy, Ms Luthuli should
have been charged with misconduct
of stealing a credit card of a
fellow employee so as to strengthen perception that it was acting
with fairness, consistency, honesty,
integrity and with a concern
over the safe work environment for its employees.
[7]
In his view, it was unreasonable to place Ms Luthuli back at work
without charging her. He held that the employer had a responsibility
to ensure a safe working place for its employees and so by placing
her back at work without charging her it created a unsafe workplace
for its employees whether at the cash hall or in Mr Zondi’s
office. He said that a failure to charge Ms Luthuli raised the
question whether other employees committing misconduct such as of
theft would also go unpunished thus created a difficulty for
the
applicant to be consistent to its staff in future. He, therefore,
found it unreasonable to place Ms Luthuli at the cash hall
or in Mr
Zondi’s office without charging her. He opined that a refusal
by the first respondent to place Ms Luthuli without
charging her
could not amount to a breach of contract of his employment as it was
tantamount to assisting the Municipal Manager
in creating a
perception that if one employee stole at work when she or he returned
instead of being charged he or she would be
safely placed in Mr
Zondi’s office or any suitable office. He thus found the
dismissal of the first respondent to have been
substantively unfair.
Grounds
for review
[8]
Various submission were made by the applicant as grounds for review
which may be summed up as that the second respondent’s
award
was irrational and was one which a reasonable decision maker could
not reach for the following reasons:-
1.
He failed dismally to identify the issue to be decided alternatively
whereas the issue was identified for him during the arbitration,
the
Commissioner decided the matter on an incorrect issue. The decision
of the Commissioner is not rationally connected to the
evidence which
was properly placed before him.
2.
Whereas the employee’s case was that he complied with the
instruction before he was suspended and ultimately dismissed,
the
Commissioner decided the matter on the basis that the instruction
itself was unreasonable as it created an incorrect perception.
3.
It is the applicant’s case that the instruction that was issued
to the employee could not possibly have been unreasonable
because the
unchallenged evidence of Mr Mhlongo was that he was not prescriptive
as to where Ms Luthuli was to be placed so long
as she was able to
perform her duties as per her job description.
4.
The instructions given to the employee was a blanket instruction
intended for the employee to allow Ms Luthuli to carry out her
functions as per her job description. In addition to that, Mr Mhlongo
was fully aware that Ms Luthuli had a previous conviction
which had a
suspended sentence deterring her from committing acts of criminality
in the future.
5.
It is the applicant’s submission that the crux of this matter
was whether or not the instruction given to the employee
was carried
out.
6.
Whereas at some stage the employee’s defense was double barrel
in a sense that initially his defense was that the instruction
was
unreasonable and unethical that appeared to have changed as the case
progressed. His defense was now that the instruction was
in fact
carried out as at the time when he was suspended. Accordingly, the
ultimate decision had to be made on whether the instruction
was
carried as at the time of suspension or not. The Commissioner failed
to decide on that issue but appeared to hallucinate over
the issue of
the reasonable or unreasonableness of the instruction itself. A
defense long abandoned by the employee. To this, it
is submitted that
the Commissioner’s award is unreasonable and no reasonable
decision-maker could have made it.
7.
Had the Commissioner correctly identified the issue and decided what
the issue before him was, he would have found that in actual
fact as
at the time when the Employee was suspended he had not complied with
the instruction. This is borne out in the evidence
of Mr. Zondi who
was called as the employee witness.
8.
The Commissioner identifies the following issues:-
(i)
Whether the first respondent eventually carried the instruction out
on the 16th of September 2008;
(ii)
Whether the instruction was lawful and reasonable;
(iii)
Why it would be unreasonable to place Ms Luthuli at the hall without
charging her;
(iv)
Why it would be unreasonable to place Ms Luthuli in Mr Zondi’s
office.
9.
The only issue for consideration was the first one which the
Commissioner did not say anything about. The other issues were
irrelevant. Ms Luthuli was placed in Mr Zondi’s office and had
been there with no problems as at the time of the arbitration.
10.
It was that misdirection which rendered the Commissioners award
reviewable on the basis of unreasonableness as he did not, at
all,
deal with the aspect of the evidence which he himself conceded was
the crux of the matter. The Commissioner failed to properly
apply his
mind to the evidence properly placed before him and made findings
which were not rational and justifiable in relation
to the evidence
presented to him. As a result thereof he failed to exercise his
duties as an arbitrator and came to a decision
which no reasonable
decision maker could arrive at.
11.It
was apparent that the Commissioner decided the matter squarely on the
basis of the reasonableness of the instruction. However,
even when
one interrogated that finding it could be seen that the Commissioner
misdirected himself because it was not upon the
employee to refuse to
carry out instruction to force management to take action against
another employee. That in itself was a repudiation
of the contract of
employment. Any refusal to carry out work is a repudiation of an
employment contract. The employee in this instance
did not know if Ms
Luthuli was going to be subjected to discipline afterwards. He simply
refused to carry out this instruction
and in actual fact his refusal
was so gross that the only sanction suitable for him was that of
dismissal. The tone used in his
correspondence was a gross in
subordination and was a serious indictment to the office and stature
of the Acting Municipal Manager
who was the most senior employee of
the applicant. The arbitration award was liable to being reviewed and
set aside and to be replaced
with an order that the dismissal of the
first respondent was substantively fair.
The
condonation application
[9]
Every condonation application entails the consideration of various
factors in respect of which the law has become trite.
2
In the case of Van Wyk v Unitas Hospital and Another,
3
the Constitutional Court held that:
‘
This
Court has held that the standard for considering an Application for
Condonation is the interest of justice. Whether it is in
the interest
of justice to grant Condonation depends on the facts and
circumstances of each case. Factors that are relevant to
this enquiry
include but are not limited to the nature of the relief sought, the
extent and cause of the delay, the effects of
the delay on the
administration of justice and other litigants, the reasonableness of
the explanation of the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success.’
[10]
In paragraph 22 of Van Wyk’s case (supra) the Constitutional
Court further held that:-
‘
An
Applicant for Condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire period
of delay.
And what is more, the explanation given must be reasonable.’
[11]
The first respondent filed his answering affidavit on 9 September
2010 with a condonation application. He stated that the period
of the
delay was not so excessive being 51 days and when seen against the
explanation and the prospects of success. The record
of the
arbitration proceedings and the supplementary affidavit were served
on the first respondent’s representative on 10
June 2010. There
is no indication that the applicant either simultaneously or
subsequently filed the rule 7A (8) notice as an invite
to any
respondent who wishes to oppose the application to file opposing
papers within a stipulated time, which is 10 days. Accordingly,
the
first respondent was not put in terms in the event he wanted to
oppose the review application. However, on 13 July 2010, applicant’s
legal representative wrote a letter to first respondent’s
representative, alerting him that the opposing papers were due
and
gave the first respondent five days to deliver the same. A response
came from the first respondent’s representative,
erroneously
dated 14 June 2010, instead of 14 July 2010, indicating that they
were busy with the opposing affidavit. That letter
has the effect of
remedying the defect in the rule 7A (8) notice and therefore the time
for the filing of the answering affidavit
should be calculated from
the date of 13 July 2010, when the applicant’s letter was
received by the first respondent. The
period of the delay is
therefore 51 days minus 13 days which is 38 days.
[12]
The explanation for the delay given is that the first respondent
could not timeously be contacted by his representative to
depose to
the answering affidavit. He said that, upon his dismissal the
applicant took the cellular telephone back which he had
used as his
working tool. He had given the union officials the cellular telephone
number through which they could contact him and
in its absence they
had no means of contacting him until it was late.
[13]
He believed that he had good prospects of success in that the award
was devoid of any defect and when all evidence led was
considered,
the award was reasonable. In his view, the applicant could not suffer
any prejudice should condonation be granted.
[14]
The condonation application was opposed by the applicant. Further to
that the first respondent has not filed any reply to the
applicant’s
opposing affidavit. It is trite law that in circumstances such as
these where an applicant (first respondent
in this incidence) fails
to reply to the opposition the Court may decide the matter on the
version of the respondent, (the applicant)
where there is a dispute
of facts between the parties.
4
[15]
The applicant wrote some letters urging the first respondent to file
opposing papers and in response to those letters the union
official
stated, firstly, it was busy with the opposing affidavit, without
indicating any difficulty there might have been in tracing
the first
respondent. In response to another letter, the union official asked
for an extension of time citing study pressures.
The applicant agreed
to such time extension. When the applicant persisted that the
extended time had long expired, the reason for
the delay given was
then that the union official had been busy with arbitrations and that
she was then on leave. According to the
applicant, the cellular
telephone was indeed claimed from the first respondent but he
returned it in February 2010.
[16]
An application for condonation stands and falls with the explanation
given. Where the explanation is no explanation at all,
inter alia,
because it is false, the Court does not have to consider the
prospects of success and the other factors.
5
The explanations given by the union officials in letters addressed
to the applicant amount to a contradiction to the statement
proffered
in the answering affidavit. If it should be true that the first
respondent could not communicate with the union officials
because
they did not have his recent telephone number, it must follow that it
is a lie that, in July 2010, the union was busy with
the opposing
affidavit. Similarly, the lack of communication had nothing to do
with the union official who might have been busy
with arbitrations or
was on leave. Wherever the truth lies, the explanation for the delay
has not been shown to be probably true.
The explanation tendered is,
accordingly, dismissed for being improbable and unreasonable. I need
not consider the prospects of
success or any other factors.
[17]
The application for condonation is, accordingly, dismissed and the
review application proceeds unopposed.
The
review application
Evaluation
[18]
Section 145 of the Act on which this application is premised and to
the extent relevant here states that:
‘
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to
the
Labour Court for an order setting aside the arbitration award.
(2)
A defect referred to in subsection (1) means –
(a)
that the commissioner-
(i)
committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings;
(iii)
exceeded the commissioner’s powers; or
(b)
that an award has been improperly obtained.’
[19]
The proper test for reviewability is the one that was set out in
Sidumo v Rustenburg Platinum Mines,
6
namely: ‘…Is the decision reached by the commissioner
one that a reasonable decision-maker could not reach?’
In
determining the reasonableness of an arbitrator's award, the Court is
entitled to have regard to other reasons, not relied on
by the
arbitrator, to determine whether such decision is reasonable. In
Fidelity Cash Management Service v CCMA,
7
the Labour Appeal Court stated in relation to the Sidumo test that:
‘…
there
can be no doubt now under Sidumo that the reasonableness or otherwise
of a commissioner’s decision does not depend –
at least
solely – upon the reasons that the commissioner gives for the
decision. In many cases the reasons which the commissioner
gives for
his decision, finding or award will play role in the subsequent
assessment of whether or not such decision or finding
is one that a
reasonable decision-maker could or could not reach. However, other
reasons upon which the commissioner did not rely
to support his or
her decision or finding but which can render the decision reasonable
or unreasonable can be taken into account.’
[20]
In Edcon Ltd v Pillemer NO,
8
it was held, inter alia, that:
‘
It
is therefore the reasonableness of the award that becomes the focal
point of the enquiry and in determining this one focuses
not only on
the conclusion arrived at but also on the material that was before
the commissioner when making the award.’
[21]
Then in Herholdt v Nedbank Ltd,
9
Court held that:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2) (a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(2) (a) (ii), the
arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach
on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be attached
to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence if their
effect is to render the
outcome unreasonable.’
[22]
For this application to succeed, the second respondent must be shown
to have committed a defect as alleged or he must have
arrived at an
unreasonable result, for instance by misconceived the nature of the
inquiry he was to determine. The result will
be unreasonable if it is
one that a reasonable arbitrator could not reach on all the material
that was before him. According to
the applicant’s submissions,
the employee’s case was that he complied with the instruction
before he was suspended
and ultimately dismissed and that the
Commissioner decided the matter on the basis that the instruction
itself was unreasonable
as it created an incorrect perception. The
applicant’s case is that the instruction that was issued to the
employee could
not possibly have been unreasonable because the
unchallenged evidence of Mr Mhlongo was that he was not prescriptive
as to where
Ms Luthuli was to be placed so long as she was able to
perform her duties as per her job description.
[23]
The second respondent found with no difficulty that the instruction
issued to the first respondent in August 2008 was not complied
with.
In terms of schedule 8 of the Act, the second respondent had then to
determine whether the rule contravened was valid or
reasonable. He
had to consider all evidential material that was before him for this
purpose. At the commencement of the arbitration
hearing, the second
respondent spent what may be described as an inordinate time (taking
the whole of volume 1 of the arbitration
hearing) with the parties,
pointing out the difficulty there was in accommodating Ms Luthuli’s
concerns about her correct
placement after she was proved in a court
of law to have been either a thief or a fraudster. The representative
of the applicant
went to the extent of undertaking to address the
very issue when leading the evidence.
[24]
The commissioner set out to determine the reasonableness of correctly
placing a reinstated employee that could not be trusted.
She had been
convicted and sentenced on very serious crimes of dishonesty
perpetrated against the very people she had to work and
relate to.
While the first respondent was the Manager and had the power to
recommend disciplinary steps against the staff reporting
to him, the
decision taken to re-instate Ms Luthuli was taken by the body
representing the employer. Re-instatement was taken without,
simultaneously resolving to discipline her. Ms Luthuli’s father
was a member of that body which ultimately represented the
applicant,
being the employer.
[25]
In my view, the second respondent had to determine the reasonableness
of the proper placement of Ms Luthuli, as opposed to
the mere
re-instatement which had already been carried out. Even her attitude
to insist on being placed where she wanted did not
help to evince
that she was remorseful for her misdeeds and was in the process of
repenting from her ways. She wanted to be re-instated
in her own
terms under very difficult and challenging circumstances. She
succeeded to have the last say at the expense of another
employee
whose job she has “stolen”. As it was always open to the
applicant to lead evidence on the reasonableness
of the correct
placement of Ms Luthuli, the second respondent did not commit any
defect as defined in section 145 of the Act.
[26]
This matter is the first example of the difficulty faced by the
applicant in acting consistently in the imposition of a fair
sanction
on its employees found guilty of misconduct. The applicant has
condoned a criminal who has been proved to be dishonest
and yet has
been intolerant of an employee who failed to carry out an
instruction. Ms Luthuli committed crimes at her workplace
and the
applicant accepted her with no disciplinary action and yet the
applicant dismissed an employee for a failure to carry out
an
instruction under dubious circumstances. All evidence led considered,
it has not been shown that the second respondent issued
an award
which a reasonable decision maker could not issue in all
circumstances.
[27]
Consequently, the following order stands to be issued:
1.Condonation
for the late filing of the answering affidavit is dismissed with no
costs order made in respect thereof.
2.
The review application in this matter is dismissed
3.
No costs order is made.
Cele
J
Judge
of the Labour Court.
APPEARANCES:
For
the Applicant: Mr S Mhlanga of Mhlanga Inc.
For
the First Respondent: Ms N Cele of Imatu, KZN Region.
1
Act
No 66 of 1995.
2
See
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532C-F,
Chetty
v Law Society, Transvaal
1985
(2) 756 (A) at 765D-E and
Moila
v Shai NO and Others
2007 ILJ 1028 (LAC) at para 35.
3
[2007] ZACC 24
;
2008
(2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20.
4
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
.
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E-635C.
5
See
Moila v
Shai
case (
supra
)
at para 37.
6
(2007)
28 ILJ 2405 and
[2007] 12 BLLR 1097
(CC) at para 110.
7
(2008)
29 ILJ 964 (LAC), at para 102.
8
(2009)
30 ILJ 2642 (SCA) at para 16.
9
2013
(6) SA 224
(SCA) at para 25.