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[2014] ZALCJHB 53
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Magagula v South African Local Government Bargaining Council and Others (JR65/12) [2014] ZALCJHB 53 (7 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
No: JR 65/12
In
the matter between:
PHILLIP
MAGAGULA
APPLICANT
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
FIRST
RESPONDENT
NKOSINATHI
MASEKO N.O
SECOND
RESPONDENT
EMALAHLENI
LOCAL MUNICIPALITY
THIRD
RESPONDENT
HEARD:
15 MAY 2013
DELIVERED:
7 FEBRUARY 2014
Summary:
The arbitrator’s failure to give clear reasons for finding a
dismissal substantively unfair and to deal with
the applicant’s
defence of inconsistency renders an arbitration award reviewable.
Review in terms of
section 145 of the LRA- Dismissal for misconduct.
JUDGMENT
LALLIE,
J
Introduction
[1]
This is an application to review and set
aside an award issued by the second respondent (‘the
arbitrator’) in favour
of the third respondent (the
Municipality). It is opposed by the Municipality. This application
was filed outside the six weeks
period envisaged in section 145 of
the Labour Relations Act 66 of 1995 (the LRA) and the applicant
sought condonation of the lateness.
The Municipality decided not to
pursue its opposition of the condonation application. The
Municipality filed an application for
condonation of the late filing
of its answering affidavit and the applicant adopted a similar
approach. I am satisfied that the
Municipality has shown good cause
for condonation of the lateness.
[2]
In his condonation application, the
applicant has given a reasonable explanation for the delay. He has
expressed the importance
of this case to him. He has prospects of
success and he stands to suffer more prejudice than the third
respondent should condonation
be refused. I am satisfied that he has
shown good cause as required in section 145 (1A) of the LRA.
Factual
Background
[3]
The applicant entered the employ of the
Municipality as an electrician in 1997 and left it when he was
dismissed on 31 December
2010 holding the position of an Engineering
Technician. Pursuant to a forensic audit report, the Municipality
received in February
2010, it established a committee with authority
to take disciplinary action against employees implicated in the
report. The applicant
was amongst the implicated employees. He was
suspended from duty and 7 charges of misconduct were levelled against
him. At the
disciplinary enquiry which ensued he was found guilty of
charge 1 for which he was given a final written warning and charges
2,
6 and 7 for which he was dismissed. Charges 3, 4 and 5 were
withdrawn.
[4]
The applicant was found guilty of the
following charges:
Charge 1
‘
You
are guilty in that you have failed to declare our interests in the
following businesses: Eubo Cleaning and Projects CC; Eavesdrop
Trading 42 CC’.
Charge 2
‘
You
have failed to disclose, as required by the Local Municipal Systems
Act to the Municipality that the following companies stood
to benefit
from contracts concluded with the Municipality when you ought to have
known that these companies belong to your close
family and relatives,
and these companies are:
Mtombeni Trading
Enterprise;
Thejo Cleaning and
Projects;
Zitho’bse
Construction and Projects;
Zanel Intombi
Business Enterprise;
Logwaza
Construction;
Shona Projects; and
Dzengwe Trading
Enterprises’
Charge 6
‘
You
acted in contravention of the Act in that you, in your capacity as an
employee of the Municipality, used your position to improperly
benefit your close family members and/or relatives when you knew or
ought to have known that the above companies belonged to your
close
family members and or relatives’
Charges 7
‘
Your
personal involvement in the transactions between the Municipality and
the companies owned by your close family members and/or
relatives
constitutes a conflict of interest’.
[5]
Convinced that his dismissal was unfair,
the applicant referred a dispute to the first respondent (the
bargaining council). When
the matter was set down for arbitration,
the applicant and the Municipality decided not to lead oral evidence
but to rely on the
pre-arbitration minute and the record of the
disciplinary enquiry. They also agreed to submit heads of argument.
In addition, they
filed, at the request of the arbitrator, further
heads of argument on historical and contemporaneous inconsistency. In
an award
dated 30 June 2011 but received by the applicant on 26
September 2011, the arbitrator found the applicant’s dismissal
both
procedurally and substantially unfair and refused to interfere
with the sanction issued at the disciplinary enquiry. It is that
award the applicant seeks this Court to review and set aside.
Grounds for
review
[6]
The
applicant seeks an order reviewing and setting aside the entire
arbitration award and the conclusion reached by the arbitrator
on the
basis that he reached a decision no reasonable decision-maker could
have made on the matter. He sought to rely on a number
of grounds.
The test for review is settled. It is enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
It
is whether the arbitrator reached a decision a reasonable
decision-maker could not reach.
[7]
The applicant submitted that the arbitrator
committed a gross irregularity and misunderstood the issues he was
required to decide
because of the manner in which he identified the
issue in dispute. The arbitrator recorded that he was called upon to
make a determination
on whether the respondent had been inconsistent
in applying discipline to its employees instead of stating that he
was required
to determine whether the applicant’s dismissal was
substantively and procedurally fair. This error, according to the
applicant
constitutes sufficient reason for finding the award
reviewable. The third respondent argued that the above ground is
devoid of
merit. It sought to rely on some portions of the award. The
first is that the arbitrator recorded that should he find that the
Municipality had been inconsistent he should proceed to determine the
fairness of the dismissal. The second is that the arbitrator
summarized the applicant’s submissions as challenging both the
procedure and the reason for the termination of his employment.
The
last is the following:
‘
I
am called upon to determine whether the applicant was guilty as
charged, alternatively, it would seem, I must decide on the reputed
inconsistent application of discipline. Lastly, according to
submission made by the disputants, I must determine whether the
dismissal
was effected in accordance with a fair procedure as
contemplated by Section 188 (2) of the Act’
[8]
The issue before the arbitrator was whether
the applicant’s dismissal was substantively and procedurally
fair. I am not convinced
that reading the portion of the award where
the arbitrator recorded the issue in dispute is sufficient to base
the decision that
he committed an irregularity by not recording the
issue in dispute properly. One of the purposes of stating the issue
in dispute
is to indicate that the arbitrator understood the nature
of the dispute he or she had to arbitrate. Reading the part of the
award
where the issue in dispute is recorded only is a narrow
approach of making the determination. A proper decision that the
arbitrator
did not have a full understanding of the issue in dispute
can be made after the whole award has been considered. A reading of
the
award reflects that in different parts of the award the
arbitrator recorded and referred to the issue in dispute differently.
However,
when he was analysing evidence he stated that he would
confine himself to whether the dismissal of the applicant was for a
fair
reason and whether same was effected in accordance with a fair
procedure. Should he find that the applicant had committed the
infractions
he was accused of, he was required to determine whether
the respondent had been consistent in applying discipline. A reading
of
the entire award therefore proves that the arbitrator may have
recorded the issue in dispute incorrectly under the relevant
sub-heading.
When analysing evidence he proved clearly that he
understood the issue in dispute clearly. The issues tabulated by the
applicant
and the Municipality as issues that the Council was
required to decide, collectively deal with substantive and procedural
fairness
of the applicant’s dismissal. The first ground for
review is therefore invalid.
[9]
The applicant sought to rely on the
arbitrator’s error to the effect that there was no full
citation of
Denel v Vorster and Highveld
District Council v CCMA
, authority the
applicant relied on at arbitration. The applicant had provided the
full citation. The applicant submitted that the
error evinced the
arbitrator’s failure to read his heads of argument or that he
did not have them at his disposal when he
was writing the award as he
would not have made the error had he perused the heads of argument.
The submission is farfetched. There
are a number of reasonable
inferences which can be drawn from the arbitrator’s error other
than his failure to read the heads
of argument in which the case was
referred to. Had the arbitrator not read the heads of argument he
would not have been aware that
the applicant had made reference to
the case. This ground does not hold water.
[10]
The applicant based his further attack on
the award on the arbitrator’s omission to record all the
submissions made
on his behalf. Section 138 of the Labour
Relation Act 66 of 1995(LRA) requires arbitrators to give brief
reasons for their decisions.
There is no duty on them to record all
the submission made by the parties. His omission can therefore not be
faulted.
[11]
Contrary to the applicant’s
submission, the arbitrator applied his mind to the issue of
procedural fairness. This is supported
by the reasons he furnished
for finding that the procedural defects did not render the dismissal
procedurally unfair. The arbitrator
recorded the submissions on
behalf of both parties and analysed the evidence before him. He, as
the applicant correctly submitted,
did not give reasons for his
finding that the applicant’s dismissal was substantively fair.
The arbitrator’s main duty
is to determine the dispute before
him or her and give brief reason for his or her decision as envisaged
in section 138 (7) of
the LRA. His omission to give reasons for
finding the applicant’s dismissal substantively fair was
unreasonable.
[12]
The applicant submitted that the
arbitrator’s failure to deal with the question of consistency
rendered the award reviewable.
The source of the inconsistency is the
submission by the applicant that Mr SJ Mathebula’s case had
been dismissed because
of the Municipality’s failure to comply
with clause 6.5.7, 6.5.8 and 6.5.9 of the disciplinary code. His case
should have
been dismissed for the same reason. The applicant also
submitted at the arbitration that other employees who were implicated
in
the forensic audit report had their cases dismissed for
non-compliance with provisions of the disciplinary code.
[13]
Opposing
the above ground, the Municipality submitted that the arbitrator’s
finding was correct in that failure to comply
with a disciplinary
code did not render dismissal procedurally unfair. He argued that his
conclusion was consistent with a number
of cases including
Leonard
Dingler (Pty) Ltd v Ngwenya
[2]
and Denel (Pty) Ltd v Voster
[3]
,
Highveld
District Coucil v CCMA and Others
[4]
.
[14]
The arbitrator stated that the applicant
was not contending that the enquiry was not fairly conducted. He
instead contended that
the enquiry was not properly constituted and
consequently the dismissal became both procedurally and substantively
unfair. The
arbitrator made a finding that non-compliance with the
disciplinary code did not necessarily render the dismissal
procedurally
unfair. He dealt with only a portion of the issue the
applicant raised based on the disciplinary code. He failed to deal
with the
question of consistency. It was the applicant’s case
at the arbitration that the third respondent acted inconsistently by
not dismissing his case for its failure to comply with the
disciplinary code as it did to other implicated employees.
[15]
It is not in dispute that the applicant
raised the issue of inconsistency at the disciplinary enquiry. Even
the arbitrator, in stating
the issue in dispute recorded that he was
required to make a determination on whether the Municipality had been
consistent in applying
discipline to its employees. He failed to make
the determination having asked the applicant and the Municipality to
submit heads
of argument on inconsistency. The importance of the
principle of inconsistency is borne out by the facts of this case. It
sometimes
determines whether all the employees who commiited the same
or similar misconduct lose their jobs through dismissal or retain
them.
The danger of overlooking the principle of inconsistency is
that it opens employees to unfair discrimination by creating an
opportunity
for an employer to dismiss only some and not all the
employees who have made themselves guilty of the same or similar
misconduct,
taking into account that each case is determine on its
merits. The constitution precludes unfair discrimination at
workplace.
[16]
The arbitrator’s omission to deal
with the issue of inconsistency constituted a gross irregularity.
When the award is considered
in its totality it shows that the
irregularities committed by the arbitrator led him to reach a
conclusion which a reasonable decision-maker
could not have reached
on the evidence before him.
[17]
I could find no reason for costs not to
follow the result.
[18]
In the premises, the following order is
made:
18.1
The application for condonation of the late
filing of the review application is granted.
18.2
The application for condonation for the
late filing of the answering affidavit is granted.
18.3
The arbitration award issued by the second
respondent under case number MPD 011101 and dated 12 May 2012 is
reviewed and set aside.
18.4
The matter is remitted to the first
respondent to be arbitrated
de novo
by
an arbitrator other that the second respondent.
18.5
The third respondent is ordered to pay the
applicant’s costs.
_______________________
Lallie, J
Judge
of the Labour Court of South Africa
APPEARANCES
For the
Applicant:
Mr Mosebo of Maserumule
Inc
For the Third
Respondent: Advocate Motyolo
Instructed
by:
Werkmans Attorneys
[1]
[2007] 12 BLLR 1097 (CC)
[2]
[1999] 5 BLLR 431 (LAC).
[3]
2004(4) SA 481 (SCA).
[4]
[2002] 12 BLLR 1158
(LAC).