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[2014] ZALCJHB 29
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Minister of Correctional Services v PSA obo Richards and Others (JR 1697/12) [2014] ZALCJHB 29 (18 February 2014)
REPUBLIC OF SOUTH
AFRICA
LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case No: JR1697/12
In
the matter between:
THE
MINISTER OF CORRECTIONAL SERVICES
................................
Applicant
and
PSA
obo WILLIE J
RICHARDS
...................................................
First
Respondent
SEELE
MOKWENA
N.O
........................................................
Second
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
........................................................
Third
Respondent
Heard:
15 January 2014
Delivered:
18 February 2014
Summary: Review
application in terms of section 145 of the LRA – Commissioner
reinstated an employee who allowed a prisoner
to escape under his
guard – Commissioners’ decision one that a reasonable
decision maker could reach – review
dismissed.
JUDGMENT
CHAVOOS AJ
Introduction
[1]
This is an application for review in terms
of section 145 of the Labour Relations Act, 66 of 1995 as amended
(the “LRA”)
to review and set aside an arbitration award
of the second respondent (the “Commissioner”) under the
auspices of the
General Public Service Sectoral Bargaining Council
(the ‘Third Respondent”). In terms of his award, the
Commissioner
found that the dismissal of the First Respondent was
substantively unfair and ordered his reinstatement to the position of
Correctional
Officer Grade II on the same terms and conditions that
existed before his dismissal. The reinstatement was issued without
payment
of arrear salary to the First Respondent. The First
Respondent was required to report for work within five days of
receipt of the
award.
Background
[2]
The Third Respondent was employed by the
Applicant at its Zonderwater Correctional Centre as a Custody Officer
and was dismissed
on 7 July 2011 for dereliction of duty as a
consequence of an inmate escaping under his custody.
[3]
The initiator of the disciplinary hearing,
who presented the case on behalf of the Applicant at the disciplinary
hearing, did not
seek his dismissal and argued for a lesser sanction
ie one month’s suspension without pay.
[4]
No evidence pertaining to a breakdown in
the relationship of trust was placed before the chairman of the
disciplinary hearing nor
was it contended by the Applicant that the
First Respondent was an operational risk to his employer.
[5]
The above notwithstanding, the chairman of
the disciplinary hearing dismissed the First Respondent.
[6]
It appears from the minutes of the
disciplinary hearing that one of the main reasons for the Chairman
dismissing the Third Respondent
was consistency. According to the
Chairman, he was aware of other cases where employees had been
dismissed as a consequence of
prisoners escaping under their guard
and the dismissed employee’s conduct was declared as grossly
negligent. This issue was
not raised by the employer representative
at the disciplinary hearing nor was there any evidence placed before
the hearing regarding
the circumstances of these “two cases”
referred to by the Chairman.
[7]
It is common cause that the First
Respondent pleaded guilty to the complaint of dereliction of duty,
cooperated during the investigation,
showed remorse, had a clean
disciplinary record and was employed for some 13 years and 5 months
prior to his dismissal.
[8]
The First Respondent’s dismissal was
upheld on appeal and he subsequently referred an alleged unfair
dismissal dispute to
the Commissioner for Conciliation, Mediation and
Arbitration (CCMA).
[9]
The only issue that was placed in dispute
before the Commissioner was that of sanction and the parties agreed
to dispose of the
matter by way of written argument.
[10]
The written arguments presented by both
parties form part of the record.
[11]
In summary, it was argued before the
Commissioner that the offence committed by the First Respondent was
serious enough to warrant
dismissal. It was submitted by the employer
that consistency should be the only test to be used in determining
the sanction, together
with the merits of the case. It was further
contended that the trust relationship between the First Respondent
and the Applicant
had irretrievably broken down.
[12]
The First Respondent, on the other hand,
contended that the Chairperson’s reasoning for dismissing him
was due to consistency
in that the Chairman indicated that he was
aware of cases where other prison officials were dismissed as a
result of inmates having
escaped under their guard. He indicated that
the Chairman had ignored representations made by the employer
representative in the
disciplinary hearing in the employee’s
favour, namely that the area under his watch was a bushy area, other
teams with prisoners
had arrived and the prisoners intermingled with
each other wearing the same uniform. The FirstRespondent’s
supervision of
his prisoners was thus made difficult as his area of
supervision was thus broadened. The First Respondent further
contended that
the aggravating circumstances argued by the initiator
were in fact mitigating circumstances for the Third Respondent in
that the
initiator, upon arguing sanction, indicated that the First
Respondent pleaded guilty, did not waste the state’s time,
provided
his full support during the investigation, showed remorse
and had to contend with other prisoners who were intermingled with
the
prisoners that he was required to oversee.
Arbitration
award
[13]
In assessing the fairness of the dismissal,
the Commissioner took into account the Code of Good Practice, and in
particular Schedule
8 which provides guidelines in determining the
fairness of dismissals and noted that the First Respondent had
pleaded guilty to
the complaint.
[14]
He then turned his focus to the consistent
application of the rule as, according to him, it formed part of the
Chairman’s
motivation for the sanction of dismissal.
[15]
He found that the Chairman of the enquiry
did not deal with the consistent application of the workplace rule
when determining the
fairness of the dismissal, other than simply
indicating that after he had considered everything he decided to
terminate the relationship
based on consistency. No evidence on
comparative matters was referred to nor was any evidence led in
respect of similar cases in
order to justify the Chairman’s
decision.
[16]
The Commissioner found that the consistent
application of a workplace rule could not be justification for a
blanket imposition of
the same sanction in the event of the rule
being transgressed and that each case needed to be determined on its
merits.
[17]
The Commissioner took into account issues
mentioned by the chairman which, the initiator argued to be in the
First Respondent’s
favour, namely that all the prisoners under
the First Respondent’s guard and those guarded by other
officials were mixed
and wore the same uniform and that the area in
which the prisoners worked was a bushy area. In making these
observations,
the Commissioner found that the chairman failed to deal
with such submissions and provided no indication as to how they
influenced
his decision to dismiss the first respondent.
[18]
The Commissioner found no wilful neglect of
duty to have been proven.
[19]
Ultimately, the Commissioner found that the
chairman’s knowledge of other employees being dismissed in
circumstances where
employees had escaped under their watch appears
to have eroded the Chairman’s focus on the First Respondent’s
transgression
and inadvertently influenced his decision.
[20]
He also found that there were no
deliberations before the chairman of the disciplinary enquiry or for
that matter the applicant’s
heads of argument, to suggest that
the relationship between the Applicant and the First Respondent had
irretrievably broken down.
[21]
He noted that the initiator’s
submissions in aggravation were in fact in support of the First
Respondent’s mitigating
circumstances.
[22]
In light of all the above considerations,
the Commissioner found the First Respondent’s dismissal to be
unfair.
Evaluation
[23]
It is contended by the Applicant that the
Commissioner disregarded the plea of guilty and did not limit his
enquiry into the appropriateness
of the sanction in that he revisited
the merits and reached the conclusion that the dismissal was
substantively unfair. In the
circumstances, it is contended that the
Commissioner addressed the wrong question.
[24]
I am in disagreement with such submission
as it is apparent from the commissioner’s award that he, in his
analysis of arguments,
specifically indicated that the Applicant had
pleaded guilty to the offence and that it was not his intention to
deal with all
the factors as set out in the Code of Good Practice
regarding guidelines for fair dismissals. Insofar as the Commissioner
revisiting
the merits are concerned, it is quite apparent that the
Commissioner took into account the written submissions before him
regarding
the fairness of the sanction. He could not consider the
issue of fairness without considering the merits of the offence and
in
particular the reasoning of the chairman in determining the
sanction of dismissal. The Commissioner was precisely required to
consider
whether the employer had dismissed the employee for a fair
reason and in doing so was required to determine whether the
employer’s
reasoning to dismiss was fair.
[25]
It is also contended by the Applicant that
the Commissioner disregarded the chairman’s considerations with
regard to consistent
application of the rule, gravity and nature of
the offence. I disagree. On the contrary, the Commissioner found that
the chairman’s
sole focus on the issue of consistency was
misplaced in that it eroded his focus on the transgression and
inadvertently influenced
his decision. Insofar as the gravity of the
offence is concerned, he points out that the initiator of the
disciplinary hearing
supported the first respondent’s
mitigating circumstances. He found there to have been no wilful
neglect of duty on the part
of the First Respondents whilst
acknowledging that the First Respondent was blame-worthy for his
conduct as he was tasked to guard
the offender. He took into account
all the surrounding circumstances and observations made by the
chairman of the disciplinary
hearing, all of which appeared to be
common cause and found there to have been no wilful neglect.
[26]
The
issue at hand relates to substantive unreasonableness, the test for
which is set out in the judgment of the Constitutional Court
in
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
[1]
,
namely ‘is the decision reached by the commissioner one that a
reasonable decision maker could not reach?’.
[27]
In terms of
Sidumo,
I am required to consider the reasoning of the Commissioner to see
how he arrived at his decision, to determine whether his finding
was
reasonable. This Court must also consider whether apart from the
Commissioner’s reasons, the result is one that a reasonable
decision maker could reach in light of the issues in evidence.
[28]
This Court cannot set aside an award simply
because it would have arrived at a different result. Two recent
judgments have emphasised
this principle. The judgments are:
28.1
Herholdt
v Nedbank Limited (COSATU as amicus curiae).
[2]
The court held:
‘
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 section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings
to
amount to a gross irregularity as contemplated by Section
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’.
28.2
Gold
Fields Mining SA (Proprietary) Limited (Kloof Gold Mine) v CCMA and
Others
[3]
:
“
What
is required is first to consider the gross irregularity that the
arbitrator is said to have committed and then to apply the
reasonableness test established by
Sidumo.
The gross irregularity is not self-standing. It follows that the
argument that the failure to have regard to material facts may
potentially result in a wrong decision has no place in review
applications.
Failure to have regard to
material facts must actually defeat the constitutional imperative
that the award must be rational and
reasonable - there is no room for
conjecture and guesswork ground insulated from or standing
independent of the
Sidumo
test.
Where an arbitrator fails
to have regard to the material facts it is likely that he or she will
fail to arrive at a reasonable decision.
Where the arbitrator fails
to follow proper process he or she may produce an unreasonable
outcome.
(i)
in terms of his or her duty to deal with
the matter with the minimum of legal formalities, did the process
that the arbitrator employed
give the parties a full opportunity to
have their say in respect of the dispute?
(ii)
did the arbitrator identify the dispute he
[or she] was required to arbitrate (this may in certain cases only
become clear after
both parties have led their evidence)?
(iii)
did the arbitrator understand the nature of
the dispute he or she was required to arbitrate?
(iv)
did he or she deal with the substantial
merits of the dispute? and
(v)
is
the arbitrator’s decision one that another decision-maker could
reasonably have arrived at based on the evidence?
[29]
Whilst
I can understand the applicant’s position and can appreciate
the seriousness of the offence this court, as per the
words of Willis
JA in the matter of
Palaborwa
Mining Company Limited v Cheetham and Others
[4]
:
‘…
has
to constantly remind itself that in assessing the reasonableness or
otherwise of a decision of a CCMA commissioner, it need
not
necessarily agree with the decision of the commissioner’.
[30]
In terms of
Sidumo
,
the determination of fairness of a dismissal falls within the domain
of the commissioner.
[31]
The Applicant has not met the threshold for
a successful review.
[32]
This may well be a case where reasonable
commissioners may differ and, in as much as I may have sympathy for
the applicant, it is
the applicant who has made its bed and must lie
in it. Its elected representative at the disciplinary enquiry argued
the case on
the basis that there was no wilful neglect on the part of
the first respondent and argued that there were various obstacles
before
the third respondent when the prisoner escaped. He in essence
found that the conduct of the first respondent, although not
blame-worthy,
justified a sanction other than dismissal, particularly
in light of the Applicant’s length of service, clean
disciplinary
record, cooperation in the investigation, plea of guilt
and remorse shown.
[33]
The chairman tasked with ultimately making
the decision himself did not do justice to the matter in failing to
provide a clearly
coherent and logical explanation regarding his
reasoning for dismissing the First Respondent, other than indicating
that this was
consistent with what the Applicant would do. No
evidence regarding the breakdown of the relationship of trust or the
fact that
the First Respondent was an operational risk to the
Applicant was suggested or led before the chairman of the
disciplinary enquiry
nor was this a factor in his deliberations for
justifying dismissal. All of these issues were considered by
the Commissioner
in arriving at his decision that the sanction of
dismissal was inappropriate.
[34]
There was also no evidence placed before
the Commissioner regarding reinstatement being an inappropriate
remedy.
[35]
Whilst there may have been commissioners
that might have differed with the outcome reached by the commissioner
simply based on the
fact that the employee’s care and duty was
to guard prisoners to ensure that they do not escape, I cannot find
that, based
on his reasoning and the material placed before him, the
Commissioner’s decision was one that no reasonable commissioner
could reach.
[36]
In considering the transgression of the
First Respondent as well as his blame-worthy conduct, I find that it
would be unfair to
saddle the Applicant with a cost order in these
circumstances.
[37]
In the premise, I make the following order:
37.1
The review application is dismissed;
37.2
There is no order as to costs.
Chavoos AJ
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT: F van
der Merwe
FOR THE THIRD RESPONDENT:
Advocate M B Matlejoane
Instructed by the State
Attorney
[1]
[2007] 12 BLLR 1097 (CC)
[2]
(2013) 34 ILJ 2795 (SCA) at para 25.
[3]
JA2/2012(
[2013] ZALAC 28
(4/11/2013)
[4]
[2007] ZALAC 11
;
[2008] 6 BLLR 553
(LAC)