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[2014] ZALCJHB 119
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Public Servants Association of South Africa obo Ntsime v Education Labour Relations Council and Others (JR2452/10) [2014] ZALCJHB 119 (3 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR 2452/10
In
the matter between:
PUBLIC
SERVANTS ASSOCIATION OF
SOUTH AFRICA OBO MKH
NTSIME
Applicant
and
EDUCATION
LABOUR RELATIONS
COUNCIL
First
Respondent
ARBITRATOR
COEN
HAVENGA
Second
Respondent
DEPARTMENT
OF EDUCATION,
NORTH WEST PROVINCIAL
GOVERNMENT
Third
Respondent
MEC
FOR EDUCATION,
NORTH
WEST PROVINCIAL
GOVERNMENT
Fourth
Respondent
Heard
:
18 January 2013
Delivered:
03 April 2014
JUDGMENT
HAFFEGEE AJ
Introduction
[1]
This is an application to review and set
aside an arbitration award made by the second respondent (“the
Commissioner”)
30 July 2010 in which the dismissal of the
applicant was found to be both procedurally and substantively fair.
[2]
The applicant started employment with the
third respondent (“the department”) since 1989 and was
employed as an Institution
Support Coordinator (ISC) since 1998 until
his dismissal on 22 August 2007.
[3]
The employee was charged with misconduct
during about February 2007. Some of the events for which the employee
was charged occurred
during June 2006. He was found guilty of five
counts of misconduct at a disciplinary hearing. The employee was
given an opportunity
to accept demotion as an alternative to
dismissal. The employee did not accept demotion and was consequently
dismissed.
[4]
The employee referred a dispute to the
first respondent (the ELRC). The Commissioner arbitrated the dispute
on three days during
March, April and May 2010. The Commissioner
concluded that the employee’s dismissal was substantively and
procedurally fair.
Arbitration
award
[5]
The applicant aptly summarised that the
employee was essentially dismissed for the following reasons:
5.1
he failed to visit Mphela Secondary School
(the school) during 2006, did not attend a meeting at the school on 3
May 2006, and did
not attend a scheduled visit at the school on 22
June 2006;
5.2
he did not attend an afternoon session of
training on 19 June 2006 at Rustenburg Technical School; and
5.3
he displayed disrespect, amongst others, to
his area manager on 2 June 2006.
[6]
The Commissioner concluded that the
employee was indeed guilty of the acts of misconduct. In so doing he
canvassed in detail the
evidence presented at the arbitration. He
regarded some important facts as not being in dispute:
‘
It
is not disputed that the [employee] did not visit [the school] during
2006. It is not disputed that the school is a so-called
trapped
school, i.e. an underperforming school. It is not in dispute that the
[employee] did not attend certain scheduled meetings,
or left early’.
[7]
The Commissioner rejected the employee’s
contention that various people had conspired against him and that the
employer’s
version of events was untrue. Amongst others, he
stated the following in this regard:
‘
I
can find no substance in the allegation that the [employer’s]
version is a fabrication and a lie. The allegation of a conspiracy
is
improbable. This version of the [employee] was never put to any of
the witnesses during the arbitration hearing to afford them
the
opportunity to respond. Considering the fact that the applicant is
literate and represented by an experienced legal representative
one
would have expected it to be done. He could not explain why the
accusation was not put to the witnesses. He never filed a formal
grievance, despite the fact that by his own admission is well
versed in disciplinary matters’.
[8]
The Commissioner considered each of the
factors set out in Item 7 of the Code of Good Practice: Dismissal
contained in schedule
8 of the Labour Relations Act (“the Act”)
and concluded that the employee had indeed contravened rules that
were valid
or reasonable, known to the employee and that “there
was no evidence of inconsistency and arbitrary action on the part of
the employer” or that the employer has “habitually or
frequently condoned similar offenses in the past.”
[9]
The Commissioner canvassed in detail
whether dismissal was an appropriate sanction. He referred to the
Constitution of the Republic
of South Africa (“the
Constitution”) and emphasised that it provides that “a
child’s best interests are
of paramount importance in every
matter concerning the child” and specifically stated that he
bore this factor in mind “as
surely it was not in the best
interests of the learners of [the school] as an underperforming
school that needed intervention that
the [employee] failed for a year
to visit and support the school.” He concluded that the acts of
misconduct committed by
the employee cannot be “ascribed to
mere negligence”. Importantly, he stated the following:
‘
One
would expect of a person of his position, level of education and
status to have dealt with the situation differently. The fact
that he
ascribed the whole matter to a conspiracy is indicative of a
breakdown in the employment relationship. His actions indeed
amounted
to gross dishonesty. His actions were of such a nature that it surely
will have a negative impact on the trust relationship’.
[10]
The Commissioner indicated that he had due regard for the principles
set out in
Edcon
Ltd v Pillemer NO and Other.
[1]
that
the employer bears the burden of proving that the trust relationship
between employer and employee has broken down irretrievably.
[11]
The Commissioner regarded the employee’s
length of service and status (seniority) as aggravating “since
higher standards
of work may be expected of senior employees”.
The Commissioner accordingly concluded that dismissal was an
appropriate sanction.
[12]
In considering the procedural fairness of
the dismissal, the Commissioner did not consider the delay in
instituting disciplinary
action from the time the misconduct was
committed during about June 2006 to the time disciplinary action was
taken during about
February 2007 as unfair.
Grounds
of review
[13]
The employee has submitted several grounds
of review. He contends that the Commissioner committed misconduct by
not applying his
mind and ignoring relevant evidence and/or arguments
alternatively that he came to conclusions that a reasonable
arbitrator could
not have reached in the following respects:
13.1
He concluded that the trust relationship
between the employer and employee had broken down and that the
employee was responsible
for the breakdown in the trust relationship
when there was insufficient evidence of this.
13.2
He concluded that the employee was guilty
of more than negligence and rather of gross dishonesty without any
factual basis for such
a conclusion.
13.3
He viewed lengthy service as an aggravating
factor rather than as a mitigating factor and/or over-emphasised the
employee’s
status as an aggravating factor.
13.4
The Commissioner over-emphasised the
employee’s allegation of a conspiracy and failed to view the
allegation in the correct
context.
13.5
The Commissioner over-emphasised the
interests of children as against the rights of the employee to be
protected against unfair
labour practices and unfair dismissal.
13.6
He failed to appreciate the lack of
progressive discipline and that given the prevailing circumstances,
dismissal was too severe,
inappropriate and an unfair penalty.
13.7
He failed to appreciate that there had been
and unexplained delay in instituting disciplinary proceedings between
June 2006 and
February 2007.
13.8
The Commissioner failed to take proper
cognizance of the provisions of sections 17 and 18 of the Employment
of Educators Act of
1998 (EEA).
Evaluation
[14]
There are two important observations to
note regarding the grounds of review: First, most of the grounds do
not fulfil the requirements
for review applications because they are
in fact grounds for appeal. Second, the applicants in essence
challenge the finding that
the sanction of dismissal was appropriate.
Even if I am wrong in concluding that the concert review amount to no
more than grounds
for appeal, for the reasons set out below I am
satisfied that the grounds of review are still not sufficient for the
application
to succeed.
Conclusion
that the trust relationship had broken down
[15]
The applicants complain that the
Commissioner concluded that the trust relationship had broken down
irretrievably even though there
was a “single (indirect)
reference to broken relationship (of trust)” and that the
response was preceded by a leading
question. This is not a correct
reflection of the record. During the arbitration, the Department’s
representative seeks the
Commissioner’s assistance, which
indicates that he may ask a leading question. The Commissioner
responds, “[a]sk the
question and see whether there is an
objection…” The representative then asks the witness,
‘[h]as the working
relationship between the [employee] and the
Department irretrievably broken down?’ The employee’s
representative did
not object to this question.
[16]
It is also not correct, as submitted on
behalf of the applicants that “the witness proceeded to
immediately deal with implementation
of policies and did not explain
why the trust relationship had irreparably broken down.” The
record shows that the witness
testified that the employee did not
implement its policies fully whilst employed and that there had since
been amendments to the
policies, she questioned whether he would be
able to do so on his return.
Conclusion
of dishonesty and view that contention of conspiracy indicated a
breakdown in the relationship
[17]
The applicants contended that given that
the employee was found guilty essentially of failing to visit the
school, not attending
meetings and displaying disrespect, no
allegations of dishonesty were made and no evidence of dishonesty was
presented. Accordingly,
the Commissioner's conclusion that the
employee’s actions amounted to gross dishonesty is mere
conjecture.
[18]
The Commissioner’s award states that
the employee's failure to exercise his duties and comply with
instructions cannot be
ascribed to mere negligence. He continues by
stating that the fact that the employee ascribes the whole matter to
conspiracy is
indicative of a breakdown in the employment
relationship and that the employee’s actions indeed amount to
gross dishonesty.
I understand that to mean that even if the employee
had acted negligently he was not honest in ascribing to conspiracy
his failure
to exercise his duties and comply with instructions. The
conclusion of gross dishonesty is not unreasonable given that the
Commissioner
had concluded that the allegation of a conspiracy as an
excuse for misconduct was unfounded.
[19]
The employee has not made any real attempt
to put up a defence that he did not commit the acts of misconduct.
Having taken this
approach, he resorts to attributing his failure to
carry out his duties and to obey lawful and reasonable instructions
to sinister
motives by others. According to him, others within the
Department did not like him; wished to get rid of him; concocted
allegations
against him; and had generally colluded to get rid of
him. This is inexplicable given that the employee does not put up
much of
the defence for not carrying out his duties and obey lawful
instructions. In essence, the employee is himself presenting evidence
to show that the relationship between him and others within the
Department had broken down.
[20]
Accordingly, I find the conclusions reached
by the Commissioner that the employee’s assertion that others
within the Department
had conspired against him is an indication that
the relationship between the employee and the Department had broken
down, to be
a conclusion that a reasonable decision-maker could make.
Overemphasis
of the interest of children
[21]
The Commissioner refers to section 28(2) of
the Constitution of the Republic of South Africa, 1996, which
provides that the child's
best interests are of paramount importance
in every matter concerning children and stated that he kept this in
mind because the
employee's actions were not in the best interests of
the learners of the school given that it was an underperforming
school that
needed the intervention of the employee. The applicants
complained that because no evidence had been presented to the
arbitrator
that the employee had violated the fundamental rights of
children, the Commissioners conclusion amounted to conjecture.
[22]
The Commissioner referred to the
Constitution to emphasise that the best interests of children ought
to be borne in mind on matters
concerning children and did not, given
on the applicant's own version, conclude that "the fundamental
rights of children had
been violated by [the employee]".
[23]
The applicants do not state how reference
to the best interests of children were overemphasised in relation to
the rights of the
employee to the extent that the Commissioner made
conclusions that a reasonable Commissioner could not have reached.
This ground
of review has no substance.
Appropriate
sanction
[24]
The applicants raise several grounds of
review that are in essence a challenge of the finding that the
sanction of dismissal was
appropriate. At least three of the grounds
fall under this broad challenge:
24.1
the Commissioner did not deal properly with
the employees explanation/defence for not attending the school;
24.2
the Commissioner's view that lengthy
service and status/seniority were aggravating factors; and
24.3
the Commissioner's failure to consider the
lack of progressive discipline.
[25]
The applicants have not challenged the
conclusion that the employee committed misconduct in that he had
failed to perform his duties
and had not obeyed instructions. The
relief sought by the applicants is that this Court set aside the
award and replaced it with
a finding that the employee's dismissal
was substantively unfair, and to replace the sanction of dismissal
with a final written
warning.
[26]
The Commissioner canvassed the employees’
evidence and arguments in detail. The employee did not deny that he
had not visited
the school and that the school was an underperforming
school. However, the Commissioner records the following explanation
given
by the employee for his failure to visit the school:
‘
he
alleges that his actions with the result of the lack of certainty
around the future of the school principal unintended legal
suit by
her. He testified that all the witnesses called by the respondent
online and it is all a conspiracy against him to bring
him down. He
testified that nobody liked him and nobody lifted a finger to
assisting. He admits that he never visited [the school]
during 2006’.
The
Commissioner records the following finding in relation to the
employee's explanation for his conduct:
‘
The
[employee’s] explanation for his conduct is not reasonably
acceptable and do not provide justification for its conduct.
He was
an experienced official of many years service. He testified that he
was afraid the Principal might accuse him of assaulting
her in the
office and that was why he did not visit the school. Surely it was
simple to set up a visit without him having to be
alone with the
Principal, if it indeed was an issue. The fact that he did not trust
her is no justification to renege on his duty
towards an
underperforming school and its learners and educators. He agrees he
had the support of legal services. It was made clear
to him that
there is no impending threat of legal action against him in his
personal capacity, and his perception was not justified
and do not
provide justification for his conduct. The issue with the payment of
petrol claims also cannot be accepted as a valid
reason for forsaking
his duty in respect of assisting an underperforming school and its
learners and educators. He testified that
he did not report his
leaving from the meeting, but can not remember whom he reported to
when he left. I find this improbable’.
(sic)
[27]
The Commissioner considered carefully the
evidence before him. As I have stated above, the employee did not
deny failing to visit
the school but presented excuses for his
failure. The Commissioner concluded that these did not justify his
failure to visit the
school and concluded that the employee had
indeed breached the relevant rules of being guilty of misconduct.
This is not inconsistent
with what a reasonable decision maker could
conclude based on the evidence before him.
[28]
The applicants did not pursue with any
conviction that the reasons given by the employee were sufficiently
valid to justify his
misconduct. In other words, the stance taken at
the hearing of this matter in this Court was not to challenge the
conclusion that
the employee had breached the relevant rules.
Instead, the real challenge was against the conclusion that dismissal
was an appropriate
sanction. In that sense the reasons the employee
gave for his failure to visit the school are at best to be regarded
as mitigating
factors when considering an appropriate sanction. The
Commissioner makes no specific mention of these factors, he states
that he
is “satisfied on the facts before me that the
[employee] is indeed guilty of the misconduct he was charged with”.
[29]
The Commissioner considered the issue of
sanction carefully and in great detail and displays an awareness of
the relevant principles
when deciding whether dismissal is
appropriate by canvassing of various decisions of this court and
those of other courts. The
conclusion that dismissal was an
appropriate sanction is a reasonable one and, moreover, one with
which I agree.
Delay in instituting
disciplinary action
[30]
The
Labour Appeal Court, in
Maluti
Transport Corporation Ltd v Manufacturing Retail Transport and Allied
Workers Union and Others
,
[2]
addressed the issue of estoppel by election in the labour law context
(albeit in the context of a strike ultimatum) and said that
two basic
requirements are to be met to retract an earlier election: a good
reason and timeous notice.
[31]
In
Union
of Pretoria Municipal Workers and Another v Stadsraad van
Pretoria
,
[3]
the Court concluded that while “delay is not, by itself,
waiver” and even where waiver is not claimed or does not apply,
“fairness, however, dictates that disciplinary steps must be
taken promptly.”
[4]
The
passages quoted below are relevant:
‘
The
reason for the enquiry to be held promptly is discussed by E Cameron
‘The Right to a Hearing before Dismissal –
Part One’
(1986) 7 ILJ 183 at 200:
‘
But
promptness, even short of the waiver or deemed waiver by the
employer, is essential to ensure that the employee can present
his
case effectively since delay can lead to inadequate recall on the
part of the employee or to the unavailability of his witnesses.
Moreover, undue delay between the occurrence of the alleged
misconduct in the employers’ disciplinary response blurs the
impact of corrective discipline. From the employer's point of view
promptness is necessary for the additional reasons that dispatch
of a
disciplinary matter allows his enterprise to move forward unhampered
by the anxieties, animosities and uncertainties which
pending action
may produce’.
[32]
The employee does not claim that waiver or
estoppel or that the delay prejudiced him in that there was not
adequate recollection
of the evidence. It is merely asserted on
behalf of the employee that prejudice is not the test for assessing
whether a delay was
unfair but a fundamental principle that
disciplinary action ought to be taken promptly. I do not agree. In
any case, that the delay
in this matter from the time of some (not
all) of the incidents was at most about eight months. The applicants
do not address the
fact that some of the acts of misconduct were
continuous and not a single event. For instance, the employee was
charged with not
visiting the school for the whole of 2006.
[33]
The Commissioner records that the employee
complained that the delay and the manner in which the sanction was
worded (the employee
was given the option of accepting demotion as an
alternative to dismissal) denied him the right to appeal. The
Commissioner correctly
points out the fallacy of this argument by
finding that the employee had indeed appealed and that the option of
accepting demotion
as an alternative to dismissal was for the benefit
of the employee.
[34]
The Commissioner could not be faulted for
his conclusion that the delay was not excessive. This is definitely a
conclusion that
a reasonable decision-maker could make.
Failure
to take cognisance of section 17 and 18 of the EEA
[35]
The applicants argue that the Commissioner
did not consider the EEA even though one brief mention was made of
this act in the arbitration
proceedings. More particularly, they
argue that section 18(5) of the EEA describes acts of misconduct for
which an employee may
be dismissed. However, the employee was not
found guilty of any of those acts or acts resembling any of those
acts, dismissal was
inappropriate.
[36]
This ground of review must be dismissed for
at least two reasons: first, an award cannot be reviewable simply
because an arbitrator
fails to address a brief reference to a section
of legislation. The applicants would have to show that the failure to
address the
reference was irregular or led the arbitrator to make
conclusions that were unreasonable. Second, the relevant section of
the EEA
does not assist the employee. Section 18(3) of the same act
sets out a list of possible sanctions that could be applied to
employees
who commit misconduct. It states, inter alia, that the
employer may impose a sanction of “dismissal, if the nature or
extent
of the misconduct warrants dismissal”.
[37]
The Commissioner clearly was of the view
that the nature and extent of the misconduct clearly warranted
dismissal. I agree with
his view and cannot fault his conclusion as
one that a reasonable decision-maker could not make.
Conclusion
[38]
An
arbitration award stands to be set aside only if the award is
unsupported by any evidence, is based on speculation, is disconnected
from the evidence or is made without appropriate consideration of
evidence that may be considered unreasonable.
[5]
[39]
This
Court is entitled to set aside an arbitration award if the
commissioner’s decision falls outside a band of decisions
to
which a reasonable person could make on the available evidence.
[6]
It is not the correctness of the commissioner’s decision that
is relevant but whether the result of the arbitration proceedings
is
reasonable.
[40]
The
LAC in
Fidelity
Cash Management Services v Commission for Conciliation, Mediation and
Arbitration and Others
[7]
very
aptly set out the test for review when it said that
‘…
It seems
to me that even if there may have been a debate under … on
whether a commissioner’s decision for which he
or she has given
bad reasons could be said to be justifiable if there were other
reasons based on the record before him or her
which he or she did not
articulate but which could sustain the decision which he or she made,
there can be no doubt now under
Sidumo
that the reasonableness
or otherwise of a commissioner’s decision does not depend- at
least not 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 a 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. This would clearly be the
case where the
commissioner gives reasons A, B and C in his or her
award but, when one looks at the evidence and other material that was
legitimately
before him or her, one finds that there were reasons D,
E and F upon which he did not rely but could have relied which are
enough
to sustain the decision’.’”
[41]
In the circumstances,
I find that the
conclusion reached
by the Commissioner was justifiable in relation to the evidence
before him and that the arbitration award falls
within the band of
decisions which a reasonable decision-maker could make on the
available evidence. The application to review
and set aside the
arbitration award, accordingly, fails.
Order
[42]
Accordingly, I make the following order:
1.
The application to review and set aside the
arbitration award made by the second respondent under the auspices of
the first respondent
under case number PSES 426 – 07/08 NW
dated 30 July 2010 is dismissed.
2.
There is no order as to costs.
_______________________
Haffegee AJ
Acting Judge of the
Labour Court of South Africa.
APPEARANCES
For the
Applicant:
Advocate F van
der Merwe
Instructed
by: Bouwers
Inc. Attorneys
For the Third
Respondent: Advocate M Hitge
Instructed
by: State
Attorney
[1]
[2010] 1 BLLR 1 (SCA)
[2]
(1999)
20 ILJ 2531 (LAC) at para 36.
[3]
(1992)
13 ILJ 1563 (IC)
[4]
Ibid
at
1568A and 1569A
[5]
See
A Myburgh ‘
Sidumo
v Rusplats
:
How Have The Courts Dealt With It? (2009) 30 ILJ 1
.
[6]
S
ee
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others)
[2007] 12 BLLR 1097
(CC)
.
[7]
[2008] 3 BLLR 197
(LAC)