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[2014] ZALCCT 50
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Department of Health (Western Cape) v Denosa obo Lebaea and Others (C722/2011) [2014] ZALCCT 50 (30 July 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
(
HELD
IN CAPE TOWN
)
CASE
NUMBER
: C722/2011
DATE
:
30 JULY 2014
In
the matter between:
THE
DEPARTMENT OF HEALTH
Applicant
(WESTERN
CAPE)
and
DENOSA
obo P R LEBAEA
First
Respondent
PHSDBC
Second Respondent
THUTHUZELA
NDZOMBANE
N.O.
Third Respondent
J
U D G M E N T
STEENKAMP,
J
:
This
is an application to have the award of the third respondent,
Commissioner Ndzombane, reviewed and set aside. It flows
from
the dismissal of the first respondent, nurse Lebaea, who is
represented by her trade union, Denosa. She was dismissed
after
having been charged with misconduct arising from two incidents that
allegedly arose on the same day. The first is that
she
threatened a colleague, Ms Blignault, by uttering the words “
ek
sal jou wind uitskop
”. The
second is that later that day she attempted to stab Blignault with a
pen.
The
arbitrator found, and indeed Ms Lebaea conceded, that she did utter
the words “
ek sal jou wind
uitskop
”. In this regard
the arbitrator was of the view that a fair sanction would have been a
final written warning.
On the second incident, to which I shall
refer as the pen incident, the arbitrator found that the Department’s
witnesses
had contradicted each other and he then found that,
although he accepted that Lebaea was aggressive and angry at the
time, the
mere fact that she pointed a pen at Blignault could not be
construed as an attempt at assault.
The
Department takes issue with both these findings as well as the
sanction of retrospective reinstatement. I should add that
the
Commissioner did not quantify the back pay due to the employee, and
the Department initially took issue with that failure as
well.
Ms
Harvey
did not press that ground of review and I think wisely so. The
order is quite simple, that is that the employee should be
reinstated
retrospectively. Although it is always preferably to quantify
any amounts due for the sake of clarity, in this
case the Department
knew exactly what she earned and it should have no problem in
calculating the amount due.
The
review falls squarely within the test set out in
Sidumo
[1]
,
i.e. whether the conclusion reached by the Arbitrator is one that a
reasonable arbitrator could not reach. Although much
of the
Department’s argument was based on credibility findings made by
the Arbitrator and his failure to consider the discrepancies
between
Mvunyiswa’s original statement and her testimony at the
arbitration, that is no longer the test, as Mr
Leslie
pointed out. The one other issue is that the record of the
hearing before the Arbitrator is not complete, but nevertheless
the
Department elected to proceed with the review application on the
documents that were before the Arbitrator.
Mr
Leslie
also
referred to the matter of
Nathaniel v
Northern Cleaners Kya Sands (Pty) Limited and Others
(2004) 25
ILJ
1286
(LC) where Gamble AJ, as he then was, said the following:
“
The
applicant in a review has an onus to prove his or her case and must
do so on all the evidential material properly placed the
Court.
If, after consideration of all of that material (defective as it may
be), the Court is unable to find a reviewable
irregularity, then the
applicant will obviously fail. A defective record in such
circumstances is but one of the vagaries
which accompany the
litigation process.”
A
similar attitude was taken by the Courts in
Brodie
(2013) 34
ILJ
608 (LC), paragraph 6 and in
Doornpunt
(2008) 29
ILJ
1874
(LC).
It
remains then for this Court to consider whether the conclusion
reached by the Arbitrator was so unreasonable that no other
arbitrator
could have reached that conclusion. In coming to the
conclusion that it did, despite the fact that it transpired to be
common
cause that Lebaea had uttered the words “
ek
sal jou wind uitskop
”, he found,
as I have said, that the sanction of dismissal was too harsh.
In
coming to that conclusion, he took into account the circumstances in
which the two incidents took place, namely that it appeared
that
Lebaea had been provoked by Blignault. He took into account the
degree of force or absence thereof used and the relationship
between
Blignault and Lebaea, especially Blignault’s evidence that she
would have no problem in continuing to work with Lebaea.
He
also took into account Lebaea’s clean disciplinary record and
her long service with the Department.
It
is important to note that it appears from the material that is before
this Court that when Lebaea uttered the words that she
did,
inappropriate as they were, Blignault thought it was funny and she
laughed about it. That does not constitute a serious
threat.
More importantly, Blignault stated that she did not want Lebaea to be
dismissed and that she could continue working
with her. In fact
Blignault did continue working with Lebaea for the rest of that day.
With
regard to the pen pointing incident, the one neutral bystander,
Mvunyiswa, said in her oral evidence in the arbitration, which
is a
hearing
de novo
,
that Lebaea was not a danger to any person on that day; that, in her
view, Lebaea was not intent on stabbing Blignault; and that
Lebaea
could easily have gone past her, that is Mvunyiswa, if she really
wanted to carry out such a threat. Mvunyiswa also testified
that the
trust relationship with Lebaea was not broken.
In
all those circumstances the conclusion reached by the arbitrator is
not so unreasonable that no other arbitrator could have come
to the
same conclusion. It falls within a band of reasonable
outcomes. The review application must therefore fail.
Both parties asked for costs to follow the result. I shall not
interfere with that request.
THE
APPLICATION FOR REVIEW IS DISMISSED WITH COSTS
.
___________________________
STEENKAMP,
J
APPEARANCES
APPLICANT:
Suzanna Harvey
Instructed
by
the State Attorney.
FIRST
RESPONDENT: Graham Leslie
Instructed
by
Chennels Albertyn.
[1]
Sidumo
v Rustenburg Platinmum Mines Ltd
(2007)
28
ILJ
2405
(CC).