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[2014] ZALCPE 10
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Gwadana v South African Local Government Bargaining Council and Others (P561/11) [2014] ZALCPE 10 (6 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
PORT
ELIZABETH.
JUDGMENT
NOT
REPORTABLE
CASE
NO: P561/11
In
the matter between:
MZWANDILE
TEMPLETON
GWADANA Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL First
Respondent
COMMISSIONER N
GQAMANA Second
Respondent
KOUGA
MUNICIPALITY Third
Respondent
Heard:
21 May 2013
Delivered:
6 June 2014
Summary:
An employee may be dismissed owing to his or her incapacity to
perform contractual obligations
owing to incarceration if it is fair
to do so.
Review in terms of
section 145 of the LRA - Dismissal for misconduct.
JUDGMENT
LALLIE
J
Introduction
[1]
This application was brought in terms of section 145 of the Labour
Relations Act 66 of 1995 (The LRA) to review and set aside
an
arbitration award of the second respondent (the arbitrator). It
is opposed by the third respondent.
Factual
background
[2]
The facts of this matter are largely common cause. They are that the
third respondent employed the applicant as an Area Engineer
in
Humansdorp. On 12 December 2010, the applicant was arrested for
drunken driving. His bail application was unsuccessful and he
was
remanded in custody until 2 March 2011. He informed the third
respondent of his incarceration through his attorney. On 8 February
2011, the third respondent addressed a letter to the applicant making
enquiries about his inability to perform his contractual
duties. He
was asked to give the third respondent certain information including
reasons for his inability to render his services,
the extent of his
incapacity, whether it was permanent or temporary and to provide
alternatives to dismissal owing to incapacity.
He informed the third
respondent that he was incarcerated, awaiting trial and that he would
appear in court in 1 March 2011. He
was released on 2 March 2011 but
re-arrested soon thereafter and his bail was estreated.
[3]
On 29 March 2011, the applicant addressed a letter to the third
respondent through his attorneys confirming that he was still
in
custody and pleading with the third respondent not to dismiss him.
The third respondent dismissed the applicant on 4 April 2011
for his
inability to fulfil his contractual obligations. Aggrieved by the
dismissal, the applicant referred an unfair dismissal
dispute to the
first respondent where the arbitrator found his dismissal
substantively and procedurally fair in the award which
is under
review.
The
award
[4]
Giving reasons for his decision, the arbitrator relied on
National
Union of Mine Workers and Another v Samancor Ltd (Tubatse
Ferrochrome) and Others
[1]
where it was held that an employee may be dismissed for incapacity
when he/she is no longer capable of performing his/her terms
of the
contract of employment owing to imprisonment if it is fair in the
circumstances for the employer to exercise that election.
[5]
Further evidence that the arbitrator took into consideration was that
the applicant’s inability to perform his contractual
duties was
beyond his control. He held a key position at the third respondent
and his incarceration occurred during the festive
season. He was
afforded an opportunity to give reasons for his services not to be
terminated. At the time of the termination of
his services, the
extent of his inability to render his services was not clear. The
arbitrator found the applicant’s dismissal
substantially and
procedurally fair.
Grounds
for review
[6]
The applicant submitted that the award stands to be reviewed on the
grounds that the arbitrator committed a gross irregularity
in that he
failed to apply his mind and establish, based on all the evidence
before him, whether the third respondent had complied
with provisions
of item 10 of schedule 8 to the LRA. He failed to attach weight to
material aspects of the evidence which included
the third
respondent’s failure to take active steps to investigate
whether the incapacity was permanent or temporary in nature.
The
arbitrator failed to consider whether all possible alternatives short
of dismissal which included the third respondent continuing
spreading
the applicant’s duties among his colleagues and securing a
temporary replacement for the applicant. The applicant
attacked the
arbitrator for not taking into account his drinking problem and that
his son’s death traumatised him.
[7]
Another basis of the attack on the award is the arbitrator’s
failure to consider item 11 of schedule 8 and consider whether
the
applicant’s duties could be adapted and the availability of
suitable work. He failed to deal with the appropriateness
of the
relief. The applicant submitted that the arbitrator committed a gross
irregularity by failing to assess the evidence which
served before
him in terms of item 10 to 11 of schedule 8 to the LRA and chose to
rely on irrelevant evidence of the letter written
by the third
respondent to the applicant enquiring about the extent of his
incapacity, that the applicant occupied a key position
and that the
incarceration occurred during the summer festive season, that the
applicant was afforded an opportunity to provide
reasons why his
services should not be terminated and assuming that the applicant
could not be requisitioned from prison for purposes
of attending a
disciplinary enquiry. Another manifestation of the unreasonableness
of the award, according to the applicant, is
that at the time of the
applicant’s dismissal, the extent of his inability to render
his services was unclear. Failure to
play an inquisitorial role forms
part of the grounds. Part of the evidence that the arbitrator failed
to consider was that the
applicant’s position was vacant at the
time of the arbitration and filled only thereafter. The arbitrator
failed to consider
the hardship of the dismissal on the applicant and
his plea not to be dismissed.
The
law of review
[8]
The test for review as enunciated in
Sidumo
and Others v Rustenburg Platinum Mines Ltd and Others
[2]
is whether the decision reached by the commissioner is one that a
reasonable decision-maker could not reach. The correct approach
in
assessing whether an award is reasonable is stated as follows in
Gold
Fields Mining SA (Pty) Ltd
(Kloof
Gold Mine)
v CCMA and Others.
[3]
‘…
.
This piecemeal approach of dealing with the arbitrator’s award
is improper as the reviewing court must necessarily consider
the
totality of the evidence and then decide whether the decision made by
the arbitrator is one that a reasonable decision-maker
could make.’
[9]
The applicant adopted a shot gun approach. He identified everything
that he thought the arbitrator did incorrectly and sought
to rely on
it as his grounds for review. He sought to rely even on contradictory
grounds. By way of example, he attacked the arbitrator’s
finding that the applicant would not have been released from prison
to attend a disciplinary enquiry but later conceded that it
was
perhaps impossible to convene a formal hearing and requisition the
applicant.
[10]
In assessing whether the applicant has proved valid grounds for the
award to be reviewed and set aside the evidence which served
before
the arbitrator needs to be considered in its totality. The arbitrator
identified the main dispute before him correctly as
the fairness of
the applicant’s dismissal for incapacity in that he could not
perform his contractual duties owing to incarceration.
The applicant
argued that the arbitrator ignored material evidence and the duties
of the employer summed up in items 10 and 11
of schedule 8 to the
LRA. A reading of the LRA reveals that items 10 and 11 of schedule 8
deal with incapacity caused by ill-health
and dismissal arising from
ill-health or injury respectively. As the applicant’s dismissal
had nothing to do with ill-health
or injury, the arbitrator cannot be
faulted for not taking the provisions of items 10 and 11 of schedule
8 into account in reaching
his decision.
[11]
The applicant argued that the arbitrator erred in concluding that his
position was critical as it was frozen for financial
constraints. He
further criticised the arbitrator for not considering that Botha was
performing the applicant’s duties during
his incarceration
without extra costs to the third respondent. He further argued that
the arbitrator failed to ask why his position
could not be protected.
He failed to apply his mind by unreasonably relying on the
Samancor
decision while ignoring material evidence and reached an
unreasonable decision.
[12]
The third respondent defended the award on the grounds that it was
reasonable. It was argued, on its behalf, that the applicant
sought
to rely on evidence not before the arbitrator and attempted to apply
the incorrect test. A number of arguments were presented
to support
the conclusion that there were no grounds for interfering with the
arbitrator’s decision.
[13]
Having identified the main dispute, the commissioner analysed the
evidence before him. The totality of the evidence led at
the
arbitration reveals that the ruling that the applicant’s
position and the timing of his incarceration were critical is
based
on the evidence that Humansdop and St Francis Bay had a flood of
tourists and people who have holiday homes in those areas,
as it was
the festive season. The arbitrator considered that the applicant was
afforded an opportunity to be heard before the decision
to dismiss
him was taken. He was arrested on 12 December 2010 and dismissed
three months later after he was afforded an opportunity
to give
reasons why he should not be dismissed. At the time of his dismissal,
the applicant could not tell the third respondent
the date on which
he would be returning to work. The arbitrator cannot be faulted for
relying on
Samancor
(
supra
) because his decision that
the applicant was unable to perform his duties in terms of his
contract of employment and that the third
respondent acted fairly by
dismissing him is not unreasonable. The enquiry the third respondent
conducted, of asking the applicant
about his absence was adequate as
he was the one who had the relevant information which could assist
the third respondent decide
his future employment with it.
[14]
With regard to the mistakes that the arbitrator made and his omission
to attach weight to some evidence tendered, the legal
position is
clear. It is expressed as follows in
Herholdt
v Nedbank Ltd (
Congress
of South African Trade Unions as Amicus Curiae)
.
[4]
‘
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’.
[15]
The applicant failed to prove how the arbitrator’s errors led
him to reach an unreasonable decision. The arbitrator dealt
with the
evidence before him and reached a reasonable decision. When an award
falls within bounds of reasonableness, there is no
justification of
reviewing and setting it aside. Enunciating the application of the
test for review, the Constitutional Court held
as follows in
Sidumo
(
supra
):
‘
To my mind,
having regard to the reasoning of the commissioner, based on the
material before him, it cannot be said that his conclusion
was one
that a reasonable decision-maker could not reach. This is one of
those cases where the decision-makers acting reasonably
may reach
different conclusions. The LRA has given that decision-making power
to a commissioner’.
[5]
[16]
The argument that another decision maker acting reasonably could have
reached a different decision does not constitute grounds
for review.
For these reasons, the application cannot succeed. I am not convinced
that considerations of fairness justify the grant
of a costs order.
[17]
In the premises, the following order is made:
16.1
The application is dismissed.
___________
Lallie J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Mrs
Van Staden of the Justice Centre
For
the Third Respondent: Advocate Grobler
Instructed
by: Van
der Walt Attorney
[1]
[2011] 11 BLLR 1041 (SCA).
[2]
2008 (2) SA 24 (CC).
[3]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 18.
[4]
[2003] 11 BLLR 1074
(SCA) at para 25.
[5]
Sidumo
(
supra
)
at para 119.