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[2015] ZALCJHB 30
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Mogale City Local Municipality v South African Local Government Bargaining Council and Others (JR 2500/10) [2015] ZALCJHB 30 (10 February 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
Judgment
Case No: JR
2500/10
DATE: 10 FEBRUARY
2015
Not Reportable
In the matter
between:
MOGALE CITY LOCAL
MUNICIPALITY
..............................................
Applicant
And
SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING
COUNCIL
............................................................
First
Respondent
COMMISSIONER
MATLALA N.O
.........................................
Second
Respondent
UASA obo S.
MOKGATLA
..........................................................
Third
Respondent
Decided : In
Chambers
Judgment: 10
February 2015
Summary :
Application for leave to appeal. There are no reasonable prospects of
success on appeal. Application is dismissed with
no order as to
costs.
Judgment-
APPLICATION FOR
LEAVE TO APPEAL
AC BASSON, J
[1]
The applicant in this matter is the Mogale
City Local Municipality (“the applicant”). The
third respondent (Ms
Mokgatla) was represented in the review
proceedings by UASA. I will refer to Ms Mokgatla as “the
respondent”. The
respondent was a Deputy Director:
Department of Social Services of the Municipality.
[2]
The applicant in this matter was dismissed
following a disciplinary hearing. She was charged with three acts of
misconduct. Charge
one consisted of 6 allegations of various
acts of misconduct. I will return to these herein below.
Charge 2 consisting
of charges 2.1 – 2.4 did not form
part of the review proceedings and the Court was not required to make
any findings in respect
of these charges. Charge 3 consisting
of charges 3.1 and 3.2 dealt with abuse of sick leave.
[3]
In essence the respondent was found guilty
of insubordination, failing to follow instructions, dishonesty and
abuse of sick leave.
The arbitrator held that the dismissal of
the applicant was substantively unfair but procedurally fair. The
arbitrator
ordered the reinstatement of the respondent. The complete
record of the disciplinary hearing was placed before the arbitrator
in
an attempt to curtail the proceedings. Comprehensive Heads of
Argument were also submitted to the arbitrator.
[4]
The grounds for review are set out in the
founding affidavit. In essence the applicant submitted that no
reasonable commissioner
“would have come to the conclusion that
the dismissal was substantively unfair and that no grounds upon which
to dismiss
the 3
rd
Respondent existed.”
[5]
I am in agreement with the applicant that
it is clear from the award that the arbitrator was somewhat confused
about his role as
an arbitrator and that the award is convoluted and
difficult to read. I am, however, mindful of the duty of the review
court and
that it is ultimately the task of the review court to
consider whether, notwithstanding some irregularities in the award,
the conclusion
reached was reasonable. It is certainly not the
task of the review court to nit-pick on certain words used in the
award.
In essence also what the applicant submitted was that
the arbitrator ignored “extreme inconsistencies” in the
evidence of the respondent and that the arbitrator ignored “objective
documentary evidence [that] clearly and undeniably
indicated the
dishonesty” in the version of the respondent. It was also
submitted that the conclusion reached by the
arbitrator was “fatally
flawed”.
[6]
In argument the Court was referred to the
specific instances in the record where the arbitrator failed to apply
his mind to the
evidence, failed to consider oral and documentary
evidence before him, committed gross misconduct, failed to make
credibility findings
and findings on probabilities in instances where
he was confronted with two mutually destructive versions.
[7]
The matter was fully argued and debated in
Court on 11 September 2014. At the close of the proceedings this
Court upheld the review
with no order as to costs. In respect of the
different charges the finding of this Court was as follows:
(i)
The finding in respect of charge 1.1 is
reviewable and was set aside. This charge related in essence to the
disrespectful and insubordinate
manner in which the respondent acted
towards her Executive Manager: Social Services – Mrs Mathebula
(hereinafter referred
to as “Mathebula”.)
(ii)
The finding in respect of charge 1.2 is not
reviewable.
(iii)
The finding in respect of charge 1.3 is
reviewable and was set aside. This charge related to the fact that
the respondent did not
submit properly polulated performance
agreements for a certain period of years.
(iv)
The finding in respect of charge 1.4 is
reviewable and was set aside. This charge related to the failure by
the respondent to establish
the Mogale City Sport Council despite
direct lawful instructions to do so.
(v)
The finding in respect of charge 1.5 is not
reviewable.
(vi)
The arbitrator made no findings in respect
of charge 1.6
(vii)
In respect of charges 3.1 and 3.2 which
related to the abuse of sick leave the representative on behalf of
the respondent conceded
in argument that these two charges are
reviewable.
[8]
This Court therefore reviewed and set aside
the arbitration award on the basis,
inter
alia
, that the respondent’s
conduct in respect of the letters that she wrote to Mathebula were
without provocation and were not
only insolent but also
disrespectful. The award was also reviewed and set aside on the
basis of the concession made on behalf
of the respondent that the
findings in respect of charges 3.1 and 3.2 are reviewable.
[9]
Charges 2.1 – 2.4 did not form part
of these review proceedings. Before I turn to the reasons for my
findings in respect of
why charges 1.1, 1.3 and 1.4 are reviewable, I
need to briefly refer to the charges 3.1 and 3.2. I have already
indicated that
the representative conceded that the findings in
respect of these two charges are reviewable. These two charges
read as follows:
“
Charge
3.1
That
you are guilty of misconduct by contravening paragraphs 2(d) and/or
2(b) of Schedule 2 of the Code of Conduct, by failing to
act in the
best interest of the Municipality and in such a way that the
credibility and integrity of the Municipality is not compromised
and
by failing to perform the functions of office in good faith,
diligently, honestly and in a transparent manner;
Read
with paragraph 1,2,3 and 1,2,5 of the Disciplinary procedure by
failing to perform her tasks and job responsibilities diligently,
carefully and to the best of her ability and by failing to conduct
herself with honesty and integrity;
In
that the Employee abused her sick leave by absenting herself from
work without the permission of Mrs Mathebula on various occasions
but
at least on 23 February 2007, 2 April 2007, 3 May 2007, 14 May 2007,
23 May 2007, 28 May 2007, 26 June 2007 and 27 June 2007.
Charge
3.2
That
you are guilty of misconduct by contravening paragraphs 2(d) and/or
2(b) of Schedule 2 of the Code of Conduct, by failing to
act in the
best interest of the Municipality and in such a way that the
credibility and integrity of the Municipality is not compromised
and
by failing to perform the functions of office in good faith,
diligently, honestly and in a transparent manner;
Read
with paragraph 1,2,3 and 1,2,5 of the Disciplinary procedure by
failing to perform her tasks and job responsibilities diligently,
carefully and to the best of her ability and by failing to perform
the functions of office in good faith, diligently, with
honestly and in a transparent manner;
In
that the Employee abused her sick leave by absenting herself from
work without the permission of Mrs Mathebula during or about
October
2007 by making false representations that she was ill and reported to
be unable to work but attended a funeral.”
[10]
Although it was conceded on behalf of the
respondent that the findings of the arbitrator are reviewable in
respect of these charges,
it must also be pointed out that these
charges are serious especially if regard is had to the evidence that
was led at the arbitration
hearing. Consequently I am of the view
that these charges – read on their own – justified a
dismissal. In light of
the concession that the finding in respect of
these two charges is reviewable I will not proceed to give a detailed
exposition
of the facts that led to the institution and guilty
finding on these two charges.
The
test for review
[11]
The
test for review is now well established and does not need
elaboration. Suffice to point out what the Constitutional Court held
in:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
“
To
summarise,
Carephone
held that section 145 of the LRA was
suffused by the then constitutional standard that the outcome of an
administrative decision
should be justifiable in relation to the
reasons given for it. The better approach is that section 145 is now
suffused by the constitutional
standard of reasonableness. That
standard is the one explained in
Bato Star
: Is the decision
reached by the commissioner one that a reasonable decision-maker
could not reach? Applying it will give effect
not only to the
constitutional right to fair labour practices, but also to the right
to administrative action which is lawful,
reasonable and procedurally
fair.”
[12]
In
a recent Labour Appeal Court decision decided post
Sidumo
and post
Herold
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
[2]
the
Court held as follows:
“
[16]
In short: A reviewing court must ascertain whether the
arbitrator considered the principal issue before him/her;
evaluated
the facts presented at the hearing and came to a conclusion
that is reasonable.
[18] In a review
conducted under s 145(2)
(a)
(ii) of the LRA, the reviewing
court is not required to take into account every factor individually,
consider how the arbitrator
treated and dealt with each of those
factors and then determine whether a failure by the arbitrator to
deal with one or some
of the factors amounts to process related
irregularity sufficient to set aside the award. 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.
[19] To do it
differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in
s 138 of
the LRA which requires the arbitrator to deal with the substantial
merits of the dispute between the parties with
the minimum of legal
formalities and do so expeditiously and fairly. This is also
confirmed in the decision of
CUSA v Tao Ying Metal Industries
.
[20] An application
of the piecemeal approach would mean that an award is open to be set
aside where an arbitrator (i) fails to
mention a material fact
in his or her award; or (ii) fails to deal in his/her award in some
way with an issue which has some
material bearing on the issue in
dispute; and/or (iii) commits an error in respect of the evaluation
or consideration of facts
presented at the arbitration. The questions
to ask are these: (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 employ 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? (v) Is the
arbitrator's
decision one that another decision maker could
reasonably have arrived at based on the evidence?
[21]
Where the 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 (see
Minister
of Health & another NO v New Clicks SA (Pty) Ltd & others
2006 (2) SA 311
(CC)).
But
again, this is considered on the totality of the evidence not on
a fragmented, piecemeal analysis. As soon as it is done
in a
piecemeal fashion, the evaluation of the decision arrived at by the
arbitrator assumes the form of an appeal. A fragmented
analysis
rather than a broad based evaluation of the totality of the evidence
defeats review as a process.
[3]
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. “”
[4]
[13]
Mrs Mathebula was the main witness on
behalf of the applicant and gave extensive evidence about more or
less every aspect of the
different charges levelled against the
respondent. Her evidence is particularly important in respect of
charges 1.1; 1.3, 1.4 as
well as charges 3.1 and 3.2. In light
of the concession on behalf of the respondent I only intend to deal
with those charges
contained in1.1; 1.3 and 1.4.
Charge
1.1
[14]
The allegations contained in charge 1 deals
with a failure on the part of the respondent to perform the functions
of her office
in good faith, diligently, honestly and in a
transparent manner.
Inter alia
it is alleged that the respondent acted in an insubordinate manner on
various occasions in that she had over an extended period
of time
through various written remarks and comments as well as various
verbal comments acted disrespectfully towards Mathebula
(charge 1.1).
[15]
Despite overwhelming evidence to
substantiate this charge the arbitrator came to the simply startling
conclusion that he could not
find specific instances of
insubordination. It is, in my view, patently clear from a reading of
the letters sent to Mathebula that
not only was the respondent
aggressive and sarcastic towards Mathebula but that her conduct
bordered on being abusive towards Mathebula.
I am therefore of the
view that the evidence in respect of charge 1.1 is simply
overwhelming. The respondent goes as far
as to accuse Mathebula
of suffering from “selective amnesia” and accuses
Mathebula of being “very silly”.
See in this regard the
following extracts from a few letters written to Mathebula. The
contents of these letters speak for themselves:
In
a letter dated 30 November 2004, the respondent,
inter alia
,
wrote the following:
“
RE:
UNCERTAINTY ABOUT ACTING AND OTHER ISSUES AT THE LIBRARY.
After
much consideration about the meeting scheduled for the 23/06/05 I
have come to a conclusion that I will not participate in
these type
of meetings for the following reasons:
i.
It is apparent from how you handle these
matters that you have no regard or no knowledge of the grievance
procedure, which this
organization clearly subscribes to.
ii.
I have also become tired of presenting
myself in front of what I perceive to be a Kangaroo court where the
outcomes of these meetings
have no value to me.
iii.
It is my view that you are also part of the
bigger problem and therefore cannot play any constructive and
objective role in resolving
the alleged problems.
…
..
In
conclusion I am not going to respond to any allegations of a
grievances set before me including Ms. Wheeler’s grievance.
I therefore call upon you to charge me with any misconduct if you
deem it fit and I will defend my actions in a proper forum. “
In
a letter dated 30 November 2004 the following was written:
“
RE:
LEAVE FORMS AND ATTENDANCE REGISTER
Your
minute dated 30/11/04 (12:05) has reference.
I
am going to respond to your minute issues but let me start by saying
that I really find your approach to issues, petty, reactionary
and
irritating and above all nothing stops you from talking to me.
Secondly
I think you have selective amnesia by that I mean you forget how
often behave as a result one avoids to you in that I do.
If you
read your letters you will see that I have indicated that I have
problems with the way you Communicate (loosing temper etc).
…
.
LEAVE
FORMS
How
do you know which days I was at work because I do not report to your
office?
Shirley
you have copies of my medical certificates what more do you want from
me.
(I
can not provide you with all of them at the moment unfortunately you
would have to wait). Is this council policy
by the way?
If so please furnish me with the copy.
ATTENDANCE
OF MEETING
I
attend meetings when its possible, are you not content with the fact
that if I am unable to attend I send someone. Why is
it a
problem because I do send somebody. I do not need you to remind me
what time council starts and I find this comment very silly
and a
personal attack to my intelligence. I will send apologies
through whoever I choose, given my working conditions whether
you
accept them or not is your problem. To remind you, you started
talking to me through my junior staff in March.
I find it
interesting that it bothers now when it happens to you. I find
your comment about the 11
th
November 2004 extremely irrelevant to the issues on this letter the
purpose puzzles me it would seem as if you are trying to defend
yourself against something or making a point. “
In
a letter of 18 May 2005 the following is written:
“
RE:
MEETINGS AND COMMUNICATION PROBLEMS
I
would like to raise a concern at the manner meetings are communicated
may I emphasise that I am raising this issue for the second
time.
Firstly, I object to being sent a message with an sms on Saturday to
let me know that I have to attend a meeting on
Monday and whatever
documentation will be made available to me on Monday morning.
This creates problems as one goes to meetings
less prepared.
Please
note that we need to be reasonable in how we communicate engagements
even the manner we choose remains important. In
this case I
would recommend that we use official ways of communicating. (I
do not believe an sms is one of them) Secondly
please note that
reasonably we all have diaries that we operate from and communicating
dates within reasonable times will assist
all of us in carrying out
our duties diligently.
I
do note however that some situations may be out of your control but
the decency to call and explain is a minimum that one will
expect.
Talking via your secretary also creates many problems I do not know
why we have this arrangement and this often clouds
issues as she
often behaves as a Director. I believe this needs to be
corrected. “
[16]
The arbitrator’s finding in this
regard is unreasonable and completely unconnected with the
documentary and oral evidence
presented at the arbitration hearing. I
am also, in light of these letters and in light of the evidence of
Mathebula regarding
these letters, of the view that they on their own
constitute a ground for dismissal.
Charge 1.3
[17]
It is clear from the documentary evidence
that the respondent had failed to properly populate her performance
agreements and that
she in fact refused to submit the performance
agreements. She failed to comply with a lawful instruction to
submit properly
populated performance agreements for various years
(charge 1.3).
Charge 1.4
[18]
In respect of charge 1.4 I am persuaded
that the arbitrator’s findings in respect of this charge are
unreasonable. The
documentary evidence before the arbitration
clearly established that the respondent had failed to establish the
Mogale City Support
Sport Council despite direct and lawful
instructions to do so (1.4). The arbitrator held that the
respondent was not
responsible for the establishment of the Sport
Council because an independent company Pro-Active Management was
appointed by the
Provincial Department of Sport to establish the
Sport Council. It is from the documentary evidence, clear that
this was not
the case. Pro-Active Management was merely
established to assist the Municipalities to establish the Sport
Council.
It was the instruction to the respondent to facilitate
the process.
Leave to appeal
[19]
The respondent has applied for leave to
appeal. I will continue to refer to the parties in their respective
capacities before the
review court.
[20]
I have perused the grounds for leave to
appeal as set out in the notice of application for leave to appeal.
In respect of appeal
ground 1.1, I find that there is no merit in
this ground. No evidence of what led to the breakdown in the
relationship between
the respondent and Mathebula was raised during
the arbitration hearings. What is important in the review was whether
the arbitrator
arrived on the totality of the evidence to a
reasonable conclusion. I have already pointed out in what
respects I am of the
view that the arbitration award was in respect
of many of the findings unreasonable. The appeal ground raised
as appeal ground
2 is nonsensical. It is patently clear that
the respondent did not properly populate her performance agreement.
In respect
of appeal grounds 3, 4, 5, 6, 7 and 8 I find that they
lack merit.
[21]
It
is trite that an applicant in an application for leave to appeal
must, i
n
order to be entitled to leave to appeal, demonstrate to this Court
that there is a “
reasonable
prospect that another court could come to a different
conclusion
”.
[5]
I have considered the respondent’s grounds as set out in its
application for leave to appeal and I am satisfied that
there are no
prospects of success on appeal. A mere attack on the judgment and the
reasoning of the
court
a quo
’s
decision also is no justification for an entitlement to leave to
appeal.
Order
[22]
In the premises, the following order is
made:
22.1
The application for leave to appeal is dismissed.
22.2
There is no order as to costs.
AC
Basson
Judge
of the Labour Court of South Africa
[1]
(2007)
12 BLLR 1097
(CC) at par [110]:
[2]
(2014)
35
ILJ
943 (LAC).
[3]
My
emphasis.
[4]
Footnotes
omitted.
[5]
See
Woolworths
Ltd v Matthews
[1999] 3 BLLR 288
(LC).