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[2015] ZALCJHB 63
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Riba v Negota and Others (JR 1071/11) [2015] ZALCJHB 63 (27 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
No: JR 1071/11
DATE:
27 FEBRUARY 2015
Not
Reportable
In
the matter between:
SEENATSO
RIBA
.....................................................................................................................
Applicant
And
COMMISSIONER
SAMUEL KHAKHATI
NEGOTA
.............................................
First
Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
SOUTH
AFRICAN SOCIAL SECURITY AGENCY
(SASSA)
.......................................................................................................................
Third
Respondent
Heard:
13 August 2014
Delivered:
27 February 2015
Summary:
The commissioner’s decision that the applicant’s
dismissal was substantively and procedurally fair is not rendered
unreasonable by the commissioner’s errors which have no effect
on the reasonableness of the award.
JUDGMENT
LALLIE
J
Introduction
[1]
In this application the applicant seeks an order reviewing and
setting aside an arbitration award of the first respondent (“the
Commissioner”). The applicant was employed by the third
respondent as a Senior Manager for the Sekhukhune District at
Polokwane
in Limpopo. Subsequent to allegations of misconduct, the
third respondent instituted a disciplinary enquiry against the
applicant.
He was found guilty of 29 charges of breach of policy,
gross dereliction of duty and misrepresentation and dismissed. He
referred
an unfair dismissal dispute to the second respondent (“the
CCMA”), where the Commissioner had to determine the fairness
of
his dismissal for category one and two charges which stemmed from two
interviews which took place at the third respondent’s
Polokwane
office in Limpopo. The Commissioner found his dismissal both
substantively and procedurally fair. It is the Commissioner’s
decision that forms the subject matter of this application.
The award
[2]
The facts of the matter before the Commissioner were that the
applicant was appointed by the third respondent as a Senior Manager
for the Sekhukhune District. His duties included recruitment. He
therefore, was a member of panels which interviewed candidates
for
positions which needed to be filled. Sometimes he was the chairperson
of those panels. He was made aware of the third respondent’s
recruitment, selection and appointment policy (“the policy”)
whose main purpose was to ensure uniform governance. The
misconduct
which led to the applicant’s dismissal was mainly that contrary
to the policy, instead of recommending candidates
pursuant to
interviews for two positions for which the applicant was the
chair-person, a decision was reached that any of the candidates
from
1-8 for one position and from one to ten for another, were eligible
for appointment. The policy required the interview panel
which was
chaired by the applicant to give reasons for regarding a particular
candidate suitable for appointment to a particular
post. The panel
had to recommend a candidate. In addition, reasons had to be given
for finding the other candidates unsuitable.
The applicant’s
failure to comply with the policy afforded the appointing authority
an opportunity to select candidates arbitrarily
and open the third
respondent to the risk of being sued by candidates who were victims
of the applicant’s failure to comply
with the policy. The
Commissioner found that the applicant knew the policy which the
applicant conceded to have possibly overlooked.
He acknowledged the
absence of a specific recommendation both in the applicant’s
and the joint panel recommendations. He
rejected the applicant’s
defence of victimisation and inconsistency for being singled out for
discipline. He accepted the
third respondent’s evidence that
other members of the panel were also disciplined and issued with
appropriate sanctions which
were, for valid reasons less than
dismissal. The Commissioner found the sanction of dismissal
appropriate and concluded that the
applicant’s dismissal was
both substantively and procedurally fair.
Grounds for
review
[4]
The applicant submitted that the arbitration award stands to be
reviewed and set aside because he was dismissed not for misconduct
he
had committed on his own but misconduct of members of the interview
panel. He was the only member of the panel selected for
discipline
for the incidents which took place at the Sekhukhune district and
found the explanation proffered by the third respondent
that other
panel members were also going to be charged untrue. He alleged that
the chairperson of the interviews which took place
at Waterberg who
committed similar misconduct was not charged. So were other members
of his panel. He submitted that the Commissioner
committed a gross
irregularity by failing to have due regard for all the material
evidence and factors properly before him which
included his closing
arguments which he filed on time. Another attack on the award, is
based on the Commissioner’s bias against
the applicant which
manifested itself in his disregard for evidence tendered by the
applicant while attaching undue weight to uncorroborated
evidence of
the third respondent. The decision that the applicant’s
dismissal was substantively and procedurally fair resulted
from the
Commissioner’s gross irregularity of focusing more on secondary
rather than primary issues. The applicant also attacked
the
Commissioner’s decision to reopen the third respondent’s
case and submitted that the record was materially unhelpful
and asked
that it be disregarded.
[5]
Opposing the application, the third respondent denied having acted
inconsistently and submitted that disciplinary action was
taken
against members of the panel according to the different roles they
played in the selection process. Some owned up and showed
remorse
thus restoring the relationship of trust between themselves and the
third respondent. The third respondent explained that
the delay in
taking disciplinary action against the applicant and other affected
employees was due to budget constraints and the
time it required to
investigate misconduct against each implicated member of the panel.
It denied that the Commissioner committed
gross irregularities and
submitted that the Commissioner correctly found that the applicant
demonstrated his knowledge of the policy
and chose to ignore
implementing it although he was an experienced senior manager in whom
the third respondent had invested trust.
[6]
I have considered the arguments by the applicant and on behalf of the
third respondent against the background of the test for
review that
the Commissioner’s decision is one which a reasonable
decision-maker could not reach in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
Enunciating
the test the court held that it is a stringent one that will ensure
that awards are not lightly interfered with. In
this regard see
Fidelity
Cash Management Services v CCMA Others
[2]
.
When determining review applications, this court is required to
ascertain whether the arbitrator considered the principal issue
before him or her, evaluated the facts and come to a reasonable
decision. In this regard see
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[3]
.
[7]
I have perused the reconstructed record which is signed by the
parties including the applicant himself. It does not support
the
applicant’s contention that it is not helpful and needs to be
disregarded. On the contrary, I found it helpful and could
find no
reason to disregard it. I have taken into account the applicant’s
submission that the manner in which the Commissioner
dealt with
evidence and the weight he attached thereto rendered his award
reviewable. Errors committed by Commissioners during
arbitrations as
well as the weight they attach to evidence, do not necessarily make
their awards susceptible to review. It is only
when they cause the
Commissioner’s decisions to be unreasonable that they can
constitute valid grounds for review. In this
regard see
Heroldt
v Nedbank Ltd and Another
[4]
.
The Commissioner’s failure to mention the applicant’s
closing arguments in his award is not necessarily an indication
of
his failure to consider them. He was required in section 138(7) of
the Labour Relations Act of 1995 (“the LRA”)
to give
brief reasons for his decision and I am satisfied that he did. The
power to determine the fairness or otherwise of a dismissal
is vested
on Commissioners by section 138 of the LRA. The question whether, the
Commissioner has reached a decision this court
does not agree with,
does not form part of the test for review.
[8]
The applicant’s submissions on inconsistency do not help him.
The third respondent explained that he was not singled out
and gave
valid reasons for treating him differently from other panel members
who also played a role in the misconduct which led
to his dismissal.
Seniority as well as acknowledging wrong doing and showing remorse
play a vital role in the manner in which an
employer deals with
employees who have committed the same or similar misconduct. When the
evidence before the Commissioner is considered
in its totality it
shows that he dealt with the issue before him, considered the
evidence and reached a reasonable decision which
is not susceptible
to review.
[9]
In the premises, the following order is made:
9.1
The application for review is dismissed.
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCES
For the
Applicant: Mr Riba In person
For the
Respondent: Advocate Modjadji
Instructed
by : The State Attorney
[1]
2008 (2) SA 24 (CC)
[2]
(2008)
29
ILJ
964 (LAC)
[3]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 16
[4]
[2013]
11 BLLR 1074
(SCA).