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[2015] ZALCJHB 159
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South African Revenue Services v Public Servants Association of South Africa obo Moorcrft and Others (JR1265/13) [2015] ZALCJHB 159 (26 May 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR 1265/13
In the matter between:
SOUTH AFRICAN REVENUE
SERVICES
Applicant
and
PUBLIC SERVANTS
ASSOCIATION OF
SOUTH AFRICA obo R
MOORCRFT
AND ANOTHER
First Respondent
COMMISSIONER
THEMBEKILE
NSABANYONI N O
Second Respondent
THE COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Third Respondent
Heard:
29 April 2015
Delivered:
26 May 2015
Summary: Review.
Applicant failing to establish that arbitration award reviewable.
Application dismissed with costs
JUDGMENT
GUSH J
[1]
The
applicant in this matter is the South African revenue services, the
erstwhile employer of the first respondent’s members,
Rene
Moorcroft and Faraana Farred. (Hereafter referred to as the
“employees”)
[2]
This
is an application by the applicant to review and set aside the award
handed down by the second respondent in which award, the
second
respondent concluded that the dismissal by the applicant of the
employees was both procedurally and substantively unfair
and ordered
that the applicant reinstates the employees retrospectively without
loss of benefits and in addition ordered that the
employees be paid
back pay amounting to six months each.
[3]
The
order that the applicant seeks is for the award issued by the second
respondent to be reviewed and set aside and substituted
with an order
that the employees’ dismissal was procedurally and
substantively fair.
[4]
The
background facts relating to this matter are largely set out in the
applicant’s founding affidavit. The background is
as follows:
a.
the
employees had been employed by the applicant as debt collectors for
10 and 11 years respectively prior to their dismissal;
b.
during May
2013, Moorcroft drafted and printed a letter confirming that Farred’s
brother, Riedwaan, had been employed by the
applicant on a temporary
basis from 1 October 2002 to 28 February 2006. Moorcroft showed the
letter to her colleague Faraana Farred
who told Moorcroft to destroy
it as she was not on good terms with her brother. Moorcroft’s
evidence was that she had torn
it up ;
c.
shortly
after the letter had been drafted and printed, an employee of the
applicant, however, found a printed copy of the letter
in the printer
and handed it to a senior executive of the applicant; (it is common
cause that the letter drafted by Moorcroft was
never sent to Riedwaan
and taking into account the evidence, it is probable that on the
insistence of Farred, Moorcroft had torn
up the letter she had shown
to her);
d.
the matter
was referred to the applicant’s “Employment Relations”.
The applicant’s Human Resources Consultant,
Maphotho, convened
a meeting with the employees in May 2012. At this meeting, Moorcroft
admitted drafting the letter. Maphotho
advised the employees that
they did not have the authority to draft the letter nor confirm
employment on behalf of the applicant.
The applicant records that the
employees “were warned not to repeat the conduct and they were
informed that the matter will
be referred to employment relations for
further investigation”.
[1]
e.
on 12 July
2012, the employees were charged with misconduct and issued with
notices of a disciplinary hearing. (There is no cogent
explanation
why the employees were only charged with misconduct some two months
later given the fact that they had admitted having
drafted the
letter.) The charges of misconduct were as follows:
i.
Moorcroft:
COUNT ONE:
confirmation of
appointment without authorisation
it is alleged by SARS, that you, Ms
Rene Moorcroft, is guilty of the above charge
in that on or about 18 may 2012 and at
or near Megawatt Park, you being a person upon whom a power has been
conferred and/or who
has been charged with a duty by virtue of
holding a post or employment, to wit: South African Revenue Service:
Debt Management,
Megawatt Park,
Dishonesty.
(sic) (my
emphasis)
COUNT TWO: refused to obey SARS
processes
it is alleged by SARS, that you, Ms
Rene Moorcroft, is guilty of the above charge
on or about 18 May 2012 and at or near
megawatt Park you being a person upon whom a power has been conferred
and/or who has been
charged with a duty by virtue of holding a post
or employment, to wit: South African Revenue Service: Debt
Management, Megawatt
Park, prejudice of administrative efficiency and
effectiveness of SARS. (sic) (my emphasis)
ii.
Farred
COUNT ONE:
confirmation of
appointment without authorisation
it is alleged by SARS, that you, Ms
Faraana Farred, is guilty of the above charge
in that on or about 18 may 2012 and at
or near Megawatt Park, you being a person upon whom a power has been
conferred and/or who
has been charged with a duty by virtue of
holding a post or employment, to wit: South African Revenue Service:
Debt Management,
Megawatt Park,
Dishonesty.
(sic) (my
emphasis)
COUNT TWO: refused to obey SARS
processes
it is alleged by SARS, that you, Ms
Faraana Farred, is guilty of the above charge
on or about 18 May 2012 and at or near
megawatt Park you being a person upon whom a power has been conferred
and/or who has been
charged with a duty by virtue of holding a post
or employment, to wit: South African Revenue Service: Debt
Management, Megawatt
Park, prejudice of administrative efficiency and
effectiveness of SARS. (sic) (my emphasis)
[5]
The
chairperson of the enquiry found both the employees guilty of both
counts of alleged misconduct: dishonesty and prejudice of
administrative efficiency and effectiveness of SARS. The chairperson
came to the conclusion that on the combination of the charges,
dismissal was the appropriate sanction on the basis that the trust
relationship was “really destroyed”.
[6]
Dissatisfied
with their dismissal, the employees referred a dispute to the third
respondent who in turn appointed the second respondent
to arbitrate
the dispute.
[7]
During the
arbitration, it became clear from the evidence of the applicant’s
witnesses that Faraana Farred’s brother
had in fact been
employed at SARS temporarily but that the brother had been placed at
SARS by a temporary employment agency.
[8]
At the
conclusion of the arbitration, the second respondent issued an
arbitration award in which he found that the dismissal of
the
employees was both procedurally and substantively unfair and ordered
their retrospective reinstatement.
[9]
It is this
award that the applicant seeks to review and have it set aside.
[10]
The
applicant’s grounds of review are that the second respondent
erred
:
in finding that the dismissal was procedurally and substantively
unfair;
erred
in finding that Riedwaan had been placed at SARS by the temporary
employment agency; and
erred
in finding that the warning issued at the meeting of 22 May
constituted a warning and that no further disciplinary action was
required. As an afterthought, the applicant in the alternative
averred that the second respondent did not properly apply his mind
to
the issues and that “there is no rational and/or reasonable
correspondence between the evidence before the Commissioner
and the
eventual findings …”
[11]
Applying
the test on review as set out in
Sidumo
and
Another
v Rustenburg Platinum Mines and Others
2008
(2) SA 24
(CC),
Herholdt
v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA) and the
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC
matters,
it is difficult to comprehend on what basis or on what grounds the
applicant regards the award as reviewable.
[12]
What is
abundantly clear is that the so-called grounds of review related
to the second respondent having erred are nor more
than grounds of
appeal as opposed to grounds of review.
[13]
The basis
and the essence of the applicant’s decision to terminate the
employees’ employment was a finding that they
were guilty of
both dishonesty and the ubiquitous “prejudice of administrative
efficiency and effectiveness of SARS”.
There was no evidence
adduced at the arbitration that dealt with the alleged “prejudice
to the administrative efficiency
and effectiveness of SARS” and
the evidence clearly failed to establish that the employees were
dishonest.
[14]
A
consideration of the record suggests not only that the second
respondent’s conclusion that the dismissal was substantively
unfair but that his conclusion that the applicant had not established
dishonesty is not only correct but not reviewable. The second
respondent records his reasoning in this regard in his award:
‘
What cannot be disputed is the
fact that Riedwaan
was
placed at
SARS for over
four years by his employment agent. This therefore means that the
applicants worked with Riedwaan for a period of
time and could easier
believe that he was a SARS employee.’
[2]
[15]
Likewise,
it is difficult to gainsay the second respondent’s conclusions
regarding the meeting in May where by the applicant
own admission the
employees were warned not to repeat their conduct. This together with
the employees length of service understandably
and reasonable
led the second respondent to conclude that “the dismissal
sanction was unwarranted”
[16]
Careful
consideration of both the transcript of the arbitration and the award
of the second respondent, it is abundantly clear that
the conclusion
of the second respondent cannot be said to be
one
that a reasonable decision-maker could not have reached in light of
the evidence and the issues he was called upon to decide.
[17]
For
the reasons set out above, I am satisfied that the applicant has
failed to establish that the award of the second respondent
is
reviewable. As far as costs are concerned, there is no reason in law
or in fairness why costs should not follow the result.
[18]
In
the circumstances, I make the following order:
a.
the
applicant’s application is dismissed with costs.
___________________
D H Gush
Judge of the Labour Court
of South Africa Johannesburg
APPEARANCES:
FOR THE
APPLICANT:
H
Schensema; Routledge Modise Inc
FOR THE
RESPONDENT:
T Ntshebe; Thabang Ntshebe Attorneys
[1]
Founding affidavit
para 17 page 8.
[2]
Award at para 5.3
page 18.