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[2015] ZALCJHB 463
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Mogalakwena Local Municipality v South African Local Government Bargaining Council and Others (J47/12) [2015] ZALCJHB 463 (4 June 2015)
THE
LABOUR COURT OF SOUTH AFRICA,
IN
POLOKWANE
Of
interest to other judges
Case
no: J 47/12
In
the matter between:
MOGALAKWENA
LOCAL MUNICIPALITY
Applicant
And
SOUTH AFRICAN
LOCAL GOVERNMENT BARGAINING COUNCIL
First
Respondent
MOHUBEDU SIMON
RANTHO (
N.O.
)
Second
Respondent
IMATU
OBO P C BODENSTEIN
Third Respondent
Heard:
20
May 2015
Delivered:
4 June 2015
Summary:
(Review- unfair dismissal – employee
pleaded guilty to theft – arbitrator finding dismissal unfair –
arbitrator’s
findings unreasonable on substantive fairness –
findings of procedural unfairness stemming in part from improper
conflation
of non-compliance with a procedure with procedural
unfairness – but other finding still sufficient to sustain
finding of
procedural unfairness – failure to take account of
all aggravating factors not necessarily rendering finding on
substantive
fairness unreasonable)
JUDGMENT
LAGRANGE,
J
Background
[1]
This application is an application to
review and set aside an arbitration award in terms of which the
arbitrator found that the
dismissal of the individual third
respondent, Mr P C Bodenstein (‘ Bodenstein’), by the
applicant was substantively
and procedurally unfair. The arbitrator
ordered relief in the form of reinstatement.
[2]
Bodenstein was charged with two counts of
theft relating to the same incident. The charges related to the
removal of a bag containing
blankets which had been left at a venue
known as Van Rensburg hall in preparation for a St John’s
ambulance training program
on 6 January 2011. The bag belonged to the
St John’s Ambulance service. He was dismissed after being found
guilty on two
counts of theft of the applicant’s property and
of St John’s Ambulance respectively, though there was no
evidence that
the property belonged to any other entity than St
John’s Ambulance.
Outline
of material evidence
[3]
For the sake of contextualising the matter,
a brief outline of the sequence of events leading to the charges
being instituted against
Bodenstein is necessary. Bodenstein was a
carpenter handyman employed by the applicant for fifteen years. On
6
th
January he had gone to the hall to fix a door with his team
comprising Messrs. Mongwe (‘Mongwe’) and Mokgoba
(‘Mokgoba’).
At the hall they found two bags without
identification markings on them. Bodenstein testified that they did
not know who the bags
belong to, but could see that one of them
contained blankets. He told Mongwe to take the bag as there was
something for him ‘for
Christmas’ inside the bag. He
claims that when he returned to their vehicle the vehicle had already
been packed. After they
had returned to the workshop with the vehicle
Mongwe unpacked the equipment on the vehicle and he noticed that he
removed one of
the sports bags they had seen from the vehicle and
placed it in the workshop. Bodenstein carried on with his
administrative work.
He then saw Mongwe putting the blankets in a
large plastic bag. Mongwe took the bag with him when he left at
16h30.
[4]
On Monday, 10 January 2011, Bodenstein was
asked by a superior if he knew anything about the items which were in
the hall and he
told her he did know and would make enquiries with
Mongwe. He then went together with Mokgoba to see Mongwe who was in
hospital
for a check-up. An arrangement was made with Mongwe to fetch
the blankets from his house and the blankets together with the bag
and the other contents, which were at the workshop, were returned to
the municipality by 14H00 that day. Bodenstein said that his
remark
to Mongwe about taking the bag for Christmas was meant to be a joke,
but there was a misunderstanding and he apologised
for what had
happened.
[5]
Under cross-examination, the applicant was
pressed to admit to the theft. He testified in Afrikaans and the
bilingual interpretation
of the questions put to him and the answers
he gave left much to be desired. It is obvious that the interpreter’s
understanding
of Afrikaans was very limited. He conceded that he had
been found guilty of theft and in the enquiry but was adamant that he
had
not taken the goods and placed them in the van himself, nor had
he been present when this was done. What he was clearly sorry for
was
for making the suggestion to Mongwe that the blankets could be a
‘Christmas box’ for him. He regretted that, what
began as
a joke turned out so wrong and acknowledged that he never should have
said what he did to Mongwe.
[6]
For reasons which are unclear, Mongwe was
not charged with any misconduct relating to his removal of the
goods. Mongwe confirmed
Bodenstein’s version that
Bodenstein had invited him to take the blankets and he had agreed
saying he would give them to
his wife. The only point of difference
was that Mongwe claimed that Bodenstein told him to load the bag on
the van. Mongwe claimed
that he did so because he did not have a car
himself.
The
arbitrator’s award
[7]
Bodenstein had complained that his dismissal was substantively unfair
because he had been found guilty of two charges, whereas
it should
have been one charge. He also contended that, in light of the
circumstances surrounding the transgression that dismissal
was an
inappropriate sanction and the trust relationship between him and the
employer had not been destroyed. Bodenstein also complained
of
various procedural irregularities which are mentioned briefly below.
[8]
The arbitrator found that the applicant’s dismissal was
substantively and procedurally unfair. He found that the dismissal
was procedurally unfair because:
8.1
The arbitrator had spoken to both the representatives
independently about the closing argument submissions which were made
in writing
contrary to clause 7.14 of the disciplinary code and
procedure of the S ARL GBC which prohibited a presiding officer from
conferring
with one party without the consent of
the other.
8.2
He also failed to announce his decision
within ten days of the last date of the enquiry but did so only after
thirty days, again
in breach of clause 7.6 of the same procedure.
8.3
Lastly, he failed to invite evidence in
mitigation or aggravation.
[9]
His findings leading to a conclusion that
the dismissal was substantively fair may be summarised as:
9.1
Bodenstein ought to have been found guilty
of only one charge.
9.2
Despite the importance of the charge, the
employer had overreacted in dismissing Bodenstein given the weight of
the mitigating factors.
[10]
The arbitrator substituted the sanction of
dismissal with a final warning valid for six months and ordered the
reinstatement of
Bodenstein.
Grounds
of review
[11]
The applicant contended in summary that:
11.1
the arbitrator misapplied the law in his
analysis of the evidence of an argument, though it must be said that
the specifics of this
ground of review were not spelt out in the
founding affidavit as it should have been;
11.2
he applied the disciplinary code in a
partial manner by requiring strict adherence by the employer to the
procedures in the code
but not adhering to the code when it came to
the appropriateness of the sanction in terms of which theft is
treated as a serious
offence;
11.3
It was a gross misdirection of the
arbitrator to say that the employer overreacted given that the
offence concerned theft which
is serious;
11.4
the arbitrator exaggerated the mitigating
factors and ignored aggravating ones such as the loss of reputation
suffered by the applicant
as a result of the incident and the fact
that the removal of the items caused the training to be delayed by a
day;
11.5
the arbitrator also misunderstood the
provision of the code which states that as a guideline an employee
may be dismissed on the
first occasion for theft, whereas he should
have realised that the provision was not merely directory or
permissive.
Evaluation
[12]
On
the question of the arbitrator’s findings on procedural
fairness, it seems clear that even though he alluded to the following
statement in the judgement in
Avril
Elizabeth
Home for The Mentally Handicapped v Commission For Conciliation,
Mediation & Arbitration & Others
[1]
,
he did misconstrue the implications of the following statement in the
judgment insofar as the determination of procedural fairness
is
concerned:
“
This
is not to say that employers and unions cannot agree to retain the
criminal justice model if they are so inclined, whether
by way of a
collective agreement (as was the case in MEC: Dept of Finance,
Economic Affairs & Tourism, Northern Province v
Mahumani(2004) 25
ILJ 2311 (SCA);
[2005] 2 BLLR 173
(SCA)) or by G way of a contract of
employment or employment policies and practices. In this instance,
employers are obviously
bound to apply the standards to which they
have agreed or that they have established.”
[13]
A statement that the parties may bind themselves to a more onerous
procedure does not mean that when procedural fairness of
a dismissal
has to be determined in the arbitration under the LRA that a failure
to comply with aspects of such a procedure automatically
results in
procedural unfairness as adjudged by the standards set by the LRA. It
is important to note that section 188 (2) of the
LRA only imposes a
requirement on a person deciding if a dismissal was effected in
accordance with a fair procedure to take into
account “any
relevant code of good practice issued in terms of this Act.”
The section does not suggest that the procedural
fairness of a
dismissal must also be measured mechanically against the procedural
stipulations of a particular disciplinary code.
No doubt, if an
employer denies an employee their right to use the more extensive
procedural provisions of an agreed disciplinary
code so that the
employee’s ability to conduct their defence to the charges is
prejudiced, a finding of procedural unfairness
might still be
appropriate, even though the provisions breached set a higher
standard than the LRA requires. However, it is not
sufficient that
merely because a provision in an agreed procedure is not complied
with, that such non-compliance can be equated
with procedural
unfairness
per se
. In this instance, the arbitrator appeared
to have adopted the stance that non-compliance with the disciplinary
code and procedure
automatically required a finding of procedural
unfairness.
[14]
In this respect, I would therefore agree
with the applicant that the arbitrator misconstrued matters when he
adopted the rigid view
that procedural non-compliance was tantamount
to procedural unfairness, and his first two findings on this basis
should be set
aside.
[15]
In respect of his finding that the employer
unfairly denied Bodenstein an opportunity to lead mitigating evidence
as permitted by
the code, when his representative declined to make
written submissions, it cannot be said that this was not one of
alternative
feasible interpretations of the evidence. He might have
held that Bodenstein’s representative should have made it clear
that
in declining to make written submissions he was not abandoning
Bodenstein’s right to lead evidence in mitigation, but I cannot
say that the finding he made was one that no reasonable arbitrator
could have arrived at on this issue. Accordingly, the arbitrator’s
ultimate finding that Bodenstein’s dismissal was procedurally
unfair ought to stand on this basis, though not on account
of the two
subsidiary findings referred to in paragraphs 8.1 and 8.2 above. In
truth, the real challenge on review relates to the
arbitrator’s
finding on the unfairness of the sanction of dismissal.
[16]
The essence of the applicant’s
complaint in relation to substantive fairness is firstly, that the
arbitrator irrationally
did not appreciate that when it came to the
question of sanction, the disciplinary code was prescriptive.
Secondly, in weighing
up the aggravating and mitigating factors in
determining an appropriate sanction, the arbitrator unreasonably
failed to give due
weight to the aggravating factors.
[17]
On the question of the policy of the
applicant’s disciplinary code in relation to the question of
sanction the code states
that theft or dishonesty are types of
misconduct which generally would not attract progressive discipline.
Clause 2.7.4 states:
“
2.7
As a guideline
, an employee may be dismissed on the first
occasion for, inter-alia:
…
2.7.2
Theft, unauthorised possession of or malicious damage to the
employer’s property;…”
[18]
This approach is not markedly different
from what is stated in item 3 (3) and (4) of Schedule 8, Code of Good
Practice: Dismissal
in the LRA, namely:
“
(3)
... More serious infringements or repeated misconduct may call for a
final warning, or other action
short of dismissal. Dismissal should
be reserved for cases of serious misconduct or repeated offences.
Dismissals
for misconduct
(4)
Generally, it is not appropriate to dismiss an employee for a first
offence, except if the
misconduct is serious and use of such gravity
that it makes a continued employment relationship intolerable.
Examples of serious
misconduct, subject to the rule that each case
must be judged on its merits, gross dishonesty or willful damage to
the property
of the employer, willful endangering of the safety of
others, physical assault on the employer, a fellow employee, client
or customer
and gross insubordination. Whatever the merits of the
case or dismissal might be a dismissal will not be fair if it does
not meet
the requirements of section 188.”
[19]
Item (5) goes on to state the additional
considerations that must be taken into account when the prospect of
dismissal as a sanction
is entertained:
“
(5)
When deciding whether or not to impose the penalty of dismissal, the
employer should in addition
to the gravity of the misconduct consider
factors such as the employee circumstances (including length of
service, previous disciplinary
record and personal circumstances),
the nature of the job and the circumstances of the infringement
itself.
[20]
The
judgement of the Constitutional Court in Sidumo & Another v
Rustenburg Platinum Mines Ltd & others
[2]
…
decided amongst other things that:
20.1
“
The
CCMA correctly submitted that
the
decision to dismiss belongs to the employer but the determination of
its fairness does not
.
Ultimately,
the
commissioner's sense of fairness is what must prevail and not the
employer's view
.”
[3]
20.2
“
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances
.
He or she will necessarily take into account the importance of the
rule that had been breached. The commissioner must of course
consider
the reason the employer imposed the sanction of dismissal, as he or
she must take into account the basis of the employee's
challenge to
the dismissal. There are other factors that will require
consideration. For example, the harm caused by the employee's
conduct, whether additional training and instruction may result in
the employee not repeating the misconduct, the effect of dismissal
on
the employee and his or her long-service record.
This
is not an exhaustive list
.”
[4]
20.3
“
In
arriving at a decision a commissioner is not required to defer to the
decision of the employer. What is required is that he or
she must
consider all relevant circumstances
”.
[5]
[21]
I do not see how the arbitrator can be
faulted for not treating the recommended sanction in the disciplinary
code of dismissal for
theft as peremptory. The disciplinary code
itself is expressly a guideline and states a general rule, but
nonetheless the employer
and the arbitrator are obliged in terms of
Item (5) to consider other factors when dismissal as a sanction is
under consideration.
In any event, the arbitrator was responsible for
determining the fairness of that decision as the
dicta
from
Sidumo
cited
above make clear.
[22]
A further factor which is to be considered
to deal with this ground of review is that the focus of review in
evaluating the reasonableness
of an arbitrator’s decision is no
longer on the arbitrator’s own reasoning but whether no
reasonable arbitrator could
have arrived at the same outcome on the
evidence before the arbitrator. In,
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
the SCA put it thus:
“
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be
reached on the
evidence and other material properly before the arbitrator
.
On this approach the reasoning of the arbitrator assumes less
importance than it does on the SCA test, where a flaw in the reasons
results in the award being set aside.”
[6]
(emphasis
added)
[23]
Also, a mere failure to have regard to
material facts is not sufficient to set aside an award on review as
succinctly expressed
in
Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation & Arbitration & others
where the LAC restated the principle governing the assessment of a
failure to consider material facts:
“
[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.
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.”
[7]
(emphasis
added)
[24]
I agree with the applicant that, in
considering aggravating factors, the arbitrator did not consider the
reputational consequences
of the bag containing blankets and other
items being removed or the fact that the training event had to be
postponed for a day.
The arbitrator also might not have accorded the
offence of theft as much gravity as it ordinarily deserves.
[25]
However, the theft which Bodenstein was
actually implicated in was not the typical kind in which the accused
employee removed some
goods belonging to his employer or a third
party at the workplace for his personal benefit or gain. Although
Bodenstein was found
guilty of taking property for his personal
benefit or gain, there was no evidence that he had taken the property
or that he had
benefitted from Monqwe taking the goods. If anyone
stood to benefit from the removal of the bag it was the person who
actually
took it, who was not charged. Incidentally, Mongwe’s
bona fide
’s
in removing the bag with the blankets simply on the basis of
Bodenstein’s say so was never questioned. Bodenstein
also
readily and promptly co-operated as soon as the issue of the missing
items was raised with him, and he ensured that Mongwe
returned the
goods which were in Mongwe’s possession. Apart from his sixteen
years of service with a clean record, he was
also contrite about the
consequences of his reckless invitation to Mongwe.
[26]
Much was made by the applicant of
Bodenstein’s formal admission that he was guilty of theft, but
any realistic appraisal of
his badly interpreted evidence showed that
what he actually believed he admitted to was that he wrongfully
invited Mongwe to help
himself to the bag with blankets, not that he
had personally stolen the items in question for his own benefit. In
the circumstances,
even though the arbitration had proceeded on the
basis that Bodenstein had admitted being guilty of theft, the real
nature of his
misconduct was not so straightforward and neither was
his admission.
[27]
In the context of the particular incident,
I cannot say that the arbitrator was unreasonable in believing that
despite Bodenstein’s
formal admission of theft dismissal was
not the obvious sanction.
[28]
But does the arbitrator’s apparent
failure to consider the aggravating factors identified by the
applicant nevertheless mean
that his award failed to meet the
constitutional imperative that his award must be rational and
reasonable? To put it differently,
could any reasonable arbitrator
who did take those factors into account have concluded that the
sanction of dismissal was unfair
and a lesser sanction was
appropriate? The factors identified concerned: the negative
reputational consequence of the incident
for the applicant; Mr
Malepa’s evidence (which was not part transcribed) that
Bodenstein could be relied on to protect the
Municipality’s
interest and that employees were consistently dismissed for theft,
and that the Municipality had lost its
trust in Bodenstein.
These factors would still have to be weighed against the
peculiarities of the incident and the characterisation
of the charge
as one of theft by Bodenstein; his long and hitherto clean record;
his ready co-operation and evident contrition
for his reckless
conduct considered in the round, it does not seem to
follow as a matter of necessity that no reasonable
arbitrator
weighing up all these factors could have decided that because the
training event was delayed, or because the council’s
reputation
was a final written warning was not a fairer sanction. The fact that
other reasonable arbitrators might have agreed
that the dismissal was
fair because they gave different weight to all the mitigating and
aggravating factors is not the issue.
[29]
In light of the analysis above, I am
satisfied that the arbitrator’s award should stand.
Order
[30]
The application is dismissed.
[31]
No order is made as to costs
____________________
R
LAGRANGE, J
Judge
of the Labour Court
Appearances:
For
the Applicant: A P Laka, SC
Instructed
by: Mohale Inc.
For
the Third Respondent: P de Beer of IMATU
[1]
(2006)
27
ILJ
1644
(LC)
[2]
(2007)
28
ILJ
2405 (CC ) at
[3]
At 2432, para [75].
[4]
At 2432-3, para [78]
[5]
At 2433, para [79]
[6]
(2013)
34
ILJ
2795
(SCA) at 2801, para [11]
[7]
(2014)
35 ILJ 943 (LAC) at 950