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[2015] ZALCJHB 192
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Sithole v Nkopane and Others (JR2609/12) [2015] ZALCJHB 192 (2 July 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
JUDGMENT
Case no:
JR2609/12
DATE: 02 JULY
2015
Not Reportable
In the matter
between:
CYNTHIA
SITHOLE
...................................................................
Applicant
And
MS JOYCE
NKOPANE
...................................................
First
Respondent
SAFETY AND
SECURITY SECTORAL
BARGAINING
COUNCIL
..........................................
Second
Respondent
MINISTER OF
SAFETY AND SECURITY
................
Third
Respondent
COMMISSION OF
POLICE SERVICE:
COMMISSIONER OF
POLICE
.................................
Fourth
Respondent
Heard: 05
November 2014
Delivered: 02
July 2015
JUDGMENT
Nkutha-Nkontwana
AJ
Introduction
[1]
In this review the Applicant seeks an order
reviewing and setting aside an arbitration award of the First
Respondent (“
Arbitrator”
)
dated the 26
th
of September 2012 wherein she found the dismissal of the Applicant
substantively fair.
[2]
This application is opposed by the Third
and Fourth Respondents.
Factual
background
[3]
The Applicant was employed by the Fourth
Respondent as a Senior Data Analyst. She was summoned to appear
before a disciplinary hearing
to answer to the following charges:
3.1 On the first
charge, the Applicant allegedly failed to comply with or contravened
an Act, Regulation or legal obligation by
failing to lock the office
which led to the new State computer screen and mouse being stolen due
to her omission and/or negligence
on the 12
th
of November
2008 at SAPS Mamelodi East.
3.2
On the second charge 2, the Applicant
allegedly prejudiced the administration, discipline and efficiency of
the Department office
or institution of the State by failing to lock
the office which led to the new State computer screen and mouse being
stolen out
of the office due to her omission and/or negligence on the
12
th
of November 2008 at SAPS Mamelodi.
3.3
On the third charge, the Applicant
allegedly contravened a prescribed code of conduct for the service or
police service which may
be applicable to her by failing to lock the
office which led to the new State computer screen and mouse being
stolen out of her
office due to her omission and/or negligence of
duty on the 12
th
of November 2008 at SAPS Mamelodi East.
3.4
On the fourth charge, the Applicant
allegedly committed a common law or statutory offence by being
directly or indirectly involved
as an accomplice to theft of new
State computer and Mouse with Sergeant Hlongwane on the 12
th
of November 2008 at Mamelodi East.
[4]
On the 28
th
of September 2009, the Applicant was found guilty of all the charges
and a sanction of dismissal was accordingly recommended. The
Applicant immediately lodged an appeal challenging the finding of
guilty and sanction of dismissal. However, the appeal authority,
Lieutenant Colonel H C Oosthuizen, decided not to proceed with the
appeal due to the state of the record of the disciplinary hearing
which was not only incomplete but confounding. The Applicant was
accordingly advised to avail herself to the machinery of the LRA.
[5]
Indeed the Applicant referred a dispute of
unfair dismissal to the Second Respondent. The conciliation was
unsuccessful and
the matter proceeded immediately to arbitration.
[6]
There were two issues in dispute before the
Arbitrator. Firstly, the Applicant was challenging the
appropriateness of the sanction
of dismissal. Secondly, the Applicant
also took issue with the manner in which the Fourth Respondent dealt
with her appeal.
[7]
I must hast to mention that at the
commencement of the arbitration proceedings the parties agreed not to
lead oral evidence but
to deal with the matter on the basis of their
written heads of argument. What is also worth emphasising at this
stage is that it
is common cause that the Applicant did not challenge
the finding of guilt in terms of all charges, particularly the charge
of theft.
[8]
Notwithstanding the above, in her written
submissions before the Arbitrator, the Applicant sought to traverse
the chairperson’s
findings on all four charges. She argued that
the Arbitrator failed to deal with the splitting of charges in
respect of charges
1 to 3 which did not attract a sanction of
dismissal, in any event. On charge 4, a charge theft, the Applicant
argued that the
presiding officer did not understand the elements of
theft as he constantly referred to her negligence as oppose to
intention in
his findings.
[9]
On procedure, the Applicant argued that it
was an impermissible of the appeal authority not to consider the
appeal in terms of Regulation
17 of the SAPS Disciplinary
Regulations.
[10]
On the other hand, the Fourth Respondent
argued that since the Applicant had been found guilty of a serious
misconduct of theft,
the trust relationship is irrevocably damaged.
To
further exacerbate the situation
,
the Applicant was also found guilty of the same criminal offence in a
criminal court and was sentenced to a suspended sentence
of 3 years.
General grounds
of review
[11]
The Applicant relies on the following
grounds of review in these proceedings:
11.1
The Arbitrator’s award is not
justifiable in relation to the reasons given for it having no regard
to evidence presented before
her. Alternatively, there is no rational
connection between the material placed before her and the ultimate
conclusion reached
by her
11.2
The Arbitrator failed to apply her mind to
the evidence presented to her at arbitration in reaching her
conclusion that the Applicant’s
dismissal was substantively
unfair.
11.3
The First Respondent committed a gross
irregularity by failing to apply her mind to the evidence,
misunderstood the evidence and
attributed motives to the Applicant
which could not reasonably be drawn from the evidence submitted.
11.4
The First Respondent committed misconduct
in relation to her duties as an arbitrator due to the reasons
advanced hereunder:
11.4.1
She disregarded relevant evidence.
11.4.2
She issued an award that indicated that she
failed to apply her mind to the facts presented.
11.4.3
She submitted an award that is so
unreasonable that no reasonable arbitrator could have made.
11.4.4
The Applicant proved on the balance of
probabilities at the proceedings that her dismissal was unfair and
for unfair reasons.
Legal principles
[12]
The
position regarding the review of arbitration awards was succinctly
postulated in
Herholdt
v Nedbank Ltd
[1]
where
the Supreme Court of Appeal stated that:
“
A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings to amount to
a gross irregularity as contemplated by s 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.”
[13]
It stands to reason, therefore, that this
Court is not asked to decide whether or not the Arbitrator erred in
her findings but only
to test reasonableness thereof.
Application
[14]
I deal first with the issue of
appropriateness of the sanction of dismissal. Clearly, the Applicant
persisted with same line of
argument she had adopted during the
arbitration proceedings despite her election not to challenge the
presiding officer’s
guilty verdict on all charges.
[15]
Having consented to the process that the
Arbitrator adopted and elected only to challenge the sanction of
dismissal, it did not
avail the Applicant to argue that the presiding
officer did not understand the elements of the offence of theft.
Whether or not
the Arbitrator’s finding of guilt on a charge of
theft is incorrect is inconsequential since the Applicant was bound
by her
election not to challenge that finding.
[16]
On the appropriateness of the sanction of
dismissal, I note that the Applicant did not challenge the Fourth
Respondent’s submission
that theft is a serious offence and has
an element of dishonesty. The Arbitrator accordingly found that the
Applicant’s conduct
in stealing the computer screen and the
mouse undermined the trust relationship and a lesser sanction than
dismissal would have
an effect of setting a bad precedent and
undermining discipline within the Third Respondent’s
organisation. I find nothing
unreasonable with that conclusion.
[17]
On the issue of the appeal authority’s
decision not to consider the appeal, I concur with the Arbitrator
that there is nothing
untoward with that decision. Strangely
enough, the Applicant is not challenging the procedure that led to
her dismissal.
It is my view, therefore, that the challenge on appeal
outcome is misconceived since the Applicant deliberately shunned an
opportunity
to be heard
de novo
during the arbitration proceedings.
[18]
Clearly, the Applicant was represented by
her attorneys of record even during the arbitration proceedings and
as such, she could
not have misunderstood the nature of arbitration
proceedings. Also, judging from the long list of the unadorned
grounds of review
upon which this application is predicated, the
Applicant is injudicious in launching this application.
Conclusion
[19]
It is my view that the Arbitrator clearly
understood the nature of the inquiry and arrived at a reasonable
result. I find no reason
to interfere with the arbitration award.
[20]
On costs, there is no reason why cost
should not follow result.
Order
[21]
In the circumstances, the application is
dismissed with costs.
Nkutha-Nkontwana
AJ
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR THE
APPLICANT: JM Gouws Attorneys?
FOR THE THIRD AND
FOURTH
RESPONDENTS: Adv Kgotla ?
[1]
[2013]
34
ILJ 2795
(SCA)
at para 25.