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[2015] ZALCJHB 293
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SAMWU obo Mathibe v Moretele Local Municipality and Others (JR755/12) [2015] ZALCJHB 293 (31 August 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 755/12
In
the matter between:
SAMWU obo BARENG MATHIBE
APPLICANT
and
MORETELE LOCAL
MUNICIPALITY
FIRST RESPONDENT
SALGBC
SECOND RESPONDENT
MARELEZE SWANEPOEL
N.O.
THIRD RESPONDENT
Heard
:
28 August 2015
Delivered
:
31 August 2015
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the third respondent, to whom I shall refer as
‘the
arbitrator’. In her award, the arbitrator upheld the dismissal
of Mr Mathibe (the employee), on whose behalf the
applicant acts.
[2]
The material facts are recorded in the arbitrator’s award and I
do not intend to repeat them here. For present purposes,
it suffices
to say that the employee was employed by the first respondent as the
Manager – Revenue services and that he was
dismissed on 27
September 2011 after a disciplinary enquiry into allegations of
sexual harassment. The complainant in the enquiry
was a subordinate
of the employee who alleged that she had been the subject of
unwelcome sexual advances by the employee between
June 2005 and June
2011 when after treatment by psychologist for depression, she decided
to lodge a complaint against the employee.
The employee, in broad
terms, denied that he had ever harassed the complainant and averred
that her complaint was the consequence
of complaints about her work
performance and poor timekeeping.
[3]
In her award, the arbitrator recorded that she was faced with two
mutually destructive versions. She held that the first respondent’s
version was the more probable, having regard particularly to the
unchallenged evidence of the complainant (her version had not
been
challenged under cross-examination) and the poor quality of the
evidence of both the employee and the witness that he called.
The
arbitrator’s reasoning for coming to the conclusion that she
did is captured in paragraph 39 of the award, which reads
as follows:
[39]
Lorraine’s testimony I find was consistent with regard to the
acts of harassment and despite
confusion with regard to the exact
times at which certain incidents had taken place I still find that on
a balance of probability
she was in fact harassed by the applicant.
The applicant’s second witness, Anna Matlala, actually only
further cause me to
doubt the applicant’s version of Lorraine’s
failure to comply with instruction and poor work performance. She
testified
that there was numerous letters in which complaints about
Lorraine was highlighted and yet when she was given an opportunity to
go and collect the letters she returned to the arbitration with the
new version that she couldn’t find them and that she
had made
copies and given them to the union official who quite conveniently
did not attend the arbitration. Again I have to agree
with the
respondent’s representative that her evidence was fabricated
and that she was couched (sic) what to say.
[4]
The applicant raises three grounds for review. The first is that the
arbitrator misconducted herself in finding that the employee
was
charged with four charges, when in fact he faced only two charges.
The second ground is that the arbitrator misconducted herself
in
finding that, on a balance of probabilities, the employee had
sexually harassed the complainant. The third ground for review
is
that the arbitrator had regard to the Code of Good Practice but
disregarded the fact that the first respondent did not have
a policy
as required by the Code and that there had been no attempt to resolve
the matter informally.
[5]
This court is entitled to intervene and set aside the arbitrator’s
award if and only if the arbitrator’s decision
is so
unreasonable that no reasonable decision-maker could come to the same
decision on the available material. The current authorities
require
the court first to enquire as to whether the arbitrator committed a
reviewable irregularity and if so, whether there is
a basis
considering the evidence that served before the arbitrator overall to
displace the problem facing the case of unreasonableness
that is
established in consequence. If the answer to the latter enquiry is in
the negative, the award stands to be reviewed and
set aside on the
grounds of unreasonableness. In other words, if an arbitrator
misdirects him or herself by ignoring material facts,
commits an
error of law and the like, the award is reviewable only if the
distorting effect of the misdirection is to render the
award
unreasonable.
[6]
In relation to the first ground for review, the charge sheet issued
to the employee recorded that he was charged with four counts
of
misconduct. In the finding and outcome report prepared by the
chairperson of the disciplinary enquiry, it is clear that the
first
respondent sought to consolidate the charges, which were reduced to
2. The award simply set out the charges as they appeared
on the
charge sheet, prior to their consolidation. This cannot be said to be
a finding in respect of the number of charges, certainly
not a
finding that is capable of review.
[7]
In relation to the second ground, it should be recalled that a
failure by a commissioner to apply his or her mind, reliance
on
irrelevant considerations or the ignoring of material evidence is not
in itself a basis for review. Ultimately, the enquiry
is whether any
misdirection is of this nature had the result of a decision to which
no reasonable decision-maker could come on
the available material.
I’m not satisfied, having regard to the record of the
proceedings under review, that the arbitrator
committed any
misdirection. The record discloses that the complainant testified
about incidents of harassment and that she was
then cross-examined by
a union official. Nowhere in that cross-examination was it ever put
to the complainant that the employee
did not do what she alleged he
had done. In short, her testimony was not disputed and no contested
version was put to her. When
the employee presented his evidence, he
averred that he had been accused of harassment on account of issues
relating to the complainant’s
work performance and attendance.
In other words, the arbitrator was confronted with the complainant’s
version which had gone
unchallenged, and the employee’s
averment that he had been falsely accused of harassment, a version
that was never put to
either the complainant or any of the relevant
witnesses. The arbitrator assessed the evidence and decided that the
first respondent’s
version was the more probable, for the
reasons set out in her award. She referred (correctly) to the
relevant authorities relating
to the assessment of probability and
came to a finding that the balance of probability suggested that the
complainant had been
harassed. In the circumstances, in my view, it
cannot be said that the arbitrator committed a reviewable
irregularity in relation
to assessment of the evidence or her factual
finding. It follows that there is no merit in the second ground for
review.
[8]
The third ground for review, as I have indicated above, is that the
arbitrator made reference to the relevant statutory code
of good
practice but disregarded the fact that the first respondent did not
have a policy relating to sexual harassment of which
the employee had
been made aware, and in particular, that they had been no attempt to
resolve the matter informally. It should
be recalled that the
arbitrator made reference to the statutory code only in relation to
the definition of sexual harassment (see
paragraph 32 to 34 of the
award). That does not incumbent on the arbitrator to make any
decision in relation to the extent of the
first respondent’s
compliance (if any) with other provisions of the code. It was never
the applicant’s case that the
first respondent had failed to
comply with the provisions of the code or, more importantly, that the
employee’s dismissal
was unfair as a consequence. The applicant
did not dispute that the employee’s dismissal was unfair
because there had been
no attempt to resolve the issue on a less
formal basis. This is a case that is made out on review and which in
any event as no
bearing on the reasonableness of the outcome of the
arbitration proceedings.
[9]
To the extent that the applicant relies on the decision by this court
in
SA Metal Group (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration & others
(2014) 35 ILJ 2848 (LC) to
submit that a failure by an arbitrator to have regard to the
statutory code on the handling of sexual
harassment cases is a ground
for review, the failure alleged by the applicant in the present
instance is a failure by the first
respondent, not by the arbitrator.
The judgment referred to concerns assumptions and omissions on the
part of an arbitrator which
had the result that he failed properly to
assess the evidence of the complainant. The judgement does not
suggest that it is incumbent
on an arbitrator to look beyond the
terms of the dispute referred to arbitration and assess whether the
employer party has complied
in every respect with the code of
practice in effecting disciplinary action on account of sexual
harassment, even least does it
suggest that any failure to do so is a
ground for review
[10]
For the above reasons, in my view, the arbitrator did not commit any
act of misconduct in relation to the proceedings under
review, nor
did she commit any reviewable irregularity. Even if I’m wrong
in coming to that conclusion, the evidence that
served before the
arbitrator does not suggest that the decision to which the arbitrator
came fell outside of the band of decisions
to which reasonable people
could come on the basis of that evidence. In particular, the failure
by the employee’s representative
to challenge the complainant’s
version and his failure in particular to put the version ultimately
presented by the employee
in his evidence to the complainant for her
comment, as well as the poor quality of the evidence of the witness
called by the employee
to support his version, all serve to sustain
the reasonableness of the outcome of the proceedings For these
reasons, the application
stands to be dismissed.
[11]
In relation to costs, the court has a broad discretion in terms of
section 162 of the Act to make orders for costs having regard
to the
requirements of the law and fairness. Although this court
traditionally declines to make costs orders in disputes between
collective-bargaining partners, the rationale for that practice is
related to the potential prejudice that a costs order might
have on
the nature of that relationship. In the present instance, the dispute
between the parties is not a collective dispute and
has no bearing on
their collective-bargaining relationship. It is a dispute concerning
the dismissal of an individual for an act
of serious misconduct. I
fail to appreciate on what basis the ratepayers of the first
respondent should be saddled with the burden
of meeting the costs of
opposing an application so devoid of merit.
I
make the following order:
1.
The application is dismissed, with costs.
ANDRÉ
VAN NIEKERK
JUDGE OF THE LABOUR COURT
OF SOUTH AFRICA
APPEARANCES
For
the Applicant: Mr. X. Ngako, Ruth Edmonds Attorneys
For
the Respondent: Adv. C. Prinsloo, instructed by Mosire Tsiane
Attorneys