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[2015] ZALCJHB 284
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Molatlhegi v Kirstein and Others (JR 381/13) [2015] ZALCJHB 284 (9 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 381/13
DATE:
09 SEPTEMBER 2015
Not
Reportable
MESHACK
MOLATLHEGI
...................................................................................................
Applicant
And
PAUL
KIRSTEIN
.........................................................................................................
First
Respondent
SAFETY
AND SECURITY SECTORAL BARGAINING COUNCIL
................
Second
Respondent
MINISTER
OF SAFETY AND
SECURITY
............................................................
Third
Respondent
SOUTH
AFRICAN POLICE
SERVICE
................................................................
Fourth
Respondent
COMMISSIONER
OF
POLICE
.................................................................................
Fifth
Respondent
Delivered:
9 September 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
With this application, the Applicant seeks
an order review and set aside the arbitration award issued by the
First Respondent (Arbitrator)
on 21 January 2013 under the auspices
of the Second Respondent (SSSBC). In the award, the Arbitrator found
that the dismissal of
the applicant was substantively fair.
Background:
[2]
The Applicant was employed by the Fourth
Respondent (the SAPS) as a Captain and was stationed at Ga-Rankuwa.
He was also a C shift
Commander at Client Service Centre. He was
dismissed on 10 August 2011 following a disciplinary enquiry into
allegations of misconduct
pertaining to;
1)
Contravention of Regulation 20 (Z) of the
SAPS Discipline Regulation in that between 2012-09-24 at 19h00 and
2010-09-25 at 0700
near Mabopane SAPS he had committed a common law
offence of fraud in that he had signed a nightshift claim for Warrant
Officer
Stokes knowing that he was not on duty;
2)
Contravention of Regulation 20 (b) of the
SAPS Discipline Regulations on 2010-09-02 at Mabopane SAPS in that he
intentionally or
negligently mismanaged the finances of the state in
that he allowed or permitted Warrant Officer Stokes to claim a
nightshift allowance
The arbitration
proceedings and the award:
[3]
Having referred an alleged unfair dismissal dispute to the SSSBC, the
matter came before the Arbitrator on 6 December 2012 for
arbitration.
No oral evidence was led at the arbitration proceedings. The parties
had agreed to have the matter determined on the
basis of written
heads of argument, bundles submitted and the transcript of the
internal disciplinary enquiry.
[4]
In his award, the arbitrator had regard to the transcript of the
disciplinary enquiry and the SAPS’ summary of the evidence
presented at the enquiry. He further took account of the fact that
the Applicant failed to testify at the disciplinary enquiry
but had
called a witness Constable Nkadimeng to testify on his behalf. Stokes
had passed away prior to the arbitration proceedings.
It was
nevertheless common cause that both the Applicant and Stokes were
dismissed for the alleged misconduct in question.
[5]
Having had regard to the summary of the evidence, the Arbitrator
further summarised that evidence as follows;
a)
The nightshift allowance document was given to members by Constable
Nkadimeng every first nightshift of the month to be completed
as the
month progressed.
b)
Stokes did not report for duty on the nightshift of 24 September
2010. Nevertheless, the Applicant had signed and certified the
schedule for payment of the nightshift allowance which included the
incorrect indication that Stokes worked a 12 hour nightshift
on 24
September 2010.
c)
Stokes had informed the Applicant that he would not be reporting for
the nightshift in question because of personal problems.
d)
The Applicant’s defense in argument was that there was a
practice within SAPS in terms of which the Commander would sign
a
blank nightshift allowance document at the beginning of the month,
[6] In the light of
the above evidence and arguments, the Arbitrator concluded that;
a)
At the time that the Applicant signed the document at the beginning
of September 2010, he was not aware that Stokes would not
report for
his nightshift on 24 September 2010. When he became aware that Stokes
was not going to report for nightshift, the document
was already
signed. Accordingly, to the extent that the document was pre-signed,
it could not be said that he had committed fraud.
b)
The alleged practice of having the nightshift allowance document
signed at the beginning of the month was highly irregular as
it
created an opportunity for fraud.
c)
SAPS had proven on a balance of probabilities that the Applicant
indeed intentionally mismanaged the finances of the state in
that he
allowed Stokes to claim for nightshift when it was not due to him.
d)
The Applicant had failed to place his version on record in the
internal disciplinary enquiry and at the arbitration proceedings.
e)
The intentional mismanagement of finances did not only include the
signing of the nightshift allowance document in terms of the
irregular practice but also the misrepresentation that the content of
the document had been verified and certified as correct.
f)
The intentional mismanagement of finances should be regarded as a
sufficient reason to warrant a sanction of dismissal.
The grounds of
review and evaluation:
[7]
It is now fairly well established that the reviewing court can only
interfere with an award in circumstances where it is established
that
the decision arrived at by the arbitrator is one that another
reasonable decision maker could not have arrived at in the light
of
the material placed before him or her. Further in accordance with the
Sidumo
[1]
test, the issue is whether arbitrator gave the parties a full
opportunity to state their respective cases at the hearing,
identified
the issue that he or she was required to arbitrate,
understood the nature of the dispute and dealt with its substantive
merits
[2]
.
[8]
In broad terms, the grounds of review relied upon by the Applicant
were that the Arbitrator committed gross irregularity by
not allowing
him the opportunity to address him on the fairness of the sanction
imposed; failed to apply his mind to the appropriateness
of sanction,
and further misconstrued the nature of the enquiry. It was further
contended that once the Arbitrator had concluded
that the applicant
had not committed fraud, he should have allowed the respective
parties to address him on the fairness of the
sanction, and should
have applied his mind to the reasons submitted by the chairperson of
the enquiry for dismissing the applicant.
[9]
It is trite that arbitration proceedings before a Bargaining Council
are conducted
de novo
. What this implies is that as required
by the provisions of section 188 (1) and (2) of the Labour Relations
Act, an arbitrator
is required to consider whether or not the reason
for the dismissal based on misconduct was a fair reason. Where
however at such
proceedings, the parties agree not to lead any oral
evidence, and place a transcript of the internal disciplinary process
before
the arbitrator as ‘evidence’, the dangers with
this approach are and will always be catastrophic. This
approach
has its inherent risks and in my view, once it is agreed
upon, the parties must stand and fall by it, simply for the reason
that
they essentially waive their rights to a proper determination of
the issues, more particularly whether the reason for a dismissal
was
fair. They cannot therefore complain about not being afforded an
opportunity to a fair hearing or a full opportunity to state
their
respective cases at the hearing.
[10]
Murphy AJA in
C
Arends & Others v SALGBC & Others
[3]
had identified the difficulties associated with this risky approach.
This is even more pertinent where the parties merely placed
documents
before the arbitrator without a proper statement of case even where
there is a potential for material disputes of fact
to arise. Murphy
AJ further indicated that where such an approach is adopted, it was
imperative that at the very least, there should
be a written
statement of the facts agreed by the parties, akin to pleadings
[4]
.
[11]
At most, where the parties do not file proper statements of case, at
the very least, it should be expected of them to hold
and conclude a
proper and detailed pre-arbitration hearing and minutes, which will
give the Arbitrator some sense as to what the
common cause facts are,
what those in dispute are, and what exactly it is that requires his
or her determination.
[12]
In this case, the pre-arbitration minutes
[5]
concluded by the parties are cursory and unhelpful. The identified
common cause facts and those in dispute as recorded in the
pre-arbitration minute are clearly meaningless and of no assistance
to any arbitrator required to determine the dispute. No reference
was
made to the charges that led to the dismissal and even if reliance
was placed on the transcript of the disciplinary enquiry,
no
reference is made to it to identify any disputed or common cause
facts. There was no indication in what material respects the
findings
of the chairperson were placed in dispute. In my view, it appears
that the parties were content to place voluminous documents
in front
of the Arbitrator and for him to make sense of it all. What escaped
the parties however when adopting this particular
arbitration process
and approach is that firstly, documents do not speak for themselves,
and secondly, written heads of argument
do not constitute evidence.
[13]
In the light of arbitration proceedings being
de novo
, the
difficulties the parties will always encounter when they agree not to
present oral evidence is that they cannot speak of an
Arbitrator
having ignored evidence pertaining to material disputes of fact when
no such evidence was tendered. Even worse for the
applicant in this
case, is that he did not testify at both the internal disciplinary
enquiry and the arbitration proceedings. In
such circumstances, the
SAPS’ case against him remained uncontroverted.
[14]
With the path that the parties took, the arbitrator was deprived of
the chairperson’s testimony in regards to whether
there was any
basis to conclude that he did not properly apply his mind to the
facts before him. There was nothing placed before
the Arbitrator by
way of oral evidence to indicate in what material respects the
chairperson should not have arrived at his conclusions.
In his
findings, the chairperson had concluded that the misconduct in
question was serious and had an impact on the organization
and the
public. He had further pointed out that the misconduct in question
was deceitful and dishonest. He took into account that
the Applicant
occupied a high position of responsibility and had found him guilty
on both charges. These factors accordingly sustained
a sanction of
dismissal.
[15]
I therefore have difficulties in comprehending any submissions to the
effect that the Applicant was not afforded an opportunity
to address
the Arbitrator on the fairness of the sanction when he, through his
legal representative, consciously took a decision
not to testify at
the arbitration proceedings. The Arbitrator through the process
chosen by the parties was placed in an invidious
position, as what he
was required to do was akin to an appeal hearing rather than a
de
novo
arbitration process.
[16]
To the extent that the Applicant chose not to lead any evidence even
at the arbitration proceedings, the Arbitrator was therefore
granted
latitude to consider the documents before him and come to a
reasonable decision, which he had. There was nothing placed
before
him to gainsay the chairperson’s findings, and to this end
there is no basis for a conclusion to be reached that his
decision
was one that a reasonable decision maker could not have come to in
the light of the documentary material placed before
him. In essence,
there was nothing placed before the Arbitrator for him to make any
finding that the dismissal was substantively
unfair. In the light of
the approach the parties had adopted, there was no obligation on the
Arbitrator to call them in regards
to the issue of appropriateness of
the sanction as he was afforded latitude to make that decision based
on what was placed before
him. Accordingly, the application to review
the award should fail. I have further had regard to the issue of
costs, and I am of
the view that there is no basis for such an order
to be made.
Order:
i.
The application to review and set aside the
arbitration award issued by the First Respondent under case number
PSSS229-12/13 is
dismissed.
ii.
There is no order as to costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Mr JM Gouws of Johan Gouws Attorneys
On
behalf of the Respondent: Adv Makoti
Instructed
by: The State Attorney
[1]
[2007]
12 BLLR 1097 (CC)
[2]
Goldfields
Mining South Africa (Pty) Ltd v CCMA
(2014)
35 ILJ 943 (LAC) at para [20]; See also
South
African Medical Association obo Mabuza and Others v Commissioner
Moletsane and Others
(JR834/12) [2014]
[3]
[2015]
1 BLLR 23 (LAC)
[4]
At
para [15]
[5]
Page
103 of the indexed bundle