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[2015] ZALCJHB 308
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Department of National Treasury v General Public Service Sectoral Bargaining Council and Others (JR2044/12) [2015] ZALCJHB 308 (16 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: JR 2044/12
In
the matter between:
THE
DEPARTMENT OF NATIONAL
TREASURY
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
PZG
PEKALSKI
N.O.
Second Respondent
K
MOODLEY
Third Respondent
MS
BALOYI
N.O.
Fourth Respondent
Delivered:
16 September 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This application was brought before the Court in terms of section 158
(1) (h) of the Labour Relations Act
[1]
(the LRA). In its Notice of Motion, the Applicant sought the
following order;
“
1.
That the arbitration award handed down by the second respondent in
favour of the third
respondent dated 2 July 2012 be and is hereby
reviewed and set aside.
2.
That the matter be remitted back to the Bargaining Council to be
heard
de novo
before another arbitrator
3.
Alternatively to the above, that the decision of the fourth
respondent imposing
a sanction of demotion of the third respondent be
and is hereby reviewed and set aside.
4.
Costs only in the event of opposition by any respondent.
5.
Such further and/or alternative relief as the Honourable Court seems
meet”
(Sic)
[2]
In the award, the Second Respondent (Arbitrator) had concluded that
the Third Respondent (Moodley), who was found guilty at
the internal
disciplinary enquiry on nine out of eleven charges of misconduct, was
given an option of either a dismissal or demotion
by the Chairperson
of that enquiry, and had accordingly elected the latter sanction. To
the extent that the Chairperson of the
enquiry had afforded Moodley
that option, the Arbitrator concluded that the subsequent decision by
the Applicant to dismiss her
was unfair. The Arbitrator ordered that
Moodley should be reinstated with retrospective effect, subject to a
demotion. The application
for review is opposed on a variety of
grounds. Preliminary points were also raised on behalf of Moodley.
Background:
[3]
The background facts are fairly common cause and can be summarised as
follows:
3.1
Moodley was employed as Director: Facilities Management with effect
from August 2007. On
19 April 2011 she was notified to attend a
disciplinary enquiry to answer to eleven charges of misconduct which
included
inter alia
, conflict of interest, non-compliance with
Supply Chain Management Policy, failure to comply with the employer’s
leave policies
and procedures as she was absent from work without
authorisation for 48 days, and abuse of authority and the employer’s
assets.
3.2
The Fourth Respondent (Chairperson) had following the disciplinary
enquiry, issued her findings
on 24 December 2011, wherein Moodley was
found guilty on nine of the eleven charges of misconduct. Having
afforded the parties’
representative an opportunity to present
mitigating and aggravating factors, on 9 February 2012 the
Chairperson issued a sanction
in respect of each of the charges
Moodley was found guilty on, including a dismissal (in respect of
five charges), warnings and
written warnings (in respect of two
charges), and a final written warning (in respect of two charges).
3.3
Despite the above verdict, the Chairperson’s final
determination on the matter was
as follows;
“
The
sanction of dismissal is imposed with a demotion as an alternative.
Paragraph
7.5.18 of the employer’s Employee Relations Guideline shall
apply”
[2]
3.4
Moodley on 15 February 2012 accepted the option of a demotion via a
letter sent to the Applicant
by her attorneys of record. The
Applicant however sought clarification of the decision from the
Chairperson of the enquiry. The
Chairperson in clarifying the matter
stated that paragraph 7.5.18 of the Applicant’s Employee
Relations Guidelines empowered
her in circumstances where a
disciplinary enquiry involved a member of the SMS, to impose the
sanction of dismissal with the alternative
of,
inter alia
a
demotion. Thus the primary sanction of dismissal was imposed and the
alternative of demotion applied only should the employee
agree to the
demotion instead of a dismissal. The Chairperson further stated that
the provisions mentioned required a sanction
as determined by her to
be presented to the employee for her to make an election whether to
accept dismissal or demotion. Where
the employee elected demotion, in
terms of the provisions of paragraph 7.5.18, that employee shall not
be eligible to apply for
a promotion before the expiry of one year
after the sanction was imposed.
4.5
Upon the above clarification, the Applicant nevertheless decided to
impose a sanction of
dismissal on 20 February 2012, its view being
that the charges against Moodley were of a serious nature, and the
sanction imposed
by the Chairperson was grossly unreasonable. In a
letter from the Applicant’s Director-General, Moodley was
further
informed that she was discharged in terms of section 16B (1)
of the Public Service Act, 1994 (as amended) on account of misconduct
in that she was found guilty of several charges.
4.6
Moodley had then referred a dispute to the First Respondent on 13
March 2012. A certificate
of outcome was issued on 5 April
2012, and the matter came before the Arbitrator on 19 June 2012.
4.7
On 20 May 2012, the Applicant’s representative, Richter had
requested that the parties
prepare a pre-arbitration minute in
preparation for the hearing. The parties had thereafter agreed to
limit the issues to the fairness
of the sanction imposed by the
Applicant, and to have the matter determined based on arguments and
documentation to be presented
to the Arbitrator.
4.8
In accordance with the parties’ agreement, no oral evidence was
led at the arbitration
hearing held on 19 June 2012, and the parties
had handed in bundles of documents and written heads of argument. The
Arbitrator
issued the award on 2 July 2012.
Preliminary
points and evaluation:
(a)
Section 158 (1) (h) or section 145 of the LRA?
[5]
The application in terms of section158 (1) (h) of the LRA
[3]
was filed on 21 September 2012. Contentions made on behalf of Moodley
were that the application before the Court was clearly irregular,
especially since the primary subject of the review was the
arbitration award handed down by the Arbitrator. It was submitted on
behalf of Moodley that an arbitration award is subject to review in
terms of section 145 of the LRA
[4]
,
and not in terms of section 158 (1) (h), and that different rules and
procedures arose from these two provisions.
[6]
Notwithstanding the fact that the application was brought under the
provisions of section 158 (1) (h) of the LRA, when the matter
was
argued before court,Adv Mokhari SC on behalf of the Applicant
disavowed any reliance on the provisions of section 158 (1) (h)
of
the LRA, and contended that the application should be considered
under the provisions of section 145 of the LRA. The argument
was that
the award was defective within the contemplation of section 145 (2),
and that in the founding affidavit, it had been submitted
that the
award was grossly unreasonable and irrational, and that the
Arbitrator had failed to determine the issue for arbitration
as
required by section 138 of the LRA.
[7]
It is trite that the review of arbitration proceedings under the
auspices of the CCMA or Bargaining Councils must proceed under
the
provisions of section 145 of the LRA
[5]
.
The distinction between the provisions of section 145 and those of
section 158 (1) (h) are not merely formal and technical as
argued on
behalf of the Applicant. Different rules and procedures are
applicable where these provisions are relied upon.
[8]
As also correctly pointed out on behalf of Moodley, the grounds of
review under section 145 of the LRA are limited to those
referred to
in section 145 (2), whereas the grounds of review in terms of section
158 (1) (h) are wider. Furthermore, applications
brought in terms of
section 158 (1) (h) are subject to Rule 7 of the Rules of this Court
and must be filed within a reasonable
period, whilst those brought in
terms of section 145 are subject to Rule 7A of the Rules, and should
be filed within six weeks
of the award being issued.
[9]
I have taken regard of contentions made on behalf of Moodley that it
is doubted whether the Applicant can review its own decisions.
In
this regard, it is my view that it should be accepted flowing from
Hendricks
v Overstrand Municipality and Another
[6]
that the Labour Court has the power under section 158(1) (h) of the
LRA to review the decisions taken by a presiding officer of
a
disciplinary hearing. The Applicant is an organ of state as defined
in section 239 of the Constitution
[7]
,
and it is accepted that any decision taken by it in dismissing
Moodley subsequent to the decision of the Chairperson is an exercise
of a public power or performing a public function.
[10]
I am further in agreement with the submissions made on behalf of
Moodley that an application for the review of the Arbitrator’s
award in terms of section 158 (1) (h) of the LRA is clearly
untenable, especially in view of the fact that Rule 7A rather than
Rule 7 was relied upon in bringing that application. There is
therefore no merit in the Applicant’s approach that these
issues were merely technical and irrelevant, and should not stand in
the way of a determination of whether the award was reasonable.
[11]
The issues raised on behalf of Moodley in regards to the provisions
relied upon in bringing this application before the Court
are not
merely technical. It is trite that in motion proceedings, one ought
to stand or fall by one’s notice of motion and
the averments
made in one’s founding affidavit
[8]
.
Equally unacceptable is any attempt by a party to make out a new case
in heads of argument or from the bar. This point was re-emphasised
by
Zondo J in his dissenting judgment in
Nkosinathi
Lawrence Khumalo and another v MEC for Education: Kwazulu-Natal
[9]
,
where he stated that;
“
It is trite
that in motion proceedings an applicant must make his or her case in
the founding affidavit. A litigant who has not
made his or her case
in the founding affidavit cannot escape the consequences of that
omission by making it in his or her heads
of argument……”
[12]
To the extent that the Applicant had disavowed any reliance on
section 158 (1) (h) of the LRA, the issue is whether there is
a basis
for the court to deal with the application in terms of section 145 of
the LRA. Guidance in this regard is sought from the
principles set
out in
Gcaba
v Minister for Safety and Security and Others
[10]
,
where the Constitutional Court stated that the applicant’s
pleadings contain the legal basis of the claim under which the
applicant has chosen to invoke the court’s competence. The
Constitutional Court further held that:
“……
.
While the pleadings – including in motion proceedings, not only
the formal terminology of the notice of motion, but also
the contents
of the supporting affidavits – must be interpreted to establish
what the legal basis of the applicant’s
claim is, it is not for
the court to say that the facts asserted by the applicant would also
sustain another claim, cognisable
only in another court. If however
the pleadings, properly interpreted, establish that the applicant is
asserting a claim under
the LRA, one that is to be determined
exclusively by the Labour Court, the High Court would lack
jurisdiction…..”
[13]
Central to Moodley’s contentions was that to the extent that
reliance on section 185 (1) (h) was now disavowed, the Applicant
could not be allowed to rely on the provisions of section 145 of the
LRA as only in the supplementary affidavit
[11]
and in the replying affidavit
[12]
was there any indication that reliance was ever placed on the latter
provisions. It was submitted on her behalf that the other
references
to section 145 of the LRA were merely made in the written heads of
argument, and to the extent that this was the case,
the Applicant
sought to rely on a new cause of action.
[14]
Moodley in her written heads of argument correctly acknowledged that
the application before the court clearly conflated the
issues as
should have been brought under the provisions of section 158 (1) (h)
and those ordinarily brought under section 145 of
the LRA. In
interpreting the pleadings, including not only the formal terminology
of the Notice of Motion, but also the content
of the founding,
supplementary, answering and replying affidavits, it is my view that
despite the conflation of issues, the legal
basis of the Applicant’s
claim is to a large extent founded on the provisions of section 145
of the LRA. My conclusions in
this regard are fortified by the
following;
14.1
Despite reference to section 158 (1) (h) of the LRA in the Notice of
Motion, in the same vein, prayer 1 seeks
that the arbitration award
be reviewed and set aside.
14.2
Prayer 3, which would ordinarily be competent under the provisions of
section 158 (1) (h) of the LRA is sought
in the alternative, and has
since been abandoned as a result of section 158 (1) (h) being
disavowed.
14.3 In
the founding affidavit deposed to by Mngomezulu on behalf of the
Applicant, it was stated under
PURPOSE OF THE APPLICATION:
that;
“
The
purpose of this application is to review and set aside the award that
was made by the second respondent in favour of the third
respondent
dated 2 July 2012 in the Bargaining Council under case no GPBC
992/2012 and further to review and set aside the decision
of the
fourth respondent dated 9 February 2012”
14.4
Under paragraph 30 of the founding affidavit, it was submitted that
the Arbitrator committed gross irregularity
(and the reasons are set
out in sub-paragraphs 30.1 to 30.3)
14.5 In
the supplementary affidavit deposed to by Majeke on behalf of the
Applicant, an averment was made at paragraph
13 that the Arbitrator
misconstrued his functions and powers in terms of the LRA. At
paragraph 14 it is averred that the arbitrator’s
award was
irrational and grossly unreasonable in the light of the seriousness
of the charges; that the Arbitrator failed to perform
his functions
as required by the provisions of section 138, and that the award was
grossly unreasonable.
14.6 At
paragraph 15 of the supplementary affidavit, it is stated that the
arbitrator’s award was defective
within the meaning of section
145 of the LRA and fell to be reviewed and set aside.
14.7 In
her answering affidavit, Moodley had raised preliminary points in
regards to the non-observance of the
Rules of this Court, in
particular, Rule 7A (6) read with Rules 7A (5) and (8); and the late
delivery of the supplementary affidavit.
14.8
Moodley admitted in her response to the contention that the purpose
of the application was to review and
set aside the award. She had
however denied that a case had been made out for the relief sought,
and further denied that the Applicant
sought to review and set aside
the decision of the fourth respondent as a prayer in the notice of
motion in that regard was in
the alternative, and not in addition to
the main prayer. She further pointed out no steps had been taken by
the Applicant to review
the Chairperson’s decision until after
the award was issued.
14.9
Moodley had responded to the averments made in regards to the reason
the Arbitrator’s award should
be reviewed and set aside, and
accordingly defended the Arbitrator’s decision by stating
inter
alia
that the Arbitrator had acted appropriately and had not
committed any errors.
[15]
In the light of the above factors as gleaned from the pleadings, it
should be concluded that despite the Notice of Motion making
reference to an incorrect provision, there is a legal basis for the
Court to consider the matter under the provisions of section
145 of
the LRA. There is no basis therefore for any conclusion to be reached
that by disavowing the provisions of section 158 (1)
(h), a new cause
of action was now placed before the Court. The intention to review
the award,
albeit
conflated, is prevalent throughout the
Applicant’s pleadings, and Moodley, in her answering affidavit,
sufficiently dealt
with any averments that pertain to the relief
sought in regards to the arbitration award. To this end, I am
satisfied that the
application should be dealt with in accordance
with the provisions of section 145 of the LRA.
(b)
Condonation:
[16]
The award was issued on 2 July 2012, and the application was brought
before the Court on 21 September 2012. In terms of section
145 (1)
(a) of the LRA, a review application ought to have been brought
within six weeks of the date that the award was served
on the
applicant. The application for review was filed some six weeks out of
time. It is trite that on good cause shown, the Court
may condone the
non-observance of the time frames. The Court in considering whether
or not to grant condonation exercises a discretion,
taking into
account the relevant factors identified in
Melane
v Santam Insurance Co. Ltd
[13]
in the following terms;
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked”
[17]
I have regard to the extent of the delay, which in my view is not
excessive in the extreme. I have further had regard to the
explanation proffered for the delay, which in my view is
satisfactory. Crucially however is the prejudice to be suffered by
the
Applicant if condonation was not granted, especially in view of
the circumstances that led to the dismissal of Moodley, the fact
that
she did not challenge the verdict of the chairperson, and the
parties’ prospects in respect of the main claim. In my
view,
considerations of justice
[14]
in the light of the material circumstances of this case dictate that
condonation should be granted.
[18]
Further in the light of the above considerations, it is also deemed
appropriate to condone the Applicant’s non-compliance
with the
provisions of Rule 7A. Account is also taken of the First
Respondent’s late filing of the record in terms of Rule
7A (4)
of the Rules of this Court on 27 November 2012, which was accompanied
by an ‘Explanatory Affidavit’ in view
of non-compliance
with the time periods. The delay essentially was caused by the
Arbitrator who had not responded to the First
Respondent’s
repeated requests to file a record.
The
review application:
[19]
The background and circumstances under which the award was issued
have been stated elsewhere in this judgment. The only issue
for
consideration before the Commissioner was whether the sanction of
dismissal imposed on Moodley by the Applicant was fair. No
oral
evidence was presented before the Arbitrator as the issue for
consideration was crisp. In the award, the Arbitrator simply
made
reference to
De
Beers Consolidated Mines Ltd v CCMA and others
[15]
,
and
stated that arbitrators are precluded from imposing the correct
sanction. He had concluded that the unilateral decision of the
Applicant to change the chairperson’s decision after Moodley
had made an election to be demoted rendered her dismissal unfair.
[20]
The standard of review is now fairly well established. In considering
whether an award should be interfered with, the test
is that as laid
down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[16]
.
The reviewing Court is required to enquire whether the decision
reached by the arbitrator is one that a reasonable decision-maker
could not reach on the material placed before him or her. In
Head,
Department of Education v Mofokeng and others
[17]
the Labour Appeal Court, per Murphy AJA, held that:
“
The failure
by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt
v Nedbank Ltd
and this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome”
[18]
.
[21]
The Arbitrator was required to make a determination as to whether the
decision of the Director General to dismiss Moodley was
fair or not.
It being common cause that the chairperson’s findings on the
charges were not disputed, the enquiry ought to
have focussed on the
sanction of the dismissal as imposed by the Applicant. In my view,
the Arbitrator’s decision cannot
fall within a band of
reasonableness for the following reasons;
21.1
Arbitrators are required to determine whether a sanction of dismissal
was fair, having had regard to a variety
of factors, including those
set out in Schedule 8 of the LRA.
21.2
In terms of the LRA, an arbitrator has to determine whether a
dismissal is fair or not. An arbitrator is
not given the power to
consider afresh what he or she would do, but simply to decide whether
what the employer did was fair. 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
[19]
.
[22]
The arbitrator clearly failed to apply his mind to issues which were
material to the determination of the case before him,
and thus
committed a reviewable irregularity. The issue before him was not
whether he was required to impose a ‘correct sanction’
or
not. To the extent that the Arbitrator approached the issue before
him by reference to imposing the ‘correct sanction’,
it
follows that the Arbitrator failed to appreciate his mandate, and
essentially misconceived the nature of the enquiry before
him and
invariably arrived at an outcome that did not fall within the band of
reasonableness.
[23]
Ordinarily, in the light of the irregularity pointed out, and the
circumstances that led to the dismissal, the court would
be inclined
to dispense of the matter, especially given the protracted history of
this matter. This however is not an ordinary
case in that what was
before the Arbitrator for determination, and which is the subject of
the review application was the decision
of the Applicant to dismiss
Moodley, and not the decision of the Chairperson. As already
indicated elsewhere in this judgment,
the provisions of section 158
(1) (h) of the LRA have been disavowed, and there is no basis for
this Court to in any manner, determine
whether the sanction of
dismissal as imposed by the Applicant was fair or not, as to do so
would be to countenance the circumvention
of the very express
provisions of the LRA disavowed by the Applicant.
[24]
I have had regard to considerations of law and fairness and I am of
the view that a cost order is not warranted in this case.
Accordingly, the following order is made;
Order:
a)
The
arbitration award issued by the Second Respondent dated 2 July 2012
under case number GPBC992/2012 is reviewed and set aside.
b)
The
matter is remitted back to the First Respondent to be heard
de
novo
by an Arbitrator other than the Second Respondent.
c)
There
is no order as to costs.
___________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. W Mokhari SC with Adv. L Tsatsi
Instructed
by:
State Attorney
For
the Third Respondent:
Mr. Bradley Conradie
of Bradley Conradie Attorneys
[1]
Act 66 of 1995 as
amended.
[2]
Pages 19 –
49 of the indexed bundle
[3]
Which provides the
Labour Court may—
“
review
any decision taken or any act performed by the State in its capacity
as employer, on such grounds as are permissible in
law;...”
[4]
Sec 145
provides as follows:
"145 Review of arbitration
awards
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission for Conciliation
Mediation and Arbitration may apply to the Labour Court for an order
setting aside the arbitration award -
(a) within six weeks of the date that
the award was served on the applicant, unless the alleged defect
involves corruption; or
(b) if the alleged defect involves
corruption, within six weeks of the date that the applicant
discovers the corruption.
(2) A defect referred to in
subsection (1) means -
(a)
that the commissioner
(I) committed misconduct in relation
to the duties of the commissioner as an arbitrator;
(ii) committed a gross irregularity
in the conduct of the arbitration proceedings; or
(iii) exceeded the commissioner’s
powers; or
(b)
that an award has been improperly obtained
(3) The Labour Court may stay the
enforcement of the award pending its decision.
(4) If the award is set aside, the
Labour Court may -
(a)
determine the dispute in the manner it considers appropriate; or
(b) make any order it considers
appropriate about the procedures to be followed to determine the
dispute"
[5]
Carephone (Pty)
Ltd v Marcus NO & Others
1999 (3) SA 304
(LAC) at paragraph 26
[6]
[2014] 12 BLLR
1170
(LAC) at para [[29], where it was held that;
“
In
sum therefore, the Labour Court has the power under section
158(1)(h) to review the decision taken by a presiding officer of
a
disciplinary hearing on i) the grounds listed in PAJA, provided the
decision constitutes administrative action; ii) in terms
of the
common law in relation to domestic or contractual disciplinary
proceedings; or iii) in accordance with the requirements
of the
constitutional principle of legality, such being grounds
“permissible in law”…….”
See
also
Ntshangase v MEC: Finance Kwa-Zulu Natal and Another
2010 (3) SA 201
(SCA) at para [15]
[7]
“
organ of
state” means –
(a)
Any
department of state or administration in the national, provincial or
local sphere of government
[8]
Betlane v
Shelly Court CC
2011 (1) SA 388
(CC) para [29]
[9]
2014 (3) BCLR 333
(CC) at para [87]
[10]
2010 (1) BCLR 35
(CC) at paras [74] to [75]
[11]
P77, paragraph 15
of the indexed bundle
[12]
P145, paragraph
39.2 of the indexed bundle
[13]
1962
(4) SA 531
(A) at 532B-E
[14]
See
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839 F
[15]
(2000) 21 ILJ 105
(LAC)
[16]
[2007] ZACC 22
;
2008 (2) SA 24
(CC) at para 110
[17]
[2015] 1 BLLR 50
(LAC)
[18]
At para [30]
[19]
Sidumo
at para [79]. See also at para [78], where the Constitutional Court
held that;
“
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.”