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[2015] ZALCJHB 344
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Matlopela v Provincial Department of the Treasury and Others (JR2984/12) [2015] ZALCJHB 344 (30 September 2015)
REPUBLIC
OF SOUTH AFRICA
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, POLOKWANE
JUDGMENT
C
ase
no: jr 2984/12
In
the matter between:
MOSEBUDI MATLOPELA
Applicant
and
PROVINCIAL
DEPARTMENT OF THE TREASURY
First Respondent
MAAKE FRANCIS
KGANYAGO (
N.o.
)
Second Respondent
GENERAL PUBLIC
SERVICE SECTORAL BARGAINING COUNCIL
Third Respondent
Heard
:
20 May 2015
Delivered
:
30 September 2015
Summary:
(Review – unfair labour practice –
demotion – application dismissed)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is a review application to set aside
an arbitration award issued by the second respondent in terms of
which he dismissed the
applicant’s claim of an unfair labour
practice concerning her demotion from a post at level 12 to a post at
level 9 with
effect from 1 September 2011, in which she earns
substantially less than she did before. The applicant was demoted
after being
found guilty on charges of fraud, gross negligence and
dishonesty arising from S&T claims made in respect of kilometres
travelled
between Polokwane and Johannesburg, in order to attend
courses provided by the Public Relations Institute of South Africa
(PRISA)
in March, May and June 2010.
[2]
The applicant also seeks relief declaring
her only termination of her original contract of service on 31 August
2011 as unlawful,
wrongful and unfair. This claim arises out of the
fact that the payslip for 01 September 2011 records that date and the
date of
her appointment and contains no reference to her previous
service with the first respondent.
[3]
The first respondent was late in filing its
answering affidavit and the applicant raised an
in
limine
objection to this. However, as
the first respondent correctly pointed out, paragraph 11.4.2 of the
Labour Court Practice Manual
provides that unless the other party
files a notice of objection to the late filing of an affidavit within
ten days after the receipt
of the affidavit, the right to object
thereto lapses. In this instance, the applicant did not file a notice
of objection and accordingly
this objection falls away.
[4]
The applicant used her private vehicle to
travel to the training courses and was entitled to claim travel
allowance based on the
number of kilometres travelled and related to
the size of vehicle. In essence, the applicant was accused of
inflating the actual
mileage travelled in order to increase her
travel allowance claim.
Material
aspects of the evidence in the arbitration
[5]
In the course of the arbitration hearing,
evidence was led that the applicant had claimed for 943 km, 938 km
and 1079 km travelled
during her respective trips in March, May and
June 2010. According to the evidence she ought only to have recorded
approximately
608 km for each trip, at least one third less than each
of her actual claims. Even allowing for 100 km travelled in the
course
of attending the training whilst in Johannesburg,
approximately 200 km travelled on each trip needed further
explanation.
[6]
While she attended the training, the
applicant stayed in Sandhurst and travelled to Ferndale each day for
the training. The applicant
said that the distance between her
accommodation and the training facility was approximately 10 km.
[7]
In respect of her trip in March, the
applicant was challenged in cross-examination on how her return trip
could have been 475 km,
which was longer than her outward bound trip
in light of her explanation that the apparently excessive distance on
the outward
bound trip was on account of getting lost due to road
works connected with the preparation for the soccer World Cup. She
then sought
to explain the obvious discrepancy being attributable to
the fact that she simply divided the total distance travelled to and
from
Sampson by two. In terms of the travelling time reflected she
claimed to have travelled only thirty minutes longer on the outward
bound trip than on the return. The applicant was then confronted with
the fact that even if allowance was made for travelling to
and from
the accommodation and the venue whilst in Johannesburg, there was
still approximately 200 km unexplained, which could
not be attributed
to the distance she might have travelled during the additional thirty
minutes she took on her outward bound journey
when she said she was
lost. Her response was to attempt to shift the blame to the person
who had approved the claims who should
have asked her about it at the
time. The applicant encountered similar problems in explaining the
additional kilometres travelled
during her trip in May 2010. In
trying to explain the even more excessive finger relating to the June
trip, she claimed that her
supervisor had misled her in assisting her
to complete the form because he wanted to get her into trouble as he
was already facing
a sexual harassment claim, something she had not
mentioned in her evidence in chief.
The
arbitration award
[8]
The crux of the arbitrator’s
reasoning is that he concluded that even though the applicant denied
inflating her claims she
was unable to justify all the kilometres she
had claimed. He found that the ultimate explanation she relied upon
namely, that she
had simply estimated the kilometres travelled and
had not properly completed the details of her trip on the log sheet
amounted
to negligence and by making such estimates she was
implicitly conceding that she was not claiming the exact kilometres
travelled
which amounts to fraud.
[9]
The arbitrator further concluded that in
the circumstances where the trust relationship was broken because of
her dishonesty, the
employer had been lenient in only demoting her.
By implication, the arbitrator seemed to be saying that she could
just as well
have been dismissed for the misconduct.
Grounds
of review and evaluation
[10]
I will only have regard to those grounds of
review of which were supported by factual averments. Consequently,
where the applicant
simply made broad statements alleging fatal
defects in the arbitrator’s reasoning these are not dealt with.
The main ground
of attack on the arbitrator’s award is to
dispute its rationality. It is useful to mention that the current
approach to a
review test based on irrationality is as follows:
“
[12]
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. The reasons are
still considered in order to
see how the arbitrator reached the result. That assists the court to
determine whether that result
can reasonably be reached by that
route. If not, however, the court must still consider whether, apart
from those reasons, the
result is one a reasonable decision maker
could reach in the light of the issues and the evidence.
[13]
The distinction between review and appeal, which the Constitutional
Court stressed is to be preserved, is therefore
clearer in the case
of the Sidumo test. And while the evidence must necessarily be
scrutinized to determine whether the outcome
was reasonable, the
reviewing court must always be alert to remind itself that it must
avoid 'judicial overzealousness in setting
aside administrative
decisions that do not coincide with the judge's own opinions'. The
LAC subsequently stressed that the test
'is a stringent [one] that
will ensure that … awards are not lightly interfered with' and
that its emphasis is on the result
of the case rather than the
reasons for arriving at that result. The Sidumo test will, however,
justify setting aside an award
on review if the decision is 'entirely
disconnected with the evidence 'or is 'unsupported by any evidence'
and involves speculation
by the commissioner.”
[1]
[11]
Firstly, the applicant claims that the
arbitrator did not understand the nature of the enquiry before him.
The basis for this argument
is that the applicant claims that he
completely ignored her explanation that the kilometres travelled were
unjustifiably perceived
to be too high. She purports to reiterate her
explanation that in some instances she got lost, in others the
convenient routes
which would have shortened the distance were under
construction and the kilometres also included kilometres travelled to
and from
her accommodation. This is not a fair reflection of the
arbitrator’s reasoning. It is clear that he had difficulties in
accepting
the varied explanations she offered. It is clear from the
evidence that even if a generous allowance was made for travel
between
the training venue and her accommodation during each trip,
there was still a substantial number of unexplained kilometres
travelled.
[12]
The applicant further sites evidence of the
arbitrator’s supposed irrationality in that he failed to take
account of the fact
that the employer did not explain why it failed
to refer her claims back to her if she had failed to properly record
her travel
from point-to-point as she was supposed to. In reviewing
the evidence, the question of her failure to record each leg of her
trip,
it hardly assists her to blame somebody checking her
submissions for the fact that the form was not properly completed in
the first
place. That was primarily her responsibility. In any event,
the absence of a detailed log of her travels, simply made it more
difficult
for her to explain the excessive mileage travelled.
[13]
She also claims that the arbitrator
intervened unnecessarily during the course of her evidence and the
examination of the employer’s
witnesses and that his
intervention was high handed gratuitous and invasive. It is true that
on occasion the arbitrator intervened
in the proceedings, but where
he did intervene it was largely in order to clarify issues or to
avoid unnecessary or irrelevant
evidence being led. The mere fact
that the parties are represented, does not mean the arbitrator is
required to behave like a mute
linesman. The arbitrator, within
reason, has an obligation to try and ensure that proceedings are
conducted in an expeditious manner.
There is certainly no evidence
that in any particular respect the applicant was unduly prejudiced in
being able to present her
case as a result of the arbitrator’s
conduct.
[14]
In addition, the applicant argues that the
arbitrator’s statement to the effect that she was let off
lightly was insensitive
and is a further indication that he was
unduly biased in favour of the employer. The arbitrator’s
statement to this effect
may have been unusually forceful, but it is
saying little more than expressing his view that the employer was
lenient in dealing
with her misconduct. I do not think that is
necessarily an expression of obvious bias.
[15]
Lastly, she submits that in stating that
she had failed to discharge the onus of proof he displayed his lack
of understanding of
the rules of evidence and misdirected himself as
to who bore the onus of proof that the kilometres were inflated or
that misconduct
in the form of corruption, fraud and dishonesty was
committed. It appears that perhaps the applicant was conceptualising
the proceedings
as a disciplinary enquiry
de
novo
as would have been the case if the
dispute before the arbitrator was an unfair dismissal dispute. In
terms of section 188 (1) of
the Labour Relations Act 66 of 1995 (‘the
LRA’), an employer bears the onus of proving that the dismissal
was substantively
and procedurally unfair. In the case of an unfair
labour practice the onus rests on the employee, in this case to prove
that she
was unfairly demoted. In so far as her case rests on an
argument that she ought not to have been found guilty, it is for her
to
prove that the charges were unfounded. What is apparent from the
arbitrator’s own analysis and from the evidence she presented,
it is that her evidence fell woefully short of explaining a
significant portion of the mileage travelled on each trip, quite
apart
from the fact that her own explanations changed whenever she
encountered difficulties with one of them.
[16]
The applicant could not explain close to a
quarter of the mileage for which she had claimed reimbursement for
each trip. As the
arbitrator noted, even on her own account she just
estimated the mileage and did not bother to give an accurate account
of her
trip. Therefore, she knew that the figures she presented were
not necessarily correct, but nonetheless she would be paid on the
basis of what she had submitted. It was not unreasonable of the
arbitrator to conclude that she was dishonest in not submitting
the
correct information, especially if one considers that she stood to
benefit from any overstatement of the distance travelled.
Concluding
that she had made a dishonest representations in submitting her
travel claims is not one that no reasonable arbitrator
could have
reached on the evidence.
[17]
In the circumstances, I am not satisfied
that the applicant has established any cogent reasons for the setting
aside the arbitrator’s
award on review.
The
alleged termination of the applicant’s services
[18]
As mentioned above, the applicant claimed
that her services had been terminated on the face of the details
appearing on her payslip
of September 2011. Her concern in this
regard was perhaps understandable since the payslip might be
interpreted to give the impression
that she had no prior service with
the first respondent. In the first respondent’s answering
affidavit it was said that the
conclusion of the new contract was
nothing but an operational matter intended to implement the award.
Further, at the hearing of
this matter, first respondent’s
counsel confirmed that the applicant remained in continuous
employment and that there was
no interruption of her service as a
result of her demotion. For the sake of clarity this is recorded
below.
Order
[19]
The fifth review application is dismissed
with no order as to costs.
[20]
By agreement, it is declared that the
service of the applicant was uninterrupted by her demotion with
effect from 01 September 2011.
___________________
Lagrange J
Judge of the Labour
Court of South Africa
APPEARANCES
APPLICANT:
M Ramushu of Messrs
Ramushu Mashile Twala
Inc.
FIRST
RESPONDENT:
M Mphahlele
Instructed by State
Attorney, Pretoria
[1]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013) 34
ILJ
2795
(SCA) at 2801-2