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[2015] ZALCJHB 436
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Leve v General Public Service Bargaining Council and Others (P523/10) [2015] ZALCJHB 436 (11 December 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: P 523/10
In the matter between
ZOLEKA
LEVE
Applicant
and
GENERAL PUBLIC SERVICE
BARGAINING
COUNCIL
First Respondent
COMMISSIONER
DHLODHLO
Second Respondent
MEC OF SPORT,
RECREATION
ARTS & CULTURE -
EASTERNCAPE
Third Respondent
Heard:
23 April 2015
Delivered:
11 December 2015
Summary:
An arbitration award cannot be reviewed and set aside when the
applicant has failed to establish
that an award falls outside the
bounds of reasonableness.
JUDGMENT
LALLIE, J
Introduction
[1] In this application,
the applicant seeks and order reviewing and setting aside the
arbitration award of the second respondent
(“the arbitrator”)
in which she found the dismissal of the applicant substantively and
procedurally fair. It is opposed
by the third respondent.
Factual background
[2] The factual
background to this dispute is that the applicant was employed by the
Department of Sport, Recreation Arts and Culture
in the Province of
the Eastern Cape (“the Department”) in 1984. She occupied
the position of administrative officer
when she was dismissed on 25
June 2009. The events leading to the applicant’s dismissal are
that in 2009 the Department arranged
Freedom Day celebrations to be
held at Matatiele. Desirous of attending the celebrations, the
applicant sought authority for the
Department to pay for the hotel
accommodation for her and a number of her colleagues. She was later
charged with falsifying/defrauding
the signature of the Head of
Department (“HOD”) on a submission document dated 23
April 2009, misleading the pre-audit
unit into processing the
submission as an authentic document signed by the HOD, causing the
Department to incur unauthorised expenditure
in the amount of
R4399.00 and making a false statement when required to account for
the authorisation by the HOD to attend the
celebrations. A
disciplinary enquiry found her guilty of the first three charges and
took a decision to dismiss her. Aggrieved
by her dismissal she
referred an unfair dismissal dispute to the first respondent where
the arbitrator issued the arbitration award
which the applicant seeks
this Court to review and set aside.
[3]
The applicant delayed in filing her review application and applied
for condonation. The condonation application is unopposed.
The extent
of the delay is 10 days. It can be attributed to her erstwhile
attorney’s failure to prosecute the review application
with the
necessary diligence. As the extent of the delay is minimal and its
explanation is reasonable, I am of the view that the
applicant has
established the necessary grounds for her condonation application to
succeed.
The arbitration award
[4] In the arbitration
award, the arbitrator summarized the evidence of witnesses. In
determining whether the Department discharged
the onus of proving the
substantive and procedural fairness of the applicant’s
dismissal, the arbitrator conducted the enquiry
as envisaged in item
7 of schedule 8 to the Labour Relations Act 66 of 1995 (“the
LRA”). She considered whether the
applicant breached a rule or
standard of conduct, whether she was aware of the rule, whether the
rule was reasonable, whether the
Department was consistent in
applying the rule and whether dismissal was an appropriate sanction.
She noted that both the Department
and the applicant submitted that
the HOD did not approve the applicant’s submission with a list
of officials including herself
requesting payment for accommodation
in Matatiele for the Freedom Day celebrations but advised her to
follow protocol. She considered
the applicant’s version that
she left the HOD’s response on her desk and went home
frustrated at the end of the business
day. She rejected it and her
evidence that she was told by a colleague that her submission had
been approved because she failed
to call the colleague as a witness.
She further rejected the applicant’s evidence that the original
signed submission was
later found in the finance section because it
was not proved. She accepted evidence on behalf of the Department to
the effect that
the applicant submitted a copy of her approved
submission which was accepted with the understanding that she would
submit the original
document later. She failed to submit it and did
not report for duty the following day. She found the Department’s
witnesses
credible and accepted their version.
[5] The arbitrator found
that the reasonableness of the rule was not challenged. She rejected
the applicant’s defence of inconsistency
because of her failure
to substantiate it and the relevance of the role played by of her
colleague who also attended the Freedom
Day celebrations. She found
the sanction of dismissal appropriate because of the gravity of the
misconduct which breached the trust
relationship between the
applicant and the Department.
Grounds for review
[6] The applicant’s
grounds for review are that the arbitration award is unreasonable. It
is an award that a reasonable decision-maker
could not reach. It is
incompatible with the evaluation of the evidence on which it is
purportedly based. It is unreasonable to
the extent that an inference
can be drawn that the arbitrator did not, either properly or at all
apply her mind to her decision
or failed to consider the evidence
before her properly. In the supplementary affidavit, the applicant
added further grounds. She
submitted that the arbitrator committed a
gross irregularity by unreasonably failing to attach due weight to
the applicant’s
defence of inconsistency. She erred in
concluding that the trust relationship had broken down irretrievably
in the absence of evidence
to that effect. She committed a further
gross irregularity by irrationally attaching weight to the
applicant’s failure to
call specific witnesses when she failed
to attach the same weight to the Department’s failure to call
the HOD whose signature
was forged as a witness. A further criticism
of the award is based on the arbitrator’s failure to assess the
relevance of
a portion of the Department’s evidence. She failed
to determine the credibility and probabilities of the Department’s
witnesses. She failed to consider that the pre-audit section applied
the rule inconsistently as it approved a fellow employee’s
submissions without a letter from the HOD. The applicant submitted
that the gross irregularities committed by the arbitrator deprived
her of the right to a fair hearing in that she was not afforded an
opportunity to have her evidence assessed fairly and properly.
[7] The third respondent
opposed the application on the grounds that its witnesses discharged
the onus of proving the substantive
and procedural fairness of the
applicant’s dismissal. It submitted that the findings of the
arbitrator are supported by the
evidence which served before her. The
finding that the sanction of dismissal was appropriate was correct in
that the applicant
persisted with her denial of having committed the
misconduct which led to her dismissal and showed no remorse.
Corrective discipline
would therefore not be effective. Contrary to
the unsubstantiated allegations the applicant sought to rely on, a
reading of the
award proves that the arbitrator applied her mind to
the evidence which served before her, evaluated it and took into
account all
the relevant factors. The third respondent submitted that
the applicant’s review is an appeal dressed as a review. It is
the third respondent’s case that the piecemeal approach the
applicant adopted is impermissible and that she failed to prove
valid
grounds to have the arbitration award reviewed and set aside.
Analysis
[8] The applicant
submitted that her main ground for review is that her version that
she left the document which was unsigned by
the HOD on her desk was
probable. She criticised the arbitrator for accepting circumstantial
evidence by Ms Mona (“Mona”)
that the applicant forged
the signature of the HOD instead of drawing a negative inference from
the third respondent’s failure
to call the HOD as a witness.
The third respondent correctly pointed out that the applicant’s
argument overlooks the reality
that its evidence that the signature
of the HOD was falsified was not in dispute. The third respondent’s
failure to call
the HOD as a witness is therefore of no moment.
[9] The applicant further
argued that the arbitrator failed to consider some aspects of the
case before her which clearly supported
her case in evaluating the
inherent probabilities of the versions before her. One such aspect
was that Ms Ntebele (“Ntebele”)
approved submissions in
respect of a group which did not include the applicant without
requiring the approval of the HOD. The record
reflects that Mona
explained that the approval was granted in error by a newly appointed
accounting clerk. Another aspect of the
evidence which the applicant
argued that the arbitrator failed to consider is that when Ntebele
testified that she said “please
give them the original letter
if they want it” she knew that the original did not exist. Her
evidence was, so went the argument,
improbable. The submission is not
supported by Ntebele’s unchallenged evidence. The record
reflects that when she made the
comment she was not aware of the
problem that the signature of the HOD had been falsified. She was
told that the original document
was needed and her natural response
was that it should be supplied. A further aspect which proved the
applicant’s innocence
but was not taken into account by the
arbitrator is that the logical conclusion to be drawn from Mona’s
evidence was that
the applicant did not give her the required
original document yet she continued to process the submission. The
record reflects
that Mona explained that when a submission entails a
list of officials they did not insist on the original document as it
may be
attached to documents of one of those officials. She further
explained that copies were sometimes accepted but before payment was
effected the original document would be required. A further
explanation was that the applicant presented her submission with a
copy of the HOD’s approval towards the end of the business day.
The criticism is therefore not supported by the evidence
tendered at
the arbitration.
[10] The applicant’s
argument that the arbitrator failed to deal with the question of
inconsistency has no merit. Although
the arbitrator did not give
elaborate reasons for rejecting the applicant’s defence of
inconsistency she considered it and
gave reasons for rejecting it.
The applicant’s argument that the award is reviewable because
the arbitrator’s decision
that the trust relationship between
the applicant and the third respondent had broken down irretrievably
has no substance. The
enquiry into the substantive fairness of a
dismissal includes a determination of the appropriateness of the
sanction of dismissal.
The arbitrator found that the gravity of the
misconduct which led to the applicant’s dismissal breached the
trust which existed
in the employment relationship and found the
sanction of dismissal appropriate.
[11]
The power of the Labour Court to interfere with arbitration awards is
expressed in the following words in
Herholdt
v Nedbank Ltd
[1]
‘
In summary,
the position regarding the review of CCMA awards is this: A review of
a CCMA award is permissible if the defect in the
proceedings falls
within one of the grounds in section 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 enquiry
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’.
In
Fidelity
Cash Management
Service
v
CCMA and Others
[2]
the court sounded the reminder that in assessing the reasonableness
or otherwise of an award of the CCMA, the reviewing court needs
to be
alive to the fact that the task of determining the fairness or
otherwise of a dismissal is given to commissioners by the
LRA. The
court in G
old
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[3]
confirmed
that in determining the reasonableness of an award the reviewing
court needs to consider the totality of the evidence
before the
arbitrator and avoid a piecemeal approach.
[12] The totality of the
evidence before the arbitrator shows that the applicant wished to
attend Freedom Day celebrations at Matatiele
and have her hotel
accommodation paid for by the Department as it had undertaken to pay
for some officials. She was unaware that
the undertaking to pay for
some officials resulted from an error by a newly appointed accounting
clerk. She made a submission which
she submitted to the pre-audit
unit. It was rejected. The applicant sought an explanation for the
rejection from Mona, the state
accountant at the pre-audit unit. She
was told that her submission needed the approval of the HOD. Later
the applicant presented
the submission to Mona with a copy of the
approval of the HOD. The submission was accepted and processed. The
undisputed evidence
of Tshetsha, the personal assistant to the HOD
was that the HOD refused to approve the applicant’s submission
and directed
her to follow protocol as it was senior managers who
were supposed to write to him. The submission was then returned to
the applicant
never to be presented for the approval of the HOD
again. The applicant’s version was that after reading the
response of the
HOD she showed it to her colleagues and went home at
the end of the business day. She was informed by a colleague the
following
day that her submission had been approved. She denied
having presented an approved submission to Mona.
[13]
As the arbitrator was presented with two mutually exclusive versions
she had to resolve the dispute of fact. In
Sasol
Mining
(Pty)
Ltd v Commissioner Ngqeleni,
[4]
the
court referred with approval to
SFW
Group Ltd and Another v Martell et Cie and Others
[5]
where the court expressed the view that the technique for resolving a
dispute of fact involves making findings on the credibility
of
factual witnesses, their reliability and probabilities. The purpose
of the test is to ensure that commissioners apply their
minds to the
dispute of fact and reach informed findings on the issue. A reading
of the award reflects that the arbitrator applied
her mind to the
dispute of fact. She considered that both the applicant and the third
respondent submitted that the HOD did not
approve the applicant’s
submission but advised her to follow protocol. Ntebele submitted that
she withdrew her earlier submission
and advised her staff that she
could do nothing without the HOD’s approval. The arbitrator
made a finding that the applicant
did not challenge Ntebele’s
version or submit convincing evidence on how the submission with the
HOD’S approval landed
at the pre-audit section despite its none
approval. She further considered Mona’s evidence that the
applicant submitted a
copy to her before knock off time with the
understanding that originals would be submitted later and weighed it
with the applicant’s
version that she left the HOD’s
response in her office and went home frustrated at knock off time.
She noted that Mona’s
version was not challenged. She laid a
considered foundation for her finding that the evidence of the third
respondent’s
witnesses was credible and that it proved on a
balance of probabilities that the applicant had breached the third
respondent’s
rule.
[14]
An assessment of the reasonableness of the arbitration award proves
that the arbitrator did not misconceive the nature of the
enquiry.
She made the correct enquiry into the fairness of the applicant’s
dismissal. The applicant failed to establish a
defect in the award.
The arbitration award falls within bounds of reasonableness. The
review application can therefore not succeed.
[15] In the premises,
the following order is made:
15.1
Condonation of the late filing of the review application is granted.
15.1
The application for review is dismissed.
_____________________________
Lallie, J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Ms Van Staden of the Justice Centre
For
the Respondents: Advocate Simoyi
Instructed
by: The State Attorney
[1]
[2013]
11 BLLR 1074
(SCA) it para 25:
[2]
[2008] 3 BLLR 197
(LAC)
[3]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)
[4]
[2011] 4 BLLR 404
(LC)
[5]
2003
(1) SA 11
(SCA)