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[2015] ZALCJHB 441
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Malopa v General Public Service Sectoral Bargaining Council (SSBC) - Germiston and Others (JR1031/07) [2015] ZALCJHB 441 (18 December 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
Not
Reportable
Case
no: JR1031/07
In
the matter between:
EVA
MPUDU MOLAPO
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL (SSBC) - GERMISTON
First Respondent
A
SIRKHOT
N.O.
Second Respondent
DEPARTMENT
OF HOME AFFAIRS
Third Respondent
Heard:
01 July 2014
Delivered:
18 December 2015
Summary:
Review application dismissed.
JUDGMENT
WATT-PRINGLE
AJ
[1]
This is an application in terms of section
145 of the labour Relations Act 66 of 1995 (“the LRA”) to
review and set
aside an arbitration award made by the second
respondent (“the arbitrator”) on 22 March 2007 under the
auspices of
the first respondent in terms of which the arbitrator
ruled that the dismissal of the applicant on 10 January 2003 was both
procedurally
and substantively fair.
[2]
The applicant furthermore sought a
declarator to the effect that her dismissal had been both
procedurally and substantively unfair
and reinstating her from the
date of her dismissal. However at the time of the hearing of this
application the applicant no longer
sought reinstatement but merely
twelve months remuneration as compensation for her allegedly unfair
dismissal.
[3]
At the time of hearing of this application
the Court had not been favoured with the transcript of evidence,
which rendered the motion
papers largely incomprehensible. This is no
reflection on Ms Driver who appeared for the applicant, having been
drafted in at a
late stage to do so. The matter was nonetheless
argued and I was provided with the transcript and bundle of exhibits
thereafter.
By arrangement Ms Baloyi who appeared for the third
respondent (“the DHA”) submitted supplementary heads of
argument,
with the benefit of the record of the proceedings before
the arbitrator.
[4]
Prior
to Ms Driver’s involvement in the matter, heads of argument had
been filed by the attorneys of record of the applicant
which largely
concentrated on a purported review of the original decision to
dismiss. Ms Driver wisely did not pursue this line
of argument. See
Chirwa
v Transnet Ltd
[2007] ZACC 23
;
2008
(4) SA 367
(CC)
;
Makhanya
v University of Zululand
2010
(1) SA 62
(SCA)
.
[5]
The
applicant held the position of Deputy Director of Administration in
the offices of the DHA for the Capricorn (formerly Pietersburg)
region, since the date of her appointment on 6 October 1998. At the
time of her dismissal in 2003 she earned a salary of R16000.00
[1]
per month, plus perquisites. She thus occupied a senior, responsible
position in the public service.
[6]
The applicant was dismissed for:
6.1
Failing to obtain the necessary
authorisation for the parking of a government vehicle at her private
residence between 1 and 2 January
2002;
6.2
Acting fraudulently by backdating an
indemnity form in favour of the State;
6.3
Transporting passengers in a government
vehicle on 6, 7 and 8 July 2001 without authorisation;
6.4
Travelling to Zanzibar, Pondrift and
Lebowakgomo on 6, 7 and 8 July 2001 without the necessary
authorisation; and
6.5
Travelling to Zanzibar, Platjan and
Pondrift on 3, 4, 5 and 6 August 2001 without the necessary
authorisation.
[7]
The disciplinary charges instituted against
the applicant arose from an auditor’s investigation and report
which identified
certain irregularities in this region of the DHA.
[8]
At
the time at which this application was launched on 2 May 2007, the
matter of
Sidumo
v Rustenburg Platinum Mines Ltd
2008
(2) SA 24
(CC)
(“Sidumo”) had been heard but not yet decided by the
Constitutional Court. (The judgement is dated 5 October 2007).
Prior
to Sidumo the general constitutional ground of review based on the
right to fair administrative action, applicable to arbitrations
under
the auspices of the CCMA was as per
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v CCMA
2007
(1) SA 576
(SCA)
.
In sum, the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”) applied and the requirement applied that the
arbitrators’ decision be rationally connected to the
information before him and to the reasons for the decision.
[9]
This was changed by
Sidumo,
which held that PAJA did not find application to arbitrations to
which section 145 of the LRA applies. The Court furthermore held
(per
Navsa AJ, as he then was):
‘
[110]
To summarise, Carephone held that s 145 of the LRA was suffused by
the then constitutional standard that the outcome of an
administrative decision should be justifiable in relation to the
reasons given for it. The better approach is that s 145 is now
suffused by the constitutional standard of reasonableness. That
standard is the one explained in Bato Star: Is the
decision
reached by the commissioner one that a reasonable decision-maker
could not reach? Applying it will give effect not only
to the
constitutional right to fair labour practices, but also to the right
to administrative action which is lawful, reasonable
and procedurally
fair.’
[10]
In her argument, Ms Driver relied upon this
principle, submitting that the arbitrator did not properly consider
the evidence before
him and accordingly reached a decision which a
reasonable decision maker could not reach. Elaborating on this
submission, counsel
pursued the following arguments, briefly stated:
10.1
It was contended that the applicant had
been singled out for discipline when there was a general malaise of a
lack of proper control
in relation to the use of government vehicles
and the applicant had acted no differently to a myriad other
employees equally guilty
of this conduct;
10.2
That the DHA accordingly did not apply
discipline consistently;
10.3
That the arbitrator’s credibility
finding in favour of the DHA’s witness (and the applicant’s
former immediate
superior), Mr Mabunda was not a decision that a
reasonable decision maker could make, if certain discrepancies in
Mabunda’s
evidence are properly considered.
10.4
Implicit in the criticism of Mabunda’s
evidence are several submissions to the effect that Mabunda had
turned a blind eye
to irregularities in the manner in which the use
of DHA vehicles was purportedly authorised and in the manner in which
they were
actually used.
[11]
On the back of these submissions, counsel
submitted that applying the test in Sidumo, a reasonable decision
maker in the position
of the arbitrator would have concluded that the
DHA was inconsistent in the application of discipline and that the
applicant had
unfairly been singled out. Counsel furthermore
submitted that Mabunda’s evidence should not have been
preferred to the applicant’s.
[12]
Ms Baloyi for the DHA contended that the
grounds of review relied upon by the applicant had not been
articulated in the founding
affidavit and that consequently the DHA
had not had the opportunity to deal with them. The contention of the
DHA is furthermore
that the specific complaints constituting the
applicant’s arguments relating to inconsistency and credibility
were not articulated
in the founding affidavit,
[13]
There is much to be said for Ms Baloyi’s
complaint in this regard. I have no difficulty permitting the
argument that certain
findings were unreasonable (as per the test in
Sidumo), whereas in the founding affidavit the prior test of
rationality (as per
the SCA decision in Sidumo, prior to the
Constitutional Court’s overturning of that judgement), was
principally the basis
of review. At paragraph 11.4 of the founding
affidavit the applicant stated that the arbitrator had not properly
considered the
evidence before him and that his conclusions were not
sustainable. This contention is not in essence too far removed from
the test
in
Sidumo
.
[14]
The applicant in her founding affidavit
additionally cited every conceivable ground of review, but in general
terms and then proceeded
to suggest what the arbitrator ought to have
found, based on the evidence before him.
[15]
The thrust of those submissions on
affidavit was that Mabunda was largely complicit in the general lack
of control of the use of
state vehicles in his sphere of management;
that the applicant had simply continued to do things as others before
her had done
in ignorance of the applicable codes and standards and
that instead of singling her out for disciplinary action there should
have
been a general tightening up of controls as suggested in the
audit report.
[16]
Although the general point is made in the
founding affidavit, repeatedly, that the applicant was singled out
and that there were
others equally guilty, the founding affidavit
does not refer to any specific cases, nor demonstrate that the facts
in any other
cases not similarly dealt with by disciplinary means
were in all material respects the same as those in the applicant’s
case.
[17]
As Conradie JA held in
SA
Commercial Catering & Allied Workers Union & others v Irvin &
Johnson Ltd
2002 (3) SA 250
(LAC):
‘
Consistency
is simply an element of disciplinary fairness (M S M Brassey 'The
Dismissal of Strikers' (1990) 11 ILJ 213 at 229).
Every employee must
be measured by the same standards (Reckitt & Colman (SA) (Pty)
Ltd v Chemical Workers Industrial Union
& others
(1991)
12 ILJ 806 (LAC)
at
813H-I). Discipline must not be capricious. It is really the
perception of bias inherent in selective discipline which makes
it
unfair. Where, however, one is faced with a large number of offending
employees, the best that one can hope for is reasonable
consistency.
Some inconsistency is the price to be paid for flexibility, which
requires the exercise of a discretion in each individual
case. If a
chairperson conscientiously and honestly, but incorrectly, exercises
his or her discretion in a particular case in a
particular way, it
would not mean that there was unfairness towards the other employees.
It would mean no more than that his or
her assessment of the gravity
of the disciplinary offence was wrong. It cannot be fair that other
employees profit from that kind
of wrong decision. In a case of a
plurality of dismissals, a wrong decision can only be unfair if it is
capricious, or induced
by improper motives or, worse, by a
discriminating management policy. (As was the case in Henred Fruehauf
Trailers v National Union
of Metalworkers of SA & others
(1992)
13 ILJ 593 (LAC)
at
599H-601B; National Union of Mineworkers v Henred Fruehauf Trailers
(Pty) Ltd
(1994)
15 ILJ 1257 (A)
at
1264.) Even then I dare say that it might not be so unfair as
to undo the outcome of other disciplinary enquiries. If,
for example,
one member of a group of employees who committed a serious offence
against the employer is, for improper motives,
not dismissed, it
would not, in my view, necessarily mean that the other miscreants
should escape. Fairness is a value judgment.
It might or might not in
the circumstances be fair to reinstate the other offenders. The point
is that consistency is not a rule
unto itself.’
[18]
It is impossible to infer from the grounds
advanced by the applicant that the parity principle had been breached
in the manner described
above and that the arbitrator should have
found the applicant’s dismissal substantively unfair for that
reason.
[19]
It is also apparent both from the founding
affidavit and the argument advanced on behalf of the applicant that
the gist of the charges
against her were not disputed, save on the
basis that she did not always appreciate that she was acting in
contravention of the
applicable rules and standards. The arbitrator
was not impressed by this approach, as the applicant occupied a
senior position,
was obliged to ensure that not only she but also her
subordinates were familiar with the applicable codes and standards
and that
she could not hide behind her own alleged ignorance in that
regard.
[20]
I am similarly unimpressed by the
applicant’s various attempts to avoid accountability for her
own actions. It follows that
applying the standard in
Sidumo
,
there are no grounds on which to interfere in the award of the
arbitrator.
[21]
I do not consider this an appropriate case
in which to order the applicant to pay the costs of this application.
[22]
In the result, I make the following order:
The
application is dismissed, with no order as to costs.
___________________
CE
Watt-Pringle AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
FOR
THE APPLICANT:
Adv J Driver
Instructed
by:
Biccari Bollo Mariano Attorneys:
FOR
THE RESPONDENT: Adv S Baloyi
Instructed
by:
The State Attorney
[1]
The
figure in the founding g affidavit is R1600.00 per month, but I take
this to be a typographical error.