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[2015] ZALCCT 3
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NUPSAW obo Hleli v Martin NO and Others (C514/2011) [2015] ZALCCT 3 (23 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C514/2011
DATE:
23 JANUARY 2015
Not
Reportable
In
the matter between:
NUPSAW
obo HLELI
L
.........................................................
Applicant
And
LESLIE
MARTIN N.O
..............................................
First
Respondent
PUBLIC
HEALTH &SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
.............
Second
Respondent
DEPARTMENT
OF HEALTH
(WESTERN
CAPE)
..................................................
Third
Respondent
Date
heard: 5 August 2014
Delivered:
23 January 2014
JUDGMENT
RABKIN-NAICKER
J
[1] This is an
opposed application for condonation for the late filing of a review
application. Both the condonation application
and the review were
argued before me. The application for review was filed some three
months out of time and the reasons for the
delay were not
satisfactorily set out in detail by the applicant. I have however
decided that the matter merits an enquiry into
the prospects of
success in the review application and I consider the review below.
[2] The applicant
seeks to review and set aside an award issued by the first respondent
on 22 April 2011, under case number PSHS207.
The individual applicant
(Hleli) had been employed by the third respondent since the 7 January
1997. At the time of his dismissal
on the 22 June 2010, he was
employed as a senior administrative clerk. He was dismissed after
having been found guilty on a charge
of “insubordination and
impoliteness.” He was given a final written warning in relation
to absence from the workplace
without authorisation, the first charge
in his disciplinary hearing, and in relation to a charge of
“absence.without authorisation”,
demotion and the
deduction of pay for dates where no proof of authorization was
provided.
[3] The first
respondent was therefore dealing solely with his dismissal on the
“insubordination and impoliteness” charge.
In his award,
the arbitrator found as follows in his analysis of the evidence and
argument before him:
“
The
evidence shows numerous incidents of Hleli’s refusal to obey
lawful instructions and a failure to participate in the disciplinary
system of the respondent. This is manifested, particularly in his act
of closing his ears when addressed by his superiors in relation
to
matters concerning discipline. In this regard I have no reason to
doubt the testimony of van der Westerhuizen and Vermeulen.
There is
no reason other than a bland denial on the part of Hleli as to why
Vermeulen and van der Westhuizen would want to level
these
allegations against him without good cause. In fact, much of the
testimony of the witnesses of the respondent went unchallenged
by
Hleli, thereby denying those witnesses an opportunity to respond to
his version.
A
further example of Hleli’s thumbing his nose at the
disciplinary procedures in place of the respondents is Hleli’s
disregard for the instructions given him regarding his communication
of his absence from the workplace. I have no reason to doubt
that the
employees at the respondents are aware the manner in which such
communication must be effected. It must be borne in mind
that until
there is proof of a valid reason for absence from the workplace, the
employer’s condonation thereof would be an
indulgence until
such proof is provided. It goes without saying that in the event of
acceptable evidence ultimately not being furnished
by the absent
employee, such employee remains subject to being disciplined in
respect of that absence.
While
it is clear from the evidence before me that Hleli had acted in an
insolent and insubordinate manner, it is also clear that
Hleli has
not shown any remorse in respect of his conduct.
Notwithstanding
the fact that Hleli had been in the employ of the respondent for 13
years, the fact that his conduct demonstrates
the disposition of an
employee unlikely to reform, it would be inappropriate to expect the
respondent to continue a relationship
with him.”
[4]
Much of the summary of evidence in the award deals with the issue of
unauthorized absence from the workplace and days off without
authorization at year end. As stated above, Hleli received sanctions
for these offences. The following paragraphs of the award
deal with
the issue for which Hleli was dismissed. The first respondent records
as follows:
“
The
further testimony of Van Der Westhuizen and Vermeulen was that they
had on 26 March intended to serve on Hleli the notice to
attend a
disciplinary hearing, but that Hleli refused to accept the notice and
covered his ears with his hands when they tried
to verbally telli him
what it was. Hleli then walked out of his office. Hleli denied that
he was in his office at the time and
that van der Westhuizen and
Vermeulen had served the notice to attend a disciplinary hearing on
him. Hleli’s version was
that he was notified telephonically on
12 April to attend his disciplinary hearing.
Van
der Westhuizen had also tried on 11 January 2010 to serve Hleli the
audi alterem partem form regarding his absenteeism. On that
occasion
he had also refused to sign the document and also covered his ears so
as not to hear what she was saying to him and walked
out. Hleli
however denied this, stating that he had accepted the document but
had not signed for it.
She
had also generally found Hleli to be abrupt and disrespectful to
authority when interacting with him.”
[5] A reading of
the record of the arbitration proceedings reveals that for the most
part the evidence led by the employer’s
witnesses concerned the
unauthorised leave at year end, and the taking of sick leave by Hleli
on a particular day when he was asked
to work in a specific
department. There is no indication in the record or the award that
the first respondent was alive to the
fact that sanctions had been
handed down by the disciplinary chairperson in regard to these
charges. What is evident from the record
is that evidence regarding
the charges relating to absenteeism was led in order to prove that
Hleli was fairly dismissed in respect
of the charge of
“insubordination and impoliteness”
[6] The applicant
union alleges that the award stands to be reviewed because the first
respondent failed to apply his mind to the
facts and evidence
properly before him. Further, that in finding the applicant guilty of
insubordination warranting dismissal,
the first respondent does not
indicate the facts upon which such findings are based and appears to
connect this charge with
Hleli’s refusal to accept the notice
of the disciplinary hearing and refusal to attend the proceedings –
conduct post-dating
the charges against him.
[7] In my
judgment, the award read together with the record before the
arbitrator reveals that the first respondent committed a
gross
irregularity in he failed to identify the issue to be decided before
him. In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[1]
the LAC per Waglay JP held that in reviews applications such as this:
“
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employ give the parties a full
opportunity to have their say in respect of the dispute? (ii) Did
the
arbitrator identify the dispute he or she was required to arbitrate?
(This may in certain cases only become clear after both
parties have
led their evidence.) (iii) Did the arbitrator understand the nature
of the dispute he or she was required to arbitrate?
(iv) Did he or
she deal with the substantial merits of the dispute? (v) Is the
arbitrator's decision one that another decision
maker could
reasonably have arrived at based on the evidence?
[8] Having found
that the first respondent failed to understand the issue he had to
decide and thus did not deal with the substantial
merits of the
dispute in relation to that issue, I must consider whether his award
was one that a reasonable decision maker could
not reach. That test
involves a 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.
[2]
[9] For the most
part the evidence led before the arbitrator was not properly before
him, taking into account the true issue raised
by the dispute. In my
judgment, on the evidence properly before the arbitrator, on the
charge of insubordination, (absent the evidence
on the charges for
which Hleli received sanctions lessor than dismissal), the outcome
reached by the arbitrator was not within
the bounds of
reasonableness. That evidence concerned Hleli’s behavior after
he was charged and the view of van der Westhuizen
that he was
generally abrupt and disrespectful. His other managers, including his
direct supervisor, who testified for the third
respondent, gave
evidence that he was a hard worker. In all the above circumstances, I
consider that the award in question stands
to be set aside. The
applicant has sought that the dispute be referred to the bargaining
council for arbitration anew. I consider
this to be appropriate. I
make the following order:
1. Condonation is
granted for the late filing of the review application;
2. The award
under case number PSHS207 is reviewed and set aside;
3. The unfair
dismissal dispute is referred back to the second respondent for
arbitration anew before an arbitrator other than first
respondent.
H.
Rabkin-Naicker
Judge
of the Labour Court
Applicant:
NUPSAW J.M. Dube
Third
Respondent: Adv. Mangcu-Lockwood
Instructed
by P. Melapi, State Attorney
[1]
(2014)
35 ILJ 943 (LAC)
[2]
Herholdt v Nedbank Ltd (COSATU as Amicus Curiae)
2013 (6) SA 224
(SCA)