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[2015] ZALCCT 39
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City of Cape Town Municipality v SAMWU and Others (C 819 / 13) [2015] ZALCCT 39 (6 May 2015)
The
Labour Court of South Africa, Cape Town
Judgment
Case
no: C 819 / 13
DATE:
06 MAY 2015
Not
reportable
Of
interest to other judges
In
the matter between:
CITY
OF CAPE TOWN
MUNICIPALITY
............................................................................
Applicant
And
SAMWU
........................................................................................................................
First
Respondent
SULEIMAN
CASSIEM
...........................................................................................
Second
Respondent
SALGBC
......................................................................................................................
Third
Respondent
ELWYN
NASH
N.O
..................................................................................................
Fourth
Respondent
Heard:
23 April 2015
Delivered:6
May 2015
Summary:
Review – dismissal for unauthorised use of Council vehicle.
Judgment
STEENKAMP
J
Introduction
[1]
Suleiman Cassiem has worked for the City of
Cape Town for 17 years. He is also a long-standing shopsteward of the
South African
Municipal Workers’ Union (SAMWU). He was
dismissed for the unauthorised use of a Council vehicle. After an
internal appeal,
he was reinstated, coupled with a final written
warning and a period of unpaid suspension. He expressed remorse. Two
years later,
he was again disciplined and dismissed for the same
misconduct. He referred an unfair dismissal dispute to the South
African Local
Government Bargaining Council (the third respondent).
The arbitrator (the fourth respondent) found that he had used the
vehicle
without authorisation while on leave, but that the City had
not proven the misconduct on the other days when he used the vehicle
outside of working hours. The arbitrator found that the sanction of
dismissal was unfair. He ordered the City to reinstate Cassiem,
but
did not make the backpay retrospective for more than 12 months,
effectively meaning that Cassiem forfeited two months’
pay. The
City seeks to have the award reviewed and set aside.
Background
facts
[2]
Although Cassiem faced 113 counts of
misconduct, they can be conveniently categorised under two headings:
2.1
Unauthorised use of a City vehicle outside
working hours; and
2.2
Unauthorised use of a City vehicle while on
leave.
[3]
Cassiem worked at the City’s
Vaalfontein solid waste depot in the Helderberg area (Strand /
Somerset West / Gordon’s
Bay). He was a senior foreman. The
Helderberg was also the area in which he worked. He was assigned a
Council vehicle (a bakkie)
for work purposes. His working hours were
11:30-20:00, Mondays to Fridays. He lived in Bonteheuwel, some 40 km
away from the Vaalfontein
depot. As an indulgence, he was allowed to
use the bakkie to travel to and from work. To facilitate this, the
City gave him permission
to park the vehicle overnight at the City
Police depot in Juniper Street, Bonteheuwel. Instead, he parked it
closer to his home
in Heideveld, at the Heideveld roads depot.
[4]
At the arbitration, the City led extensive
evidence gained from Tracker reports (a vehicle tracking device
installed in the bakkie)
that Cassiem regularly used the bakkie
outside of working hours, i.e. long before his shift started at
11:30, during December 2011
and January 2012. He regularly used the
vehicle from as early as 06:15. And he used it on the weekends of 4
December and 10-11
December, when he was not on duty; and over a
period of three days in January when he was on leave.
[5]
Cassiem could not and did not dispute that
he used the vehicle outside of working hours and while he was on
leave. He justified
by saying that he used it for work purposes (or,
at worst, for trade union purposes), such as picking up casual
workers; dropping
keys off at a fellow worker’s house; picking
up and delivering medical aid claims to the SAMWU offices; and taking
“braaibakke”
to Gordon’s Bay for the annual staff
braai.
The
award
[6]
The arbitrator considered each group of
charges relating to each date. I will summarise each of his
conclusions.
Charge
1 (1 December 2011)
[7]
Cassiem use the vehicle outside working
hours from 06:18 to 11:17. His version was that he gets a lift in the
morning with his wife
to the Heideveld roads depot to collect the
vehicle. The arbitrator found that the evidence on the parking
authorisation was relevant
to his findings on this charge. He found:
“
In
my view, the most important significance of the authorisation
document is not the location where the vehicle is parked but rather
that authorisation was granted to park the vehicle at a depot other
than Vaalfontein.” And:
“
Endorsing
the inflexible view the [City] adopted would be onerous on Cassiem.
He parked the vehicle at a depot of the [City] and
even though he did
not strictly comply with authorisation document in terms of location,
he complied with the material purpose
thereof, namely to park it at a
depot.”
“
Based
on the above, I cannot find that Cassiem breached rule by parking the
vehicle at the Heideveld depot and as such I cannot
find that he
breached the rule by starting up the vehicle at 0618 as he had reason
to do so.”
[8]
With regard to Cassiem’s further
evidence that he went to the union offices to drop medical aid
documents, the arbitrator
accepted that Cassiem had “a reason
to be at the union offices”. He concluded:
“
Based
on the evidence I find that the [City] failed to prove that Cassiem
contravened the rule.”
[9]
The arbitrator applied the same conclusion
to deal with the other charges.
Charge
2: 2 December 2011
[10]
Cassiem used the vehicle outside of working
hours from 06:17 to 08:05. The arbitrator simply found that:
“
My
findings above also apply to this charge thus Cassiem has not
contravened the rule.”
Charges
3 to 11: Using vehicle on a Sunday
[11]
It is common cause that Cassiem use the
vehicle on Sunday, 3 December 2011 when he was not working.
[12]
The arbitrator accepted Cassiem’s
version that he travelled to Blue Downs to go to the homes of fellow
workers Van Willingh
or Daniels. He also accepted that “transporting
casuals was part of his duties”. The City led evidence that Van
Willingh
was already clocked in when Cassiem said he went to his
house, or that he was sick on that day. Yet the arbitrator found that
“I
have to place more weight on Cassiem’s version as it
was more detailed then the [City]’s was.” He then
accepted
“that Cassiem was not scheduled to work that day [but]
the version he presented of notifying and fetching a casual and
delivering
keys to Van Willingh was a probable version.”
Charges
12 to 19: 5 December 2011
[13]
Cassiem use the vehicle outside of his
working hours from 06:39 to 11:29.
[14]
The arbitrator again accepted Cassiem’s
general evidence relating to fetching the vehicle from Heideveld; and
the trips to
Blue Downs [i.e. visiting Van Willlingh or picking up
casuals].
[15]
Cassiem further testified that he was a
diabetic and that “he either attended at his house to collect
medication or lunch”.
The arbitrator also accepted this; as
well as Cassiem’s reason for going to Claremont [outside of his
duty area], because
“there was a sub depot in Claremont.”
Charges
20 to 29: 6 December 2011
[16]
Once again it is common cause that Cassiem
used the vehicle outside of his working hours from 06:27 onwards. He
went to Epping and
Tuscany Glen outside of his work area.
[17]
The arbitrator again accepted Cassiem’s
reason for going to his house (i.e. to collect medication or lunch).
He also accepted
that there is an agency in Epping and that that
would be a valid reason to visit Epping.
Charges
30 to 33: 7 December 2011
[18]
Cassiem again used the vehicle from 06:13
onwards. He went to the Bargaining Council offices in Parow to attend
“a process”.
The arbitrator accepted that he was allowed
to do so.
Charges
34 to 38: 8 December 2011
[19]
The arbitrator accepted Cassiem’s
version that he used the vehicle outside of working hours to pick up
a sick certificate
from a union member and to take in medical forms
to the union offices. Although the City’s witnesses testified
that there
was no authorisation for such trips, the arbitrator
accepted that “the version of Cassiem and other senior foremen
suggest
this was a practice and it is common for supervisors to pay
these kinds of visits to staff.”
Charges
39 to 44: 9 December 2011
[20]
Cassiem used the City vehicle to collect
“braaibakke” and deliver them for a staff party in
Strand.
Charges
49 to 50: 10 December 2011
[21]
Cassiem used the vehicle before working
hours to collect a colleague from a rehabilitation centre in Hout
Bay. The arbitrator accepted
that he was “designated to fetch
the colleague”.
Charges
51 to 54: 11 December 2011
[22]
It is common cause that Cassiem again used
the vehicle on a Sunday when he was not scheduled to work. The
arbitrator simply accepted
that he was required quiet to go to Von
Willingh “to drop keys or the like”.
Charges
55 to 65: 12 December 2011
[23]
The City’s records show that Cassiem
was not working on this day. Yet the arbitrator accepted Cassiem’s
version that
he did go to work; and that his use of the vehicle from
06:36 onwards was work-related.
Charges
66 to 68: 13 December 2011
[24]
Cassiem used the vehicle before working
hours to drive to Epping. The arbitrator accepted Cassiem’s
version of “an operational
need to undertake these trips to
Epping”.
Charges
69 to 70: 14 December 2011
[25]
The arbitrator accepted Cassiem’s
version that he used the vehicle before working hours to pick up “Van
Willingh and
or Daniels”. He found that Cassiem did not
contravene a rule.
Charges
74 and 76: 3 January 2012
[26]
Cassiem used the vehicle to deliver medical
aid documents to the union offices. The arbitrator found that it did
not contravene
a rule.
Charges
80 to 82: 7 January 2012
[27]
Cassiem used the vehicle on a Saturday when
he was not on duty. The arbitrator accepted that he “may have
delivered bags”
to a certain Sam at a depot in Philippi. He
found that Cassiem did not contravene a rule.
Charges
83 to 86: 11 January 2012
[28]
Cassiem used the vehicle before working
hours. The arbitrator accepted that he went to Epping for work
purposes.
Charges
87 to 113: unauthorised use whilst on leave
[29]
Cassiem used the vehicle whilst he was on
leave from 4 to 6 January 2012. The arbitrator accepted that he was
on leave. He therefore
found that Cassiem’s use of the vehicle
was unauthorised.
Sanction
[30]
Despite his finding that Cassiem had
committed misconduct in the form of unauthorised use of the vehicle
while he was on leave,
the arbitrator was not convinced that the
trust relationship had been broken down. He reasoned:
“
One
needs to consider that Cassiem is a shop steward and he has
practically been one for the entire duration of his employment.
In
this regard, he has probably been at odds with the employer on more
than one occasion. The nature of the employer and trade
union
relationship is by its nature adversarial. In my view the lines
as being adversaries and not having trust in one another
should not
be blurred.”
[31]
Whilst accepting that Cassiem had committed
misconduct the arbitrator further reasoned that “one should
consider that perhaps
he did not necessarily commit the conduct
wilfully.” He found:
“
Whilst
his conduct is not exemplary to his subordinates, he probably
committed the misconduct based on the exercise of discretion
or
perception that he was entitled to undertake the trips he did, as the
likelihood exists that some of the unauthorised trips
were related to
his functions as a shop steward and by implication, to the
advancement of employees’ interest.”
[32]
The arbitrator also accepted that Cassiem
had a history of unauthorised use of the vehicle. However, he found
that a period of more
than two years had elapsed before the latest
transgressions; and:
“
Some
context to this is also required in that the first transgression
occurred in a different environment. When he arrived at Vaalfontein,
he was introduced to a different culture where he perhaps had a
mistaken impression of what he was or was not authorised to do.”
[33]
The arbitrator concluded that dismissal was
“not the appropriate sanction” and that the dismissal was
substantively
unfair. He ordered the City to reinstate Cassiem with
12 months’ backpay. That had the effect of a period of two
months’
unpaid suspension.
Review
grounds
[34]
The
City argues that the award is vitiated by a number of defects
amounting to misconduct and that, as a result, the arbitrator
arrived
at an award that is so unreasonable that no reasonable arbitrator
could have reached the conclusion that he did.
[1]
Evaluation
/ Analysis
[35]
At first blush, the award is detailed and
comprehensive, comprising no less than 283 paragraphs over 56 pages.
However, the Court
has to consider whether the award is sustainable
in the light of the evidence before the arbitrator and the complaints
of misconduct
against the employee. I shall consider each of the
grounds raised by the City.
Contravention
of a rule
[36]
The arbitrator correctly stated that he had
to consider whether the employee contravened a rule, as required by
item 7 of the Code
of Good Practice: Dismissal. He also accepted that
there was a rule or standard prohibiting Cassiem from using a City
vehicle outside
of working hours without authorisation. It is against
that background that his further findings must be evaluated.
Parking
the vehicle at Heideveld
[37]
It is common cause that Cassiem got
authorisation to park the vehicle overnight at the City Police’s
Juniper Street depot
in Bonteheuwel, close to his home in Heideveld,
rather than at the Vaalfontein solid waste depot in the Helderberg
where he worked,
some 40km away. He was also authorised to drive the
vehicle to and from Vaalfontein. What he was not authorised to do,
was to park
at the Heideveld depot, even closer to his home. And he
had no discretion to decide off his own bat that he could do so as it
was
more convenient for him.
[38]
The arbitrator misinterpreted this
authorisation and, in doing so, asked the wrong question, i.e.
whether Cassiem was allowed to
park in Heideveld. He clearly wasn’t;
he was only authorised to park at the City Police depot in Juniper
Street, Bonteheuwel.
Yet the arbitrator found that “the most
important significance of the authorisation document is not the
location where the
vehicle is parked but rather that authorisation
was granted to park the vehicle at a depot other than the Vaalfontein
(depot).”
And flowing from that finding, which is contrary to
the evidence, he found that Cassiem “was not charged with
parking the
City’s vehicle at an unauthorised depot”. In
doing so, he yet again asks the wrong question. The question was
whether
Cassiem contravened the rule that he was not allowed to use
the vehicle outside working hours without authorisation. By using the
vehicle before he went to work at 11:30 and parking it in Heideveld,
or retrieving it from the depot where he was not authorised
to park,
Cassiem contravened the rule and committed misconduct.
[39]
The arbitrator went further and found that
he had not been presented with any evidence “why it was
critical that the vehicle
must be parked at the City Police depot in
preference to the Heideveld roads depot… Further, I was not
presented with evidence
from the [City] that authorisation to park at
Heideveld would not have been granted had such a request been made.”
Once again,
he misconstrues the nature of the enquiry and asks the
wrong question. The fact is that Cassiem was not authorised to park
in Heideveld.
He never requested it and authorisation was never
granted.
[40]
The arbitrator also disregarded the
unchallenged evidence of Claire McKinnon, the manager of the
Cleansing branch in Solid Waste,
that the City had legal duties to
comply with in keeping control where its vehicles are parked, also
for insurance purposes. And,
as Mr
Conradie
argued, the City’s duties and powers are rooted in s 152(1)(b)
of the Constitution, stating that one of the objects of local
government is “to ensure the provision of services to
communities in a sustainable manner”. Section 4(2) of the Local
Government: Municipal Systems Act then places a duty on
municipalities to “exercise the municipality’s executive
and
legislative authority and use the resources of the municipality
in the best interests of the local community”. And to this
raft
of legislation s 63(1) of the Local Government: Municipal Finance
Management Act (MFMA) adds that the accounting officer of
a
municipality is responsible for, amongst other things, “the
management of … the assets of the municipality, including
the
safeguarding and the maintenance of those assets.”
[41]
The
Municipality is entitled to exercise this legislated responsibility
by ensuring that its rules relating to the use of municipal
assets
are enforced. Yet the arbitrator accepted that Cassiem could simply
park where he chose to, despite the clear evidence that
he was only
authorised to park at the City Police depot. That led to him reaching
an unreasonable conclusion. In that regard, Mr
Conradie
referred
to the decision of the Labour Appeal Court in
Hendricks
v Overstrand Municipality
[2]
where that court endorsed the finding of the court
a
quo
holding that the sanction imposed by [in that case] the finding of a
disciplinary chairperson was irrational and unreasonable,
continuing:
“
The
mitigating factors that he took into account do not remove the
operational need of the municipality to ensure that senior officials
in those positions are exemplary in their conduct and can be trusted
by the municipality and by the public. There is also a constitutional
obligation on the municipality imposed by s 152 of the Constitution
to provide accountable government for local communities; to
ensure
the provision of services to those communities; and to promote a safe
and healthy environment. If the employee were to remain
in the employ
of the municipality, it would be failing in its duties to its
ratepayers.”
[42]
By finding that the City’s rule
requiring the bakkie entrusted to Cassiem to be parked at the City
Police depot to be “not
critical” and effectively invalid
or unenforceable, the arbitrator exceeded his powers. It renders his
ultimate conclusion
unreasonable and reviewable.
Did
the City condone the unauthorised use?
[43]
It is clear from the evidence that Cassiem
did not have authorisation or permission to use the vehicle outside
of working hours;
nor did the City condone it. When the unauthorised
use was brought to its attention, it took the disciplinary steps that
led to
Cassiem’s dismissal.
[44]
With regard to trade union activities, the
Main Agreement provides:
“
Should
a shopsteward (other than a full-time shopsteward) be required to
leave his or her workplace in order to carry out any duties
as a
shopsteward, the shopsteward shall first obtain the permission of his
or her senior/supervisor, which permission shall not
be unreasonably
withheld.”
[45]
Cassiem could not have had permission to
“leave his workplace” to fulfil trade union activities
(such as dropping off
meical aid forms) outside of his working hours.
Quite simply, he had no permission to use the Council vehicle outside
of his working
hours for any purpose other than travelling from the
City Police depot where he had permission to park, to his workplace
at the
Vaalfontein depot. The arbitrator’s conclusion that
Cassiem did not breach a rule is patently unreasonable.
Did
Cassiem have a discretion?
[46]
The arbitrator reasoned that Cassiem
“probably committed the misconduct based on the exercise of
discretion or perception
that he was entitled to undertake the trips
he did.” He also found that Cassiem “perhaps had a
mistaken impression
of what he was or was not authorised to do.”
[47]
This is not a reasonable finding. It is not
borne out by the evidence. For example, Ms McKinnon was specifically
asked:
“
In
terms of this authorisation has an employee any discretion to park
the vehicle at a different location?
McKinnon:
no, if anything should happen like the employee for any reason can no
longer park at that location or if the situation
should change in any
way whatsoever whether it be a vehicle change, place change, change
in the working scenario, any change whatsoever,
such a form has to be
submitted with the new information on which then has to be signed by
me and perhaps I need to just verify
that the council has a
formalised delegated authorities the sting of whom a sign for what
and this is particularly under my delegated
authority, nobody else is
allowed to sign.”
[48]
McKinnon continued to testify that Cassiem
did not have consent to park at the Heideveld roads depot and that he
was parking there
unlawfully.
[49]
This testimony is confirmed by Mr Jaegers;
Ms Meyer; and by Cassiem’s own witness, Mr Brown. The union
representative, Mr
Hearne, suggested to Brown in his evidence in
chief that Cassiem had permission to park at the Heideveld roads
depot. Brown’s
response was:
“
No,
I don’t know about that at all. I know about that I got
permission to park the vehicle and Cassiem had permission to park
the
vehicle and the vehicle is supposed to be parked at the Bonteheuwel
[depot] near Mr Cassiem’s house by the Metro police
station.”
[50]
Cassiem’s other witness, Mr Nordien,
could only mention one instance where he had to go into work on
request when he was off
duty. There was no basis for the arbitrator
to find that employees had a general discretion to use work vehicles
while off duty.
And in any event, Nordien made it clear that, if an
employee had to visit a colleague outside of working hours, he would
have to
get permission to do so. Cassiem had no such authorisation or
permission; yet the arbitrator found that he did not contravene a
rule.
Was
Cassiem aware of the rule?
[51]
There
is no doubt that Cassiem was aware of the rule against unauthorised
use of the City’s vehicle. In fact, he had been
dismissed for
the very same transgression previously. He was reinstated after an
appeal, but that was coupled with a final written
warning and a
period of unpaid suspension. Yet he committed the very same
misconduct again. The arbitrator did not take this into
account;
instead he simply accepted that two years had lapsed since the
previous transgression. Therefore, he simply disregarded
the previous
infraction, contrary to the finding of the LAC in
Selemela
v Northern Platinum Ltd
[3]
that “an employee’s written warnings, even after they had
lapsed, may be taken into account in determining the fairness
of his
or her dismissal where the employee concerned is found to have a
propensity to commit acts of misconduct at convenient intervals
falling outside the period of applicability of the written warnings.”
[52]
The arbitrator also did not take into
account that Cassiem showed no remorse and instead offered a
dishonest explanation with regard
to his use of the vehicle whilst on
leave. And despite Cassiem’s dishonesty, the arbitrator
unreasonably found that the trust
relationship had not been broken
down.
Conclusion
[53]
The arbitrator simply disregarded all of
the evidence about a clear rule; the contravention of the rule; and
the fact that Cassiem
had no discretion. All of the arbitrator’s
conclusions are based on his finding that Cassiem did not breach the
rule. On
the evidence before him, that conclusion is so unreasonable
that no other arbitrator could have come to the same conclusion. The
arbitrator embarked from the wrong premise, leading to an
unreasonable conclusion.
Remit
or substitute?
[54]
Mr
Whyte
argued that, should I find in the City’s favour, I should remit
the matter for a fresh arbitration. One reason for this submission
is
that the City’s notice of motion was phrased as follows:
“
That
the arbitration award handed down by the [arbitrator] under case
number WCM 111208 be reviewed and corrected or set aside and
referred
back to the [Bargaining Council] for arbitration by a Commissioner
other than the fourth respondent.”
[55]
The argument is that the City did not ask
for the award to be substituted. However, it did ask for the award to
be “corrected”
and for “further and/or alternative
relief.”
[56]
In my view, it would only lead to further
unnecessary costs and delays to remit the dispute. Both parties led
lengthy evidence at
arbitration. The record comprises more than 1800
pages. All of the evidence is before this court. The Court is in a
position to
substitute the award with a finding that the dismissal
was fair.
Costs
[57]
The union and the City have an ongoing
relationship. The union obtained an arbitration award in favour of
its members. It had little
option but to defend these proceedings. In
law and fairness, I do not consider a costs award to be appropriate.
Order
The
arbitration award handed down by the fourth respondent (the
arbitrator) under case number WCM 111208 is reviewed and set aside.
It is substituted with an award that the dismissal of the second
respondent, Mr Sulaiman Cassiem, was substantively and procedurally
fair.
Anton
Steenkamp
Judge
of the Labour Court
APPEARANCES
APPLICANT:
Bradley Conradie of Bradley Conradie Halton Cheadle attorneys.
FIRST and
SECOND RESPONDENTS:
Jason Whyte of
Cheadle Thompson & Haysom.
[1]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014
1 BLLR 20
(LAC); (2014) 35
ILJ
943 (LAC) paras 14 and 20.
[2]
(2015) 36
ILJ
163
(LAC).
[3]
(2013) 34
ILJ
3118 (LAC).