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[2015] ZALCCT 63
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MEC for Health Western Cape v NEHAWU obo Meyndeki and Others (C480/2011) [2015] ZALCCT 63 (12 October 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 480/2011
In the matter between:
MEC FOR HEALTH WESTERN CAPE
APPLICANT
and
NEHAWU OBO S
MEYNDEKI
FIRST RESPONDENT
CHRIS MBILENI
N.O
SECOND RESPONDENT
PHSDSBC
THIRD RESPONDENT
Date of hearing: 16
September 2015
Date
of judgment: 12 October 2015
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the
second respondent (the arbitrator). Also before the
court is an application to condone the delay in the prosecution of
the review
application, an application to dismiss the review
application, an application in terms of s 158 (1) (c) to have the
award made
an order of court and an application to declare the latter
two applications to constitute irregular steps.
[2]
For reasons that will become apparent, I deal first with the
application for review.
In his award, the arbitrator held that the
dismissal of Mr. Meyndeki (the employee) was unfair and that he
should be reinstated.
The applicant contends, on various
grounds, that the award should be reviewed and set aside.
[3]
The factual background to the dispute referred to arbitration is
briefly the following.
The employee was employed by the applicant as
an emergency care practitioner until his dismissal on 3 August 2010.
The employee
was dismissed after a disciplinary hearing (which he did
not attend) on all but one of eight charges brought against him.
These
charges ranged from authorised absenteeism and repeated late
coming, smelling of liquor on duty, and abandoning an ambulance on
the N2 freeway.
[4]
The employee referred a dispute to the third respondent, the
bargaining council, contending
that his dismissal was unfair. On the
first day of the arbitration hearing, held on 7 March 2011 (the only
day on which a successful
transcription of the proceedings exists),
the union sought a postponement of the proceedings because it need to
consult further
with the employee. The application was postponed
despite that fact a Mr van Zyl, the applicant’s key witness,
was due to
depart for the UK for three months and would be
unavailable at any reconvened hearing. Following the ruling that the
proceedings
should be postponed, the applicant delivered an affidavit
deposed to by Van Zyl, together with a covering letter recording the
union’s agreement that the applicant could use the evidence
during the course of the arbitration proceedings. On 15 April
2011,
the parties held a pre-arbitration meeting and in the course of that
a meeting, they agreed that the applicant had submitted
the affidavit
deposed to by Van Zyl, and recorded that the question whether
evidence on affidavit would be admitted with a without
the right of
anybody to cross-examine the person who made the affidavit, would be
argued.
[5]
When the arbitration reconvened on 11 April 2011, the applicant led
the evidence of
a Mr Thomas and tendered the affidavit deposed to by
Van Zyl. The employee elected not to lead evidence, nor did he submit
any
documents.
[6]
The arbitrator summarised Thomas’s evidence in his award. This
summary assumes
some importance since there is no transcription of
his evidence because the tape-recording went missing. The evidence of
Thomas
was recorded in the following terms:
4.1.1
The respondent’s witness Mr Thomas had testified that he is the
Divisional Emergency Care Practitioner
Manager and that he had been
employed there for six years. He previously worked for the
municipality. He is based at the Metro
Control Room, where activities
are coordinated through the communication centre.
4.1.2
Mr Thomas further testified that he was on duty on the night of the
14
th
through to the morning of 15 May 2010. As a manager,
he expected the optimal use of resources, including sticking to the
legal
speed limit, ethical patient treatment and responding on time.
4.1.3
Mr Thomas further testified that around midnight on the 14 May 2010,
he received a report that the applicant
did not comply with the time
limits in picking up a patient from Khayelitsha to the Red Cross
Children’s Hospital. Ms Mabanga
who works in the control room
called the applicant without an answer.
4.1.4
The witness, Mr Thomas managed to speak to the applicant on the radio
and told him to go to the ambulance
station at Pinelands to pick up a
colleague. It took Mr Myendeki about 45 to 60 minutes to get to
balance from the Red Cross instead
of 10 minutes. Mr Thomas also
alerted Mr Jacobs at Pinelands that Mr Myendeki sounded irrational on
the phone. However, Mr Jacobs
did not find anything wrong with Mr
Myendeki. On arrival, Mr Myendeki booked off sick.
4.1.5
Mr Thomas further testified that they received a call from the police
control room about an ambulance from
the Southern Division that was
abandoned on the N2 freeway. He was given a cell number to contact an
officer at a roadblock. Mr
Thomas testified that he then phoned Mr
van Zyl, the senior divisional emergency care practitioner who was Mr
Myendeki’s
supervisor to go to the scene to check what is wrong
with the vehicle.
4.1.6
Mr Thomas further testified that Mr Myendeki also phoned and told him
that he was with the keys of fleet
number 87 at Khayelitsha Day
Hospital. He stated that Mr Myendeki was not supposed to abandon the
ambulance because of the expensive
equipment in it. He should stay in
the vehicle as his primary responsibility until he got help because
it was safe with the police
around him….
[7]
At this point, it should be noted that the affidavit by Van Zyl,
which is part of
the record and clearly served before the arbitrator
and which was not the subject of challenge, corroborated Thomas’s
evidence
ion every material respect. The arbitrator analysed the
evidence and concluded that Thomas had only testified in respect of a
single
charge, that of smelling of liquor while on duty. He concluded
that the charge of smelling of alcohol and unprofessional behaviour
had not been proven since no breathalyser or urine test had been
carried out. Further, he concluded that no evidence had been led
in
respect of the seven other charges, and that the only evidence before
him amounted to hearsay. Insofar as the disciplinary hearing
was
concerned, the applicant had failed to provide notes of the enquiry.
[8]
The conclusion drawn by the arbitrator are summarised at paragraph
5.25 of his award:
In
the premises, probabilities point to the fact that insufficient
evidence was led to prove the fairness of the dismissal, such
as (1)
the finding of the presiding officer is ambiguous; (2) the finding
does not specify for which offence Mr Myendeki was found
guilty on;
(3) the owner minutes of the actual disciplinary hearing; (4) the
evidence of both Mr Thomas and Mr van Zyl’s
affidavit was based
on hearsay, which is generally inadmissible and the basic procedures
were not followed by the respondent, i.e.
to use a breathalyser or
administer blood test on the accused employee (Mr Myendeki) to
determine alcohol intake or substance abuse;
in my view the dismissal
was not founded on a fear reason or effected with a fair procedure.
[9]
The arbitrator’s decision is reflected in paragraph 6 of the
award. That paragraph
reads as follows:
6.1
I, accordingly find that after all the evidence the respondent has
failed to discharge the
normal burden of proof that the reason for
dismissal was a fair reason relating to the applicant, i.e. Mr
Sivuyile Myendeki’s
conduct or effected in accordance with the
fair procedure.
6.2
I therefore grant Mr Sivuyile Myendeki absolution from the instance.
6.3
I order the respondent to reinstate Mr Sivuyile Myendeki to the
position he occupied before
his dismissal and the reinstatement is
retrospective to the date of dismissal without forfeiting either his
salary or benefits
which he previously enjoyed.
6.4
The parties must take note that this arbitration award is final and
binding in terms of s 143 (1) of the LRA…
[10]
The primary grounds for review are that the arbitrator erred when he
granted absolution from
the instance, that his findings that the
ruling of the chairperson of the disciplinary hearing was ‘ambiguous’
and
that Thomas’s evidence constituted hearsay were not
rationally connected with the evidence before him.
[11]
I deal first with the arbitrator’s granting absolution from the
instance. In
Minister
of Safety and Security v Madisha
[2009] 1 BLLR 1580
(LC), Basson J held that while this court had the
power to grant absolution from the instance, it was not open to
commissioners
or arbitrators to do so. The statutory mandate in the
latter case is to determine a matter and the court held that this
required
that there be a final determination of the dispute as
opposed to ‘leaving the matter hanging in the air’. Since
an
arbitration award is final and binding, the court found that this
is inconsistent with the possibility of reopening proceedings
after
absolution from the instance is granted.
[12]
There are at least two difficulties with the arbitrator’s
award. First, he himself recorded
in paragraph 6.4 his award that the
award is final and binding. As the court pointed out in
Madisha
,
this is inconsistent with a finding that a defendant be entitled to
absolution from the instance. Secondly, it is clear from the
proceedings that the first respondent elected not to lead evidence
and closed its case. I fail to appreciate how a finding of absolution
from the instance can be made in the circumstances. A third and
related point is that the first respondent at no stage asked for
absolution from the instance, or made any submissions in this regard.
The first and second difficulties aside, it is not open to
a
commissioner to take it upon him or herself to grant absolution where
a respondent party elects not to seek that remedy. An election
to
seek absolution is more often than not one that is carefully made,
given the consequences of an order to that effect. The respondent
party may well prefer to seek a final order, and commissioners an
arbitrator should not deprive them of that advantage.
[13]
Clearly, the arbitrator committed and material error of law by
granting absolution from the instance.
[14]
In any event, in my view, the arbitrator’s award stands to be
reviewed and set aside on
account of his failure to appreciate the
evidence before him and to give due weight to that evidence. The
relevant principle in
this regard was recently summarised by Myburgh
AJ in
Shoprite Checkers v CCMA & others
(unreported)
31 July 2015) when he said of the review test in circumstances where
an applicant contends that an arbitrator misdirected
him or herself
by ignoring material facts:
[10] The
shorthand for all of this is the following: where a commissioner
misdirects him or herself
by ignoring material facts, the award will
be reviewable if the distorting effect of this misdirection was to
render the result
of the award unreasonable.
[15]
In essence, this is the applicant’s case on review - that the
arbitrator ignored a host
of material facts, which had the distorting
effect of causing an unreasonable result. In relation 1
st
to the arbitrator’s findings on the disciplinary enquiry, the
absence of minutes of an internal disciplinary hearing does
not in
itself justify finding of procedural unfairness. The evidence before
the arbitrator clearly disclose the disciplinary enquiry
was in fact
held. This was not disputed by the employee. Further, Thomas’s
evidence that the employee had been smelling of
liquor on duty and
behaving and professionally was unchallenged. Thomas’s evidence
was that on at least two occasions, he
had a direct conversation with
the employee. That evidence and the evidence that the ambulance had
been abandoned by the employee
was not challenged and thus served as
the only version that served before the arbitrator, especially when
no credibility findings
were made against Thomas. In regard to the
arbitrator’s rejection of Van Zyl’s affidavit, that
affidavit was admitted
and remained unchallenged given that the
employee did not tender any evidence. In short, in making the
decision he did, the arbitrator
patently failed to have regard to the
material facts it served before him. Had he considered the material
facts he would in all
probability of come to a different conclusion
and the result of the award is therefore prima facie unreasonable.
There is no basis,
on the evidence that served before the arbitrator,
to displace the
prima facie
case of unreasonableness, with the
result that the award is unreasonable. In short, the distorting
effect of the arbitrator’s
failure to consider material facts
before him was of such a nature so as to cause an unreasonable
outcome and thus a reviewable
award. For all of the above reasons, in
my view, the application for review stands to succeed.
[16]
Turning next to the application to dismiss, the review application
was filed on 5 July 2011.
The incomplete record was filed on 3 May
2012. The supplementary affidavit was filed on 22 May 2012. The
answering affidavit was
filed on 7 September 2014. On 1 December
2014, the bargaining council convened a meeting to attempt a
reconstruction of the record.
The period of delay is thus in excess
of two and half years. The explanation for the delay centered on
attempts by the applicant
to reconstruct the incomplete record.
[17]
In my view, this is one of those matter that fall to be decided by
reference to the prejudice
to the parties and the prospects of
success in the main application. The facts indicate that the
applicant will suffer substantial
prejudice if condonation is not
granted. Given the exposition above, the prospects of success in the
review application are overwhelming.
In the circumstances, the delay
in prosecuting the review application falls to be condoned.
[18]
There is no merit in remitting this matter back to the bargaining
council for rehearing. The
events that gave rise to these proceedings
occurred more than five years ago and little purpose would be served
by the convening
of fresh arbitration proceedings. The record, such
as it is, is sufficient to sustain a finding that the employee
committed acts
of serious misconduct, and that dismissal is an
appropriate sanction. Finally, given my findings, it is not necessary
for me to
consider the remaining applications that serve before the
court.
I
make the following order:
1.
The delay
in prosecuting the review application is condoned.
2.
The
arbitration award issued by the second respondent is reviewed and set
aside.
3.
The second
respondent’s award is substituted by the following:
‘
The
applicant’s referral is dismissed’
4.
There is no
order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Adv R Nyman, instructed by the state attorney
For
the first respondent: Adv L Makua, instructed by MPM Attorneys