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[2015] ZALCPE 4
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Ntshona v Public Health and Social Development Sectoral Bargaining Council and Others (P377/2010) [2015] ZALCPE 4 (27 January 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P377/2010
DATE:
27 JANUARY 2015
In
the matter between:
NOKUZOLA
NTSHONA
................................................................................
Applicant
And
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
.............................................
First
Respondent
JOHN
CHEERE ROBERTSON N.O
...........................................
Second
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF HEALTH, EASTERN CAPE
............................
Third
Respondent
Heard:
10 October 2013
Delivered:
27 January 2015
Summary:
The third respondent did not apply discipline inconsistently by
issuing different sanctions to two employees who had breached
the
same rule. The difference is based on the gravity of the misconduct
and the expression of remorse by only one of the employees.
JUDGMENT
LALLIE
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the Second Respondent (“the arbitrator”)
in which he
found the applicant’s dismissal substantively fair in that she
had committed serious misconduct for which dismissal
was the only
appropriate sanction. It is opposed by the third respondent. The
facts of this matter are mainly common cause. The
applicant was
employed by the third respondent as the Deputy Hospital Manager of
the East London Hospital Complex (the ELHC) and
Medical
Superintendent of the Cecilia Makhiwane Hospital (CMH). After an
interview in the SAFM, a national radio station in which
she
incorrectly reported that 400 of the deliveries at the ELHC were baby
deaths, she was charged with four counts of misconduct.
She was found
guilty of the first three and dismissed. Aggrieved by her dismissal,
she referred an unfair dismissal dispute to
the first respondent
where the arbitrator took the decision which is the subject matter of
this application. During the course
of the arbitration the first two
charges against the applicant were withdrawn and she pleaded guilty
to the remaining one, namely,
the third which reads as follows:
‘
It
is alleged that you contravened a prescribed code of conduct by
failing to comply with the provisions of East London Hospital
Complex
Circular no 5 of 2005 with regards to “Release Of Information
to the media and National/International News Agencies”
in that
you allowed yourself to be interviewed on the radio as detailed in
the table below, and made statements which caused the
Department to
be viewed in a negative light’.
Date:
15 August 2007, Media SAFM Radio Show.
Alternatively
to allegation 3 it is alleged that you committed an act which is to
the prejudice of the Department in that you allowed
yourself to be
interviewed on the radio as detailed in the table below made
statements which caused the Department to be viewed
in a negative
light.
Date:
15 August 2007, Media SAFM Radio Show’.
[2]
The applicant sought to rely on a number of grounds the main being
that the arbitrator failed to apply his mind to the matter
before him
leading him to reach an unreasonable decision. It is common cause
that after the applicant had pleaded guilty to the
third charge, the
only issue before the arbitrator was the fairness of the applicant’s
dismissal for making herself guilty
of the third charge and the
appropriateness of the sanction of dismissal. It was submitted on
behalf of the applicant that her
dismissal was unfair in that the
third respondent had applied discipline inconsistently by issuing her
colleague, Dr Madiba, (“Madiba”)
with a verbal warning
for committing the same misconduct which led to her dismissal. It was
further argued that the arbitrator
incorrectly recorded that Madiba
was issued with a written warning for committing the same infraction
as the applicant, an error
which rendered the award reviewable. The
error is inconsistent with documentary evidence and the “testimony
of the respondent’s
only witness, Mr Mosana (“Mosana”),
that Madiba was issued with a verbal warning.
[3]
Not every error committed by an arbitrator renders an award
reviewable. Material errors of fact are not in and of themselves
sufficient to render an award reviewable but are only of consequence
if their effect is to render the outcome unreasonable. See
Herholdt
v Nedbank Ltd
[1]
.
When all the facts that were before the arbitrator are considered it
becomes clear that the error had no effect on the outcome
of the
arbitration because the principle is materially the same. It is that
one employee was issued with a warning while another
was dismissed
for the same infraction. The fact that the arbitrator referred to the
warning as written instead of verbal is, in
the circumstances of this
matter of no moment. The fundamental difference remains. Madiba was
issued with a sanction less than
dismissal but the applicant was
dismissed.
[4]
Pursuing the argument that the third respondent exercised discipline
inconsistently, counsel for the applicant, argued that
the applicant
and Madiba spoke to the media in contravention of the same circular.
Mosana conceded that what constituted misconduct
in terms of the
circular was mere communication with the media without the permission
of the Department and not the correctness
or otherwise of the
information disclosed to the media. He further conceded that the
statements Madiba made were not true. The
only difference between the
two cases therefore, so went the argument, was that Madiba apologized
shortly after committing the
misconduct while the applicant tendered
her apology at the arbitration. The arbitrator however, recorded that
Madiba was given
a written warning because he apologized and showed
remorse.
[5]
It was argued on behalf of the third respondent that the applicant
had failed to prove the existence of contemporaneous inconsistency
because the applicant was dismissed for lying on the SAFM radio show
of 15 August 2007 about the number of babies who died at the
ELHC.
She claimed that 400 babies died at the two hospitals monthly when
the figure was in the region of 20 babies a month. She
was aware or
should have been reasonably aware of the correct information but lied
deliberately. When she was told about the inappropriateness
of her
conduct that she had failed to follow the correct protocol, she was
unrepentant and maintained that she was telling the
truth. It took
her two years to apologise through an affidavit which had been
prepared by her attorneys. Madiba complained in the
media about the
shortage of beds for patients. When he was told that plans had been
made to provide the beds he apologized promptly.
[6]
The third respondent argued that the parity principle has to be
applied with caution. It is a general principle of fairness
and
should not be applied rigidly. An employee who falls to be dismissed
may not merely claim that because some other employee
had not been
dismissed, he should also not be dismissed on the grounds of the
parity principle. See
SACCAWU
and Others v Irvin and Johnson Ltd
[2]
.
The applicant relied on a number of decisions in support of her
argument of inconsistency. Her argument, however, overlooked an
important part of the principle of parity, that the gravity of the
misconduct should always be taken into account. When the gravity
of
the false allegation made by the applicant bearing her position in
mind, that 400 babies died monthly at the ELHC is considered,
the
complaint made by Madiba pales into insignificance. The reaction of
each employee after it has been brought to his or her attention
that
he or she has committed misconduct counts. Madiba was remorseful and
apologised but the applicant did not but pursued her
lies. It can
therefore not be said that the two employees were treated
differently. The reality is that the gravity of the misconduct
they
committed is different.
[7]
The applicant submitted that in finding her guilty of bringing the
reputation and image of the ELHC and the Department into
disrepute in
the eyes of the public, the arbitrator failed to consider that the
charge was an alternative to charge 3 which the
applicant had not
pleaded guilty to, it was therefore not before the arbitrator. This
argument has no basis because charge 3 provides
that the statements
made by the applicant caused the Department to be viewed in a
negative light. Causing the Department to be
viewed in a negative
light means that she put the name of the Department in disrepute.
There is no real difference, it is just
a question of semantics. The
arbitrator cannot be criticised for his basis for the conclusion that
the applicant caused the Department
to be viewed in a negative light.
[8]
In determining whether there are grounds to have the arbitration
award reviewed and set aside, the review court needs to consider
whether the decision reached by the arbitrator, based on the evidence
before the arbitrator is one which a reasonable decision-maker
could
not reach. See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
.
In the same judgment it was held that it is for the commissioner,
based on the commissioner’s sense of fairness, to determine,
having considered all relevant circumstances, whether a dismissal is
fair. The court held as follows at paragraph 78:
‘
In
approaching the dismissal dispute impartially, a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long service record. This is not an exhaustive list.’
[9]
When the totality of the evidence before the arbitrator as well as
the arbitration award is considered, it becomes clear that
the
arbitrator did precisely what he was required to do when arbitrating
the dispute before him. Although the applicant had pleaded
guilty to
misconduct which involved her giving information to the media on 15
August 2007, the arbitrator cannot be faulted for
looking at the act
of misconduct against the background that the applicant had been
warned against making herself guilty of the
same misconduct before
because he was required to consider all the evidence before him and
the totality of the circumstances of
the misconduct. He considered
the gravity of the misconduct of publishing that about 60% of the
total deliveries at the ELHC were
baby deaths. He took into account
the effect of the misinformation on the third respondent and the
community it serves as well
as the applicant’s position. Her
disregard for the correct information and counsel was also taken into
account. The applicant’s
submission that the policy is silent
on the sanction for its breach does not make the award susceptible to
review as there is no
duty on any employer to provide a closed list
of acts of misconduct as well as the sanction to be meted out in the
event of their
commission. The arbitrator’s duty, which he
fulfilled, was to consider all the circumstances of the case before
him in determining
the appropriateness of the sanction. The applicant
argued that the arbitrator’s finding on the appropriateness of
the sanction
of dismissal had no legal basis. In
Sidumo
(supra
) the court made it abundantly clear that it is the
arbitrator’s duty to determine the fairness of a sanction. It
forms part
of the fairness of the dismissal. The arbitrator
considered the evidence before him and exercised his power to make a
finding on
the appropriateness of the sanction. He based his finding
on the evidence that the applicant was a Superintendent of one of the
hospitals and a Deputy Hospital Manager of the ELHC which included
the other. She inflated the figure of baby deaths by about 19
times
and communicated such misinformation to the nation at large including
the community the hospitals serve. She had been told
to desist from
making the incorrect figures public. The arbitrator dealt with the
issue before him, considered the evidence and
reached a reasonable
decision. None of the errors the applicant pointed out led the
arbitrator to reach an unreasonable decision.
As the arbitration
award falls within bounds of reasonableness, I could find no grounds
to interfere with it.
[10]
In the premises, the following order is made:
10.1
The application for review is dismissed.
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCE
For
the Applicant: Advocate Simoyi
Instructed
by: Heshula Attorneys
For
the Third Respondent: Advocate Gqamana
Instructed
by: The State Attorneys
[1]
[2013]
11 BLLR 1074 (SCA).
[2]
(1999)
20
ILJ
2302 (LAC).
[3]
[2007]
12 BLLR 1097
(CC)