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[2015] ZALCPE 51
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Bhatti v Public Health Social Development Sectoral Bargaining Council and Others (P309/12) [2015] ZALCPE 51 (26 June 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P309/12
In
the matter between
M
Y
BHATTI
Applicant
and
PUBLIC
HEALTH SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
First Respondent
COMMISSIONER
MBULI N.O
Second Respondent
MEC
DEPARTMENT OF HEALTH: EASTERN CAPE
Third Respondent
DEPARTMENT
OF HEALTH: EASTERN CAPE:
Fourth Respondent
Heard:
26 August 2014
Delivered:
26 June 2015
Summary:
An arbitration award which is not based on the evidence
tendered at the arbitration is reviewable.
JUDGMENT
LALLIE
J
[1]
In this application, the applicant seeks an order reviewing and
setting aside the arbitration award of the second respondent
who I
will refer to in this judgement as the arbitrator. The application is
opposed by the third and fourth respondents who I will
refer to in
this judgement as the respondents. The facts of this matter are that
the applicant was employed by the respondent is
a Principal Medical
Officer from 1 October 1993 until his dismissal on 9 September 2011.
On dismissal, the applicant was a full-time
employee of the
respondents performing his duties as a doctor at the Dora Nginza
Hospital, one of the hospitals which form part
of the PE Hospital
Complex.
[2]
Owing to allegations of misconduct against the applicant, the
respondents preferred the following charges against him:
‘
1
You committed fraud in that you had claimed payment of remuneration
in respect of hours worked
in circumstances where those hours were
not actually worked and/or were duplicated;
2 Fails
to carry out a lawful order or routine instruction without just or
reasonable cause in that
you refused to be allocated to Dora Ngiza
Hospital Casualty section;
3
Prejudiced the administration or efficiency of the Department by
speaking to the media with regard
to issues affecting the PE Hospital
Complex;
4
Alternative charge: you contravened the prescribed code of conduct
for the public service by speaking
to the media with regard to issues
affecting the PE Hospital Complex’.
[3]
The applicant was found guilty of having committed the misconduct
referred to in all three charges. He was dismissed and challenged
the
substantive fairness of his dismissal at the first respondent where
the arbitrator issued the arbitration award which the applicant
seeks
this court to review and set aside. The applicant’s grounds for
review are that the arbitrator committed gross misconduct
and gross
irregularity with regard to the conduct of the arbitration
proceedings and rendered an unjustifiable and unreasonable
award. He
ignored or failed to attach proper weight to the evidence before him
in reaching the finding that he was guilty of fraud
and
insubordination. He failed to take into account the relevant legal
principles when dealing with the appropriateness of the
sanction of
dismissal. A further attack on the award is based on the arbitrator’s
failure to take into account that the evidence
of the respondents’
only witness was not specific. He failed to apply the cautionary
rule. The applicant submitted that the
arbitrator was biased, failed
to order that the respondents produce registers which he needed,
failed to take into account that
the rape crisis centre where he
worked when he is alleged to have refused to work at casualty is part
of the casualty department.
He did not take into account that no
evidence was led to prove that he had made himself guilty of the
misconduct which led to his
dismissal.
[4]
The respondents denied that the award is unreasonable. They submitted
that although Dr Vehbi was a single witness his evidence
was found
admissible by the arbitrator who recorded that he presented clear and
coherent evidence which was not disputed by the
applicant. With
regard to the respondents’ decision to lead only one witness
the arbitrator found that although the evidence
was uncorroborated it
stood out to be the true reflection of what happened at the time the
misconduct was committed. The respondents
further submitted that the
grounds the applicant sought to rely on were devoid of substance and
merit and his application stands
to be dismissed.
[5]
This court may review and set aside arbitration awards if they are
unreasonable. An arbitrator commits a gross irregularity
which
justifies the reviewing and setting aside of the award when he or she
has undertaken the wrong enquiry or undertaken the
enquiry in the
wrong manner in deciding the fairness of a dismissal.
Herholdt
v Nedbank Ltd and Others
[1]
.
An arbitration award may be set aside on the grounds that it is
unreasonable when it constitutes a decision which a reasonable
decision-maker could not reach on the facts before the arbitrator.
Gold
Fields Mining SA (Pty) v CCMA and Others
[2]
.
The
court further found that in determining the reasonableness of an
arbitration award, the reviewing court must consider the totality
of
the evidence, ascertain whether the arbitrator considered the
principal issue, evaluated the facts presented and came to a
reasonable conclusion.
[6]
The applicant’s case is mainly based on gross irregularities
committed by the arbitrator in the conduct of the arbitration
proceedings. There is merit in the applicant’s submission that
the arbitrator’s decision that the dismissal was substantively
unfair is not supported by the evidence before him. In reaching the
decision that the applicant had made himself guilty of fraud
he
stated as follows in paragraph 33 of the award:
‘
He stated
that what the applicant did cannot be monitored and amounted to fraud
on the part of the applicant because he was paid
for the duties that
he did not perform but were possible performed by someone else. The
argument of the employer in this regard
makes perfect sense and the
conduct of the applicant amounted to fraud at least on a balance of
probabilities and cannot be condoned
especially in the public health
environment in which the applicant was working’.
[7]
The arbitrator’s finding overlooks that the respondents’
allegation of fraud against the applicant is based on his
conduct of
receiving remuneration in respect of hours worked in circumstances
where those hours were not actually worked and/or
were duplicated.
Having accepted that the hours were actually worked and not
duplicated the arbitrator had no basis to find the
applicant guilty
of fraud. The arbitrator’s finding is not based on evidence
which supported the charge which had been preferred
against the
applicant. After accepting that the hours were worked and not
duplicated the only reasonable conclusion that could
be reached on
the evidence based on the charge was that the applicant did not make
himself guilty of fraud. The arbitrator was
not at liberty to find
the applicant guilty of fraud not related to the one he was charged
with and dismissed for as he had to
determine the substantive
fairness of the applicant’s dismissal for the reasons which led
to his dismissal.
[8]
When evaluating evidence tendered in connection with the charge of
insubordination, the arbitrator considered evidence led on
behalf of
the respondents to the effect that the applicant failed to sign the
attendance register on 4 January 2010, Dr Vehbi did
not find the
applicant at the casualty when he called and physically went to the
casualty looking for the applicant. He concluded
that the applicant
committed insubordination as, from the evidence led, it was clear
that the applicant did not report for duty
at the casualty as
instructed without valid reason. The arbitrator omitted to evaluate
the applicant’s evidence on the charge.
The applicant’s
unchallenged vision was that on the day in question he worked at the
rape crisis centre at the request of
a junior doctor who requested to
swap with him. Dr Vehbi conceded that the rape crisis centre forms
part of the casualty section
of the Dora Nginza Hospital. The
applicant’s undisputed evidence was therefore that on the day
in question he performed his
duties at the casualty. The arbitrator
gave no reason for rejecting the applicant’s unchallenged
version and accepting the
respondents’ version which was
challenged by the applicant. The unchallenged evidence before the
arbitrator therefore was
that the applicant worked at the rape crisis
centre which is part of the casualty on the day in question. The
conclusion that he
did not report for duty as instructed without
valid reason is not supported by the evidence that was led at the
arbitration.
[9]
The arbitrator recorded that the applicant pleaded guilty to the
third charge of liaising with the media and his defence that
he did
not know that what he was doing was wrong is not acceptable. He found
that the employer witness presented clear and coherent
evidence which
was not disputed by the applicant even though not corroborated and
stood out to be the true reflection of what happened
during the time
of the incident. This finding is a figment of the arbitrator’s
imagination because no evidence was led in
respect of the third
charge. Arbitrations are hearings
de novo
. An arbitrator can
only base the decision whether an employee has committed an act of
misconduct on evidence or admission tendered
at the arbitration. The
court in
Herholdt
(supra)
referred with approval to the
dicta
that the
Sidumo
test will justify setting aside
an award if the decision involves speculation by the commissioner and
is disconnected with and
unsupported by any evidence. As the
arbitrator’s decision that the applicant made himself guilty of
charges one and two is
unsupported by the evidence tendered at the
arbitration and the third is based on the commissioner’s
imagination the arbitration
award is unreasonable as it is not a
decision a reasonable decision-maker could reach on the facts before
the arbitrator.
[10]
This matter was not properly ventilated at arbitration and the record
of the arbitration proceedings does not contain all the
facts which
would make it possible for the award to be substituted. The
respondents acted unreasonably in opposing this application
because
it is clear that the gross irregularities committed by the arbitrator
renderer the award reviewable. The respondents are
therefore liable
to pay the applicant’s costs.
[11]
In the premises, the following order is made:
11.1 The
arbitration award issued by the second respondent under case number
PSHS 425 – 11/12 and dated 18 May 2012
is reviewed and set
aside.
11.2 The matter is
remitted to the first respondent to be arbitrated
de novo
by
an arbitrator other than the second respondent.
11.3
The third and fourth respondent pay the applicant’s costs
jointly and severally one paying the other
to be absolved.
______________________________
Lallie J
Judge of the Labour Court
of South Africa
APPEARANCES
For
the Applicant:
Mr Van Zyl of Francois Roux Attorneys
For
the Third and Fourth Respondents:
Advocate Dala
Instructed
by:
The State Attorney
[1]
[2013] 11 BLLR
1074
(SCA) at para 20
[2]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).