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[2015] ZALCD 2
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Ethekwini Municipality v South African Municipal Workers Union obo Mlambo and Others (D328/2013) [2015] ZALCD 2 (8 January 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Case no: D328/2013
DATE: 08 JANUARY 2015
Not Reportable
In the matter between:
ETHEKWINI
MUNICIPALITY
............................................................
Applicant
And
SOUTH AFRICAN MUNICIPAL WORKERS
UNION
OBO OS
MLAMBO
................................................................
First
Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
..................................................
Second
Respondent
NONDALA
N.O
.....................................................................
Third
Respondent
Application heard: 4 November 2014
Judgment delivered: 8 January 2015
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an application to review
and set aside an arbitration award made by the third respondent, to
whom I shall refer as ‘the
arbitrator’. In her award, the
arbitrator found that the dismissal of Mr. Mlambo (‘the
employee’), on whose behalf
the applicant acts, was
substantively and procedurally unfair. The arbitrator ordered that
the employee be reinstated with retrospective
effect.
The material facts and the
arbitrator’s award
[2] The evidence of each of the
witnesses who testified during the proceedings under review is
recorded in the award. It was not
disputed that in July 2009, the
employee was authorised to possess his service firearm but only while
on duty or travelling to
and from work, and that the firearm
otherwise had to be kept in a safe in conformity with the applicable
regulations. It was also
not disputed that on 8 November 2009 at
about 21h00 in Amaotana, the applicant was in possession of his
firearm outside of working
hours in contravention of the relevant
authorization, and that a number of shots were discharged from the
firearm, causing serious
injury to one Sibusisu Ngiba.
[3] Two charges were brought against
the employee. Both related to a failure to comply with relevant
conditions of employment, policies
and practices. In particular, it
was alleged first that the employee was in possession of a firearm
contrary to the applicable
conditions and secondly, that he had
discharged a firearm or allowed it to be discharged in circumstances
where bodily harm was
caused to Ngiba.
[4] The parties held a pre-arbitration
meeting on 29 November 2012. It was agreed at that meeting that the
employee was off duty
at the time of the incident, that he was
permitted only to carry his firearm to and from work, and at work and
that a person in
his position being off-duty is not permitted to
carry a firearm in terms of the applicable policy. It was agreed that
at the time
of the incident, the employee was in possession of a
firearm. Specifically placed in dispute was the substantive and
procedural
fairness of the employee’s dismissal, whether the
presiding officer at his disciplinary hearing engaged in irregular
conduct
(and particular whether a reasonable decision-maker would
have acted in a manner that he did by disregarding material facts of
the case raised by the employee and his representative), whether the
area in which the incident occurred was unsafe for police
officials,
whether the employee was robbed of his pistol by people in the
neighbourhood, whether the ‘alleged shooting’
was not
malicious intended to harm but purely in self-defence, whether the
shooting occurred as a result of ‘people who were
trying to rob
the firearm’, whether the applicant ‘was kicked out of
trial while it was in process’, and whether
the disciplinary
proceedings were way in excess of timeframe set out in the
disciplinary code. The issue that the arbitrator was
required to
decide is recorded as ‘whether the dismissal was procedurally
and substantively fair’. I would pause to
observe that the
pre-arbitration minute, intended to reduce the scope of the issues
placed in dispute, singularly failed to achieve
that objective. What
it does disclose however is an admission by the employee that he was
in possession of a firearm at the relevant
time in contravention of
the applicable workplace rules.
[5] To the extent that the arbitration
award contains findings made by the arbitrator herself on the basis
of the evidence before
her, the arbitrator recorded, at paragraphs
121 and 122 of the award, that the ‘just cause for discipline’
at the heart
of both charges was the possession and discharge of a
firearm respectively. The arbitrator then proceeds to say the
following:
'[123] The Respondent never submitted
any documents mentioned in the charge sheet setting out the
allegations against the Applicant
other than the disciplinary
procedure collective agreement as well as the firearm possession
report relating to the applicant’s
application for a firearm
permit, including such application.
[124] As a result, the arbitration
hearing was deprived of the vital opportunity to know exactly what
the documents mentioned in
the charge sheet entail in order to
establish whether or not there was any grain of probable truth to the
allegation that the Applicant
has committed any breaches of the other
documents (sic)…’
This observation appears to be of no
consequence, since the arbitrator proceeds to say the following:
‘[127] I have accepted that there
exists a rule at the Respondent’s workplace which forbids
police officials issued
with a departmental firearm from carrying
such firearm off duty in breach of the conditions of issue.
[128] Nowhere in the Applicant’s
application for a firearm permit is it stated that a police official
who is found to have
breached the conditions under which the
departmental firearm has been issued would face dismissal as a
sanction. I therefore find
the Applicant could not have possibly have
known that possessing his firearm while off duty would result in his
dismissal from
the employ of the Metro police within the respondent
municipality. The finding by Von Bargen that the Applicant knew that
his position
of the service firearm in breach of the conditions
imposed on him for such position is further rebuffed of any
legitimacy by the
sanction imposed on the applicant’s fellow
colleague Constable SK Ndlovu (6596703) for committing similar
misconduct…
[136] The Respondent also never led any
evidence during arbitration to show that position of a departmentally
issued firearm without
authorisation while off duty constituted
serious misconduct attracting dismissal at the time the Applicant
committed such misconduct,
and that such misconduct has since become
to be regarded as a less serious offence…
[140] Since the Applicant has taken
ownership of committing the misconduct is set out in charge one in
the notice of the hearing,
the real issue that I am required to
decide is whether the sanction of dismissal was fair in the
circumstances. I intend to come
back to this issue in due course
during the course of my analysis.’
[6] All of this can be reduced to a
finding that since the employee had admitted in the pre-arbitration
minute that he had been
in possession of the firearm at the relevant
time in contravention of the applicable policies, he was guilty of
the offence with
which he had been charged; the only remaining issue
being the appropriateness of dismissal as a sanction. Given the
admissions
made by the employee, this was a statement of the obvious.
[7] In relation to the second charge
against the employee, i.e. discharging or allowing the firearm to be
discharged, the arbitrator
correctly noted that the evidence before
her disclosed a dispute of fact. She concluded after an assessment of
the evidence that
the evidence of Nzama and Ngiba was ‘submerged
in a deluge of improbabilities’ and that the employee’ s
version
that his firearm went off during a struggle with members of
the Ngiba family who were vying for control of his firearm after a
fracas had broken out, was to be preferred. On this basis, the
arbitrator found that the applicant had failed to prove that the
employee had intentionally and unlawfully discharged or allowed his
service firearm to be discharged thereby causing injury to
Ngiba.
[8] The arbitrator then turned to the
question of an appropriate sanction. From paragraph 170 of the award,
the arbitrator sets
out the principles of progressive or corrective
discipline. What the arbitrator then curiously embarks on a review of
the decision
by the chair of the disciplinary hearing to dismiss.
This of course is the incorrect approach – the arbitrator was
required
to decide herself, by reference to all of the relevant
factors and circumstances, on an appropriate sanction. This she does
from
paragraph 182 of the award, where she concludes that the act of
voluntarily surrendering his firearm as soon as the Metro police
arrived at the scene of the shooting ‘…was a testament
to the Applicant’s willingness to embark on a one-way
journey
to mend fences with the respondent for his admitted misconduct. That
served as a clear indication that he was prepared
to make an effort
at self-rehabilitation’.
[9] The arbitrator also takes into
account that the employee remained actively involved in the business
operations of the respondent
throughout his tone a disciplinary
process save for the period of his suspension and that she could find
nothing in the ‘summary
of the findings made by Von Bargen any
reference to the effect that the applicant admitted misconduct has
rendered his employment
relationship with the respondent intolerable,
irreconcilable or unbearable. Neither was such evidence tendered
during the course
of the arbitration hearing’. On this basis,
the arbitrator concludes that the employee’s conduct was hardly
of such
a nature that it could be said that it severely and
irrevocably damaged the party’s existing employment
relationship, or
has ‘crossed the requisite threshold of
interoperability of a continued employment relationship that will
normally justify
the imposition of dismissal as a sanction’.
[10] Another factor taken into account
by the arbitrator in relation to the issue of sanction is the case of
a Constable SK Ndlovu,
who on 13 June 2012, was called to a
disciplinary hearing in relation to a charge of possessing a
departmental firearm while off
duty on his rest day. It was not
disputed that Ndlovu admitted the misconduct and was suspended from
duty without pay for a period
of four days. The arbitrator clearly
considered the applicant’s conduct to have been inconsistent
and concluded, at paragraph
139, that:
‘The employer cannot willy-nilly
exercise discipline over its employees for similar misconduct
depending on how the weather
looks like on a particular day. The
employer can equally not make together one group of employees and
files of another. Discipline
is to be applied indiscriminately across
all employees who are alleged to have committed misconduct of a
similar nature if the
purpose of the exercise of disciplined is to be
achieved at a particular workplace.’
[11] The arbitrator comes to the
following conclusion:
‘[192] I find that the Respondent
has stretched the perimeters of the Applicant’s admitted
misconduct beyond breaking
point solely in order to make the supposed
seriousness of such misconduct to stick and to fit it with the cloak
of just cause for
discipline warranting the sanction of dismissal.
[192] I therefore find that the
sanction of dismissal was not a fair and appropriate sanction in the
circumstances.
[193] I accordingly find that the
Respondent has not discharged the onus to show on the balance of
probabilities that the sanction
of dismissal imposed on the Applicant
for his admitted conduct was appropriate.’
[12] In relation to procedural
fairness, the arbitrator found that Von Bargen had not brought an
open, objective and impartial mind
on the disciplinary hearing and
that the employee dismissal was accordingly procedurally unfair.
[13] In the result, the employee’s
dismissal, as I have indicated, was found to be both substantively
and procedurally unfair
and the employee reinstated with
retrospective effect.
The grounds for review
[14] The supplementary affidavit filed
by the applicant discloses the specific basis for review. In short,
the applicant relies
to a large extent on conduct- related grounds
and in particular, that the arbitrator’s finding was
contradictory, inconsistent
with the material before her and
principle of rationality, that her finding lacked objectivity, that
she failed to have regard
to relevant evidence before her and made
findings not based on the material evidence. The applicant’s
averments are all contained
in the supplementary affidavit, and I do
not intend to repeat them here. Of course, these grounds are not in
themselves a basis
to set aside the award, what is relevant is the
extent to which they had the result of an unreasonable outcome.
The applicable principles.
[15] The legal principles to be applied
are well established. The test for review focuses on the
reasonableness of the outcome.
In Herholdt v Nedbank Ltd (2013) 34
ILJ 2795 (SCA) the Supreme Court of Appeal clarified the relationship
between the constitutional
requirement of reasonableness and the
grounds for review in s 145(2) of the LRA. The concept of gross
irregularity in the conduct
of arbitration proceedings is not
confined to the situation where the arbitrator misconceived the
nature of the enquiry; it extends
to those instances where the result
is unreasonable. A result is unreasonable if and only if it is one
that a reasonable arbitrator
could not reach on all the material that
was available. Material errors of fact, as well as the weight and
relevance to be attached
to particular facts are not in themselves a
basis for an arbitration award to be set aside. These are relevant
only if their consequence
is to render the outcome of the proceedings
under review unreasonable. In Goldfields Mining South Africa (Pty)
Ltd v Commission
for Conciliation Mediation and Arbitration and
others (2014) 35 ILJ 943 (LAC) the LAC confirmed this approach and
held that it
was the function of a reviewing court to ascertain
whether the arbitrator considered the principal issue before him or
her, evaluated
the facts at the hearing and come to a conclusion
which was reasonable to justify the decision to which he was she had
come. What
is to be avoided is an approach that invites the reviewing
court to consider and analyse every issue raised at the arbitration
and to regard a failure by the arbitrator to consider all or some of
the issues, even if they are material, as rendering the award
reviewable on the basis of a process -related review. It is apparent
from this formulation that the threshold in a review application
is
set high, and as the LAC once observed, it is not often that an
applicant in a review application will succeed.
[16] At paragraph [20] of the judgment,
the court stated:
‘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
employed give the parties a full opportunity to have their say in
respect of the dispute? (ii)
Did the arbitrator identify the dispute
he 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? and (v) Is the arbitrator’s decision one
that another decision-maker
could reasonably have arrived at based on
the evidence?
[21] Where the arbitrator fails to have
regard to the material facts it is likely that he or she will fail to
arrive at a reasonable
decision. Where the arbitrator fails to follow
proper process he or she may produce an unreasonable outcome (see
Minister of Health
and Another v New Clicks South Africa (Pty) Ltd
and Others
2006 (2) SA 311
(CC)). But again, this is considered on
the totality of the evidence not on a fragmented, piecemeal analysis.
As soon as it is
done in a piecemeal fashion, the evaluation of the
decision arrived at by the arbitrator assumes the form of an appeal.
A fragmented
analysis rather than a broad-based evaluation of the
totality of the evidence defeats review as a process. It follows that
the
argument that the failure to have regard to material facts may
potentially result in a wrong decision has no place in review
applications.
Failure to have regard to material facts must aactually
defeat the constitutional imperative that the award must be rational
and
reasonable - there is no room for conjecture and guesswork.’
[17] In the recent decision of Head,
Department of Education v Mofokeng and others (JA 14 /2014, 1 October
2014) the Labour Appeal
Court, per Murphy AJA, said the following:
‘[30] The failure by an
arbitrator to apply his or her mind to issues which are material to
the determination of a case will
usually be an irregularity. However,
the Supreme Court of Appeal (“the SCA”) in Herholdt v
Nedbank Ltd and this court
in Goldfields Mining South Africa (Pty)
Ltd (Kloof Gold Mine) v CCMA and others have held that before such an
irregularity will
result in the setting aside of the award, it must
in addition reveal a misconception of the true enquiry or result in
an unreasonable
outcome.
[31] The determination of whether a
decision is unreasonable in its result is an exercise inherently
dependant on variable considerations
and circumstantial factors. A
finding of unreasonableness usually implies that some other ground is
present, either latently or
comprising manifest unlawfulness.
Accordingly, the process of judicial review on grounds of
unreasonableness often entails examination
of inter-related questions
of rationality, lawfulness and proportionality, pertaining to the
purpose, basis, reasoning or effect
of the decision, corresponding to
the scrutiny envisioned in the distinctive review grounds developed
casuistically at common law,
now codified and mostly specified in
section 6 of the Promotion of Administrative Justice Act (“PAJA”);
such as failing
to apply the mind, taking into account irrelevant
considerations, ignoring relevant considerations, acting for an
ulterior purpose,
in bad faith, arbitrarily or capriciously etc. The
court must nonetheless still consider whether, apart from the flawed
reasons
of or any irregularity by the arbitrator, the result could be
reasonably reached in light of the issues and the evidence. Moreover,
judges of the Labour Court should keep in mind that it is not only
the reasonableness of the outcome which is subject to scrutiny.
As
the SCA held in Herholdt, the arbitrator must not misconceive the
inquiry or undertake the inquiry in a misconceived manner.
There must
be a fair trial of the issues.
[32] However, sight may not be lost of
the intention of the legislature to restrict the scope of review when
it enacted section
145 of the LRA, confining review to “defects”
as defined in section 145(2) being misconduct, gross irregularity,
exceeding
powers and improperly obtaining the award. Review is not
permissible on the same grounds that apply under PAJA. Mere errors of
fact or law may not be enough to vitiate the award. Something more is
required. To repeat: flaws in the reasoning of the arbitrator,
evidenced in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material factors etc. must
be
assessed with the purpose of establishing whether the arbitrator has
undertaken the wrong enquiry, undertaken the enquiry in
the wrong
manner or arrived at an unreasonable result. Lapses in lawfulness,
latent or patent irregularities and instances of dialectical
unreasonableness should be of such an order (singularly or
cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the material
that was before him or her.
[33] Irregularities or errors in
relation to the facts or issues, therefore, may or may not produce an
unreasonable outcome or provide
a compelling indication that the
arbitrator misconceived the inquiry. In the final analysis, it will
depend on the materiality
of the error or irregularity and its
relation to the result. Whether the irregularity or error is material
must be assessed and
determined with reference to the distorting
effect it may or may not have had upon the arbitrator’s
conception of the inquiry,
the delimitation of the issues to be
determined and the ultimate outcome. If but for an error or
irregularity a different outcome
would have resulted, it will ex
hypothesi be material to the determination of the dispute. A material
error of this order would
point to at least a prima facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision
in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted upon by the decision;
and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question
was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity
or error material to the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead
to no fair trial of the issues,
with the result that the award may be set aside on that ground alone.
The arbitrator however must
be shown to have diverted from the
correct path in the conduct of the arbitration and as a result failed
to address the question
raised for determination.’
[18] The test to be applied clearly
maintains the distinction between a review and an appeal. The
correctness of the commissioner’s
decision is not in issue, and
the court is not entitled to interfere only because it would have
come to a different conclusion
on the same material. In other words,
commissioners are allowed to be wrong. The applicable threshold also
requires the court to
overlook any lapses in reasoning on the part of
the commissioner and to determine whether the outcome of the
proceedings is nevertheless
reasonable. But it does not follow, as
Murphy AJA observed, that the court is required to engage in a
reasonableness enquiry in
relation to outcome where a commissioner
fails to ask the right question, or where an irregularity or material
error serves to
constitute a material misconception of the nature of
the enquiry. This is particularly so where the commissioner simply
fails to
address the question or questions raised for determination
in the proceedings under review, with the result that one or more of
the parties are denied a fair hearing.
Analysis
[19] At the outset, in relation to the
finding of procedural unfairness, it is appropriate to record that
much of the arbitrator’s
award is devoted to an attack on the
conduct and decision by the chair the disciplinary hearing, Van
Bargen, who had found the
employee guilty on both counts of
misconduct and dismissed him. The terms of the award indicate that
the arbitrator did not enquire,
as she was obliged to do, whether the
requirements of procedural fairness set out in the Code of Good
Practice: Dismissal had been
met. Instead, she was critical of Von
Bargen’s decision on the merits and translated this criticism
into a finding of an
fair procedure. In particular, the language used
in the award is indicative of an approach that suggests a review of
the disciplinary
hearing. For example, at paragraph 205, the
arbitrator finds that Von Bargen was simply ‘going through the
motions’
of the disciplinary process, that he failed to apply
his mind properly to the evidence before him and that he failed to
bring an
open, objective and impartial mind to bear to the decision
that he was required to make. The merits of these findings aside
(they
are difficult conclusions to sustain given Von Bargen’s
evidence), the approach adopted is indicative of a failure properly
to appreciate the nature of the relevant enquiry. What the arbitrator
ought to have asked is whether the employee was afforded
a proper
opportunity to make representations or state his case before any
decision was made regarding the allegations of misconduct
against him
and an appropriate sanction for any misconduct found to have been
committed. This is the nature of the right afforded
by the Code, and
all the arbitrator ought to have determined is whether the employee
had been afforded this right.
[20] Insofar as the arbitrator is
finding on substantive unfairness are concerned, the law is clear –
the arbitration hearing
is a hearing de novo and in the absence of
any agreement by the parties to incorporate any of the record of a
domestic disciplinary
hearing into the arbitration proceeding, the
arbitrator is obliged to make a finding based on the evidence led
before him or her.
There is nothing in the pre-trial minute which
indicates that the parties had agreed that any part of the record of
the disciplinary
hearing was to be introduced in evidence, and it was
incumbent therefore on the arbitrator to decide the case by reference
to the
evidence led at the arbitration hearing.
[21] The arbitrator’s analysis of
the evidence is one in which she embarked on a comparison of the
evidence before her and
other documentation in the form of prior
statements made by the witnesses. In particular, she compared the
evidence proffered at
the arbitration hearing with statements
previously made to the South African Police Services shortly after
the shooting incident.
The arbitrator’s findings on credibility
are founded largely on a comparison of the evidence before her and
the content of
the statements. For example, at paragraph 142 to 150,
the arbitrator rejects Sibisiso Ngiba’s evidence on account of
the
discrepancies between that evidence, a statement made to the SAPS
and what he stated at the employees disciplinary hearing. The
fundamental flaw in this approach is that the record of the
arbitration hearing does not disclose that any of these discrepancies
were directly put to Ngiba, or that he was ever afforded a proper
opportunity to respond to the inconsistencies on which the arbitrator
ultimately relied. In other words, inconsistencies were identified
(and credibility findings made) in circumstances were they had
never
been directly and expressly put to the witnesses concerned for
comment. The arbitrator clearly after the event made comparisons
between the evidence deposed to in the hearing and the documentation
she had before her and made credibility findings on that basis.
[22] To the extent that the
arbitrator’s findings of credibility were underpinned by the
findings of inconsistency in circumstances
where the witnesses
concerned were not afforded a proper opportunity to respond to
alleged inconsistencies between their evidence
at the arbitration
hearing and prior statements, the arbitrator made a case for the
employee, which of course, she was not entitled
to do. In my view,
the conduct in this regard not to provide the parties of a fair
hearing, is in itself a basis for the award
to be reviewed and set
aside.
[23] More fundamentally however, by the
arbitrator’s own lights, she found the employee guilty of being
in possession of a
firearm in breach of the relevant regulatory
provisions. While she considered that dismissal was too harsh a
penalty for this act
of misconduct, her finding is one in which the
employee is not visited with any penalty at all for the misconduct
found to exist.
To the extent that the award under review comprises a
finding of misconduct with no consideration of the penalty that ought
appropriately
to attach to that misconduct, the award does not
represent a decision to which a reasonable decision-maker could come.
[24] In short, in relation to
procedural fairness the arbitrator misconceived the nature of the
enquiry and that misconception resulted
in the failure of a fair
trial in respect of that issue. In relation to substantive fairness,
the arbitrator made factual findings
based on assessments of
credibility in circumstances where the witnesses against him
credibility findings had been made had never
been afforded a proper
opportunity to respond to any averments regarding the consistency
between their evidence at the arbitration
hearing and their prior
statements. In relation to the charge of possession of a firearm in
breach of the applicable regulatory
measures, this was not a matter
that was ever in dispute. In relation to the appropriateness of
dismissal as a sanction for that
misconduct, while the arbitrator
considered that dismissal was too harsh a sanction, she failed to
give any consideration to a
sanction that was appropriate given the
nature of the admitted misconduct. The consequence was that an
employee found to have committed
a serious act of misconduct (and
which has serious and near-fatal consequences) escaped with no
sanction at all. For these reasons,
in my view, the decision reached
by the arbitrator is one that falls outside of the bands of decisions
to which reasonable people
could come on the available material. The
award accordingly stands to be reviewed and set aside.
Remedy
[25] The court has a discretion to
remit the matter to the bargaining council for a fresh hearing, or to
substitute the arbitrator’s
award. The court is generally
inclined to substitute an award if the whole of the record is before
the court and little purpose
would be served by remitting the matter
for rehearing, the delay in finalising the matter would be
unacceptable should the matter
be remitted, or if there is some other
compelling reason why substitution is not appropriate. In the present
instance, I take into
account especially that the employee was
dismissed in 2009 and that the present application for review was
heard almost exactly
5 years later. The record before the court is
complete and it seems to me that little purpose would be served in
remitting this
matter for rehearing.
[26] For the purposes of substitution,
I intend only have regard to the arbitrator’s finding that the
employee committed an
act of misconduct by being in possession of his
service pistol on 8 November 2009. As I have indicated, the
arbitrator’s
finding relies on two factors – that the
employee was unaware that carrying his firearm in breach of the
conditions of issue
could result in dismissal, and that his employer
had acted inconsistently by failing to dismiss Constable Ndlovu.
There is nothing
on the record to suggest that the employee was
unaware that he is carrying a firearm in the circumstances that would
not result
in a disciplinary action, even dismissal. This was never
in dispute. Insofar as the consistency argument is concerned, the
case
of Ndlovu was wholly distinguishable. In that instance, the
employee concerned was charged with carrying a service pistol while
off duty. The pistol had not been discharged, even less that any
third-party been injured. It is not disputed that in the present
instance, the employee’s firearm was discharged in
circumstances where serious bodily harm was inflicted on Ngida, who
has
been left to live with the physical consequences of what was
ultimately an admitted breach of the rules by the employee. In any
event, the applicant’s conduct could not properly be measured
against an act that had not occurred at the time. Ndlovu was
disciplined on 11 July 2012, more than two years and four months
after the incident involving the employee. There could not have
therefore have been any historical or contemporaneous inconsistency
to justify any lesser sanction for the employee.
[27] The facts of the present case are
such that the employee knew and understood the rule regarding the
position of a firearm without
authority, the incident occurred while
he was off duty, intentionally carried his firearm with him and he
went to visit his mother
in the Amaotana area, he had not sought the
prior permission of his employer to carry the firearm in those
circumstances, he breached
the rule regarding the possession of
firearms, he became involved in an altercation, during the course of
that altercation, his
firearm discharged two bullets in circumstances
where a civilian, who was not one of the assailants, was seriously
injured. What
must weigh heavily against the employee is the fact
that he took a conscious decision to carry his firearm into an area
with a
high crime rate in breach of the conditions of issue. It is
beyond dispute that the employee’s misconduct was serious and
in my view, sufficiently serious to warrant the penalty of dismissal.
Even if I were to grant the employee the benefit of the doubt
in
relation to the charges relating to the discharge of a firearm, the
charge of unlawful possession of a firearm in the present
circumstances and having regard particularly to its consequences,
alone warrants dismissal. For these reasons, I intend to substitute
the award made by the arbitrator with one that reflects the
substantive and procedural fairness of the employee’s
dismissal.
Costs
[28] The court has a broad discretion
to make orders for costs, according to the requirement of the law and
fairness. The court
does not ordinarily make orders for costs in
circumstances where there is a collective bargaining relationship
between the parties,
and where a costs order might serve to prejudice
that relationship. In the present instance, there is no compelling
reason to depart
from that approach.
[28] Finally, by way of an aside, I
wish to make a comment about the procedure adopted in relation to the
incident that gave rise
to these proceedings. The shooting took place
on the evening of 8 November 2009. On 19 November 2009, the employee
was suspended
on full pay. The employee was served with notice of the
allegations against him only on 13 May 2010. The disciplinary hearing
was
scheduled to commence on 27 May 2010. The parties agreed to
postpone the proceedings until July 2010 after the soccer World Cup
tournament had ended. The enquiry did not proceed on 19 July 2010 on
account of an application for the recusal of the presiding
officer.
On 28 July 2010 the union objected to the appointment of any official
from within the Durban Metro Police to chair the
enquiry. A presiding
official was appointed only in December 2010. A second notice of a
disciplinary enquiry was served in April
2011, and an enquiry
scheduled for 19 April 2011. The union took issue with the second
notice of an enquiry and declared a dispute
on 6 May 2011. The matter
was arbitrated on 22 July 2011, and an award handed down in October
2011. The disciplinary enquiry resumed
on 17 October 2011 and
adjourned to the next month at the union’s request. The enquiry
was again postponed a number of times
during November on account of
the unavailability of union officials and eventually got underway on
28 November. The enquiry dragged
on into February 2012, and was
concluded only on 2 April 2012 when the employee was dismissed. The
appeal hearing was concluded
only in September 2012, almost three
years after the shooting. The manner in which the disciplinary
process was managed is entirely
inimical to the statutory purpose of
expeditious dispute resolution. The parties appear to have conducted
the disciplinary enquiry
as if it were a criminal trial, with
technical point taking, requests for postponements at every stage and
a procedure more suited
to the magistrates’ court. The Act and
the Code of Good Practice: Dismissal envisage a simple internal
disciplinary process
during which an employee must be afforded the
right to respond to allegations of misconduct made by the employer. I
fail to appreciate
why the parties (and the applicant in particular,
ultimately the manager of the disciplinary process) allowed this
matter to be
conducted as it was. The consequent waste of time, money
and other resources was ultimately for the account of the ratepayers
of
Ethekwini.
I make the following order:
1. The arbitration award issued by the
third respondent on 18 March 2013 under case number EMD 101202 is
reviewed and set aside.
2. The award is substituted by the
following:
‘The applicant’s dismissal
was substantively and procedurally fair.’
3. There is no order as to costs.
ANDRÉ VAN NIEKERK
JUDGE OF THE LABOUR COURT
Representation
For the applicant: Hughes Madondo
Inc
For the first respondent: Tomlinson
Mnguni James