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[2015] ZALCD 4
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Sigamoney v South African Local Government Bargaining Council and Others (D142/13) [2015] ZALCD 4 (13 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, DURBAN
JUDGMENT
Case no: D142/13
DATE: 13 JANUARY
2015
Not Reportable
In the matter
between:-
GONASEELAN
SIGAMONEY
................................................................
Applicant
And
SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING
COUNCIL
..........................................................
First
Respondent
COMMISSIONER F A
MOODLEY N.O
.................................
Second
Respondent
ETHEKWINI
MUNICIPALITY
..................................................
Third
Respondent
Heard: 4 January
2014
Delivered: 13
January 2015
Summary:
Application for review of arbitration award.
Judgement
HASLOP AJ
[1] The applicant
has applied to this Court for the review and setting aside of an
arbitration award to the effect that his dismissal
by the third
respondent was procedurally and substantively fair.
[2] The respondent
applied for condonation in respect of the late delivery of its
answering affidavit. This was granted.
[3] The evidence
that was led at the arbitration is set out in many hundreds of pages
of transcript and documents and I do not intend
to deal with it in
detail. It is comprehensively summarised in the arbitration award.
The salient facts are the following:
[4] The applicant
was employed by the third respondent in the position of
superintendent. He had 34 years of service and a clean
disciplinary
record.
[5] On 10 December
2011 the employer issued the applicant with a notice to attend a
disciplinary hearing. There were two separate
allegations levelled
against him. They were the following:
‘
In
terms of the Rules and Procedures governing the eThekwini
Municipality of the South African Local Government Bargaining
Council,
it is alleged that you contravened:
1: Clause 1.2.3 of
the Disciplinary Procedure, in that you failed to perform your task
and job responsibilities diligently, carefully
and to the best of
your ability, when you approved the inferior and incomplete work for
refurbishment of vandalized flat in 906
Elwyn Court, Mahatma Ghandi
Road (Old Point Road);
2: Clause 1.2.5 of
the Disciplinary Procedure, in that you failed to conduct yourself in
honest [
sic
] and integrity, when you process [
sic
]
payments for incomplete work.’
[6] The applicant
was found, following the disciplinary hearing, to have committed
misconduct in both of these respects and was
dismissed.
[7] The allegations
arose out of a complaint, apparently received by the applicant’s
superior several months after it was
first made, that the
refurbishment work referred to in the first of the two allegations
was hopelessly deficient, and yet the contractor
responsible for the
deficient work had been paid for the job.
[8] The allegation
was that the applicant had certified, by way of his signature on the
relevant municipal documentation, that the
work had been properly
completed. It was further alleged that, although the applicant
himself does not process payments, it was
his signature on the
documentation that set the payment process in motion. The value of
the disputed work was in the order of R14
000.
[9] The applicant
challenged his dismissal as unfair in an arbitration at the South
African Local Government Bargaining Council
where the second
respondent arbitrated the dispute and held that the dismissal was
procedurally and substantively fair.
[10] The applicant’s
grounds of review are set out in his application and may be
summarised as follows:
1. The arbitrator’s
failure to attach sufficient weight to his long service and clean
record;
2. The arbitrator’s
failure to consider the nature of the dishonesty which was not, he
alleged, gross;
3. The arbitrator’s
failure to consider the issue of consistency;
4. The arbitrator’s
failure to attach sufficient weight to the lapse of seven months
between the completion of the repairs
and the complaint; and
5. The arbitrator’s
failure to implement progressive discipline.
[11] In addition, he
alleged that no reasonable decision-maker could have considered
dismissal a fair and appropriate sanction in
the circumstances of the
case.
[12] He then
supplemented these grounds by adding the following:
6. The arbitrator’s
failure to attach sufficient weight to the evidence of the witness
Angoninus Moodley, the effect of which
was to deal with deterioration
that might have occurred on the property in the seven month period
between the alleged completion
of the repairs and the date that the
complaint came to the notice of the applicant’s manager, Thula
Phakathi;
7 The arbitrator’s
failure to provide him with an opportunity to “deal with”
the evidence of the witnesses Marshall
Naicker, Thabani Nyawose and
Phiwayinkosi Zulu, who testified at the request of the arbitrator
after the applicant had closed his
case;
8. The arbitrator’s
failure to attach sufficient weight to the failure of the employer to
produce the back page of the job
card at the arbitration;
9. The arbitrator’s
failure to take into account the fact that Phakathi only placed his
payment authorisation stamp on the
documents some months after
payment had already been made;
10. The arbitrator’s
failure to take sufficient notice of certain anomalies in the
employer’s documentation relating
to the repair work performed.
[13] During the
arbitration proceedings the applicant denied that the refurbishment
work concerned had been inferior and/or incomplete.
[14] He claimed to
have been misled by a subordinate colleague, Sivah Daralingam, a
maintenance officer whose signature to the effect
that the work was
properly completed he said that he had relied upon. He had therefore
signed the goods received note to the effect
that a post-inspection
had been performed. He had not personally inspected the final
repairs. He said that this was normal procedure.
[15] He pointed out
that Daralingam had been accused of misconduct in identical terms in
respect of the first allegation, and in
relation to the same work,
that he had been found to have committed that misconduct, and yet
Daralingam had not been dismissed.
He had received a final written
warning.
[16] The applicant
denied that he was responsible for processing payments but the
evidence was that his signature set the payment
process in motion. I
do not believe that the wording of the second allegation in that
regard makes any material difference.
[17] He denied that
his signature on the documentation signified that he had approved the
work or authorised the payment for it.
He said that he had signed the
document on 22 March to indicate that he had performed a spot check
that had been requested by Nyawose.
However, Nyawose denied that he
had requested that a spot check be performed by the applicant. It was
also the general tenor of
the employer’s evidence that, while
spot checks are sometimes performed, it is most unusual that a
superintendent would sign
that he had conducted one. The signature
appears on the document without comment that might suggest that it
was a spot check, or
anything that might identify what aspect of the
work he had checked during the spot check.
[18] Daralingam, the
maintenance officer reporting to the applicant in this instance, and
responsible for this particular job, testified
that he had signed the
goods received note while he was ill in hospital and that the
applicant’s signature was already on
the document indicating
that the applicant had conducted the final inspection and was
satisfied. He had certainly not conducted
the inspection himself as
he had been off work due to his illness. The applicant knew that he
was off work.
[19] Naicker, a
clerk, testified that the applicant advised him, at the time that
Daralingam was in hospital, that the work was
complete and that the
file could be taken to Daralingam in the hospital for his signature.
Daralingam’s signature was the
only one outstanding before he
could begin processing payment for the job.
[20] The applicant
denied all of this evidence.
[21] The arbitrator
dealt at some length with this and the other evidence in her award.
After assessing the evidence, she accepted
the version of the
employer’s witnesses and rejected that of the applicant. She
explains why in some detail in the award.
[22] In my opinion
one cannot say that, in preferring the employer’s evidence to
that of the applicant, she arrived at a conclusion
that a reasonable
decision-maker could not have. In order for all of the employer’s
witnesses whose evidence the applicant
denies to have been giving
false evidence there would have to have been some kind of a
conspiracy against him, which seems highly
improbable.
[23] In the
circumstances, I do not believe that it can fairly be said that she
failed to attach sufficient weight to the lapse
of seven months
between the completion of the repairs and the complaint; or to attach
sufficient weight to the evidence of the
witness Moodley, or to the
failure of the employer to produce the back page of the job card at
the arbitration.
[24]
All of these issues are dealt with in the award. The question to be
answered is not whether she was right or wrong in coming
to the
conclusion to which she did, because this is a review, not an appeal.
The question, as formulated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
, is whether the conclusion she reached was one that a reasonable
decision-maker could not have reached.
[25] It is probable
that the applicant ‘failed to perform his task and job
responsibilities diligently, carefully and to the
best of his
ability, when he approved the inferior and incomplete work for
refurbishment of vandalized flat in 906 Elwyn Court,
Mahatma Ghandi
Road (Old Point Road).’
[26] The matter does
not end there, however. All that this establishes is that, on a
balance of probabilities, the applicant committed
the misconduct
complained of in the first of the two allegations against him.
[27] The applicant
has pointed out that Daralingam committed the same misconduct yet was
not dismissed. Aside from his seniority
and his length of service,
what distinguishes the applicant’s situation from that of
Daralingam is, obviously, the second
allegation, which is one of
dishonesty. The essence of that allegation, in the light of the
evidence led at the arbitration, is
that the applicant acted
dishonestly and with a lack of integrity when he signed the document
to the effect that the post-inspection
had been performed, and that
this signature set the payment process in motion.
[28] Essentially
this is one course of action on the part of the applicant, despite
the fact that it has been divided into two separate
disciplinary
charges.
[29] If one accepts
the employer’s evidence, then the applicant instructed Naicker
that the documents could be taken to Daralingam
in the hospital
because the work was complete, and when Daralingam received the
documentation all of the signatures were in place
save his own,
indicating that a post-inspection had been done and all was in order.
[30] If that is so
and if by his signature on the document he misled those charged with
processing the payment into believing that
he had established, by way
of a post-inspection, that the work had been properly completed, then
it seems to me that the applicant
acted dishonestly and with a lack
of integrity.
[31] Of course there
is another feature that distinguishes the two cases, and that is that
the applicant was Daralingam’s
superior. Although he knew that
he had not conducted the inspection himself, Daralingam believed that
the applicant had.
[32] Counsel for the
applicant criticised the arbitrator for not dealing pertinently with
the issue of dishonesty in the award.
It is also, as I have pointed
out above, one of the applicant’s grounds of review.
[33] She does deal
separately with the second allegation and considers the issue of
dishonesty, perhaps not particularly elegantly
or eloquently, but it
cannot be said that she did not deal with the issue. The evidence
that she accepted was that the applicant,
knowing that he had not
personally finally inspected the work, and knowing that Daralingam
had not signed off that he had, had
signed a document indicating that
he, the applicant, had done so. It seems to me that this is a clear
instance of dishonesty and,
in circumstances where the work had not
in fact been satisfactorily completed, his dishonesty cost his
employer money. I do not
believe that it was necessary for the
arbitrator to have spelt this out. The facts that she accepted made
it clear.
[34] In addition,
she does note in her award that she is enjoined by the judgment in
Sidumo
to have regard to the applicant’s service. She
does not deal with this in any detail but she does indicate why she
considers
dismissal to have been an appropriate sanction, and
therefore, by necessary implication, why she did not consider
progressive discipline
to be appropriate in this instance.
[35] I do not
believe that there is any merit in the complaint that the applicant
had no opportunity to deal with the evidence of
Naicker, Nyawose and
Zulu. Although they testified after he did, the issues in respect of
which they testified were dealt with
elsewhere in the evidence, and
the applicant was given a full opportunity to cross-examine each of
them. Although there is a school
of thought that it is not the place
of an arbitrator to request evidence that might fill gaps in a
party’s case, in this
instance it seems that, having heard
evidence involving Naicker and Nyawose, she cannot be criticised for
wishing to hear what
they had to say about that evidence. In any
event it was the applicant who had alleged that Nyawose had
instructed him to do the
spot check. Of course, Nyawose did not
support this version. It seems unlikely, if he had supported it, that
the applicant would
have complained about the fact that he was called
to testify late in the proceedings.
[36] The alleged
anomalies in the documentation do not, in my view, assist the
applicant. In summary, the evidence that was reasonably
accepted by
the arbitrator was that, on a balance of probabilities, incomplete
work was signed off by the applicant in circumstances
when he had not
checked it but advised Naicker that it was complete and that
Daralingam could therefore sign in the appropriate
place even though
he was in hospital.
[37]
In
Herholdt
v Nedbank Ltd,
[2]
the Supreme Court of Appeal
said the following about the review test at paragraph 12 of the
judgment:
‘
That
test (the test in
Sidumo
)
involves the reviewing court examining the merits of the case ‘in
the round’ by determining whether, in the light
of the issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be
reached on the
evidence and other material properly before the arbitrator (a more
stringent test than asking whether the decision
is one that the
arbitrator could reasonably reach). On this approach the reasoning of
the arbitrator assumes less importance than
it does on the SCA test,
where a flaw in the reasons results in the award being set aside. The
reasons are still considered in
order to see how the arbitrator
reached the result. That assists the court to determine whether that
result can reasonably be reached
by that route. If not, however, the
court must still consider whether, apart from those reasons, the
result is one a reasonable
decision-maker could reach in the light of
the issues and the evidence.’
[38]
Of course, an award is reviewable under section 145(2) (a) of the LRA
if the commissioner committed a gross irregularity in
the conduct of
the arbitration proceedings. In
Herholdt
[3]
,
the SCA considered what this means and summarised the position as
follows in paragraph 25:
‘…
For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must
have misconceived the nature of the inquiry or arrived at an
unreasonable result. A result will only be unreasonable if it
is one
that a reasonable arbitrator could not reach on all the material that
was before the arbitrator. Material errors of fact,
as well as the
weight and relevance to be attached to particular facts, are not in
and of themselves sufficient for an award to
be set aside, but are
only of any consequence if their effect is to render the outcome
unreasonable.’
[39]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others
[4]
, Waglay JP said the following, from paragraph 15 to paragraph 18 of
his judgment, about the correct approach to review proceedings
where
the arbitrator is alleged to have committed a gross irregularity:
‘…
What
is required is first to consider the gross irregularity that the
arbitrator is said to have committed and then to apply the
reasonableness test established by
Sidumo
.
The gross irregularity is not a self-standing ground insulated from
or standing independent of the
Sidumo
test. That being the case, it serves no purpose for the reviewing
court to consider and analyse every issue raised at the arbitration
and regard a failure by the arbitrator to consider all or some of the
issues
albeit
material as rendering the award liable to be set aside on the grounds
of process-related review.
In short: A
reviewing court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated the facts
presented at the
hearing and came to a conclusion that is reasonable...
The fact that an
arbitrator committed a process-related irregularity is not in itself
a sufficient ground for interference by the
reviewing court. The fact
that an arbitrator commits a process-related irregularity does not
mean that the decision reached is
necessarily one that a reasonable
commissioner in the place of the arbitrator could not reach.
In a review
conducted under section 145(2)(a)(c)(ii) [
sic
] of the LRA, the
reviewing court is not required to take into account every factor
individually, consider how the arbitrator treated
and dealt with each
of those factors and then determine whether a failure by the
arbitrator to deal with one or some of the factors
amounts to a
process-related irregularity sufficient to set aside the award. This
piecemeal approach of dealing with the arbitrator’s
award is
improper as the reviewing court must necessarily consider the
totality of the evidence and then decide whether the decision
made by
the arbitrator is one that a reasonable decision-maker could make.’
[40]
Applying the principles enunciated in these judgments I am of the
view that it cannot be said that the award in this case is
one that a
reasonable decision-maker could not have made.
[41]
Counsel were in agreement that costs should follow the result. It is
in any event in accordance with the requirements of the
law and
fairness that they should do so.
[42] I therefore
make the following order:
The
application to review and set aside the second respondent's
arbitration award in this matter is dismissed with costs.
Haslop, AJ
Acting Judge of
the Labour Court of South Africa
APPEARANCES:
F
or
the Applicant
:
P
Schumann
Instructed
by: Perumauls Attorneys, Durban
For
the Third
Respondent:
S Naidu
Instructed
by: Hughes Madondo Inc, Durban
[1]
[2007] 12 BLLR 1097 (CC)
[2]
[2013] 11 BLLR 1074 (SCA)
[3]
Ibid
[4]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at paras 15-18.