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[2015] ZALCD 5
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Public Service Association of South Africa and Another v General Public Service Sectoral and Others (D 1116/2010) [2015] ZALCD 5 (13 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, DURBAN
JUDGMENT
Case no: D
1116/2010
Not Reportable
DATE: 13 JANUARY
2015
In the matter
between:
PUBLIC SERVICE
ASSOCIATION OF SOUTH AFRICA
................................
First
Applicant
MATHATO
MOKHELE
...............................................................................
Second
Applicant
And
GENERAL PUBLIC
SERVICE SECTORAL
BARGAINING
COUNCIL
..........................................................................
First
Respondent
P PILLAY
N.O
........................................................................................
Second
Respondent
DEPARTMENT OF
HOME AFFAIRS: KWAZULU NATAL
......................
Third
Respondent
Heard: 12
November 2013
Delivered: 13
January 2015
Summary: Review
of an arbitration award –Commissioner made reasonable findings
– application for review is dismissed.
JUDGMENT
PRINSLOO, AJ
Introduction
[1]
The Applicant is seeking to review and set
aside an arbitration award issued on 14 October 2010 and to
substitute it with an order
that the Second Applicant’s
(Mokhele) dismissal was unfair and that she be retrospectively
reinstated.
[2]
The Third Respondent (the Department)
opposes the application for review.
Brief exposition
of the facts
[3]
The Applicant was employed as a data
capturer for a period of three years, before she was dismissed in
June 2007.
[4]
Mokhele wrote: “
I,
Mokhele Mathuto work for the Department of Home Affairs as a data
typist and I confess to have been taking presents from the
agents,
funeral parlours and marriage officers for quicker services. I know
what I have done is wrong as I am paid by the Department
to do my job
and I am very sorry for that. I would like the Department to give me
a second chance to prove myself and I promise
that something of this
nature will never happen again as I have learnt my lesson. I am
apologising for the wrong things that I
have done. I am also pleading
with the Department to please give me a second chance I would do
anything that the Department asks
of me so that I can keep my job. I
am really sorry. That is all I can say. Thank you.”
(the
confession)
[5]
In February 2007 a charge of misconduct was
levelled against Mokhele in that she contravened the Code of Conduct
for the Public
Service in 2006 when she knowingly and unlawfully
accepted compensation in the form of gifts from funeral parlours,
marriage officers
and agents for performing her duties. This was done
in exchange for preferential service and was done without written
approval
from the Department.
[6]
Mokhele pleaded guilty at her disciplinary
enquiry and she was subsequently dismissed.
[7]
The Applicant referred an unfair dismissal
dispute to the First Respondent (GPSSBC) and the dispute was
arbitrated on 26 September
2008, 23 October 2008 and 17 September
2010.
The arbitration
proceedings and award
[8]
The Department called two witnesses and
both testified about the Code of Conduct for the Public Service (Code
of Conduct) and the
fact that Mokhele was trained on the contents of
the Code of Conduct.
[9]
Mr Dlamini on behalf of the Department
testified that the practice is that the Department does not accept
gifts from the public.
The value of the gifts is irrelevant, as they
do not accept gifts. Ms Maharaj, the Department’s second
witness, testified
that Mokhele gone through an induction programme
and she is familiar with the processes and contents of the Code of
Conduct. She
testified that Mokhele’s conduct set out in her
confession constituted a transgression of the Code of Conduct.
[10]
Mokhele testified that she wrote the
confession because she was asked to do so by Monde Maqula and she
apologised in her confession
not to upset her boss any further. She
pleaded guilty at her disciplinary enquiry because she was advised by
her representative
to plead guilty. In her testimony during the
arbitration she said that what she did wrong was to accept a bribe.
[11]
The Second Respondent (arbitrator) upheld
the sanction of dismissal and found Mokhele’s dismissal
substantively fair. She
held that material aspects of Mokhele’s
case was not put to the Department’s witnesses and that the
Department’s
witnesses were not challenged on important and
material aspects of their versions. The arbitrator found that the
Department proved
its case on a balance of probabilities.
[12]
On the appropriateness of the sanction the
arbitrator held that she had to consider whether dismissal was an
appropriate sanction
out of a range of options and not whether it was
the only appropriate sanction or option a commissioner would have
chosen. In evaluating
the factors, the sanction of dismissal was
upheld.
The test on
review
[13]
The test to be applied on review is
well-established. A review application is not an appeal. The review
court is required to determine
whether the decision to which the
arbitrator came falls within the bands of decisions to which a
reasonable decision-maker could
come on the available material. Any
process-related conduct on the part of an arbitrator for example a
failure to have regard to
particular evidence, or the manner of the
assessment of that evidence, is of no consequence unless it had the
result of an outcome
that is unreasonable.
[14]
In
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[1]
the
Supreme Court of Appeal held that:
“
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. 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 enquiry 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.”
[15]
The test to be applied is a stringent one,
concerned only with the question whether the decision of the
arbitrator is reasonable.
Grounds for
review
[16]
The Applicant raised five main grounds for
review.
[17]
The first ground for review relates to the
arbitrator’s finding that Mokhele was guilty of misconduct in
circumstances where
the rule is clear that a declaration needs to be
made only in respect of a gift in excess of R 350. The Department
failed to prove
any gifts in excess of R 350 and it is Mokhele’s
case that she should not have been disciplined, as she has not
committed
any misconduct. The Applicant submitted that the arbitrator
has not applied her mind correctly.
[18]
The Department submitted that clause
(c)(5)(iii) of the Code of Conduct provides that “
an
employee does not use her or his official position to obtain private
benefits for herself or himself during the performance of
her or his
official duties nor does she or he accept any gifts or benefits when
offered as they may be construed as bribes.”
[19]
In addition to the Code of Conduct there is
an ‘Explanatory manual on the Code of Conduct for the Public
service’, which
is a ‘practical guide to ethical dilemmas
in the workplace’. In this explanatory manual it is stated that
‘
an employee shall not, without
prior written approval from the Head of the Department accept any
gifts, benefits or item of monetary
value (a description and the
value and source of gift with a value in excess of R 350) from any
person for himself or herself during
the performance of duties as
these may be construed as bribes.”
[20]
The evidence of Mr Dlamini was that it was
not about the value of the gift but employees in the public service
are paid for their
services and should not accept gifts for services
rendered. He explained that employees should not accept gifts and
gifts to the
value of R 350 and more must be disclosed, but the
practice was not to accept gifts at all. Mokhele testified that she
accepted
a bribe and she confessed that she accepted gifts for
quicker services.
[21]
The arbitrator held that Mokhele had an
opportunity at the arbitration to clarify that she had done nothing
wrong, but she presented
varying submissions. The arbitrator dealt
with those submissions, including that at the arbitration Mokhele
accepted that what
she did was wrong and that it was to accept a
bribe.
[22]
In respect of the issue of the value of the
gift the arbitrator dealt with Mokhele’s defence that only if
the gift was to
the value of R 350 or more was there a need to
disclose and the gift she received had a value of R 20. The
arbitrator held that
this was inconsistent in view of the true facts
namely that Mokhele pleaded guilty at her disciplinary hearing after
her representative
advised her to do so, she admitted in the
arbitration that she was wrong to take a gift and the provisions of
clause c(5)(iii)
of the Code of Conduct that prohibits an employee to
accept any gifts or benefits.
[23]
In her final analysis the arbitrator
considered the charge levelled against Mokhele. The charge of
misconduct was that Mokhele contravened
the Code of Conduct for the
Public Service when she knowingly and unlawfully accepted
compensation in the form of gifts from funeral
parlours, marriage
officers and agents for performing her duties in exchange for
preferential service. The Code of Conduct in terms
of which the
Department charged and dismissed Mokhele does not confine the
acceptance of gifts to a monetary value, nor did the
charge levelled
against her.
[24]
In my view there is no merit in the
Applicant’s submission that she has not committed any
misconduct and that the arbitrator
committed reviewable
irregularities, as set out in the application for review, in respect
of her findings in this regard.
[25]
The second ground for review is that the
arbitrator failed to take into account the initial plea bargain and
the consequences of
the plea bargain in the context of the facts of
the matter. The Applicant submitted that on no construction of the
rule has Mokhele
committed any misconduct.
[26]
This ground for review is related to the
fourth ground for review, which is that the arbitrator misconstrued
the evidence relating
to the misconduct. It is the Applicant’s
case that the Department bore the onus to prove the breach of the
rule but it elected
to lead no evidence on the breach of the rule but
relied on Mokhele’s confession. The Department did not lead any
evidence
contrary to the version presented by Mokhele and no
reasonable decision maker could have found on the evidence that was
adduced
that the onus had been discharged.
[27]
In my view is the provisions of the Code of
Conduct quite clear that no employee is to accept any gift or benefit
and the Applicant
makes too much of the R 350 amount. This amount is
not stipulated in the Code of Conduct and by no stretch of the
imagination can
it mean that employees could take and accept gifts
and benefits as long as the value is less than R 350.
[28]
Be that as it may, the Applicant’s
case is that the arbitrator failed to deal with the issue of the plea
bargain in circumstances
where this was raised as an issue in that
Mokhele pleaded guilty on the basis of a plea bargain.
[29]
The arbitrator indeed dealt with the issue
of the plea bargain and she found that it was evident that the
chairperson of the disciplinary
enquiry was not prepared to allow his
independence to be interfered with and he made a decision on the
facts before him and not
on the basis of a plea bargain.
[30]
The arbitrator further considered that
Mokhele testified that she made a confession on the premise that
Maqula would indemnify or
exonerate her of any punitive action and
that the chairperson of the disciplinary enquiry failed to take that
into account. The
arbitrator held that Mokhele was afforded a further
opportunity in the arbitration to clarify that she did nothing wrong,
yet she
conceded in her testimony that she was wrong to accept a
gift.
[31]
The transcribed record shows that Mokhele
admitted that she understands English, but she had great difficulty
to explain why she
wrote that she accepted ‘
presents
from the agents, funeral parlours and marriage officers for quicker
services’
when it was her version
that she only accepted one packet of biscuits once.
[32]
Mokhele did not call Maqula as a witness to
corroborate her evidence in respect of the plea bargain or any other
aspect where she
needed Maqula’s evidence to support her
version.
[33]
Mokhele has during the arbitration
proceedings and independent from her confession or plea bargain,
admitted that what she did was
wrong and she accepted a bribe. How
that Applicant can persist with her case that since the Department
did not lead any evidence
contrary to the version presented by
Mokhele, no reasonable decision maker could have found on the
evidence that was adduced that
the onus had been discharged, is
astonishing.
[34]
Mokhele never testified that the confession
she wrote was not the truth or that she was forced to write it, on
advice of the representative
she pleaded guilty at her disciplinary
enquiry and at the arbitration, she admitted to wrong doing. In my
view it was reasonable
to find that the onus had been discharged.
[35]
The
Labour Appeal Court in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2]
affirmed the test to be applied in review proceedings and held that a
piecemeal approach should not be followed. It held that:
‘
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.
………
In a review
conducted under s 145(2)
(a)
(ii) 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 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.
To
do it differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in s 138
of
the LRA which requires the arbitrator to deal with the substantial
merits of the dispute between the parties with the minimum
of legal
formalities and do so expeditiously and fairly.’
[36]
In my view the arbitrator dealt with the
issue of the plea bargain and the confession drafted by Mokhele. The
Applicant submitted
that the arbitrator failed to deal with these
aspects and she made no findings on that and her failure constitutes
a reviewable
irregularity.
[37]
A review Court should not take a piecemeal
approach and the submissions in respect of these grounds for review
is requiring of this
Court to do just that.
[38]
The third ground for review relates to
procedural aspects and it is the Applicant’s case that the
arbitrator failed to deal
with these issues and in failing to deal
with it, she committed a reviewable irregularity. The issues are that
the matter was already
dealt with when Mokhele was given a
precautionary transfer and that she was not charged timeously and
secondly the length of time
taken by the chairperson of the
disciplinary enquiry to communicate the final outcome, contrary to
the rules set out in the disciplinary
code.
[39]
It is evident from the transcribed record
that after the Department closed its case Mr Govender, who was
Mokhele’s representative
at the time, raised two points. The
first point was that Mokhele was transferred from her section to
another section and as a result
thereof, the matter was disposed of
in an informal manner and she was only charged many months after
that. The other point raised
was that chairperson’s findings
were only communicated months after the disciplinary enquiry. These
issues were not raised
specifically with the Department’s
witnesses prior to the closing of the Department’s case.
[40]
The transcribed record shows that the
arbitrator dealt with the issues during the arbitration process and
she told Mr Govender that
the issues he raised after the closing of
the Department’s case, should have been raised at the outset
and should have been
dealt with in evidence and put to the
Department’s witnesses.
[41]
The arbitrator dealt with the points raised
during the arbitration.
[42]
Mr Govender subsequently withdraw the
points that he has raised and the arbitrator recorded the following:
“
For the record what I would, it’s
all on the record, what I’m going to do is I’m going to
insert a note that there
are two procedural points raised you asked
me to deal with in an application. However you’ve withdrawn
that.”
[43]
The submissions made by the Applicant in
respect of this ground for review are disconnected from the
transcribed record. It is evident
from the transcribed record that
the procedural issues, now raised in the review application, had been
withdrawn. There was no
need for the arbitrator to deal with issues
and to make findings on the issues that were raised and withdrawn and
that she has
dealt with during the arbitration proceedings.
[44]
This ground for review is not supported by
the evidence from the transcribed record and has no merit.
[45]
The last ground for review is that
arbitrator misconducted herself, alternatively committed a gross
irregularity, alternatively
failed to conduct herself as a reasonable
decision maker by failing or neglecting to deal with the allegation
of consistency in
relation to Ms Kakuse.
[46]
It is apparent from the transcribed record
that at the commencement of the arbitration it was disputed whether
the rule was consistently
applied. No names were however mentioned.
[47]
In the testimony of Mr Dlamini he was asked
about the consistency of the application of the rule and he testified
that one Nkosi
Ngidi was dismissed with the Applicant for the same
misconduct. In cross-examination and in dealing with the issue of
consistency,
Mr Govender put it to Mr Dlamini that Mokhele’s
testimony would be that she was not suspended. No other version in
respect
of consistency was put to the Department’s witness, nor
did Mokhele present another version in her own testimony.
[48]
In the heads of argument the Applicant
submitted that the issue of consistency was raised at the outset of
the hearing as an issue
in dispute and that the issue was reiterated
in the Applicant’s closing argument wherein it was submitted
that L Ngobeni
and T Kakuse were employees of the Department and had
been given written warnings for misconduct where they have been in
breach
of the rules which constituted serious misconduct.
[49]
It is trite that closing arguments are not
done under oath and do not form part of evidence. Closing arguments
are done when all
the evidence has been presented, all the questions
have been asked and all the exhibits have been introduced and it is
based on
the evidence that was presented. The facts and issues in the
case determine the contents of closing arguments.
[50]
In closing arguments the facts as presented
are weaved with the applicable legal principles to make out an
argument to persuade
the fact finder. It cannot introduce facts that
were not presented and tested during evidence. Facts not introduced
under oath
during evidence have no value if introduced in closing
arguments.
[51]
It is clear from the record that the
version that one Ngobeni and Kakuse were given written warnings for
serious misconduct was
not raised with the Department’s
witnesses. It is raised in Mokhele’s closing argument.
[52]
The Applicant also submitted that the
arbitrator made no reference to the inconsistency challenge. This is
factually incorrect as
the arbitrator in her analysis of the matter
the arbitrator stated that Mr Dlamini was challenged on the issue of
consistency and
that he referred to Ngidi, who was also dismissed.
[53]
The arbitrator cannot be faulted for not
considering the allegations about inconsistency involving Ngobeni and
Kakuse when that
was not part of the evidence presented, but only
raised in closing argument.
[54]
In reviewing the arbitration award I must
consider the totality of the evidence adduced and decide whether the
decision made by
the arbitrator is one a reasonable decision maker
could make. This Court is not to consider every factor individually
or independently,
but is to consider the evidence and the award in
its totality and holistically.
Conclusion
[55]
Mokhele submitted that the arbitration
award is not reasonable
inter alia
because the arbitrator committed a
gross irregularity in the conduct of the proceedings, she made
mistakes of law and misconceived
the nature of the enquiry.
[56]
In reviewing the arbitration award, the
grounds for review as raised by the Applicant must be assessed. This
Court can only decide
whether the arbitrator’s decision was so
unreasonable that no other arbitrator could have reached the same
decision. The
test to be applied is a strict one.
[57]
Having considered the evidence adduced at
the arbitration proceedings, the findings made by the arbitrator and
the grounds for review
as raised by the Applicant, I cannot find that
the arbitrator's decisions do not fall within the band of decisions
to which a reasonable
decision maker could come.
[58]
The arbitrator’s decisions are
reasonable and the award is not to be interfered with on review.
[59]
The Department argued that costs should be awarded in its
favour and I can see no reason why the costs should not follow the
result.
[60]
In the premises I make the following order:
Order
[61]
The application for review is dismissed with costs.
Connie
Prinsloo
Acting
Judge of the Labour Court
Appearances:
Applicant:
Mr Macgregor – Macgregor Erasmus Attorneys
Third
Respondent: Advocate I J Patel
Instructed
by: State Attorney
[1]
(2013) 34 ILJ 2795 (SCA).
[2]
(2014) 35
ILJ
943 (LAC).