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[2015] ZALCD 54
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Zuma and Another v Public Health and Social Development Sectoral Bargaining Council (PHSDSBC) and Others (D914/12) [2015] ZALCD 54; (2016) 37 ILJ 257 (LC) (8 September 2015)
REPUBLIC OF
SOUTH AFRICA
Reportable
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
C
ase
no: d914/12
In the matter between:
THULISILE LYNETTE
ZUMA
FIRST APPLICANT
PHUMZILE REVIVAL
BEKWA
SECOND APPLICANT
and
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
SECTORAL BARGAINING
COUNCIL (PHSDSBC)
FIRST RESPONDENT
ANAND DORSAMY
N.O.
SECOND RESPONDENT
MAHATMA GANDI MEMORIAL
HOSPITAL
THIRD RESPONDENT
DEPARTMENT OF
HEALTH
FOURTH RESPONDENT
Heard
:
13 MAY 2015
Delivered
:
08 SEPTEMBER 2015
Summary:
review – arbitrator
dealing with the matter
purely on written argument - long delay may be factor affecting the
practicability of reinstatement
JUDGMENT
WHITCHER
J
Introduction
[1]
This is an opposed application to review and cross-review an
arbitration award made by the second respondent (“the
arbitrator”)
on 10 August 2012 under case number PSHS
557-09/10.
[2]
The First Applicant was employed as a senior supply management
officer, stationed at Mahatma Gandhi Memorial Hospital. The Second
Applicant was similarly employed as the Finance and Systems Manager.
In May 2009, the Applicants were charged with fifty-two
counts of
fraud and corruption arising from the processing of tenders at the
hospital. The majority of these charges related
to procurement
irregularities that took place between 10 and 14 September 2007.
[3]
On the first day of their disciplinary hearing, the Applicants
pleaded not guilty but changed their plea to guilty on all counts
at
a subsequent sitting. In October 2009, the internal chairperson
issued the sanction of dismissal. Their internal
appeal was
unsuccessful. They then referred an unfair dismissal case to
the PHSDSBC. The first date on which the arbitration
sat was
only on 4 June 2012 and the award was issued on 10 August 2012.
[4]
The dismissal of the Applicants was found to be substantively unfair
but the remedy ordered was two months compensation for
each
Applicant. The Applicants timeously instituted review
proceedings, limited to an attack on the remedy and seeking
retrospective
reinstatement, with costs. The Third and Fourth
Respondents (“the Respondent”), very belatedly,
instituted a
cross-review challenging the manner in which proceedings
were conducted and the assessment of evidence and seeking that the
award
be said aside, and the matter be remitted to the PHSDSBC for
consideration by another commissioner.
The
arbitration hearing
[5]
The parties concluded a pre-arbitration minute, which included a list
of common cause facts. The legal representatives
of the parties
also agreed that the format proceedings would take would be an
exchange of written submissions. The Respondent provided
a founding
submission, the Applicants answered, the Respondent replied and the
Applicants provided a further submission.
[6]
In the arbitration, the Applicants submitted that they were not
guilty on all charges.
[7]
In its founding submission, the Respondent referred to the charges
the Applicants faced in the internal hearing. It averred
that
the Applicants were broadly responsible for processing the bids that
formed the subject of the charges in the absence of bid
specifications, awarding certain tenders to a more expensive bidder
and processing the decisions of bid committees that were not
quorate. This all resulted in a loss to the Respondent.
They put this number at over R300,000.
[8]
The Respondent also pointed out the inconsistency of the Applicants’
guilty plea in the internal hearing and their guilty
plea at the
PHSDSBC as a factor discrediting their present version.
[9]
In making its initial submissions, the Respondent relied to a large
extent on deconstructing the Applicants’ submissions
at the
internal appeal stage. Chief among these submissions was that
the Applicants were operating under Delegation 701 of
the Supply
Chain Management policy. They claimed that this delegation was
recorded in a letter of 6 September 2007 from the
hospital’s
former chief executive officer, Dr. W.L. Ndlovu. Their argument
on appeal was that such a delegation provided
for deviations from
normal supply chain processes. This was necessary as the
hospital wanted to spruce itself up before a
visit by eminent
persons. At the PHSDSBC, the Respondent sought to discredit
these submissions. It argued that clause
7 of a 701 Delegation
could only be invoked if urgent service delivery was required, or
there was a natural disaster or life-threatening
circumstances.
A 701 Delegation could not be used to rush work to impress visitors.
The Applicants were senior employees
who admitted being trained in
supply chain management and thus could not have been under any
mistaken impression to the contrary.
[10]
The approach the Applicants pursued in answer was to concede that the
bids at issue occurred but not any of the inculpatory
facts the
Respondent alleged attached to these bids, such as an absence of bid
specifications, violation of procurement policy,
irregularly
constitution of bid committees and financial loss.
[11]
The Applicant’s first line of defense was thus to point out
that it had no case to answer on corruption and fraud.
Other
than referring to the charges the Applicants faced in the internal
hearing and the documents submitted in their appeal, the
Respondent
placed no evidence, oral or documentary, before the PHSDSBC.
This was a significant failure, the Applicants argued,
as the
PHSDSBC’s job was to consider the case
de novo
.
Since the Respondent, who bore the onus, failed to establish any of
its charges, the Applicants did not need to rely on
the 701
Delegation, which they raised during their appeal as a defense.
[12]
The Applicants’ second line of defense was to say that, if
answers to the charges were required, the Applicants defense
was then
that they were operating under Delegation 701 of the Supply Chain
Management policy. This delegation permitted the
deviations of
which they were accused. Separately, the Applicants also
disputed the factual basis upon which the Respondent
claimed that
certain bid committees made decisions when they did not have
quorum.
[13]
A third line of defense was that, if it were found that the
Applicants acted outside the boundaries of a proper 701 delegation,
all that this established was their failure to follow procedures and
not the charges for which they were actually dismissed, fraud
and
corruption.
[14]
On the change of the plea from guilty to not guilty, the Applicants
stated that they were pressurized by their union representative
to
plead guilty when this was not the true position. Had the
internal hearing chairperson probed their guilty plea, it would
have
been apparent that they were not admitting to fraud or corruption.
[15]
In support of their contention that they were pressurized into
pleading guilty, the Applicants submitted affidavits deposed
to in
the early morning of the day on which they were to change their plea
in the internal hearing to guilty. The content
of the
affidavits do not establish duress on the part of the union
representative. In essence, the Applicants recorded that their
union
representative expected a lesser sanction to flow from a plea of
guilt, they were persuaded by and relied upon this advice,
although
they had misgivings that a show of remorse might not be sufficient to
escape dismissal as a sanction.
[16]
In reply, the Respondent repeated that a 701 Delegation could not
conceivably provide cover for supply chain deviations merely
to
impress important visitors. The Applicants ought to have known
this. In any event the Respondent did not admit the authenticity
of
the letter relied upon by the Applicants in which the existence of a
701 Delegation was recorded.
[17]
The Respondent also disputed the Applicants’ explanation about
a date on a document. I will not spend time describing
this
issue because, even assuming the Applicants gave the wrong date, the
inference that this constituted
fraud or corruption
is not
securely drawn on the facts of this case.
[18]
In their supplementary submissions the Applicants again took refuge
in the point that no evidence, even in the form of written
statements, had been placed before the arbitrator to support the
allegation that the bids were wrongfully handled by the Applicants.
The Respondent had thus failed to discharge the onus.
[19]
In the event that it was shown that the Applicants deviated from set
procedures (as opposed to merely being accused of this),
the
Applicants repeated their defense that they were operating under a
701 Delegation. In the further event that the commissioner
found that the 701 Delegation ought not to have been resorted to, the
worst that could be inferred was the Applicants’ negligent
failure to follow procedures. In that case, if negligence be
the fault, then fraud be the outcast.
[20]
The Applicants sought retrospective reinstatement at the arbitration.
The
arbitration award
[21]
The commissioner did not find in the Applicants’ favour on the
basis that they had no case to answer. The commissioner
found
in the Applicants’ favour utilizing their secondary defense
that they were operating under a lawful 701 Delegation.
However, this was not to excuse their conduct but rather mitigate the
sanction. The commissioner found that Dr. Ndlovu’s
‘instruction’ contained in the letter of 6 September 2007
was likely cascaded to them. He took into consideration
the
pressure the Applicants would have been under to ‘impress a
delegation’ of important visitors. In these
circumstances, with a superior’s sword hanging over their
heads, he noted that shortfalls in their compliance with policy
were
to be expected. The commissioner described the Applicants as
being caught in the cross-fire of the wishes of their superiors.
[23]
Reading paragraphs 27 – 33 of his award as a whole, it is
implicit that the charges of fraud and corruption were, so
to speak,
off the table. Nevertheless, the formal basis for his finding
that the dismissal was substantively unfair was that
the sanction of
dismissal was too harsh.
[24]
The remedy the commissioner provided was two months’ salary.
He departed from the default relief of retrospective
reinstatement
because of “the delay in finalization of the matter” and
the absence of an explanation for this delay
by the parties.
Condonation
for cross-review
[25]
On 3 June 2014, the matter was set down for hearing before, Gush, J.
He was, quite correctly, of the view that the application
for the
late filing of the Respondent’s Counter-Review application did
not contain a proper explanation for the delay of
approximately 12
months. As such there was no proper condonation application
before him and the Respondent’s submissions
regarding the
review of the arbitration award would not be considered.
[26]
The Respondent sought the indulgence of the court that the matter be
adjourned with the Respondent given leave to file supplementary
affidavits explaining the delay in instituting a counter-review, the
Respondents tendering wasted costs. Leave was granted.
[28]
The law on condonation is trite. It may be granted on good
cause in terms of Labour Court Rule 12 (3). The requirement
of
good cause involves an assessment of the extent of the delay, the
explanation for it and the prospects of success in the main
application. A late application for the review of an award may
be granted if the reason for non-compliance is compelling,
the
grounds of attack on the award are cogent and the defect would result
in the miscarriage of justice. A good explanation
might
compensate for a long delay.
[29]
Turning to the facts of this case, the delay of one year was
obviously extensive. However, the explanation as contained
in
the supplementary affidavit, although attesting to grave inefficiency
in record management in the Respondent’s legal department,
was
convincing.
[30]
The prospects of success are fair to good in the sense that the
format adopted by the commissioner for the conduct of the arbitration
was unusual. The Respondent’s attack on this deserves
ventilation.
[31]
The prejudice to the Applicants is also limited in the sense that the
late application is a cross-review. The Applicants’
own
case was already in process of being decided and any delay in
adjudication will be caused mainly by the extra work needed to
adjudicate the Respondent’s submissions. I also take note
of Gush, J’s ruling on wasted costs attendant upon
the last
adjournment. The delays caused by the condonation application however
may be relevant to the final relief sought by the
Applicants.
[32]
Considering all of the above, condonation for the late filing of the
cross-review is granted.
Reviews:
the law
[33]
The Labour Appeal Court in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine v CCMA & Others
provided a useful summation
of the law which is relevant to this case. In a review application
under section 145 of the LRA, the
court must ask the following
questions: (1) In terms of his or her duty to deal with the dispute
with the minimum of legal formalities,
did the process used by the
commissioner give the parties a full opportunity to have their say?
(2) Did the commissioner identify
the dispute he or she was required
to arbitrate? (3) Did the commissioner understand the nature of the
dispute he or she was required
to arbitrate? (4) Did the commissioner
deal with the substantial merits of the dispute? (5) Is the
commissioner’s decision
one that another decision-maker could
reasonably have arrived at based on the totality of the evidence?
[1]
The
grounds of review.
[35]
It is convenient to deal with the grounds of counter-review first.
The
format of arbitration proceedings
[36]
The first ground is that, the commissioner committed a gross
irregularity in dealing with the matter purely on written argument.
[37]
The Respondents submit that disposing of an application on the basis
of written representations
per se
does not constitute
arbitration proceedings; and although the commissioner had the option
available to set the matter down for oral
evidence, he failed to do
so.
[38]
The Respondents admit that ‘at the arbitration hearing it was
agreed that the matter would be dealt with purely on the
written
argument submitted by the parties. The Applicants in turn
emphasize that the parties were legally represented when
this format
was agreed.
[39]
The Respondents claim that it was further agreed that should any
evidentiary gaps be identified, the commissioner would set
the matter
down for oral evidence. The Applicants dispute that this
additional term was part of the format agreement. They
add that even
if such a term existed it was not for the commissioner to decide what
evidence should or ought to be led; and if
the Respondents were of
the view that evidence ought to be led, it was for them to raise this
issue
[40]
The essence of the Respondents’ attack is that the format
adopted for the conduct of the hearing prevented factual disputes
being properly resolved. Permitting the arbitration to
proceed in this way was a material misdirection and thus constituted
a gross irregularity. In the language of
Sidumo,
it is a
decision no reasonable decision-maker would have taken.
[41]
The format the arbitration took resembles that of application
proceedings. A difference is that, instead of evidence
being
adduced by way of affidavit, it came in the form of written
submissions. Perusing the arbitration award, it is apparent
that neither party had difficulty analyzing the credibility of claims
and the probability of versions when these submissions were
based on
common cause facts. For example, the Respondents argued that
the Applicants’ change of plea from the ‘guilty’
at
the internal hearing to ‘not guilty’ in the hearing
de
novo
constituted a discrediting inconsistency. The
Respondents also contended that the seniority of the Applicants
rendered their
claim of ignorance of 701 Delegations improbable.
The commissioner was able to weigh and critically analyse the extent
to
which the admitted facts supported the versions of either party.
[42]
There is merit in the Respondents’ submission that the
application format does not readily allow for the determination
of
disputes of fact. It is by no means an ideal method of
adjudication in cases rich in disputes of fact. Having
said
that, it is not simply that the party bearing the onus loses the case
whenever a dispute of fact arises. It is possible
in
application proceedings to rationally prefer one factual submission
over its polar opposite by attention to the pleadings, although
this
is not always the case.
[43]
The crisp question before this court is whether, in the circumstances
of this case, the commissioner’s decision to adopt
an
application format constituted a gross-irregularity. Was it a
decision that no reasonable decision-maker would have made?
[44]
The Respondents provided me with no authority for their argument that
conducting a hearing in an application format
per se
cannot
constitute arbitration proceedings. Section 138 (1) of the LRA
and Rule 16 (7) of the PHSDSBC are, in my view, wide
enough in scope
to encompass the adoption of the procedure the commissioner did.
[45]
In
Oakfields Thoroughbred
& Leisure Industries Ltd v McGahey
[2]
,
this court found that
an arbitrator’s discretion as to how proceedings are conducted
still imposed a duty to ensure a semblance
of order reminiscent of a
trial. The court also faulted the commissioner for not advising
an unrepresented party of the implication
of his not leading crucial
pieces of evidence. In that case, the commissioner’s
rough-shod manner as well as
his failure to assist an unrepresented
party constituted a disordered manner of conducting a hearing; a
reviewable irregularity.
[46]
In contrast, the arbitration under review took place in an orderly
manner. Unlike
Oakfields
, the trial format was
result of two agreements between legal representatives. First,
by way of a pre-arbitration minute,
the parties agreed a list of
common cause facts to be placed before the commissioner. They
further agreed that the rest of
the evidence would be tendered by way
of founding, answering, replying and supplementary submissions. This
format was furthermore
not imposed by the commissioner. According to
the Respondents, an express facility even existed to fill in any
evidentiary gaps
through oral evidence, if the need existed.
[47]
My attention was directed to
NUMSA
& Another v Voltex (Pty) Ltd
[3]
.
I am not sure how this case
assists the Respondent. In
Voltex,
an arbitrator imposed the application format upon the parties,
depriving an applicant of the participation it sought at the time
to
advance its case. In the present matter, the parties themselves chose
and agreed that their participation in the proceedings
would be by
way of written submissions. Another distinguishing feature is
that, in
Voltex
,
participation by the parties by way of written submissions was far
more limited as there was no facility for replying or supplementary
submissions. The ‘pleadings’, as it were, in the
present case are richer in material to contrast and assess.
[48]
It is presumably because the Respondent’s legal representative
believed that he could discharge the onus of proof that
lay against
his client by way of admitted facts, documentary evidence and written
submissions that he agreed to the application
format of tendering
evidence. Not only did he agree at the outset to this format
but, even after perusing the Applicants’
answering submissions,
he persisted in it, without complaint. If the ground shifted in
the sense that new disputes of fact
arose which could only be settled
in his client’s favour through hearing oral evidence, it was
open to the Respondent’s
representative to make the necessary
application. This was not done.
[49]
Indeed, in their answering submissions during the hearing, the
Applicants alerted the Respondent that it had ‘placed
no
evidence before this tribunal, either in the form of oral or
statement, to support any of its arguments’.
[50]
The true complaint of the Respondent is thus clear. It is that the
commissioner did not, realising the evidentiary difficulty
the
Respondent was in,
meru motu
call for oral evidence. I
am not able to find that the parties agreed that the commissioner
must play this expanded role.
The remaining question is whether
his failure to exercise his discretion to do so constitutes a gross
irregularity.
[51]
The fact that the commissioner did not set the matter down for oral
evidence does not strike me as gross irregularity in the
circumstances of this case. Setting the matter down for oral
evidence would have been contrary to the express agreement among
legal representatives as to the format of proceedings; a format I
have found is permissible under section 138 of the LRA.
While
the commissioner certainly had the power to intervene in the flow of
the case by setting the matter down for oral evidence,
his exercise
of discretion not to do so is understandable where the parties, who
were both legally represented, made no moves to
do so themselves.
[52]
When parties are legally represented, it is safe to assume that the
procedural elections made on their behalf have a strategic
basis.
Indeed, unless there is a patent misunderstanding of legal principle
or process, or an obvious incapacity in representing
a client’s
interests, interfering with a trial strategy may well give rise to
separate complaints of bias or over-reach.
Misconstrued
Evidence
[53]
The Respondent contends that the commissioner misconstrued the
evidence about a letter from Dr Ndlovu, a hospital manager,
to Dr
Nkosi, the Chief Operating Officer. The letter of 6 September
2007 seems to confirm that a delegation was given to
deviate from
normal supply chain polices in order to ready a hospital for a visit
by eminent persons.
[54]
It is true that in the award, the commissioner incorrectly
characterizes the letter as being an instruction from Dr. Ndlovu
to
Dr. Nkosi when the lines of authority in reality flow the other way.
However, this error does little to affect the evidentiary
import of
the letter. It is information that supports the Applicants’
version that they were operating under a 701
delegation when they
dealt with the bids that form the basis of the charges against them.
[55]
The reasonableness of the outcome of the award is not disturbed by
the fact that the 701 Delegation was not lawfully issued
by Dr. Nkosi
to Dr. Ndlovu, either. The commissioner correctly noted that
the probabilities favour the existence of a (purported)
delegation
having being ‘cascaded’ to the Applicants. If such
a 701 Delegation was issued, but improperly, this
alone does not make
those operating under it guilty of fraud and corruption, if anything
at all.
[56]
The Respondent’s further attack is that it never admitted the
authenticity of this Dr. Ndlovu delegation letter and that
the
reliance placed on it by the commissioner was thus misplaced for this
reason too. The letter may not constitute irrefutable
evidence
of the existence of a delegation but within the agreed format of
proceedings, it constitutes some proof. Against
this evidence,
the Respondent does not even place a bare denial, only a non-denial.
[57]
In the circumstances, the commissioner’s reliance on this
document as some sort of corroboration for the Applicant’s
defence that they were operating under what they took to be a section
701 delegation is not unreasonable.
[58] The
last ground of counter review is that the commissioner failed to
assess the Respondent’s argument that a 701 Delegation
ought
not to have been invoked to impress important visitors and they
should have known this. The commissioner, in my view,
did not
have to specifically discount this argument. Assuming it held,
it would have been a stretch to infer that the Applicants
were
thereby guilty of the fraud and corruption. At worst it would have
established a failure to resist pressure and a knowing
violation of
proper procedure. The line of argument is irrelevant to the
issue in dispute, the substantive fairness of dismissal
for fraud
and corruption
.
Relief
flowing from a finding of substantive unfairness
[59]
The Applicants submit that the failure to apply the primary remedy of
reinstatement with backpay attendant upon a finding that
their
dismissal was substantively unfair is contrary to Section 193 (1) (a)
and (b) read with section 193 (2) of the LRA.
As a result it is
a decision a reasonable decision-maker would not make.
[60]
They correctly argue that the primary remedy can only be departed
from if the Applicants did not seek reinstatement, circumstances
rendered the continued employment relationship intolerable, it was
not reasonably practicable to reinstate, or the dismissal was
only
procedurally unfair.
[61]
The Applicants submit that, on the evidence, none of the above apply.
[62]
They argue that the delay in time cited by the commissioner as his
reason for departing from the primary remedy should be no
bar to the
primary remedy.
[63]
It is important to qualify immediately that delay in finalization of
a matter is not
on its own
a bar reinstatement. To find
otherwise is to ignore the statutory provisions cited above.
However, a long delay may
very well be factor affecting the
practicability of reinstatement.
[64]
The Supreme Court of Appeal considered the circumstances under which
reinstatement may be departed from as relief for a substantively
unfair dismissal. In
Republican
Press (Pty) Ltd v Ceppwawu and Others
[4]
the SCA found:
‘
While
the Act requires an order for reinstatement or re-employment
generally to be made a court or an arbitrator may decline to
make
such an order where it is ‘not reasonably practicable’
for the employer to take the worker back into employment.
Whether
that will be so will naturally depend on the particular
circumstances, but in many cases the impracticability of resuming
the
relationship of employment will increase with the passage of time. In
my view the present case illustrates the point.”
[65]
The
Republican Press
case dealt with the selection
criteria in the retrenchment of numerous employees. The court
pointed out:
“
Had
a court made a finding immediately after the dismissal had occurred
that the workers concerned in this case were unfairly chosen
and
ordered their reinstatement the company would have been entitled to
revisit its selection process and select others to dismiss
instead.
In the ordinary course it will clearly be progressively prejudicial
with the passage of time for an order to be made that
has that
effect, both to the employer who must arrange its affairs, and to
other workers who are prone to being selected for dismissal.
In the
present case the problem is exacerbated by the fact that by the time
the Labour Court made its order there had been further
retrenchments
and some of the company’s operations had been restructured.
By the time the case was ripe for hearing
in the Labour Court, even
further retrenchments had occurred.”
[66]
The court continued:
“
That
is not to suggest that an order for reinstatement or re-employment
may not be made whenever there has been delay, nor that
such an order
may not be made more than 12 months after the dismissal. It means
only that the remedies were probably provided for
in the Act in the
belief that they would be applied soon after the dismissals had
occurred, and that is a material fact to be borne
in mind in
assessing whether any alleged impracticality of implementing such an
order is reasonable or not. In the present case
the passage of six
years from the time the workers were dismissed, all of which followed
consequentially upon the failure of the
union to pursue the claim
expeditiously, was sufficient in itself to find that it was not
reasonably practicable to reinstate or
re-employ the workers”.
[67]
It strikes me that notwithstanding a similar delay in finalizing the
matters, important differences exist in the cases.
The first is
that only two posts are at issue in
casu
. The disruption to
the employer’s business caused by the Applicants reinstatement
is logically far less than in the circumstances
of
Republican
Press
. This is especially if the alternative order sought by
the Applicants is given effect to, in terms of which they are not
reinstated
to the same positions they held at the Third Respondent
but to any other reasonably suitable work on the same or similar
terms
and conditions.
[68]
The most important distinction between this matter and
Republican
Press
, is that in the latter there was evidence before the
court about the impracticability of reinstatement. In this
case, the
best the Respondent had to say on re-instatement was: “The
Applicants cannot be reinstated to their former posts as they were
correctly found guilty and dismissed after they pleaded guilty to all
the charges which were very serious and which had an element
of
dishonesty”. This fails to address the
practicability of reinstatement within the context of delay.
[69]
While delay may impact upon the practicability of reinstatement in
the circumstances of a particular case, I do not read
Republican
Press
to suggest that delay may be accepted
without
evidence of the impracticability
to deny reinstatement.
[70]
It is not as if the Respondent was taken by surprise in the relief
the Applicants sought in this matter. In the Applicants’
answering submissions they also very pertinently alerted the
Respondent that it had “not established any grounds as to why
the positions of the Applicants ought not to be returned to them or
why it would be unreasonable to do so.
[71]
The Respondent also had the opportunity at the arbitration to argue
against reinstatement on a ground of other than impracticability,
but
failed to exercise same. There was evidence before the commissioner
that the Applicants pleaded guilty to fraud and corruption
at the
internal hearing and had a weak explanation for not honestly pleading
their case. When such employees later successfully
convinces a
commissioner that they were in fact not guilty of corruption, despite
having pleaded guilty at the internal hearing,
it is possible to
argue that their conduct during the internal hearing has made a
continued employment relationship intolerable.
Although the
dismissal was later found to be substantively unfair, at the time it
occurred it was the perfectly proper decision.
The employee’s
own,
prima facie
dishonest and imprudent actions, have cost
the employer money, time and organisational disruption. The
Respondent was thus in possession
of facts necessary to resist
reinstatement as a remedy on the basis of intolerability at the
arbitration. I make this point by
way of illustration only. It is not
for a reviewing court to invent a new submission for the Respondent.
Doing so would also deprive
the Applicants of an opportunity to reply
to it.
[72]
In the circumstance then, in the absence of evidence supporting any
of the reasons set out in section 193 of the LRA that justify
departing from reinstatement as a remedy for a substantively unfair
dismissal, the commissioner’s decision to only award
compensation was a decision no reasonable decision-maker could made.
Relief
[73]
The Applicants argue that instead of remitting the matter to the
PHSDSBC for a rehearing, I should replace the finding of the
commissioner, ordering their reinstatement. I intend to do that.
[74]
However, I am not convinced that, standing in the shoes of the
commissioner as I have been invited to do, reinstatement should
be
accompanied by full retrospective backpay to the date of dismissal.
[75]
The Constitutional Court in
Equity
Aviation Services (Pty) Ltd v CCMA and Others
[5]
considered the retrospectivity of an award of reinstatement and found
that the adjudicator hearing the matter exercises a discretion
in
terms of Section 193(1). The Court in
Equity
Aviation
said:
‘
The
ordinary meaning of the word "reinstate" is to put the
employee back into the same job or position he or she occupied
before
the dismissal, on the same terms and conditions. Reinstatement is the
primary statutory remedy in unfair dismissal disputes.
It is aimed at
placing an employee in the position he or she would have been but for
the unfair dismissal. It safeguards workers'
employment by restoring
the employment contract. Differently put, if employees are reinstated
they resume employment on the same
terms and conditions that
prevailed at the time of their dismissal. As the language of s
193(1)
(a)
indicates, the extent of retrospectivity is dependent upon the
exercise
of a discretion
by the court or arbitrator. The only limitation in this regard is
that the reinstatement cannot be fixed at a date earlier than
the
actual date of the dismissal.’
[6]
(emphasis added)
[76]
Guidance on how to exercise this discretion judicially is to be found
in a judgment of the LAC in
Mediterranean
Textile Mills (Pty) Ltd v SA Clothing and Textile Workers Union and
Others
[7]
.
Ndlovu, JA, found:
‘
However,
the only issue for critical consideration is the extent of
retrospectivity of the employees' reinstatement. This is a matter
in
respect of which I am not convinced that the Labour Court gave due
and sufficient regard to, particularly given, amongst others,
the
above-quoted observation made by the Labour Court itself on the
obvious and objective dire financial straits of the appellant
currently, as well as at the time of the dismissals. On this basis,
therefore, the pronouncement by the Labour Court (at para 57)
that
'[w]hatever challenges come the way of the respondent, it should be
able to comply with the order of reinstatement which the
applicants
have shown an entitlement to' is, with respect, neither consistent
with the court's own factual finding aforesaid on
the appellant's
financial capacity nor the principle that 'fairness ought to be
assessed objectively on the facts of each case'.
In
National
Union of Metalworkers of SA v Vetsak Co-operative Ltd and Others
,
the Appellate Division (as it was then known) stated as follows:
“
Fairness
comprehends that regard must be had not only to the position and
interests of the worker, but also those of the employer,
in order to
make a balanced and equitable assessment. In judging fairness, a
court applies a moral or value judgment to established
facts and
circumstances. And in doing so it must have due and proper
regard to the objectives sought to be achieved by the
Act.”’
[77]
The court in
Mediterranean Textile Mills
found that
full retrospective reinstatement unjustifiably burdened the employer
financially, also considering the conduct of the
employees and was
not fair and objective on the facts. The Court limited back pay
to 12 months, which the Court considered
“just and equitable in
the circumstances.”
[78]
As alluded to above, I believe I have both the power and a sufficient
factual basis to exercise the same discretion the commissioner
would
have enjoyed in respect of the amount of backpay the Applicants
should be given.
[79]
In this regard I take into consideration the Applicants’ own
role in triggering their dismissal by pleading guilty for
no good
reason. Indeed, their deposing to affidavits the morning of
their change of plea has a distinct cloud of cynicism
hanging above
it. I doubt very much they would have complained at all about
their union representative’s ‘pressure’
had the
gambit of showing remorse worked.
[80]
However, I also take into consideration the admitted delay caused by
the Respondent in instituting a cross-review.
[81]
In the circumstances, I believe that 12 months backpay is just and
equitable in the circumstances.
Order
[82]
The finding in respect of remedy issued by the Second Respondent is
hereby reviewed and set aside.
[83]
The finding is replaced with the following:
(i)
The Fourth Respondent shall re-employ the Applicants either
at the
Third Respondent or in any other reasonably suitable work on the same
or similar terms and conditions and without any break
in service
being recorded.
(ii)
The reinstatement referred to above is with backpay limited to twelve
(12) months, calculated on the basis of what the Applicants would
have been earning as of the date of this judgment had they not
been
dismissed.
(iii)
The Third and Fourth Respondent is to pay the Applicants’
costs.
_________________________
BENITA
WHITCHER
JUDGE OF THE LABOUR
COURT
APPEARANCES
For
the Applicants: D.S Rorick instructed by Brett Purdon Attorneys
For
the Third and Fourth Respondents: N S V Mfeka instructed by the State
Attorney (KwaZulu-Natal)
[1]
(2014) 35 ILJ 943 (LAC) at para 20.
[2]
[2001] 10 BLLR 1147
)LC) at para 25
[3]
[2000] 5 BLLR 619
(LC) at 623.
[4]
2008 (1) SA 404 (SCA)
[5]
(2008) 29 ILJ 2507 (CC)
[6]
At para 36.
[7]
(2012) 33 ILJ 160 (LAC) at para 43