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[2015] ZALCD 67
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South African Commercial, Catering and Allied Workers Union (SACCAWU) v Putini and Others (D1004/11) [2015] ZALCD 67 (26 November 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Not
Reportable
Case
No D1004/11
In the
matter between:
SOUTH
AFRICAN COMMERCIAL, CATERING AND
ALLIED
WORKERS UNION (SACCAWU)
Applicant
and
IRVIN
BONGA PUTINI
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
(CCMA)
Second
Respondent
COMMISSIONER
NHLANHLA
MATHE
Third
Respondent
Heard:
18 December 2013
Delivered:
26 November 2015
Summary:
Application to review arbitration award – union official
dismissed for receiving money from employer where union organised,
dishonesty and soliciting funds without consent – arbitrator
found dismissal both procedurally and substantively unfair –
heads of argument raising new grounds of review not in review
application papers – applicant not entitled to raise grounds
of
review not stated in review application papers – applicant not
challenging arbitrator’s finding that union acted
inconsistently by dismissing first respondent and not dismissing the
Acting Regional Secretary who received free alcohol from the
same
employer without the consent of the union – application
dismissed with costs
JUDGMENT
ALEXANDER
AJ
Introduction
1.
This
is an application, in terms of Section 145 of the Labour Relations
Act
[1]
(“the LRA”),
to review and set aside the award of thetThird Respondent (“the
Commissioner”) in which he
found that the dismissal of the
First Respondent was both substantively and procedurally unfair and
ordered that the Applicant
reinstate the First Respondent
retrospectively to 22 December 2010, at the rate of R9 783.82
per month, with costs.
Salient
facts
2.
The First Respondent was employed by the
Applicant as an Organiser. He was the chairperson of the Durban
Metro District for
the South African Dance Sport Federation
(“FEDANSA”) which is an organisation that promotes
dance. From time
to time FEDANSA obtained sponsorship from
different businesses to promote their activities, such as holding
dance competitions.
On three occasions in 2009 FEDANSA was paid
sponsorships for a total amount of R65 000.00 directly into its
bank account by
Rhino Cash and Carry (“Rhino”). The
sponsorships were made by Rhino to FEDANSA to obtain publicity by way
of
advertising.
3.
The First Respondent was dismissed on 22
December 2010 after being found guilty of:
3.1
Alleged misconduct in that he received
money from Rhino, which was not for the benefit of the applicant; and
3.2
Dishonesty and putting the name of the
applicant into disrepute by soliciting funds from Rhino without the
consent of the Applicant.
4.
The First Respondent proceeded to challenge
the substantive and procedural fairness of his dismissal by way of
arbitration before
the second respondent (“the CCMA”).
The Commissioner, in an award, dated 24 June 2011, found that the
dismissal
of the Applicant was substantively unfair and reinstated
the First Respondent with backpay, and ordered the Applicant to pay
the
First Respondent’s costs.
5.
The Commissioner further found that the
dismissal of the First Respondent was procedurally unfair because the
Applicant refused
to allow the First Respondent to be represented at
his disciplinary hearing by a fellow employee, Nancy Zibi; his cross
examination
of witnesses was limited by the chairperson; he was not
furnished with the reasons for his dismissal; the National Personnel
Committee
(“NPC”) or the Regional Personnel Committee
(“RPC”) of the Applicant (and not the chairperson) had
the
authority to dismiss the First Respondent; after the disciplinary
hearing was concluded, a member of the RPC contacted the public
relations officer of FEDANSA and asked questions in relation to the
subject of the disciplinary enquiry; officials of the
Applicant
involved in the disciplinary enquiry deliberated on the matter prior
to the decision of the chairperson being taken and
the First
Respondent was not afforded an appeal hearing in breach of the
Applicant’s Constitution.
6.
The Applicant lodged a review application
with this Court on 4 November 2011, which was approximately 64 days
late, and brought
an application for condonation for the late filing
of its review application, on 30 March 2012. The Applicant’s
explanation
for the delay in bringing this application is that its
previous attorneys withdrew in all the Applicant’s matters as
attorneys
of record which required the Applicant to instruct another
firm of attorneys, which the Applicant brought to the First
Respondent’s
attention. The Applicant’s current
attorneys were instructed at the end of October 2011 and the review
application
papers were filed on 4 November 2011. The
application for condonation is opposed by the First Respondent.
7.
I am satisfied that the Applicant has
provided a sufficient explanation for the delay in launching this
application and on this
basis the Applicant is entitled to an order
condoning the late filing of this application.
The law
in relation to review applications
8.
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
the
majority of the Constitutional Court set the threshold test for the
reasonableness of an award or ruling as the following:
“
Is
the decision reached by the Commissioner one that a reasonable
decision-maker could not reach?
”
9.
In
Herholdt
v Nedbank Limited
[3]
,
the Court concluded that the review test is as follows:
“
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 S145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a gross irregularity as contemplated by S145(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 areas of fact, as well as the weight and relevance to
be
attached to the 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.
”
10.
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others
[4]
Waglay JP stated:
“
The
enquiry is not confined to whether the arbitrator misconceived the
nature of the proceedings, but extends to whether the result
was
unreasonable or, put another way, whether the decision that the
arbitrator arrived at is one that falls in a band of decisions
to
which a reasonable decision-maker could come on the available
material.
”
11.
Waglay JP held:
“
A
review court must ascertain whether the arbitrator considered the
principal issues before him / her, evaluated the facts presented
at
the hearing and came to a conclusion which was reasonable to justify
the decisions that he / she arrived at.
”
12.
More
recently, in
Head
of the Department of Education v Mofokeng
[5]
,
the Labour Appeal Court summarised the review test as follows:
“
[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
enquiry. 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
enquiry, 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 questions raised for determination.
”
The
applicant’s grounds for review
13.
In the Applicant’s founding
affidavit, which was deposed to by Herbert Eviot Mpofana, a paralegal
officer, the Applicant contends
that the application for review is
brought in terms of Section 145(2)(a)(i), (ii) and (iii) of the LRA,
and in addition, the award
is one that no reasonable Commissioner
could have made having regard to the evidence properly placed before
him, and in addition,
having regard to the reasons stated in his
award. In Mpofana’s affidavit, he does not indicate
specifically in what
respects the award is reviewable.
14.
In the supplementary affidavit, which was
deposed to by Matthews Mphikeleli Ndlovu, who was the acting Regional
Secretary of the
Applicant at the time of the incident, he states
that he wishes to provide further grounds for review, and to
substantiate the
grounds for review raised in the founding
affidavit. The specific ground of review raised by Ndlovu is
that the First Respondent
was guilty of the charge even if FEDANSA,
and not the First Respondent, received the donation of R65 000.00
from Rhino.
15.
Ndlovu then proceeds to contradict himself
by raising a second ground of review that the First Respondent’s
version that the
R65 000.00 was paid into the FEDANSA bank
account was false.
16.
In the Applicant’s heads of argument,
the Applicant accepts that the Commissioner published a careful and
well-motivated award,
in which he found that the charges levelled
against the First Respondent had not been proven, but that in doing
so the Commissioner
failed to consider that the Applicant had a
conflict of interest because he was responsible for negotiating wages
and conditions
of service for the Applicant with Rhino and yet he
solicited and obtained sponsorship for FEDANSA from Rhino in the
amount of R65 000.00.
It is further submitted that it was
not necessary for the money to have been received by the First
Respondent personally but that
it was enough that FEDANSA received
the money, whilst he was the chairman of FEDANSA, because it
generated a conflict of interest.
17.
It is further submitted in the Applicant’s
heads of argument that the Commissioner was correct in finding that
the First Respondent
had not personally received the money but that,
implicit in the charges, was the fact that the money was solicited
and received
by the First Respondent, in his capacity as chairman of
FEDANSA, which was not for the benefit of the Applicant, was not done
in
a transparent way and created a conflict of interest that
undermined his role as a union organiser. It is contended that
he brought the union into disrepute by soliciting funds without the
applicant’s knowledge or consent.
18.
It is further contended by the Applicant in
their heads that the Commissioner failed to take this feature into
account in his award
and that this was a glaring error and oversight
that resulted in an award which was wrong and a decision that could
not be reached
by a reasonable arbitrator, and for this reason, the
Commissioner misdirected himself and committed a reviewable
irregularity.
19.
The First Respondent contends in his heads
of argument that nowhere in the Applicant’s founding papers
does the Applicant
raise as a ground for review that the Commissioner
ought to have found that there was a conflict of interest.
20.
In
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO & Others
[6]
Zondo
JP said (at para [30]):
“
[30]
Accordingly, a party
which brings a review application is bound by the grounds of review
set out in the founding papers. He
cannot in oral argument
argue on the basis of different grounds of review except if such
grounds can be said to be apparent from
the review application.
In this case the applicant does not pursue the grounds of review
contained in the founding affidavit
but seeks to argue the case on
the basis of grounds which are nowhere to be found in the review
application. The grounds
it seeks to pursue are not grounds of
review that can be said to be apparent from its review application.
That cannot be
allowed.
”
The rule
or standard that was allegedly breached and the applicant’s
case against the first respondent
21.
Even if the Applicant had properly raised
in its founding papers that the Commissioner misdirected himself, and
committed a reviewable
irregularity, by not finding that the First
Respondent had a conflict of interest, it was not part of the charges
against the First
Respondent and nor was it the Applicant’s
case during the internal disciplinary hearing and the CCMA
arbitration proceedings.
22.
The fundamental difficulty in the
Applicant’s case is that it is not clear what precisely the
Applicant’s rule or standard
is in relation to obtaining
consent for soliciting or receiving gifts or donations and the
reasons why the Applicant’s case
against the First Respondent
was not consistent in the internal disciplinary hearing, the CCMA
arbitration proceedings and in these
review proceedings.
23.
As the acting Regional Secretary for the
Applicant in KwaZulu-Natal, Ndlovu was the most senior employee of
the Applicant who testified.
He did not give evidence about the
rule or standard relating to obtaining consent for receiving or
soliciting gifts or donations
from an employer, although he did
testify that he had received free alcohol, which was worth R500.00,
from Rhino, without consent
from the applicant, and said that he had
subsequently disclosed receiving the free alcohol to the shop
stewards, and later to his
subordinate, Colin Naidoo. Naidoo
testified that the First Respondent committed an offence because he
received cash from
an employer but that it was not an offence to
receive goods from an employer, as was the case with Ndlovu.
24.
Evidence was led that the Applicant
solicited and received monetary donations from Rhino from time to
time, and that members of
the Applicant that were employed by Rhino,
were not aware of this. No evidence was led regarding the rule
or standard in
relation to the Applicant soliciting or receiving
gifts or donations from employers.
25.
In the outcome of the chairperson for the
disciplinary hearing, she found the First Respondent guilty of the
first charge because
he was paid R50 000.00 for four consecutive
years and he was unable to show that this money was paid to FEDANSA.
In
relation to the second charge, the chairperson found that the
first respondent acted dishonestly in receiving R50 000.00 per
annum for four consecutive years and that he was guilty of corruption
because he requested a donation for his own personal gain.
She
further found that the First Respondent was guilty of extracting a
bribe, and not a donation, because Rhino was the only organisation
that was being organised by the First Respondent.
26.
Whilst testifying before the Commissioner,
the chairperson testified that not only did the First Respondent act
dishonestly but
also that he was involved in fraud and corruption
because he was organising at Rhino not in the interest of the workers
but in
the interest of himself. The chairperson further
testified that the donations were not for the benefit of the
Applicant but
for the benefit of FEDANSA, which contradicted her
outcome for the disciplinary hearing where she found that the money
was not
paid to FEDANSA.
27.
The chairperson testified at the
arbitration that she accepted the hearsay evidence of the applicant’s
witnesses that the
first respondent had received R50 000.00 for
four consecutive years. The chairperson further testified that
this money
was for his own personal gain because he owned FEDANSA and
he had access to the money and could do whatever he wanted with it.
She further testified that the first respondent was involved in
corruption because he requested a donation from Rhino for his own
personal gain.
28.
As stated above, no specific grounds of
review are raised in the Applicant’s founding affidavit.
In the Applicant’s
supplementary affidavit, the first ground of
review is that the First Respondent was guilty of the charge even if
FEDANSA, and
not the First Respondent received the donation from
Rhino. The second ground of review, which contradicts the first
ground
of review, is that the First Respondent’s version that
the donation was paid into FEDANSA’s bank account was false.
Nowhere in the applicant’s founding affidavit or supplementary
affidavit is it raised as a ground of review that the Commissioner
failed to consider that the Applicant had a conflict of interest, and
that accordingly his award was wrong and not one that could
be
reached by a reasonable arbitrator.
29.
The Applicant is not permitted to raise new
grounds of review in its heads of argument, which were not raised in
the Applicant’s
founding and supplementary affidavits, and
accordingly the Applicant’s application ought to be dismissed
on this basis alone.
Whether
the applicant acted inconsistently in dismissing the first respondent
and not dismissing Ndlovu
30.
In his award, the Commissioner found that
the dismissal of the First Respondent was substantively unfair
because the Applicant acted
inconsistently by dismissing the First
Respondent and not dismissing the acting Regional Secretary, Ndlovu,
who personally received
free alcohol from Rhino valued at R500.00.
31.
This finding by the Commissioner is not
raised by the Applicant as a ground of review in its founding papers,
or even in its heads
of argument.
32.
In any event, based on the evidence
presented in the arbitration, the Commissioner correctly found that
the Applicant acted inconsistently
by dismissing the First Respondent
and not dismissing Ndlovu for receiving free alcohol from Rhino
without consent or authorisation
from the Applicant.
33.
It was contended by Mr Pillemer, for the
Applicant, during argument that the two cases are distinguishable
because Ndlovu disclosed
to the Applicant that he received free
alcohol.
34.
But the First Respondent was not dismissed
for failing to make a disclosure, he was dismissed for failing to
obtain consent.
Ndlovu committed the same offence because he
did not obtain consent from the Applicant when he received the free
alcohol on 3 September
2010. Ndlovu only disclosed receiving
the free alcohol to the shop stewards of Rhino 11 days later, and to
Naidoo, who was
his subordinate, after Naidoo had told him that the
first respondent had received money from Rhino. Ndlovu
testified that
he told the Regional Officer Bearers (“ROBs”)
by way of a text message and subsequently told the General Secretary
of the applicant at a meeting in November 2010 that he had received
free alcohol from Rhino. In April 2011, Ndlovu was told
that an
investigation had been instituted against him for having received
free alcohol from Rhino, but he was not dismissed.
35.
The offence that the First Respondent was
dismissed for was soliciting funds from Rhino without consent.
Ndlovu was not dismissed
(or even disciplined) for failing to obtain
consent from the Applicant when he received the free alcohol from
Rhino. Ndlovu
committed the same offence as the First
Respondent by not obtaining consent from the Applicant before
receiving the free alcohol
from Rhino, and the Applicant acted
inconsistently in dismissing the First Respondent and not dismissing
Ndlovu.
36.
The Commissioner’s finding that the
First Respondent’s dismissal was substantively unfair because
the Applicant failed
to apply discipline consistently by not
disciplining Ndlovu remains unchallenged.
Conclusion
37.
The Applicant’s application to review
and set aside the award is dismissed, with costs.
Order
38.
I accordingly make the following order:
38.1
The application for condonation for the
late filing of the review application is granted;
38.2
The application to review and set aside the
award is dismissed;
38.3
The applicant is ordered to pay the first
respondent’s costs.
ALEXANDER
AJ
Appearances:
For the
applicant
:
Advocate M Pillemer SC
Instructed
by
: Jafta
Inc.
For the
first respondent
: Mr B
Mgaga
Instructed
by
: Garlicke &
Bousfield Inc.
[1]
Act
95 of 1995
[2]
(2007)
28 ILJ 2405 (CC)
[3]
(2013)
ILJ 34 2795 (SCA)
[4]
(2014)
35 ILJ 943 (LAC),
[5]
[2015]
1 BLLR 50
(LAC)
[6]
(2009)
30 ILJ 269 (LAC). 1 See also
CUSA
v Tao Ying Metals Industries and Others
[2009] 1 BLLR 1
(CC); (2008) 29 ILJ 2461 (CC)