About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2015
>>
[2015] ZALCD 69
|
|
Msunduzi Municipality v Harris and Others (D544/13) [2015] ZALCD 69 (1 December 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE NO: D544/13
NOT REPORTABLE
In
the matter between:
MSUNDUZI
MUNICIPALITY
Applicant
and
PRISCILLA
HARRIS
First
Respondent
ADVOCATE
P.E. VAN ZYL
Second Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
(SALGBC)
Third
Respondent
Heard:
09 July 2014
Delivered:
01 December 2015
JUDGMENT
PILLAY
AJ:
[1]
The Msunduzi Municipality as employer seeks an Order reviewing and
setting aside the award of the Commissioner (the Second Respondent)
in an arbitration held before the South African Local Government
Bargaining Council. The employee as First Respondent opposes the
application.
[2]
The First Respondent was employed by the Applicant from February
1994. After certain forensic investigations into the affairs
of the
Applicant, disciplinary proceedings were brought against the First
Respondent. The First Respondent is referred to in at
least three (3)
forensic reports being:
a)
a
report by the FIRM (Forensic Investigation Risk and Recovery
Management) dated April 2007;
b)
the
MORAR report from January 2010;
c)
a
report by the internal forensic investigator in the office of the
Municipal Manager (Mr G. Maritz) dated August 2010.
[3]
In line with the report by Maritz, a pre-suspension hearing was
convened on the 14
th
of September 2010 whereafter the First Respondent was suspended from
her employ.
[4]
The complaint against the First Respondent was that she had submitted
an application for an inter-departmental bursary during
1999,
purportedly to study for a one (1) year diploma in Human Resources at
the Varsity College when in fact she had already completed
an
eighteen (18) week course for the qualification (Human Resource
Management and Training Diploma) in 1998.
[5]
Despite the forensic investigations dating back to April 2007 and the
suspension during 2010, formal charges were brought only
in July 2012
when the First Respondent was given notice to attend a disciplinary
enquiry set down for the 1
st
,
2
nd
and 3
rd
of August 2012.
[6]
Four (4) charges were raised against the First Respondent. The First
Respondent was found guilty on counts 1 and 3, namely:
“
COUNT
1
That
the employee is guilty of contravening sec 2(b) and 2(d) of the Code
of Conduct for Municipal Staff Members (Schedule 2 of
the
Local
Government: Municipal Systems Act 32 of 2000
), copy of which is
attached in that, in the knowledge that she had completed an 18 week
course for the qualification
“
Human
Resources Management and Training Diploma; in 1998 at Varsity
College,
made
application for and accepted financial assistance under Council’s
Bursary Scheme to undertake a course for a one year
Diploma in Human
Resources Management and Training at Varsity College on the basis it
was for the 1999 academic year. Therefore
failing to conduct herself
with honesty and integrity.
COUNT
3
Putting
the organization into disrepute, in that the reputation and integrity
of the Msunduzi Municipality was compromised and dented
to the
members of public. (Varsity College Staff).
”
[7]
The Chairperson of the internal enquiry, Lelani Van Den Berg
recommended the sanction of dismissal. The First Respondent then
referred an unfair dismissal dispute to the Third Respondent and the
arbitration was then chaired by the Commissioner between the
17
th
of January 2013 and the 13
th
of May 2013.
[8]
In his award of 10 June 2013, the Commissioner found the dismissal to
be substantively unfair and ordered the Applicant to reinstate
the
First Respondent in its employ on terms and conditions no less
favourable to her than which had governed her employment prior
to her
dismissal. The Commissioner directed the payment of Four Hundred and
Thirty Two Thousand Ninety Rand and Two Cents (R 432
090.02) less
deductions together with orders for costs.
[9]
The Applicant is challenging the findings of substantive unfairness.
[10]
The charges brought against the First Respondent stem from a scheme
conducted by the municipality whereby it funds the further
education
of its employees through a bursary system. Dr. Julie Dyer, the
Medical Officer of Health for the municipality, gave evidence
about
the scheme. She confirmed that employees would ordinarily apply for
funding if the employee intended to follow a particular
course. Dyer
would investigate whether the course was relevant to the employee’s
position and if money was available, the
municipality would then
provide funding. She confirmed that on her investigations, the First
Respondent had applied to study a
diploma with the Varsity College in
Human Resources. This was a one (1) year course and on Dyer’s
understanding was to have
commenced during 1999.
[11]
The case for the employer was that the First Respondent, when
applying for funding, did so when she had already completed an
eighteen (18) week course at the Varity College during 1998. The
municipality avers that she misrepresented the true facts and
applied
on the pretence of wanting to commence the course during 1999. The
municipality also contends that the First Respondent
misrepresented
the true facts in that she represented that she had submitted the
form during 1998. This, it is alleged, is borne
out by the fact that
the form represents the Applicant’s age as 39 when in fact
during 1998 she was 38. The Applicant turned
39 during 1999.
[12]
Based on these facts, the Chairperson of the internal enquiry found
that the First Respondent had “patently misled her
employer
into agreeing into awarding a bursary in her favour”.
[13]
The Commissioner in considering Count 3 concluded that there was
absolutely no evidence tendered as to how the First Respondent’s
alleged conduct had compromised the reputation and integrity of the
municipality. By contrast, the Chairperson of the internal
enquiry
determined the First Respondent’s guilt on what she termed an
“objective test”. Part of her assessment
was to hold
against the First Respondent the fact that external third parties
were called to take part in an internal disciplinary
hearing. There
is no merit in that finding. It holds the employee accountable for
witnesses called to testify on the employer’s
behalf. The
Applicant’s challenge to the Commissioner’s findings on
Count 3 concedes that there was no direct evidence
that the
reputation and integrity of the Applicant had been compromised by the
conduct of the First Respondent. The Applicant,
however, asks that an
inference be drawn as the most probable version given the
circumstantial evidence as a whole.
[14]
Having regard to the testimony before the Commissioner, I agree with
his assessment of Count 3. Insofar as the Applicant contends
for an
inference, I cannot fault the Commissioner for failing to draw that
inference on the scant evidence before him.
[15]
Pertaining to Count 1, the Commissioner had little regard for the
First Respondent’s argument that the employer had failed
to
demonstrate that a general rule existed which precluded employees
from applying for a bursary after having completed the intended
course. The Commissioner rejected the argument and found that the
crisp issue for determination was whether or not the First Respondent
was dishonest in having supplied false information in her application
and for being granted the bursary based on a falsified application.
[16]
The Commissioner, in a detailed award, considers the factual aspects
relevant to the employer’s case. He accepts the
First
Respondent’s explanation that she had incorrectly stated her
age because of a genuine mistake. She confirmed that she
was under
stress at the time that she completed the form. The Commissioner
finds on the probabilities that the application form
must have been
submitted and certified during 1998. He refers to the evidence of the
witness for the college who conceded that
there was little chance the
college would have colluded with a student to certify something that
was not accurate. He concludes
therefore that the form must have been
presented in 1998.
[17]
In the circumstances, the Commissioner found that the employer had
failed to prove dishonesty on a balance of probabilities.
[18]
Initially, the Applicant attacked these findings as unreasonable on a
substantive but moreso a dialectical level. The Applicant
had
formulated its case to argue the possibility that the court may
accept that the award is wrong but not necessarily unreasonable.
[19]
At the hearing of the matter, however, Counsel disavowed, and quite
rightly so, reliance on the dialectical approach.
[20]
Following a number of different interpretations and applications, the
Supreme Court of Appeal in
Herholdt
v Nedbank Limited & Another
[1]
concluded as follows:
“
In
summary the position regarding the CCMA awards is thus – A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in
Section 145(2)(a)
of
the LRA. For a defect in the conduct of proceedings to amount to a
gross irregularity as contemplated in
Section 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 consequence if their effect
is to render the
outcome unreasonable.”
[2]
[My underlining]
[21]
The judgment of the SCA clearly postulates an outcome based test in
review applications. Put otherwise, the court must consider
whether
the arbitrator has determined the principle issue before him based on
the material presented at the arbitration. The question
then becomes
whether the conclusion of the arbitrator falls within a band of
reasonableness such as to justify his award.
[22]
Despite the argument for the Applicant, I am unable to conclude that
the Commissioner’s award is a material departure
from the
acceptable norm nor a material deviation from the actual evidence
before him or a failure to consider and determine the
evidence or
case such as would constitute an irregularity sufficient enough to
call for the award to be set aside on review.
[23]
If anything, I am satisfied that the Commissioner’s findings
fall within a band of reasonableness as referred to hereinabove.
[24]
Even if I am wrong, there are further matters referred to by the
Commissioner that show the dismissal of the First Respondent
was
substantively unfair. Two (2) of these are significant.
[25]
The alleged misconduct occurred either during 1998 or 1999.
[26]
An initial forensic investigation was conducted by
Forensic
Investigation Risk and Recovery Management (the FIRM)
.
A report dated 2007 was submitted. The Chief Executive Officer of the
FIRM, Mr Naidoo testified and confirmed his recommendation
in 2007
that disciplinary action be taken against the First Respondent.
[27]
A further report referred to as “
The
MORAR
”
report seems to have been commissioned during 2010. That report
likewise recommended disciplinary action against the First
Respondent.
[28]
Sometime during August 2010 an employee of the municipality, Mr
Maritz, who also testified at the arbitration, conducted a
further
investigation and compiled a report based on the two (2) reports
referred to. He likewise recommended the disciplinary
sanction.
[29]
The Commissioner concluded that the delay, from the FIRM report in
2007 or the subsequent MORAR report or Mr Marit’z
report to the
date of institution of the disciplinary proceedings rendered the
dismissal unfair.
[30]
At the hearing the Applicant argued that an earlier condonation
application granted before Commissioner Grobler for condonation
under
clause 6.3 of the Municipal Disciplinary Code rendered the dismissal
fair. I cannot agree. The fact that Commissioner Grobler
may have
afforded condonation for the institution of disciplinary proceedings
does not detract from the analysis into the substantive
fairness of
that dismissal. Where the employer has delayed, without proper
explanation, for in excess of five (5) years from the
date of the
first report, that itself will render any subsequent dismissal
unfair.
[31]
If employers are tardy about instituting disciplinary action, the
courts may find that the employer has simply waived its right
to do
so or that the employer has reconciled itself to the continuation of
the employment relationship and has waived the right
to dismiss the
employee. In all cases, the period of delay must be measured from the
time on which the employer becomes aware of
the alleged misconduct.
In this instance, the FIRM report was commissioned during 2006 and
disciplinary proceedings was recommended
in its findings published
during 2007. There is no explanation for that delay. I am unable to
fault the Commissioner’s finding
that in the absence of a
reasonable explanation for the delays that the First Respondent’s
dismissal was unfair.
[32]
There is another matter which warrants mention. At the time of her
dismissal, the First Respondent had been engaged with the
municipality for eighteen (18) years. There was no evidence of any
pending warning for misconduct of this nature.
[33]
The record of proceedings shows that no evidence was led to
demonstrate the irretrievable breakdown of the employment
relationship.
It is trite that in matters of this nature there rests
an onus upon the employer to show that the conduct of the employee
has damaged
the trust relationship and that such damage in the
circumstances warrants the sanction of dismissal.
[3]
[34]
Mr Pammenter SC for the Applicant argued that the facts of the
charge, as demonstrated at the arbitration, lend themselves
to the
sanction of dismissal. He referred me in particular to
De
Beers Consolidated Mines Limited v CCMA & Others
[4]
[35]
Therein it was reasoned,
inter alia¸
that if
“
despite
the prima facie impression of reliability arising from long service,
it appears that in all the circumstances, particularly
the required
degree of trust and the employee’s lack of commitment to
reform, continued employment of the offender will be
operationally
too risky, he will be dismissed.
”
[5]
[36]
That argument is sound. I am, however, mindful of the facts peculiar
to the
De
Beer’s
matter. Therein, two (2) employees were dismissed for claiming and
receiving pay for nine (9) hours of overtime when they did not
work
overtime at all. The allegations against these employees and the
charges measured against them were an out-and-out fraud.
I am
uncomfortable applying that principle to the facts of this matter.
Particularly where, as the Commissioner has ascertained
the employer
has failed to prove on the probabilities an act of dishonesty.
[37]
I agree with the Commissioner’s view that where the employer,
in this instance, wanted to justify the sanction of dismissal
on the
charges brought against the First Respondent, that the employer must
have led some evidence to demonstrate a disintegration
of the trust
relationship. That was not done.
[38]
I therefore can find no reason to interfere with the Commissioner’s
award.
[39]
I am mindful that there are certain aspects of the First Respondent’s
case which are difficult to reconcile. Her evidence
with regard to
the insertion of the incorrect age on the application form was, to
say the least, troubling. With that said, our
courts have
consistently warned against crossing the divide between appeals and
reviews. Whatever my views may be as to First Respondent’s
conduct, I am unable to criticise the Commissioner’s award for
lack of reasonableness.
[40]
The First Respondent has asked that I dismiss the review with costs.
As I understand, I have a fairly wide discretion where
it comes to
the issue of costs.
[6]
The First Respondent has been reinstated to her employ by the award
of the Commissioner. No doubt, the parties will now attempt
to
rebuild their relationship. I cannot see how an order for costs could
aid in that.
In
the premises I make the following order:
1)
The
application for the review of the Second Respondent’s award is
dismissed.
2)
There
shall be no Order as to costs.
________
I.
PILLAY
ACTING
JUDGE OF THE LABOUR
COURT
SOUTH AFRICA
Appearances:
For
the Applicant:
CJ
Pammenter SC
Instructed
by Mdletshe Incorporated
For
the First Respondent:
S.
Moodley
Instructed
by Premraj & Associates
[1]
(2013) 34 ILJ 2195 (SCA). See also:
Sidumo & Another v
Rustenburg Platinum Mines Limited &
Others
2008 (2) SA 24 (CC)
[2]
Herholdt v
Nedbank Limited & Another
(2013) 34 ILJ 2795 (SCA) at paragraph 25.
[3]
Edcon Limited v Pillemer N.O. &
Others
(2009) 30 ILJ 2642
(LAC) at paragraph 23
[4]
2000 21 ILJ 1050
(LAC) at paragraph 24.
[5]
At paragraph 24.
[6]
See:
Section 162
of the
Labour
Relations Act, 1995