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[2016] ZALCJHB 44
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Minister of Correctional Services v POPCRU obo Mmoledi and Others (JR1791/12) [2016] ZALCJHB 44; (2016) 37 ILJ 1179 (LC); [2016] 6 BLLR 637 (LC) (8 February 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
Number: JR1791/12
In
the matter between:
THE MINISTER OF
CORRECTIONAL SERVICES
Applicant
and
POPCRU obo A.M.
MMOLEDI
First Respondent
J.S RAKGOADI
N.O.
Second
Respondent
GENERAL PUBLIC
SERVICE SECTORAL BARGAINING COUNCIL
Third Respondent
Date
heard: 14 October 2015
Delivered:
8 February 2016
Summary:
Clause 9.1 of the Disciplinary Code for the Department of
Correctional Services does not provide
for a termination of
employment
ex lege
; review of an arbitration award in which
Arbitrator misconstrued the nature of the enquiry before him.
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an Award under case number
PSSGA 1060-08/09. The Award in question is dated the 14
June 2012. On
the 21 of May 2012 during the arbitration proceedings a recess was
requested. The transcript of the proceedings reflects
as follows:
“
Arbitrator:
Welcome after a long recess, which was requested and the pre-arb was
done and the minutes have been submitted and signed,
which will be
considered once the matter is finalised. These were done today by the
two parties. Now we had agreed that when we
reconvened that we would
be getting straight into the matter and request the respondent to
lead their evidence in the matter.”
[2]
Unfortunately the said minute is not contained in the record, an
issue I shall return to. The Award records that on the
7 May
2012, a jurisdictional point was raised on the basis that there was
no dismissal but that the employee had absconded. Reliance
was placed
on Clause 9.1 of Resolution 1 of 2006, entitled “the
Disciplinary Code for the Department of Correctional Services”
which provides:
“
9.1
Desertion/abscondment An employee who absents him/herself for 30
consecutive (calendar) days without permission or without notifying
the employer shall be summarily dismissed. However, before dismissing
the employee, the employer must endeavour to establish the
whereabouts of the employee. Upon the employee's reappearance after
desertion, he/she may not be reinstated. The employee must
make
written representations to the delegated authority within 5 days from
his/her reappearance should he/she wishes reinstatement/re-employment
to be considered.”
[3]
This Code is part of the Regulations promulgated in terms of the
Correctional Services Act, 11 of 1998
. In his analysis of the
evidence and argument before him, the Arbitrator writes as follows:
“
5.1
The Respondent submitted that the Applicant was not dismissed but he
deserted and attempts were made to ascertain
the whereabouts of the
Applicant. On two occasions a team was sent out to look for the
Applicant at his place but could not find
him.
5.2
The Respondent further submitted that the Applicant was given the
opportunity to lodge an appeal and
to present his case in written
submission as per clause 9.1 of Resolution 1 of 2006.
5.3
Throughout the evidence of the Respondent is that the Applicant was
summarily dismissed but the Respondent
went on to and allowed the
matter to be treated like it is an ordinary dismissal for misconduct.
The Respondent allowed the Applicant
to lodge an appeal which no
provision is made for in clause 9.1. This was misleading to a person
who was still a student in the
department and contradictory to the
clause the Respondent is relying on for the dismissal of the
Applicant.
5.4
The Respondent further confuses the matter in the outcome of the
appeal correspondence by stating that
the matter was dealt with under
a fair procedure and was substantively fair and proved on a balance
of probabilities. This gives
the impression that there was a
disciplinary hearing conducted and a sanction of dismissal was
pronounced……….
5.13
From the evidence provided and presented by the Respondent it is
clear the Applicant was absent from work
for a period over 30
days and the dismissal should have been in terms of clause 9.1
of Resolution 1 2006. However the Respondent
chose to declare this
matter dismissal for misconduct as stated in the minutes of the
pre-arbitration. This then renders the evidence
the Respondent led on
desertion not consistent with the matter and irrelevant to some
extent.
5.14
The Respondent by not following the procedure as required to deal
with dismissal for misconduct violated the collective
agreement.
Furthermore the Respondent misled the Applicant by allowing him to
make an appeal and called him to an interview as
though he was
afforded the opportunity to present his case without representation
though.
5.15
The Applicant as a student who had just lost his mother and was
affected by the loss should have been given assistance
by the
Respondent. The Respondent after establishing a link with the
Applicant’s father never made a follow up on the whereabouts
of
the Applicant. There should have been more done by the Respondent
than just two visits if this matter was to be determined in
terms of
clause 9.1 Resolution 1 2006. The Respondent did not do enough to
assist the Applicant in the situation he was nor showed
any sympathy
towards the Applicant during his difficult time.
5.16
The Respondent acceded to the fact that there was no
disciplinary hearing conducted. Since this was serious misconduct
which led to dismissal a disciplinary hearing should have been
instituted in terms of the disciplinary code and procedures. This
did
not happen and its renders the dismissal unfair. For a dismissal to
be fair a fair procedure must be followed in terms of the
code of
good practice schedule 8 of the Labour Relations Act……”
[4]
The Arbitrator concludes that:
“
After
considering all the evidence presented by both parties it is my well
considered view that the dismissal of the Applicant was
unfair.
1.1
The Respondent is ordered to retrospectively reinstate the Applicant
to the position he occupied before his
unfair dismissal without any
loss of remuneration and or benefit.
1.2
The Respondent to bear cost.”
[5]
The grounds relied on for the review of the Award are in essence the
following:
5.1
The outcome of the award is one that a
reasonable decision-maker could not have made;
5.2
That the arbitrator lacked jurisdiction to entertain the matter as
the First Respondent’s
services had terminated
ex lege
by virtue of clause 9.1 of Resolution 1 of 2006 and that the Second
Respondent committed a gross irregularity by failing to appreciate
the above;
5.3
That the Second Respondent committed a gross irregularity by
confusing an appeal for reinstatement
and appeal against dismissal.
Evaluation:
[6]
The Disciplinary Code is a collective agreement, albeit
promulgated in terms of the Regulations in terms of the
Correctional
Services Act. Clause
9.1 falls to be distinguished from clauses such
as those contained in the Public Service Act, 1994 and
Employment of
Educators Act 76 of 1998
[1]
.
These legislative provisions provide for a “deemed discharge”
when certain jurisdictional facts are present i.e. the
termination of
the employment relationship occurs by operation of law. In contrast,
clause 9.1 of the Disciplinary Code provides
for the
summary
dismissal
of an employee once he has been absent for 30 calendar days without
permission, and efforts have been made to find him. Thereafter,
on
the employee’s reappearance, such employee has the right to be
heard (by making representations) to a delegated authority
in respect
of reinstatement or re-employment.
[7]
The bargaining council thus had jurisdiction to entertain what was in
essence a dismissal dispute on a charge of abscondment.
However, it
is evident from the face of the Award as quoted above, that the
Arbitrator misconstrued the nature of the enquiry,
which was to
determine the fairness of a dismissal for misconduct. This was due to
a misconception that Clause 9.1. of the Disciplinary
Code does not
cover a misconduct dismissal. Whether the result of the award was
reasonable on the totality of the evidence before
the arbitrator had
the correct enquiry been addressed in the Award, is not possible for
this court to duly discern given the content
of the record before me.
This is particularly so given the absence of the pre-arbitration
minute from the record. In any event,
where a dispute is arbitrated
under the type of misconception as in
casu
, the evidence
elicited may not assist a reviewing court to determine whether the
award was reasonable on the totality of evidence
before an
arbitrator.
[8]
In my view it would be in the interests of justice that the award be
reviewed and set aside and the dismissal dispute be remitted
to the
third respondent to be reheard by another arbitrator. This will allow
for consideration of the procedural and substantive
fairness of the
dismissal in terms of clause 9.1 to be properly determined. The
totality of the evidence relating to the dispute
deserves to be heard
and weighed in the proper context.
[9]
In the premises, I make the following order:
Order
:
1.
The award under case number PSGA 1060-08/09 is reviewed and set
aside.
2.
The dispute is remitted to the third respondent for re-hearing before
an arbitrator other than
second respondent.
3.
There is no order as to costs.
________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicants:
Thapelo Kharametsane Attorneys
Third
Respondent: Advocate Molatelo Malowa
Instructed
by: The
State Attorney
[1]
i.e.
s 17(3) (formerly s 17(5)) of the Public Service Act, 1994 and
s
14(1)(a)
of the
Employment of Educators Act 76 of 1998
. Foe example,
Section 17(3)(a)(i)
of the PSA provides:
'An
employee, other than a member of the services or an educator or a
member of the Intelligence Services, who absents himself
or herself
from his or her official duties without permission of his or her
head of department, office or institution for a period
exceeding one
calendar month, shall be deemed to have been dismissed from the
public service on account of misconduct with effect
from the date
immediately succeeding his or her last day of attendance at his or
her place of duty.'