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[2016] ZALCPE 8
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Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others (PR235/14) [2016] ZALCPE 8 (19 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
CASE NO: PR 235/14
In
the matter between
THANDIWE
CYNTHIA
STOKWE
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL:
DEPARTMENT
OF EDUCATION,
EASTERN
CAPE
First Respondent
HEAD
OF DEPARTMENT,
DEPARTMENT
OF EDUCATION:
EASTERN
CAPE
PROVINCE
Second Respondent
EDUCATION
LABOUR RELATIONS
COUNCIL
Third Respondent
THANDO
QOTOYI
Fourth Respondent
Heard:
6 August 2015
Delivered:
19 February 2016
Summary:
An applicant seeking to have an arbitration award reviewed and set
aside on the grounds that it
has a defect as envisaged in
section 145
of the
Labour Relations Act 66 of 1995
, must prove the defect. Errors
in the conduct of the arbitration which have no effect on the
reasonableness of the award do not
constitute defects.
JUDGMENT
LALLIE,
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the fourth respondent (‘the arbitrator’)
in which he
found the applicant’s dismissal substantively fair. It is
opposed by the first and second respondents (‘the
respondents’).
Factual
background
[2]
The applicant was employed by the Department of Education, Eastern
Cape (“the Department”) as an educator until
her
dismissal on 22 June 2011, after 13 years’ service. On
dismissal, the applicant was a Deputy Chief Education Specialist
for
Learners with Special Needs in Education (‘LSEN’). She
was based at the Uitenhage District Office. In 2008, Mr
Spies
(‘Spies’), the Chief Education Specialist who the
applicant reported to was on sick leave and some of his duties
were
performed by the applicant. Amongst those duties was coordinating
scholar transport. After Spies had resumed his duties in
2009, he
discovered that the applicant had approved a contract of Dikela Tours
and Distributors, an entity which her husband was
a Director of, to
transport scholars of Palmiet River Primary School. He reported the
matter and the applicant was charged with
four counts of misconduct
and dismissed. Aggrieved by her dismissal, the applicant referred an
unfair dismissal dispute to the
third respondent (‘the
bargaining council’). The dispute was arbitrated by the
arbitrator who found that the applicant
had made herself guilty of
the fourth charge only which was misuse of her position in the
Department of Education or a school or
adult learning centre to
promote or prejudice the interest of any person as she approved a
service to be rendered by her husband
thus promoting her own interest
and that of her husband. The arbitrator found the sanction of
dismissal appropriate and concluded
that the applicant’s
dismissal was fair.
The
award
[3]
In reaching the decision that the applicant had made herself guilty
of the fourth charge, the arbitrator took into account the
applicant’s evidence that she was guided by the revised policy
in carrying out her duties. Clause 11.2.1 of the policy required
officials who had an interest in a service provider to disclose the
said interest and to obtain permission from the Head of the
Department. It is common cause that the applicant disclosed her
interest. She, however, did not obtain the Head of the Department’s
permission to approve the contract between the respondent and her
husband’s business. The arbitrator took into account the
memoranda which required strict compliance with the policy relating
to scholar transport. The memoranda indicated that there would
be
serious consequences for those who transgressed the policy. He
expressed the view that strict compliance with the policy was
required because the use of public funds was involved. The name of
the applicant’s husband did not appear in the database
for
scholar transport service providers. The arbitrator rejected the
applicant’s explanation that she was faced with an emergency
and did not have the luxury of time to get permission because the
applicant used her husband’s business for over a month
without
making an effort to obtain the Head of the Department’s
permission.
[4]
The applicant submitted that she had to help her husband because he
was unemployed and had developed a low sense of self-esteem.
He found
that the applicant’s conduct constituted misuse of her position
as the scholar transport coordinator to promote
her husband’s
interest as well is her own thus abusing her position of trust. The
arbitrator found the applicant’s
dismissal substantively fair
as the gravity of the misconduct destroyed the trust that the
respondents had in her.
Grounds
for review
[5]
The applicant sought an order reviewing and setting aside the
arbitration award on the grounds that the arbitrator’s finding
that she was guilty of charge four is based on his misunderstanding
of the regulations. She denied having committed misconduct.
She
submitted that she appointed Dikela Tours in an emergency after the
scholar transport that the school was using withdrew after
giving
only a day’s notice. She made the appointment in compliance
with the policy guidelines and reported the matter to
her superior in
writing. She denied that she was required to obtain the Head of the
Department’s permission as she was not
the party seeking
appointment as a service provider. She further criticised the
arbitrator for overlooking the respondents’
inordinate delay in
finalising the disciplinary process. Her disciplinary hearing was
held on 30 March 2011, she received her letter
of dismissal on 22
June 2011 and on 16 August 2011, she requested, through her attorney,
reasons for her dismissal. She lodged
a provisional appeal on 17
August 2011 and her appeal was dismissed on 1 February 2014.
[6]
The applicant further submitted that the finding that she breached
the trust that the respondents had in her is untenable as
the
respondents allowed her to continue working until the dismissal of
her appeal, some two and a half years after she had been
found guilty
of misconduct and dismissed. The applicant expressed the view that
because of the delay, the respondents abandoned
the right to pursue
disciplinary action against her. The outcome of her appeal was a
fresh repudiation of the contract of employment.
She submitted that
the respondents should be estopped from dismissing her as schedule 2
of the Employment of Educators Act 76 OF
1998 (‘the EEA’)
requires discipline to be applied in a prompt, fair, consistent and
in a just manner. It should also
be concluded in the shortest
possible time.
[7]
The respondents opposed the application mainly of the grounds that
the arbitration award is reasonable and based on the evidence
tendered at the arbitration. The applicant conceded that she
committed the misconduct because she wanted to support her unemployed
husband who felt very sick and inferior from getting money hand-outs
from her. In addition, she asked to be absolved from the act
and be
given a second chance. She admitted that she benefited indirectly
from the contract which he awarded to her husband irregularly.
The
respondents insisted that the trust relationship between the parties
has broken down completely. It consequently removed the
scholar
transport duties from the applicant after she was found guilty of
misconduct pending the outcome of her appeal. They submitted
that the
applicant was not prejudiced by the delay in the finalisation of her
appeal hearing. The respondents did not consider
the delay excessive
and submitted that there was no prescribed time limit for the
finalisation of the disciplinary process which
it completed within
reasonable time. The reason proffered by the respondents for the
delay is that it resulted from the national
government’s
intervention in the affairs of the second respondent. The respondents
denied that they should be estopped from
relying on the letter
declining the applicant’s appeal and prayed for the dismissal
of the review application with costs.
[8]
The applicant alleged that the answering affidavit was filed late but
the allegation was successfully refuted by the respondents.
[9]
This court may review an arbitration award if it is unreasonable. The
test for review is elucidated as follows
Herholdt
v Nedbank Ltd (Congress of South African Ttrade Unions as amicus
curiae)
:
[1]
‘
For a defect
in the conduct of the proceedings to amount to a gross irregularity
as contemplated by 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
any consequence if the effect is to render the outcome unreasonable.’
[10]
An assessment of the totality of the evidence which served before the
arbitrator as well as a proper reading of the arbitration
award
reflects that the arbitrator fulfilled his duties in terms of
section
138
of the
Labour Relations Act 66 of 1995
. He did not misconceive
the nature of the enquiry. He recorded, correctly, that he had to
determine the substantive and procedural
fairness of the applicant’s
dismissal. He considered the evidence before him properly and reached
a finding that the applicant
was not guilty of three of the charges
which had been preferred against her. The arbitrator correctly
concluded that the applicant
misused her position to promote her
husband’s interests. The applicant conceded that she breached
the policy by awarding
a scholar transport contract to her unemployed
husband because he was ill and she wanted to boost his self-esteem
and enable him
to earn his own income instead of taking hand-outs
from her.
[11]
The applicant’s submission that the arbitrator misunderstood
the regulations is not supported by the evidence tendered
at the
arbitration. In the applicant’s memorandum dated 23 March 2009
which she addressed to the District Director, Education
Support
Services and Labour Relations, she recorded that in a special meeting
for principals and educators in the scholar transport
scheme, she
made it clear that according to the policy, they may not benefit in
any manner directly/indirectly from the subsidy
system unless there
is no alternative transport available or on one is prepared to render
the service. The policy that she was
referring to is clause 12.3.7 of
the (Revised) Policy Guidelines for Scholar Transport which reads
thus:
‘
No principal
or educator is benefiting in any manner i.e. directly or indirectly,
from the subsidy scheme unless there is no alternative
transport
available or no one is prepared to render the service. This
declaration (unavailability of transport and transport provider)
should always be in writing, authenticated by both the Principal, SGB
and the school’s Circuit Manager and recorded for future
reference.’
[12]
In May 2009, when the applicant used her husband’s business for
scholar transport, she was aware that she was acting
in breach of the
scholar transport policy. On 8 May 2009, the Acting Director SSS and
SSM, NN Tyani, issued a memorandum in which
he stated that certain
officials employed by the Department were acting in breach of clause
11.2 .1 and clause 12.3.7 of the scholar
transport policy. He warned
that any deviation from the policy would lead to serious
consequences. In a memorandum addressed by
the Acting Superintendent
General to Cluster Chief Directors, and all District Directors
CES-ESSS dated 27 May 2009, he echoed
the same sentiments expressed
in NN Tyani’s memorandum and reminded clusters to ensure that
stringent disciplinary measures
were taken against transgressors
failing which non-compliance would result in disciplinary measures
against accountable district
officials. When the applicant continued
using her husband’s business for scholar transport from May to
August 2009, she was
aware of the gravity of her misconduct as well
as its consequences.
[13]
The arbitrator correctly concluded that the applicant misused her
position to promote her husband’s interest. The applicant
sought to be absolved from her act of misconduct and asked for a
second chance. Her defence that she used her husband’s business
because she had a crisis as the contractor that she was using
withdrew after giving a day’s notice was correctly rejected
by
the arbitrator as false. The applicant continued using her husband’s
business for months after the crisis was over. She
did not attempt to
comply with the policy and only refrained from her misconduct after
it was discovered by Spies. The arbitrator
applied his mind to the
appropriateness of the sanction. The fact that an employment
relationship has broken down may be apparent
from the nature of the
offence that the employee has committed.
[2]
[13] The respondents correctly argued that the applicant’s
argument on estoppel was ill-conceived is correct. No basis was
laid
for the defence and estoppel may not be relied upon to make what is
unlawful, lawful. The arbitrator considered the evidence
and
provisions of schedule 2 of the EEA. His finding that the delay
cannot be construed to mean that the respondents had abandoned
the
disciplinary proceedings against the applicant cannot be faulted.
[14]
The arbitrator erred in finding that the scholar transport policy
required the applicant to obtain the Head of the Department’s
authority before using her husband’s business for scholar
transport. The error did not render the award unreasonable because
the arbitrator’s decision that the applicant’s dismissal
was substantively fair because she committed grave misconduct
which
warranted dismissal by benefitting from her husband’s scholar
transport contract is reasonable. The arbitration award
falls within
bounds of reasonableness and there are, therefore, no grounds to have
it reviewed and set aside
[15]
In the premises, the following order is made:
15.1
The application is dismissed.
_____________
Lallie J
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: Advocate Grobler
Instructed
by Michael Randell Attorneys
For
the Third Respondent: Advocate Rawjee
Instructed
by State Attorney
[1]
[2013] 11 BLLR
1074
(SCA) at para 25.
[2]
In this regard see
Department
of Home
Affairs
v
Ndlovu
[2014]
9 BLLR 851
(LAC) at para 16.