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[2016] ZALCPE 13
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Member of the Executive Council: Department of Education: Eastern Cape v Ncetezo NO and Others (PR 71/13) [2016] ZALCPE 13 (7 July 2016)
THE
LABOUR COURT OF SOUTH AFRICA
PORT
ELIZABETH
Case
no: PR 71/13
DATE:
7 JULY 2016
Not Reportable
In
the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL:
DEPARTMENT
OF EDUCATION: EASTERN
CAPE
........................................................
Applicant
And
THOBELA
NCETEZO
N.O
........................................................................................
First
Respondent
THE
EDUCATION LABOUR RELATIONS
COUNCIL
....................................
Second
Respondent
SOUTH
AFRICAN DEMOCRATIC TEACHERS UNION
obo
NDABAMBI
.........................................................................................................
Third
Respondent
Heard:
8 June 2016
Delivered:
7 July 2016
Summary: Review
application. Arbitrator decided appropriateness of the sanction by
considering a procedural delay in the internal
appeal. No proper
consideration of the appropriateness of the sanction in view of all
the relevant circumstances. Award is reviewed
and set aside.
Dismissal was fair.
JUDGMENT
PRINSLOO J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award issued on 6 May 2013 wherein the First
Respondent (the arbitrator)
found Ms Ndabambi’s (Ndabambi)
dismissal procedurally fair and substantively unfair and ordered her
retrospective reinstatement.
[2]
The Third Respondent opposed the
application.
Background facts
[3]
Ndabambi was employed as a school principal
at the Sinempumelelo Primary School, East London.
[4]
In October 2010 Ndabambi was charged with
misconduct when a notice to attend a disciplinary hearing was issued
to her.
[5]
A disciplinary hearing was scheduled for 26
October 2010 but postponed and subsequently held on 19 January 2011
and Ndabambi was
found guilty on two charges of misconduct relating
to a contravention of
section 18(1)
of the
Employment of Educators
Act 1998
in respect of her refusal to cooperate with the school
governing body (SGB). On 1 February 2011 Ndabambi was dismissed.
[6]
On 12 April 2011 Ndabambi filed an internal
appeal against her dismissal, which appeal was dismissed on 14
September 2012 when the
sanction of dismissal was implemented.
[7]
The Third Respondent referred an unfair
dismissal dispute to the Second Respondent (ELRC). The issue to be
decided was whether Ndabambi’s
dismissal was substantively and
procedurally unfair.
The arbitration
proceedings:
[8]
It is evident from the transcribed record
that the Third Respondent raised two challenges in respect of
procedural fairness namely
the fact that time frames were not adhered
to with specific reference to the delay in time between the date when
the sanction was
issued, when the internal appeal was filed and when
the dismissal eventually took effect. Secondly that Ndabambi was not
represented
during her disciplinary enquiry and that she was deprived
of a fair hearing for that reason. Substantive fairness was
challenged
in respect of the charges that were levelled against
Ndabambi.
Analysis of the
arbitrator’s findings and grounds for review
[9]
The arbitrator found Ndabambi’s
dismissal procedurally fair and substantively unfair.
[10]
In the analysis of the evidence the
arbitrator made the following pertinent findings in respect of
procedural fairness: The request
for legal representation was
considered, Ndabambi released her own witness from testifying after
she indicated an unwillingness
to testify and the fact that the
outcome of her appeal was delayed, did not prejudice Ndabambi as she
received her full salary.
The arbitrator found that Ndabambi’s
dismissal was procedurally fair.
[11]
In respect of substantive fairness the
arbitrator summarised the reason for dismissal as Ndabambi’s
failure to follow a reasonable
instruction and non-cooperation with
the SGB. Ndabambi admitted that she did not cooperate with the SGB
because to her it was not
a duly elected structure because she was
not present when it was elected. This was rejected by the arbitrator,
who found that Ndabambi
indeed failed to follow a lawful instruction
and that her defence did not have any substance.
[12]
The arbitrator went further to find that as
an employee Ndabambi had a common law duty to obey and follow lawful
instructions and
that the instructions that were given to her, were
indeed reasonable and lawful. The arbitrator concluded that Ndabambi
indeed
committed the offences she was dismissed for and that her
conduct amounted to misconduct.
[13]
Effectively the arbitrator found Ndabambi’s
dismissal procedurally fair and that she indeed committed the
misconduct she was
dismissed for. The remaining issue for
consideration was the appropriateness of the sanction of dismissal.
[14]
In
consideration of the appropriateness of the sanction of dismissal,
the arbitrator referred to the Code of Good Practice: Dismissal
and
the principles as laid down by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
with specific reference to
the totality of the circumstances, the reason the employer imposed
the sanction of dismissal and the
employee’s basis to challenge
the dismissal.
[15]
The arbitrator found that dismissal was not
an appropriate sanction, but was too harsh and ordered that Ndabambi
be reinstated retrospectively.
[16]
This is so because the Applicant did not
advance any reasons for the delay in dealing with Ndabambi’s
internal appeal. The
arbitrator found that if the employment
relationship had indeed broken down irretrievably, the Applicant
would have ensured that
the employment relationship was terminated as
soon as possible. The arbitrator accepted that the delay was
indicative of the fact
that the trust relationship was still intact.
The arbitrator further found that the Applicant could have opted for
a sanction short
of dismissal in view of the fact that Ndabambi had a
long service, the offences she was dismissed for are viewed as less
serious
and warrant progressive or corrective discipline, even though
Ndabambi was disciplined for a similar offence in 2009.
[17]
As already alluded to it is evident from
the transcribed record that Ndabambi regarded the delay in the
finalisation of her appeal
as a procedural challenge. The arbitrator
found that the delay caused Ndabambi no prejudice and that her
dismissal was procedurally
fair.
[18]
The Applicant raised a number of grounds
for review in respect of these findings on the substantive unfairness
of Ndabambi’s
dismissal. In the heads of argument Mr Kroon on
behalf of the Applicant submitted that the Applicant’s case,
distilled to
its essence, is that the arbitrator came to a decision
which no reasonable decision maker could have come to because the
arbitrator
failed to give any or proper consideration to the factors
required to be taken into account when the question of a fair
sanction
is considered. Instead, she focussed almost entirely on the
procedural delay in the finalisation of the appeal proceedings and
concluded that the delay was the deciding factor to show that the
employment relationship had not broken down.
[19]
The alternative ground for review is that
the arbitrator misconceived the nature of the enquiry into sanction
as she made a finding
on a basis not envisaged or canvassed by the
parties in the sense that the issue of the delay was raised as a
procedural issue
and not as a substantive factor. It was never raised
during the arbitration proceedings that the procedural delay had an
impact
on the employment relationship. This ground for review only
needs consideration if the Court is of the view that the arbitrator
was entitled to have regard to the delay in finalising the appeal as
part of deciding procedural as well as substantive fairness.
[20]
Mr Kroon submitted that the arbitrator
misdirected herself by finding that the misconduct Ndabambi was
dismissed for, was not serious.
He submitted that the failure to
cooperate with the SGB is very serious as it is a core function of a
school principal and in this
instance it was not only gross, but also
deliberate. Ndabambi persisted with her view that she was entitled to
ignore the instruction
and to refuse to cooperate with the SGB. In my
view there is merit in this argument.
[21]
Mr Kroon also submitted that the finding
that the delay in the finalisation of the internal appeal rendered
the dismissal substantively
unfair, is illogical. The delay in the
finalisation of the appeal was throughout raised as a procedural
point and the arbitrator
dealt with that as part of the procedural
fairness of the dismissal. The arbitrator found the delay did not
render the dismissal
procedurally unfair. The Applicant’s
complaint is that the arbitrator was not permitted to revisit the
issue of the delay
as part of the determination of the substantive
fairness of Ndabambi’s dismissal and by doing so, the
arbitrator confused
and conflated the enquiries into procedural and
substantive fairness.
[22]
Furthermore, the Applicant’s argument
is that there was no reasonable or objective basis for concluding
that the delay in
the finalisation of the internal appeal
per
se
meant that the employment
relationship had not broken down.
[23]
The Third Respondent opposed the
application and submitted that there is no merit in the grounds for
review mainly because the delay
in finalising the appeal was not the
only ground on which the arbitrator found that the employment
relationship had not irretrievably
broken down. The arbitrator also
took into account the factors stated in the Code of Good Practice. Mr
Pango on behalf of Ndabambi
submitted that the arbitrator considered
that Ndabambi assisted the school in the past, indicating that she
acted in the best interest
of the school, which indicated that a
sanction short of dismissal should have been considered.
[24]
The parties indicated that considerable
difficulties were experienced to obtain and reconstruct the record
and that the parties
have exhausted all possible avenues to
reconstruct the record. This contributed to the delay in finalising
this matter and the
parties are of the view that the review
application should be decided without remitting the matter to the
ELRC. Certain portions
of the evidence were not transcribed and the
parties agreed to proceed on the arbitrator’s notes.
[25]
In my view the Applicant’s review is
limited to the findings on substantive fairness and more specifically
the findings in
respect of the appropriateness of the sanction of
dismissal. Due to the limited scope of the review application and the
specific
nature of the grounds for review, I am of the view that the
entire transcribed record of all the evidence is not necessary to
decide
the application before me and I will decide the matter on the
record as it it.
The misconduct
and the appropriateness of the sanction
[26]
The arbitrator’s first enquiry and
point of departure in determining the substantive fairness of the
Ndabambi’s dismissal
should have been whether she was indeed
guilty of the misconduct she was dismissed for. Once it is
found that an employee
is guilty of the misconduct she was dismissed
for, an enquiry into the appropriateness of the sanction should
follow.
[27]
For purposes of the review application the
Applicant submitted that the relevant charge is that Ndabambi
contravened section 18(1)(i)
of the Employment Educators Act in that
she failed to carry out a lawful order or routine instruction without
reasonable cause
in that she refused to cooperate with the SGB on
matters of governance, despite being advised to do so and that she
failed to carry
out an instruction regarding a response to the
allegations levelled against her.
[28]
The arbitrator concluded that Ndabambi
indeed committed the offences she was dismissed for and that her
conduct amounted to misconduct.
[29]
What remained was to decide whether
dismissal was an appropriate sanction.
[30]
An
enquiry into the appropriateness of the sanction calls for a
consideration of the factors set out in Schedule 8 of the Labour
Relations Act
[2]
(the Act) and a
determination whether the sanction was appropriate for the
contravention of the rule. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
the Constitutional Court set out the factors to be considered
in determining the fairness of the sanction. Those are as follows:
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal. There are other factors that will require
consideration. For example, the harm caused by the employee's
conduct, whether additional training and instruction may result in
the employee not repeating the misconduct, the effect of dismissal
on
the employee and his or her long-service record. This is not an
exhaustive list.
To
sum up. In terms of the LRA, a commissioner has to determine whether
a dismissal is fair or not. A commissioner is not given
the power to
consider afresh what he or she would do, but simply to decide whether
what the employer did was fair. In arriving
at a decision a
commissioner is not required to defer to the decision of the
employer. What is required is that he or she
must consider all
relevant circumstances
[31]
In
Fidelity
Cash Management Services v CCMA
[4]
the
Labour Appeal Court referred to the
Sidumo
factors
to be considered in deciding the appropriateness of a sanction and
held as follows:
The
Constitutional Court emphasized that this is not an exhaustive list.
The commissioner would also have to consider the Code of
Good
Practice: Dismissal and the relevant provisions of any applicable
statute including the Act. In this regard ss 188 and 192(2)
of the
Act will usually be of relevance. Section 188(1) provides in effect
that a dismissal that is not automatically unfair is
unfair if the
employer fails to prove the matters stated therein. Section 182
enjoins a person considering whether a dismissal
is unfair to take
into account provisions of the relevant Code of Good Practice.
Section 192(2) is the provision that places the
onus on the employer
to prove that the dismissal is fair.
Once
the commissioner has considered all the above factors and others not
mentioned herein, he or she would then have to answer
the question
whether dismissal was in all of the circumstances a fair sanction in
such a case. In answering that question he or
she would have to use
his or her own sense of fairness. That the commissioner is required
to use his or her own sense of justice
or fairness to decide the
fairness or otherwise of dismissal does not mean that he or she is at
liberty to act arbitrarily or capriciously
or to be mala fide. He or
she is required to make a decision or finding that is reasonable.
[32]
In casu
the
arbitrator considered the delay in finalising the appeal to find that
the employment relationship did not break down. From there
she took
the view that the Applicant should have opted for a sanction short of
dismissal, as Ndabambi had a long service record.
She interpreted the
Employment of Educators Act to
find that the offences she found
Ndabambi indeed committed, were viewed as less serious and warranted
progressive or collective
discipline in terms of the
Employment of
Educators Act. The
arbitrator considered the fact that Ndabambi was
disciplined for a similar offence in the year before she was charged
with the
misconduct she was eventually dismissed for, but held that
it did not show a pattern of committing the same or similar offence.
[33]
A consideration of the factors set out in
Sidumo
and
Fidelity Cash Management
is
glaringly absent from the arbitration award. Although the arbitrator
listed the factors to be taken into account when determining
the
question of the appropriateness of the sanction, she never really
dealt with those factors.
[34]
The arbitrator not only dismally failed to
consider any of the aforesaid factors, for instance she did not
consider harm caused
by Ndabambi’s conduct, but she also failed
to consider all the relevant circumstances to decide whether
Ndabambi’s
dismissal was an appropriate and fair sanction. In
my view the arbitrator knew what to consider, as she listed the
factors to be
considered as the totality of the circumstances, the
reason the employer imposed the sanction of dismissal and the
employee’s
basis to challenge the dismissal. The arbitrator
just never bothered to consider the factors she knew she should
consider.
[35]
The arbitrator was required to determine
the fairness and the appropriateness of the sanction of dismissal
de
novo
, based on the evidence placed
before her and with due consideration of all the relevant factors.
She had to consider whether the
Applicant’s decision to dismiss
was fair, not to decide what she would have done and to impose a
sanction accordingly.
[36]
The
Applicant adduced evidence about the role of the SGB and the
functions it performs at the school and it was emphasized that
the
SGB was responsible for governance issues at the school. In terms of
the provisions of the South African Schools Act
[5]
the functions and responsibilities of the principal of a school
include
inter
alia
attendance
and participation in all meetings of the SGB, providing the SGB with
reports and assistance to the SGB.
[37]
The evidence was that a meeting was held
with Ndabambi on 23 March 2010 where she was advised to cooperate
with the SGB and despite
this instruction, she still refused to
attend SGB meetings and to cooperate with the SGB. Ndabambi’s
refusal to cooperate
resulted in a letter to the district director in
July 2010, where after the disciplinary proceedings were initiated.
[38]
Based on the evidence, the arbitrator found
that Ndabambi indeed failed to follow a lawful instruction and to
cooperate with the
SGB and that her defence did not have any
substance, that Ndabambi had a common law duty to obey and follow
lawful instructions
and that the instructions that were given to her,
were indeed reasonable and lawful. The arbitrator concluded that
Ndabambi indeed
committed the offences she was dismissed for and that
her conduct amounted to misconduct.
[39]
Section 18(1)(i)
of the
Employment of
Educators Act provides
for misconduct where the educator fails to
carry out a lawful order or routine instruction without just or
reasonable cause.
Section 18(3)
provides for different sanctions,
ranging from counselling to dismissal, if the nature or extent of the
misconduct warrants dismissal.
[40]
It is evident that the arbitrator failed to
give any or proper consideration to material facts when she
determined the issue of
substantive fairness. The importance of the
SGB and the functions it performs, and duty of the principal to
cooperate with the
SGB and the seriousness of Ndabambi’s
failure to cooperate with the SGB were some of the material and
pertinent facts not
considered and assessed by the arbitrator.
[41]
In my view the arbitrator misconceived the
nature of the enquiry and the powers that she has in determining the
fairness of the
sanction. The Constitutional Court made it clear that
an arbitrator
is not given the power to consider afresh what
he or she would do, but simply to decide whether what the employer
did was fair.
What is required is that he or she must consider all
relevant circumstances. The arbitrator approached the issue of
sanction as
if she was given the power to impose a sanction afresh.
[42]
Furthermore, the arbitrator’s point
of departure in considering the appropriateness of the sanction was
that the trust relationship
did not break down as the Applicant
delayed in dealing with the appeal. The delay in dealing with the
appeal could at best influenced
and informed the findings on
procedural fairness. The arbitrator however found that the delay was
not prejudicial as Ndabambi was
paid through out and her dismissal
was procedurally fair.
[43]
In my view the arbitrator’s point of
departure in considering the appropriateness of the sanction is a
point where she could
not have departed from in the first place. The
delay was a procedural defect and could not have impacted on the
question of substantive
fairness.
[44]
The wrong point of departure had a material
impact on the arbitrator’s decision on the appropriateness of
the sanction. In
fact, it determined the entire outcome of the
arbitration.
The test on
review
[45]
The
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable has been rehashed innumerable times
since
Sidumo
[6]
as whether the decision reached by the arbitrator is one that a
reasonable decision maker could not reached. The Constitutional
Court
very clearly held that the arbitrator's conclusion must fall within a
range of decisions that a reasonable decision maker
could make.
[46]
In
Goldfields
Mining South Africa v Moreki
[7]
the
Labour Appeal Court held that:
“
In
short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is
reasonable.”
[47]
Following
the Supreme Court of Appeal judgment in
Herholdt
[8]
and the Labour Appeal Court’s judgment in
Gold
Fields
,
[9]
the Labour Appeal Court handed down another important judgment in
Head
of the Department of Education v Mofokeng.
[10]
In
this judgment the Court provided the following exposition of
the review test:
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 inquiry. 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 inquiry,
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 question raised for
determination.
[48]
In summary: I must ascertain whether the
arbitrator considered the principal issue before him, evaluated the
facts presented and
came to a conclusion that is reasonable.
[49]
Viewed cumulatively, and in line with the analysis as set out in
Mofokeng,
the arbitrator
in casu
diverted from the
correct path when she found that the trust relationship did not break
down on the strength of a pure procedural
delay. Once she diverted,
the arbitrator did not find her way back, but proceeded on the path
that led her to misconceive the enquiry
to an extent that calls for
interference on review.
[50]
It cannot be said that the arbitrator’s findings on substantive
fairness and that dismissal was an inappropriate sanction
were
findings that a reasonable arbitrator could have reached on the full
conspectus of all the facts before her.
[51]
Based on the above, I am persuaded that the
arbitration award cannot stand and should be interfered with on
review.
Relief
[52]
This leaves the issue of relief.
[53]
The Applicant seeks for the arbitration award to be reviewed and set
aside and to be substituted with an order that Ndabambi’s
dismissal was fair.
[54]
In the event the award is set aside on review, this Court has a
discretion whether or not to finally determine the matter.
[55]
The parties are of the view that the matter should be finally
determined, more so as it is undesirable to remit the matter
to the
ELRC since the dismissal took place as far back as 2011. The
Applicant also submitted that it is not necessary to remit
the matter
as the arbitrator found Ndabambi guilty of misconduct and the only
issue is the question of the sanction. Ndabambi’s
heads of
argument made it clear that the application should be dealt with on
the papers as they stand as the grounds for review
and the facts are
fully dealt with in the award and the finalization of this matter
should not be delayed.
[56]
I already alluded to the fact that the
scope of the review application is limited and due to the nature of
the grounds for review,
I am in a position to decide and finally
determine the matter on the record as it it.
[57]
In argument before Court both parties submitted
that the costs should follow the result and both parties sought costs
to be awarded
in their favour. However, both representatives
indicated that they would finally leave the issue of costs in the
hands of the Court.
[58]
This Court has a discretion in making a cost
order, considering the requirements of law and fairness. In my view
this is a case
where interests of justice and fairness would be best
served by no cost order.
[59]
In the premises I make the following order:
Order
1.
The
arbitration award issued on 6 May 2013 under
case number PSES401-12/13EC
is reviewed and set aside;
2.
The arbitration award is substituted with
an order that Ms Ndabambi’s dismissal was fair;
3.
There is no order as to costs.
C
Prinsloo
Judge
of the Labour Court
Appearances:
Applicant:
Adv Kroon SC
Instructed
by: State Attorney
Third
Respondent: Adv Pango
Instructed
by: Pumeza Bono Attorneys
[1]
(2007) 28 ILJ 2405 (CC) at paragraph 78 and 79.
[2]
Act 66 of 1995
[3]
(2007) 28 ILJ 2405 (CC) at paragraph 78 and 79.
[4]
(2008) 29 ILJ 964 (LAC).
[5]
Act 84 0f 1996 section 16A.
[6]
(2007) 28 ILJ 2405 (CC) at para 110.
[7]
(2014) 35
ILJ
943 (LAC).
[8]
[2013] 11 BLLR 1074 (SCA).
[9]
[2014] 1 BLLR 20 (LAC).
[10]
[2015] 1 BLLR 50
(LAC), paragraph 33.