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[2017] ZALCJHB 52
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Moadira v Van Eck and Others (JR1875/14) [2017] ZALCJHB 52 (12 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Not
Reportable
CASE NO: JR
1875/14
In the matter between:
MOADIRA
MATSHEDISHO
MOSES
Applicant
And
VAN
ECK, BERNARD N.
O.
First
Respondent
COMMISSION FOR
CONCIALTION,
MEDIATION
AND ARBITRATION
Second
Respondent
CITY
OF MATLOSANA LOCAL
Third
Respondent
MUNICIPALITY
Heard
:
6 May 2016
Delivered
:
12 January2017
Summary: Review
application – multiplicity of charges – application
successful in respect of numerical superiority of
the number of the
charges – question to be asked is whether dismissal is a fair
sanction for the remaining charges - seriousness
of misconduct is
decisive – remaining charges are serious – dismissal is a
fair sanction – award reviewed and
corrected.
JUDGMENT
CELE J
Introduction
[1]
This application, in terms of section 145 of the Labour Relations
Act
[1]
,
is for the review, correcting and/or setting aside of the arbitration
award dated 30 July 2014, issued in this matter by the First
Respondent. The Third Respondent belatedly opposed this application
by contending that the grounds for review are completely without
foundation and that the Applicant has scraped the bottom to come up
with an attack of a valid and legally sound arbitration award.
Factual
Background
[2]
The Applicant was employed by the first respondent as a Municipal
Manager on a fixed term contract from 1 November 2006 until
October
2011. He was appointed in terms of the municipal Systems Act.
[2]
He was appointed as a so-called section 57 employee.
[3]
As head of administration the municipal manager of a municipality is,
subject to the policy directions of the municipal council
and is
accountable for:
[3]
(a)
The formation and development of an economical, effective, efficient
and accountable administration
-
(i)
Equipped
to carry out the task of implementing the Municipality’s
integrated development plan in accordance with Chapter 5;
(ii)
Operating
in accordance with the municipality’s performance management
system in accordance with Chapter 6 and
(iii)
Responsive
to the needs of the local community to participate in the affairs of
the municipality.
(b)
The management of the municipality’s administration in
accordance with this act and
other legislation applicable to the
municipality.
(c)
The implementation of the municipality’s integrated development
plan and monitoring
of progress with the implementation of the plan.
(d)
The management of provision of services to the local community in
sustainable and equitable
manner.
(e)
The appointment of stuff other than those referred to in section 56
(a) subjects to the
Employment Equity Act Number 55 of 1998...
(f)
The management effective utilization and training of staff.
(g)
The maintenance and discipline of staff.
(h)
The promotion of sound labour relations and compliance by the
municipality with applicable
labour legislation.
……
..
(m)
The exercise of any powers and the performance of any duties
delegated by municipal council, or
sub-delegated by other delegating
authorities of the municipality, to the municipal manager in terms of
section 59.”
[4]
A municipality administered procurement processes through which
service providers could be appointed by means of a tender system
to
render important services to the municipality due to their expertise
in various fields. To this end, two committees, the Bid
Evaluating
Committee (BEC) and the Bid Adjudicating Committee (BAC) were
responsible for the bidding process which culminated in
the
appointment of the service provider by the Municipal Manager, who
acted on the recommendation of the BAC. Managers and Assistant
Managers, who are often Directors, sit in the BAC. These Managers run
different departments of the Municipality.
[5]
The Municipal Manager is entitled to rely on the Managers and in the
execution of their duties they have a direct reporting
line to the
Municipal Manager. The recommendation must be submitted with
documentation
indicating that all the bidders met the relevant and requisite
requirements and that their tax clearance certificates
were in place.
Therefore, the responsibility to conduct a risk analysis vests in the
requesting department or in the supply chain
management department or
in the BEC. Ordinarily, the Municipal Manager does not get involved
in the supply chain management or
tender process
[4]
.
The documentation submitted to the Municipal Manager consists of the
draft report, the evaluation report, the adjudication report,
the
draft resolution and the minutes.
[6]
Following investigations by two committees into alleged
irregularities the Applicant was suspended from his employment. The
suspension was implemented after two reports had been tabled from
these committees. The Applicant attended the disciplinary hearing
on
a number of charges and was dismissed after he was found guilty on 13
charges. He lodged an internal appeal against the dismissal.
His
appeal was not successful as his dismissal was confirmed on 30 June
2011. He then lodged an unfair dismissal dispute to the
South African
Local Government Bargaining Council (SALGBC) but it could not be
amicably resolved and it was then transferred to
the Commission for
Conciliation, Mediation and Arbitration, (CCMA) where it was
arbitrated by the first respondent.
[7]
As a Commissioner, the First Respondent
found
justification for a guilty verdict on charges numbered: 2, 3, 4, 5,
6, 7, 8, 10, 11 and 13.
He
found the Applicant not guilty on charges: 1, 9 and 12.He then
confirmed the dismissal of the Applicant.
The
chief findings of the Commissioner.
[8]
An outline of the chief findings of the Commissioner in this matter
reveals the manure of the charges. To obviate repetitiveness
the
grounds for review and opposition thereto shall then be dealt with.
Those charges in respect of which the Applicant was acquitted
need no
further mention. In making his findings the Commissioner commenced by
remarking that he found witnesses of the respondent
to have presented
a clear, consistent and a reliable version of the events which
precipitated in the dismissal of the Applicant.
He said that those
witnesses provided clear and consistent answers to questions put to
them. He found that the same could not be
said of the Applicant who
was said to have attempted to distance himself from all wrongdoing.
The Commissioner found that the testimony
of witnesses for the
Applicant could not be relied on.
Counts
2 and 3
[9]
The Applicant was alleged to have failed to act in the best interest
of the employer when, on 31 August 2007 he appointed a
service
provider, Bohlale Risk Solutions (BRS) for the provision of insurance
cover, without conducting or causing to be conducted
a risk analysis
on BRS, which was liquidated some six months later, thus exposing the
employer to possible uninsured claims. At
the time of such
appointment BRS tax matters were not cleared by the South African
Revenue Services (SARS), a breach of the Supply
Chain Management
(SCM) policy.
[10]
The Applicant, inter alia, relied on the evidence of Mr Motileni to
submit that the Commissioner failed to apply his mind on
the evidence
before him and thus produced an unreasonable outcome.
[11]
Mr Motileni’s evidence on this aspect has become part of the
common cause evidential material in that:
Ø
It
remained the duty of the BEC and the BAC to conducting or causing to
be conducted a risk analysis on BRS;
Ø
The
tax certificate was not part of the bidding documents submitted to
the Municipal Manager for a consideration to appoint a service
provider;
Ø
There
had to be something suspicious in the bidding documentation for the
Municipal Manager to call for further documentation;
Ø
The
Applicant was entitled to rely on the Managers sitting in the BEC and
BAC in assuming that proper investigations were conducted
in support
of the recommendation sent to him.
[12]
For the Applicant to have to investigate the two issues, there had to
be something suspicious in the documents given to him.
No such
evidence was ever led. The only basis on which the Applicant could be
found guilty on the two charges would be a reliance
on the principle
of strict liability, by imputing wrongdoing of one to the other.
Strict liability between the supervisor and his
incumbent is not part
of labour law jurisprudence. Otherwise many senior personnel would
have lost their jobs for the misconduct
of their junior staff.
Without much ado, I find that the Commissioner ignored very material
evidence adduced by the Third
Respondent in favour of the Applicant
in this regard with the result that an unreasonable decision was
reached by the Commissioner.
Count
4
[13]
The allegation was that the Applicant interfered with the SCM
processes by instructing Mr Makhetha, a Manager, to deliver to
him
all bid documents related to a tender prior to such documents being
evaluated by relevant bid committees and before reports
thereon being
prepared. It remained common cause that there was a shortage of
employees with knowledge for the technical proposal
of the tender
that was being dealt with. The Applicant’s intervention was
clearly directed at curing that deficiency. Whether
he saw the
provisional report by Mr Motileni was irrelevant. He gave an
instruction of who was to do what. He never saw the final
draft
report, at that stage of the tender process. Neither did he instruct
the people on which service provider to prefer. He was
after all the
ultimate responsible personnel on work performance. Provided he acted
objectively, he was entitled to intervene.
The Commissioner grossly
misconstrued the evidence before him and in this respect reached an
unreasonable decision.
Count
5
[14]
The allegation was that the Applicant failed or neglected to comply
with the employer’s condition of appointment in that
he
appointed an entity known as Business Help-Line Close Corporation
(Helpline) for the provision of services, whereas at the time
Helpline was already contracted to the employer for the preparation
of the financials, as a consultant, in the same department.
[15]
The guilt of the Applicant on this charge depended on him knowing
factually or acting negligently in the acquisition of such
knowledge.
Helpline was involved in a Service Level Agreement as a consultant
with Ms Matthews’ department by rendering the
Work Skills
Programme. Ms Matthews had signed that Service Level Agreement. She
owed a fiduciary duty to the Applicant and to the
Municipality to
point out that Helpline was already a consultant and should not have
been appointed for the same department. The
municipality was
contracted to numerous service providers at any given time. No
evidence of actual knowledge by the Applicant was
ever proved for
this charge. That left the Third Respondent having to prove that the
Applicant acted negligently and to demonstrate
how. No such evidence
was ever forthcoming. The Commissioner did not even indicate the
basis for the finding of negligence, mind
being had to the fact that
not all bid documents were passed on to the Applicant. Something
about the bid documents given to the
Applicant should have aroused
suspicion so that he could call for more documents. No such evidence
was led. The Commissioner missed
the proper enquiry he was to conduct
for this count and, as a consequence reached an unreasonable
decision.
Counts
6, 7 , 8,10 and 11
[16]
Counts 6, 7 and 8 pertain to the Applicant having instituted
disciplinary proceedings against Mr Motlatsi Makhetha and Mrs
Matlakala Matthews and having failed to stay the disciplinary hearing
of Mr Makhetha in line with the council resolution. The Applicant
is
the executing authority for the implementation of the resolutions of
council to discipline any Managers appointed in terms of
sections 56
and 57 of the Municipal Systems Act. These employees are appointed by
the council after a consultation with the Municipal
Manager.
In
Tsotetsi
v Mohapi and Another, Mohapi v Motho District Municipality and
Another,
[5]
the court held:
"In
my judgment, in the absence of any contrary provision, a municipal
manager, acting municipal manager or manager if accountable
to the
municipal manager, may, by necessary implication, only be suspended
or removed from office by the municipal council or person(s)
to whom
the municipal council has properly delegated these powers.
"
[17]
Somehow the Applicant assumed that he had unfettered discretion to
discipline these employees. This class of employees was
excluded in
the operative collective agreement. In respect of Mr Makhetha council
passed a resolution to stay the disciplinary
hearing. Somehow the
Applicant assumed that the resolution had lapsed and thus did not
take heed of it. There was no room for such
an assumption as the
council resolved to stay the disciplinary action with immediate
effect and until after the investigation Committee
had made its
report to the council. It was then that the council would make a
resolution on the matter.
In
Manana
v King Sabata Dalindyebo Municipality
[6]
the court held that:
"
A
municipal council acts through its resolutions. No doubt a municipal
council is entitled to rescind or alter its resolutions.
And no doubt
an interested party is entitled to challenge its validity on review.
But once a resolution is adopted in my view its
officials are bound
to execute it, whatever view they might have on the merit of the
resolution, in law or otherwise, until such
time as it is either
rescinded or set aside on review
."
[7]
[18]
The Third Respondent acted through its resolutions and it was
entitled to rescind or alter its resolutions. Once a council
resolution was adopted its officials, including the Applicant, were
bound to execute it.
Even
if the probe by the Commissioner is brief in this respect, it is
supported by the evidence, is straight to the point and has
not been
shown to be misdirected. The decision reached is not only reasonable
but is also sound in law.
[19]
In
terms of charge 10, the Applicant failed or refused to take
appropriate disciplinary action on information provided and to
institute
disciplinary action to completion against an employee of
the Third Respondent, Mr Nteu, after a report on allegations of
corruption
had been received from Mr T F Malongoa, a Director of
Business Help-Line. It was alleged that Mr Nteu solicited a bribe of
R50
000.00 and refused to refund a R10 000.00 loan. The Applicant
instructed both Mr Makhetha and Ms Matthews to investigate the
matter.
Mr Makhetha instructed Mr Motileni to investigate the
complaint and write a report. Ms Matthews began investigations. Her
undisputed
evidence was that the Applicant refused to sign a letter
she had written, calling on the complainant to attend to her. She
said
that the Applicant instructed her to stop the investigations as
she had by then been charged for misconduct. While the Applicant
was
still in charge these investigations and the charging of Mr Nteu were
never carried to completion. Mr Makhetha testified that
the
underlying reason was that the Applicant and Mr Nteu were friends and
that the Applicant turned a blind eye to the allegations.
Mr Nteu was
only charged after the dismissal of the Applicant. The Applicant
testified that he never stopped the investigations
and the charging
but left it to the relevant Managers. There was overwhelming and
irrefutable evidence that the Applicant was remiss
in supervising the
finality of this very serious matter. The Commissioner’s
brief enquiry and his findings on this
charge are not assailable.
[20]
On count 11, it was alleged that the Applicant acted in bad faith by
issuing an instruction directing other employees to discontinue
attending courses or training offered by the Wits Business School in
respect of which advanced payment by the employer had been
made,
resulting in wasteful and fruitless expenditure being incurred by the
employer. The Applicant was confronted with strong
evidence of the
employer in this respect. His version was that he told the staff that
his prior approval was necessary for the
attendance and he denied the
total prohibition. His version could not be sustainable for reasons
given by the Commissioner. In
addition, payment had already been made
for such attendance and therefore his permission would be more
academic than real. Another
consideration is that Ms Zalele Mojahi,
the secretary who took the minutes of the meeting where this was
said, understood it to
be an unconditional prohibition and wrote that
understanding in her minutes. Any subsequent correction of the
minutes would be
ex post facto
the understanding of the
secretary. The probabilities are that the subsequent alteration of
the minutes was a cover up attempt by
the Applicant. Ms Mojahi was
senior personnel and could easily see the difference in the typing
font and correct it. A proper enquiry
was conducted and a reasonable
decision was reached.
Count
13
[21]
The allegation was that the Applicant represented to his employer
that a variation in excess of 20% of the original order of
the
contract was lawful and properly sanctioned whereas he very well knew
or ought reasonably to have known that such representation
was false.
The expenditure involved here was for a project Number CEB/2/2009 for
the paving of taxi routes and storm water drainage.
An estimated
allocation of R6m was made available on the Municipal Infrastructure
Grant (MIG). The lowest biding company appointed
to do the work, Gasa
JV, had submitted an offer R8 106 342. 73. This amount was
reduced to R6m in conformity with the amount
approved within the MIG
and some roads were removed from the project so as to contain the
expenditure to R6m.
[22]
According to the Applicant’s version, supported by his witness
Mr K Masisi, R6m made available to the MIG was subject
to a possible
increase of R2m, if such could be found to be available as unspent
from any projects so as to complete work earlier
removed from the
same project. This evidence does not appear to have been contradicted
by any of the witnesses of the Third Respondent.
It was clearly on
the basis of this prior approval that the Applicant approached
council to authorise the increase of the project
expenditure from R6m
to R8m. That being the case, it is very difficult to conceive how the
Commissioner was able to reject this
version, as he must have, to
find the Applicant guilty on this charge. At the very least, he
should have found that the Third Respondent
failed to discharge the
onus resting on it to prove the guilt of the Applicant. In this
respect the Commissioner failed to apply
his mind to the material
evidence before him and he consequently reached an unreasonable
decision.
[23]
In conclusion on the charges, the Applicant succeeded in
demonstrating that he ought never to have been found guilty on the
following charges: 2, 3, 4, 5 and 13. He failed on the following
counts: 6, 7, 8, 10 and 11. After exonerating the Applicant on
only
three charges, being counts 1, 9 and 12, the Commissioner, in
confirming the dismissal of the Applicant, had the following
to say:
“
The
allegations that Mr Moadira has been found guilty of are extremely
serious and would most certainly warrant a sanction of dismissal.
The
Applicant had acted with impunity and without due consideration to
the best interests of the Respondent.”
[24]
In the light of the numerical superiority of the number of the
charges in respect of which the Applicant has been found not
guilty,
the question is whether dismissal is a fair sanction. What the
Commissioner considered was not just the multiplicity of
charges the
Applicant was found guilty of but the seriousness of such charges. He
did not delve into the enquiry of which charges
were more serious
than others to justify a dismissal. In this application the Applicant
has submitted that, in the instance where
he is found guilty such
charges are not so serious as to justify his dismissal.
[25]
The charges in respect of which the Applicant has not been
successful, relate to him subjecting two employees to disciplinary
measures. Also, there is the charge where he prohibited his staff
from attending training sessions. By subjecting the two employees
to
disciplinary measures, the Applicant exposed these employees to the
possibility of a dismissal, in the event each was found
guilty. To
any employee a dismissal is the worst sanction an employer may
impose.
[26]
By his hasty actions the Applicant has caused the Third Respondent to
be saddled with employees, it might have wanted to be
rid of, albeit
in a fair manner. This would be the case if the charges to be
preferred against these employees were of a serious
nature. The
Applicant wanted them subjected to disciplinary actions and therefore
he must have suspected them of serious misdemeanour.
There is a
probability that the Third Respondent abandoned its disciplinary
measures initiated by the Applicant on the basis that,
in the event
they were found guilty, a sanction imposed and the guilty verdict
could later be found to have been unfair, with serious
consequences
on the Third Respondent, as the employer. By their nature and
possible consequences therefore these charges are indeed
serious.
Count 13 involves an act of dishonesty where minutes of a meeting
were fraudulently altered to change what the Applicant
told his
staff, as a cover-up measure. It is also serious particularly when
the seniority of the Applicant is considered. In my
view, the
dismissal of the Applicant is still justified as a fair sanction, the
gains he achieved in this application notwithstanding.
Order:
1.
The
arbitration award issued by the first respondent in this matter is
reviewed and corrected to read that the Applicant is found
guilty of
the charges: 6, 7, 8, 10 and 11.
2.
The
dismissal of the Applicant by the Third Respondent is substantively
fair.
3.
No
costs order is made.
_______
Cele
J.
Judger
of the Labour Court of South Africa.
APPEARANCES:
FOR
THE APPLICANT: Adv. F Venter
INSTRUCTED
BY Cowan – Harper Attorneys
FOR
THE THIRD RESPONDENT: Adv. J F A Nel
INSTRUCTED
BY Setshedi, Makgale & Matlapeng Attorneys.
[1]
Act Number 66 of 1995, hereafter
referred to as the Act.
[2]
Number 32 of 2000
[3]
See Section 55 of the Municipal
Systems Act Number 32 of 2000, hereafter referred to as the
Municipal Act.
[4]
See Respondent’s evidence
through Mr Motileni pages 485/6.
[5]
(3444/2004,
3446/2004)
[2004] ZAFSHC 130
(11 November 2004) at para 10.
[6]
([2011]
3
BLLR 215
(SCA); (2011) 32 ILJ 581 (SCA)
[7]
At para 22.