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[2017] ZALCJHB 194
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Sehloho v Havenga NO and Others (JR965/15) [2017] ZALCJHB 194 (13 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no.: JR 965/15
In
the matter between:
MASAMUEL
PATIENCE SEHLOHO
Applicant
And
COEN
HAVENGA
N.O
First Respondent
EDUCATION
LABOUR RELATIONS COUNCIL
Second Respondent
DEPARTMENT
OF EDUCATION: FREE STATE
Third Respondent
Heard:
15 February 2017
Judgment:
15 February 2017
Edited:
13 March 2017
EX-TEMPORE
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the first respondent, to whom I shall refer as
“the
arbitrator”. In his award, which was issued on 7 April
2015, the arbitrator came to the conclusion that
the applicant was
guilty of the misconduct recorded in two charges brought against her
during internal disciplinary proceedings
and that her dismissal was
for a fair reason. On that basis, the arbitrator refused the
applicant the relief that she sought.
[2]
The charges against the applicant are twofold. The first charge
relates to contravention of section 17(1) of the Employment
of
Educators Act, in that on 14 October 2013 the applicant was alleged
to have committed an act of corruption in regard to the
2013 third
term learner’s promotional reports, when she made the learner,
Phoofolo pass although she had failed the term;
the alternative to
that charge is one brought in terms of section 18(1) of the
Employment of Educators Act, in that on the same
date, 14 October
2013, the applicant was alleged to have committed an act of
dishonesty when she made Phoofolo pass although she
had in fact
failed the third term.
[3]
A second charge was brought against the applicant in the form of
alleged contravention of section 18(1) of the Employment of
Educators
Act, in that on 14 October the applicant was alleged to have
unjustifiably prejudiced the administration, discipline
and
efficiency of the school when she handed out promotional reports of
the 2013 third term to learners without the authority of
the
principal or delegated authority.
[4]
At
the disciplinary hearing the applicant pleaded
guilty to the second charge. What served before the arbitrator
then was a dispute
concerning the findings of misconduct in relation
to charge 1 and the alternative to that charge, to which I shall
refer as “corruption
and/or dishonesty” for the purposes
of this judgment, and whether or not the penalty of dismissal which
was upheld by the
arbitrator was fair.
[5]
The parties agreed that no evidence would be led before the
arbitrator, they agreed to have the matter arbitrated on the basis
of
written arguments alone. The arbitrator records that arguments
were submitted and he records that he has studied and considered
all
of the arguments, the legal principles, the case law and the
legislation referred to by the parties. He notes too that
the
parties had been requested to submit the record of the disciplinary
hearing and other supporting documents as part of their
written
arguments, but this had not been done. He records that he made
his findings on the basis of the summary of the disciplinary
hearing
provided by both parties in their respective written submissions.
[6]
Let me first pause to record that this is a most unsatisfactory way
in which arbitration proceedings conducted under the Labour
Relations
Act ought to be run. The arbitrator in my view ought to have
insisted at least on a submission of the full record
of the
disciplinary hearing if the arbitration were to proceed on the basis
on which the parties had agreed. Alternatively, it
was open to the
arbitrator simply to override the parties’ agreement and insist
that evidence be led. Be that is as may,
there is no dispute in this
court as to the nature of the process adopted. The only
substantive issue that served before
this court this morning was
whether the arbitrator’s findings in regard to the charges of
corruption and dishonesty could
be sustained, having regard to the
evidence that served serve before him.
[7]
The legal principles to be applied are well-established. This
court has the power to intervene in and set aside arbitration
awards
if, and only if the award represents a decision that is so
unreasonable that no reasonable decision-maker could come to
on the
available evidence. In other words, the test is outcome-based.
The court must consider the outcome of the proceedings
under review
(ordinarily the decision to which the arbitrator comes) and the
material that served before him. It is the function
of a review court
to establish the existence or otherwise of a relationship of
reasonableness between the two.
[8]
The two-stage test that has been approved by the Labour Appeal Court
requires an applicant to establish some form of misconduct
or
misdirection on the part of the arbitrator. However, given the nature
of the test that is not sufficient. It is required
that the
applicant demonstrate that, notwithstanding the misconduct or
misdirection relied upon, the outcome of the proceedings,
as I have
indicated, is one that falls outside of a band of decisions to which
reasonable decision-makers could come on the available
material.
[9]
In the present instance, as I have indicated, the finding by the
arbitrator in relation to charge 2 is not contested.
In
relation to charge 1 the arbitrator’s reasoning is disclosed by
the following paragraph, which is to be found in paragraph
4 of his
award under the heading “Analysis of Evidence and Argument”,
it is at page 42 of the record. The arbitrator
says as follows:
“
I
am satisfied that based on the arguments of the parties and on a
balance of probabilities that the actions of the applicant indeed
constituted the misconduct she was found guilty of. I cannot
accept the version of the applicant that promoting a learner
even
from one term to another, irrespective of whether it was a progress
or promotional report, while the learner clearly and obviously
did
not qualify for such promotion is a mere human mistake. The
evidence shows that there was an improper relationship between
her
and the learner that would justify the inference to be drawn that it
was done deliberately and that the learner benefitted
unduly from
that action.”
[10]
The evidence that served before the arbitrator disclose no more than
that the relationship between the applicant and the learner
concerned, Phoofolo, was that they attended church together and that
Phoofolo visited the applicant in the storeroom at the school.
It
would appear that there was some evidence to suggest that some of the
other teachers at the school may have had some misgivings
about the
nature of this relationship, however, the Deputy Principal of the
school stated that there was no improper relationship
that he was
aware of, and in his view the applicant was a competent employee
notwithstanding the fact of her issuing the reports
without the
required authority as referred to in charge 2. Under
re-examination, in particular, he stated that he did not
know of any
strange relationship between the employee and Phoofolo.
[11]
As I have indicated, the evidence by one Lerato Rantsane was that the
applicant and Phoofolo knew each other and went to church
together,
that Phoofolo would talk to the applicant and visit her in the
storeroom. She did not know what they talked about.
There
was no other evidence to which counsel for the third respondent could
refer me which indicated that there was any relationship
of
corruption or that there was any dishonest conduct on the part of the
applicant.
[12]
For the Commissioner to draw an inference of an improper relationship
and thus make a finding of the existence of misconduct
either in the
form of corruption or dishonesty required evidence from which he
could properly draw that inference. Inferences
are not there to
be drawn in the absence of evidence which serves to sustain the
inference. In my view, there was insufficient
evidence that
served before the Commissioner to sustain an inference that there was
an improper relationship between the applicant
and the learner
concerned, and the decision by the arbitrator to the contrary is a
decision to which no reasonable decision-maker
could come to on the
available evidence. It follows that the third respondent had
failed to prove in the arbitration proceedings
that there was any
improper relationship between the applicant and the learner
concerned, let alone any corruption or dishonesty
on the applicant’s
part.
[13]
That leaves charge 2. It was not disputed on behalf of the
applicant that she was indeed guilty of the conduct or complaint
that
forms the subject of charge 2. The applicant’s
representative did dispute however the appropriateness of dismissal
as a sanction having regard to that misconduct. It would seem
to me that where the misconduct that properly formed the subject
of
disciplinary action against the applicant is limited to issuing of
reports without the necessary authority, that this is not
a conduct
that ordinarily attracts the severe penalty of dismissal.
[14]
The applicant does not dispute that she did wrong and some other less
severe penalty is appropriate. The applicant seeks to
be reinstated
into the third respondent’s employ and concedes that
reinstatement might be accompanied by an appropriate sanction
short
of dismissal. Having regard to the nature of the misconduct, in
my view the sanction of a written warning is appropriate.
[15]
In regard to costs, this court traditionally takes the view that
where collective bargaining parties are involved in a dispute
that an
order for costs is ordinarily not appropriate. This is not one
of those cases, the applicant is not represented by
a union.
Although the arbitration award reflects the union sat as the
applicant in the proceedings, I accept that for the
purposes of these
proceedings she has proceeded without the assistance of the union and
that the collective bargaining relationship
to which the court
ordinarily has regard to is not a factor. Given those
circumstances, in my view and in terms of the broad
discretion that
this court has in terms of section 162 of the Labour Relations Act to
make costs orders according to the requirements
of the law and
fairness, costs ought to follow the result.
The
order I make then is the following:
1.
The arbitration award issued by the first
respondent on 7 April 2015 under case PSES461-14/15FS is reviewed and
set aside.
2.
The arbitration award is substituted by the
following:
“
(a)
The applicant is guilty of charge 2 of the charges of misconduct
brought against her.
(b)
The penalty of unfair dismissal is unduly harsh and the applicant is
reinstated into the employ of the respondent
subject to a written
warning valid for a period of 12 months.”
3. The third
respondent is to pay the costs of these proceedings.
ANDRÉ VAN NIEKERK
JUDGE OF THE LABOUR COURT