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[2017] ZALCJHB 114
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Passenger Rail Agency of South Africa v Moreki and Others (J190/15, JR2361/16) [2017] ZALCJHB 114 (28 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Reportable
CASE
NO: J190/15 & JR2361/16
In
the matter between:-
PASSENGER
RAIL AGENCY
OF
SOUTH
AFRICA
Plaintiff
and
SHIRLEY
MOREKI
First
Respondent
COMMISSIONER
TERRENCE SERERO N.O.
Second
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Third Respondent
Heard:
08 March 2017
Delivered:
28 March 2017
Summary:
Rescission sought against a default judgment granted in terms of
section 158(1)(c) of the LRA. Applicant had filed notice
of
opposition without answering affidavit to the rescission. No notice
of set down served on applicant. Rescission granted on strength
of
paragraph 11.4.1 of the Practice Manual which is clearer than Rule
7(6) and (6A) read with section 165 of the LRA. Review of
arbitration
award which found dismissal to have been both procedurally and
substantively unfair. Arbitrator had found the informal
procedure
followed by the employer to have been unfair since no exceptional
circumstances had been established in terms of item
4(4) of Schedule
8 to the LRA. Court found that the minimum standards set out in item
4(1) of the Schedule were independently sufficient
to satisfy
procedural fairness without reference to the requirements of
sub-item(4) thereof. On substantive fairness, the arbitrator
failed
to consider all the charges and evidence adduced. Review granted and
award set aside.
JUDGMENT
SKOSANA
AJ
[1]
This matter involves several applications which were consolidated by
a court order. Only the review and rescission applications
are
subject matters of this judgment since it was agreed between the
parties with the permission of this Court that only these
two
applications be dealt with. The other applications are ancillary and
dependent on the outcome of these two. Throughout this
judgment I
refer to the Passenger Rail Agency of South Africa (PRASA) as
applicant and Ms Shirley Moreki as the respondent notwithstanding
the
different manner in which they are cited in the various applications.
Brief
Background
[2]
The respondent was employed as an area manager by the applicant but
was subsequently dismissed from her employment on 29 October
2014.
The dismissal followed the finding of guilt on the following charges
of misconduct:
2.1
Gross negligence, in that, the respondent in her capacity as area
manager at Area 1 West,
during August and October 2013 negligently
and recklessly failed to keep proper detailed stock control register
or records of rolls
received by her or staff in her office,
indicating the movement and utilization of ticket rolls while she
knew that it was wrong
to do so;
2.2
That during the same period and in the same capacity she carelessly
failed to detect that
the box marked 186 was missing or stolen from
New Canada storeroom until it was discovered on 17 October 2013,
abandoned at Phomolong
station while she was responsible for control
and management of all ticket roll material in her area;
2.3
That during the same period and in the same capacity, she negligently
failed to detect that
the box marked 186 with roll numbers 85916,
85977, 85978, 85979 and 85980 was missing or stolen from New Canada
storeroom, which
could have sold approximately 9000 train tickets to
the value of R1 800 000-00 and which caused potential loss to
Metrorail;
2.4
That in the same period and capacity, she circulated a false list of
boxes and TIM roll
numbers to Protection and Security and South
African Police Services (“SAPS”) alleging theft which
resulted in a wasteful
investigation being embarked upon by the
Protection and Security department which was caused by her failure to
verify the truthfulness
of the incident;
2.5
That in the same period and capacity she negligently provided a false
list of boxes as stolen,
thereby influencing and compelling the
company to conduct polygraph testing to customer services employees
including herself, thereby
causing trauma to staff and monetary loss
to the company;
2.6
Gross dereliction of duties in that she, in the same period and in
the same capacity, abdicated
her responsibility to junior officials
by giving or delegating the keeping and recording of roll stock to
junior officials without
providing guidance and direction;
2.7
Gross misconduct in that during the same period and capacity she
failed to carry out her
responsibility as a manager to ensure that
the ticket rolls are kept safely and recorded;
2.8
That in the same capacity and period, she failed to secure a box
marked 186 with ticket
roll numbers 85916, 85977, 85978, 85979 and
85980, which cost approximately R137-83 each;
2.9
That in the same capacity and period, she caused unnecessary and
fruitless expenditure in
that Metrorail had to acquire and pay for a
series of polygraph tests conducted on some of the customer services
employees including
herself;
2.10
Gross dishonesty in that in the same capacity and period, she was
dishonest in intentionally and falsely
writing a report stating that
the ticket rolls were stolen;
2.11
That in the same period and capacity, she was grossly dishonest by
reporting TIM rolls as stolen while
she had personally taken them to
Mr. Deon Strydom’s office; and
2.12
That in the same period and capacity she became dishonest by falsely
stating that Mr Mbetse had returned
and transported the Durban ticket
rolls stock to the regional office.
[3]
The respondent referred the dispute to the CCMA alleging that her
dismissal was both substantively and procedurally unfair.
The
arbitrator found that indeed the dismissal was both procedurally and
substantively unfair. I shall return to the details of
this finding
of the arbitrator when I deal with the review application. The
arbitration award is dated 04 September 2015 and the
applicant
alleges that it had received it on 07 September 2015.
[4]
On 01 October 2015, the respondent brought an application to this
Court to make the arbitration award an order of court in terms
of
section 158(1) (c) of the Labour Relations Act
[1]
(LRA).
The respondent alleges that the application was not opposed as a
result of which she applied for its set down. In the meantime,
and on
30 November 2015, the applicant lodged a review application
containing a condonation application for the late filing of
such
review, and seeking to stay any judgment or order that may have been
granted against it pending the outcome of the review.
It also sought
to stay any execution process that might have been brought as well
pending the review.
[5]
The section 158(1)(c) application was heard on 23 February 2016 by
Mahosi AJ and the arbitration award was made an order of
court. Such
order was granted in the absence of the applicant.
[6]
Apart from other interlocutory legal processes, the applicant brought
an application for rescission of the court order of Mahosi
AJ. Such
rescission application was brought in June 2016 wherein an order
condoning the late filing thereof was also sought. Both
the
rescission and the review applications are opposed by the respondent.
Rescission
Application
[7]
The applicant contends that when it brought the review application it
was not aware that there would be a necessity to seek
rescission of a
court order. In other words, the review application was brought
before the arbitration award was made an order
of court.
[8]
The applicant contends further that, as it had filed a notice of
opposition to the rescission application, clause 11.4.1 of
the Labour
Court Practice Manual applied and required the respondent to request
the Registrar to enroll the application on the
opposed roll and to
serve a notice of set down on all parties. Clause 11.4.1 of the
Practice Manual provides:
“
11.4.1
If the respondent has delivered a notice of intention to oppose but
failed to deliver an answering affidavit within the prescribed
time
limit, the Registrar must at the request of the applicant, enroll the
application on the opposed roll and serve a notice of
set down
on
all parties
”
.
[
emphasis added]
[9]
The applicant submitted that this was not done as a result of which
it was not aware that the rescission application had been
set down
for 23 February 2016 and consequently, the order was granted
erroneously in its absence as contemplated in section 165
of the LRA.
[10]
As regards condonation, the applicant submits that it had brought an
urgent application for the staying of execution immediately
after
learning of the default court order which knowledge came to it
through the service of the respondent’s application
to execute
such court order. After the urgent application had been dismissed for
lack of urgency, it sought undertakings from the
respondent not to
execute the court order but to no avail. The applicant also
emphasized that there are good prospects of success
of the review
application and that in the circumstances condonation ought to be
granted.
[11]
In response to the applicant’s submissions, the respondent who
was represented by Mr Majare, submitted that the rescission
application was properly served and that, though the applicant had
filed a notice of opposition, it did not file an opposing affidavit
and therefore it was not entitled to be notified of the date of
hearing of the rescission application. The respondent submitted
that
paragraph 11.4.1 of the Practice Manual deals with a situation where
the opposing affidavit is filed out of time and not a
situation where
it has not been filed at all.
[12]
The respondent further referred to Rule 7(6) (b) and (6A) of the
Labour Court Rules which provide as follows:
“
(b)
The Registrar must notify the parties of the date, time and place for
hearing of the application
but need not notify a respondent who has
not delivered an answering affidavit in support of its opposition of
the application.
(6A)
An application to make a settlement agreement or arbitration award an
order of court which is unopposed
must be enrolled by the Registrar
on notice to the applicant. The court may make any competent order in
the absence of the parties.”
[13]
The respondent argues, on the basis of this Rule, that the applicant
was not entitled to a notification of the date of hearing
of the
rescission application.
[14]
As far as condonation is concerned, the respondent insisted that
there is a lack of explanation of the period from 03 May to
03 June
2016.
[15]
It is clear from the above that the main issue in the rescission
application is whether or not the applicant was entitled to
be
notified of the set down of the rescission application in view of the
fact that it had only filed the notice of opposition and
not an
opposing affidavit. In my view, the fact that the Rule requires a
notice of opposition to be filed separately from, though
simultaneously with, the answering affidavit is an indication that
the notice of opposition has a particular purpose to serve.
I
enquired from the respondent as to whether the notice of opposition
is merely a useless piece of paper to which I did not receive
a clear
response.
[16]
Paragraph 11.4.1 of the Practice Manual is much clearer than Rule
7(6) and (6A). It places an obligation on the applicant to
request
the Registrar to, first, enroll such an application on the
opposed
motion roll and second, to serve a notice of set down
on all
parties
. I agree with Mr. Adonis representing the applicant that
the respondent did not argue that the provisions of the Practice
Manual
were unenforceable in this regard or that they were superseded
by those of Rule 7(6).
[17]
Moreover, Rule 7(6A) which refers to a section 158(1)(c) application
states that when such application is
unopposed
, it must be
enrolled by the Registrar on notice to the applicant. I have serious
misgivings in the argument that ‘unopposed’
application
includes an application where a notice of opposition has been filed
without an answering affidavit. Rule 7(6) does
not specify whether
such an application should be set down on an opposed or unopposed
roll, while the Practice Manual fills that
lacuna by providing that
it be set down on an opposed roll and parties thereto be notified
thereof. It is therefore my conclusion
that the respondent had to
ensure that the applicant is served with a notice of set down or
somehow notified of the date of hearing
of the rescission as
contemplated by the Practice Manual.
[18]
Having concluded as stated above, the need for a long explanation in
the condonation application is eliminated. In other words,
if the
applicant was not aware of a date of hearing of the rescission
application and only became aware thereof at a time when
the
respondent sought to execute, there is no need for an explanation for
the period up to the time of such application for execution
of the
default order. The respondent has raised an issue about the period
from 03 May to 03 June 2016. In my view, such period
of delay, if
any, is negligible, in view of the total delay that has taken place
in this matter. Moreover, it is clear from the
totality of the facts
in this case that the applicant was not merely sitting back and doing
nothing about the matter but tried
as much as it could, taking into
account the disappointments and ill advices that may have been given,
to bring this matter to
finality and at no stage abandoned its rights
to pursue the matter.
[19]
I am also of the view that the review application raises some
important legal issues some of which have not been clearly
pronounced
upon by this Court and the Labour Appeal Court. That is already an
indication that there are reasonable prospects of
success of the
review application which is all that must be satisfied under this
requirement of good cause.
[20]
Even if I am wrong in the assessment of good cause, the applicant has
satisfied the requirements of section 165(a) of the LRA,
namely that
the judgment was sought and/or granted in error and in the absence of
the applicant. In
Mutebwa v
Mutebwa
[2]
,
the Constitutional Court clarified the position as follows in
relation to Rule 42(1)(a) of the Uniform Rules, which is worded
in
similar terms as section 165(a) of the LRA:
“
[15]
I shall now consider whether a proper case for rescission has been
made under Rule 42 of the Rules of the High Court. Rule
42(1)(a)
empowers the Court to rescind an order erroneously sought or
erroneously granted in the absence of the party seeking rescission
provided that such party is affected by such order or
judgment. The prerequisite factors for granting rescission under
this
Rule are the following. Firstly, the judgment must have been
erroneously sought or erroneously granted; secondly, such judgment
must have been granted in the absence of the applicant; and, lastly,
the applicant's rights or interest must be affected by the
judgment.”
[16]
Once those three requirements are established, the applicant would
ordinarily be entitled to succeed,
cadit quaestio
. He is not
required to show good cause in addition thereto. See
Hardroad
(Pty) Ltd v Oribi Motors (Pty) Ltd
1977 (2) SA 576
(W) at
578G;
De Sousa v Kerr
1978 (3) SA 635
(W).”
[21]
I am satisfied that the applicant is entitled to succeed on the
latter basis as well. I therefore find that in the conspectus
of the
evidence placed before me, a proper case has been made out by the
applicant for the rescission.
Review
[22]
The review application is essentially based on the contention that
the award is not reasonable and is irrational in view of
the facts
that were placed before the arbitrator as outlined above. The
arbitrator found that the dismissal of the respondent was
both
procedurally and substantively unfair.
[23]
As far as procedural unfairness is concerned, the arbitrator based
his finding on the fact that no formal or oral disciplinary
hearing
had been held against the respondent. In brief, the following took
place, and is common cause between the parties:
23.1
The applicant had commissioned an investigation into the alleged
burglary and theft of ticket rolls at new
customer services Area 1
West and also the discovery of Durban TIM rolls at Phomolong station.
In its report, the investigation
team concluded, among other things,
that the respondent had committed a number of acts of misconducts.
23.2
As a result of the investigation, the applicant issued a notice of
disciplinary hearing against the respondent
in which it set out the
charges as paraphrased above. The charges were served on the
respondent on 16 April 2014.
23.3
There were various delays in the disciplinary process up to 15
October 2014 when the applicant issued a notice
to the respondent
requesting her to file written representations against the adverse
findings made in the investigation report
and the acts of misconducts
as contained in the charge sheet. The letter also cautioned the
respondent that should no written representations
be made, management
will take a decision on the basis of the information at hand.
23.4
The respondent responded to such letter by stating that she was
entitled to an oral disciplinary hearing
and requested that such
hearing be held. She did not, however, deal with any of the
allegations contained in the letter nor did
she seek further
information or documentation in order to be able to make such
representations. As warned in the letter, the applicant
then took a
decision to dismiss the respondent and informed the respondent
accordingly.
[24]
On the basis of the above facts, the applicant contends in the review
proceedings that it relied for the procedure in question
on item 4 of
Schedule 8 of the LRA as well as its Disciplinary Code.
[25]
For the sake of completeness, I quote the relevant provisions of item
4 of Schedule 8 of the LRA:
“
4
Fair procedure
(1)
Normally, the employer should conduct an investigation to determine
whether there are grounds for dismissal. This does not need
to be a
formal enquiry. The employer should notify the employee of the
allegations using a form and language that the employee
can
reasonably understand. The employee should be allowed the opportunity
to state a case in response to the allegations. The employee
should
be entitled to a reasonable time to prepare the response and to the
assistance of a trade union representative or fellow
employee. After
the enquiry, the employer should communicate the decision taken, and
preferably furnish the employee with written
notification of that
decision.
(2)…
(3)…
(4)
In exceptional circumstances, if the employer cannot reasonably be
expected to comply with these guidelines, the employer may
dispense
with pre-dismissal procedures.”
[26]
For the purpose of this judgment, it is only necessary to refer to
the argument of the respondent. The respondent argues that
the
relevant part of the schedule is item 4(4) which requires exceptional
circumstances to exist and reasons why the employer cannot
reasonably
be expected to comply with the guidelines before the procedure
followed by the applicant could be applied. The respondent
therefore
concludes that the arbitrator was correct in stating that the
applicant did not prove exceptional circumstances since
the delay in
the conclusion of the arbitration proceedings was not exclusively due
to the fault of the respondent and that in fact
a number of
postponements had been occasioned by the applicant and in any event
the presiding officer had a discretion to refuse
any postponement in
appropriate circumstances.
[27]
I am in disagreement with the submissions made by the respondent and
the interpretation accorded by the arbitrator to item
4 of Schedule
8. This item of Schedule 8 makes the following compulsory
requirements as a minimum standard for a fair procedure,
namely:
27.1
That an investigation should be conducted to establish whether there
are grounds for dismissal
and that investigation does not need to be
a formal enquiry. A formal enquiry is in this context a reference to
an oral hearing
set-up.
27.2
The employer must notify the employee of the allegations and be sure
that the employee
understands such allegations;
27.3
The employer should allow the employee an opportunity to state a case
in response to the
allegations;
27.4
The employer should allow the employee a reasonable time to prepare
the response and to
the assistance of a trade union representative or
a fellow employee; and
27.5
Finally, after the enquiry the employer should communicate its
decision to the employee
preferably in writing.
[28]
The above stated requirements constitute a minimum standard for
procedural fairness in respect of a dismissal
[3]
.
The above requirements relate both the oral disciplinary hearing and
a disciplinary process through correspondence such as the
one that
occurred in this case.
[29]
Item 4(4) of Schedule 8 deals with a situation where the employer
wishes to dispense with the
pre-dismissal
procedures
and such pre-
dismissal procedures are those that conform to the standard set out
in sub-item (1) of item 4 as outlined above.
In other words, where
the employer wishes to dispense with the standard set out in sub-item
(1), it must comply with the requirements
of sub-item (4). This would
be the case, where for instance, the employer does not afford the
employee an
audi
or
pre-dismissal process because witnesses are afraid to testify
[4]
,
or where it is impossible to serve the disciplinary notice on the
employee. In that case, the employer cannot reasonably be expected
to
comply with the guidelines in sub-item (1) and, upon showing
exceptional circumstances, it is permitted to dispense with the
procedures that must normally precede a dismissal.
[30]
The respondent referred me to the decision of this Court in
Nkosinathi Khena v PRASA
[5]
where the Court held in
relation to the Disciplinary Code of the applicant, as follows:
“…
..The
Disciplinary Code has to be considered holistically and it is evident
that it makes provision for a system of corrective and
progressive
discipline and accept that a formal disciplinary process would not be
necessary where the misconduct or transgression
is of a less serious
nature and the corrective measure is counselling or the imposed
sanction is a verbal or a written warning.
However, where the charged
employee is as senior as the Applicant, where the charges are
seemingly serious and the possible outcome
is dismissal, it can
hardly be argued that a formal disciplinary process should not be
invoked under those circumstances. More
so, where the employer
elected to appoint a chairperson and prosecutor……”
Furthermore
the Applicant’s case is PRASA elected to proceed with a formal
disciplinary enquiry when it issued a charge sheet
on 24 October 2016
wherein it was recorded that the applicant has a right to be legally
represented, to give evidence and call
witnesses and to cross examine
PRASA’s witnesses. Having conferred these rights upon the
Applicant, PRASA was not at liberty
to unilaterally withdraw them
.”
[31]
I am in respectful disagreement with the findings made in the above
case.
31.1
First, nowhere in item 4 of Schedule 8 is there a reference to the
informal procedure being
applicable only in serious cases or in cases
of employees who are not in the upper echelon of employees. This item
deals particularly
with dismissal, the ultimate serious cases in the
employment environment.
31.2
Further this is not expressly provided for in the disciplinary code
of the applicant. Anyway,
it was not the respondent’s case in
the present proceedings that the procedure applied by the applicant
was only applicable
in less serious cases and to junior employees. So
in that regard, the case relied upon by the respondent is
distinguishable from
the present one.
31.3
The selective application of the requirement of procedural fairness
to senior employees
is also unjustified.
[6]
On the contrary, the Labour Appeal Court
[7]
has expressed the view that the intention of the LRA is to do away
with rigid procedural requirements, and the principle that an
employee need merely be given an opportunity to state a case, applies
even more strongly where senior managerial employees are
involved.
31.4
Second, it is not clear what is meant by the conferral of a right and
the unilateral withdrawal
thereof. If the disciplinary code and the
Code of Good Practice (Item 4 of Schedule 8) make room for a less
formal process to be
followed (as opposed to a formal oral
disciplinary enquiry), it ought to be open to the employer to follow
anyone of such processes
as long as such process complies with the
minimum standard set in item 4(1). The respondent did not seek to
argue that either the
Disciplinary Code of the applicant was legally
invalid or that Schedule 4(1) was not applicable or was legally
unenforceable for
some or other reason. Furthermore, the applicant
has not waived its right or prerogative to follow the less formal
process.
31.5
The legal concept of ‘
election
’
in the contractual context, applies where a party has to make an
election between two inconsistent and mutually exclusive
remedies.
Once he has elected one of the remedies such as specific performance,
he is taken to have abandoned the other such as
claiming cancellation
and damages as he cannot approbate and reprobate
[8]
.In
this case, there is no question of remedies in the first place and
the two pre-dismissal processes are not inconsistent with
each other
or mutually destructive. There is also no contention that the process
applied fell short of the minimum standard set
out in the Code of
Good Practice or the applicant’s disciplinary code.
31.6
As far as stringent procedural standards set out in the disciplinary
code are concerned,
the LAC pronounced itself as follows, in
Highveld
District Council v CCMA
[9]
:
“
The
mere fact that a procedure is an agreed one does not, however, make
it fair. By the same token, the fact that an agreed procedure
was not
followed does not in itself mean that the procedure actually followed
was unfair.”
In
Avril Elizabeth Home for the Mentally Handicapped v CCMA
[10]
,
Van Niekerk AJ (as he then was) stated thus:
“
When
the Code refers to an opportunity that must be given by the employer
to the employee to state a case in response to any allegations
made
against that employee, which need not be a formal enquiry, it means
no more than that there should be dialogue and an opportunity
for
reflection before any decision is taken to dismiss. In the absence of
exceptional circumstances, the substantive content of
this process as
defined by item 4 of the Code requires the conducting of an
investigation, notification to the employee of any
allegations that
may flow from that investigation, and an opportunity, within a
reasonable time, to prepare a response to the employer’s
allegations with the assistance of a trade union representative or
fellow employee.
”
31.7
In my view, the propriety or otherwise of the procedure followed
should be assessed, not
on the basis of an earlier election or the
existence or absence of exceptional circumstances but rather on
whether or not the chosen
process resulted in a proper ventilation of
the issues raised and consequently in procedural fairness.
31.8
Where the informal process is chosen by the employer, the question
whether or not there
has been such proper ventilation of issues can
only be answered in the light of the representations made by or on
behalf of the
employee. It follows that where the employee has failed
to make representations as to the charges or allegations in issue, as
in
the present case, the question of procedural fairness does not
arise in that regard. The employee cannot complain that she was not
afforded the
audi
when she did not state by way of written
representations as to which aspects she deserves an oral hearing.
31.9
In fact, the applicant in this case may have resorted to this
informal process precisely
to determine from the requested written
representations whether or not the respondent had any defence or a
defence that warranted
an oral hearing or she was merely fancifully
defending for the purposes of delay, as in the situation of a summary
judgment application.
[32]
Similarly, the respondent’s reliance on the case of
Solidarity
[11]
is ill-conceived. The paragraph quoted from that case states
[12]
:
“
It
is clear that until the SABC issued the schedule 8 notices, the more
comprehensive hearing contemplated in its disciplinary code
was
precisely the kind of disciplinary proceeding it envisaged. When it
issued the schedule 8 notices, the contents of those notices
merely
called on the applicants to respond to charges stated in the vaguest
form, without offering any form of hearing of the kind
previously
envisaged…. A plain reading of that provision does not support
the SABC’s interpretation that it provides
it with an election
between different procedures. The most plausible interpretation of
the provision is that, an employee is entitled
to a disciplinary
procedure that conforms both with the SABC code and procedures and
with schedule 8”.
[33]
On a close reading of the above quotation it becomes clear that the
facts of that case are distinguishable from those of the
present case
in that the disciplinary code of the SABC contained particular
provisions which emphasized the importance of holding
an oral
disciplinary hearing. Moreover, the court found that the contents of
the notices which were given to the employees in that
case were vague
and did not offer any form of hearing of the kind previously
envisaged. In the present case, there is no contention
that the
notice given to the respondent was vague in so far as the allegations
against her were concerned. In fact, the notice
referred to the
investigation report and also attached the charges against the
respondent. It is the respondent who elected not
to make written
representations as requested despite the clear warning of the
consequences thereof. The applicant was left with
little choice but
to consider what was placed before it through the investigation
report without the benefit of the respondent’s
written
representations as requested. The process followed may have been
unfortunate but I do not see any basis for finding such
process to
have been unfair as contemplated in the LRA.
[34]
In the result, I am of the view that the arbitrator misapplied the
provisions of the applicant’s disciplinary code as
well as the
provisions of the Code of Good Practice in finding that the applicant
had to establish exceptional circumstances before
applying the
informal procedure and that, since such exceptional circumstances
were absent, the procedure followed was unfair.
The corollary is that
the arbitration award is unreasonable or irrational in that regard.
[35]
As far as the merits are concerned, the applicant argued that the
arbitrator focused on only one charge against the employee
in the
midst of many charges. When confronted with this question, the
respondent’s representative could only refer to a portion
of
the arbitration award where the arbitrator merely enumerated the
charges against the respondent but he could not show me any
portion
where the other charges, other than the first one, were dealt with.
Actually, this point was conceded on behalf of the
respondent.
[36]
I am in any event of the view that the evidence presented before the
arbitrator was sufficient for the finding of guilt on
the charges
preferred against the respondent. The respondent essentially raised
the defence that her subordinates in her area of
operation were
responsible for the violations. Her defence was not that there was no
violation or breach of the set standard for
the areas concerned. I
have a difficulty in accepting the arbitrator’s finding that
the subordinates ought to have been held
accountable for such
occurrences and that the respondent was exonerated therefrom. It is
obvious that the buck stops with her as
the head and the accounting
officer for those areas and divisions.
[37]
In the result, I find that the arbitration award does not pass the
threshold of reasonableness when regard is had to the evidence
placed
before the arbitrator and the conclusion that he reached.
Consequently, the applicant has made out a case for the review
of the
award.
[38]
I need not deal in details with the well-established body of our case
law regarding the reasonableness test of an award. However,
I find it
imperative to quote the decision of
Goldfield
Mining SA (Pty) Ltd v CCMA
[13]
,
where the Labour Appeal Court held as follows:
“…
The
enquiry... extends to whether the result was unreasonable, or put
another way, whether the decision that the arbitrator arrived
at is
one that falls in a band of decisions to which a reasonable
decision-maker could come on the available material”.
[39]
My conclusion is that the decision of the arbitrator in the present
case falls outside the band of decisions to which a reasonable
decision-maker could come on the available facts.
[40]
As regards costs, both parties submitted that costs should follow the
result. However, I must take into account the complex
principles
raised in this matter which in my view have not yet been clarified by
the body of existing case law. I also understand
that a person who is
not subjected to a disciplinary process in the conventional sense
before her dismissal would want to test
the correctness of the
procedure followed, particularly in the absence of clarity of our law
in that regard.
[41]
Consequently, I make the following order:
Order
1.
The applications for condonation for the late filing of the
rescission and review
applications are granted.
2.
The rescission application is granted.
3.
The application for review is granted.
4.
The arbitration award is hereby reviewed and set aside.
5.
The dismissal of the respondent is both procedurally and
substantively fair.
6.
There is no order as to costs.
________________
DT
Skosana
Acting
Judge of the Labour Court
Appearances
For the
Applicant
: Mr L.P
Adonisi
Instructed
by
: Msikinya Attorneys & Associates
For the
Respondent
: Mr DM Majare
Instructed
by
: Majare Attorneys
[1]
Act 66 of 1995
[2]
2001 (2) SA 193
(CC) paras [15] and [16]
[3]
Avril
Elizabeth Home for the Mentally Handicapped v CCMA
[2006]
9 BLLR 833
(LC) at 838
[4]
FAWU v Premier Foods Ltd
[2010] 9 BLLR 903 (LC)
[5]
[2016] ZALCJHB 457
at para [34] to [35],
[6]
Nitrophoska (Pty) Ltd v CCMA
[2011] BLLR 765 (LC)
[7]
JDG Trading (Pty) Ltd t/a Price ‘
n Pride v Brundson
(2000) 21 ILJ 501 (LAC);
Somyo
v Ross Poultry Breeders
(Pty) Ltd [1997] 7 BLLR 862 (LAC)
[8]
Absa Bank Ltd v
Moore and Another
2017
(1) SA 255
(CC) para 35
[9]
(2003) 23 ILJ 517 (LAC) para 15
[10]
(supra) at 841
[11]
Solidarity v
South African Broadcasting Corporation
[2016]
ZALCJHB 273 at para [49]
[12]
At
para
50
[13]
[2014] 1 [BLLR] 20 (LAC) at para [14]