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[2017] ZALCJHB 127
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Special Investigating Unit v Commission for Conciliation, Mediation and Arbitration and Others (JR509/2014) [2017] ZALCJHB 127 (21 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR509/2014
In the
matter between:
SPECIAL
INVESTIGATING
UNIT
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
MABEL SIKITI N.O.
Second
Respondent
NEHAWU
obo HERBERT LUBITA
Third Respondent
Heard:
19 April 2017
Delivered:
21 April 2017
JUDGMENT
TLHOTLHALEMAJE
J
Introduction
[1]
This
is an application to review and set aside the arbitration award
issued by the second respondent (Commissioner) dated 29 January
2012.
The crisp issue before the Commissioner was whether the failure to
institute disciplinary proceedings following upon a complaint
and
investigations against an employee constituted an unfair labour
practice within the meaning of section 186(2) of the Labour
Relations Act.
[1]
The Commissioner not only found that such a failure constituted an
unfair labour practice, but she also awarded the third respondent,
Herbert Lubita (Lubita), six months’ compensation.
Background
[2] The
background facts to this matter are fairly common cause. Lubita was
employed by the applicant as a Project Manager since
June 2006. On
12 June 2013, Andries Le Roux (Le Roux), the applicant’s
Investigating Officer of the Internal Integrity
Unit lodged a
complaint with the applicant relating to the authenticity of Lubita’s
educational qualifications that he had
obtained in Uganda. Le Roux’s
functions included conducting screenings and due diligence
investigations on all prospective
members of the applicant as well as
screening on all members currently in the employ of the applicant.
[3]
Lubita was due for screening in 2013 and Le Roux had formed an
opinion that Lubita may have been guilty of making fraudulent
and
false statements. Le Roux concluded further that Lubita may have
a case to answer to, and a notice was sent to him on
5 June 2013,
advising him of the complaint. He was afforded an opportunity to
respond to the complaint.
[4] It
was common cause that Lubita obtained the necessary information from
Uganda to verify his qualifications, and had submitted
his response
on 28 June 2013. It was further common cause that a similar
screening process had been embarked upon in
July 2007 subsequent to
Lubita’s appointment. Nothing further took place after Lubita
had submitted his response in June 2013.
[5]
Aggrieved by the applicant’s failure to take any further action
on the matter, Lubita then approached the CCMA with an
alleged unfair
labour practice dispute. The essence of his dispute was that the
applicant had committed an unfair labour practice
in that it made
allegations against him and yet failed to charge or take any
disciplinary action against him within 90 days in
accordance with the
applicant’s own Disciplinary Code and Procedure. He contended
that the conduct of the applicant constituted
disciplinary action
short of a dismissal. In regards to relief, he sought that the
allegations against him be withdrawn, and that
he be paid
compensation.
The
arbitration proceedings and the award
[6] At
the arbitration proceedings, only Lubita led evidence in his case.
Not much turned on the oral evidence led by Lubita as
most of the
issues were common cause. The applicant’s case however was that
the CCMA lacked jurisdiction to determine the
dispute as Lubita had
neither been suspended nor disciplined.
[7] The
Commissioner’s reasoning in regards to the question of
jurisdiction was that upon a reading of section 186(2)(b) of
the LRA,
“disciplinary action in a form of a complaint had occurred”.
The applicant, according to the Commissioner,
had failed to comply
with its own disciplinary code and procedure and therefore its
actions were “tantamount to an unfair
labour practice by an
employer on an employee”.
[8] The
Commissioner further found that the conduct of the applicant in
subjecting Lubita to further screening when the same process
was
completed in 2007 was
mala fide
or not justified. In regards
to the remedy, the Commissioner having made reference to section
193(3) (Sic) and 194(4) of the LRA
concluded that six months’
compensation was justifiable having taken into account Lubita’s
age, the nature of his job,
and the complaints laid against him,
which had a bearing on his “integrity and future endeavours”.
Evaluation
[9]
The
test that this Court applies in determining whether the arbitrator’s
decision is reviewable is that as laid down
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
[2]
The question to be posed and answered is: ‘whether the
conclusion reached by the arbitrator was so unreasonable that no
other arbitrator could have come to the same conclusion.’ The
arbitrator’s decision must therefore fall within a range
of
decisions that a reasonable decision maker could make.
[10] This
matter is one where it can without any doubt, be concluded that the
Commissioner went on a frolic of her own, misapplied
and
misinterpreted the law, exceeded her powers and essentially “felt
sorry” for the employee. To cap it, the Commissioner
went a
step further by granting Lubita what Counsel for the applicant
correctly referred to “sympathy compensation”.
The award
cannot by any account pass the standard of a reasonable decision
maker test. My conclusions in this regard are based
on the following.
[11] An
unfair labour practice in section 186(2) of the LRA is defined as:
““
Unfair
labour practice” means an unfair act or omission that arises
between an employer and an
employee
involving—
(
a
)
unfair conduct by the employer relating to the promotion, demotion,
probation (excluding
disputes
about dismissals for a reason
relating to probation) or training of an
employee
or relating
to the provision of benefits to an
employee
;
(
b
)
the unfair suspension of an employee or any other unfair
disciplinary action short of dismissal in respect of an employee
;
(
c
)
a failure or refusal by an employer to reinstate or re-employ a
former
employee
in terms of any agreement; and
(
d
)
an occupational detriment, other than dismissal, in contravention of
the Protected Disclosures
Act, 2000
(
Act
No. 26 of 2000
),
on
account of the
employee
having
made a protected disclosure defined in that Act.”
(Emphasis added.)
[12] In
this case, it was common cause that all that the applicant, through
Le Roux, did was to lodge a complaint about the authenticity
of
Lubita’s qualifications. As an employee within a state organ,
Lubita was not immune from scrutiny to determine whether
he was a fit
and proper person to occupy his post, and the applicant was therefore
entitled to invoke its screening processes against
him.
[13]
Flowing from the complaint lodged by Le Roux, Lubita was afforded an
opportunity to respond which he duly did, and no further
steps were
taken by the applicant. It is apparent from these chain of events
that to the extent that the provisions of section
186(2)(b) of the
LRA are relied upon, there is no basis upon which it can be concluded
that there was an “unfair suspension”
or any other unfair
disciplinary action short of dismissal in respect of Lubita.
[14]
John
Grogan
[3]
in analysing the provisions of section 186(2)(b) stated that:
“
To
fall within the terms of section 186 (2) (b), disciplinary action
against an employee short of a dismissal must be disciplinary
both in
nature and in intent. Action is ‘disciplinary’ if it is
aimed at correcting errant behaviour for which the
employee is
responsible. So, for example, a counselling session or a warning for
incapacity does not fall within the scope of the
definition. The
definition is also concerned with disciplinary
action
.
The decision to hold a disciplinary enquiry does not fall within the
definition of an unfair labour practice- the action must
have been
instituted before an employee can refer a dispute relating to
disciplinary action short of dismissal. The word action
also suggests
that employees may not refer a dispute over the content of an
employer’s disciplinary policy. A dispute may
be entertained
only if the employer actually takes action. Only the Labour Court or,
perhaps, the High Court, has the power to
interdict a disciplinary
hearing.”
[15] In
this case therefore, the mere fact that an employee is aggrieved by
the lodging of a complaint or the institution of some
form of
investigation against him or her cannot by any stretch of imagination
be construed as disciplinary action, let alone one
that is short of
being a dismissal. An investigation or a complaint against an
employee cannot be equated with disciplinary action.
To hold
otherwise would lead to absurdity and untenable consequences in that
employers would ordinarily be reluctant to investigate
any
allegations of misconduct against employees, and employees in turn
would be reluctant to lodge complaints against each other
or their
managers. The interpretation or application of section 186(2)(b) of
the LRA cannot be stretched that far, and the Commissioner
clearly
misinterpreted those provisions.
[16] To
the extent that there was no disciplinary action, let alone any
action short of a dismissal, the Commissioner equally had
no
jurisdiction over the matter as there was no dispute between the
parties. Lubita may have been aggrieved by the complaint and
investigation against him, and understandably so since he had not
heard anything about the status of those investigations. However,
various options were available to him, including lodging a grievance
against the complainant, or approached this Court for relief.
He
could however not have approached the CCMA as he had neither been
suspended nor disciplined, and the CCMA clearly lacked jurisdiction
in circumstances where there was no live dispute between the parties.
[17] More
worrisome with the award however is that the Commissioner, in
circumstances where she had no jurisdiction to determine
the matter
as there was no dispute before her, had inexplicably found cause to
order compensation equivalent to six months’
salary.
[18] The
Commissioner by taking into account Lubita’s age, and the
complaints laid against him, which purportedly had a bearing
on his
“integrity and future endeavours”, essentially
misconstrued her mandate and exceeded her powers. It is not for
Commissioners to “feel sorry” for employees and award
them “sympathy compensation” simply on the basis
that
they may have been inconvenienced by the employer’s conduct.
Central to a determination of disputes under the provisions
of
section 186 of the LRA is whether the conduct of the employer was
unfair. Thus, the facts of a case and the law determines an
outcome,
and not the Commissioner’s own sentiments.
[19]
Significant
however, in view of the Commissioner’s comments that the
complaints or investigations against Lubita had a bearing
on his
integrity and future endeavours, is that it is not within the
Commissioner’s powers in terms of the provisions of
section 193 (4)
[4]
and 194(4)
[5]
of the LRA to grant remedies akin to delictual damages.
[20] In
conclusion therefore, the award issued by the Commissioner is
reviewable on the grounds that the decision reached therein
does not
fall within a range of reasonableness in the light of the material
placed before her. Essentially, the Commissioner lacked
jurisdiction
to determine the matter before her as there was no live dispute
between the parties within the meaning of section 186(2)(b).
It
follows therefore that the award ought to be set aside.
[21]
There is no point in remitting this matter back to the CCMA as all
relevant material pertinent to this case are before the
Court. The
Court is therefore in a position to substitute the award of the
Commissioner. The applicant did not seek a cost order
against Lubita,
and I see no reason why such an order should be made.
Order
[22] In
the premises the following order is made:
1.
The arbitration award issued by the second respondent under
case
number FS73311-13 dated 29 January 2012 is reviewed and set aside;
2.
The above award is substituted with an order that:
“
The
conduct of the Applicant, Special Investigating Unit against Herbert
Lubita (The Employee) did not constitute an unfair labour
practice
within the meaning of section 186 (2) (b) of the Labour Relations
Act.”
3.
There is no order as to costs.
__________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant:
Adv. Sumayya
Tilly
Instructed
by:
The Office of the State Attorney
For the
Third Respondent: Mr. M Magoshi of Majang INC
[1]
66 of 1995, as amended. (LRA)
[2]
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405
(CC).
[3]
Grogan
Employment
Rights
1st ed (Juta & Co, Cape Town 2013) at 135-6.
[4]
Section 193(4) provides that—
“
An
arbitrator appointed in terms of this Act may determine any unfair
labour practice dispute referred to the arbitrator, on terms
that
the arbitrator deems reasonable, which may include ordering
reinstatement, re-employment or compensation.”
[5]
Section 194(4) provides:
“
The
compensation awarded to an
employee
in respect of an unfair
labour practice must be just and equitable in all the circumstances,
but not more than the equivalent
of 12 months
remuneration
.”