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[2017] ZALCJHB 144
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Department of Agriculture, Limpopo Province v Managa and Others (JR3015/06) [2017] ZALCJHB 144 (5 May 2017)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: JR
3015/06
In the
matter between:
DEPARTMENT OF AGRICULTURE,
LIMPOPO PROVINCE
Applicant
and
T R MANAGA
First Respondent
RAMABULANA L,
N.O
Second Respondent
GENERAL PUBLIC SERVICE
SECTORAL BARGAINING COUNCIL
Third Respondent
Heard
:
26 April 2017
Delivered
:
05 May 2017
Summary:
(Review – record incomplete – findings on procedural
fairness caused by a misdirection –
finding of substantive
fairness upheld because of limited ground of review relied on -
failure to consider if reinstatement
appropriate in light of perverse
reasoning on relevance of prior misappropriation of funds –
substitution of remedy)
JUDGMENT
LAGRANGE
J
Introduction
[1] This
is a review application of an award handed down on 26 September 2006.
The arbitrator found that the first respondent’s
dismissal was
unfair and set it aside, substituting the sanction of dismissal with
a final written warning valid for six months
and reinstating her to
her former position with effect from 15 October 2016.
[2] The
applicant had been charged with not banking money timeously in terms
of
s 45(c)
of the
Public Finance Management Act, 1 of 1999
. In
particular, for only banking R 1816-40 when she ought to have banked
R 3046-38. Following an investigation into a discrepancy
between
monies received and money spent the shortage was discovered and the
applicant refunded the missing money.
[3] The
applicant timeously launched the review application in November 2016.
After that, matters did not proceed smoothly and culminated
the first
respondent bringing an application under
Rule 11
to dismiss the
review application. That application was dismissed by this court on
23 December 2016. The learned judge in that
matter, Boyce AJ,
dismissed the
Rule 11
application which was only launched on 20
January 2015, primarily on the basis that the first respondent had
failed to put the
applicant on terms before springing the dismissal
application upon it. The court also found that both parties had been
responsible
for the considerable delays in finalising the matter, and
noted that the applicant had never taken any steps to compel the
second
and third respondents to provide the missing portions of the
record.
[4] As
far back as August 2009, an affidavit was filed on behalf of the
bargaining council in which it was claimed that the arbitrator
alleged that he had sent the record of the arbitration proceedings to
it, but the bargaining Council was not in possession of the
record
and surmised that because the matter was “a very old” one
“such records may have been lost in the re-archiving
of
documents”. Regrettably, it is not infrequent that certain
bargaining councils have simply failed to administer the dispute
resolution functions efficiently, and this appears to be yet another
instance of that syndrome. It is a wholly insufficient explanation
for a missing record to simply deem a three-year-old matter very old
and speculate about its loss. The consequences for parties
to
arbitration hearings of such indifferent record-keeping are enormous.
[5] In
the circumstances, the applicant proposed an attempted reconstruction
of the record but the first respondent rejected such
a proposal out
of hand and indicated her intention to proceed to enforce the award.
Consequently, the first respondent cannot complain
that the record is
incomplete. As things stand therefore the only account of the
evidence is what is contained in the arbitrator’s
award, save
for some issues canvassed in the review affidavits.
[6] An
in
limine
point was raised by the applicant concerning the late
filing of a condonation application by the first respondent in
respect of
her answering affidavit which had been filed inordinately
late. I agree with the applicant that there was really no good excuse
for the late filing of the affidavit and no reason for the further
delay in filing a condonation application which was only filed
shortly before the matter was heard. However, no jurisdictional
question rests on the late filing of the answering affidavit been
condoned. Further, there is a lack of any obvious prejudice caused to
the applicant by the late filing of the answering affidavit
to which
it had replied in any event. In the context of the general
dilatoriness of both parties in conducting the review and dismissal
application proceedings to date, which were largely dealt with in the
judgement in the dismissal application, I am not inclined
to disallow
the answering affidavit.
The
arbitration award
[7] The
arbitrator characterised the first respondent’s claim of unfair
dismissal in the following terms:
“
[The]
applicant challenges the fairness of the dismissal on the basis that
the same was harsh and the fact that the dismissal constituted
double
punishment in that applicant had earlier been reprimanded and given a
warning coupled with the instructions to refund the
short banking
that was made earlier on.
The
procedure used by the respondent was also challenged in that the
applicant was made to confess and to admit to the offence without
being informed of her rights to remain silent and the fact that
whatever the evidence or information she gives whilst being
interviewed
might be used against her at a later time or in the
disciplinary hearing.
Applicant
further argued that she was unduly influence in making the confession
with a promise that a refund of the money would
put the matter to
rest.
Further
that applicant was treated differently compared to employee Nedzama
who misappropriated state money but was not dismissed,
he was given a
lesser punishment and was retained as an employee of the state, a
notch was taken from his rank status and this
is equivalent to a
demotion.”
(
sic
)
[8] In
his summary of the first respondent’s evidence, the arbitrator
highlighted her evidence of inconsistency and her expectation
that
she would not be dismissed given her length of service (21 years),
the more lenient sanction meted out to Nedzamba, her situation
as a
single parent, that she did not deal with money issues in her normal
daily work and the fact that she repaid the money. He
also noted that
she claimed she pleaded guilty because she had been made to admit her
guilt and repay the money and that she did
not give an explanation
about why she pleaded guilty as she had not been asked about her
reasons for doing so. She was under the
impression that she had
already been punished and her misconduct had been pardoned.
[9] The
significance of the first respondent’s confession which was
reduced in writing in a letter addressed to the deputy
manager on 13
May 2005 featured prominently in the arbitrator’s award. It
read:
“
Payment
with regard to the money that did not add up for the time I was
receiving money for the Government.
I,
Thinavhuyo Rosina Magana ... I was responsible for the short in
the amount of R 1230-00 which I have repaid back. My main
intention
was not to take the money illegally, I was going to repay it back
unfortunately I was late and banking occurred before
I could pay,
this resulted in the short banking. As a result I agree that I must
be responsible for the money that has fallen short.”
The
arbitrator further recorded the following summary and assessment of
the first respondent’s evidence during the arbitration:
“
During
arbitration applicant conceded that she took part of the money and to
use it for the purpose of her father’s medical
bills. Her
intentions was to repay this money back at a later stage to not take
it for herself. In my view it is immaterial whether
or not applicant
was trained in the financial issues as cashier or otherwise, the
important fact here is that she took the money
without authorisation
or put purposes that were unauthorised. It is clear from the evidence
she committed misconduct by taking
the money and used it without the
proper authorisation.”
He also
recorded that:
“
With
regard to the money not banked that she banked the money that was not
enough because returns where needed. She wanted to wait
for Maimela
[her manager] to come back so that she could refund the money; she
conceded she used the money for her father’s
medical bill.”
[10]
Later, in the arbitrator’s analysis of the evidence he mentions
how it was only after an investigation that the short
payment of the
money was discovered and the first respondent admitted that she had
taken the money.
[11] It
appears from the arbitrator’s account of the evidence that in a
previous disciplinary matter fifteen years earlier
that the applicant
had also been made to make good an amount of R 4887-93 which had been
lost. In that matter too, the first respondent
had admitted in a
letter that she used the money and agreed to refund it, though she
claimed at the arbitration that the loss was
not her fault but that
she had been made to cover up the matter because she was the person
responsible for collecting the money.
She also admitted that she was
warned not to repeat the mistake.
[12] In
arriving at his findings, the arbitrator placed much emphasis on the
following points in his evaluation:
12.1
The first respondent was improperly induced to confess to taking the
money and to repay it on the basis that that
would extinguish her
misconduct.
12.2
The first respondent did not advise the applicant that making the
confession might be detrimental to her or that
she should get advice
as she was entitled to.
12.3
These failures made the arbitrator doubt the reliability of the
confession and the circumstances under which it
was made meant it was
“possible” that a promise was made that disciplinary
charges would not be brought if she made
the confession which
consequently denied her the opportunity of defending the allegations
against her irrespective of whether or
not she had a case to answer
to.
12.4
The employer should not have entrusted the first respondent with
handling moneys if it knew about her previous
misconduct.
[13] The
arbitrator concluded that the first respondent’s dismissal was
procedurally and substantively unfair citing the following
reasons:
13.1
The confession should only have been made at the disciplinary enquiry
after she had been charged and that it was
improperly induced.
13.2
The applicant had failed to present details of the Nedzama to justify
its contention that the circumstances of
his case were different from
that of the first respondent. Consequently there was no basis for the
unequal and inconsistent treatment
of the first respondent.
13.3
The employer had also failed to consider the first respondent’s
personal circumstances namely: her twenty
years’ service, the
fact that she is a single parent with maintenance responsibilities
and without any tertiary qualifications
or experience other than the
experience gained working for the applicant, which made her prospects
of alternative employment very
slim or non-existent.
Grounds
of review
[14] The
applicant raised a number of grounds of review. I address those which
I consider more important below.
[15]
Firstly, the applicant claims that the arbitrator misdirected himself
by focusing on the issue of the confession rather than
on the
question whether or not she was guilty of the misconduct. In this
regard, the applicant pertinently points out that it was
not the
first respondent’s case that she did not take the money as she
essentially admitted in her own evidence what she
had done,
irrespective of whether or not she would have confessed to it
originally. Consequently, it cannot be said that she relied
on the
inadmissibility of her confession as the basis of her case. Moreover,
her evidence was consistent with the original confession.
[16] I
agree that there is a contradictory line of reasoning running through
the arbitrator’s award: on the one hand he believes
the first
respondent ought not to have been prejudiced by the evidence of her
written confession and, on the other, he appears
to accept that she
was guilty of the misconduct. If he did not believe she was guilty of
the misconduct his imposition of a final
written warning is
inexplicable. Accordingly, for all the emphasis he placed on the
admission of the written confession, ultimately
he accepted that the
first respondent was guilty of the misconduct in question. Indeed,
even if the evidence of the written confession
is excluded entirely,
it is obvious from her own testimony at the arbitration that the
first respondent essentially confirmed that
she had used some of the
money she was supposed to deposit for personal reasons.
[17]
However, I accept that it is
conceivable that the arbitrator may have viewed the admission of the
confession as an element of procedural
unfairness rather than
something which affected the substantive merits of the case against
the applicant. Much of his discussion
about the confession focuses on
the fairness of allegedly extracting it from the first respondent
before the enquiry was convened
rather than it being done at the
disciplinary enquiry itself. It must be borne in mind that a mere
irregularity or misdirection
must be one that takes the arbitrator’s
reasoning so off the right track that the arbitrator fails to deal
with an issue
that was necessary to arrive at a finding and that the
arbitrator would have arrived at a different conclusion but for that
misdirection.
[1]
[18]
While there is a degree of confusion in the arbitrator’s
analysis, it is not unreasonable for the arbitrator to have
concluded
on the evidence before him that the admission of the written
confession admission was an issue that might have a bearing
on
procedural fairness and that the issue of the first respondent’s
guilt was still something that could be separately determined
on the
remainder of the evidence. Whether the arbitrator’s treatment
of the admission of the confession obtained before the
disciplinary
hearing following an investigation which revealed the first
respondent’s wrongdoing could reasonably have been
taken into
account in considering if it affected the procedural fairness of the
first respondent’s dismissal is discussed
below.
[19]
Secondly, the applicant contends that the arbitrator perversely or
blamed the applicant for allowing her to handle moneys again
rather
than drawing the most obvious conclusion that despite a previous
similar incident, she had misappropriated money again which
was
incompatible with reinstating her. I agree that the logic of the
arbitrator in this respect is difficult to understand. It
amounts to
holding that if an employer continues to employ someone who
previously misappropriated funds, its previous leniency
will count
against it when the same person misappropriates funds on another
occasion. On this basis, the more an employer applies
the principles
of progressive discipline the less it will be able to justify
ultimately imposing the sanction of dismissal. Instead,
the
arbitrator should have been considering how the applicant could be
expected to retain the first respondent for misconduct entailing
an
element of dishonesty even if her dismissal was in some respects
substantively unfair. The misdirection in his thinking caused
by his
inversion of the determination of fault in a misconduct dismissal led
him to ignore the inquiry into the appropriate remedy
he should have
undertaken in terms of
s 193(2)
of the |LRA. Moreover, even if the
arbitrator accepted that there was an element of inconsistency, the
arbitrator did not even
consider the additional evidence relating to
the applicant’s previous misappropriation of funds when
deciding the question
of consistency, when it was obviously a
relevant factor in determining if the two cases were on a par with
each other and would
materially affect that evaluation. In any event,
even if the finding of consistency must stand because of the limited
basis on
which the applicant attacked that finding on review, the
applicant’s point that the arbitrator drew an adverse inference
against it rather than considering her previous misconduct as a
relevant factor when deciding on whether the reinstatement was
appropriate or not remains valid.
[20]
Thirdly, the first respondent was represented in her disciplinary
enquiry when she pleaded guilty yet did not challenge the
use of her
confession at that stage. This might well have been true but is not
something which was clearly canvassed in the evidence
before the
Commissioner based on the limited record before me. Accordingly, I
cannot make any finding on this ground of review.
[21]
Fourthly, the arbitrator did not evaluate whether the first
respondent’s dismissal was procedurally unfair against the
requirements of The Code of Good Practice: Dismissal in Schedule 8 of
the Labour Relations Act 66 of 1995 (‘the LRA‘).
Had the
arbitrator done so on the face of the evidence narrated in his award
he would have been compelled to conclude that her
dismissal was
procedurally fair. It is true that the arbitrator identified the
principles of procedural unfairness outlined in
Schedule 8. It is
also apparent from his award that his reasoning relating to the
confession bears no reference to these principles,
yet it was the
admission of the written confession which clearly weighed most
heavily with him in deciding that there was procedural
unfairness. In
the circumstances, the enquiry he embarked on in relation to
procedural fairness did not follow the guidelines in
the code which
he was obliged to consider and not merely to recite. None of those
principles would seem to suggest that it was
somehow procedurally
unfair for the written confession to be admitted in the disciplinary
enquiry in circumstances where there
was no evidence that the first
respondent was denied an opportunity wake-up to dispute its
admissibility. On this basis alone,
the arbitrator’s
conclusions in relation to the procedural unfairness of the first
respondent’s dismissal are not sustainable.
[22]
Fifthly, the applicant maintains that the onus of proving
inconsistent treatment fell on the first respondent and not on it.
Consequently, it argues that the arbitrator misdirected himself in
placing the responsibility on the first respondent to produce
evidence to justify the differentiation between the first
respondent’s treatment and that of Nedzamba. It is not entirely
clear from the arbitration award when the question of consistency was
first raised in the course of the proceedings, but the arbitrator
makes no mention of it having been put to the applicant’s
witnesses. On the face of the award, it seems most probable that
it
was only raised by the first respondent when she gave her evidence.
The arbitrator mentions the other case for the first time
in the
following terms in the course of relating her evidence:
“
She
also informed the arbitration about a similar case were (
sic
)
another employee at Madzivhadila, Mr Nedzamba was not expelled or
dismissed but was simply reprimanded by having a salary notch
taken
away from him.”
Later in
his evaluation of the case, the arbitrator stated the following when
characterising the input of the applicant on the Nedzamba
case:
“
The
respondent did not dispute that such a case did occur, their version
was as indicated also in their closing arguments was that
Nedzamba
did not plead in the manner that the applicant in the present case
did, and the respondent also suggested without necessarily
providing
prove that the two case are not entirely the case.”
(
sic
)
[23] On
balance, it seems that the specific comparative case was not put to
the applicant’s witnesses under cross-examination,
and that the
arbitrator should at least have given the applicant an opportunity to
lead additional evidence on that case in rebuttal.
However, if under
cross-examination the comparative case had been put to the
applicant’s witnesses in sufficient detail to
raise a
prima
facie
case of inconsistent treatment, the applicant would have
had an opportunity to lead evidence to rebut that case before closing
its case, and if it had failed to do so then the first respondent
ought to have succeeded on this leg of the test of substantive
unfairness. See in this regard, Sappi Fine Papers (Pty) Ltd t/a
Adamas Mill v Lallie & others, where Landman J, as he
then was,
held:
“
As
regards the onus, the onus of proving that the dismissal was fair,
and thus of rebutting the allegation of inconsistency, is
one which
rests squarely on the employer.”
[2]
However,
the applicant on review did not raise the issue of not being able to
lead evidence in rebuttal of the comparative case
mentioned by the
first respondent for the first time in her evidence. Rather, it
relied only on an erroneous argument about where
the onus fell in
proving consistent treatment. For the reasons discussed above, this
ground of review cannot succeed. It also follows
that the
arbitrator’s finding on inconsistent treatment must also stand
even though it might have been set aside on different
grounds.
[24]
Sixthly, the arbitrator’s finding that the sanction was too
harsh is inconsistent with his view that the confession should
not
have been taken account of. I have already dealt with this
inconsistency in relation to the first ground of review discussed
above and discussion of this ground will essentially traverse the
same issues.
Conclusion
[25] In
summation, the arbitrator’s finding that the dismissal was
procedurally unfair must be set aside and the only basis
for
upholding a finding of substantive fairness rests on the applicant’s
unsuccessful attempt to review that finding on the
ground it
advanced. However, the arbitrator’s failure to consider the
implications of the applicant being involved in a prior
misappropriation of funds,
albeit
a long time before, at least
ought to have made the arbitrator pause to consider if this was a
case where it was tolerable for the
first respondent to remain in
employment. The arbitrator having decided that the dismissal was
substantively unfair simply assumed
that the reinstatement was the
remedy.
[26] Had
the arbitrator considered this, the arbitrator would also have had to
deal with the undisputed fact that the misappropriation
of funds in
2005 was not something which the first respondent had volunteered,
but which had only been discovered after an investigation
was
conducted into the discrepancy between monies received and monies
banked. There was nothing on the evidence to suggest that
she would
have volunteered the shortage in the money she deposited if it had
not been for the investigation. I agree with the applicant
that in
the circumstances, the arbitrator’s reasoning with respect to
the question of reinstatement is difficult to justify
on any
reasonable basis and at the very least the arbitrator should have
limited his award to one of compensation, at best making
allowance
for the first respondent’s long service.
Order
In light
of the above the following order is made:
[1]
The first respondent’s late filing of her answering affidavit
is condoned.
[2]
The following findings and relief in the second respondent’s
award dated 26 September
2006 issued under case number PSGA
1044-05/06 are reviewed and set aside:
2.1
The finding that the first respondent’s dismissal was
procedurally unfair.
2.2
The disciplinary sanction of a final written warning.
2.3
The reinstatement of the first respondent with effect from 15 October
2006.
[3]
The said findings and relief set aside above are substituted with the
following findings
and relief:
3.1
The first respondent’s dismissal was procedurally fair.
3.2
Within fifteen days of receipt of this judgement, the applicant must
pay the first respondent
twelve months’ remuneration calculated
at her monthly rate of remuneration at the time of her dismissal.
[4]
In the event the parties are unable to agree on the applicant’s
monthly rate of remuneration
in paragraphs 3.2 above, either party
may apply to the court to determine this issue.
[5]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
D
T Skosana, SC instructed by the State Attorney
FIRST
RESPONDENT:
S
O Ravele of SO Ravele Attorneys (
appearing pro bono
)
[1]
See
e.g
Head
of the Department of Education v Mofokeng and others
[2015]
1 BLLR 50
(LAC)
at
60-61,
para [33]:
“
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.”
[2]
(1999) 20
ILJ
645 (LC) at 647 para 5