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[2017] ZALCJHB 377
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Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR2368/15) [2017] ZALCJHB 377 (17 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR 2368/15
In
the matter between:
EKURHULENI
METROPOLITAN MUNICIPALITY
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL
First
Respondent
ARBITRATOR
MNS DAWSON,
N.O
Second
Respondent
IMATU
obo SANMARI BRIEDENHANN
Third
Respondent
Heard:
14 June 2017
Delivered:
17 October 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The
applicant (The Municipality) seeks an order reviewing and setting
aside the arbitration award dated 24 November 2015,
which
was issued by the second respondent (the Arbitrator) under case
number GPD 091508. In the award, the Arbitrator found that
the
suspension of the third respondent (Sanmari Briendenhann) was unfair.
The Arbitrator had ordered the Municipality to uplift
the suspension;
to pay Briedenhann compensation equal to two months’ salary,
and to further pay the costs of the arbitration.
The review
application is opposed.
The background:
[2]
Briedenhann
is employed by the Municipality as Divisional Head: Projects in the
Disaster and Emergency Management Services Department
(DEMS). Her
employment was with effect from 1 May 2014 in terms of a
five-year fixed-term contract which is due to expire
on
30 April 2019. Clause 2.1 of the contract stipulates that
Briedenhann is employed in terms of section 56 of the Local
Government: Municipal Systems Act
[1]
(The Systems Act). She reports to Moshema Mosia, who is the Head of
Department, DEMS
[2]
Mosia in
turn reports directly to the Municipal Manager.
[3]
Briendenhann
was issued with a pre-suspension enquiry notice on 1 September 2015,
in terms of clause 14.1 of the Disciplinary
Procedure Code Collective
Agreement (DPCCA)
[3]
. The
pre-suspension enquiry was held on 1 September 2015, where
Briendenhann was represented by the Independent Municipal
and Allied
Trade Union (IMATU). At those proceedings, Briendenhann had requested
to be furnished with further particulars regarding
the allegations
pertaining to
inter
alia
,
gross insubordination and gross negligence. She further requested
that proceedings be adjourned to afford her an opportunity to
properly prepare herself for the enquiry. Proceedings were postponed
to 2 September 2015, and following her oral and
written
submissions, she was issued with a suspension letter on
7 September 2015.
[4]
Briendenhann
through IMATU referred a dispute to the first respondent, the South
African Local Government Bargaining Council (SALGBC)
on
11 September 2015 to challenge the fairness of her
suspension. In the referral, she had alleged that she ‘
was
not afforded a fair hearing before her suspension; that her
submissions were not considered; and that her contractual rights
regarding reasons for suspension were unfairly violated’
.
Conciliation proceedings held on 20 October 2015 failed to
resolve the dispute. Following the referral of the dispute
for
arbitration, the matter came before the arbitrator on
20 November 2015.
The arbitration proceedings and the
award:
[5]
At
the arbitration proceedings, only Briendenhann had testified. The
immediate striking feature of the Arbitrator’s award
is that it
is three pages long and chronically thin on details. All that is
recorded of any substance is that, ‘
the
matter is one of unfair suspension’
;
and that, ‘
it
was common cause that Briendenhann was a senior employee employed in
terms of section 56 and 57 of the act’.
[6]
The
Arbitrator then stated that Briendenhann
was
not suspended in terms of the Local Government Disciplinary Code and
Procedure for Senior Managers, and precept governing Senior
Managers’
.
He then concluded that ‘
In
as much as the actions of the respondent were not in compliance with
the laws governing Senior Managers I find that the respondent
acted
ultra vires’
.
The basis upon which compensation was ordered is not explained in the
award.
The grounds of review:
[7]
The
Municipality contends that the award is reviewable on a variety of
grounds including that the Arbitrator;
a)
Misconceived
the nature of the dispute; started the enquiry on a wrong premise,
and answered the enquiry incorrectly;
b)
Exceeded
his powers and ruled that Briendenhann’s suspension should have
been conducted in terms of the Senior Manager Disciplinary
Regulations in circumstances where;
i.
Briedenhann
was not a Senior Manager as contemplated in section 56 of the Systems
Act; did not report to the City Manager, and it
was therefore not
correct as concluded by the Arbitrator that it was common cause that
Briendenhann is a section 56 and 57
[4]
Senior Manager;
ii.
As
a result of (a) above, the suspension of Briendenhann could not have
been effected in terms of Senior Managers’ Regulations.
The
applicable procedure therefore was in terms of the Disciplinary
Procedure and Code: Collective Agreement (DPCCA);
iii.
The
suspension of Briendenhann was effected in compliance with the
provisions of her contract of employment, and in terms of the
DPCCA
in that she was served with a pre-suspension enquiry notice on
1 September 2015, which was issued in accordance
with
clause 14.1 of the DPCCA, and in compliance with clause 18
(Precautionary Suspension) of her contract of employment;
iv.
Upon
attending the pre-suspension enquiry, Briedenhann as represented by
IMATU was as per her request, furnished with the details
of the
allegations against her. Oral submissions were made in the enquiry by
representatives of both parties, and they had also
made written
submissions. On 7 September 2015, Briedenhann was issued
with a suspension letter, in which reasons for
her suspension were
also detailed.
c)
The
Arbitrator arrived at a conclusion which no reasonable arbitrator
could have arrived at; committed a gross irregularity in the
conduct
of proceedings; ignored and disregarded the evidence before him, more
specifically the evidence and the admissions made
by Briedenhann,
including that she was not accountable to the City Manager, and had
instead reported to the HOD.
Evaluation:
[8]
The
test on review remains that of a reasonable decision maker, with the
enquiry being whether the arbitrator arrived at a decision
which no
other arbitrator would have arrived at in the light of the material
placed before him or her. In the end, the Court must
be satisfied
that the arbitrator's decision falls within a range of decisions that
a reasonable decision maker would make
[5]
.
[9]
Prior
to dealing with the merits of the application, a few comments need to
be made about the Arbitrator’s award. The provisions
of
sections 138 (1)
[6]
of the
Labour Relations Act (LRA)
[7]
,
enjoins commissioners to conduct arbitration proceedings in a manner
that they consider appropriate in order to determine the
dispute
fairly and quickly, but to deal with the substantial merits of the
dispute with the minimum of legal formalities. Section
138 (7)
[8]
of the LRA further require commissioners to issue arbitration awards
with brief reasons.
[10]
The
contents of the award of the Arbitrator in this case in the light of
the evidence presented before him takes the meaning of
‘
brief
reasons’
to a new low level. An arbitrator’s award for the purposes of
review proceedings is a first indicator (usually from voluminous
records) from which the reviewing court can have a sense of what the
dispute was all about. I do not therefore understand ‘
brief
reasons’
to mean that the award must be written in encrypted codes and one
liners from which a reviewing court or ordinary reader cannot
appreciate what the dispute was all about, what evidence was led, and
how the arbitrator came to his or her conclusions. There
is an
obligation on arbitrators to at least make an attempt to summarise
the salient features of the evidence presented, and to
indicate how a
decision was arrived at.
[11]
From
the transcribed record of proceedings, it is apparent that
Briedenhann had testified at length and was also cross-examined.
The
Arbitrator nonetheless failed to have regard to, let alone make any
effort to summarise that testimony in the award. It is
therefore not
known what facts or evidence were taken into account in reaching the
conclusion that the actions of the Municipality
were
ultra
vires
.
[12]
Briendehann
in her opposition to the review application contended that the ‘award
embodies a reasonable decision or a decision
that could be made by a
reasonable decision-maker based on the evidence that was presented to
the arbitrator’. I fail to
appreciate how this can be the case
in circumstances where the award is essentially silent on the
evidence led, and when it is
not clear from that award as to what had
informed the Arbitrator’s decision. Ordinarily, if the
distorting effect of that
misdirection is to render the result of the
award unreasonable, it should be reviewable
[9]
.
[13]
At
issue, and as correctly pointed out on behalf of the Municipality, is
whether senior employees that do not directly report to
the Municipal
Manager, are required to be granted a hearing before the City Council
prior to being suspended,
i.e
.,
to have their suspensions effected in terms of clause 6 of the Local
Government; Disciplinary Regulations for Senior Managers,
2010
[10]
.
[14]
Aligned
to the above enquiry is whether employees whose contracts of
employment stipulate that they are employed in terms of section
56 of
the Systems Act, but do not however directly report to the Municipal
Manager should nevertheless be treated as ‘Senior
Managers’.
[15]
Briedenhann’s
case at the pre-suspension enquiry as evident from her
representations was that her suspension was not warranted
in that
there were no justifiable reasons to believe that she had committed
any misconduct. She had further contended that the
allegations
against her were baseless, and had denied that her continued presence
at work could compromise the integrity of any
investigation into the
allegations against her
[11]
.
[16]
Significant
with Briedenhann’s consistent approach prior to the arbitration
proceedings is a letter written on her behalf
by IMATU on
8 September 2015
[12]
,
in which it was acknowledged that the suspension was in accordance
with clause 18 of her contract of employment, and the Municipality
was implored to comply with the provisions of clause 18.2 by giving
her written reasons for the suspension, which reasons must
be in line
with the grounds of suspension as stated in clause 18.1 of the
contract.
[17]
At
the arbitration proceedings, her contention remained that her
suspension was unfair in the light of her defences to the allegations
against her. She had nonetheless for the first raised the issue that
she was at level 4 and hence a section 57 employee. She had
contended
that in view of her position, her suspension, other than being
unfair, was also unlawful, as it was it was not in accordance
with
the provisions of the Disciplinary Regulations for Senior Managers.
[18]
It
is apparent from the above that Briedenhann’s case at the
arbitration proceedings had changed tune from what it was at
the
pre-suspension hearing. It was argued on behalf of Briedenhann that
the fact that she had not complained about the correct
procedure
being followed at the pre-suspension enquiry or the failure by the
Arbitrator to that take into account was of no consequence.
The
reasoning behind this contention was that the Municipality equally
sought to deal with this issue in these proceedings in its
heads of
argument, without having pleaded it as a ground for review in this
matter. I agree with the submissions made on behalf
of Briedenhann,
as it is trite that a case cannot be made out in heads of argument,
nor is it permissible to raise a new issue
in review proceedings that
was not raised in the arbitration proceedings
[13]
.
[19]
Significant
however with this change of texture of Briedenhann’s case was
that it was the sole basis upon which the Arbitrator
disposed of the
matter. The Arbitrator’s conclusions were that Municipality’s
actions in suspending Briedenhann were
ultra
vires.
In the same breath, the Arbitrator had also held that the suspension
was unfair in that it was not effected in accordance with
the
Regulations. It was submitted on behalf of Briedenhann that this
conclusion was unassailable, based on the principle that an
unlawful
act will always be both procedurally and substantively unfair
[14]
.
[20]
It
is accepted that there are fundamental differences between employer’s
acts that are allegedly unlawful, invalid, unfair
or
ultra
vires
.
Briedenhann’s case was that her suspension was unlawful.
Unlawfulness within this context implied that the right or power
of
the Municipality to effect the suspension was subject to the
Regulations that prescribed a designated process, which the
Municipality
had failed to follow before implementing that
suspension. This is distinguishable from conduct that is
ultra
vires
,
in that the allegation therein would be that the functionary
effecting the suspension did not have the powers to do so. The
unfairness
of the suspension on the other hand is a matter determined
within the context of section 186 (2) (b)
[15]
of the LRA. The Arbitrator’s conclusions that the
Municipality’s conduct in suspending Briedenhann was
ultra
vires
based on the use of an incorrect procedure is at odds with what I
understood her case to be.
[21]
For
the purposes of suspending ‘senior managers’, in terms of
the Regulation or Senior Managers’ Code, only a
Municipal
Council may suspend a
Senior
Manager
[16]
following upon certain procedures including that the Council must
afford that Senior Manager seven days’ opportunity within
which
to make written representations in respect of the intended
suspension. The Council must thereafter consider the representations
before confirming the suspension.
[22]
Briendehann
holds the view that she is a senior manager or section 56 employee on
the grounds that her contract of employment says
so, and further
based on the Municipality’s concessions at the arbitration
proceedings. In this regard, she contended that;
i.
clause
2.1 of the contract, stipulates that she is employed in terms of
section 56 of the Systems Act.
ii.
Clause
3.1 stipulated that she should conclude a performance agreement with
the Council as contemplated in section 57 of the Systems
Act.
iii.
Clause
6.6 of the contract makes reference to a performance bonus being paid
to her in accordance with Regulation 32 of the Local
Government
Performance Regulations for Municipal Managers (2006);
iv.
Clause
8.2 of the contract required of her to report to the Head of
Department on such matters and furnish such information as the
Council may from time to time require;
v.
Clause
8.5 required of her to be responsible and accountable to the
Municipal Council for the duties and responsibilities mentioned
in
that clause and any other duties in terms of her job profile;
vi.
The
fact that the contract of employment was signed by the Municipal
Manager on behalf of the Municipality, the implications of
which were
that she was appointed as a ‘
manager
accountable’
to the Municipal Manager within the meaning of section 56.
vii.
The
concessions made by the Municipality at the arbitration proceedings
that she was indeed a section 57 employee, and the failure
by the
Municipality to explain to the Arbitrator, the reason she should not,
as a section 57 employee, be entitled to any rights
that such
employees are entitled to;
viii.
The
failure of the Municipality to explain the reason she was appointed
as a manager accountable to the Municipal Manager, or the
reason a
fixed term contract could not be concluded with her without making
reference to a section 56 status if the intention was
not to appoint
her as such.
[23]
The
starting point in addressing Briedenhann’s contentions is that
to the extent that she and the Arbitrator held the view
that she was
to be suspended in accordance with the Regulations, a ‘
senior
manager’
in Chapter 1 (Definitions), is defined as;
(i)
A
municipal manager referred to in section 82 (1) of the Local
Government Municipal Structures Act, 1998 (Act No. 177 of 1998)
[17]
(ii)
A
manager referred to in section 56 of the Act (Municipal Systems
Act)
[18]
[24]
A
‘
Senior
Manager’
in the
Regulations
on the Appointment and Conditions of Employment of Senior
Managers
[19]
is further defined as;
‘
a
municipal manager or acting municipal manager, appointed in terms of
section 54A of the Act, and includes a manager directly accountable
to a municipal manager appointed in terms of section 56 of the Act’
[25]
A
reading of the above Regulations clearly indicate that a senior
manager can only be a municipal manager, or an acting municipal
manager. Within the context of section 56 (1) (a) of the Systems Act,
it can only be in reference to an acting manager or a manager
directly
accountable to a municipal manager
.
No other meaning can be attributed to ‘
directly
accountable’
other than its ordinary meaning.
[26]
A
reading of Briedenhann’s contract of employment and the clauses
relied upon point to her being appointed in terms of section
56 of
the Systems Act. To meet the requirements
for
the appointment of a
manager
directly accountable
to the Municipal Manager under section 57 of the Systems Act, there
must have been a written contract of employment and a separate
performance contract
[20]
.
These requirements were met in this case.
[27]
Prima
facie
,
the provisions in the contract of employment suggests that
Briendenhann is section 56 employee. It was argued on her behalf that
her appointment as an employee directly accountable to the Municipal
Manager was a question of fact, and that the debate should
end at
that point. Inasmuch as one cannot quarrel with the premise that
whether an employee is directly accountable to a Municipal
Manager is
indeed a question of fact, the matter however does not end there.
Those facts should be examined to determine whether
indeed an
employee is ‘
directly
accountable’
,
as well as other legal considerations.
[28]
On
the facts, I did not understand Briedenhann’s case to be that
she reported directly to the Municipal Manager. Her contract
in any
event stipulates that she must report to the HOD. Clause 8.5 of her
contract stipulates that she shall be responsible and
accountable to
the Council for such duties and responsibilities in terms of the job
profile agreed upon. It cannot be read into
this clause as suggested
on her behalf, that it should be concluded that she was ‘
directly
accountable’
to the Municipal Manager. Equally so with clause 8.2, which
stipulates that she shall report to the HOD. It cannot be read into
that clause that she should only report to the HOD on a limited scale
and therefore not entirely accountable to him as suggested
on her
behalf.
[29]
Every
employee of the Municipality in whatever capacity is clearly
responsible and accountable to the Municipal Council. It would
therefore be untenable if all of them were to be assumed to be
‘
directly
accountable’
to the Municipal Manager based purely on the say-so of contractual
provisions, when the facts surrounding their employment and
reporting
lines indicate something else. From an administrative, hierarchical
and logistical point, it makes sense to conclude
that it cannot be
correct that Briedenhann was ‘
directly
accountable’
to the Municipal Manager within the meaning of section 56, when her
role and reporting line does not require of her to directly
report to
the Municipal Manager. This even makes more sense for the purposes of
discipline and performance management. In this
case for example, and
to the extent that Briedenhann was to be performance managed or
disciplined, how could it have been expected
of the Municipal Manager
to take steps in that regard when she was not accountable or did not
directly report to him or her. Thus,
the mere fact that in accordance
with clause 8.5 she is accountable to the Municipal Council, does not
imply that in terms of reporting
lines, she is directly accountable
to the Council either.
[30]
From
trite legal principles, and in view of the issues for determination
before the Arbitrator, an employee’s right not to
be unfairly
suspended is fully and only determined by the provisions of the
Labour Relations Act, subject to all the limitations
in the Labour
Relations Act. That right cannot therefore be implied into that
employee’s contract of employment or disciplinary
code or other
regulatory provisions dealing with suspensions
[21]
.
This principle was succinctly set out in
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[22]
as
follows
;
‘
The
right to a hearing prior to a precautionary suspension arises
therefore not from the Constitution, PAJA or as an implied term
of
the contract of employment, but is a right located within the
provisions of the LRA, the correlative of the duty on employers
not
to subject employees to unfair labour practices. That being the case,
the right is a statutory right for which statutory remedies
have been
provided together with statutory mechanisms for resolving disputes in
regard to those rights.’
[31]
In
line with the above, and to the extent that the issue for
determination before the Arbitrator was whether the suspension of
Briedenhann constituted an unfair labour practice within the meaning
of section 186 of the LRA or not, it follows that what was
before the
Arbitrator was whether the suspension was procedurally and
substantively fair. Thus, even if as argued on behalf of
Briedenhann
that an unlawful act may be procedurally and substantively unfair,
the enquiry, contrary to the Arbitrator’s
approach did not end
at whether the suspension was lawful or not in view of the dispute
referred and the primary issue he was called
upon to determine.
[32]
In
the light of the conclusions reached that Briedenhann could not on
the facts have been employed as a ‘
Senior
Manager’
or a
manager
directly accountable
to the Municipal Manager, the provisions of clause18
[23]
of her contract of employment merely provided a procedure to be
followed in effecting her suspension, read together with the
provisions
of clause 14 of the DPCCA.
[33]
In
so far as the suspension of Briedenhann was effected in accordance
with clause 18 of her contract of employment, and to the extent
that
it is concluded in this judgment that this was the correct procedure
to follow, on the substantive leg of the enquiry, the
nature of the
allegations of misconduct against Briedenhann were sufficiently and
in detail, set out in the notice of intention
to suspend her as
issued on 1 September 2015.
[34]
The
Municipality had on 7 and 11 September 2015,
furnished her with details in regard to the allegations, and
the
reasons her suspension was necessary.
I
am therefore satisfied that for the purposes of addressing a
prima
facie
case of alleged misconduct, the gravamen of the complaint was
sufficiently clear to Briedenhann for her to put a
prima
facie
case rebutting the allegations. There is further no reason to believe
that the allegations against Briedenhann were not serious
enough to
warrant her removal from the workplace pending further
investigations.
[35]
In
respect of the procedural leg of the enquiry, I did not understand
Briedenhann’s case to be that she seriously disputed
that she
was indeed notified of the intention to suspend her. She was invited
to a pre-suspension inquiry; was duly represented
at that enquiry;
and was furnished with sufficient details to enable her to make
representations as to why she should not be suspended.
She had also
made representations as to the reason she could not be suspended, and
was also furnished with detailed reasons for
her suspension. In the
light of these factors, I fail to appreciate how it can be said that
her suspension was unfair.
[36]
In
Member
of the Executive Council for Education North-West Provincial
Government v Gradwell
[24]
,
it was held that an opportunity to make written representations
showing cause why a precautionary suspension should not be
implemented,
will ordinarily be acceptable and adequate compliance
with the requirements of procedural fairness. In this case, and in
the light
of the factors already considered, I am of the view that
indeed there was not only adequate, but also substantial compliance
with
procedural fairness leading to Briedenhann’s suspension.
[37]
To
conclude then, senior employees that
do
not directly
report to the Municipal Manager, are not required to be granted a
hearing before the City Council in accordance with the Regulations
prior to being suspended, unless they satisfy the definition of
‘
senior
employee’
as contained in the Disciplinary Regulations for Senior Managers.
Equally so, the mere fact that an employee’s contract of
employment makes reference to the employment being in terms of
section 56 of the Systems Act, is not an end in itself. Such a
provision does not necessarily turn an employee into a ‘
senior
manager directly accountable’
to the Municipal Manager, unless the surrounding facts of that
employee’s employment dictate otherwise. To this end, the
decision reached by the Arbitrator that Briedenhann’s
suspension was either unfair or that the Municipality’s conduct
in suspending her was
ultra
vires
,
is a decision that does not fall within a band of reasonableness, and
thus ought to be set aside.
[38]
Further
in the light of the above conclusions and the material placed before
the Court, I am in agreement with the submissions made
on behalf of
the Municipality that the Court is in a position to finally dispose
of the matter. Given the circumstances of this
case, the most
appropriate relief to be granted is to review the Arbitrator’s
award and to substitute it rather than remitting
the matter back to
the First Respondent. I however have no grounds to interfere with the
Arbitrator’s order regarding costs
payable by the Municipality
to the First Respondent despite the latter not opposing the
application. This is so in that no case
was made out in the papers by
the Municipality in that respect. There is further upon a
consideration of the requirements of law
and fairness, no need for a
cost order to be made in respect of this application in the light of
the ongoing relationship between
the parties.
Order:
[39]
In
the premises, the following order is made;
1.
The
arbitration award issued by the Second Respondent dated
24 November 2015 under case number GPD 091508 is
reviewed,
set aside and substituted with an order that;
‘
The
precautionary suspension of Sanmarie Briedenhann did not constitute
an unfair labour practice within the meaning of section
186 (2) (b)
of the Labour Relations Act’
2.
The
Second Respondent’s award in respect of costs of the
arbitration payable by the Applicant stands.
3.
There
is no order as to costs in respect of this application.
__________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Adv. Zinhle Ngwenya with Adv. Greg Fourie
Instructed
by: Tshiqi Zebediela Inc
On
behalf of the Third Respondent: Mr. VG Mkwibiso of IMATU
[1]
Act 32 of 2000,
which provide that:
56. Appointment of managers
directly accountable to municipal managers
(1)
(a)
A municipal council, after consultation with the municipal manager,
must appoint
(i)
a
manager directly accountable to the municipal manager.
[2]
Also, clause 8.2,
which provides that;
‘
The
employee shall report to the Head of Department or his designated
person on such matters and furnish such information as the
Council,
may from time to time require’
[3]
Which provides
that;
‘
The
Employer may suspend the Employee or utilize him temporarily in
another capacity pending an investigation into alleged misconduct
if
the Municipal Manager or his authorized representative is of the
opinion that it would be detrimental to the interests of
the
Employer if the Employee remains in active service’
[4]
57 Employment
contract for municipal managers and managers directly accountable to
municipal manager
(1) A person to be appointed as the
municipal manager of a municipality, and a person to be appointed as
a manager directly accountable
to the municipal manager, may be
appointed to that position only –
(a) in terms of a written employment
contract with the municipality complying with the provisions of this
section; and
(b) subject to a separate performance
agreement concluded annually as provided for in subsection (2).
(2) The performance agreement
referred to in subsection (1)(b) must –
(a) (i) be concluded within 60 days
after a person has been appointed as the municipal manager or as a
manager directly accountable
to the municipal manager, failing which
the appointment lapses.”
[5]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC) at para 110
[6]
Section 138:
General
provisions for arbitration proceedings
(1) The commissioner may conduct the
arbitration in a manner that the commissioner considers appropriate
in order to determine
the dispute fairly and quickly, but must deal
with the substantial merits of the dispute with the minimum of legal
formalities.
[7]
Act 66 of 1995, as amended
[8]
Subsection (7):
Within
14 days of the conclusion of the arbitration proceedings -
(a) the commissioner must issue an
arbitration award with brief reasons, signed by that commissioner;
(b) the Commission must serve a copy
of that award on each party to the dispute or the person who
represented a party in the arbitration
proceedings; and;
[9]
See
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC)
at
para 33, where it was held that;
“
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. Provided the right question
was asked and answered by the arbitrator, a wrong answer will not
necessarily be unreasonable. By the same token, an irregularity
or
error material to the determination of the dispute may constitute a
misconception of the nature of the enquiry so as to lead
to no fair
trial of the issues, with the result that the award may be set aside
on that ground alone. The arbitrator however
must be shown to have
diverted from the correct path in the conduct of the arbitration and
as a result failed to address the
question raised for
determination.”
[10]
Notice 344, GG
34213 dd 21/04/2011
[11]
Pages 50 –
59 of Index to Pleadings
[12]
Page 14 of Index
to the Record vol 1
[13]
Albany Bakeries
Ltd v Van Wyk and Others (2005) 26 ILJ 2142 (LAC)
[14]
In reference to
SARS
v CCMA and Others (Kruger) (2016) 37 ILJ 655 (LAC)
at para 33, where it was held that;
‘
It bears
mention that, often, too much is made of the distinction between
substantive and procedural unfairness. The distinction
is a useful
forensic tool, not a principle of law creating two separate
concepts. The distinction ought not to be made to do
work which
distorts its usefulness. An unlawful act will always be, within the
Labour jurisprudence paradigm, both substantively
and procedurally
unfair. A lawful act
may
be
both substantively and procedurally unfair, and sometimes only one
or the other. Sometimes a defective and thus unfair
procedure may
taint an enquiry so as to prevent a fair decision on a substantive
issue from being taken. Sometimes, an unfair
procedure does not get
in the way of discerning a substantively fair dismissal.
[15]
Section 186:
Meaning of dismissal and unfair labour practice:
(1)…
(2)
`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;
[16]
Defined as’
municipal managers referred to in s 82(1) of the Municipal
Structures Act or s 56 of the Systems Act.’
[17]
Section 82 (1)
provides that;
Appointment
82. A municipal council must appoint—
(a) a municipal manager who is the
head of administration and also the accounting officer for the
municipality: and
(b) when necessary, an acting
municipal manager.
[18]
Local Government;
Disciplinary Regulations For Senior Manager, 2010 (Published under
Government Notice 344 in Government Gazette
34213, dated 21 April
2011 Chapter 1. Definitions under (1) (j).
See also (Regulations on the
Appointment and Conditions of Employment of Senior Managers on which
defines ‘senior manager’
as
‘
a municipal
manager or acting municipal manager, appointed in terms of section
54A of the Act, and includes a manager directly
accountable to a
municipal manager appointed in terms of section 56 of the Act’
[19]
17 January 2014
(GG No. 37245) (GN No. 21)
[20]
Dihlabeng Local
Municipality v Nthute and Others
[2009] JOL 23108
(O) at para 22
[21]
See
Mayaba
v Commission for Conciliation Mediation And Arbitration and Another
(J2204/2014) [2014] ZALCJHB 364 (19 September 2014
)
at para 35 and the authorities referred, more specifically,
South
African Maritime Safety Authority v McKenzie
2010 (3) SA 601
(SCA)
[22]
(2012) 33 ILJ 2033
(LAC) at para 39
[23]
Which states that;
‘
18.1 The
employer may suspend the employee on full pay if the employee is
alleged to have committed a serious misconduct and the
Employer
believes that the continued presence of the employee at the
workplace might jeopardise any investigation into the alleged
misconduct or endanger the well-being or safety of any person or
municipal property provided that before the employee is suspended
as
a precautionary measure, he/she must be given an opportunity to make
representation on why he/she should not be suspended.
18.2 The employee who is to be
suspended must be notified, in writing, of the reasons for his/her
suspension simultaneously or
at the latest within 24 hours after the
suspension. The employee shall have the right to respond within 7
(seven) working days.
18.3 If the employee is suspended as
a precautionary measure, the employer must hold a disciplinary
hearing within 90 (ninety)
days of the date of suspension, provided
that the chairperson of the hearing may extent such period, failing
which the suspension
must be terminated in writing and the employee
must return to full duty’
[24]
[2012] 33 ILJ 2033
(LAC
)
at para 44