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[2017] ZALCJHB 464
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Mogale City Local Municipality v SAMWU obo Tafu and Others (JR2959/12) [2017] ZALCJHB 464 (12 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 2959/12
In the matter between:
MOGALE CITY LOCAL MUNICIPALITY
First Applicant
and
SAMWU obo VICTOR TAFU
First
Respondent
COMMISSIONER ML MATLALA
N.O
Second
Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL
Third
Respondent
Heard:
24 November
2016
Delivered:
12 December 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1] The
applicant, Mogale City Local Municipality (Municipality) seeks an
order reviewing and setting aside the arbitration award
issued on
5 November 2015 by the second respondent, Commissioner M.L
Matlala
N.O
(Commissioner). The first respondent, South
African Municipal Workers’ Union (SAMWU) opposed the
application on the merits,
but contended that the application can be
disposed of
in limine
, on the basis that it is deemed to have
been withdrawn and/or lapsed in terms of the provisions of the
Practice Manual of this
Court. In the alternative, SAMWU contended
that the application ought to be dismissed on account of lack of
timeous prosecution;
and further that the Municipality failed to seek
condonation for the late filing of the record, the Rule 7A (8)
Notice, and the
replying affidavit.
Background:
[2] SAMWU
acts on behalf of Mr Victor Tafu (Tafu), who was in the
Municipality’s employ until his dismissal on 4 August 2009.
He was dismissed following upon a disciplinary enquiry into
allegations of misconduct pertaining to corruption, bribery and gross
dishonesty. SAMWU challenged Tafu’s dismissal at the third
respondent, the South African Local Government Bargaining Council
(SALGBC), and when conciliation failed, the matter came before the
Commissioner, who had found that the dismissal of Tafu was both
substantively and procedurally unfair.
[3] The
Commissioner’s finding on substantive fairness was based on the
conclusions that the Municipality had acted inconsistently
in
disciplining and dismissing Tafu, and further that the sanction of
dismissal was ‘too harsh’. The procedural unfairness
finding was made on the grounds that the Municipality had contravened
the provisions of the Collective Agreement specifically in
relation
to the time period within which the Municipality was required to
institute disciplinary proceedings upon charges being
preferred
against Tafu. In the light of these findings, the Municipality was
ordered to reinstate Tafu in its employ, and to further
pay him
retrospective pay equivalent to 36 months’ salary.
[4] On
6 November 2012, the Municipality had launched this review
application. SALGBC had filed the record of proceedings
with the
Court on 8 January 2012, and the Notice in terms of Rule 7A
(8) (a) was filed on 20 October 2014.
The answering
affidavit was filed on or about 3 November 2014. A replying
affidavit was then filed on or about 12 November 2013.
The
preliminary points:
[5]
SAMWU’s contention was that the transcribed record of
proceedings was made available to the Municipality’s attorneys
of record on 28 and 29 January 2013, and nothing was done
until October 2013. There is a dispute in regard to the
net
effect of the judgment delivered by Lallie J on 16 February 2016.
The Municipality’s contention is that the
judgment disposed of
any issues surrounding the late filing of the record of proceedings,
or whether the review application ought
to be deemed to have been
withdrawn.
[6] In
the application that came before Lallie J, SAMWU had sought an order
in terms of which the review application was to be deemed
withdrawn
as a consequence of lack of timeous prosecution of that application.
Lallie J had found that since SAMWU had based its
application on the
provisions of Clause 11.2 of the Practice Manual, its application
could not succeed, as those provisions did
not apply retrospectively
to the review application in question. The application was
accordingly dismissed.
[7] My
understanding of Lallie J’s order is that the application to
have the review application deemed as withdrawn on account
of a lack
of timeous prosecution was disposed of. It would therefore be
irregular to revisit the issue in the face of that standing
order.
The other preliminary issue pertains to the late filing of the
replying affidavit in the review application. An application
for
condonation in this regard was filed by the Municipality on
27 July 2016, some 30 months since the replying affidavit
was filed.
[8] In
seeking condonation, the Municipality contended that upon SAMWU
having filed the answering affidavit on 3 November 2014,
the replying affidavit was due on 10 November 2014. Its
attorneys of record had timeously prepared the replying affidavit
and
had provided same to the Municipality’s Executive Manager for
commissioning on 6 November 2014. However, due
to other
urgent matters to be attended to, the commissioning of the affidavit
only took place on 13 November 2014, and
was filed on the
same day.
[9] In
regards to the late filing of the application for condonation, this
according to the Municipality, was attributable to the
fact that a Mr
Skhosana from the firms of its attorneys of record, who was
responsible for handling the matter, had left
the firm. It was
contended that as a result of Mr Skhosana having left, SAMWU’s
objection to the late filing of the replying
affidavit was not
discovered until June 2016 when preparations were being made for
the hearing of the review application.
[10]
The principles applicable to
applications for condonation are trite as well articulated in
Melane
v Santam Insurance Co. Ltd
[1]
.
The
Constitutional Court in
Brummer
v Gorfil Brothers Investment (Pty) Ltd
[2]
and
Grootboom
v National Prosecuting
Authority
[3]
confirmed
that in considering whether condonation should be granted,
the
test to apply is that of the interests of justice, which must be
determined with reference to all relevant factors including
those
identified in
Melane
.
Thus, since the relevant factors were to be considered were
inter-related,
even
if it was found that the explanation for the delay did not constitute
a reasonable explanation, it would not necessarily be
regarded as an
absolute bar to condonation. What was needed was an objective
conspectus of all the facts, as the importance of
the issue and
strong prospects of success may compensate for a long delay
[4]
.
[11] In
this case, it was common cause that the delay in filing the replying
affidavit was a mere three days, which can hardly be
considered
excessive. In the light of the merits of this review application
which are to be discussed later in this judgement,
the court is
prepared to accept the explanation proffered for the delay in that
regard. The matter nonetheless does not end at
that point.
[12] It
is trite that the duty is upon the applicant to file an application
for condonation as soon as the need to do so arises,
or where it is
brought to its attention that such an application was necessary. It
is further trite that condonation cannot be
had for the mere asking,
and a party seeking condonation must make out a case entitling it to
the court’s indulgence. It
must show sufficient cause. This
requires a party to give a full and detailed account or explanation
for the delay, more specifically
the reason why such an application
was not filed when the need to do so became apparent.
[13] In
opposing the application for condonation, it was submitted on behalf
of SAMWU that the Municipality was made aware as far
back as
18 November 2014 that an application for condonation was
required. The Municipality had only filed such an application
in
July 2016, and some six days prior to the set-down date. The
Municipality does not deny having become aware of the need
to file
the application as far back as November 2014. It nonetheless
proffered a flimsy explanation why it had taken it about
30 months to
file the condonation application. The internal workings of the
Municipality’s attorneys of record cannot by
any account be a
reasonable explanation for the delay. The fact that Mr. Skhosana had
not done a proper hand-over when he left
the firm cannot be an
acceptable excuse. Be that as it may, in the light of the merits of
the review application and the insignificant
delay in filing the
replying affidavit itself, it would not be in the interests of
justice to deny condonation in this case. The
Municipality
nonetheless must be burdened with the costs of the application for
condonation, as it had compelled SAMWU to oppose
it in circumstances
where it was unnecessary, after being warned that such an application
was necessary. A cost order is even more
appropriate where the
application for condonation was filed a mere six days before the
hearing date, and SAMWU was afforded little
time to file an
opposition.
The
review application:
[14] Tafu
was employed with effect from 20 May 1986 as a Data
Inspector (Meter Reader Inspector) in the Municipality’s
Meter
Reading Unit. The charges that led to his dismissal were framed as
follows;
‘
Charge
1: Corruption/Act of bribery
1.1
You are guilty of
corruption of an act of bribery in that on or about February and
April 2008, you took an amount of R7 000.00 from
Mr and Mrs Swanepoel
(complainants) thereby promising to settle the municipality account
and cancelling all the interest that have
accrued to their account.
Charge
2. Gross Dishonesty.
2.1
You are guilty of gross dishonesty in that on or about February and
April 2008
you took an amount of R7 000.00 from Mr and Mrs Swanepoel
(complainants) thereby promising to settle the municipality account
and
cancelling all interest that have accrued to their account’
[15] At
the arbitration proceedings, Tafu had challenged the substantive
fairness of his dismissal on the grounds that he did not
contravene a
rule or standard. He had denied having received any money from the
complainants. He had contended that his colleague,
Mr William
Mogomotsi, had received the amounts in question from the Swanepoels,
and had spent it on his wife’s medical treatment.
Tafu had
further complained that the sanction of dismissal was inappropriate
and harsh. In the alternative, his assertion was that
Mogomotsi, who
had received the money in question from the Swanepoels, and had
subsequently repaid it, was not dismissed. Mogomotsi
was instead
allowed to take early retirement, and the Municipality did not
therefore apply discipline consistently.
[16] Tafu
further challenged the procedural fairness of his dismissal on the
basis that the Municipality failed to adhere to the
provisions of the
Collective Agreement in disciplining and dismissing him. In this
regard, he complained that in terms of clause
13.3 of the Agreement,
an employee could only be suspended for a period of three months, and
if the Municipality could not comply
with the time frames, it ought
to have sought an extension of those time periods. Tafu’s
contention was that he was suspended
for a period of over three
months and the Municipality had not sought an extension. He further
complained that in terms of clause
6.5.9 of the Agreement, the
Municipality was required to prefer charges against him within a
period of 5 and 15 days, and had not
done so. He had further
contended that even though he was afforded an appeal, he was not
granted the opportunity to state his case
as no appeal hearing was
held.
The
evidence at arbitration proceedings:
[17] Six
witnesses had testified on behalf of the Municipality at the
arbitration proceedings. These were Ms. M. Tshoane, the Manager:
Revenue, under whose department Meter Reading fell; Mr B.E Baloyi,
the Municipality’s Operations Accountant (Meter Reading
and
Billing), and supervisor of all Meter Reading inspectors; Mr J.
Baloyi, who had investigated the incident; Mr L Phungo, the
incident
investigator and ‘prosecutor’; Mr T Tebjani, the
Municipality’s Manager: Credit Control and Client Services;
Mr
N P Matodzi; and Mrs Swanepoel (the complainant). Tafu was the sole
witness in his own case. The evidence led can be summarised
as
follows;
[18] Tafu
or any of the Meter Reading Inspectors in terms of their job
description, were not allowed to approach residents to make
any
arrangement with them for payment of services or settling of
Municipality accounts. Arrangements to settle outstanding debts
in
respect of services could only be made with the credit
control/accounts department of the Municipality. Tafu was well aware
of his role, as well as policies and procedures pertaining to
Anti-Fraud and Corruption.
[19] Upon
receipt of an affidavit from the Swanepoels in which they had alleged
that money was taken from them with a promise that
their municipal
account will be dealt with, the matter was investigated. It was
discovered that the Swanepoels had indeed paid
an amount of R7000.00
to Mogomotsi, with the understanding or undertaking that their
municipality account would be settled. The
Swanepoels were also
interviewed during investigations, and they had informed the
investigators that indeed they were behind with
their municipality
payments. Mogomotsi had approached them and introduced Tafu to them
as someone who worked in the accounts unit
of the Municipality, and
they were assured that their electricity would not be switched off
upon payments of the R7000.00 amount,
which they had then paid.
[20] Mrs
Swanepoel’s testimony at the arbitration proceedings was that
he and her husband had an outstanding amount of R73
000.00 in rates
and taxes owed to the Municipality. She confirmed that Mogomotsi had
introduced Tafu to them as someone who worked
in the accounts
department in the Municipality, and who could assist them in freezing
or waiving the interests on the amounts owed
to the Municipality.
Mogomotsi and Tafu had presented her with a document which purported
to be an official document of the Municipality.
She had completed and
signed the form, which was also signed by Tafu. Her expectation was
that upon making payments as requested
by Mogomotsi and Tafu, her
outstanding account with the Municipality would be settled.
[21]
Payments by the Swanepoels were made in instalments of R5000.00 which
was first paid to Mogomotsi who came alone to the Swanepoels’
residence. The balance of R2000.00 was paid to Mogomotsi in the
presence of Tafu when they came to the Swanepoels’ residence
for the second time. Mrs Swanepoel was to later discover that the
amounts she had paid were never credited into her municipality
account. She had then approached Mogomotsi and Tafu to pay her back,
and it was only after she had approached the Municipality’s
Ms
Tshoane that she was advised to submit her allegations in writing.
[22] Mrs
Swanepoel had further testified that both Mogomotsi and Tafu came to
her house to ask her not to open a case against them
at the
Municipality. She had testified that the two had harassed and
intimidated her. She confirmed that they had paid back her
money in
instalments in December 2008 and January 2009. This however was after
she had reported the matter to the Municipality.
[23] Tafu
in his defence denied any wrong-doing. He had testified that as a
data inspector, it was his duty to assist residents
with problems in
making payments on their outstanding accounts. He confirmed having
went to the Swanepoels’ residence on
no less than ten occasions
with Mogomotsi. The reason for the visit was to enquire about their
outstanding municipality account.
They had then dropped off a form,
which was to be completed for the purposes of making payment
arrangements with the Municipality.
He had also signed that document
after it was completed by Mrs Swanepoel, and had informed her to call
him when they had the money
so that he could refer them to the credit
control department to make arrangements for payments. He had denied
having received any
money from Mrs Swanepoel, and contended that when
the first amount was paid, he was in the Eastern Cape, and that he
only heard
of the second payment in the internal disciplinary
enquiry. He had denied having harassed or intimidated Mrs Swanepoel.
The
award:
[24] In
the award, the Commissioner having had regard to the Code of Good
Practice as contained in Schedule 8 of the LRA concluded
that Mrs
Swanepoel ‘was unable to prove that Tafu received any money’,
as it was only Mogomotsi that was given the
money. The Commissioner
however concluded that Tafu was an accomplice to corruption as a
result of his conduct in accepting that
he was in accounts at the
Municipality and that he would assist Mrs Swanepoel with her account;
assisting Mrs Swanepoel in completing
and signing the form; giving
back money to Mrs Swanepoel; and asking Mrs Swanepoel not to open a
case against him and Mogomotsi.
Tafu was found to have been aware of
the Municipality’s rules and policies, and had contravened the
rules that required of
him to act in good faith and in the interests
of the employer in ‘handling the Swanepoel issue’;
[25] In
regard to consistent application of standards and rules, the
Commissioner found that since both Mogomotsi and Tafu were
involved
in the same misconduct, it was inconsistent for the Municipality to
dismiss Tafu and yet allow Mogomotsi to take early
retirement, which
was approved in August 2009, and long after Tafu was dismissed. The
Municipality therefore was inconsistent in
its application of
discipline, particularly in regard to sanction.
[26] In
regard to procedural fairness of the dismissal, the Commissioner
concluded that since Tafu’s suspension exceeded three
months
contrary to the provisions of clause 13.3 of the Collective
Agreement, he should have challenged it by referring an unfair
labour
practice dispute.
[27] In
regard to the provisions of clause 6.5.7 of the Collective Agreement
which required the Municipality to institute disciplinary
proceedings
within 5 to 15 days from the date of the notice of misconduct, the
Commissioner found that since the Municipality did
not institute such
processes within the time frames stipulated, and further since there
was no agreement to extend the period,
Tafu’s dismissal was
also procedurally unfair. The unfairness was also compounded by the
fact that although he was allowed
to appeal, he was not afforded an
opportunity of an appeal hearing.
The
grounds of review and evaluation:
[28]
It is settled law that an
arbitration award will be susceptible to a review under the
provisions of section 145 of the LRA if it
does not fall within the
range of decisions which a reasonable decision-maker could have made
in the circumstances
[5]
.
The Labour Appeal Court in
Head
of the Department of Education v Mofokeng
[6]
provided the
following exposition of the review test:
‘
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’.
[29] In
this case, central to the Commissioner’s findings on the
substantive fairness of Tafu’s dismissal was whether
the
Municipality had consistently applied discipline in the light of Tafu
being dismissed whilst his accomplice, Mogomotsi was
allowed to take
early retirement.
[30]
The Municipality attacked the
award on the basis that the Commissioner misconceived the nature of
the enquiry in regard to the parity
principles or failed to undertake
the enquiry in a proper manner, or in the alternative, applied the
principles in that regard
rigidly. The principles surrounding
inconsistency, or the so-called parity principle as were well
articulated in
SACCAWU and
Others v Irvin and Johnson (Pty) Ltd
[7]
and other authorities can be summarised as follows;
a)
The
Courts have distinguished two forms of inconsistency, viz, historical
and contemporaneous inconsistency. The former requires
that an
employer apply the penalty of dismissal consistently with the way in
which the penalty has been applied to other employees
in the past;
whilst the latter requires that the penalty be applied consistently
as between two or more employees who commit the
same misconduct
[8]
.
b)
T
he
concept of parity, in the juristic sense, denotes a sense of fairness
and equality before the law, which are fundamental pillars
of
administration of justice
[9]
.
c)
Employees
must be measured against the same standards, i.e. like cases should
be treated alike
[10]
, and in
determining sanction in respect of employees involved in the same
misconduct, the employer must not be capricious, or act
arbitrarily
or be influenced by improper motives or discriminatory policies;
[11]
.
Thus, a value judgment must always be exercised, and the principle
should neither be applied rigidly
[12]
,
nor willy-nilly without any measure of caution
[13]
.
d)
When
deciding the issue of parity, the gravity of the misconduct of the
employee who seeks to rely on that principle should receive
serious
attention
[14]
.
e)
A claim of
inconsistency can never succeed where an employer is able
to differentiate between employees who committed
similar
transgressions on the basis of,
inter
alia
, differences in
personal circumstances, the severity of the misconduct or on the
basis of other material factors.
f)
Thus,
in appropriate cases an employer may be justified in differentiating
between two employees guilty of the same transgression
on the basis
of their personal circumstances or on the merits of their respective
cases
[15]
.
g)
while
the parity principle is an important factor to take into account in
the determination of the fairness of a dismissal, it is
only a factor
to take into account, and is by no means decisive of the outcome on
the determination of reasonableness and fairness
of the decision to
dismiss. The fact that another employee committed a similar
transgression in the past and was not dismissed
cannot, and should
not, be taken to grant a licence to every other employee,
willy-nilly, to commit serious misdemeanours, especially
of a
dishonest nature, towards their employer on the belief that they
would not be dismissed. The parity principle was never intended
to
promote or encourage anarchy in the workplace
[16]
[31]
Whether the Commissioner applied the principles related to
inconsistency rigidly as submitted on behalf of the Municipality
ought to be determined within the context of the overall evidence
placed before him in relation to the charges preferred against
Tafu.
[32]
There can be no doubt that the allegations against Tafu were indeed
serious, and the Commissioner glibly touched on this issue
in the
award. I did not understand the Commissioner’s reasoning to be
that the Municipality had not discharged its onus in
regard to the
charges. This understanding arises from the Commissioner’s
finding that the dismissal was ‘too harsh’,
a conclusion
that can only be made in circumstances where misconduct has been
established. Equally so, a conclusion that the employer
did not act
consistently in dismissing an employee can only be in reference to a
finding that indeed misconduct was committed.
[33]
The conclusion therefore that
Mrs Swanepoel ‘was unable to prove that Tafu received any
money’ is clearly a misconception
of the enquiry and a
misdirection. The onus was not upon Mrs Swanepoel to prove anything
against Tafu. The Commissioner’s
duty in this regard was merely
to look at the versions of Mrs Swanepoel and Tafu, and to make a
determination as to which one was
more probable, reliable or credible
in line with the principles and approach proposed in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Kie SA
and Others
[17]
.
The Commissioner clearly failed in his duties in this regard.
[34]
Tafu and Mogomotsi had
clearly indulged themselves in corrupt and grossly dishonest
activities by soliciting money from vulnerable
members of the
community which the Municipality served. They did so with a false
promise that their outstanding municipality accounts
would be
settled. Tafu was charged with dishonesty amongst other things.
Dishonesty
entails a lack of integrity or straightforwardness and, in
particular, a willingness to steal, cheat, lie or act
fraudulently
[18]
.
It was apparent from the
evidence led on behalf of the Municipality that both Tafu and
Mogomotsi were not authorised to make any
arrangements with residents
regarding payment of outstanding accounts. They had nonetheless
misrepresented themselves to the Swanepoels,
or at least represented
Tafu as a person from the Municipality’s accounts division who
could make any such arrangements.
[35] What
is further apparent is that between Mogomotsi and Tafu, they took
money from Swanepoel for their own personal benefit.
Contrary to the
Commissioner’s conclusions, the probabilities favoured a
finding that indeed Tafu had taken money from Swanepoel,
together
with Mogomotsi. Tafu had presented a mere denial, in the face of
Swanepoel’s evidence that money was handed to Mogomotsi
and
Tafu on two separate occasions. On the first occasion, Mogomotsi was
on his own when he was handed over the money, but had
on Swanepoel’s
version, contacted Tafu who was then in the Eastern Cape to inform
him that the money was handed over. Tafu
had confirmed that he was
indeed in the Eastern Cape when Mogomotsi received the payment on the
first occasion. On the second occasion,
Swanepoel’s version was
that Tafu was present when money was handed over, whilst the latter
presented a mere denial.
[36] Even
if the money was not handed over personally to Tafu, there can be no
doubt that he was part of this shameful episode throughout.
It was
established that he was party to the fleecing of money out of the
Swanepoels as he had presented himself as a person from
the
Municipality’s accounts division. He had also facilitated
corrupt activities by attaching his signature to what appeared
to an
official document from the Municipality with the aim of getting money
out of Swanepoel. Furthermore, even if he was not with
Mogomotsi when
he received the money from Swanepoels at all material times, he was
present when the money was repaid, and was further
present when the
Swanepoels were harassed and intimidated into not pursuing charges or
complaints against them. Had the Swanepoels
not lodged a complaint,
both Tafu and Mogomotsi would have got away with their dishonest
conduct. The fact that they had returned
the money to the Swanepoels
is of no consequence.
[37] The
Commissioner pointed out that Tafu did not act in the best interests
of the Municipality ‘in handling the Swanepoel’
issue.
The conduct in question was not merely about the ‘Swanepoel
issue’. It was about the fact that the Municipality’s
employees had committed vile acts of misconduct in its name, which
conduct was deserving of a summary dismissal.
[38] The
Municipality is there to provide a service to members of the
community, and to ensure that it gets revenue due to it in
the form
of rates and taxes. This is crucial for the Municipality to sustain
its service delivery programmes. If the Municipality’s
own
employees tasked with ensuring that revenue is secured through the
proper collection of rates and taxes derail the Municipalities’
programmes in that regard, especially by fleecing money out of
unsuspecting and vulnerable residents, the Municipality would be
failing in its duties if it does not deal harshly with such
individuals. There is an obligation on the Municipality to protect
its own integrity in its dealings with communities, and to protect
communities from its own employees, who act nefariously in its
name.
The conduct in question clearly impacted on the reputation and
integrity of the Municipality.
[39] It
is in the light of the above that the Commissioner’s
conclusions in regard to the Municipality alleged inconsistent
application of discipline is found to be extraordinarily baffling. An
allegation of inconsistent application of discipline as already
alluded to in the authorities referred to elsewhere in this judgment
is not on its own a license to immunity. This is even moreso
in
circumstances where the misconduct in question is not only gross but
also criminal in nature. It is apparent that the Commissioner
was
clearly blindsided by the allegation of inconsistency raised by Tafu,
and had ignored all other relevant material before him,
including the
seriousness of the misconduct in question and its impact on the
employment relationship. The fact that Mogomotsi
was not disciplined
at the time on account of his terminal illness as attested to by
Matodzi, or that he had applied for medical
boarding is but one of
the considerations that the Commissioner could take into account in
determining whether the Municipality
had applied discipline
consistently. Mogomotsi’s own personal circumstances may have
been persuaded the Municipality to act
leniently against him. I agree
with Ms. Ralehoko’s submission that the excuse given at the
time for not disciplining Mogomotsi
is feeble in the extreme,
especially in the light of the allegations of misconduct against him.
Even if there was no justification
at the time to indemnify
Mogomotsi,
it
was nonetheless not in dispute that he was ultimately charged on 31
August 2009,
albeit
his
medical boarding had been approved as at 13 July 2009.
[40]
Even if there might be merit in
the allegation that the Municipality applied discipline
inconsistently, it remained a fact that
as a result of the misconduct
in question, Tafu’s continued employment by the Municipality
posed a considerable operational
risk to it, as he could no longer be
trusted to carry out his duties and serve members of the public with
honesty and integrity.
His and Mogomotsi’s conduct had caused
harm to the Municipality and to the Swanepoels
[19]
.
[41] What
is even more significant in this case is that it does not appear
anywhere in the record that Tafu felt or expressed any
shame in what
he and Mogomotsi had done. He instead sought to contrive an
explanation which was inherently implausible in the light
of the
direct evidence of Mrs Swanepoel. For him and Mogomotsi not only to
take money from the Swanepoels, who were trusting, and
to thereafter
harass and intimidate them into not pressing a case against them was
shameless in the extreme. At no stage did it
appear that Tafu had
shown any contrition for his conduct.
[42]
The Municipality’s contentions therefore that the
Commissioner rigidly applied the concept of inconsistency, and failed
to
take into account other factors or considerations in concluding
that the dismissal was unfair have merit. A claim of inconsistency
on
its own is not sufficient to exculpate an employee involved in
serious forms of misconduct, which was not only shameful but
criminal
in nature. The Commissioner’s conclusions therefore that the
dismissal was harsh are conclusions which a reasonable
decision maker
would not have arrived at in the light of the material before him.
The failure by the Commissioner to take into
account all relevant
factors in a determination of whether the dismissal was fair
constituted an irregularity and a misdirection.
This misdirection and
irregularity in the determination of the dispute constituted a
misconception of the nature of the enquiry,
particularly since the
Commissioner failed to address the central questions raised for
determination. In the end,
the award ought to be
reviewed and set aside, as the distorting effect of the misdirection
in question rendered the result of the
award unreasonable
.
[43] In
regard to the issue of procedural fairness, I did not understand from
Ms. Ralehoko’s submissions to be that the Commissioner’s
findings in that regard were still being defended. Even if the
decision of the Commissioner was to be defended, he had correctly
pointed out that the suspension of Tafu over a period of three months
contrary to the provisions of the Collective agreement was
a matter
that he ought to have referred to the SALGBC as an unfair labour
practice, and had not done so. The finding nonetheless
that the
failure to institute disciplinary proceedings timeously constituted
unfairness cannot be sustained, especially in the
absence of
prejudice being shown by Tafu.
[44] The
mere failure to comply with timelines in the institution of
disciplinary proceedings cannot on its own lead to unfairness.
At
worst, it may lead to an inconvenience. This however does not even
appear to be the case in this matter as based on the evidence
of
Phungu, the initiator, Tafu was notified of the charges against him
on 28 May 2009. The disciplinary enquiry was scheduled for
2 June
2009.The mere fact that proceedings were subsequently adjourned or
postponed over time until their finalisation on 27 July
2009 cannot
by all accounts lead to a conclusion that those proceedings were
unfair.
[45]
Equally so with the internal appeal, it was common cause that Tafu
had lodged such an appeal. It appears that central to the
Commissioner’s award in this case was that Tafu had merely
lodged an appeal and the Municipality therefore acted procedurally
unfair in that it did not afford him an appeal hearing. The
Commissioner nonetheless overlooked the fact that upon lodging an
appeal, Tafu had also referred a dispute to the SALGBC, and thus on
the Municipality’s version, waived his right to an appeal
hearing. The finding on procedural unfairness is equally flawed and
not reasonable. It therefore ought to be set aside.
[46]
Voluminous records of the proceedings were placed before the Court,
and given the protracted nature of this matter, no purpose
would be
served by remitting it back to the SALGBC. In the circumstances, it
would be appropriate for the Court to substitute the
findings of the
Commissioner.
[47] I
have had regard to considerations of law and fairness in regard to
the issue of costs. Other than the costs related to the
application
for condonation for the late filing of the replying affidavit to the
review application, I am of the view that no further
order as to
costs is warranted.
Order:
[48]
Accordingly, the following order is made;
1.
The late filing of the replying affidavit to the review application
is condoned.
2.
The applicant is ordered to pay to the First Respondent, the
costs of
the application for condonation for the late filing of the replying
affidavit.
3.
The arbitration award issued by the Second Respondent under
case
number GPD080923 dated 5 November 2012 is reviewed, set
aside and substituted with an order that;
‘
The
dismissal of Mr V. V Tafu by Mogale City Local Municipality on 4
August 2009 was procedurally and substantively fair’
4.
There is no order as to costs in respect of the review application.
____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the First and Second Applicants:
Adv. H.W Sibuyi
Instructed
by
:
Phungo INC
For
the First Respondent:
Ms. T. Ralehoko of Cheadle Thompson & Haysom Attorneys
[1]
1962
(4) SA 531
(A) at 532B-E,
where
it was held that;
‘
In
deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor, the
prospects of success and the importance of the case. Ordinarily
these facts are interrelated, they are not individually decisive,
save of course that if there are no prospects of success there
would
be no point in granting condonation. Any attempt to formulate a rule
of thumb would only serve to harden the arteries of
what should be a
flexible discretion. What is needed is an objective conspectus of
all the facts. Thus a slight delay and a good
explanation may help
to compensate prospects which are not strong. Or the importance of
the issue and strong prospects may tend
to compensate for a long
delay. And the Respondent’s interests in finality must not be
overlooked”
[2]
[2000] ZACC 3
;
2000 (2) SA 837
(CC).
[3]
2014
(2) SA 68
(CC)
at
para 50 - 51
[4]
Khosa v Absa Bank Limited
(JA55/2013)
[2015] ZALCJHB 1 (15 January 2015)
at
para 10
[5]
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
;
2008 (2) SA
24
(CC); (2007) 28 ILJ 2405 (LAC)
at para 110.
[6]
[2015] 1
BLLR 50
(LAC
)
at para 33.
[7]
(1999) 20 ILJ 2302 (LAC)
at para 29, where it was held that;
‘
In
my view too great an emphasis is quite frequently sought to be
placed on the principle of disciplinary consistency, also called
the
‘parity principle’ … There is really no separate
principle involved. Consistency must be measured by the
same
standards … Discipline must not be capricious. It really is
the perception of bias inherent in selective discipline
that makes
it unfair. Where, however, one is faced with a large number of
offending employees, the best one can hope for is reasonable
consistency. Some inconsistency is the price to be paid for
flexibility, which requires the exercise of a discretion in each
individual case. If a chairperson conscientiously and honestly, but
incorrectly, exercises his or her discretion in a particular
case in
a particular way, it would not mean that there was unfairness to the
other employees. It would mean no more than his
or her assessment of
the gravity of the disciplinary offence was wrong. It cannot be fair
that other employees profit from that
kind of wrong decision. In a
case of plurality of dismissals, a wrong decision can only be unfair
if it is capricious, or induced
by improper motives or, worse, by a
discriminating management policy … Even then I dare say that
it might not be so unfair
as to undo the outcome of other
disciplinary enquiries. … If, for example, one member of a
group of employees who committed
a serious offence against the
employer is, for improper motives, not dismissed, it would not …
necessarily mean that the
other miscreants should escape. Fairness
is a value judgment.’
[8]
Southern Sun Hotel
Interests (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others (2010) 31 ILJ 452 (LC)
at para [10]
[9]
ABSA Bank Limited v Naidu
and Others
[2015] 1 BLLR 1
(LAC)
at para [37]
[10]
National Union of
Metalworkers of SA and Others v Henred Fruehauf Trailers (Pty) Ltd
(1994) 15 ILJ 1257 (A) at 1264A-D. See also
NUM
and another v Amcoal Colliery t/a Arnot Colliery and Another
[2000]
8 BLLR 869(LAC)
“
The
parity principle was designed to prevent unjustified selective
punishment or dismissal and to ensure that like cases are treated
alike. It was not intended to force an employer to mete out the same
punishment to employees with different personal circumstances
just
because they are guilty of the same offence”.
[11]
See
National Union of
Mineworkers, obo Botsane v Anglo Platinum Mine (Rustenburg Section)
(JA2013/42)
[2014] ZALAC 24
(15 May 2014)
at para 25 where the LAC held that:
‘
The
idea of inconsistency in employee discipline derives from the notion
that it is unfair that like are like are not treated
alike. The core
of this ‘factor’ in the application of employee
discipline (it would be a misconception to call it
a principle) is
the rejection of capricious or arbitrary conduct by an employer.’
[12]
SACCAWU and Others v Irvin
and Johnson (Pty) Ltd
at
2313C-J where Conradie JA held that;
“…
Consistency
is therefore not a rule unto itself, but rather an element of
fairness that must be determined in the circumstances
of each
case....
[13]
ABSA Bank Limited v Naidu
at para [36]
[14]
Hulett Aluminium (Pty) Ltd
v Bargaining Council for the Metal Industry and Others (2008) 29 ILJ
1180 (LC)
at para [36]
[15]
Southern Sun Hotel
Interests (Pty) Ltd v CCMA &
others
[2009] 11 BLLR 1128
(LC). See also
Early
Bird Farms (Pty) Ltd v Mlambo
[1997] 5 BLLR 541
(LAC),
and
SATAWU & Others v
Ikhwezi Bus Service (Pty) Ltd (2009) 30 ILJ 205 (LC)
where it was held that an employer is indeed entitled to impose
different penalties on different employees who had committed
the
same misconduct, provided there was a fair and objective basis for
doing so.
[16]
Absa Bank Limited v Naidu
and Others
at para 23
[17]
2003 (1) SA 11
(SCA)
para 14I–15E, where it was held that;
'To
come to a conclusion on the disputed issues a court makes findings
on (a) the credibility
of
the various factual witnesses; (b) their reliability; and (c) the
probabilities. As to (a), the court's finding on the credibility
of
a particular witness will depend on its impression about the
veracity
of the witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance,
such as (i) the
witness' candour and demeanour in the witness-box, (ii) his bias,
latent and blatant, (iii) internal contradictions
in his evidence,
(iv) external contradictions with what was pleaded or put on his
behalf, or with established fact or
with
his own extracurial statements or actions, (v) the probability or
improbability of particular
aspects
of his version, (vi) the calibre and cogency of his performance
compared to that of other witnesses testifying about the
same
incident or events. As to (b), a witness' reliability will depend,
apart from the factors mentioned under (a) (ii), (iv)
and (v) above,
on (i) the opportunities he had to experience or observe the event
in question and (ii) the quality, integrity
and independence of his
recall thereof. As to (c), this necessitates an analysis and
evaluation
of the probabilities and improbabilities of each party's version on
each of the disputed issues. In the light of its
assessment of (a),
(b) and (c) the court will then, as a final
step,
determine whether the party burdened with the onus of proof has
succeeded in discharging it. The hard case, which will doubtless
be
the rare one, occurs when the court's
credibility
findings compel it in one direction and evaluation of the general
probabilities in another. The more convincing the
former, the less
convincing will be latter. But when all factors are equipoised
probabilities prevail.’
[18]
Nedcor
Bank Ltd v Frank and others (2002) 23 ILJ 1243 (LAC).
[19]
See
Sidumo
at [78] where it was held that;
“
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He
or she
will necessarily take into account the importance of the rule that
had been breached. The commissioner must of course
consider
the reason the employer imposed the sanction of dismissal, as he or
she must take into account the basis of the employee’s
challenge to the dismissal. There are other factors that will
require consideration. For example, the harm caused by the
employee’s
conduct, whether additional training and
instruction may result in the employee not repeating the misconduct,
the effect of dismissal
on the employee and his or her long-service
record. This is not an exhaustive list”