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[2017] ZALCCT 38
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City of Cape Town v IMATU obo Bronkhorst and Others (C241/16) [2017] ZALCCT 38 (22 August 2017)
Not
reportable
Of interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 241/16
In
the matter between:
CITY OF CAPE TOWN
Applicant
and
IMATU
OBO D BRONKHORST
First Respondent
SALGBC
Second Respondent
A
SINGH-BOOPCHAND N.O.
Third Respondent
Heard
:
2 August 2017
Delivered
:
22 August 2017
Summary:
Review and condonation – misconduct – arbitrator found
dismissal unfair but imposed a final
written warning and effective
sanction of 12 months’ suspension without pay. Conclusion
within a range of reasonable sanctions.
No prospects of success on
review. Condonation and review dismissed.
JUDGMENT
STEENKAMP
J
Introduction
[1]
Mr Deon Bronkhorst
[1]
worked for the City of Cape Town for 20 years. He was dismissed after
admitting that he had removed an electricity frame and panels
without
the necessary authority from an electricity depot; and that he had
abused his authority as a superintendent by calling
out a staff
member to perform private work.
[2]
The employee referred an unfair
dismissal dispute to the South African Local Government Bargaining
Council
[2]
.
Conciliation failed. The arbitrator, Commissoner A
Singh-Boopchand
[3]
,
found the sanction too harsh. She ordered the City to reinstate him
from 1 March 2016. That effectively meant that he was suspended
without pay for 12 months. And she imposed a final written warning
valid for 6 months.
[3]
The City applies to have that award reviewed and set aside. It also
seeks condonation for the late delivery of its review application.
Background
facts
[4]
The employee had a clean disciplinary record for twenty years. But on
15 November 2014 that changed. He was a superintendent
in the City
Electricity Department. On that fateful Saturday, he removed an item
known as a “LV distribution frame and panels”
from the
Parow electricity depot without authorisation. He called a junior
staff member, Johannes Visser, out with him. He told
Visser that they
had to take the panels to the Murray Street depot in Parow North. But
first they went to the home of an electrical
contractor, Gavin
Adriaan, in Elsiesrivier. Adriaan had to do some measurements. But
then the panels remained there. Bronkhorst
wanted Adriaan to do the
measurements because he (Adriaan) is disabled and Bronkhorst wanted
to help him out. Visser was unhappy
because it now meant that he
wouldn’t get overtime payment – this was clearly not an
officially sanctioned job. So
Adriaan gave Visser R500 out of his own
pocket.
[5]
Visser resigned when this incident came to light. Bronkhorst was
called to a disciplinary hearing. He admitted to the
following two
allegations:
“
Charge 1:
You misconducted yourself in that, on
Saturday 15 November 2014 at approximately 09:57 you removed a LV
distribution frame and panels
without the necessary authority
from Management of Parow Electricity Depot which was the property of
the City of Cape Town.
Charge 3:
You misconducted yourself in that you
abused your authority as a superintendent by calling out a staff
member, O Visser, on Saturday
15 November 2014, when there was no
official requirement to do so, for the sole purpose to assist you to
perform private work.”
[6]
Bronkhorst denied, but was found to have committed, the
following misconduct as well:
“
Charge 4
You misconducted yourself in that you
were dishonest and you abused your authority as superintendent when
you allowed Mr O Visser
to accept a cash payment of R500, 00 from Mr
Gavin Adriaan for performing private work.”
[7]
The City dismissed Bronkhorst on 15 April 2015.
The
arbitration
[8]
The City called six witnesses at the arbitration. They included
Adriaan and Visser. Bronkhorst called no witnesses other
than
himself.
[9]
The arbitrator correctly honed in on the disputed charge 4 as the
crux of the matter. As the employee had admitted the misconduct
complained of in charges 1 and 3, only the issue of sanction had to
be considered in respect of those charges.
[10]
It is common cause that the contractor, Adriaan, paid Visser. The
question was whether Bronkhorst had acted dishonestly by
allowing the
private payment.
[11]
The arbitrator correctly proceeded from the premises that the City
bore the onus to prove on a balance of probabilities that
dismissal
was for a fair reason. In the case of charge 4, it had to prove that
the employee was dishonest.
[12]
The arbitrator found that the City had not discharged that onus.
Turning to the question of a fair sanction for the misconduct
outlined in charges 1 and 3, she took into account aggravating and
mitigating circumstances and ordered the City to reinstate Bronkhorst
from 1 March 2016, coupled with a final written warning.
Condonation
[13]
The principles relating to
condonation are well known, as set out in
Melane
v Santam Insurance Co Ltd
.
[4]
Extent
of delay
[14]
The application was filed two and a half weeks outside of the six
week time period prescribed by the LRA. It is not insignificant.
Reasons
for delay
[15]
The delay is mainly blamed on a new software management system
implemented by the City. It is quite persuasive. It explains
at least
a large part of the delay. The main factor to balance the scales of
justice either way lies with the City’s prospects
of success.
Prejudice
[16]
The prejudice to the employee is not significant; the review
application has been set down within a relatively short time,
and
should he be successful, any prejudice to him will be cured by his
reinstatement retrospective to March 2016. Again, the question
whether the City should be granted condonation turns on its prospects
of success in the review application.
Prospects
of success
[17]
The arbitrator noted that two
witnesses corroborated Bronkhorst’s evidence that he did not
see Adriaan giving Visser the money.
Visser knew that he was doing
private work and that he was doing Bronkhorst a favour; that is why
he raised the question of payment
at Adriaan’s house. It was
clear to everyone at this stage that Visser was not entitled to
official overtime payment. That
is why Adriaan gave him cash from his
pocket. Adriaan testified that it happened on his stoep when
Baddenhorst was already sitting
in the bakkie. Visser confirmed it.
There was no evidence to the contrary. And Visser, having resigned
already, had no reason to
protect his superior who landed him in that
position in the first place. On the probabilities, and on the
evidence before her,
the arbitrator’s conclusion is not so
unreasonable that no other arbitrator could have come to the same
conclusion.
[5]
[18]
That left the question of sanction, given that the employee had
committed the misconduct set out in charges 1 and 3. At the
outset,
it must be noted that – having found that the City had not
proven charge 4 – the element of dishonesty had
fallen away.
The arbitrator took into account that the employee had more than 20
years’ clean service; that he had expressed
remorse and
admitted his misconduct (in charges 1 and 3) straight away; and that,
at the internal disciplinary hearing, the City’s
own initiator
had only asked for the employee to be suspended without pay for 10
days. In those circumstances, her own assessment
that dismissal was
too harsh a sanction, is not unreasonable. And her award that
Bronkhorst was to be reinstated from March 2016
– having been
dismissed in April 2016 – effectively meant that he was
suspended for almost 12 months without pay ---
a much harsher
sanction than the one that the City’s initiator had asked for
at the disciplinary hearing. She also applied
progressive discipline
and ruled that he must be given a final written warning valid for 12
months. She applied her mind to a fair
sanction, given her finding on
the proven misconduct on the evidence before her, and imposed a
sanction that falls within a range
of reasonable sanctions.
Conclusion
[19]
The conclusion reached by the arbitrator falls within a range of
reasonable conclusions. It is not open to review. Accordingly,
the
City has no prospects of success in its condonation application.
Coupled with the extent of the delay and the rather poor explanation
therefor, the condonation application could not succeed.
[20]
With regard to costs, I take
into account that there is an ongoing dispute between IMATU and the
City; that the employee was represented
by his union and did not
incur any legal costs; and that the union was ably represented by its
own official, and did not instruct
attorneys or counsel. A costs
order is not, in my view, appropriate when the requirements of both
law and fairness are considered.
[6]
Order
The
application for condonation – and thus the application for
review – is dismissed.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
N
Mangcu-Lockwood
Instructed
by Marais Muller Hendricks Inc.
FIRST RESPONDENT:
Nelia Geldenhuys
(union official) of IMATU.
[1]
The first
respondent, represented by his trade union (IMATU).
[2]
The second
respondent (SALGBC).
[3]
The third
respondent.
[4]
1962 (4) SA
531 (A).
[5]
Sidumo v Rustenburg
Platinum Mines Ltd
2008
(2) SA 24 (CC).
[6]
LRA s 162.