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[2017] ZALCPE 8
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Gauteng Department of Education v Cawe and Others (JR1973/12) [2017] ZALCPE 8 (16 May 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: JR 1973/ 12
In
the matter between:
GAUTENG
DEPARTMENT OF
EDUCATION
Applicant
and
MS N CAWE
First Respondent
THE EDUCATION LABOUR
RELATIONS
COUNCIL
Second Respondent
BRENT SAUNDERS
Third Respondent
Heard:
6 March 2014
Delivered:
16 May 2017
Summary:
An arbitration is a hearing
de novo.
An arbitrator who reviews
the decision of the chairperson of a disciplinary enquiry commits a
gross irregularity which renders his
or her award susceptible to
review.
JUDGMENT
LALLIE
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the first respondent (“the arbitrator”) in
which she
found the third respondent’s dismissal by the applicant unfair
and ordered his reinstatement which should have
been effected on 1
August 2012. It is opposed by the third respondent. The record of the
arbitration proceedings remains incomplete
notwithstanding the order
of the Labour Appeal Court that it be finalised. I accepted that the
applicant elected to rely on the
filed portion of the record.
Factual background
[2]
The facts of this matter are mostly common cause. They are that the
third respondent was employed as an educator on 1 January
1989 until
his dismissal on 28 February 2012 at a time he was the deputy
headmaster of the Parktown Boys High School (“the
school”).
Mr Hayward (“Hayward”) made a donation of R15 000.00 to
the school for the purpose of purchasing a
golf cart. The third
respondent added an amount of R3 000.00 from his own funds and the
golf cart was duly purchased and branded
with the school’s
markings and logo. It was used by the third respondent in the
performance of his duties. In February 2011,
four boys took the golf
cart without authority and rode it in the school premises. They
crashed it and it was damaged beyond repair.
The third respondent
reported the incident at the Parkview Police Station (“the
police station”) to obtain a case number
for an insurance
claim. The investigating officer decided that a criminal charge
should be laid against the boys. The School Governing
Body (“SGB”)
took disciplinary action against the boys. The boys were found guilty
of misconduct but were not required
to reimburse the school for the
loss of the golf cart. The third respondent realised that the golf
cart had not been placed on
the school’s asset register and was
therefore not covered by the school’s insurance policy.
[3]
The boys’ parents approach the investigating officer who
arranged a meeting between them and the third respondent. At
the
meeting which was held at the school during school hours, the third
respondent falsely represented that he was the owner of
the golf cart
and asked the parents to reimburse him for his loss. Based on the
quotations which the parents had brought to the
meeting a decision
that they would collectively contribute an amount of R38 000.00 to
replace the golf cart was taken. The third
respondent asked them to
deposit the money in his personal bank account by 15 April 2012. The
money was deposited a few days after
the said date. The third
respondent purchased a replacement golf cart for the sum of R59
000.00 having paid the difference from
his own funds. He had it
branded with the school logo and authorised that it be placed on the
school’s asset register and
the necessary insurance cover
obtained. When Hayward got wind of what had happened to the golf
cart, he confronted the third respondent.
The golf cart was sold on
the instructions of the SGB. It fetched an amount of R47 000.00 from
which the parents were reimbursed
and the rest was given to the third
respondent who suffered the loss of R12 000.00.
[4]
An investigation was conducted into the third respondent’s
conduct leading to the following charge being preferred against
him:
‘
It is alleged that you
committed an act of dishonesty in that you received an amount of R38
000.00 from parents of Mzwakhe Mthethwa,
Kabelo Mothibeli, Kopano
Makgalemele and Sifiso Yende for golf cart (sic) belonging to
Parktown Boys High School damaged by the
said learners in that you
convinced the parents that the golf cart belonged to you not the
school.
In view of your actions you are thus
charged with misconduct in terms of
section 18
(1) (ee) of the
Employment of Educators Act, 77 of 1998
as amended’.
[5]
The chairperson of the disciplinary enquiry that ensued found him
guilty and issued the sanction of dismissal. He appealed but
his
appeal was dismissed.
The award
[6]
Giving reasons for her decision, the arbitrator shared the third
respondent’s view that the directory discretionary power
to
dismiss under
section 18
(5) of the
Employment of Educators Act
(“EEA”) is to be contrasted with the provisions of
section 17.
The intention of the legislature was said to be to seek
to provide a broad set of penalties for offences in breach of
section
18
, but in each case suited to the facts of the case. She attacked
the chairperson for preferring a pro forma approach to the hearing
and finding the third respondent automatically guilty of fraud after
he had pleaded guilty of dishonesty, without indicating how
she
reached her verdict. A further attack on the chairperson was mounted
on her failure to take into account the code of good practice
in
cases of misconduct contemplated in
section 18
of the EEA. She added
that had the chairperson considered how the third respondent utilised
the golf cart she would have come to
a different conclusion. The
arbitrator considered the testimonials of the school staff as well as
a letter from the principal and
concluded that had the third
respondent been a fraudster, his colleagues would not have written
testimonials in his favour. She
was not convinced that the third
respondent had made himself, guilty of gross dishonesty as he used
the golf cart only to conduct
the business of the school. She relied
on the decision in the
Nedcor
Bank LTD v Frank en andere
[1]
where it was held that dismissible acts of dishonesty require an
intention to prejudice the employer. She concluded that
the third
respondent’s actions did not prejudice the applicant.
[7]
The arbitrator found that the evidence on which a number of the
chairperson’s findings were based was not tendered at
the
arbitration. She took into account that the third respondent did not
appropriate to himself the money paid by the parents.
She found that
the applicant failed to adduce evidence to prove that it treated
other employees who had committed similar misconduct
the same way it
had treated the third respondent. She was not convinced that the
applicant had proved its case. In conclusion,
the arbitrator stated
that in arriving at her decision, she had regard to the relevant case
law which illustrate circumstances
in which interference with
administrative decisions is permissible. She cited a number of
decisions which deal with interference
with administrative decisions.
She expressed her satisfaction that there was ample basis to find
that the applicant acted irrationally
and failed to apply its mind to
the case. She found that there was evidence of cogent reasons for the
administrative decision to
be interfered with. The sanction of
dismissal which, in the arbitrator’s view, was not based on a
strict analysis and application
of the law to the facts of the case
stood to be overturned. She reinstated the third respondent to his
previous position. She ordered
the applicant to pay the third
respondent an amount of R66 999. 00 in terms of the reinstatement
order having taken into account
that he was guilty of the misconduct
which led to his dismissal for which he had to be sanctioned.
Grounds for review
[8]
The applicant submitted that the arbitrator committed gross
irregularities which rendered her award susceptible to review. She
approached the arbitration as though she was sitting as a court
reviewing and setting aside the chairperson’s decision instead
of determining the fairness of the third respondent’s dismissal
de novo
. She incorrectly treated the chairperson’s
decision dismissing the third respondent as an administrative
decision. She misdirected
herself by concentrating on the purpose for
which the golf cart was used instead of focusing on his dishonesty
and all the lies
he told to maintain it. She took into account
inadmissible opinion of testimonials written by the third
respondent’s colleagues.
She relied on irrelevant authority and
disregarded relevant cases. She failed to consider provisions of
section 193 of the Labour
Relations Act to 66 of 1995 (“the
LRA”) when dealing with relief due to the third respondent. The
applicant expressed
the view that all these irregularities led the
arbitrator to reach an unreasonable decision.
[9]
The gist of the third respondent’s case is that the
arbitrator’s decision is unassailable. He submitted that the
chairperson’s decision was wrong and based on a complete
misconception of the facts and constituted a fundamental misdirection
that it cannot be sustained or reasonably defended. He justified his
conduct. He submitted that the arbitrator conducted a hearing
de
novo
which was not affected by reference to authority on reviews.
Justifying his version that the award is reasonable, the third
respondent
submitted that the applicant led no evidence on the
breakdown of the trust relationship while he led evidence that both
the principal
and staff of the school are still willing to work with.
[10]
An arbitration award may be reviewed if the arbitrator committed a
gross irregularity in the conduct of the arbitration proceedings.
A
defect will constitute a gross irregularity as contemplated by
section 145 (2) (a) (ii) of the LRA when the arbitrator has
misconceived
the nature of the enquiry or arrived at an unreasonable
result. In this regard see
Herholdt
v Nedbank (Congress of South African Trade union as Amicus Curiae)
[2]
An arbitrator misconceives the nature of the enquiry when he or
she has undertaken the wrong enquiry or undertaken the enquiry
in the
wrong manner.
[11]
The applicant’s first ground for review is consistent with the
Herholdt
decision
(
supra
).
I have deliberately referred extensively to the arbitration award
with the view of illustrating that the arbitrator misconceived
the
nature of the dispute before her because she undertook the enquiry in
the wrong manner. The arbitrator was enjoined by section
138 of the
LRA to determine whether the third respondent’s dismissal was
substantively and procedurally fair. In
National
Commissioner, SAPS v Myers and Others
[3]
the
court referred with approval to
County
Fair Foods (Pty) Ltd v CCMA and Others
[4]
in
deciding that the legal position is that the proceedings before the
commissioner take the form of a hearing
de
novo
.
The findings of an earlier disciplinary enquiry were found to be
irrelevant and not binding on the commissioner who is called
upon to
arbitrate the dispute. A reading of the award clearly illustrates how
the arbitrator did not conduct the arbitration as
a hearing
de
novo.
She reviewed the disciplinary proceedings. She attacked the manner in
which the chairperson conducted the disciplinary enquiry.
The only
inference that can be drawn from her reliance on principles and
decisions which deal with review of administrative decisions
is that
she erroneously sat as a review tribunal.
[12]
The arbitrator’s conclusion eliminates every doubt that she did
not conduct a hearing
de novo
in that she relies on case law
which deals with instances when not to interfere with an
administrative decision. As the applicant
correctly pointed out the
Constitutional Court has held that decisions taken by the State as an
employer which include decisions
of chairpersons of disciplinary
enquiries do not constitute administrative action. Consistent with
the conduct of review applications,
the arbitrator finds that the
applicant acted irrationally and failed to apply its mind to the
case. Instead of enquiring
de novo
into the fairness of the
third respondent’s dismissal, based on her sense of fairness,
the arbitrator decided to review the
decision of the chairperson of
the disciplinary enquiry. Her decision therefore stands to be
reviewed and set aside on the grounds
that she committed a gross
irregularity by undertaking the enquiry in the wrong manner. As the
arbitration record is incomplete,
remitting the matter to the second
respondent is appropriate.
[13]
In the premises, the following order is made:
13.1
The arbitration award issued by the first respondent under case
number PSES717 – 11/12 GP is reviewed
and set aside.
13.2
The matter is remitted to the second respondent to be arbitrated
de
novo
by
an arbitrator other than the first respondent.
_______________________
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Advocate Cassim SC with Advocate
Rajah
Instructed
by:
The State Attorney
For
the Third Respondent: Advocate Krause
[1]
(2002) 23 ILJ 1243 (LAC)
[2]
[2013] 11 BLLR 1074
(SCA) at para [25].
[3]
[2012] 7 BLLR 688
(LAC)
at para 42
[4]
(1999)
20 ILJ 1701 (LAC)