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[2018] ZALCJHB 33
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South African Municipal Workers Union obo Matome v Middleburg Local Municipality and Others (JR40/15) [2018] ZALCJHB 33 (8 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 40/15
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
obo
First Applicant
AMANDA
MATOME
Second Applicant
and
MIDDELBURG
LOCAL MUNICIPALITY
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNNCIL
Second Respondent
W.
FERREIRA
N.O
Third Respondent
Heard:
03 August 2017
Delivered:
08 February 2018
JUDGMENT
MAHOSI.
J
Introduction
[1]
This is an application in terms of section 145
of
the Labour Relations Act (LRA)
[1]
for
an order reviewing and setting aside an arbitration award issued by
the third respondent (arbitrator) acting under the auspices
of the
second respondent (SALGBC), dated 3 December 2014 under case
reference number NWD 091402 in terms of which the arbitrator
found
that the dismissal of the second applicant (the employee) was
procedurally and substantively unfair.
[2]
The key question is whether the arbitrator failed to apply his mind
to the relevant evidence and consequently made an award,
which no
reasonable arbitrator could make.
Background
[3]
The employee started working for the First Respondent on 25 May 1998.
At the time of her dismissal, she was a senior licensing
clerk and
she was responsible for supervising five other cashiers in her
section. She was charged as follows:
‘
CHARGGE
– GROSS NEGLIGENCE
You are charged with
gross negligence in that on the 7
th
of April 2014 at Brits
licensing department, you received R157 475.00 from cashiers but
deposited only R149 735.00 thus leaving
R7 740.00 unaccounted for.
The
said conduct is in Contravention of clause 1.2.3 of Annexure “A”
to the SALGB disciplinary code and procedure.’
[4]
The disciplinary enquiry was held on 9 July 2014 at the end of which
the employee was dismissed. As a result, the employee referred
a
dispute of unfair dismissal to the SALGBC. The dispute was
conciliated unsuccessfully before it could proceed to arbitration.
The arbitration was held on 31 October 2014 and 11 November 2014. At
the end of the arbitration, the arbitrator found that the
dismissal
of the employee was both procedurally and substantively fair.
Arbitration
award
[5]
The arbitrator identified the issue between the parties to be whether
the employee’s dismissal was substantively and procedurally
unfair. The applicant relied on the testimony of the employee, Ms
Kotsokwane and Ms. Moloponyane. The first respondent relied on
the
testimony of Mr. Masike, Mr Matloki and Ms. Ngama.
[6]
In his analysis of evidence and arguments, the arbitrator found the
first respondent’s version to be more plausible and
probable.
His finding was based on the fact that all the testimonies of first
respondent’s witnesses was consistent when
they all confirmed
that the employee breached the procedure by allowing cashiers to
leave without cashing up and further that it
was not normal practice
to recheck money the following day. Their evidence was supported by
documents that were submitted during
the arbitration hearing and was
further confirmed by the applicant’s witness.
[7]
The arbitrator found the employee’s version highly unlikely and
improbable as she was unable to provide any explanation
as to how the
money went missing. This was despite the fact that she was the
custodian of the money and further that she was responsible
for its
safekeeping. The arbitrator further found that the employee failed to
exercise the standard of care and skill that could
have been
reasonably expected from her.
[8]
On the issue of consistency, the arbitrator accepted the first
respondent version. According to the arbitrator, the evidence
suggested that other incidences relating to cash shortages were still
under investigation and the employees concerned were subjected
to
disciplinary enquiry.
[9]
The arbitrator considered the first respondent’s evidence that
the employee was found guilty of serious misconduct that
affected the
trust relationship and as a result, he found that dismissal was an
appropriate sanction. It was for this reason that
he found the
employee’s dismissal to be substantively and procedurally fair.
Dissatisfied the award, the applicants launched
this application.
Grounds
of Review
[10]
The applicants submit that the arbitrator failed to apply his mind to
the relevant evidence and consequently made an award,
which no
reasonable arbitrator could make in that he:
‘
1.
Found that the dismissal of the
second applicant was substantively and procedurally fair
as the first
respondent has failed to prove that second applicant was guilty of
gross negligence.
2.
Failed to take into considerations the common cause facts that there
had been
incidents of missing money in the First Respondent’s
workplace since February 2014.
3.
Failed to consider that the Second Applicant had previously agreed to
pay R 2 600.00
that went missing on 20 February 2014 in order to
protect her employment and not as admission of guilt.
4.
Took into consideration the hearsay evidence of Masike, who did not
conduct any investigation
but relied on the information provided by
Mohloki and Ngoma.
5.
Did not consider that Masike did not take any steps to correct the
situation
of missing money that has been recurring since February
2014.
6.
Failed to consider that, in particular on the finding that the
dismissal was appropriate
that the second applicant even bought a
CCTV camera in order to safeguard and protect the mischief of the
missing money.
7.
Failed to consider that the Second Applicant has always reported all
the incidents
of the missing money that occurred to the chief
licensing officer.
8.
Failed to consider that it has been a practice that the cashiers can
leave their workstations
before they could balance their daily
collections and if they leave before the knock off time without
balancing they would put
their money in a lockable cash box to be
balanced the following day.
9.
Ignored the evidence by the Second Applicant that the moneybag was
sealed when the
Second Applicant gave it Mohloki for him to take it
to the safe and therefore the second applicant could not explain how
the
money got lost.
10.
Ignored the evidence of the Second Applicant that she was remorseful
as she was not aware
that the cashiers are not allowed to leave
before they could balance the money they collected for the day.
11.
Committed gross misconduct in accepting that issue of consistency was
explained by the First
Respondent as it was argued before the
arbitrator that Machiu’s matter where an amount of R7200.00 was
missing was concluded
and that she was given a final written warning
and ordered to pay the missing amount in monthly
instalments.’
Applicable law and
analysis
[11]
The arbitration awards are reviewable in terms of section 145 of the
LRA, which provides that any party to a dispute who alleges
a defect
in any arbitration proceedings under the auspices of the Commission
may apply to the Labour Court for an order setting
aside the
arbitration award. Section 145(2) defines a defect as the
commissioner’s misconduct in relation to the duties of
the
commissioner as an arbitrator, gross irregularities in the conduct of
the arbitration proceedings, exceeding the commissioner's
powers or
improperly obtaining an award.
[12]
The test for review which has been authoritatively stated by the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
was reiterated in
Herholdt
v Nedbank Ltd and Congress of South African Trade Unions
[3]
as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls in one of the grounds in s 145(2)(a) of the LRA.
For a defect in the conduct of the proceedings to amount to
gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must
have misconceived the nature of the enquiry or arrived
at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach on all
the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached to particular
fact, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their effect is
to render the outcome
unreasonable.’
[4]
[13]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others,
[5]
the
Labour Appeal Court (LAC) stated as follows:
‘
[17]
The fact that an arbitrator committed a process-related irregularity
is not in itself a sufficient
ground for interference by the
reviewing court.
The fact
that an arbitrator commits a process-related irregularity does
not
mean that the decision reached is necessarily one that a reasonable
commissioner in the place of the arbitrator could not reach.
[18]
In a review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to
take into account every factor individually,
consider how the arbitrator treated and dealt with each of those
factors and then
determine whether a failure by the arbitrator to
deal with one or some of the factors amounts to process-related
irregularity sufficient
to set aside the award. This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must
necessarily consider the totality of the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable
decision-maker could make.’
[14]
In
Head
of the Department of Education v Mofokeng and Others
[6]
the
LAC confirmed
Herholdt
and
Mofokeng
judgments
and held as follows:
‘
The
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank Ltd
and
this court in
Goldfields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome.
[15]
The LAC further held as follows:
‘
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.
’
[7]
[Footnotes omitted]
[16]
Although SAMWU raised a number of grounds, the question is mainly
whether the arbitrator evaluated the facts presented before
him and
arrived at a conclusion that is reasonable. SAMWU submitted that the
employee never admitted that the act on her part was
gross negligence
but that it was negligence. In his award, the arbitrator stated that
the employee was charged with gross negligence
but she denied that
she was guilty of gross negligence. It is not for the employee to
decide whether the misconduct that he/she
was charged with may be
classified as negligence or gross negligence. Gross negligence occurs
if an employee is persistently negligent,
or if the act or omission
under consideration is particularly serious in itself.
[8]
What is clear is that the employee, in this case, was charged with
gross negligence, which is a dismissible offence.
[9]
The evidence shows that the employee was aware of the rules and that
such rules were reasonable and fair. In addition, the employee
breached the rules. This was not her first offence, she previously
failed to account for R2600.00 which amount she accepted to
pay.
[17]
SAMWU submitted that the arbitrator failed to apply his mind to the
issue of inconsistency. This is not true. The arbitrator
considered
the evidence presented before him and accepted the first respondent’s
explanation for the perceived inconsistency.
He further relied on
case of
SACCAWU and Others v Irvin and Johnson (Pty) Ltd
in
which it was stated as follows:
‘
[29]
It was argued before us by Mr. Grobler for the appellant that by not
dismissing four employees who had also participated in
the
demonstration, the respondent applied discipline inconsistently. In
my view too great an emphasis is quite frequently sought
to be placed
on to the ‘principle’ of disciplinary consistency, also
called the ‘parity principle’. (as
to which see e.g.
Grogan,
Workplace Law
,
fourth ed. p.145 and Le Roux & Van Niekerk,
The
South African Law of Unfair Dismissal
,
p.110). There is really no separate ‘principle’ involved.
Consistency is simply an element of disciplinary fairness
(The
Dismissal of Strikers, MSM Brassey (1990) 11 ILJ 213 at 229). Every
employee must be measured by the same standards (Reckitt
& Colman
(SA) (Pty) Ltd v Chemical Workers’ Industrial Union &
Others (1991) 12 ILJ 806 (LAC) at 813 H-I). Discipline
must not be
capricious. It is really the perception of bias inherent in selective
discipline which makes it unfair. Where, however,
one is faced with a
large number of offending employees, the best that 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 towards
the other employees. It would mean no more than that 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 a 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. (As was the case in
Henred
Fruehauf Trailers v National Union of Metalworkers of SA &
Others
,
(1992) 13 ILJ 593 (LAC) at 599 H - 601B;
National
Union of Mineworkers v Henred Fruehauf Trailers (Pty) Ltd
,
1994 15 ILJ 1257 (A) at 1264). 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, in my view, necessarily mean that the other
miscreants should escape. Fairness is a value
judgment. It might or
might not in the circumstances be fair to reinstate the other
offenders. The point is that consistency is
not a rule unto itself.’
[18]
On the question whether dismissal was an appropriate sanction, I
agree with the first respondent that, also in this regard,
the
arbitrator applied his mind.
The arbitrator
took into account the seriousness of the misconduct the employee was
charged with, the effect the said misconduct
had on the trust
relationship between the parties and the position held by the
employee to arrive at the conclusion that dismissal
was an
appropriate sanction. It can, therefore, not be said that the
arbitrator failed to apply his mind to the relevant evidence
presented before him.
[19]
It is my view that none of the grounds of review raised by the
applicants muster the applicable test of unreasonableness. In
this
case, the arbitrator’s award is not only clear but it contains
the detailed exposition of the evidence presented before
him during
the arbitration, followed by an equally detailed analysis of the
evidence and argument.
[20]
It is abundantly clear from the applicant’s founding affidavit
and its supplementary affidavit that the applicants have
not
established any basis upon which the court could find that the first
respondent’s award was reviewable. The applicant
failed to
discharge the
onus
of establishing that the arbitrator either committed misconduct in
relation to his duties of the commissioner as an arbitrator,
a gross
irregularity in the conduct of the arbitration proceedings, or
exceeded his powers.
[21]
It is apparent from the reading of the award that the arbitrator took
into consideration all the evidence that was led before
him, and
applied his mind to the issues before him. In my view, the arbitrator
dealt exhaustively with the evidence before him,
and considered all
relevant factors before coming to the conclusion that the employee’s
dismissal was substantively fair.
[22]
Considering the depth of his treatment with the evidence, it cannot
be said that the arbitrator failed to apply his mind to
the issues
before him or even that he reached an illogical and unjustifiable
conclusion or reached an unreasonable conclusion.
There is,
therefore, no reason for this court to interfere with the
arbitrator’s award.
[23]
With regard to costs, taking into account the requirements of law and
equity, I believe this is a matter in which there should
be no order
as to costs.
[24]
In the premise, I make the following order:
Order
1.
The applicant’s review application is
dismissed.
2.
There is no order as to costs.
_____________
D.
Mahosi
Judge
of the Labour Court
APPEARANCES:
FOR
THE APPLICANT:
Advocate J Eastes
Instructed by Ruth
Edmonds Inc. Attorneys
FOR
THE RESPONDENT:
Advocate Russel Moletsane
Instructed by Collin
Ncini Inc.
[1]
Act
66 of 1995 as amended.
[2]
2007 (28) ILJ 2405 (CC)
at
para
25.
[3]
2013 (6) SA 224
(SCA);
2013 (11) BLLR 1074
(SCA); 2013 (34) ILJ 2795
(SCA).
[4]
At para 25.
[5]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 17 and 18.
[6]
[2015]
1 BLLR 50
(LAC) at para 30.
[7]
At para 33.
[8]
John
Grogan,
Dismissal,
Discrimination and Unfair Labour Practices
,
p. 258.
[9]
Index
to record page 140.