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[2018] ZALCJHB 36
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South Africa Municipal Workers Union obo Chauke v Moretele Local Municipality and Others (JR1767/14) [2018] ZALCJHB 36 (8 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1767/14
In
the matter between
:
SOUTH
AFRICA MUNICIPAL WORKERS UNION
First Applicant
OBO
KEDIBONE
CHAUKE
Second Applicant
and
MORETELE
LOCAL MUNICIPALITY
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
L
DLAMINI
N.O
Third Respondent
Heard:
24
October 2017
Delivered:
08 February 2018
Summary:
Appropriateness of the sanction – the shop steward properly
disciplined for the disruptive
behaviour –
a
sanction of dismissal not appropriate.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
The first
applicant (SAMWU) seeks an order for the reviewing and setting aside
of the award issued on 10 December 2015 by the third
respondent (the
arbitrator) under case number NW031401 acting under the auspices of
the second respondent (the SALGBC). The basis
of the challenge is
that the award that found the dismissal of the second applicant (Ms
Chauke) substantively fair was unreasonable.
The first respondent
(the Municipality) is defending the arbitration award.
[2]
The
application is hinged on two main grounds of review. Firstly, that
the arbitrator ignored the material evidence that was presented
before him. Secondly, that the arbitrator failed to consider whether
the sanction of dismissal was appropriate.
Background
facts
[3]
Ms Chauke
was employed by the Municipality as a Credit Controller. She was a
SAMWU shop steward and a secretary of the shop steward
committee. On
28 November 2012, a staff meeting was called by the Municipal Manager
to be addressed by the Mayor. The Mayor was
going to brief the
employees in response to the rumours that had been circulated about
the intention to suspend and dismiss the
Municipal Manager.
[4]
Ms Chauke
objected to the staff being addressed by the Mayor. It was the
Municipality’s evidence that even before the Mayor
could
address the meeting, Ms Chauke started singing an inciting song as
she was leaving the room and was joined by some employees.
She
returned to the meeting with a letter purporting to be a strike
notice for a strike intended to commence with immediate effect.
[5]
Ms Chauke
was accused of four charges of misconduct for acting in a manner that
was improper, disgraceful and disruptive during
the staff meeting
(i.e. insolence, disrespect, inciting an unprotected strike and
insubordination). She was found guilty as charged
and dismissed on 12
February 2014.
[6]
Ms Chauke
denied that she was singing when she left the meeting and that she
did not tell other employees to follow her. She further
denied that
the strike notice she had authored was meant to incite an unprotected
strike. However, it was used by SAMWU as a tactic
to influence the
Municipality’s decision.
Review
test
[7]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others,
[1]
the
Labour Appeal Court (the LAC) as per Waglay JP contextualised the
review test as postulated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
and stated that:
‘
[14]
Sidumo
does
not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
a
determination of the reasonableness of the decision arrived at by the
arbitrator.
The court
in
Sidumo
was
at pains to state that arbitration awards made under the Labour
Relations Act
(LRA)
continue to be determined in terms of s145 of the LRA but that the
constitutional standard of reasonableness is “suffused”
in the application of s145 of the LRA. This implies that an
application for review sought on the grounds of misconduct, gross
irregularity in the conduct of the arbitration proceedings, and/or
excess of powers
will
not lead automatically to a setting aside of the award if any of the
above grounds are found to be present. In other words,
in a case such
as the present, where a gross irregularity in the proceedings is
alleged, the enquiry is not confined to whether
the arbitrator
misconceived the nature of the proceedings, but extends to whether
the result was unreasonable, or put another way,
whether the decision
that the arbitrator arrived at is one that falls in a band of
decisions to which a reasonable decision-maker
could come on the
available material.’
Evaluation
[8]
The
arbitrator clearly accepted the version of the Municipality that Ms
Chauke acted in a disruptive manner during the staff meeting
and that
she incited an unprotected strike. She was of the view that Ms
Chauke, a seasoned shop steward, ought to have shown better
leadership qualities by subordinating herself to the authority of the
Municipal management and leadership.
[9]
Having
perused the record of the arbitration proceedings, I am persuaded
that the arbitrator applied her mind to the evidence that
was before
her on substantive issues. Therefore, the first ground of review has
no merit.
[10]
However,
the converse is true when it comes to the appropriateness of the
sanction. The arbitrator held that there was no evidence
of
inconsistency and the misconduct was severe enough to justify the
dismissal of Ms Chauke. However, she failed to apply her mind
in
relation to the issue of appropriateness of the sanction.
[11]
The parties
were directed to file supplementary heads of argument solely to
address the issue of appropriateness of the sanction.
The applicants’
submissions, in mitigation, can be summarised as follows:
11.1.
The meeting
that was disrupted did continue and its purpose was achieved. As
such, as a matter of fact, it was interrupted.
11.2.
When Ms
Chauke objected to the address by the Mayor, she was acting in good
faith and erroneously relied on certain provisions of
the Municipal
Systems Act
[3]
. A possible
training would have avoided the recurrence of the misconduct;
11.3.
Ms Chauke
had a good relationship with her supervisor and she continued working
until she was suspended; and
11.4.
The
arbitrator failed to have regard to Ms Chauke’s length of
service; and to apply progressive discipline.
[12]
On the
other hand, the Municipality contended, in aggravation, that:
12.1.
Ms Chauke
had a duty, as a shop steward, to maintain sound labour relations;
12.2.
Ms Chauke’s
conduct had a potential to bring the Municipality’s political
and administrative structure into disrepute;
12.3.
Ms Chauke’s
conduct included incitement of an unprotected strike which had a
potential of causing job losses; and
12.4.
Mr
Kodisang, a member of SAMWU and Municipality’s witness,
testified that he was not aware of SAMWU’s intentions to
call a
strike.
[13]
In
Shoprite
Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others,
[4]
the LAC reinvigorated the principle of progressive discipline. It is
stated that:
‘
[18]
But
the
law does not allow an employer to adopt a zero tolerance approach for
all infractions, regardless of its appropriateness or
proportionality
to the offence
,
and then expect a commissioner to fall in line with such an approach.
The touchstone of the law of dismissal is fairness and an
employer
cannot contract out of it or fashion, as if it were, a “no go
area” for commissioners. A zero tolerance policy
would be
appropriate where, for example, the stock is gold but it would not
necessarily be appropriate where an employee of the
same employer
removes a crust of bread otherwise designed for the refuse bin.
Commissioners
should be vigilant and examine the circumstances of each case to
ensure that the constitutional right to fair labour
practices, more
particularly to a dismissal that is fair, is afforded to employees
.’
(Emphasis added).
[14]
In the
present case, the arbitrator failed to have regard to
Sidumo
[5]
which enjoins arbitrators to consider the totality of circumstances
when deciding whether dismissal was an appropriate sanction.
She
failed to appreciate that even though the meeting had been disrupted,
it resumed without further disruptions. Tellingly, the
threat of a
strike was just a hollow and, in any event, SAMWU had associated
itself with her conduct which was explained as a tactic
normally used
to influence the Municipality’s decisions. It was Ms Chauke’s
undisputed evidence that she continued
to enjoy a congenial
relationship with her supervisor after the incident.
[15]
In my view,
as inappropriate as it was, the conduct of Ms Chauke did not render
the continued employment intolerable. This is a
typical case where
progressive disciple should have been preferred. The arbitrator’s
conduct in this regard constitutes a
reviewable flaw.
Conclusion
[16]
In
all the circumstances, I have no reason to interfere with the finding
of the arbitrator to the effect that Ms Chauke was guilty
as charged.
On the contrary, the arbitrator certainly
misconceived
the true enquiry when it comes to the appropriateness of the
sanction. The conclusion that the dismissal was justifiable
is not
sustainable on the facts of this case and as such does not fall in a
band of reasonable decisions.
[17]
In
the interest of justice and in line with the tenet of this Court to
be hesitant to remit a dispute back because of the resultant
delays,
I deem it appropriate not to remit this matter back to the SALGBC.
Having had the benefit of reading the record, pleadings
and hearing
oral argument; I am in a position to decide the matter to finality.
For all the reasons alluded to above, I am
persuaded that the
dismissal of Ms Chauke was substantively unfair.
The relief
[18]
Ms
Chauke seeks retrospective reinstatement with full back pay. On the
other hand, the Municipality argued that the delays in finalising
the
matter should be blamed on Ms Chauke. For that reason, in the event
the Court finds the sanction of dismissal to be inappropriate,
compensation should be awarded given the nature of the misconduct, or
re-employment, or reinstatement with a limited back pay of
not more
than 12 months, so it was further argued.
[19]
In
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
,
[6]
the Constitutional Court reaffirmed reinstatement as ‘the
primary statutory remedy in unfair dismissal disputes…aimed
at
placing an employee in the position he or she would have been but for
the unfair dismissal… by restoring the employment
contract…The
extent of retrospectivity is dependent upon the exercise of a
discretion by the court or arbitrator. The only
limitation in this
regard is that the reinstatement cannot be fixed at a date earlier
than the actual date of the dismissal. The
court or arbitrator may
thus decide the date from which the reinstatement will run, but may
not order reinstatement from a date
earlier than the date of
dismissal.’
[20]
Having
considered the delays in finalising the matter, the fact that Ms
Chauke is the culprit and that she has been out of employment
for
almost 4 years; I deem it just and equitable to both parties to order
reinstatement with a backdated period of 12 months from
the date of
this judgment.
[21]
On the
issue of costs, I am disinclined to award costs since SAMWU and the
Municipality are involved in a persisting collective
bargaining
relationship.
[22]
In the
premises, I make the following order:
Order
1.
The
arbitration award under case number NW03140, dated 9 July 2014, is
reviewed and set aside and replaced with the following order:
1.1
The dismissal of Ms Chauke is substantively unfair.
1.2
The Municipality is ordered to reinstate Ms Chauke with effect from 8
February
2017.
1.3
The order in paragraph 1.2 must be effected within a month from the
date of
this judgment.
2.
There is no
order as to costs.
___________________
P.
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the
applicant:
Advocate W Ndinisa
Instructed
by:
Maenetja Attorneys
For the
respondent:
Advocate J Molapo
Instructed
by:
Mosire Tsiane Attorneys
[1]
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at para
14.
[2]
(2007) 28 ILJ 2405 (CC).
[3]
Act 32 of 2000.
[4]
[2015] ZALAC 23
;
[2015] 9 BLLR 887
(LAC); (2015) 36 ILJ 2273 (LAC)
at para 18.
[5]
Supra
n 2 at para 78.
[6]
[2008] ZACC 16
;
[2008] 12 BLLR 1129
(CC);
2009 (1) SA 390
(CC);
(2008) 29 ILJ 2507 (CC);
2009 (2) BCLR 111
(CC) at para 36.