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[2018] ZALCJHB 88
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Xhariep District Municipality v SAMWU obo May and Others (JR2079/13, J2426/13) [2018] ZALCJHB 88 (23 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no:
JR
2079/13 & J2426/13
In
the matter between:
XHARIEP
DISTRICT
MUNICIPALITY
Applicant
and
SAMWU
OBO LEHLOHONOLO MOSES MAY
First
Respondent
SURIA
VAN WYK
N.O
Second Respondent
SALGBC
Third Respondent
Heard
:
20 February 2018
Delivered
:
23 February 2018
Summary:
An opposed application to review and set aside the arbitration
award. The award issued by the second respondent falls within the
bounds of reasonableness. There is no justifiable basis upon which
this court can upset the award made by the second respondent.
Held:
(1) The application for review is dismissed. (2) There is no order as
to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an opposed application seeking to review and set aside an
arbitration award issued by the second respondent under the
auspices
of the third respondent. The second respondent found that the
dismissal of Mr Lehlohonolo Moses May was both procedurally
and
substantively unfair. She ordered the applicant to reinstate May with
retrospective effect and to pay him back pay. She made
no order as to
costs. The applicant is now aggrieved and seeks a relief.
Background
facts
[2]
Lehlohonolo Moses May was employed by the
applicant effective 1 March 2002. At the time of his dismissal he
held a position of a
Communications Officer. Around May 2012, he was
arraigned to face the following charges:
Charge 1: You are allegedly guilty of
misconduct in terms of the Disciplinary Procedures and Code
Collective Agreement in that on
15
May you fraudulently entered
your arrival time to be 7h30
when the actual arrival time was
7h45. This despite you knowing that this constitutes
misrepresentation.
Charge 2: You are allegedly guilty of
misconduct in terms of the Disciplinary Procedures and Code
Collective Agreement in that from
16 May 2012 until 17 May 2012,
you
continued to enter the arrival time
that gave the impression that
you arrived earlier than the actual arrival. This despite a reprimand
from the Acting Municipal Manager,
M M Kubeka.
Charge 3: You are allegedly guilty of
misconduct in terms of the Disciplinary Procedures and Code
Collective Agreement in that for
the month of January 2012,
you
deliberately did no sign
the attendance register in order to
register your work attendance. This despite the fact that this
constitutes an audit query.
[My underlining and emphasis]
[3]
He was found guilty and dismissed on 6
November 2012. He was aggrieved by his dismissal. With the assistance
of his Union, SAMWU
a dispute of alleged unfair dismissal was
referred. Subsequently the second respondent published the award
under attack.
Grounds
of Review
[4]
The applicant raised a number of grounds, in its papers. In the light
of the crystalized test for review it is unnecessary to
repeat all of
them in this judgment. Suffice to mention that it is apparent that
the applicant is seeking to appeal as opposed
to reviewing.
Argument
[5]
In its founding papers, the applicant flashed out
the following grounds for review:
5.1 The
commissioner committed misconduct in relation to her duties, due to
the fact that she did
not duly and properly apply her mind-
Failure
to apply mind.
5.2 Her
failure to apply mind led her to a legally incorrect and unreasonably
unfair award.
5.3 She
allegedly
ignored evidence
.
5.4 She
committed an error of law by applying the double jeopardy rule-
Error
of law
.
[6]
The bulk of the founding affidavit is replete with
what appears to be grounds of appeal as opposed to review. The
supplementary
affidavit did not introduce further grounds of review
as it is usually done, but sought to support a prayer for condonation
for
the late filing of the review application. Accordingly, the
applicant effectively raised three recognizable grounds of review,
namely, failure to apply mind, ignorance of evidence and error of
law. Therefore this review shall be considered on the strength
of
those grounds and one of reasonable outcome.
Evaluation
[7]
Failure to apply mind simply entails ignoring
relevant evidence and considering irrelevant evidence and or factors.
It is unclear
from the applicant’s papers which irrelevant
factors were taken into account. On the contrary, the second
respondent rendered
a long award wherein she almost verbatim recorded
the evidence of all the witnesses that appeared before her. This
ground of review
is not supported by any irrelevant factors allegedly
taken into account by the second respondent. The ground is bound to
fail.
[8]
With regard to ignoring evidence, it must be
restated that the fact that the evidence is not mentioned in an award
does not suggest
that it was ignored. Commissioners are enjoined to
give brief reasons in terms of the LRA. However on the applicant’s
own
version all the evidence highlighted by it arise from the
paragraphs in the award so rendered. This in itself is an indication
that such evidence was considered by the second respondent.
Considering how the second respondent approached the evidence before
her, I am unable to agree that she ignored any evidence.
[9]
With regard to the error of law, it must again be
restated that not all errors of law vitiates an award. It is only a
material error
of law which affects the outcome that vitiates an
award. According to the applicant, the error of law is confined to
the application
of the principle of double jeopardy. The principle
simply entails being punished twice for the same offence. The
principle is an
acceptable one in our labour law. The second
respondent applied the principle to charge 1, in that May was warned
for the conduct
already. Such finding is consistent with the
principle of double jeopardy. Accordingly a finding of procedural
unfairness applying
this principle cannot be faulted. This ground is
bound to fail as well.
[10]
Turning to
reasonableness test. The findings by the second applicant that there
was no evidence to support charges 2 and 3 cannot
be faulted. They
both fall within the bounds of reasonableness and most of all are
consistent with the evidence presented before
her. With regard to the
harshness of the sanction for charge 1, the second respondent
interfered with the sanction of the employer
with reasons that
demonstrate that the dismissal as a sanction was unfair. In
Quest
Flexible Staffing Solutions (Pty) Ltd v Abram Legoabe
[1]
,
the LAC clarified the issue thus:
In Sidumo, the Constitutional Court
held that a Commissioner is not empowered to establish afresh what
the appropriate sanction
is,
but rather to decide whether the
employer’s decision to dismiss is fair
. In making this
determination, the commissioner should not defer to the decision of
the employer but should weigh up all the relevant
factors, including
the importance of the rule that has been breached, the reason the
employer imposed the sanction of dismissal,
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 the dismissal on the employee, and the employee’s service
record. These factors are, however
not considered by the
Constitutional Court to be an exhaustive list. Hence other relevant
factors that may warrant consideration
in assessing the fairness of a
sanction include the seriousness of the misconduct, the effect of
such conduct on the continuation
of the employment relationship, the
nature of the job and the circumstances of the infringement…In
addition, the appellant
regarded seriously disrespectful conduct, of
the nature committed by the respondent, as an offence that warranted
dismissal on
the first occasion. Its code of conduct provides as
much. In failing or refusing to demonstrate any acceptance of
wrongdoing or
remorse, the respondent rendered the continued
employment relationship with the appellant intolerable and undermined
the applicability
of corrective or progressive discipline. [My
underlining and emphasis]
[11]
Accordingly, I am satisfied that the second
respondent was entitled to interfere with the sanction of dismissal
as it was harsh
and unfair in the circumstances. In the light of the
above stated, I am of a firm view that the award falls within the
bounds of
reasonableness and cannot be interfered with on review.
[12]
There is also an unopposed rule 11 application
seeking to dismiss the review on the grounds of delay. This
application is overtaken
by events. On this day, I heard the review.
Since, I am minded to dismiss the review on its merits, it becomes
unnecessary to give
this application any consideration. I will simply
dismiss it as it was not withdrawn despite the court drawing to the
attention
of counsel that the review is being heard. Allied to this
is a condonation application. The application was four weeks out of
time.
Although the explanation is scant, I would not entertain the
application because it lacked reasonable prospects of success. It too
would simply be dismissed.
[13]
Together with the review application and its
interlocutory applications was a self-standing section 158(1) (c)
application. Since
I am to dismiss the review application, there is
no reason in law why the award should not be made an order of this
court.
[14]
As to
costs, in line with the recent Constitutional Court decision
[2]
,
costs shall not follow the results. There are no reasons why the
applicant should be mulcted with costs.
Conclusions
[15]
As a court of review I must always remind
myself that I cannot substitute the findings of an arbitrator simply
because I would have
come to a different finding. If an award is one
that a reasonable commissioner can arrive at, I cannot substitute it.
I am unable
to fault the second respondent’s findings.
Order
[16]
In the results, I make the following order:
1.
The application to dismiss is hereby dismissed.
2.
The condonation application is hereby dismissed.
3.
The review application is hereby dismissed.
4.
The award of the second respondent under case
number FSD011307 issued on 26 July 2013, is hereby made an order of
this court.
5.
There is no order as to costs.
_______________________
Moshoana,
J
Judge of the
Labour Court of South Africa
APPEARANCES
For
the Applicant:
Advocate
P Venter.
Instructed
by:
Mthembu & Mohamed Attorneys, Bloemfontein.
For
the First Respondent: Advocate J Eastes.
Instructed
by:
Maenetja Attorneys, Pretoria.
[1]
Case Number JA 104/13 delivered on 21 October 2014.
[2]
Sibongile Zungu v Premier of the Province of Kwazulu Natal and
others
[2018] ZACC 1