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[2018] ZALCJHB 89
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Bapela v Public Health and Social Development Sectoral Bargaining Council and Others (JR695/13) [2018] ZALCJHB 89 (2 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 695/13
In the matter between
:
THABISO K BAPELA
Applicant
And
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
First Respondent
COMMISSIONER: PRINCE
KEKANA
Second Respondent
DEPARTMENT OF HEALTH -
GAUTENG
Third Respondent
Heard:
08 December
2017
Delivered:
02 March 2018
Summary:
Review application – dishonesty is a serious offence that
warrants dismissal.
JUDGMENT
Nkutha-
Nkontwana J
Introduction
[1]
The
applicant, Mr Thabiso Bapela (Mr Bapela) seeks an order reviewing the
arbitration award issued by the second respondent, Mr
Prince Kekana
(the arbitrator) dated 10 December 2012 under case number PSHS 320
-11/12. The third respondent, the Department of
Health: Gauteng (DOH)
is opposing the application.
[2]
Mr Bapela’s
main ground of review is that the arbitrator failed to apply his mind
to the material facts before him in relation
to the misconducts and
the sanction; as such, came to an unreasonable outcome.
Background
[3]
Mr Bapela
was employed on 1 August 1997 and at the time of his dismissal he was
occupying a position of a Labour Relations Officer
at Chris Hani
Baragwanath Hospital (Bara). He was charged and found guilty of the
following transgressions:
3.1.
Dishonesty
in that he acted as a Commissioner of Oaths in relation to Mr Mbane’s
appeal letter which he had authored consequent
to the termination of
his services for abscondment between March and September 2008.
3.2.
Conflict of
interest in that he acted as Mr Mbane’s representative when he
was appealing the decision to terminate his services
due to
abscondment between March and September 2008.
3.3.
Bribery or
conflict of interest in that he demanded a payment of an amount of
R5000.00 from Mr Mbane for assisting him to be reinstated.
3.4.
Improper,
disgraceful and unacceptable conduct in that he entered into his
office through a window on one Sunday night.
[4]
Mr Mbane
was a cleaner at Bara and had absconded from work between March and
September 2008. Mr Bapela, as the Labour Relations
Officer, wrote him
letters informing him that he had been absent without authority and
the consequences thereof. Mr Mbane’s
employment contract was
ultimately terminated in terms of section 17(5) of the Public Service
Act
[1]
(the PSA).
[5]
Mr Bapela
handled Mr Mbane's appeal. He wrote the letter of appeal and acted as
the Commissioner of Oaths to commission same. It
was his evidence
that he had assisted Mr Mbane by writing his letter of appeal because
he (Mr Mbane) could not write in English.
Mr Mbane had brought a
letter written in isiZulu and he translated it to English and stamped
the letter with the Commissioner of
Oaths stamp.
[6]
Mr Bapela
conceded under cross examination that he was not a Commissioner of
Oaths as his position was at level 6 whilst only employees
in level 8
and above were designated as Commissioners of Oaths. However,
everyone in the Human Resources Department had been using
the
Commissioner of Oaths stamp irrespective of their levels, so he
further testified. He was adamant that it was his duty to assist
employees with translation of letters even though he failed to
produce the copy of the letter Mr Mbane had written in isiZulu.
[7]
Mr Bapela
went further to write the covering letter for Mr Mbane’s appeal
papers wherein he informed the Appeal Committee
that the DOH had
intended to withdraw the charges against Mr Mbane. Mr Gerald Papo (Mr
Papo), the Head of Labour Relations and
Mr Bapela’s supervisor,
testified that Mr Bapela did not have authority to write the letter
to the Appeal Committee on behalf
of the CEO of Bara, purporting to
withdraw the charge against Mr Mbane. As a result of Mr Bapela’s
letter to the Appeal committee,
Mr Mbane was reinstated with
immediate effect. Mr Bapela testified that he wrote the withdrawal
letter because the employer had
failed to produce the HRD100 form and
that, in any event, the Appeal Committee failed in its duties as they
ought to have rejected
his letter.
[8]
Mr Papo
testified that Mr Bapela’s misconduct was brought to his
attention by Mr Mbane. He had lodged a complaint against
Mr Bapela,
alleging that he asked for a monthly deposit bribe amounting to
R5000.00 into his bank account. Mr Bapela denied that
he had ever
solicited a bribe from Mr Mbane.
[9]
It is
common cause that Mr Bapela had entered his office through a window
on Sunday, 11 January 2009, at 22h00. His defence was
that he had no
key to his office and urgently needed his medication which he has
left in his office. He conceded under cross examination
that he did
not inform the security guards that he was there to fetch his
medication. He also had no explanation for waiting till
late at night
to fetch his medication. When asked by the Court as to why he did not
go to the casualty section at Bara for medical
attention, his
response was that Bara does not supply the type of medication he is
using.
[10]
The
arbitrator found Mr Bapela guilty in respect of the first, second and
fourth charges and not guilty in respect of the third
charge of
bribery. Mr Bapela also challenged the fairness of the procedure
without success.
Review
test
[11]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others,
[2]
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
[3]
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.’
[12]
In
Head
of the Department of Education v Mofokeng
,
[4]
the LAC, endorsing the above judgment, stated that:
‘
[30]
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, … this court in
Gold
Fields
… 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 the setting aside of the award. It must in
addition reveal a misconception of the true enquiry
or result in an
unreasonable outcome…
[31]
… Moreover, judges of the Labour Court should keep in mind
that it is not only the reasonableness
of the outcome which is
subject to scrutiny. As the SCA held in
Herholdt
, the
arbitrator must not misconceive the inquiry or undertake the inquiry
in a misconceived manner. There must be a fair
trial of the
issues.
[32]
… To repeat: flaws in the reasoning of the arbitrator,
evidenced in the failure to apply
the mind, reliance on irrelevant
considerations or the ignoring of material factors etc must be
assessed with the purpose of establishing
whether the arbitrator has
undertaken the wrong inquiry, undertaken the inquiry in the wrong
manner or arrived at an unreasonable
result …
[33]
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.’
Evaluation
[13]
On the
fairness of the procedure. The arbitrator accepted the objective
facts that Mr Bapela had been duly notified of the disciplinary
enquiry on two occasions but failed to attend. The disciplinary
enquiry proceeded in his absence and found him guilty in respect
of
all charges. Mr Bapela failed to proffer a plausible explanation for
his failure to attend the disciplinary enquiry. He also
failed to
submit proof that he had requested a postponement and was granted as
alleged. I my view, the arbitrator’s conclusion
in this regard
cannot be faulted.
[14]
Turning to
the substantive fairness, the crux of Mr Bapela’s case is that
his mitigation circumstances were never taken into
account when the
arbitrator determined the sanction of dismissal. Yet, he was found
guilty of dishonesty and conflict of interest
which are both serious
misconducts.
[15]
Regulation
7(1) of the Regulations Governing the Administering of an Oath or
Affirmation,
[5]
issued in terms
of the Justices of the Peace and Commissioners of Oaths Act,
[6]
a Commissioner of Oaths shall not administer an oath or affirmation
relating to a matter in which he has an interest. Also, the
ex-officio
Commissioner of Oaths must state the rank and his designation in line
with the Regulations. In this instance, Mr Bapela was not
a
Commissioner of Oaths
de
jure
.
Even if he was,
de
facto,
he could not have authored a document and by the same token
commission it as a Commissioner of Oaths when he clearly had an
interest
in the matter.
[16]
Things got
even worse for Mr Bapela as he failed to protect the interest his
employer, the DOH. His misrepresentation of facts to
the Appeal
Committee was evidently meant to benefit Mr Mbane at the expense of
the DOH. In the end, Mr Mbane was reinstated on
the basis of the said
distortion.
[17]
Both these
transgressions have an element of dishonesty which goes to the core
of the employment relationship, which is trust. In
Impala
Platinum Ltd v Jansen and others,
[7]
dealing with the issue of appropriateness of sanction of dismissal in
instances where the transgression is serious, the LAC, per
Judge
President Waglay, stated the following:
‘
[19]
As held in
G4S
Secure
Solutions
(
SA
)
(
Pty
)
Ltd
v
Ruggiero
NO
and
others
,
[8]
an "employment relationship by its nature obliges an employee to
act honestly, in good faith and to protect the interests
of the
employer.
[9]
The high premium placed on honesty in the workplace has led our
courts repeatedly to find that the presence of dishonesty makes
the
restoration of trust, which is at the core of the employment
relationship, unlikely.
[10]
Dismissal for dishonest conduct has been found to be fair where
continued employment is intolerable and dismissal is "a sensible
operational response to risk management".
[11]
In a recent and as yet to be reported judgment of
Schwartz
v
Sasol
Polymers
and
others
,
[12]
this Court dealt with the case of an employee found guilty of
conflict of interest in that his wife had received gifts from several
of his employer's service providers. Unlike in this matter, the
commissioner there found the employee's dismissal to be substantively
unfair. In setting aside the award, this Court (upholding the Labour
Court judgment on substantive fairness) held that the dishonest
nature of the employee's misconduct was of such a nature as to make
continued employment intolerable. It further held that it would
be
fundamentally unfair and unjust to expect an employer to retain in
its workplace a senior employee who has shown himself to
be guilty of
dishonesty.
[13]
The court also took the view that if the employee was remorseful, the
nature of the dishonesty was such that these mitigating factors
could
not help in mitigating the harsh sanction of dismissal. In this
respect, the court held that:
"While I agree . . . that
the lack of remorse shown by appellant is relevant, even if genuine
remorse had been shown by him,
this would only have been a factor to
be considered in his favour in determining sanction and would not
have barred his dismissal,
remorseful or not, having regard to the
seriousness of the misconduct committed."
[14]
[20] The
commissioner rightly found that Jansen's conduct went to the root of
the employment relationship deserving of the severest
sanction. This
cannot be faulted. In fact, it would be unfair to expect the
appellant to retain Jansen in its employ where Jansen
had not only
displayed gross misconduct in failing to comply with statutory
regulations but also contravened the duty to act in
good faith by
promoting his wife's business to appellant's service providers
thereby compromising fairness and honesty within the
appellant’s
business relationships. In the circumstances, there was no need to
lead any evidence of a breakdown in the relationship,
as it was
obviously the case. This ground of appeal thus succeeds.’
(Footnotes integrated)
[18]
Similarly,
in the present case, even if Mr Bapela was remorseful, the nature of
the misconduct is such that his mitigating factors
could not help in
mitigating the harsh sanction of dismissal. The arbitrator correctly
took into account the fact that Mr Bapela
was a Labour Relations
Officer, custodian of discipline, and as such he ought to have set a
good example of discipline.
[19]
On the last
charge, I deem it unnecessary be deal with it the light of the
conclusion I have come to above; save to state that I
find it very
strange that Mr Bapela found it proper to break into his office
through a window at night in order to get his medication
despite Bara
being a heath care facility that offers 24-hour casualty or emergency
services.
[20]
Lastly, Mr
Bapela’s failure to prosecute the review application timeously
is accordingly condoned.
Conclusion
[21]
In
all the circumstances,
the
arbitrator’s findings cannot be faulted and as such the
application stands to be dismissed.
[22]
It is just
and equitable that costs should not follow the result since Mr Bapela
is an individual litigant who conducted his own
case.
[23]
In the
premises, I make the following order:
[24]
Order
1.
The
review application is dismissed with no order as to costs.
__________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Mr T Bapela, unrepresented
For
the respondent:
Advocate Thilivhali Kwinda
Instructed
by:
Mncedisi Ndlovu Sedumedi Attorneys
[1]
Act 103 of 1994 as amended.
[2]
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at para 14.
[3]
(2007) 28 ILJ 2405 (CC).
[4]
Mofokeng
[2015] 1 BLLR 50
(LAC) at paras 30 to 33; see also
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA).
[5]
Published under GN R1258 in GG3619 of
21 July 1972, as amended
[6]
Act 16 of 1963, as amended.
[7]
[2017] 4 BLLR 325
(LAC) at paras 19
to 20.
[8]
Case number CA 2/15 delivered on 25
November 2016.
[9]
At para [26] and see also
Sappi
Novoboard (Pty) Ltd v Bolleurs
(1998) 19 ILJ 784 (LAC) at para [7] [also reported at
[1998] 5 BLLR
460
(LAC) – Ed
]; CSIR
v Fijen
[1996] 6 BLLR 685
(AD) 691;
Murray v Minister
of Defence
[2008] ZASCA 44
;
[2008] 3 All SA
66
(SCA);
[2008] 6 BLLR 513
(SCA);
2009 (3) SA 130
(SCA);
2008 (11)
BCLR 1175
(SCA); (2008) 29 ILJ 1369 (SCA) at para [6].
[10]
Miyambo v CCMA and others
[2010] 10 BLLR 1017
(LAC); (2010) 31 ILJ 2031 (LAC) at para [16];
Toyota SA (Pty) Ltd v
Radebe
supra; and
Hulett
Alluminium (Pty) Ltd v Bargaining Council for the Metal Industry
[2007] ZALC 93
;
[2008] 3 BLLR 241
(LC) at para
[42]
.
[11]
De Beers Consolidated Mines Ltd v
CCMA and others
[2000] 9
BLLR 995
(LAC) at para [22].
[12]
Case number JA46/2014 delivered on 5
October 2015.
[13]
At para [30].
[14]
At para [24].