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[2018] ZALCJHB 134
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Valtyn v Department of Education North West and Others (JR2193/15) [2018] ZALCJHB 134 (29 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 2193/15
In
the matter between:
SEITEALENG
LULU
VALTYN
Applicant
and
DEPARTMENT
OF EDUCATION
NORTH
WEST
First Respondent
EDUCATION
LABOUR RELATIONS
COUNCIL
(ELRC)
Second Respondent
COMMISSIONER
THABE PHALANE N.O Third
Respondent
Heard:
18 October 2017
Delivered:
29 March 2018
Summary:
When the applicant has not established that errors committed by an
arbitrator led him to reach an unreasonable result,
the award issued
by the arbitrator falls within bounds of reasonableness and may not
be reviewed and set aside.
JUDGMENT
LALLIE,
J
[1]
The applicant is employed by the first respondent (the Department) at
Delareyville. Her husband, Mr Valtyn (Valtyn), is also
an employee of
the Department. He is a senior official at the district office of the
Dr Mompati Region in Vryburg which is about
80 kilometres from
Delareyville. In March 2015, the applicant received information that
the applicant had assaulted Ms Tshesejane
(Tshesejane), a junior
official, in Valtyn’s office. Tshesejane works with Valtyn. On
10 March 2015, the applicant received
a notice of the Department’s
intention to put her under precautionary suspension. On 16 March
2015, the applicant was placed
under precautionary suspension pending
the finalisation of an investigation and/or disciplinary enquiry that
would be instituted
against her. The disciplinary enquiry was never
instituted instead the applicant’s suspension was lifted. She
then referred
an unfair labour practice dispute relating to her
suspension to the second respondent (the ELRC). The dispute was
arbitrated by
the third respondent (the arbitrator) who issued an
award in which he found the applicant’s suspension procedurally
and substantively
fair. The applicant unsuccessfully sought an order
rescinding the award on the basis that the arbitrator had failed to
consider
heads of argument filed on her behalf before deciding the
dispute before him. In this application the applicant seeks an order
reviewing and setting aside the arbitration award, alternatively,
reviewing and setting aside the rescission ruling. The application
is
opposed by the Department.
[2]
No evidence was led at arbitration. The applicant was represented by
an attorney who submitted a bundle of documents and presented
argument. The parties agreed to further file heads of argument before
25 September 2015. In the award, the arbitrator recorded
that he did
not receive the applicant’s heads of argument and received the
Department’s heads of argument on 29 September
2015. The
arbitrator considered the submission before him, provisions of
section 20 of the Employment of Educators Act
[1]
(the Act) which regulates the suspension of educators as well
as provisions of the Labour Relations Act
[2]
(the LRA). He found no facts suggesting that the Department violated
provisions of the Act. The arbitrator noted the applicant’s
acknowledgement that there were three people in the room or the
vicinity of the alleged incident namely the applicant, her husband
and the victim. He found that the victim was the potential source of
the information about the allegations of assault. The Department
got
information about the allegations and acted on it. It gave the
applicant notice and informed her of the allegations that led
to the
issuing of the notice. For those reasons, the arbitrator found the
suspension procedurally fair. The ruling that the suspension
was also
substantively fair is based on the senior position the applicant’s
husband holds and that he was a potential witness.
The arbitrator
expressed the view that as the applicant and Valtyn were husband and
wife, requesting the applicant to be suspended
from the work place
was more reasonable. He found that the applicant’s presence at
Vryburg would make potential witnesses,
the victim in particular,
uncomfortable.
[3]
The applicant submitted that the arbitrator committed a gross
irregularity in the conduct of the arbitration in not considering
heads of argument filed on her behalf by the agreed date, before
making his decision. A further ground the applicant sought to
rely on
is based on the arbitrator’s failure to consider important
documents filed by the applicant. The documents include
a letter by
the Deputy Director General clearing the applicant of any wrong-doing
and a statement by Tshesejane in which she stated
as follows:
“
I Basheera
Tshesejane has never lodged any complain/grievance about any matter.
I am therefore surprised that everybody is trying
to give me advice
to the contrary.
My relationship with Mr
G.P Valtyn is sound and I still want to work in his office as to
develop myself personally and professionally.
I’ve never
requested any assistance from any union or any individual in any
matter.
Furthermore, I was never
assaulted and did not lodge any complaint with any union or with the
Department.”
The
applicant also submitted that she worked 84 kilometres from
Tshesejane workplace, there was therefore no need to remove her
from
her workstation. The applicant sought an alternative order to have
the rescission ruling reviewed and set aside on the grounds
that the
arbitrator unreasonably refused to consider her heads of argument
which had been filed within the agreed period.
[4]
The Department opposed the application on the grounds that it was an
appeal disguised as a review. It denied that the arbitrator
committed
irregularities in the manner in which he conducted the arbitration or
by the decision he reached. The rescission ruling,
in the first
respondent’s view, cannot be faulted because oral submissions
were made at arbitration on behalf of the applicant.
The applicant
further failed to prove that the arbitrator’s failure to
consider the heads of argument prejudiced her. The
first respondent’s
case was that the award and rescission ruling are correct and
reasonable.
[5]
The test for review is reasonableness. For an arbitration award to
pass muster it must fall within bounds of reasonableness.
The
applicant submitted that the award is unreasonable as a result of
errors made by the arbitrator in the conduct of the arbitration.
The
test to determine whether the arbitrator committed errors which
rendered his award reviewable is expressed as follows in
Head
of the Department of Education v Mofokeng and others
[3]
:
“
[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 enquiry, undertaken the enquiry in the wrong manner or arrived
at an unreasonable result.
Lapses in lawfulness, latent or patent
irregularities and instances of dialectical unreasonableness should
be of such an order
(singularly or cumulatively) as to result in a
misconceived inquiry or a decision which no reasonable decision-maker
could reach
on all the material that was before him or her.’
“
[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.”
[6]
The totality of the evidentiary material before the arbitrator has to
be taken into account in determining the reasonableness
of an award.
The arbitrator erred in not taking the applicant’s heads of
argument into account when making his decision because
they were
filed within the agreed period. The error is not material because the
record reflects that the applicant’s attorney
presented oral
argument at arbitration which the applicant has not accused the
arbitrator of not taking into account. In addition,
the applicant did
not prove that she suffered prejudice as a result of the omission.
She also did not prove that the omission led
the arbitrator to reach
an unreasonable decision.
[7]
An assessment of the evidentiary material which served before the
arbitrator does not support the applicant’s submissions
that
the arbitrator erred in finding her suspension fair. The applicant
submitted that the arbitrator erred in not finding that
there was no
need to suspend her based on the Deputy Director General’s
letter and Tshesejane’s statement. Contrary
to the applicant’s
submissions, the arbitrator considered that on the applicant’s
version there were three people in
the office when the alleged
assault took place and the Department got to know of it. The
arbitrator cannot be faulted for finding
that there was a need to
suspend the applicant when the Department got to know of the
allegation that she assaulted a junior employee
in the office of her
husband who was the most senior official in the district. The finding
is consistent with the Department’s
obligation to ensure a safe
working environment for its employees. The commissioner’s
decision that the Department could
make its own fact finding in her
absence is reasonable.
[8]
The applicant’s argument that the arbitrator failed to consider
the distance between Delareyville and Vryburg has no merit
because
the arbitrator based his decision on the definition of the workplace
presented on behalf of the Department. His decision
is therefore
based on the material before him. The arbitrator had, in term of
section 138 (7) of the LRA, to give brief reasons
for his decision.
He identified the enquiry he had to conduct correctly, conducted it
in the correct manner and reached a reasonable
decision. His award
falls within bounds of reasonableness.
[9]
The rescission ruling can, similarly, not be faulted as the record
supports the arbitrator’s decision that the award was
not made
in the applicant’s absence.
[10] In the premises, the
following order is made:
Order
1
The
application to review the arbitration award is dismissed.
2
The
application to review the rescission ruling is dismissed.
_________________________
Z Lallie
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr
Wissing of Henk Wissing Inc.
For
the Third Respondent: Advocate Murangwa
Instructed
by:
Kgomo Attorneys Inc.
[1]
Act 76 of 1998.
[2]
Act 66 of 1996.
[3]
[2015] 1 BLLR 50
(LAC)
para 33: