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[2018] ZALCJHB 243
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South African Municipal Workers Union and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2220/15) [2018] ZALCJHB 243 (10 July 2018)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNEBURG
Case
no: JR 2220/15
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
First
Applicant
SIMON
BHENGU
Second
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION & ARBITRATION
First
Respondent
ERIC
MYHILL,
N.O.
Second
Respondent
CITY
POWER JOHANNESBURG SOC LTD
Third
Respondent
Heard
:
18 May 2017
Delivered
:
10 July 2018
Summary:
(Review – reasonableness – invalidity of appeal
‘decision’ not a ground for substantive unfairness on
facts of the case –
Sars’s
cases distinguishable
on the facts)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an application to review an arbitration award. The
application was filed late but the late filing was condoned in an
earlier judgement of the court.
[2]
The arbitrator found the dismissal of the second applicant, Mr S
Bhengu (‘Bhengu’) substantively fair but procedurally
unfair and awarded him three months’ remuneration as
compensation.
Background
[1]
Bhengu was charged with six grounds of misconduct related to an
incident on Sunday 19 May 2013 where he had allegedly, in his
private
capacity and without the necessary authorisation, connected the
electronic sign of a customer (‘Adpost’) of
the third
respondent, City Power. The work should have been conducted by a
depot of City Power falling under a different region
from the one in
which Bhengu was a regional manager.
[2]
At his disciplinary enquiry, he pleaded guilty to the first two
charges, namely:
2.1 contravening clause 9.1 (g) of the
disciplinary code by unlawfully misappropriating city powers
property, wilfully or negligently
damaging it and permitting it to be
used in proper or an authorised manner in that he was found by a
security company reconnecting
a customer, Adpost, without
authorisation or documentation.
2.2 Contravening clause 9.1 (l) of the
code by conducting himself in a disgraceful, unbecoming and dishonest
manner prejudicial
to the good proper working of City Power’s
services by conducting himself in the manner described in the first
charge.
[3]
The chairperson of the disciplinary enquiry also found him guilty of
charges 3, 4 and 5, but acquitted him of the last charge
which was
failing to declare his ownership of an entity, Simelane Electrical
CC, which was registered in his name, in City Power’s
register
for declaration of interests. In summary, the other charges Bhengu
was found guilty of in the disciplinary were:
3.1 that contrary to clause 9.1 (g) of
the code he had misappropriated City Power property by allowing
non-City Power employees
to wear City Power reflected jackets while
working on City Power’s network (charge 4);
3.2 contrary to clause 9.1 (l) of the
code he had conducting himself in a disgraceful, unbecoming and
dishonest manner prejudicial
to the good proper working of City
Power’s services by undertaking to provide the necessary
documentation proving that he
had authority to perform the work in
question when he knew he had none (charge 5), and
3.3 that he contravened clause 9.1 (l)
of the code by working on the City Power network in his private
capacity and outside the
region he was supposed to work in. The
applicant worked in the Roodepoort area whereas the substation where
the incident occurred
fell in Booysens under the Reuven depot of City
Power.
[4]
On 21 October 2013, the chairperson recommended Bhengu’s
dismissal, principally on the basis that he had committed an
act of
misappropriation and dishonesty by:
· allowing interference of the
City Power network without prior approval and by saying he will
produce documentation the
following day and never did,
· allowing non-City Power
workers and appointed by him, to wear City Power reflective vests,
· allowing non-City Power
workers to work for him on city powers networks,
· allowing work to be carried
out under his instructions outside his geographical area of
responsibility.
The
chairperson also found that even though there was no evidence of any
personal financial gain made by Bhengu, it was highly improbable
he
would have executed such work for a third party without receiving
some kind of financial benefit.
[5]
On 21 January 2014, Bhengu was issued with a letter signed by the
managing director, Mr S Xulu (‘Xulu’), confirming
the
outcome of the disciplinary enquiry and that “(a) decision was
taken to terminate your services with City Power Johannesburg”.
On 26 January 2014, Bhengu appealed against the findings of guilt and
the sanction.
[6]
An appeal hearing was convened before Mr L Matsheketsheke
(‘Matsheketsheke’), who made the following recommendation
on 23 July 2014, in after considering the appeal:
Recommendation
Having
regard to the circumstances of this case and the nature issues raised
by the appellant, I am of the strong belief in view
that the
employer’s decision of DISMISSAL in this case must be reviewed.
It
is in the light of the above reasons under the conclusion that I am
recommending that the application for leave to appeal be
upheld and
the decision to dismiss Mr Solomon Bhengu from the employment of City
Power be reviewed to a final written warning.
The
final written warning comes with a condition that Mr Solomon Bhengu
must not commit that same misconduct for a period of one
year and
that he must be automatically dismissed if the commit that same
offence within the one-year period from now.
[7]
Matsheketsheke found that the chairperson of the enquiry had
contradicted himself in first finding that there was no evidence
of
personal financial gain, but then finding that it was improbable he
would have reconnected Adpost’s sign without obtaining
some
financial benefit. Although it was not explicit in the reasoning of
the hearing chairperson’s findings, Matsheketsheke
also
believed that the fact that Bhengu was an Area Manager, should not
have been considered an aggravating factor in recommending
his
dismissal.
[8]
Approximately nine months later, on 27 March 2015, the Managing
Director of City Power asked Bhengu to address him in writing
on the
issue of mitigation of the sanction in a letter, viz:
Appeal:
Dismissal
You
were employed by City Power as an Area Manager in Roodepoort. On 22
October 2013 your services with City Power was terminated
following a
disciplinary hearing.
On
26 January 2014, you lodged an appeal against the outcome of the
disciplinary hearing. I have taken advice on the recommendation
emanating from the appeal hearing and before reaching a final
conclusion I would like to be addressed by you on the issue of
mitigation
of the sanction.
I
am hereby affording you an opportunity to submit written submissions
regarding any mitigating factors including personal circumstances
which you would like me to take into consideration.
…
[9]
The managing director then issued a “formal outcome of the
appeal” on 20 May 2015. In the detailed reasons provided
for
the outcome, the managing director reviewed the findings of the
disciplinary enquiry and the appeal hearing. He rejected the
recommendation of the appeal hearing chairperson and confirmed the
sanction of dismissal on the basis that Bhengu had been dishonest.
Clause 9.15.5 of the disciplinary code states:
After considering the record of the
proceedings, documentation and exhibits, in the address and
representation referred to in clause
9.15.3
[1]
and the findings and recommendations referred to in that clause if
any and having heard the parties in their presence, the managing
director shall decide on the appeal, they allow the appeal or
rejected wholly or partly and may make such findings and impose such
a penalty deems fit.
[10]
Clause 9.7.1 of the code provides that a formal enquiry must be
conducted by the managing director or the managing director’s
nominee, subject
inter alia
to the requirement that “…
the decision as to conviction or acquittal shall be that of the
managing director or his
nominee only.”
The
award
[11]
The arbitrator’s award set out the evidence and his analysis in
some detail.
[12]
The thrust of Bhengu’s defence at the arbitration was
essentially six-fold. Firstly, he denied that he had pleaded guilty
to the first two charges at the disciplinary enquiry. Secondly, it
was possible to do work on the network without a job card in
certain
circumstances and that authorisation could be obtained afterwards. He
claimed that he had intended to obtain a job card
the following day
after the incident but had been disturbed by having to make a
statement and then receiving the charge sheet a
few days later. He
admitted to assisting Adpost because the client had phoned him to
complain that the advertising board had no
power. When he arrived at
the mini substation he found two of Adpost’s employees already
there, but they did not know how
to fix the problem and he assisted
them. In relation to the charge of allowing and Adposts’
employees to wear City Power
reflective vests, he claimed that he had
not particularly noticed if the reflective vests they wore were City
Power vests, because
he had been concentrating on assisting them. In
any event, he had no control over how they could have acquired the
vests, which
were generally available. He denied there was any policy
which prevented him from assisting in an area outside the scope of
his
authority. As an area manager he was allowed to attend to a call
in another area without the authority of the area manager responsible
for that area.
[13]
The arbitrator’s main findings relating to the charges may be
summarised as follows:
13.1 On whether or not Bhengu had
pleaded guilty to the first two charges, the arbitrator found that
based on what was recorded
in his appeal application, the evidence of
employee relations officer who attended the disciplinary enquiry and
the outcome of
that enquiry in which the chairperson recorded his
admission to those charges, the arbitrator found the evidence was
overwhelming
that he had pleaded guilty to them. Consequently, he was
not telling the truth when he denied doing so, which negatively
affected
his credibility as a witness.
13.2 Bhengu did not damage any
property of City Power but did misappropriate it when he accessed the
mini substation and reconnected
Adpost’s cable without
authorisation and the necessary documentation. He did so in a manner
that was dishonest and prejudicial
to the good and proper working of
City Power’s services. In this regard, the arbitrator found
that even Bhengu’s own
witnesses’ versions did not
support his contention that it was possible for someone to perform
work without obtaining a job
card or without the authority of the
person in charge of the region in question. The investigating officer
had also testified that
the only persons who could authorise Bhengu
to perform such work would be the general manager or a director of
the division. The
arbitrator further took account of the fact that it
made sense for City Power to divide its operations into separate
areas with
different people having authority over such areas: if a
manager in one area could simply take it upon himself to attend to
customer
requests in other areas it would result in chaos.
13.3 A major difficulty with Bhengu’s
evidence was that, in the statement he made under oath to the
investigating officer
the day after the incident, he claimed that he
had received a call from Adpost to assist in reconnecting its
advertising board
and that he did not need a job card for the work
because Adpost was not a contractor to City Power. This flatly
contradicted his
subsequent evidence that he was required to obtain a
job card and had intended to do so but failed to because of the
investigation
and being charged in the days following the incident.
The arbitrator accepted that he might have been upset by being taken
to the
Reuven depot by the security company, but that did not explain
his failure to obtain a job card subsequently unless Bhengu “…either
did not see the need to obtain one or did not believe he would obtain
one, owing to management in the Booysens area not having
authorised
the job he did”. The arbitrator found that the latter
explanation was most likely because it would have been simple
to have
rectified the situation by obtaining the job card after the event and
he had more than a month to recover between becoming
upset about
being taken to the Reuven depot at the time of the incident and the
time he was charged.
13.4 As a senior official and Area
Manager with twelve years’ experience, Bhengu was aware he
needed authorisation from management
in the Booysen’s area. By
doing what he had done, he had misrepresented that he had the
necessary authority, which was dishonest.
13.5 The arbitrator concurred with the
findings of the chairperson of the disciplinary enquiry and the
Managing Director.
[14]
The arbitrator also considered in great detail what the appropriate
sanction should be and drew the following conclusions in
determining
that dismissal would be appropriate:
14.1 The arbitrator endorsed the
opinion of the managing director that dishonesty could warrant
dismissal even where it was a first
offence, even if there was no
proof of any financial benefit and that an employee in a senior
position could be held to a higher
standard of trust and compliance.
14.2 In considering the application of
the principles in item 3 (4) of schedule 8 of the Labour Relations
Act, 66 of 1995 (‘the
LRA’), the arbitrator concluded
that the aggravating factors outweighed the mitigating ones. In this
regard he found the
following relevant:
14.2.1
Bhengu was in a position of trust, which she abused when he used his
ability to access the substation and reconnect the advertising
board
without authority to do so.
14.2.2
The fact that unauthorised and illegal reading connections of
electricity clearly create the potential for financial loss
to be
suffered by the respondent though there was no evidence this occurred
in this instance.
14.2.3
Bhengu showed no remorse for his conduct, which was an important
factor in deciding if he could reasonably be trusted again.
14.2.4
Bhengu untrustworthiness was also illustrated by his continued
dishonesty in the arbitration.
14.2.5
The factors above outweighed the fact that it was a first offence and
that he had a good record of 12 years’ service.
[15]
The arbitrator found that Bhengu’s dismissal was procedurally
unfair because the managing director ought to have invited
him to
address him on the issue of the appeal chairperson’s
recommendations before deciding to reject them, and Xulu had
delayed
excessively in rendering his decision on the appeal nearly a year
after the chairperson of the appeal hearing had made
his
recommendations. However, as this finding is not the subject matter
of the review application, it is not necessary to
deal with this.
Grounds
of review and evaluation
Grounds
of review
[16]
The court is only concerned
with the grounds of review raised in the pleadings and not with any
additional grounds raised in the
heads of argument.
[2]
Bhengu raised a number of different grounds of review. Firstly, he
questions the reasoning of the arbitrator on the basis that
he failed
to consider certain evidence in concluding that he was dishonest.
Secondly, that by endorsing the findings of the chairperson
of the
enquiry and the managing director, the arbitrator failed to approach
the arbitration as a
de novo
hearing. Thirdly, that the arbitrator misdirected himself by applying
the wrong test in determining the appropriate sanction by
basing that
on dishonesty, when it should have been apparent that the real reason
for his dismissal was not dishonesty but simply
a failure to follow
standard operating procedures. The arbitrator improperly concluded
that the connection of Adpost’s billboard
was an illegal or
unauthorised connection. The arbitrator misdirected himself in
treating the determination of the appropriate
sanction as if he was
considering an appeal, because he did not independently consider the
appropriateness of the sanction but
deferred to the decision of the
chairperson of the enquiry. Had he considered all the factors
including the fact that he continued
to work for City Power for a
period of eight months after the offence and his family
responsibilities, he could never have come
to the conclusion he did.
There was no evidence from City Power to the effect that he could not
be trusted.
[17]
In his supplementary affidavit, Bhengu went further and contended
that the arbitrator failed to consider whether the managing
director
had the power to dismiss him following the recommendation of the
appeal hearing chairperson. In truth, the applicant submits,
the
managing director only had the power to consider whether or not to
accept the recommendation of the chairperson of the original
disciplinary hearing. The failure to adhere to the recommendation of
the chairperson of the appeal hearing, whom the managing director
had
nominated to determine the appeal in his stead, was such a
fundamental procedural irregularity that the arbitrator ought to
have
found that it rendered his dismissal not only procedurally but also
substantively unfair. Bhengu concluded “(o)n this
ground alone,
the arbitrator’s award fails the reasonableness test and
therefore should be reviewed and set aside. Secondly,
Bhengu submits
that the failure of City Power to call the managing director, who had
taken the decision to dismiss him, was fatal
because his evidence was
necessary to prove that his dismissal was warranted. Lastly, he
contends that the managing director had
decided that there was a
breakdown of trust on the basis of a legal opinion rather than the
existence of any facts and therefore
the arbitrator could not
reasonably have concluded that the sanction of dismissal was
appropriate.
Evaluation
[18]
In relation to an arbitrator’s
alleged failure to consider certain factors or mis-directions, it is
necessary for the applicant
on review to demonstrate that the failure
in question necessarily led the arbitrator to make findings which no
reasonable arbitrator
could have made on the evidence before them. In
Head of Department of
Education v Mofokeng and Others
[3]
the Labour Appeal Court stated:
[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 enquiry.
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 enquiry,
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.
[19]
The applicant’s claim that by endorsing the findings of the
chairperson of the enquiry and the managing director, the
arbitrator
failed to approach the arbitration as a
de novo
hearing, is
hard to credit as a serious ground of review. Anyone reading the
arbitration award would realise that his ‘endorsement’
of
those persons’ decisions was simply another way of saying that
there was an overlap between his conclusions and their
conclusions.
It is quite obvious that he considered the evidence before him and
drew conclusions based on that evidence. Nothing
in his reasoning
suggests he believed he was engaged in an appeal process.
[20]
In relation to the finding of dishonesty, the applicant seeks to
suggest that the finding of dishonesty was based simply on
whether or
not there had been a misappropriation of City Power’s property.
Firstly, the arbitrator’s conclusion that
there had been
misappropriation was based on the fact that he concluded that Bhengu
had accessed the substation to reconnect Adpost’s
advertising
board without the necessary authority and because it was unauthorised
it constituted improper use of City Power’s
property. I fail to
understand why that cannot be construed as misappropriation.
[21]
In any event, the finding of dishonesty was not simply based on
Bhengu facilitating the reconnection of Adpost’s signed
without
authority. As the arbitrator stated: “ I am also satisfied that
he did this [i.e improperly used the property] in
a dishonest manner
…” It is clear from the award that the dishonesty
related to Bhengu’s representation to the
security officers
that he had the necessary authority to perform the work and that he
would obtain a job card afterwards. The arbitrator
found that his
explanation that he did not get round to obtaining the job card owing
to being upset about being taken to the Reuven
depot and making a
statement was not plausible and that the more plausible explanation
was that he knew he would not obtain a job
card because the work was
not authorised. Clearly that was also the underlying issue behind
Charge 5.
[22]
For this reason also, the submission that Bhengu’s misconduct
simply concerned a failure to follow standard operating
procedures is
plainly inaccurate and consequently, it was not incorrect of the
arbitrator, or for that matter the chairpersons
of the disciplinary
enquiry and the managing director to identify dishonesty as an issue.
Having initially implied that authority
had been granted and proof of
authority would be obtained, his defence shifted to arguing that he
was authorised by virtue merely
of his position as an Area Manager,
even though he was working on City Power equipment in an area outside
his authority, or alternatively
that it was not necessary doing work
for a client of City Power. Even his own witnesses confirmed the
importance of obtaining a
job card for performing work.
[23]
In relation to the absence of specific evidence of management’s
inability to trust him in future, was it unreasonable
for the
arbitrator to make a finding on his trustworthiness in the
circumstances? Bhengu was in a senior position. He clearly
was
of the view he had done no wrong by accessing a sub-station outside
his area of authority without even notifying the area manager
in
charge. His failure to admit any wrongdoing or regret strongly
indicates he felt he was fully justified in his actions. In the
circumstances, what evidence was there that he was unlikely to do
something similar in the future? It may be true he continued
to work
while City Power took excessively long to finalise his case, but it
does not follow that a relationship of trust existed
or had been
restored. I believe the arbitrator was not unreasonable in concluding
that, given his seniority, his dishonesty was
an important factor in
determining an appropriate sanction.
[24]
Insofar as the arbitrator equated the re-connection of Adpost’s
billboard with an illegal or unauthorised connection,
I agree the
arbitrator misconstrued that evidence, but leaving aside that
inference it does not mean his decision could not be
sustained on the
evidence before him.
[25]
Whether or not the managing director acted
ultra vires
in
finally imposing a sanction of dismissal and therefore rendered
Bhengu’s dismissal substantively unfair raises a more serious
challenge, though it has little to do with the intrinsic merits of
whether it was appropriate to dismiss him.
[26]
In
County
Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
[4]
the Labour Appeal Court upheld a finding that a dismissal was
procedurally unfair where the employer had interfered with the
findings
of the chairperson of the disciplinary enquiry in the
absence of any express provision in the disciplinary code which
permitted
such interference.
[5]
Subsequently, the LAC has held in two judgements, namely
SA
Revenue Service v Commission for Conciliation, Mediation &
Arbitration & others
[6]
(the ‘Chatrooghoon’ case) and
SA
Revenue Service v Commission for Conciliation, Mediation &
Arbitration & others
[7]
(the ‘Kruger’ case)
,
that where a decision is
taken to dismiss an employee but the decision maker lacks legal
authority to take the decision, that renders
the decision unfair.
[27]
In
Chatrooghoon
,
the LAC found that the employer had acted
ultra
vires
the disciplinary code
and collective agreement in substituting its own decision for that of
the chairperson of the disciplinary
enquiry, who imposed a sanction
of fifteen days’ suspension without pay and a final written
warning. The arbitrator had also
found that there was no basis for
finding the trust relationship had broken down.
[8]
The LAC decided that the sanction of the chairperson was the final
one and not a mere recommendation.
[9]
Although the judgement did not starkly delineate its analysis of
procedural and substantive fairness, the logic of the judgement
makes
it clear that in the circumstances, SARS was bound by the decision of
the enquiry chairperson who decided that dismissal
was not
appropriate and therefore the employer could not defend a subsequent
decision to impose a sanction of dismissal.
[28]
In
Kruger
, the LAC reaffirmed the reasoning in
Chatrooghoon
.
In upholding the decision of the Labour Court, the LAC stated:
[28] Pillay J thereupon held that the
arbitrator's decision that the dismissal of Mr Kruger, by means of a
substituted sanction
based on a non-existent authority to make such a
substitution, was not unreasonable and dismissed the review
application.
The 'merits' of
the allegations of misconduct did not affect that decision and Pillay
J, correctly, did not deal with the arbitrator's
treatment of that
topic
.
In
my view, that approach by Pillay J was correct because once the
dismissal decision was up-ended on grounds of invalidity, there
was
no need to enquire further, and indeed no logical room or
justification, to entertain an enquiry into that subject-matter
.
The arbitrator, who did so, was misled into undertaking such an
enquiry, and ultimately regardless of the factual findings, they
could have no impact on the ratio in the award; i.e
the
substituted sanction was invalid and for that reason the dismissal
was unfair
.
[10]
(emphasis
added)
[29]
The LAC also considered the employer’s contention that the
finding of unfairness in such instances should be confined
only to
the question of procedural fairness but that the substantive merits
of whether a dismissal was warranted by the misconduct
could still be
entertained. After a long excursus, the court unequivocally held that
the invalidity of a subsequent decision by
an employer to dismiss an
employee contrary to an earlier valid decision is fatal and disposes
of the need for a separate enquiry
into the substantive fairness of
the dismissal based on the underlying merits:
[42] Thus, in my view, it must follow
that if the substitution of a sanction is invalid, as found in
Chatrooghoon,
that invalidity vitiates the act completely; ie it
cannot be made
. Invalidity is more than procedural unfairness, it
denotes an unlawful act; ie one the law will not acknowledge.
Accordingly, in my view Pillay J was correct to hold that an
invalid substitution of a sanction was not merely an instance of
procedural
unfairness that might leave open a space for a parallel
enquiry into the appropriateness of a remedy for such a 'procedural'
mishap
and, in turn, allow space to address the gravamen of the
misconduct per se
. Similarly, the contention that the judgment of
Ndlovu JA, in Chatrooghoon, has application only to procedural
unfairness
cannot succeed because the force of those dicta by Ndlovu
JA is that a substitution of a sanction without a lawful foundation
is
not merely unfair for want of a procedural authorisation, but is
invalid.
[30]
The question then in this case is: when was a valid decision on
disciplinary action taken? Was it the last decision taken by
the
managing director, who rejected the recommendation of the chairperson
of the appeal hearing, or should the recommendation of
the
chairperson of the appeal hearing be found to have been the final and
valid decision? The relevant provisions of the disciplinary
code,
which it was common cause was a collective agreement and binding on
City Power, are:
9.3 When an allegation of misconduct
is made against an employee, the Managing Director shall within six
(6) working days of the
alleged misconduct being made known, either
himself investigate the allegation, or designate another person to
investigate the
allegation and report the result of such
investigation to him.
9.4 Within six (6) working days of the
managing director commencing an investigation, or a person being
designated in terms of clause
9.3, or within such longer period as
the Managing Director may allow, the Managing Director shall decide
whether an enquiry should
be instituted and if so, the Managing
Director or person designated shall cause a written charge to be
drawn up in which - …
…
9.6 If an employee admits that he is
guilty of such misconduct as set out in a charge served on him in
terms of clause 9.5, the
Managing Director may after having given the
employee or his representative the opportunity of leading evidence
and addressing
him in mitigation, find such employee guilty of
misconduct and impose a penalty subject mutatis mutandis to the
provisions of clause
9.14.2 9.14.3.
9.7.1
a formal enquiry into any
unresolved charge shall be conducted by the managing director or his
nominee
, who may be assisted in evaluating the evidence did in
the hearing by not more than two assesses, who may include a member
of City
Power Johannesburg’s legal stop, subject to the
following conditions –
a)
the decision as to conviction or
acquittal shall be that of the managing director or his nominee only
;
…
…
9.14.1 If at an enquiry, the employee
charged is found guilty of misconduct,
and a person other than the
Managing Director was the presiding officer
, such officer shall,
within two (2) working days, or such longer period not exceeding five
(5) working days allowed by such managing
director,
submit a
report to such Managing Director sitting out in motivating his
findings and the penalty which he deems appropriate
.
9.14.2 The
Managing Director
shall
, after having conducted an enquiry and having found the
employee charged, guilty
or having received and considered a
report by the presiding officer in terms of clause 9.14.1, which
report should include any plea
in mitigation, impose a penalty
,
….
9.14.3 The
Managing Director shall
forthwith in writing notify the employer concerned and the Director:
Corporate Services of the penalty imposed
by him …
9.15.1 An employee who has been
convicted and in respect of whom a penalty has been imposed
or
proposed
as contemplated in clause 9.6 May within five (5)
working days after the date of such imposition, or the date on which
he was advised
of the conviction or proposed penalty, as the case may
be,
appeal against such conviction, the penalty or proposed
penalty or both
by lodging a written notice of appeal with the
Managing Director.
9.15.2 An appeal hearing lodged in
terms of 9.15.1 shall be heard within 10 (10) working days of the
date on which such appeal is
lodged.
9.15.3 If an appeal is lodged in terms
of clause 9.15.1, the director concerned shall, on request, forthwith
submit to the managing
director and to the employee and the written
reasons for the conviction, penalty or recommendation.
9.15.4 The person designated in terms
of clause 9.7.1 [the managing director or his nominee] may address
the managing director in
support of his findings and recommendation
at the enquiry and submit written representations and the appellant
with or without
his representatives shall have the right to address
the managing director on such oral and written representations, and
to submit
written representations, to which the designated person
shall have a right of reply.
9.15.5 After having considered the
record of the proceedings, documentation and exhibits, any address
and representations referred
to in clause 9.15.3 and the findings and
recommendations referred to in that clause, if any, and having heard
the parties in their
presence,
the managing director shall decide
on the appeal and may allow the appeal or reject it wholly or
partially and make such findings
and impose such penalty as he deems
fit
; ….
…
9.23 for the purpose of this
Chapter
[11]
,
Managing Director and unless the context otherwise indicates,
every
reference to the Managing Director shall include a nominee of the
Managing Director
.
[31]
Bhengu’s submission in his supplementary affidavit is that,
having chosen to appoint Matsheketsheke as the chairperson
of the
appeal hearing, his “recommendation” in fact amounted to
a decision of the Managing Director, who was not at
liberty to change
it. Moreover, there was no provision in the disciplinary code, which
allowed the managing director to reconsider
the decision of the
appeal chairperson. Insofar as the managing director has a discretion
under the code, that discretion is limited
to whether or not to
accept the recommendation of the chairperson of the initial
disciplinary enquiry contemplated under clauses
9.14.1 to 9.14.3.
City Power argues in terms of clause 9.15.5 it was clear that the
decision on any appeal still lay ultimately
with the Managing
Director.
[32]
I agree that insofar as the decision of the disciplinary chairperson
was concerned that, in terms of the provisions of clause
19.14.1, it
is clear that his findings on the question of guilt and his
recommendations on an appropriate penalty are to be submitted
to the
managing director. In terms of clause 19.14.2, the managing director
may then impose a sanction. The employee is then entitled
under
clause 9.15.1 to submit an appeal against both the conviction and
sanction to the managing director. By 21 January 2014,
Bhengu’s
conviction and sanction had been determined and imposed, subject to
his right of appeal which he then exercised.
[33]
The appeal hearing was then convened with Matsheketsheke as the
chairperson. Obviously, he was not the managing director, Xulu.
However, it is clear that he was fulfilling the role of the managing
director in presiding in the appeal hearing. Moreover, clause
9.23
specifically provides that the reference to the managing director in
clause 9.15 would also include his nominee. That is the
only capacity
in which Matsheketsheke could have been sitting. Accordingly, he was
required to perform the functions of the chairperson
of that hearing
in the Managing Director’s stead.
[34]
The code makes no provision for the chairperson of the appeal hearing
to make a recommendation, but requires him or her to
decide the
appeal. Moreover, the code makes no provision for any person other
than the chairperson of the appeal hearing to decide
the appeal. As
such, Xulu had no power to reject Matsheketsheke’s
recommendations and substitute them with his own decision.
This is
unlike
Chatrooghoon
’s case, where SARS altered a
chairperson’s decision, not a recommendation. All Xulu
could have done was insist
that Matsheketsheke take the appeal
decision himself. Nevertheless, the upshot of all of this is that no
decision, as such, was
made on Bhengu’s appeal. That means the
last competent decision taken under the code was that of the enquiry
chairperson,
which was properly confirmed by Xulu under the
provisions of clause 9.14.2, before the appeal was lodged. In
substance, the reasoning
of the enquiry chairperson’s decision
was the same that City Power argued in support of in the arbitration
proceedings, because
Xulu’s ‘review’ of
Matsheketsheke recommendation endorsed the enquiry chairperson’s
approach. In conclusion,
the invalidity of Xulu’s purported
decision on Bhengu’s appeal does not render the dismissal
invalid as it did in the
SARS cases and so does not impact on the
reasonableness of the arbitrator’s findings on substantive
fairness
[35]
On the question whether or not the arbitrator failed to see that the
failure of City Power to call Xulu to defend the reasons
for
dismissing him, this ground has no merit. As the applicants
themselves point out the hearing before the arbitrator was a hearing
de novo.
The arbitrator was not reviewing the employer’s
decision, but deciding if it had made out a case on the evidence
presented
at the arbitration that warranted upholding the dismissal
as fair. That process does not require a party to lead the evidence
of
the person who took the decision, though it might be customary to
do so.
Conclusions
and Costs
[36]
In summary, for the reasons above, I am not satisfied the applicants
have established grounds of review that warrant the court
setting the
award aside.
[37]
On the question of costs, I accept that the application was
bona
fide
and not frivolous. In the circumstances, justice and
fairness do not warrant an adverse cost order against the applicants.
Order
[38]
The review application is dismissed.
[39]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
I
Savant of Cheadle, Thompson & Haysom Inc.
RESPONDENT:
A
L Cook instructed by Zebedilia Inc.
[1]
Clause 9.15.3 refers to the furnishing of a record of the enquiry to
the employee and the managing director if an appeal is lodged.
[2]
See
Comtech (Pty) Ltd v
Molony NO and Others
(DA12/05)
[2007] ZALAC 40
(21 December 2007) at para [15].
[3]
(2015) 36
ILJ
2802 (LAC) at 2813
[4]
(2003) 24
ILJ
355
(LAC)
[5]
At 360-1, paras [21] –[23].
[6]
(2014) 35
ILJ
656
(LAC)
[7]
(2016) 37 ILJ 655 (LAC)
[8]
At 661, para [13]
[9]
At 664, para [24].
[10]
At 667.
[11]
This is a reference to chapter 9 of the agreement which contains the
code.