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[2018] ZALCJHB 414
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Njisane v Hawyes and Others (JR 442 /17) [2018] ZALCJHB 414 (8 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE
Not
reportable
CASE
NO: JR 442 /17
In
the matter between:
MZUKISI
NJISANE
Applicant
and
COMMISSIONER MARK
HAWYES
First
Respondent
EDUCATION LABOUR RELATIONS
COUNCIL
Second Respondent
GAUTENG PROVINCIAL DEPARTMENT OF
EDUCATION
Third
Respondent
Heard: 24 October 2018
Delivered: 8 November 2018
JUDGMENT
[1]
The applicant was employed as a teacher in 1987. In April 2017 when
he was the principal of Maputle Primary School he was charged
with
improper, disgraceful and unacceptable behaviour for touching the
breasts of a female educator at his school and attempting
to kiss
her. A disciplinary enquiry was instituted against him and on 19 June
2017 the applicant received and acknowledged a letter
form the Head
of the Department of Education which reads as follows:
“
Dear
Mr. Njisane
Disciplinary
Hearing Outcome
You
were charged with misconduct in terms of item 5 of the Disciplinary
Code and Procedure for Educators.
The
allegation read as follows:
Allegation1
It
is alleged that on 22 October 2016 you behaved in an improper,
disgraceful and unacceptable manner in that you touched the breasts
of Ms. Mahowa, an educator at Maputle Primary School and/ or
attempted to kiss her.
In
view of your actions, you are thus charged with misconduct in terms
of Section 10(1)(q) OF
Employment of Educators, Act 76 of 1998
, as
amended.
VERDICT
Alegation1:
Guilty
SANCTION
Since
you were found guilty on the allegation, the Presiding Officer has
after careful consideration of mitigation and aggravating
circumstances submitted, issued the following sanction.
Dismissal
in terms of Section 18(3)(i) of the Employment of Educators Act, (Act
76 of 1998), as amended.
RIGHT
TO APPEAL
Your
attention is drawn to Section 25(2) of the Employment of Educators
Act, (Act 76 of 1998 as amended) which provides that
an
educator or an employee has a right to appeal to the Member of the
Executive Council against the finding by the Presiding Officer
of the
disciplinary hearing and against the sanction imposed in terms of
section 18(2)(e) to (i).
Should
you want to appeal, your appeal should be made to the MEC on the
attached form within five (5) working days of your receiving
this
notice for the attention of Mr. Oupa Bodibe at Fax no: (011)
355-0542.
Furthermore,
copy of this appeal must be forwarded to Ms. Toniya Lyras at Fax no:
086 612 8474. Should such a copy of appeal
not be received
within the stipulated time-frame, the sanction will automatically be
implemented.
Attached
please find an appeal form in the event of you wanting to appeal”.
[2]
Schools closed for the winter school holidays on 30 June 2017 and
reopened on 24 July 2017. As the third respondent had not
received
the applicant’s appeal, the district office issued a mandate on
6 July 2017 for the implementation of the sanction
of dismissal with
effect from 21 June 2017. It was brought to the third respondent’s
attention that the applicant had reported
for duty. The third
respondent mandated Ms Mphongo its Circuit Manager to inform the
applicant that he should not have been at
school as he had been
dismissed.
[3]
On 26 July the applicant visited the Dispute Management office in the
Gauteng West District and informed Mr. Tshitshimba that
he had lodged
an appeal with the Member of the Executive Committee for Education
(the MEC). He was requested to submit proof. He
submitted a fax
transmission report which reflected that he attempted to fax his
appeal to the number of Ms Lyras on 28 June 2017.
The result of the
fax transmission is “com error 326”. On 26 July the
applicant sent an email to an official who works
in MEC’s
office. He submitted that he did so in response to being asked to
produce proof that he had filed his appeal. The
applicant submitted
that as he was not aware that he had been dismissed on 21 June 2017
he referred an unfair discrimination and
victimisation dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA). It was
scheduled for hearing on 25
January 2018. On 16 January 2018 the
applicant referred an unfair dismissal dispute and a condonation
application to the second
respondent (the ELRC). On 25 January
commissioner Pretorius of the CCMA issued a ruling in the applicant’s
unfair discrimination
dispute to the effect that it lacked
jurisdiction over the dispute. He directed the CCMA to transfer the
dispute to the ELRC as
a misconduct dispute in a ruling dated 22
February 2019. The ELRC refused to condone the applicant’s late
referral of the
unfair dismissal dispute. In the application at hand
the applicant seeks an order reviewing and setting the condonation
ruling
aside. The application is opposed by the third respondent.
[4]
In his reasons for refusing condonation the first respondent (the
arbitrator) rejected the applicant’s version that he
became
aware of his dismissal upon receiving a phone call on 27 July that he
was not supposed to be at his school as he had been
dismissed. He
further rejected the assertion that the applicant’s dismissal
was confirmed on 31 August 2017 when he did not
receive his salary.
He found that the explanation the applicant proffered for referring
his dispute to the ELRC late was tantamount
to no explanation. Even
the reasons the applicant provided for referring the dispute to the
CCMA first as a discrimination dispute
did not assist him as the
arbitrator was not convinced that the applicant was not aware that he
had been dismissed in the letter
he received on 21 June 2017. He
concluded that an excessive delay of over 6 months without reasonable
explanation constituted sufficient
grounds for refusing condonation.
[5]
The applicant’s grounds for review are that the arbitrator
committed gross irregularities in the conduct of the arbitration
by
making a number of errors which led to him reach an unreasonable
decision. He submitted that the arbitrator erred in not considering
his replying affidavit. He further erred in not taking into account
that the chairperson of his disciplinary enquiry did not have
the
authority to issue the sanction of dismissal. He also failed to
consider all the contents of the letter the applicant received
on 21
June 2017. The applicant submitted that the arbitrator erred in not
considering that he had a right to appeal which had been
violated by
the third respondent. He failed to consider that he prosecuted his
dispute diligently by referring an unfair discrimination
dispute to
the CCMA on 18 August 2017. He also erred in not considering the
prejudice the applicant would suffer as a result of
the refusal of
condonation.
[6]
The third respondent opposed the review application on the grounds
that all the grounds the applicant sought to rely on were
invalid and
that the condonation ruing could not be faulted. The test for review
based on section 145(2) of the Labour Relations
Act
[1]
(the LRA) that the arbitrator committed gross irregularities in the
conduct of an arbitration is enunciated as follows in
Head
of the Department of Education V Mofokeng and Others
[2]
‘
However,
sight may not be lost of the intention of the legislature to restrict
the scope of review when it enacted section 145 of
LRA,, confining
review to “defects” as defined in section 145(2) being
misconduct, gross irregularity, exceeding powers
and improperly
obtaining the award. Review is not permissible on the same grounds
that apply under PAJA. Mere errors of fact or
law may not be enough
to vitiate the award. Something more is required. 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.’
[7]
The first step the applicant had to establish was whether the
arbitrator made errors. I have considered the submissions on behalf
of the applicant and the third respondent and am convinced that the
applicant did not establish that the arbitrator made errors
for the
reasons given below:
[8]
The applicant did not refute the third respondent’s averments
that in terms of clause 8 of schedule 2 to the Employment
Educators
Act
[3]
(Educators Act), the presiding officer of a disciplinary enquiry has
the power to impose the sanction of dismissal. The applicant’s
ground for review that the arbitrator erred in finding that the
presiding officer had the power cannot stand. The record supports
the
third respondent’s argument that the arbitrator correctly found
that the applicant was advised of his dismissal on 21
June 2017 and
referred his dispute to the ELRC more than 6 months late. The letter
received by the applicant on 21 June 2017 (the
letter) advises the
applicant that he had been found guilty of the charge of misconduct
which had been preferred against him. It
further advises him that the
presiding officer had issued the sanction in terms of section 18(2)
(i) of the Employment of Educators
Act. In the letter, the applicant
is pertinently apprised of his right to appeal with the MEC within 5
working days from 21 June
2017 and to fax a copy of his appeal to Ms
Lyras. He was given the fax number of both the MEC and Lyras. The
applicant is further
informed in the letter that should a copy of his
appeal not be received within the stipulated period the sanction
would be implemented
automatically. The letter is couched in very
clear terms. On the applicant’s own version before the
arbitrator he did not
exercise his right to appeal within the
stipulated period. When the 5 working days after 21 June 2017
expired, the sanction of
dismissal was implemented. He attempted
without success to fax his appeal to Lyras on 28 June 2017. The
result was “com error
326” his attempt fell short of the
requirement in the letter that his appeal had to be received within 5
working days. He
did not fax his appeal to the MEC within 5 days at
all and emailed it to a staff member of the MEC’s office on 26
July 2017,
long after the 5 working days’ period had expired.
There is therefore no merit in the applicant’s submission that
the
arbitrator erred in finding that he was dismissed on 21 June 2017
as his finding is based on evidence tendered at arbitration.
[9]
The arbitrator can further not be faulted for finding the reason
proffered by the applicant for the delay unacceptable. Refusing
condonation for excessive delay which the applicant provided no
reasonable explanation for is consistent with authorities on
condonation.
The applicant failed to establish valid grounds for
review. His application cannot succeed.
[10]
In the premises the following order is made:
Order
1.
The application for
review is dismissed.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Advocate F.P. Phamba
Instructed
by:
Sinele W.W. Attorneys
For
the Respondent:
Advocate T. Motloenya
Instructed
by:
State Attorney (Johannesburg)
[1]
Act 66 of 1995.
[2]
[2015] 1 BLLR 50
(LAC) para 32.
[3]
Act 76 of 1998.