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[2018] ZALCJHB 399
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SAMWU obo Skosana v South African Local Bargaining Council (JR2296/16) [2018] ZALCJHB 399 (4 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR2296/16
In
the matter between:
SAMWU
obo L.D.
SKOSANA
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
JOSEPH
MPHAPHULI
N.O. Second
Respondent
CITY
OF TSHAWANE
MUNICIPALITY Third
Respondent
Date
heard: 17 October 2018
Delivered:
4 December 2018
JUDGMENT
RABKIN-NAICKER,
J
[1]
This is an opposed application to review and set aside an arbitration
award under case number PMD021524. The review was launched
some 5
days late and the condonation application was unopposed. Condonation
is granted and I proceed to consider the merits of
the review. The
second respondent (the arbitrator) found that the dismissal of Mr
L.D. Skosana (Skosana) was substantively fair.
[2]
The charge of which Skosana was found guilty at his disciplinary
hearing and led to his dismissal was as follows:
“
Charge:
2
You
have Contravened Clause 1.1 of the Standard of Conduct in which all
employees are expected to comply read in particular with
clause 1.2.5
‘conduct themselves with honesty and integrity.’
In
that on or about the 21
st
of November 2013 at Akasia Revenue Offices you created an irregular
arrangement for reconnection of services which had been suspended
by
the council whilst the amount paid by the client was not sufficient
to make such an arrangement.’
ALTERNATIVELY:
You
contravened Clause 1.1 of the Standard of Conduct in which all
employees are expected to comply read in particular with Clause
1.2.3
‘perform their tasks and job responsibilities diligently
carefully and to the best of their ability.’
In
that on or about the 21
st
November 2013 at Akasia Revenue Offices you negligently created an
irregular arrangement contrary to the Credit Control Policy
by
accepting an amount of R3000.00 (three thousand rands) to reconnect
the services which had been suspended by the council.’’
[3]
Skosana was employed by the third respondent (the Municipality) in
1995 until his dismissal in February 2015, and was in the
position of
an administrative officer at the time of his dismissal. His founding
affidavit in this review is deposed to by a union
official who
submits that the Award is subject to review on all the grounds as set
out in s 145 of the Labour Relations Act
[1]
(LRA). The following paragraphs of the founding affidavit bear
recording:
‘’
I
submit that the fact the power supply of a client that the Applicant
advised pay less than the 60% of the amount owed to the Third
Respondent was restored does not mean that the Applicant is the
one who reconnected the power supply of the client.
The
conclusion of the Commissioner that the Applicant’s act of
accepting the amount of R200.00 is sufficient evidence to prove
that
the Applicant was dishonest is irregular in that the money was given
to the Applicant to hand over to another employee of
the Third
Respondent.
I
submit that the Commissioner committed gross irregularity in relation
to his duties in making the award that the dismissal of
the Applicant
was for a fair reason without evidence before the Commissioner to
prove that the Applicant effected the restoration
of the client’s
power supply.
The
Commissioner was unreasonable in assuming that the applicant had a
strong hand in the current matter based on the evidence that
the
client and the Applicant are familiar with each other and the
allegations that the Applicant had on a previous occasion attempted
to initiate water supply using under hand means in favour of the
client as the Applicant was not before the Commissioner to answer
to
this previous allegations against him which he was never charged or
found guilty of committing.
I
further submit that the Commissioner was bias against the Applicant
in concluding that the testimony of the Applicant is unreliable
merely because it is incoherent and inconsistent with the facts
proven by the Applicant’s witness.”
[4]
Skosana’s testimony in chief and under cross examination at
arbitration, as reflected in the record, is the following:
4.1 He knew Mr Goosen, the customer,
because most of the times it was the applicant who had assisted him.
4.2 On the day in question he told Mr
Goosen to pay and bring back a receipt and that Mr Goosen came back
with the receipt and asked
that his reconnection be done
quickly and gave him R200.00.
4.3 He testified that he then took the
receipt to fellow administrator Mr Van Vuuren but he refused to do
the reconnection because
the money that had been paid by Mr Goosen
was less than he was supposed to pay.
4.4 He confirmed that he prepared a
spreadsheet showing that Mr Goosen has paid despite the fact that the
payment was not enough
for reconnection.
4.5 He confirmed that he had
previously been warned about reconnection arrangements for Mr Goosen,
without following the procedures.
4.6
He confirmed that Mr Goosen gave him R200 for assisting him with the
reconnection of the lights. He confirmed that he knew that
Mr Goosen
did not have enough money for a reconnection.
[5]
The Arbitrator records that the Municipality’s four witnesses
led evidence about the procedure to be followed where a
customer is
in default or arrears of payment and wished their power to be
reconnected. This was not contested. He records the following
in his
analysis of the evidence:
“
Messrs
Goosen and Van Vuuren’s testimony related to the events of 21
November 2013. The common denominator of the witnesses’
testimony was that the customer’s power supply was
disconnected, that an amount of R200.00 was exchanged.
According
to Mr Van Vuuren the amount was offered by the Applicant as money for
cool drink. It was common cause that Mr Goosen did
not have
sufficient funds to make payment to initiate payment arrangements or
deferral. Also common cause was that no payment arrangements
were
made. There was no dispute that nonetheless Mr Goosen’s power
supply was restored.”
[6]
The Arbitrator found Skosana’s testimony incoherent and
inconsistent with proven facts and unreliable while at the same
time
he found the evidence of Mr Goosen and Mr Van Vuuren to have been
consistent and reliable. A reading of the record before
the
arbitrator confirms his finding in this respect. It also reflects
that Skosana’s testimony at his disciplinary hearing
was at
odds with his version at arbitration.
[7]
In my view the inding that Skosana’s act in accepting the R200
on that day alone, was sufficient evidence to prove that
he was
dishonest and that there was sufficient ground for dismissal, was
well within the band of reasonableness. The material submission
made
on Skosana’s behalf was that there was no evidence to support
the conclusion that as a final result of the interaction
between
Skosana and Goosen the latter’s electricity was connected. The
evidence established that the person who reconnected
the electricity
was one Mphahlele.
[8]
Taking the approach outlined in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation &
Arbitration & others
[2]
,
the record as a whole supports the Arbitrator’s finding. The
written report of the disciplinary hearing reflects that Skosana
said
he knew Maphalele who does the same work as he does, that he was
stationed at the Soshanguve office and was at work on the
day in
question. I have no hesitation in finding that the ultimate decision
of the arbitrator is not susceptible to review. His
findings are in
line with the evidence before him.
[8] I must agree with the submission
of Mr Matyolo for the Municipality that the review application was
without merit or a proper
basis. I take account of this for the
purposes of my order as to costs below. I make the following order:
Order
1.
The
review application is dismissed with costs.
H. Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
PH Kirstein
Instructed
by:
Maenetja Attorneys
For the Third Respondent:
XD Matyolo
Instructed
by: Gildenhuys
Malatji Inc.
[1]
66 of 1995, as amended.
[2]
(2008) 29 ILJ 964
(LAC) at paragraph 102.