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[2018] ZALCCT 2
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NEHAWU obo Tilodi v Ndzombane and Others (C30/15) [2018] ZALCCT 2 (2 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C30/15
In the
matter between
Nehawu
obo Obakeng Victor Tilodi
Applicant
and
COMMISSIONER
T NDZOMBANE
First Respondent
DEPARTMENT
OF HEALTH
Second Respondent
PUBLIC
HEALTH & SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
Third Respondent
Heard:
23 November 2017
Delivered: 2 February 2018
JUDGMENT
RABKIN-NAICKER J
[1] This
is an opposed application to review an arbitration award under case
number PSHS335. The applicant seeks the setting aside
of the award in
as far as the remedy is concerned. The first respondent (the
Arbitrator) found as follows:
“
48.
I find that the applicant’s dismissal was procedurally fair but
substantively unfair. I order the respondent, Department
of Health-
Kwazulu Natal, to pay the applicant Mr Tilodi an amount of R50 083.33
[fifty thousand and eighty three rand and
thirty three cents] by no
later than 31 October 2014.”
[2]
The Court is asked to substitute the award with an order that the
applicant be re-instated. Condonation is
also
sought for the late launching of the review on the 21 of January
2015, some six weeks late. The reasons given for the delay
are
reasonable and I will grant condonation and deal with the merits of
the application.
[3]
The second respondent has raised a point in limine based on the
doctrine of peremption. Its answering affidavit and annexure
reflect
that on 10 February 2015 it transferred the amount of the award, less
tax, into the bank account of the applicant. It submits
that despite
proceeding with the application, the applicant accepted the funds and
has not returned them to his employer. The founding
affidavit makes
no mention of the acceptance of the compensation awarded. No replying
affidavit was filed. In submission the applicant
argues that the
doctrine does not apply as the second respondent unilaterally decided
to pay the money into the applicant’s
bank account after the
application had been launched, and conscious of the fact that it had
been launched.
[4]
I am not satisfied that the stringent test for the doctrine has been
met in this case given the following dictum of the Constitutional
Court:
“
Dabner articulates
principles that govern peremption very well in these terms:
‘
The
rule with regard to peremption is well settled, and has been
enunciated on several occasions by this Court. If the conduct of
an
unsuccessful litigant is such as to point indubitably and necessarily
to the conclusion that he does not intend to attack the
judgment,
then he is held to have acquiesced in it. But the conduct relied upon
must be unequivocal and must be inconsistent with
any intention to
appeal. And the onus of establishing that position is upon the party
alleging it.’
The
onus to establish peremption would be discharged only when the
conduct or communication relied on does ‘point indubitably
and
necessarily to the conclusion’ that there has been an
abandonment of the right to appeal and a resignation to the
unfavourable
judgment or order.”
[1]
[5]
Given that the application was launched before the payment was made,
I do not find that the applicants conduct was unequivocal
and
inconsistent with any intention to challenge the award. The question
for this Court therefore is whether the result of the
award, taking
into account all the material before the arbitrator, is one that a
reasonable decision-maker could not reach,
[6]
The applicant was found guilty in a disciplinary hearing on the
following charges:
“
It
is alleged that on or about 29 November 2011 you were disrespectful
towards your District Manager, Ms Hayward in the workplace
in that
you demonstrated abusive and or insolence(sic) behaviour towards her
in the presence of other managers.
It
is alleged that you made discriminatory and/or derogatory and/or
threatening remarks towards on your face book page on or about
3
February 2012 in that you stated “..stupid manager pissed me
off, fucken racist bitch. Her days are numbered…”
and
communicated this to other staff through social media.”
[7]
The background to the dispute from the applicant’s perspective
is recorded by the Arbitrator as follows:
“
3.
The applicant was employed by the respondent on 21 February 2008 and
placed at EMS in Pinelands Depot as Emergency Care Practitioner.
He
earned a yearly salary of R300 500.00 [three hundred thousand
and five hundred rand] prior to his alleged unfair dismissal.
He was
dismissed on 7 July 2012. He believes that his dismissal was unlawful
and unfair on the basis that the respondent did not
follow an audi
process prior to subjecting to the disciplinary hearing. Moreover,
the respondent took six months before charging
him was unfair as the
actions of the respondent were not prompt and fair in the
circumstances. He denied that the utterances which
were posted on his
face book page were directed to Ms Hayward. At the later stage of
these proceedings he also charged the respondent
actions in that it
was not consistent in applying its rules as Ms Almazen was not
disciplined and she still works for the respondent
even though she
anticipated and attributed derogatory remarks as well.” (sic)
[8]
The applicant did not deny that he posted the utterances in question
but, as the Arbitrator records, “he denies they were
directed
to Ms Hayward. If it is found that the words were directed to Ms
Hayward why then Ms Almazien was not disciplined as she
participated
in that conversation. He stated that it was unfair to selectively
discipline him alone. If he is successful with his
dispute he
requests to be re-instated with full back pay as he was still
unemployed.”
[9]
The arbitrator in essence finds that the dismissal of the applicant
was substantively unfair on the following basis:
“
45.
The respondent was aware that Ms Almiazen had committed an act of
misconduct as per charge 2 but elected not to do anything
where the
offence it considered serious was committed. Logic dictates that any
employer would at least have subjected Ms Almiazen
to a disciplinary
process which the respondent has failed to do so. I find it strange
how the respondent appreciate and reconcile
this anomalism. Moreover
there was no rationale differentiation as to why she was not
disciplined instead of the applicant alone.
Even though I am of the
view that Commissioner’s need to be flexible when it comes to
inconsistency but this one does not
allow me not to interfere with
the sanction of the respondent. Both employees were involved in an
act of uncivilized derogatory
tirade in the public domain about their
manager but one employee is disciplined but when it comes to the
other no actions are taken
without any reasons to the effect. If
indeed the actions of these employees are considered to be so serious
in nature it is absurd
that only one employee was disciplined. The
information was at the disposal of the respondent to charge the other
employee by elected
not to do so.
46.
It is clear that the respondent was involved in an act of unfairness
by selectively discipline one employee and elects to do
nothing to
the other one knowing that both were equally involved in an act of
misconduct.
47.
The applicant requested to be re-instated to his original position
even though I found that the respondent was inconsistent
in applying
its rules which conclusion borders around substantive fairness. I
have taken into account the fact that the applicant
had threatened
his manager and did not want to own up to his mistake by
acknowledging that he made a mistake. That to me would
have been a
sign of remorse. Moreover the applicant used to act in the capacity
of managerial position which places a big responsibility
on him to
act at all times with respect. The seriousness of the charge and the
fact that the trust relationship between himself
and Ms Haywood
described it as irretrievable broken down I have also considered the
fact that Ms Almiazen is still working, the
seriousness of the
transgression by the applicant, the degree of unfairness by the
respondent and the fact that the applicant is
still unemployed. I
therefore award the compensation of R50083.33 [fifty thousand and
eighty three rand and thirty there cents]
which is equivalent to two
months’ salary to the applicant which is just and equitable in
the circumstances.”
[10]
The applicant has underlined the lack of rationality in the award in
submitting that it stands to be reviewed. Indeed, the
reasoning of
the Arbitrator is not a model of clarity. But this is not the test
that the Court must apply. The correct test set
out in, inter alia,
Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & others
(2012) 33 ILJ 2812 (LAC)
bears recording:
“
[20]
The formulation of the test for review for reasonableness in Sidumo
& another v Rustenburg Platinum Mines Ltd
&
others is whether the decision reached by the commissioner is one
that a reasonable decision maker could not reach. The aim
of the test
as formulated by the Constitutional Court is to give effect to the
constitutional right to fair labour practices and
the right to
administrative action which is lawful, reasonable and procedurally
fair. Section 145 of the Act must therefore be
read in such a way as
to ensure that administrative action by the CCMA is lawful,
reasonable and procedurally fair. The Constitutional
Court in Sidumo
emphasized that the distinction between appeals and reviews continues
to be significant in scrutinizing a decision
based on reasonableness
and that 'a judge's task is to ensure that the decisions taken by
administrative agencies fall within the
bounds of reasonableness as
required by the Constitution'. This means that in order
to assail an award of the commissioner
of the CCMA on the Sidumo
test, it is incumbent on the party also to assail the result of the
award and not the reasons of the
commissioner only. Put differently,
the focus is on whether the result of the award falls within a range
of reasonable results
and not whether it is in fact the correct one.
The question is whether there is justification for the decision on
the material
before the commissioner.”
[11]
In this case, the Arbitrator’s granting of a solatium
equivalent to two months compensation for what he considered to
be a
substantively unfair dismissal due to inconsistent disciplinary
action, was well within the range of reasonable results in
all the
specific circumstances of the case. The specific circumstances are as
summarised in paragraph 47 of the Award set out above.
In the Court’s
view, taking account all of the material before the arbitrator, the
decision to award compensation rather
than reinstatement is not
susceptible to review. The discretion on the quantum of compensation
is one that this Court will rarely
disturb
[2]
.
[12]
In all the circumstances therefore, the application to review the
award must fail. I do not intend to make a costs order given
the
ongoing relationship between applicant’s union and the second
respondent. I make the following order:
Order
1. The review application
is dismissed.
2. There is no order as
to costs.
______________________
H
RABKIN-NAICKER
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Union Representative
For
the Second Respondent: Jerome Ven Der Schyff instructed by the
State Attorney
[1]
See SA Revenue Service v Commission for
Conciliation, Mediation & Arbitration & others (2017) 38 ILJ
97 (CC) referring
to Dabner v SA Railways & Harbours
1920
AD 583
at paragraph 36
[2]
Kukard v GKD Delkor (Pty) Ltd (2015) 36 ILJ 640
(LAC) at paragraph 35