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[2018] ZALCPE 14
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Buffalo City Municipality v South Africa Local Government Bargaining Council, Eastern Cape Regional Office and Others (PR73/15) [2018] ZALCPE 14 (11 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case No: PR73/15
In
the matter between:
BUFFALO
CITY MUNICIPALITY
Applicant
and
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL, EASTERN CAPE
REGIONAL
OFFICE
First
Respondent
MALUSI
MBULI N.O
Second Respondent
SAMWU
OBO S SPILITO
Third Respondent
Heard:
3 August 2017
Delivered:
11 April 2018
Summary:
When an arbitrator has failed to take into account material and
relevant evidence and the failure results in the arbitrator
reaching
a decision a reasonable decision maker could not reach, the
arbitrator’s award may be reviewed and set aside.
JUDGMENT
LALLIE,
J
[1]
The individual third respondent Ms Spilito (Spilito) was employed by
the applicant as a ticket clerk/cashier at the applicant’s
swimming pool complex (the swimming pool). After an incident
involving the disappearance of money from the swimming pool, Spilito
appeared at a disciplinary enquiry on the following charges:
‘
Theft in that on the 18
th
October 2013 the Applicant stole the municipal money amounting to
(R2160.00) that was paid by Fani Gaqa Primary School.
Gross dishonesty in that:
a)
On the 18
th
October 2013 Applicant concealed the payment of R2160 made by the
Fani Gaqa Primary School and lied to her supervisor Mr Kopp about
the
payment method that it was done via the internet.
b)
On the 18
th
October 2013 the Applicant participated and/or failed to disclose or
report the conduct of Ms Keens and Mr Makhaba in relation
to
manipulation and methods of replacing the money to distract or
deceive the investigation.’
She was found guilty and
dismissed. Her trade union, SAMWU, referred an unfair dismissal
dispute on her behalf to the first respondent
(the bargaining
council). The dispute was arbitrated by the second respondent (the
arbitrator) who found Spilito’s dismissal
substantively unfair
and ordered the applicant to reinstate her. In this application the
applicant seeks an order reviewing and
setting aside the arbitration
award. The application is opposed by the third respondent.
[2]
The applicant filed the review application late and sought
condonation. The condonation application is unopposed. Having
considered
the applicant’s submissions on condonation, I am
satisfied that the applicant has shown good cause. Condonation
should, in
the circumstances be granted. Spilito filed an application
for condonation of the late filing of her answering affidavit. It was
opposed by the applicant. She proffered valid reasons for the
substantial delay and refusing her application would have constituted
denying her access to justice as a result of her inability to pay her
attorney’s fees at a time she was not generating an
income. Her
application should also be granted.
[3]
In his reasons for finding Spilito’s dismissal substantively
unfair, the arbitrator noted that the applicant did not lead
evidence
proving that Spilito stole the R2160.00. He found that the only
evidence which linked Spilito to the incident was the
evidence to the
effect that at the disciplinary enquiry Spilito said that the money
was paid by Fani Gaqa Primary School (the school)
by internet and at
arbitration she said that the payment was made in cash. Spilito
denied the contradiction. The arbitrator accepted
her version on the
grounds that on verification it appeared that the applicant did not
make the statement at the disciplinary enquiry
or that allegation did
not appear in the disciplinary enquiry record. A further reason was
that Mr Kopp’s evidence that Spilito
made the statement at the
disciplinary enquiry was not corroborated.
[4]
A further reason for the arbitrator’s conclusion on the
substantive fairness of the dismissal was that Mr Makhaba (Makhaba)
who confessed that the amount of R2160.00 that was found in the
applicant’s safe on 18 October 2013 was given to him by Ms
Keens (Keens) who was Spilito’s colleague, at a restaurant in
East London made no mention of Spilito. He also found that
Makhaba
did not say Spilito was present when her colleagues were allegedly
discussing how the money should be paid. Another reason
was that the
investigator on whose report Spilito’s charges were based did
not lead evidence and assist by illustrating at
the arbitration how
Spilito was linked to the theft. The arbitrator further found that as
Spilito did not lie and say the money
was paid by the school via
internet, she could not have been expected to disclose or report
wrong-doing that she was neither aware
nor part of.
[5]
The applicant’s main ground for review is that the arbitrator
erred in finding that it failed to lead evidence proving
that Spilito
committed the misconduct which led to her dismissal. In the answering
affidavit Spilito denied the allegations made
by the applicant to the
effect that sufficient evidence proving the substantive fairness of
her dismissal was led. She, however,
provided no answer to specific
allegations the applicant made in support of its case in the
supplementary affidavit. An arbitrator’s
failure to take into
account material evidence renders his or her award reviewable if it
results in a misconceived inquiry or a
decision which no reasonable
decision maker could reach on all the material that was before the
arbitrator
[1]
.
[6]
An arbitrator’s decision must be based on the evidence before
him or her and when there is no connection between the evidence
and
the decision, the decision becomes unreasonable. In his reasons for
finding Spilito’s dismissal substantively unfair,
the
arbitrator made a finding that the only evidence that was led through
two witnesses for the applicant links Spilito in so far
as it relates
to her saying at the disciplinary enquiry that the money was paid by
internet and at arbitration she indicated that
it was paid in cash. A
verification exercise the arbitrator conducted disproved the
applicant’s allegation. A further reason
was that Kopp’s
evidence that Spilito initially told him that the school paid via
internet was not corroborated. He found
that it was not established
at the arbitration hearing that Spilito had indicated that the money
was paid via internet. Arbitrations
are hearings
de novo
. The
arbitrator was required to determine the substantive fairness of
Spilito’s dismissal on the evidence before him. The
applicant
correctly submitted that Kopp’s unchallenged evidence was that
on 11 October 2011 Spilito did not issue a receipt
for the payment
the school made. On 11 October 2013 the applicant had no record of
the payment. When Spilito presented the cash
analysis sheet on 11
October 2013, Kopp refused to sign it because it reflected two
amounts, the R200.00 float and a payment of
R476.00. The reason for
his refusal was that the payment was not consistent with the high
number of children who used the swimming
pool that day. Spilito told
him that the school had paid via internet. His evidence was
corroborated by Mr Ngcobo (Ngcobo), the
applicant’s second
witness who testified that when Spilito was quizzed by Mr Dwane
(Dwane), a member of the Hawks a few days
after the incident, she
said that the school had paid via internet. Both witnesses testified
that Dwane produced proof of payment
Spilito had issued to the school
which turned out to be a payment advice, a document the applicant
used for banking money. It was
not intended to be used as a receipt.
He also told them that the school did not pay via internet but in
cash. The information was
later confirmed by Spilito.
[7]
Further evidence that was disregarded by the arbitrator was that
after Kopp’s refusal to sign the payment analysis sheet
a
meeting about the amount of the money recorded on 11 October 2013 was
held and Spilito complained that Kopp was accusing her.
In terms of
the applicant’s standard procedure, at the end of the business
day Kopp cashed up with the cashier on duty and
the money would be
kept in a safe in the supervisor’s office. Spilito conceded
that the school paid in cash on 11 October
2013 and could give no
valid explanation why the payment was neither recorded nor put in the
safe. She also did not explain why
she did not issue the school with
a proper proof of payment. All this evidence was tendered at
arbitration and supports the applicant’s
case that it proved
that Spilito’s dismissal was substantively fair. Also the
totality of the evidence tendered at
arbitration supports the
applicant’s version that the arbitrator failed to take it into
account material and relevant evidence.
The failure led him to reach
a decision a reasonable decision maker could not reach.
[8]
The evidence before the arbitrator proved that Spilito committed
serious misconduct which involved dishonesty. She showed no
remorse
for her misconduct but denied it. The gravity of the misconduct in
the circumstances warranted the sanction of dismissal.
[9]
In the premises, the following order is made:
Order
:
1.
The late
filing of the application for review is condoned.
2.
The late
filing of the answering affidavit is condoned.
3.
The arbitration award issued by the second respondent under case
number ECDO71409
and dated 3 March 2015 is reviewed and set aside and
substituted with the following:
3.1
The dismissal of Ms S Spilito was substantively fair.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
For
the Respondent:
Advocate Schultz
Instructed
by:
Smith Tabata Inc
For
the Third Respondent: Advocate Nzuzo
Instructed
by:
Godongwana Ngonyama Pakade Attorneys
[1]
Head
of the Department of Education v Mofokeng and others
[2015]
1 BLLR 50 (LAC); (2015) 36 ILJ 2802 (LAC).