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[2018] ZALCPE 35
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NEHAWU obo Bodlani v Member of the Executive Council for Department of Education: Eastern Cape Province and Others (PR186/2016) [2018] ZALCPE 35 (4 December 2018)
IN THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PR186/2016
In the matter between:
NEHAWU
obo DANIEL MLAMLI
BODLANI
Applicant
and
MEMBER OF THE EXECUTIVE COUNCIL
FOR DEPARTMENT OF EDUCATION,
EASTERN
CAPE PROVINCE
First Respondent
SUPERINTENDENT-GENERAL
FOR
DEPARTMENT
OF
EDUCATION, EASTERN CAPE
PROVINCE
Second Respondent
EDUCATION
LABOUR RELATIONS COUNCIL
Third Respondent
COMMISSIONER C. VAN DER BERG
NO
Fourth Respondent
Heard:
29 November 2018
Delivered: 04 December 2018
JUDGMENT
MAHOSI. J
Introduction
[1]
This is an application in terms of section 145
of
the Labour Relations Act (LRA)
[1]
in terms of which the applicant (NEHAWU) seeks an
order to review and set aside an arbitration award issued by the
fourth respondent
(arbitrator) under case reference number NWD
091402. In his award,
the arbitrator found
the dismissal of Mr Bodlani
(the employee)
to be procedurally and substantively fair.
[2] The key question is whether the arbitrator failed to apply his
mind to the relevant evidence and consequently made an award,
which
no reasonable arbitrator could make.
Background
[3] Prior to outlining the NEHAWU’s case in detail and
considering the issues that gave rise to
the
claim, it is necessary to outline the facts that form the relevant
background to the dispute between the parties. These facts
are not in
dispute and were summarised by the arbitrator in his award as
follows:
‘
[5]
In 2002 there was a restructuring process where the Department of
Sport was separated from the Department of Education, which
resulted
in some offices and districts being integrated into single
district/s. All affected employees were given an option to
either
remain with Department of Education or migrate to Department of Sport
and as such the Applicant elected to remain with the
respondent.
[6]
This undertaking necessitated the Department of Education to
establish task teams, which were responsible for the placement
of all
affected employees. The availability of vacant posts in some
districts did not meet the demand of choices made by the affected
employees, which amounted to affected employees being placed in
districts, which were not necessarily their preference. Subsequent
to
that, the respondent argued that the applicant was placed in Ngcobo
district, which is 80 kilometers from Mthatha district.
The
applicant’s case is that the respondent never informed the
applicant of his placement.
[7]
On the 10
th
of September 2009, the respondent notified the
employee of a disciplinary hearing. The charges against the applicant
related to
absenteeism and/or unauthorized absence from work.
[8]
After various postponements the disciplinary hearing was concluded
and the applicant was dismissed on 07 June 2010. The applicant
lodged
an appeal, which was upheld and finalized on 05 December 2013.
[9]
The applicant referred his alleged Unfair Dismissal dispute to the
Education Labour Relations Council.’
[4]
The dispute was conciliated unsuccessfully before it could proceed to
arbitration. The arbitration proceedings were held on
8 March 2016
and 11 June 2016. At the end of the arbitration, the arbitrator found
that the dismissal of the employee was both
procedurally and
substantively fair. Dissatisfied with the arbitrator’s
findings, NEHAWU launched this application.
Grounds of Review
[5] Although NEHAWU raised a number of grounds of review, the
question is mainly whether the arbitrator evaluated the facts
presented
before him and arrived at a conclusion that is reasonable.
[6]
On the one hand, the Department’s contention was that the
employee was guilty of the charges that were levelled against
him
because although he was aware of his transfer to Engcobo district, he
failed render his services to the Department of Education
as from
2002 to date. On the other hand, NEHAWU’s contention was that
the employee was never given placement or transfer
letter.
Applicable law
[7] The arbitration awards are reviewable in terms of section 145 of
the LRA, which provides that any party to a dispute who alleges
a
defect in any arbitration proceedings under the auspices of the
Commission may apply to the Labour Court for an order setting
aside
the arbitration award. Section 145(2) defines a defect as the
commissioner’s misconduct in relation to the duties of
the
commissioner as an arbitrator, gross irregularities in the conduct of
the arbitration proceedings, exceeding the commissioner's
powers or
improperly obtaining an award.
[8]
The test for review which has been authoritatively stated by the
Constitutional Court in
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
[2]
was reiterated in
Herholdt v Nedbank Ltd
and Congress of South African Trade Unions
[3]
as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls in one of the grounds in s 145(2)(a) of the LRA.
For a defect in the conduct of the proceedings to amount to
gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must
have misconceived the nature of the enquiry or arrived
at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach on all
the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached to particular
fact, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their effect is
to render the outcome
unreasonable.’
[4]
[9]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others,
[5]
the
Labour Appeal Court (LAC) stated as follows:
‘
[17]
The fact that an arbitrator committed a process-related irregularity
is not in itself a sufficient ground for interference
by the
reviewing court.
The
fact that an arbitrator commits a process-related irregularity
does
not
mean that the decision reached is necessarily one that a reasonable
commissioner in the place of the arbitrator could not reach.
[18] In a
review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to take into account every factor
individually,
consider how the arbitrator treated and dealt with each of those
factors and then determine whether a failure by
the arbitrator to
deal with one or some of the factors amounts to process-related
irregularity sufficient to set aside the award.
This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must necessarily consider
the totality of the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision-maker
could make.’
[10]
In
Head
of the Department of Education v Mofokeng and Others
[6]
the
LAC confirmed
Herholdt
and
Mofokeng
judgments
and held as follows:
‘
The
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt
v Nedbank Ltd
and
this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome.
[11]
The LAC further held as follows:
‘
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 inquiry.
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 inquiry, 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.
’
[7]
[Footnotes omitted]
Analysis
[12] NEHAWU attacked
the arbitration award on the basis that the arbitrator failed to
apply his mind to the relevant evidence and
consequently made an
award which no reasonable arbitrator could make in that
he
concluded, despite the absence of the transfer letter issued by the
Head of Department, that the employee was transferred to
Engcobo
district. In so doing, argued NEHAWU, the arbitrator ignored the
provisions of section 6(1)(b) and 8(1)(c) of the Employment
of
Educators Act (EEA)
[8]
.
Section 6 provides as follows:
‘
6.
Powers of employers—(1) Subject to the provisions of this
section, the appointment of any person, or the promotion or
transfer
of any educator—
(a)
in the service of the Department of Basic Education shall be made by
the Director-General; or
(b)
in the service of a provincial Department of Basic Education shall
be made by the Head of Department.’
[13]
Section 8(1)(c) provides as follows:
‘
(
c
)
The Head of Department may transfer any educator in the service of
the provincial Department of Basic Education to any other post
in
that department.’
[14]
NEHAWU further relied on the findings of Court in
Daniel
Mlamli Bodlani v The MEC, Department of Education, Eastern Cape
Province and the Superintendent-General Department of Education,
Eastern Cape
.
[9]
This is a judgment of the urgent proceedings that were instituted by
the employee in the High Court challenging the respondents’
decision not to pay his salary for the months of May and June 2007.
He further sought an order for the respondents to continue
to pay his
salary until such time that he reaches retirement age or resigns from
the Department’s employment. In its judgment
the Court found as
follows:
‘
[21]
The respondents failed to properly notify the applicant of his
placement at Engcobo. They failed to revert to him as undertaken
by
the respondents in a letter dated 7 March 2007 and addressed to the
applicant’s (his) Mthatha residence. In that letter
the
respondents advised that the applicant’s
placement had
been referred to the local Mthatha HRAT Chairperson (District
Director) as the delegated officer dealing with matters
such as the
applicant’s. The next letter written on the 8 May 2007,
addressed to the applicant at an Idutywa address, advised
that the
applicant’s matter was still receiving attention and that he
would be advised of the outcome in due course. At the
end of the same
month, the respondents withheld the payment of the applicant’s
salary because, they submitted, they could
not locate him. The
respondent’s actions were thus completely out of kilter and
inconsistent with what was communicated to
the applicant in the March
and May correspondence.’
[15]
The Court further found that the employee’s expectation to have
his salary paid was justified until the matter of his
placement has
been resolved or steps taken to utilize section 14 of EEA in deeming
him to have absconded or instituting an disciplinary
hearing for
misconduct. The High Court then made the following order:
‘
1.
That the decision taken by the respondents not to pay the applicant’s
salary for a period May 2007 to date is hereby declared
unlawful,
unconstitutional and contrary to his rights to fair administrative
action.
2.
That the respondent be and are hereby ordered and directed to pay the
applicant’s salary for period May 2007 to date with
immediate
effect.
3.
That pending proper placement of the applicant alternatively the
institution of an investigation into his
failure to render services,
further alternatively his discharge in terms of the law, the
respondent is directed to reinstate the
applicant’s benefits
and remuneration package fully.’
[10]
[16] In
the current matter, the existence of the rule regarding absenteeism
in the workplace was not in dispute at the arbitration.
Its validity,
reasonableness and knowledge by all the educators, including the
employee, were also not in dispute. There was further
no evidence
before the arbitrator that the respondents have not applied the rule
or standard consistently. The issue before the
arbitrator was whether
the employee contravened any of the rules as per the charge sheet and
if so, whether dismissal was the appropriate
sanction.
[17]
The
undisputed
evidence before the
arbitrator was that on 23 October 2003, the employee addressed a
letter to the district Director, contents of
which are as follows:
‘
Transfer
myself from Engcobo to Umthatha as FES (Exams)
I,
Daniel Mlambi Bodlani hereby apply to be transferred from Engcobo to
Umthatha as a First Education Specialist (Exams).
I
was placed at Engcobo as FES (Curriculum Senior Phase). I phoned DIP
office at Zwelitsha and Pumla confirmed my placement to Engcobo
as
FES (Curriculum Senior Phase).
I
will be very glad if this transfer can be effected as soon as
possible. Thanking you in anticipation.’
[11]
[18] On
12 January 2004, the employee addressed another letter to the
district Director in which he stated as follow:
‘
APPEAL
FOR PLACEMENT IN UMTHATHA: PERSAL 52631397
I
am a qualified as a First Education Specialist but I find myself
doing nothing and my talents are being wasted by my department.
It is
irregular and unpalatable that having been educated and employed, I
should be relegated to nothing. I need to be placed in
Umthatha as I
have indicated in my choice letter for placement. Any placement in
other district will be under severe protest as
there are many
vacancies in Umthatha. Such placement should be please be in writing
and not rumoured.’
[12]
[19] On 8 March
2004, the employee adressed a letter to the Chief Education
Specialist and stated the following:
‘
Appeal
for placement in Umthatha.
During
the rationalisation process of 2000 I opted to remain in the
Department of Education. I was still in Elliotdale then. The
Department of Education in 2003 was conducting interviews for the
placement of First Education Specialist additional to the department.
This process was chaired by Mr. Nuku, who is the district director of
Libode district. The outcome of that process ended up with
me placed
in district I never applied to which is Engcobo. I forwarded my
appeal to both Mr. Nuku and Ngwanya. The outcome of that
intervention
made Mr. Ngwanya to verbally agree that I be placed in a vacancy in
Umthata. Now there is a bulletin for FES posts
and I feel that I
should be given first preference as I am already in this level that
other people are applying for.
Kindly
treat this with urgency it deserves.’
[13]
[20]
NEHAWU submitted that the arbitrator ignored the evidence that the
employee reported at Engcobo district to verify his placement
but was
not accepted by Mr. Mvambo and Ms. Ngambu, demanding a transfer
letter which he did not have. This submission is not supported
by the
arbitrator’s finding where he stated as follows:
‘
In
addition, the fact of the matter is that when the applicant visited
the Ngcobo office, he left knowing that he had to obtain
his transfer
letter. Instead of reporting to the Respondent’s offices to
obtain not only clarity but also this “letter”
placing
him at Ngcobo, the applicant remained home and started to “write
letters” requesting that he be placed in Mthatha.
This in
itself is sufficient evidence to conclude that the employee knew he
was placed in Ngcobo. Even after it was confirmed in
writing that he
will not be placed in Mthatha as requested, the applicant still did
not report for duty in Ngcobo nor did he make
any effort to get the
transfer letter in order to assume his duties in Ngcobo.’
[14]
[21]
Having had regard to the evidence before him, the arbitrator found
that there was sufficient evidence before him to conclude
that the
employee knew about his placement at Engcobo. He further found that
the employee “failed to report for duty for
a substantial
amount of time continuing to insist to be placed where he wanted to
work instead of reporting for duty as required.”
It is apparent
from the reading of the award that the arbitrator was further alive
to the judgment of the High Court when he found
that the respondents
followed due process as ordered thereby. This appears on the
following part of his award:
‘
Further
to that the applicant, based on all the evidence before me, only
really started to address the matter with urgency when
the respondent
stopped paying his salary, which he then challenged in a court case.
This matter of stopping his salary was dealt
with by the courts
however the respondent still had to deal with the fact that the
employee was not reporting for duty. The court
ordered the respondent
to investigate the applicant’s failure to report for duty and,
if required, institute disciplinary
action after a disciplinary
hearing. Even at this point, when the applicant was aware that his
absence was viewed by the respondent
as unauthorized, the applicant
failed to report for duty.’
[15]
[22]
There is no merit to NEHAWU’s submission that no evidence was
put before the arbitrator to prove that the Head of Department
had
delegated or assigned any person in the service of the provincial
Department of Education to effect the employee’s transfer
or
placement. The correspondences between the parties clearly show that
the employee was aware that he was transferred to Engcobo
district.
No evidence was put before the arbitrator to show that a written
letter was a requirement for transfer in this regard.
Section
8(1)(c) of EEA provides that
the Head of Department may
transfer any educator in the service of the provincial Department of
Basic Education to any other post
in that department and is silent
about the manner in which such transfer may be effected.
[23]
NEHAWU submitted that the employee had no obligation to demand a
letter of transfer from the respondents. It could be that
there was
no obligation on the employee to demand a letter of transfer from the
respondents, but he surely had an obligation to
report for duty in
terms of his contract of employment. If it is accepted that the
employee was turned away for lack of the transfer
letter, the
reasonable reaction should have been to contact the respondents in
order to be provided with a transfer letter to Engcobo
district or at
least, he should have reported to Engcobo district or any other
nearest district instead of being content with staying
at home and
receiving a salary for about 5 years without
rendering his
services
. Thus, the arbitrator did not misconstrue
the law or commit an error of law by concluding that the employee
should have made efforts
to get the transfer letter in order to
assume his duties at Engcobo. The arbitrator clearly assessed the
evidence before him and
arrived at a reasonable conclusion.
[24] The manner in which the arbitrator analysed the dispute before
him does not support the NEHAWU’s version that he misconstrued
the enquiry he had to conduct or failed to consider the evidence
before him. NEHAWU further failed to establish that the arbitrator
conducted the enquiry incorrectly because, as the award reflects, he
dealt with the issue before him correctly.
[25] What the NEHAWU seeks to do, in this application, is to bring an
appeal against the decision of the arbitrator in a guise
of a review.
It is my view that the decision of the arbitrator is not a decision
that a reasonable decision-maker could not reach.
It is a reasonable
decision that is justified by the evidence that was placed before the
arbitrator. There is, therefore, no reason
for this Court to
interfere with the arbitrator’s award.
[26] With regard to costs, taking into account
the requirements of law and equity, I believe that this is a matter
in which there
should be no order as to costs.
[27] In the circumstance, I make the following
order:
Order
1. The application for review is dismissed.
2.
I make no order as to costs.
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate M. Nduzulwana
Instructed by:
W. Mdlangazi Attorneys
For the Respondent: Advocate A.M Da Silva
Instructed
by:
State Attorney
[1]
Act 66 of 1995 as amended.
[2]
2007 (28) ILJ 2405 (CC)
at
para 25.
[3]
2013 (6) SA 224
(SCA);
2013 (11) BLLR 1074
(SCA); 2013 (34) ILJ 2795
(SCA).
[4]
At para 25.
[5]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 17 and 18.
[6]
[2015] 1 BLLR 50
(LAC) at para 30.
[7]
At para 33.
[8]
Act No. 76 of 1998, as amended.
[9]
Case No. 890/2007
[10]
At para 28
[11]
Index to pleading, page 39
[12]
Index to pleadings, page 40
[13]
Index to pleadings, page 41
[14]
Index to pleadings, page 31
[15]
Index to pleadings, page 31