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[2018] ZALCD 4
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EThekwini Municipality v NAMTU obo Cele and Others (D309/15) [2018] ZALCD 4 (15 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case no: D309/15
In
the matter between:
ETHEKWINI
MUNICIPALITY
Applicant
and
NAMTU
obo NONHLANHLA
CELE
First Respondent
M
B MASIPA NO
Second Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
Heard:
22 March 2018
Delivered:
15 June 2018
Summary:
Review
JUDGMENT
GUSH J
[1]
The
applicant, in this matter, applies to review and set aside the
arbitration award handed down by the second respondent in which
award, the second respondent concluded that the first respondent had
been unfairly dismissed and directed the applicant to reinstate
the
first respondent retrospectively to the date of her dismissal and to
pay the third respondent’s costs “14 days
which amount
shall be computed together with the applicant’s costs”
[whatever that might mean]. In a subsequent variation
ruling, the
second respondent apparently
mero
motu
sought to vary the award and clarify her costs order and without an
indication as to how the calculation had been made, quantify
the
third respondent’s costs as amounting to “actual costs
R44,004 and [respondent’s] costs are limited to disbursements.”
[2]
In
addition, the second respondent sought to attend to “certain
errors/discrepancies in that award requiring variation. Save
for the
amendment costs order, the only variation of any important was to
record that she had not found the dismissal to be procedurally
unfair
only substantively unfair.
[3]
The
arbitration hearing took place on 15 August 2014; 3, 4, 5, 19 and 20
November 2014; 9, 28 and 30 January 2015, 4, 6, and 11
February 2015
and 11 and 12 March 2015. At the conclusion of the arbitration, the
second respondent handed down an award comprising
some 125 pages! In
the variation ruling, the second respondent in addition to the issue
of costs corrects certain errors in the
original award, none of which
are of any importance.
[4]
It
is inexplicable why the second respondent found it necessary to write
an award of the length she did. For example, under the
heading survey
of evidence and argument, the second respondent in 307 paragraphs
over 107 pages of 11-point type records the evidence.
[5]
It
appears from the record that the second respondent herself not only
called a number of witnesses whose evidence was entirely
irrelevant
to the charges of misconduct thereby adding unnecessarily to the
record but also to the length of the award, but that
at no stage did
the second respondent in any way seek to curtail the proceedings or
ensure that the parties dealt only with the
relevant evidence to the
charges. The first respondent’s representative for example, had
to cross-examine the witness almost
two days, the bulk of
cross-examination was entirely irrelevant and or repetitive.
[6]
The
background to the matter is simply this:
a.
the
first respondent who had been employed by the applicant as a
principal clerk with a salary of R40,249.41 per month was dismissed
by the applicant for having been found guilty of the charges of
misconduct;
b.
the
charges of misconduct were as follows:
1.
Charge
1: “Refrain from any rude, abusive insolent, provocative,
intimidatory or aggressive behaviour to a fellow employee
or member
of the public”
On 12 December 2013 at
the Pinetown Regional Office, at about 15H00, you intimidated your
immediate supervisor (Satha Govender),
Senior Manager (Harry
Haripersad) and security officer (W M Dladla) and on 18 December 2013
at the Kingsburg Office, at about 13H40,
[the first respondent]
threatened Mr. W M Khumalo a Building Supervisor.”
2.
Charge
2: “obey all lawful and reasonable actions by a person having
authority to do so”
“
In
that on 18 December 2013 at about 13H30, you violated a condition of
your suspension by entering the Sizakala offices at Kingsburgh.
You
refused to leave when you were requested to do so by W M Khumalo.”
“
Again
on 18 December 2013 at about 14H00 you violated a condition of your
suspension by making use of the Council vehicle NDM 9230
which you
drove from the Kingsburgh office to your home, thereby contravening
section 1.2.3 of the disciplinary procedure and code
collective
agreement.”
Charge 3: “the
employees are expected to comply, respect conditions of employment
and collective agreements and any related
regulation, order, policy
and practice and to refrain from any conduct just cause for
discipline”
“
In
that on 5 December at about 17h30, and on 10 December 2013 at about
20h00, you entered the Umhlanga Sizakala Centre under false
pretence
of being the building supervisor in charge of that centre. You
proceeded to the office of a principal job and make use
of a computer
assigned to Ms. V Pillay without prior authorisation or permission
thereby contravening section 1.1 of the Disciplinary
Procedure and
Code Collective Agreement.”
[7]
At
the disciplinary enquiry, the first respondent was found guilty of
the first charge, but only in respect of Govender, guilty
of the
second charge; and not guilty on charge 3. The applicant imposed a
sanction of dismissal.
[8]
The
first respondent, dissatisfied with the outcome of this enquiry,
referred a dispute to the third respondent which in turn appointed
the second respondent to arbitrate the dispute.
[9]
At
the arbitration, the first respondent was represented by a trade
union official and the applicant was represented by an employee
in
the HR department. Inexplicably at the arbitration, the applicant’s
representative sought, on the strength of the arbitration
being a
hearing
de
novo
,
to prove that the first respondent was guilty of all the charges
including the intimidation all those referred to in charge one
(not
only Govender); and to prove that the first respondent was guilty of
charge three.
[10]
There
is no explanation as to why the second respondent allowed this to
happen. It is trite that the applicant dismissed the first
respondent
for only two counts of misconduct having been found guilty of
intimidating Govender only in relation to the first count
and charge
two; but was not found guilty of the third charge. The third charge
played no part in the decision to dismiss the first
respondent.
[11]
The
only issue that the arbitrator was required to consider was whether
the applicant could and did establish:
a.
firstly,
on a balance of probability that the first respondent was guilty of
that part of charge 1 relating to the intimidation
of Govender; and
whether she was guilty of charge two, viz. violating the conditions
of her suspension; and
b.
secondly
whether the decision to dismiss the applicant was fair and whether
dismissal was the appropriate sanction.
[12]
I
am not persuaded that it is necessary to go into any great detail
regarding the applicant’s application to review and set
aside
that part of the second respondent’s award that concluded that
the first respondent was guilty of intimidation. It
is clear from the
evidence led at the arbitration that the applicant did not establish
that the first respondent had in fact intimidated
Govender.
[13]
Both
at the arbitration and in its application to review the decision, the
applicant relies on alleged intimidation, threats and/or
phone call
from a number of people other than the applicant herself. This
mistaken assessment of the suggested intimidation on
the part of the
applicant’s representative took up an inordinate amount of time
during the arbitration and entailed calling
the evidence of
unnecessary witnesses. It is inexplicable why the second respondent
did nothing to deal with this issue at the
time and ensure that only
relevant evidence was led.
[14]
The
charge of misconduct in respect of intimidation, alleged that the
first respondent had intimidated Govender. The evidence that
was
adduced at the arbitration referred to the actions of others and
telephone calls that were made but not by the first respondent.
In so
far as it is possible to determine that the second respondent
understood the nature of the charges is clear from the record
that
the applicant did not discharge the
onus
with regard to charge one and that the decision of the second
respondent was correct.
[15]
The
issue relating to charge two is entirely different. The essence of
the charge was that the first respondent violated the conditions
of
her suspension. The suspension letter read:
‘
Dear Madam.
SUSPENSION
FROM DUTY
With reference to
your suspension hearing the first day 18 December 2013, we hereby
advise that the Presiding Officer Mr. Brendan
Chettiar, has confirmed
management’s intention to suspend you from duty pending
investigation into an alleged misconduct
and your suspension is with
effect from
18
December 2013
.
You are hereby notified that your
suspension is in accordance with the applicable collective agreement
and is therefore with full
pay. You also advised that in terms of
your suspension you are not allowed to enter any municipal building
in your official capacity,
and you are also not allowed to represent
the municipality in any manner.
You are hereby requested to return or
municipal assets and equipment in your possession including the
municipal vehicle and office
keys.
Failure to obey the
conditions attached to your suspension will be viewed in a very
serious light and could result in further disciplinary
steps taken
against you.
[1]
[16]
It
is difficult to imagine any clearer instruction than the letter of
suspension, not only the terms of the suspension the consequences
of
not complying:
a.
Do
not enter any municipal building in your official capacity;
b.
Return
the assets; and
c.
Failure
to comply will be regarded as serious.
[17]
The
record of the arbitration reflects essentially the following as being
common cause:
a.
the
first respondent was handed a letter suspension at the applicant’s
Pinetown office;
b.
At
the time of her suspension, the first respondent had alleged that the
vehicle was not in her possession and she had undertaken
to fetch the
vehicle and return it to Pinetown. The witness Tshabalala gave
evidence that the first respondent had been instructed
to return the
vehicle within two hours;
c.
the
first respondent then, despite the clear instruction to return the
vehicle to Pinetown, used the motor vehicle in her possession
to
travel to Kingsburg;
d.
At
Kingsburg, despite having been told that in terms of the suspension
she could only access the building as customer, she went
to her
office and entered into a confrontation with the officials who had
accessed her office as they had required access to the
computer in
the office;
e.
Tshabalala,
having learned that the first respondent had travelled to Kingsburg
in the vehicle, advised security staff at Kingsburg
that she was to
return the vehicle immediately;
f.
The
security guard at Kingsburg, Khumalo, told her that she was not to
continue using the vehicle but was to leave it at Kingsburg
and that
this instruction had been issued from Tshabalala;
g.
The
first respondent disregarded this instruction on the spurious and
unjustified grounds that this instruction had been conveyed
to her by
a subordinate and left with the vehicle;
h.
On
leaving Kingsburg, the first respondent did not take the vehicle to
Pinetown as was required of her but travelled to her home
with the
vehicle;
i.
Sometime
later at 23h52 on the same day, (18 December the day of her
suspension), she had contacted Tshabalala by SMS advising him
that
she would leave the vehicle at her home, with the keys inside, to be
collected. Tshabalala replied the following morning at
06h26
requesting her to deliver the vehicle to Pinetown. The first
respondent undertook to do so at 07h00. This was not done and
Tshabalala remotely deactivated the vehicle and arranged for the
applicant’s security to collect the vehicle.
[18]
The
first respondent’s defence was to suggest that in some way her
disregard of the terms of her suspension was agreed to
by the
applicant. It is improbable in the circumstances and particularly in
the light of Tshabalala’s evidence that the applicant
at any
stage waved the conditions of the suspension. Likewise, it is
inconceivable that the second respondent could have concluded
that
the first respondent had not contravened her suspension when despite
the condition that she was not to enter any of the applicant’s
offices (other than as a customer) she had gone to her office.
[19]
As
far as the return of the vehicle is concerned, it is abundantly clear
that Tshabalala did nothing more than seeking to ensure
compliance
with the terms of the suspension letter and did not agree to vary or
reduce the import of the terms of her suspension
as set out in the
letter.
[20]
The
second respondent in finding that the applicant had, through
Tshabalala, entered into some agreement contrary to the suspension
letter ignored and apparently disregarded the terms of the suspension
and the contents of the letter. There can be no doubt that
the first
respondent was aware of the terms and conditions of her suspension
and simply disregarded them.
[21]
The
essence of the applicant’s grounds of review are that the
second respondent misdirected herself in her understanding of
the
suspension letter and her conclusion that he first respondent had not
contravened the terms of her suspension; and that based
on the
evidence placed before her decision was not a
decision
that “falls in a band of decisions to which a reasonable
decision-maker could come on the available material”
[2]
.
[22]
[23]
A
similar misdirection by the second respondent concerns her conclusion
that the first respondent was harassed by Khumalo that as
a result,
the first respondent “could not comply with the terms [of the
suspension]”. Apart from clearly demonstrating
that the second
respondent understood and realised that the first respondent had not
complied with the terms of the suspension,
there is no logic in the
proposition that Khumalo had prevented the first respondent from
complying.
[24]
It
would seem that the second respondent lost sight of the issue that
she was required to determine viz. whether the first respondent
was
guilty of the misconduct and if so whether dismissal was the
appropriate sanction. The following passage from the award (despite
the obvious error) is indicative that the second respondent lost
sight of the dispute she was required to arbitrate.
‘
5.49
The
evidence in this case present[sic] a sad story of an employee who was
ill-treated through a certain period of her employment
with the
[applicant] by certain persons in senior managerial positions who are
also employees of the [applicant]. Other than referring
a dispute to
the Bargaining Council, the applicant has since sought recourse from
different spheres of government and other entities
established to
protect members of the public. Her evidence was that despite this,
she was still willing and able to work with these
individuals. In
view of this I find that the dismissal of the [respondent] was
substantively fair[sic].
[3]
[25]
I
am satisfied from the relevant evidence adduced at the arbitration
that the first respondent was indeed guilty of contravening
the terms
of her suspension. Not only did her letter of suspension clearly set
out the terms of the suspension but warned the first
respondent that
failure to obey the terms thereof would be regarded in a serious
light. Despite this the first respondent deliberately
decided that
she would continue to use the motor vehicle to travel not only to
Pinetown to return it but to Kingsburg to fetch
her possessions. At
Kingsburg, she was instructed to leave the vehicle there. She did not
but drove home where the vehicle had
been. She obviously deliberately
decided not to immediately return it to Pinetown. Her suggestion to
Tshabalala late on the same
day was that she would leave at her home
for collection again deliberately ignoring the instruction “to
return” the
vehicle.
[26]
The
attempts by Tshabalala to secure the return of the vehicle cannot be
construed as waiving the terms of the suspension. He was,
as was
acknowledged by the second respondent, simply trying to protect the
applicant’s assets. The evidence of the first
respondent, apart
from simply attempting to divert the attention from her deliberate
and blatant ignoring of the terms of her suspension,
was to blame
anyone and everyone for causing the problem.
[27]
The
test to be applied in determining whether the award of the second
respondent is reviewable is succinctly set out in in the
Gold
Fields
matter where the Labour Appeal Court sets out the questions to be
asked and answered when considering whether an award is reviewable.
‘
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute? (ii)
Did the
arbitrator identify the dispute he was required to arbitrate (this
may in certain cases only become clear after both parties
have led
their evidence)? (iii) Did the arbitrator understand the nature of
the dispute he or she was required to arbitrate? (iv)
Did he or she
deal with the substantial merits of the dispute? and (v) Is the
arbitrator’s decision one that another decision-maker
could
reasonably have arrived at based on the evidence?’
[4]
[28]
Taking
into account the volume of unnecessary evidence the second respondent
allowed to led and the unnecessary length of the award
it cannot be
said that the second respondent dealt with the matter expeditiously
or with a minimum of formalities. It also does
not appear from the
award that the second respondent understood the nature of the dispute
or dealt with the relevant merits of
the issue in dispute. This is
highlighted inter alia by the second respondents finding that the
evidence “presented a sad
story of an employee who was
ill-treated through a certain period of her employment with the
[applicant].
[29]
The
fact remains that the evidence clearly demonstrates that the first
respondent was guilty of contravening the terms of her suspension.
From the evidence, her contravention was deliberate. The reason the
second respondent reinstated the first respondent was based
solely on
her conclusion that the first respondent was not guilty of the
misconduct of contravening her terms of suspension. I
am satisfied
that that conclusion is a decision to which a reasonable arbitrator
could not come based on the material placed before
the second
respondent.
[30]
There
is sufficient relevant evidence in the record to enable the court to
decide the matter and not to refer it back to the third
respondent to
be heard
de
novo
.
[31]
That
being so, the Court is required to consider the question of the
sanction. In the absence of any evidence to the contrary, there
is
nothing to suggest that if the first respondent is guilty of the
misconduct that the sanction of dismissal should be set aside.
[32]
In
the circumstances, I find that the award of the second respondent
should be set aside as substituted with an order that the dismissal
of the first respondent was fair and that her application be
dismissed.
[33]
There
is one further aspect to the award. At the conclusion thereof, the
second respondent decided on the basis, firstly that she
was
“enjoined by the [third respondent] to consider the issue of
costs and secondly the discretion in terms of
section 138(10)
of the
Labour Relations Act 66 of 1995
, to order the applicant to pay the
third respondent’s costs “for 14 days which amount shall
be computed with the Applicant’s
costs”.
[34]
Sometime
after her award was handed down, the second respondent handed down a
variation ruling in which the costs order was amended
to reflect the
costs order as “[third respondent’s actual costs are
R44,004.00 and the [first respondents costs are
limited to
disbursements”.
[35]
The
issue of costs does not appear from the record to have been dealt
with at all. It is also unclear as to what led the second
respondent
to quantify the amount of the third respondent’s costs. If the
third respondent “enjoins” its arbitrators
to consider
the issue of costs, fairness dictates that this issue should be
brought to the parties’ attention to allow them
to argue the
issue. Likewise, this applies equally if the arbitrator intends to
exercise her discretion in terms of
section 138.
This from the record
did not happen.
[36]
The
duration of the arbitration that was in no small measure due to all
parties including the arbitrator leading unnecessary evidence
and the
failure of the second respondent to take heed of the requirement in
section 138
to “determine the dispute fairly and quickly, …
deal with the substantial merits of the dispute with a minimum of
legal formalities”.
[37]
I
am not persuaded that in it is in the interest of fairness that the
parties should be ordered to pay neither the costs of this
matter nor
of the arbitration.
[38]
Accordingly,
for the reasons set out above, I make the following order:
(a)
The
award of the second respondent is reviewed and set aside and
substituted with an order that “the dismissal of the [first
respondent was fair] and the [first respondent’s] application
is dismissed with no order as to costs”;
(b)
There
is no order as to the costs of this application.
__________________
D H Gush
Judge of the Labour Court
of
South Africa
APPEARANCES:
FOR THE APPLICANT:
Adv. G van Niekerk SC
Instructed
by Nkosi Sabelo Inc.
FOR
THE RESPONDENT:
Mr Shandu NAMTU
[1]
Respondents bundle A page 57.
[2]
Gold Fields Mining SA (Pty) Ltd
(Kloof Gold Mine) v CCMA and Others
(2014)
35 ILJ 943 (LAC)
[3]
Award page 123 para 5.49.
[4]
Gold Fields Mining SA (Pty) Ltd
(Kloof Gold Mine) v CCMA and Others
(2014) 35 ILJ 943 (LAC) at para 20.