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[2019] ZALCJHB 33
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Gauteng Department of Education v General Public Service Sectoral Bargaining Council and Others (JR 1564/18) [2019] ZALCJHB 33 (27 February 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
No:
JR 1564/18
In
the matter between:
GAUTENG
DEPARTMENT OF EDUCATION
Applicant
And
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
FUZILE
MALOYI
NO
Second Respondent
SAOU
OBO KRUGER
MJ
Third Respondent
Heard
:
7
February 2019
Delivered
:
27 February 2019
Summary:
Application to review and set aside arbitration award
JUDGMENT
RAPHULU,
AJ
Introduction
[1]
Mr Kruger, on behalf of whom the third respondent acts, was dismissed
for misconduct in the form of gross negligence, in that he signed the
applicant’s HR7 employee form without checking it, which
led to
a ghost employee being hired and paid, leading to financial loss for
the applicant.
[2]
Mr Kruger was charged with gross negligence for his actions. He
pleaded
guilty to the charges. The outcome of the disciplinary
proceedings was his dismissal, both at the initial proceedings, and
on appeal.
[3]
Mr Kruger was unhappy over the sanction and therefore referred an
unfair
dismissal dispute to the first respondent, wherein the only
consideration before the arbitrator was the appropriateness of
sanction.
[4]
The second respondent found that Mr Kruger’s dismissal was
substantively
unfair, had retrospectively reinstated him, and awarded
him 10 (ten) months’ compensation. The applicant has applied to
have
the arbitration award reviewed and set aside, on the basis that
the second respondent conducted a misconduct, alternatively a gross
irregularity.
Analysis
[5]
I have considered the arbitration award and the applicant’s
submissions
as to why it contends that the second respondent
conducted a misconduct, alternatively a gross irregularity, and I am
in agreement
with the applicant in that regard. I am of the view that
the decision of the second respondent is not one that a reasonable
decision
maker could arrive at, in that the second respondent went
far beyond his mandate of examining the sanction, and went on his own
trajectory, interrogating the substantive fairness of the dismissal
and coming up with his own reasons as to why Mr Kruger did
what he
did.
[6]
I have considered the applicant’s submissions that the ghost
employee
would not have been employed but for Mr Kruger’s
conduct, that financial losses were incurred as a result of Mr
Kruger’s
negligence (admittedly not all directly attributable
to Mr Kruger), that the parity rule shows that employees who were
found guilty
of misconduct similar to Mr Kruger’s were
dismissed.
[7]
I have also considered the third respondent’s submissions on
the
individual circumstances of Mr Kruger, having been new to the
responsibility of the appointment of educators, the period of his
absence for annual leave and sick leave immediately before the
incident in question, his 20 year clean disciplinary record, his
having pleaded guilty to the charges and having shown remorse at the
disciplinary proceedings.
[8]
It is trite law that all relevant circumstances must be taken into
account
in deciding if the employer’s sanction decision is
fair. Bearing all relevant circumstances in mind, I am of the view
that
the sanction of dismissal was too harsh.
[9]
In the premises, I make the following order:
Order
1.
The applicant’s
review application is granted;
2.
The arbitration award
of the second respondent, Fuzile Maloyi N.O., dated 3 June 2018 and
issued under case number GPBC 1522/2017,
is reviewed and set aside;
3.
The arbitration award
of the second respondent is substituted with an award that dismissal
was too harsh a sanction, that Mr Kruger
be reinstated and be given a
final written warning;
4.
There is no order as to
costs.
_______________________
L Raphulu
Judge
of the Labour Court of South Africa
.
Appearances
For the Applicant:
Advocate N Thokoane
Instructed
by:
The Office of the State Attorney
For the Third Respondent: Advocate G
vd Westhuizen
Instructed by:
Erasmus Attorneys