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[2019] ZALCJHB 348
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Mzimba v Transnet Bargaining Council and Others (JR2400/17) [2019] ZALCJHB 348 (15 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR2400/17
In
the matter between
CHRISTOPHER
MZIMBA
Applicant
and
TRANSNET
BARGAINING COUNCIL
First
Respondent
TRANSNET
SOC LIMITED
Second
Respondent
MBONGENI
MOTSOENENG N.O
Third
Respondent
Heard:
17 July 2019
Delivered:
15 November 2019
Summary:
Labour Relations Act 66 of 1995
– review application in terms
of
section 145
– test for review restated – ultimate test
is the reasonableness of the decision of the Commissioner - decision
of
the Commissioner falling within the band of reasonableness -
application dismissed – review application not frivolous and
thus costs not warranted - no order as to costs.
JUDGMENT
KHOZA
AJ
Introduction
[1]
This is an
application brought by Mr Christopher Mzimba, the Applicant, in terms
of section 145 of the Labour Relations Act
[1]
(the LRA) to review and set aside the Arbitration Award (the Award)
issued by the Third Respondent (the Commissioner) acting under
the
auspices of the First Respondent, in the dispute concerning the
fairness of the dismissal of the Applicant by the Second Respondent
(Transnet).
[2]
The grounds of review are set out in the Founding Affidavit delivered
by the
Applicant when instituting the review
proceedings before this Court.
The factual background of this matter does not require a complete
regurgitation in this Judgment
but the following should suffice.
Factual
Background
[3]
The Applicant was, until his dismissal, employed by Transnet in the
position
of Operations Manager in the Freight Rail Division and was
dismissed for misconduct on 30 March 2017. As at the date
of his dismissal the Applicant had a total of sixteen years’
service, having been employed initially on 1 February 2001.
It was common cause during the arbitration proceedings that the
Applicant’s position at Transnet was a senior position.
[4]
It was also common cause during the arbitration proceedings, that the
Applicant was dismissed on allegations of serious misconduct made
against him by his employer, Transnet. These allegations
appear
in the Notice to Attend a Disciplinary Hearing as follows:
“
Charge
1
In your capacity as the
Operations Manager, around October 2016, you indirectly influenced or
pressurised that the promotion letter
of Mr H Scheepers be issued to
him prior to the completion of his disciplinary hearing which is in
breach of clause 11.2.2
of the Transnet Code of Ethics.
Charge 2
In your capacity as the
Operations Manager, around October 2016, you abused your position of
authority when interfering with the
disciplinary process of Mr H
Scheepers when persuading Mr Mothutsi Mutheketela who presided over
his disciplinary hearing not to
impose the most severe sanction which
is the breach of clause 11.3.1 of the Transnet Code of Ethics.
Charge 3
In that in your capacity
as the Operations Manager, you violated and or breached the
suspension conditions when engaging with Transnet
employees on the
voluntary severance package for managers (VSP) without first seeking
permission through your immediate superior
as provided for in your
suspension Notice…” (sic)
[5]
The first Notice to Attend a Disciplinary Hearing is dated
3 March 2017
but was signed for by the Applicant on
6 March 2017 at 12h06 pm.
[6]
The relevant facts relating to the disciplinary process that was
initiated
by Transnet to enquire into the allegations of misconduct
against the Applicant is briefly as follows (as appearing from the
record).
[7]
The Applicant was suspended from work on 31 October 2016
and
was served with the Notice to Attend a Disciplinary Hearing on
6 March 2017. The Notice to Attend a Disciplinary
Hearing stipulated that the hearing would take place on 9 and
10 March 2017. It was common cause during the
arbitration
proceedings that this Notice to Attend a Disciplinary
Hearing did not stipulate the venue at which the hearing would be
held.
Although it appears from the Record that the Applicant
was told belatedly of the venue of the hearing, he declined to attend
the
hearing on the basis that the Notice to Attend a Disciplinary
Hearing itself did not specify the venue of the hearing.
[8]
That hearing did not take place and in due course the Applicant was
notified
to attend the hearing on 22 and 23 March 2017 at
the School of Rail. It appears that there was some confusion
between
the officials of Transnet regarding the hearing on 22 and
23 March 2017. One of the witnesses who was called to
testify
on behalf of Transnet at the arbitration proceedings, Mr
Bheki Tshabalala (Mr Tshabalala), testified that the Applicant had
submitted
a request to be legally represented at the disciplinary
hearing. He testified that this matter had been referred to the
Executive
Manager responsible for Employee Relations, who had to make
a decision whether the Applicant was entitled to be legally
represented
at the hearing.
[9]
It appears that the Executive Manager responsible for Employee
Relations
had in fact made a decision declining the request by the
Applicant to be legally represented but that Mr Tshabalala did
not
pick this up, resulting in him assuming that the matter would not
be proceeding on 22 and 23 March 2017. The evidence,
which is not contradicted on record, is that Mr Tshabalala made many
attempts to contact the Applicant on 21 March 2017 to inform
him that
the hearing would not be proceeding on 22 and 23 March 2017
but that the Applicant was not reachable.
[10]
It appears that the Applicant attended the hearing on 22 March 2017
but there was no one
who was going to conduct the hearing. Instead,
there was a Mr Muzi Zwane (Mr Zwane) who was sent there to
inform the Applicant
that the hearing would not be taking place on
that date. It appears from the record that from this date, the
Applicant considered
that the disciplinary process had been abandoned
by Transnet. The basis of this appears to be the mere fact that
there was
no one to represent Transnet for the continuation of the
hearing on 22 March 2017. It was certainly not the
Applicant’s
case at the arbitration proceedings that there was
any express abandonment of the proceedings by Transnet in this
regard.
[11]
Transnet, however, later scheduled the hearing for 30 March 2017.
The Applicant
attended these proceedings but only to raise points
in
limine,
including the fact that he considered the matter to have
been finalised because there was no application for postponement made
by Transnet during the proceedings which were scheduled for 22 and
23 March 2017. The Chairperson considered this point
and
ruled that the matter had not been finalised and that it must proceed
as scheduled.
[12]
It is at this stage that the Applicant then brought an application
for the postponement
of the hearing. His reasons being that he
wanted to access his laptop so that he could retrieve the evidence
that he needed
to prepare for his defence. When asked what he
needed the laptop for, the Applicant stated that he needed certain
documents
between himself and Mr Mutheketela and witnesses’
information. As I understand the factual background from the
record, he needed information from the laptop that would enable him
to identify which witnesses he would call. He stated
that one
of the witnesses was in Newcastle, Kwa-Zulu Natal and another one was
a Train Driver based in Pretoria. The Chairperson
refused the
postponement required by the Applicant stating that, in his view, the
Applicant’s application was merely a means
to delay the
process.
[13]
Upon the Applicant’s application for postponement at the
disciplinary hearing being
dismissed on 30 March 2017, the
Applicant decided not to participate in the proceedings and left on
his own volition.
Having left the proceedings, the Chairperson
conducted the disciplinary process in which Transnet presented its
case and thereafter
the Chairperson issued a finding in terms of
which the Applicant was found guilty of all allegations made against
him and a sanction
of dismissal was ultimately imposed.
Arbitration
Proceedings
[14]
Aggrieved by the outcome of the disciplinary proceedings, the
Applicant referred the dispute
to the First Respondent and the
Commissioner was appointed to preside over the dispute. At the
arbitration proceedings Transnet
called six witnesses who are as
follows: Mr Mothusi Mutheketela (Mr Mutheketela); Ms Thembi Radebe
(Ms Radebe); Mr Zolile Dlamini
(Mr Dlamini); Mr Tshabalala; Mr
Azwindini Luvhengo (Mr Luvhengo); and Mr Jeyi Enock Hlatshwayo (Mr
Hlatshwayo).
[15]
It is not necessary to regurgitate the entire evidence of these
witnesses and I will not
do so in this judgment.
[16]
In respect of Charge 1, the evidence led by the witnesses of Transnet
was to the effect
that at the time that a Mr Scheepers was facing
disciplinary proceedings, the Applicant had brought pressure to bear
on the Human
Resources Department for Mr Scheepers to be given a
letter of promotion which would then result in another employee, a Ms
Hlatshwayo
being released to another department. It appears
from the record that there was no basis for the allegation that the
Applicant
had pressurised the Human Resources Department in this
regard and I shall deal with the impact of this allegation when
dealing
with the analysis in what follows.
[17]
Also, with regards to the allegation that the Applicant had breached
his suspension conditions,
the evidence led by Transnet was that the
Applicant had made contact with some of the employees at Transnet,
namely Mr Zwane in
which he discussed with them, amongst other
things, the possibility of a severance package. It was
Transnet’s case
that in doing so, the Applicant breached his
suspension conditions. It once again appears from the record
that even the witnesses
of Transnet ultimately conceded that the
Applicant would not have been found guilty of this allegation had he
presented himself
at the disciplinary hearing and presented the
defence that he was presenting at the arbitration proceedings.
[18]
There was therefore, in my view and in fairness, no basis on which
the Applicant would
have been found guilty of this allegation if he
had participated in the disciplinary proceedings.
[19]
The evidence relating to Charge 2, which concerns the alleged
interference by the Applicant
with the disciplinary process of Mr
Scheepers, was led in the main by Mr Mutheketela. He testified that
he was employed by Transnet
as an Operations Manager and that he was
appointed to preside over the hearing of Mr Scheepers.
[20]
He testified that the Applicant interfered in the disciplinary
process by asking him not
to impose a sever sanction of dismissal.
He testified that the Applicant pleaded with him in voice calls and
in WhatsApp
text messages that he sent to him. He testified
that the Applicant had pleaded with him that, instead of a dismissal,
he
should consider imposing a final written warning valid for a
period of 12 (twelve) months. He testified that he was
nevertheless not influenced by the Applicant’s conduct, which
he considered to have been inappropriate, and that he imposed
a
sanction of dismissal on Mr Scheepers.
[21]
Mr Mutheketela further testified that he had never interfered in any
cases that were ongoing,
although he had discussed cases with the
presiding officers including the Applicant. He, however, sought
to distinguish the
case in which he and the Applicant had discussed
the appropriate sanction, saying that in that case he himself was
involved as
an initiator whereas in the case of Mr Scheepers the
Applicant had no involvement and therefore no business to be talking
to him about the sanction.
[22]
It was the Applicant’s case that was put to Mr Mutheketela
during his cross
examination that he in fact also did the same thing
in respect of a hearing that was presided over by the Applicant.
Mr Mutheketela
conceded that indeed he had had discussions with
the Applicant regarding a matter in which the Applicant presided.
He testified
that in respect of that matter, he himself was an
initiator and that they had a discussion as opposed to him pleading
with the
Applicant to impose a lenient sanction.
[23]
Mr Luvhengo, employed at the time of the arbitration in the positon
of Senior Manager:
Operations, and to whom the Applicant reported,
testified at length about the seriousness of the conduct for which
the Applicant
was dismissed. In particular, he testified that
he had taken part in the processes that preceded the disciplinary
hearing
of the Applicant. He testified that he met with employees of
Transnet, namely Tiyani and Vuyo and that he gave them his view that
if the Applicant were to be found guilty of the allegations against
him, then an appropriate sanction would be dismissal.
[24]
Significantly, however, Mr Luvhengo conceded that if the Applicant
had participated in
the disciplinary hearing he would not have been
found guilty of breaching his suspension conditions. He also
conceded that
the Applicant was incorrectly charged for pressurising
the Human Resources Department to issue a letter to Mr Scheepers.
[25]
The Applicant’s case was that he had 16 years’ of service
at Transnet and that
he had not made himself guilty of the
allegations of misconduct made against him by Transnet. He gave
extensive evidence
relating to the processes prior to the hearing
proceeding 30 March 2017 and, in particular, the
circumstances that led
to the hearing not proceeding on 9 and
10 March 2017 as well as on 22 and 23 March 2017.
[26]
In respect of Charge 2, he testified that he had received a call from
Mr Mutheketela
informing him that he was appointed to preside
over the hearing of Mr Scheepers. He testified that
Mr Mutheketela
wanted to know from him if the case was serious
and he confirmed that the case was in fact serious in his opinion.
He testified
that it was Mr Mutheketela who sought advice from
him as to the appropriate sanction that should be imposed on
Mr Scheepers
and that he had recommended that, a sanction of a
final written warning would be appropriate.
The
Arbitration Award
[27]
In the Award, the Commissioner first dealt with the issue of
procedural fairness.
Ultimately, the determination to be made
in as far as procedural fairness was concerned related to two
issues. First, whether
the fact that the disciplinary hearing
was conducted and concluded in the Applicant’s absence resulted
in Transnet having
failed to follow a fair procedure in effecting the
dismissal of the Applicant. Secondly, that the dismissal of the
Applicant was
effected in circumstances where there was no compliance
with the Delegation of Authority.
[28]
The Commissioner ultimately reached a conclusion that the Applicant’s
dismissal was
procedurally fair because, in the Commissioner’s
mind, the Applicant had deliberately absented himself in the
disciplinary
proceedings in circumstances where he should have been
aware of the consequences of not participating in the disciplinary
process.
The Commissioner reasoned in this regard, amongst
other things, that the Applicant was an experienced presiding officer
in disciplinary
proceedings and that there was no doubt that he was
aware of the consequences of his non-participation in the
disciplinary hearing.
[29]
It also appears from the Award that the Commissioner was of the view
that in fact the conduct
of the Applicant in relation to his
disciplinary hearing exhibited an intention to either delay or
frustrate the continuation of
the disciplinary process. Chief
amongst the considerations is that despite the fact that the
Applicant had been given the
details of the person that he must
communicate with in relation to the scheduling of his disciplinary
hearing, namely Mr Tshabalala.
The Applicant deliberately
avoided communicating with Mr Tshabalala and even failed to copy
him in his correspondence regarding
the disciplinary process. The
Commissioner also surmised that the reason given by the Applicant for
requesting a postponement on
30 March 2017, was simply a
way to delay the proceedings because, amongst other things, there was
no real reason why
he needed the laptop in order to respond to the
factual allegations he had to respond to in the disciplinary hearing.
[30]
With regards to the alleged non-compliance with the Delegation of
Authority, the Commissioner
reasoned that ultimately, the decision
was whether the dismissal of the Applicant was an appropriate
sanction and that it was not
absolutely necessary that there must
have been a written delegation. In this regard, in reaching
this conclusion, the Commissioner
took into account the concession by
the Applicant that the decision on an appropriate sanction could be
instructed verbally by
those in authority and in this regard, the
Commissioner expressly held that the Applicant’s preference for
a written delegation
was not a policy of Transnet.
[31]
The Commissioner ultimately found no basis to find that the dismissal
of the Applicant
was procedurally unfair.
[32]
With regards to substantive fairness, the Commissioner found that the
dismissal of the
Applicant was substantively fair. The
Commissioner, in relation to Charges 1 and 3 appears not to have been
persuaded that
the Applicant was guilty of the misconduct alleged.
He reasoned that although the evidence before him did not persuade
him
that the Applicant had in fact committed this misconduct, the
fact that the Applicant was absent in the disciplinary hearing made
it impossible for the Chairperson to have not found him guilty of the
allegations. However, the Commissioner did not stop
there, he
continued to consider the conduct of the Applicant in relation to the
conduct of the disciplinary proceedings and concluded,
quite
correctly in my view, that the Applicant did not conduct himself in a
manner that is consistent with a person who wanted
to have the matter
finally heard and determined as have been set out by Transnet.
[33]
In relation to Charge 2, the Commissioner reasoned that the evidence
before him was such
that this was serious misconduct by the Applicant
in circumstances where he sought to interfere with the disciplinary
process by
asking Mr Mutheketela not to impose a severe sanction
of dismissal. The Commissioner rejected the Applicant’s version
that it was common practice at Transnet to discuss the outcomes of
the disciplinary processes. He distinguished this matter from
the
previous incident in which the Applicant and Mr Mutheketela had
discussed what an appropriate sanction would be in a matter
where the
applicant had been a presiding officer.
[34]
The Commissioner reasoned, correctly in my view, that this case was
distinguishable in
that Mr Mutheketela and the Applicant were
both involved in that case whereas the Applicant had no business
whatsoever to
be involved in the hearing for Mr Scheepers.
But in any event, even if Mr Mutheketela and the Applicant had
done
that previously, it did not make it correct.
[35]
After considering the parties’ respective cases the
Commissioner issued the Award,
which is the subject of these review
proceedings, dated 18 September 2017 in terms of which he
found that the dismissal
of the Applicant was both procedurally and
substantively fair and dismissed the Applicant’s referral of
the matter to the
First Respondent.
Grounds
of Review
[36]
On 31 October 2017, the Applicant instituted these
proceedings seeking orders
in the following terms:
‘
1.
Reviewing, correcting and setting aside the Award made by the Third
Respondent dated 18 September 2017,
under the auspices of
the First Respondent;
2.
Alternatively, to paragraph 1 above,
remitting the matter back to the first Respondent, to convene and
conduct a pre-dismissal arbitration
before a Commissioner other than
the Third Respondent;
3.
ordering the Applicant’s
retrospective reinstatement to his position with all the benefits
including back pay and annual increments;
4.
directing any of the Respondents who may
oppose the application to pay the costs, jointly and severally, the
one paying the other
to be absolved...” (sic)
[37]
The grounds
of Review are set out in the Founding Affidavit
[2]
.
Although not succinctly pleaded, the grounds appear to be premised on
a two-pronged approach, namely:
37.1
An attack on substantive fairness findings
of the Commissioner; and
37.2
An attack on the Commissioner’s
findings relating to procedural fairness of the dismissal.
[38]
The grounds of review can be summarised briefly as follows:
38.1
That the Commissioner not only misconstrued
important aspects of the evidence but he failed to apply his mind to
the Applicant’s
version and ignored crucial testimony of other
witnesses. Also that the arbitrator perpetrated a gross irregularity
in the conduct
of the arbitration proceedings; and
38.2
Further grounds relate to Charges 1 and 3 in terms of which the
Applicant contended that his line manager
had made it clear that he
had in fact not breached his suspension conditions. The applicant
contends the Commissioner ignored
this evidence and did not
take it into account.
Analysis
and Findings
[39]
In determining the merits of this matter, I have considered the
evidence on record and
the pleadings.
[40]
Although fairness dictates that I should, as far as possible, seek to
deal with all the
grounds of review, I need to point out that it is
now settled in our law that this Court will not interfere with
arbitration awards
issued by Commissioners performing functions in
terms of section 136, read with section 138, of the LRA unless
the grounds
set out in section 145 of the LRA have been
established, rendering the relevant award liable to be reviewed and
set aside.
[41]
It is also
trite that the grounds set out in section 145 of the LRA have
been suffused by the standards of reasonableness.
[3]
What this means is that the critical question ultimately is whether,
with all the possible flaws that may have been pointed out
by the
party seeking to impugn the arbitration award, is the decision
reached by the Commissioner in the award one that a reasonable
Commissioner could not reach? Accordingly, even though I have
considered each of the grounds of review for the purposes of
fairness,
it must be borne in mind that ultimately what this Court
will have to decide is whether the ultimate decision of the
Commissioner,
taking into account all the contents of the record, is
one that a reasonable Commissioner could not reach.
Procedural
Fairness
[42]
At the outset, I need to deal with the issue of the grounds of review
that appear to be
based on the applicability of, and compliance with,
the Delegation of Authority. This Court has repeatedly drawn a
distinction
between attacks on the validity of a dismissal as opposed
to fairness of a dismissal. The referral of dismissal disputes to the
bargaining councils established in terms of the LRA is primarily
there to consider and decide on the fairness of the dismissal.
The
fairness of a dismissal does not entail an enquiry whether in
effecting the dismissal, the employer complied with a particular
policy and/or contractual provision.
[43]
In my considered view, the question of whether the dismissal of the
Applicant was procedurally
fair cannot be determined by having regard
to whether there was compliance with the Delegation of Authority. If
the Applicant wants
to challenge the failure to comply with the
Delegation of Authority and he believes that he had a right to
compliance by Transnet
with the Delegation of Authority, perhaps that
is an entirely different matter. In light of the record in this
matter, I
agree with the Commissioner that what he needed to
determine is whether the dismissal of the Applicant was procedurally
fair, taking
into account the procedure that was actually followed.
The Commissioner conducted this enquiry and it is clear from the
Award that
he relied on the evidence led by the parties?
[44]
It is settled in our law, in any event, that compliance with a
particular policy and/or
other legal instrument cannot in and of
itself make the ensuing dismissal fair. Certainly, the failure by an
employer to comply
with its disciplinary procedure, even an agreed
disciplinary procedure, does not make the ensuing dismissal unfair.
Put differently,
the fact that the employer has complied with the
policy in place does not make the ensuing dismissal fair.
Accordingly, under
normal circumstances, a determination of fairness
does not entail the consideration of compliance or non-compliance
with a particular
provision in a policy or contract. By parity
of reasoning, the fact that Transnet may not have complied with the
Delegation
of Authority would not in and of itself render his
dismissal procedurally unfair, even if the Applicant is right that it
was not
complied with.
[45]
A perusal of the evidence led at the arbitration reveals that the
Commissioner cannot be
faltered in accepting the evidence of Mr
Luvhengo about the discussion he had with Tiyani and Vuyo where he
gave them his perspective
that in the event of the Applicant being
found guilty, the sanction of dismissal would be appropriate. Sight
must also not be lost
that the issue of the alleged non-compliance
with the Delegation of Authority arose in the context of the
appropriateness of dismissal
as a sanction. I have already made it
clear that compliance with the provisions of the Delegation of
Authority cannot per se make
a dismissal fair. The opposite equally
applies. The Commissioner painstakingly dealt with the issue of the
appropriateness of the
dismissal. He took the relevant evidence
of Mr Luvhengo into account and applied the relevant legal principles
as appearing
at paragraphs 287 to 289 of the Award. I
therefore, accordingly do not find fault in the Commissioner’s
finding in
this regard.
[46]
The ground that the Commissioner ignored Transnet’s witnesses’
evidence that
was favourable to him in relation to Charges 1 and 3
has no merit whatsoever. The Commissioner clearly considered
this evidence,
as borne out by the Award. The fact of the
matter is that Charge 2 appears to have carried the light of the day
in this matter
and in as far as there was evidence favourable to the
Applicant by Transnet’s witnesses in relation to Charges 1 and
3, this
would pale into insignificance if the Applicant was guilty of
Charge 2 as dismissal would have been an appropriate sanction in
relation to that charge alone, therefore the ultimate finding by the
Commissioner in the Award would remain reasonable.
[47]
Turning to the issue of the disciplinary process being conducted in
the absence of the
Applicant, the evidence overwhelmingly shows that
the Applicant brought this unto himself and he only has himself to
blame.
There was clearly an understandable reason (caused by
what appears to have been miscommunication between Transnet’s
own employees)
why the hearing could not continue on 22 March 2019.
The evidence of Mr Tshabalala to the effect that he tried to contact
the Applicant
to inform him that the hearing will not be proceeding
was unchallenged at the arbitration. Transnet even arranged for Mr
Zwane
to be at the venue to inform the Applicant that the hearing
would not be proceeding. There was nothing done by Transnet
throughout
the process that could properly have led to the Applicant
believing that the disciplinary process had been abandoned.
[48]
However, the reasons for the postponement application give an insight
into the whole approach
adopted by the Applicant to the disciplinary
process. The Applicant needed a laptop which he preposterously failed
even to subpoena
during the arbitration proceedings. This gives rise
to the impression that the reason given for the application for
postponement
was not
bona fide
, a matter on which I make no
finding. But the Commissioner’s reasoning that the Applicant
simply wanted to delay the disciplinary
process cannot be faulted for
being unreasonable, certainly not based on a standard of balance of
probabilities. The right
to a fair disciplinary process cannot
be used to frustrate disciplinary processes, which by their nature
are to be dealt with expeditiously.
In my view, the Applicant
was granted an opportunity to respond to the allegations against him
and he deliberately did not take
it up.
[49]
In the premises, the Commissioner’s conclusions that the
dismissal of the Applicant
was procedurally fair is not one that, in
the circumstances of this case, a reasonable commissioner could not
reach. I now turn
to deal with the grounds of review in so far as
they relate to the issue of substantive fairness.
Substantive
fairness
[50]
I am of the view that the issue of substantive fairness can be
disposed of quite expeditiously.
I do so by first dealing with Charge
1 and Charge 3. Charge 1 relates to the alleged conduct of the
Applicant in pressurising
the Human Resources Department to issue a
promotional letter to Mr Scheepers in circumstances where there
was a pending disciplinary
hearing. Charge 3 relates to the alleged
breach by the Applicant of his suspension conditions. The
survey of evidence on
record demonstrates quite clearly to me that a
finding of guilt on both of these charges by the chairperson of the
hearing, and
particularly in light of the witnesses of Transnet, Mr
Luvhengo and Mr Tshabalala, cannot not be sustained.
[51]
I do, however, take into account that the Commissioner considered the
fact that the Applicant
did not attend the disciplinary hearing and
that it was his absence at the disciplinary hearing that contributed
to him being found
guilty on allegations on which he should not have
been found guilty. In my considered view, and having regard to
the requirements
of equity and fairness, even if the Commissioner is
correct in this reasoning, a finding of guilt and dismissal cannot be
sustained
simply by reason of failure by the employee to attend a
hearing if, on consideration of all the facts, the finding of guilt
and
a sanction of dismissal was not correct.
[52]
In short, I do not understand it to be part of our law, that where
there are express rights
involved, such as the right not to be
unfairly dismissed, those entitled to enjoy such rights could be
dismissed simply based on
default. The fact that a hearing at the
bargaining council is a hearing
de novo
provides adequate
protection for the employees who may, either of their own fault or
the fault of the employer, not have participated
in a hearing.
The Commissioner was therefore required to consider whether the
Applicant was fairly found guilty of the misconduct
alleged in
Charges 1 and 3.
[53]
I am satisfied that the Commissioner did conduct this enquiry and
this is borne out by
his express finding that, in his view, the
evidence on record did not establish that the Applicant breached his
suspension conditions.
It is also clear from the evidence of Mr
Luvhengo that the Applicant could not have been found guilty and
dismissed based on Charge
1.
[54]
The question which arises therefore is whether, given the Court’s
finding that in
relation to Charges 1 and 3 a sanction of dismissal
could not be sustained, the decision ultimately reached by the
Commissioner
that the dismissal of the Applicant was substantively
fair is one that a reasonable Commissioner could not reach.
This hinges,
in my respectful view, on the determination of whether
the Applicant was in fact guilty of Charge 2 and whether dismissal
was an
appropriate sanction for this Charge if it was the only one
against the Applicant.
[55]
In making this consideration, the Court does not substitute its own
reasoning or its own
perspective on the issues, but rather considers
the material that was before the Commissioner, the Commissioner’s
reasoning
and the reasons provided for the decision. The ultimate aim
of this exercise is to determine whether in light of the evidence
contained
in the record, the finding that the dismissal was
substantively fair in respect of Charge 2 is one that a reasonable
Commissioner
could not reach.
[56]
On the Applicant’s own version, he had a discussion with
Mr Mutheketela in terms
of which he asked Mr Mutheketela
not to impose a harsh sanction of dismissal on Mr Scheepers. The
record also shows that there
was at least one text message in which
the Applicant literally pleaded with Mr Mutheketela not to
impose a harsher sanction
of dismissal on Mr Scheepers. This is
despite the fact that the Applicant, on his own evidence as borne out
by the record,
considered that the misconduct committed by
Mr Scheepers was serious. It is, and has always been common
cause that the Applicant
was a senior employee of Transnet and that
he therefore held a position of trust.
[57]
I have no doubt in my mind that it can never even be remotely
suggested that the Commissioner
was wrong in his finding that the
conduct of the Applicant, in interfering in the disciplinary
proceedings (and seeking to protect
an employee who he himself
considered to have committed serious misconduct), constituted serious
misconduct. In the first analysis,
I therefore proceed from this
premise: that the Applicant was employed in a senior position of
trust and that the conduct complained
of would constitute serious
misconduct.
[58]
The evidence on record does not support the Applicant’s version
that he merely gave
advice to Mr Mutheketela. The contents of
the communication between Mr Mutheketela and the Applicant, as borne
out by the
record, do not support the version given by the Applicant
that he was responding to a request for an opinion by
Mr Mutheketela.
It is clear that the Applicant had
deliberately set out to interfere in the disciplinary proceedings in
order to protect Mr Scheepers
by seeking to influence the
decision of the chairperson. It boggles the mind why and how Mr
Mutheketela would be seeking an opinion
from the Applicant as to what
an appropriate sanction is, when Mr Mutheketela had in fact not heard
the evidence in the matter.
This renders the version of the Applicant
less probable and was therefore correctly rejected by the
Commissioner. There is no basis
to fault the Commissioner’s
finding that the Applicant misconducted himself in this regard.
[59]
This is undoubtedly serious misconduct by a senior manager holding
the position that was
held by the Applicant at Transnet. This is more
so when considering that Transnet is a big employer and that the
employees who
do not have ‘
protectors
’ in senior
positions would be severely disadvantaged in circumstances where, for
other employees, it is easy to commit misconduct
and be protected
from getting harsher penalties.
[60]
It is also an elementary principle of the fairness of the
disciplinary process in the workplace
that the decisions of those who
preside over those hearings should not be tampered with and should
carry the level of credibility
that will ensure that, not only are
the employees who are the subject of the decisions treated fairly,
but are seen to be treated
fairly and that they have no reason to
believe that they are not being treated fairly and equitably.
[61]
To the
extent that it is argued by the Applicant’s representatives
that the Commissioner committed gross irregularities in
the conduct
of the arbitration proceedings, the law is now settled in respect of
what would constitute a gross irregularity. In
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[4]
the Supreme Court of Appeal held as follows:
“
[25]
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 within one of the grounds in section 145(2)(a) of
the LRA. For a defect in
the conduct of the proceedings to amount to
a gross irregularity as contemplated by section 145(2)(a)(ii), the
arbitrator must
have misconceived the nature of the inquiry 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 facts,
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”
[62]
I do not understand it to be the contention of the Applicant that the
Commissioner misconstrued
the enquiry that he was required to
undertake. In fact, the survey of the Award and the record
clearly demonstrates that
the Commissioner painstakingly went out of
his way to deal with virtually every issue that was raised during the
arbitration proceedings
and correctly identified the nature of the
enquiries that he was supposed to undertake.
[63]
Ultimately therefore, it all boils down to the question, as I have
alluded to above, whether
the ultimate decision reached by the
Commissioner is one that a reasonable Commissioner could not reach.
This, in my view and in
light of the record, can hardly be suggested.
The Award demonstrates that the Commissioner took all relevant
evidence into account,
applied the correct rules of evidence and
reached a decision that is certainly within the band of
reasonableness. I stress
at this juncture that it doesn’t
matter whether or not this Court would have arrived at the same
decision. That is certainly
not the test on review. As long as the
contents of the record justifies the decision, as it does in this
case, the Court has no
basis to interfere in the absence of evidence
of any impropriety.
[64]
The
Applicant also relied on the fact that the Commissioner did not take
into account his length of service. In circumstances where
a senior
employee has made themselves guilty of undermining the processes of
the employer, it is my considered view that the length
of service
should in fact serve as an aggravating as opposed to a mitigating
factor. In
Toyota
SA Motors (Pty) Ltd v Radebe and others
[5]
the Labour Appeal Court held the following:
“
Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must be
made that there are certain acts of misconduct which are of such a
serious nature that no length of service can
save an employee who is
guilty of them from dismissal.”
[65]
The award
also shows that the Commissioner clearly appreciated that the nature
of the conduct of the Applicant, considered in totality,
was so
serious that it rendered continued employment intolerable. In this
regard, the Commissioner relied on established case law
[6]
where the Commissioner held as follows:
“
287.
Whilst I may in the past have agreed with Pela that in
the absence of evidence of trust relationship being led,
the
respondent could not justify a dismissal (Edcon v Pillemer &
others [2010] 1BLLR). This position is no longer the
correct
law. That is, the current law finally dispelled this myth that
the leading of evidence to show that the trust relationship
had
irretrievably broken down was necessary. The LAC in the matter
between Impala Platinum Limited v Zirk Bernardus Jansen &
Others
(JA100/14) considered the applicability of Edcon v Jansen’s
conduct and concluded that Jansen’s dismissal was
fair, even
though specific evidence was not led on the breakdown of the trust
relationship.
288.
The LAC held that considerations such as long service, an unblemished
disciplinary record and remorse,
albeit mitigating factors, do not
bar any employee from avoiding the sanction of dismissal.
289.
In the premises, I determine that the respondent had discharged the
onus in terms of sections 192(2)
of the Act.”
[66]
Accordingly, in determining the appropriateness of the sanction of
dismissal, the Commissioner
properly performed the duties of an
arbitrator as one would expect an arbitrator to perform their duties.
Accordingly, in the circumstances,
although I agree based on the
evidence contained in the record that the finding of guilt and
certainly the sanction of dismissal
cannot be sustained in relation
to Charges 1 and 3, however, I find that the Applicant made himself
guilty of serious misconduct
alleged in Charge 2 and I find that,
even if this was the only allegation before the Commissioner, a
finding that the dismissal
was fair would not be one that a
reasonable Commissioner could not reach.
[67]
In the circumstances, the review application stands to be dismissed.
All that remains
to be determined is the issue of costs.
Costs
[68]
Both parties argued that the costs should follow the result. Whilst
it is an elementary
principle in civil law that costs normally follow
the result, this Court has repeatedly held that this is not a hard
and fast rule
in proceedings before this Court. Ultimately, fairness
and equity is what determines the outcome in relation to costs. I do
not
believe, even though I have found that the Applicant had made
himself guilty of serious misconduct by interfering in the
disciplinary
process of Mr Scheepers, that the review
application was a hopeless case. This is more so in light of my
findings in
relation to the sustainability of the finding of guilt
and the sanction of dismissal in relation to Charges 1 and 3.
[69]
In these circumstances, I do not find that the review application was
frivolous and I am
therefore not inclined to order costs against the
Applicant. The Applicant has certainly borne the consequences of his
serious
misconduct and should not be mulcted with further burden of
costs in circumstances where the review application was not a
hopeless
case. I therefore decide that fairness and equity dictates
that there should be no order as to costs.
[70]
In the circumstances, the following order is made:
Order
1. The review application
is dismissed.
2. There is no order as
to costs.
—————————————
N.
B. Khoza
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant :
Ms Phakedi
Instructed
by
:
Phakedi Attorneys Inc.
For
the Second Respondent: Mr
Selomo
Instructed
by
: Selomo
Attorneys Inc.
[1]
No. 66 of 1995, as amended.
[2]
See paras 64 onwards.
[3]
Sidumo
v Rustenburg Platinum Mines Ltd
2008
(2) BCLR 158 (CC)
[4]
[2013]
11 BLLR 1074
(SCA) at para 25.
[5]
(2000)
21 ILJ 340 (LAC).
[6]
See p. 59 of the record at para 287 of the arbitration award.