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[2019] ZALCCT 19
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Molehe v Public Health and Social Development Sectoral Bargaining Council and Others (167/2014) [2019] ZALCCT 19; 167/2014 (2 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No: 167/2014
Reportable
In the matter between:
LUCAS
MOEKETSI
MOLEHE Applicant
And
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
First
Respondent
ABRAHAM
NTHAKO
N.O.
Second Respondent
HEAD: DEPARTMENT OF
SOCIAL DEVELOPMENT
FREE
STATE
PROVINCE Third
Respondent
Date
heard: 30 May 2019
Delivered:
2 August 2019
Summary:
Application to review an award and substitute it with a finding that
the dismissal of the applicant
was substantively unfair; applicant
having been found guilty of bribery and corruption by a criminal
court; rigid application of
principles such as the distinction
between criminal and disciplinary proceedings to be avoided; facts
and circumstances of each
case must always be taken into account;
application dismissed with costs.
JUDGMENT
RABKIN-NAICKER, J
[1]
This is an opposed application to review an arbitration award under
case number PSHS 350-12/13 which
was issued on 17 March 2013.
Although a condonation application was made and various points
in
limine
raised, the parties have asked the Court to grant
condonation and to deal with the review on its merits. The points
in
limine
have been withdrawn. I deal with the matter accordingly.
[2]
The facts that led to a dispute between the applicant and the third
respondent are common cause:
2.1
The applicant was employed by the Department of Social Development
Free State
Province, as a social auxiliary worker, since 1980.
2.2
On 14 September 2011, the applicant was sentenced to direct
imprisonment for
charges of bribery and corruption.
2.3
The applicant’s term of imprisonment was 4 years.
2.4
The applicant was incarcerated from 14 September 2011 until 2 July
2012 when
he was released.
2.5.
On 14 March 2012, he was issued with a written notice by the third
respondent stating
that his services are terminated on the basis of
incapacity.
[3]
The second respondent (the Arbitrator) found that the applicant’s
dismissal was procedurally unfair
and awarded him three months
compensation in the amount of R58,900.50. The basis for this finding,
which has not been cross-reviewed
by the third respondent, is set out
in his award as follows:
“
22.
The employer consequently decided to terminate his services on the
14
th
March 2012 due to inability to perform his duties as a result of
incapacity. In the light of the fact that the Employee was
incarcerated
the Employer decided to terminate his service. Is indeed
so that the Employer did not hold a disciplinary hearing in order for
the Employee’s side of his story could be heard, with regard to
possible termination of services. The Employer was aware that
the
Employee was incarcerated but their (sic) failed to take necessary
steps to ensure that a disciplinary case is held against
him. It is
indeed so that criminal cases are different from labour matters
but having been charged and sentenced to prison
does not prevent the
Employer to hold a disciplinary hearing. Necessary arrangements
should be made to ensure that a hearing is
held. By writing a letter
to the Employee’s union that is definitely not a form of
disciplinary inquiry. Necessary arrangements
should be made to ensure
that a hearing is held. By writing a letter to the Employee’s
union that is definitely not a form
of disciplinary enquiry. I
honestly believe that the procedure followed by the Employer was not
correct as means should have been
done or made to be heard as per
code of conduct.
23. On
the question of substance, not much has been said or argued about by
the employee and in the Samancor Tubatse Ferrochrome
v MEIBC
[2010]
ZALAC 7
, the Labour Appeal Court, per Davis JA, found that the
dismissal for incapacity of an employee was incarcerated for a
considerable
period was substantively fair. Before being released,
the Employee spent about eight months in prison and that stage he was
not
performing or providing services. I honestly do not believe that
the Employee was expecting to keep his position up until the time
of
release. More so when the Employer was aware that he has been
sentenced for a long period. The reasons for the dismissal of
the
Employee are unfortunately fair.”
[4]
The applicant set out the background of his dispute at the
arbitration which is contained in the transcript
of the enquiry, when
he was questioned by his representative Mr Jacobs, as follows:
“
MR
JACOBS: Mr Molehe just to repeat my question. Can you just indicate
to us, what you were charged for in the initial disciplinary
–
just briefly?
APPLICANT:
Actually there was no clear allegation of the charge. They say
that I’ve asked for money from the people.
MR
JACOBS: So you were soliciting money out of the people?
APPLICANT:
Yes
MR
JACOBS: In the criminal matter, were you charged for similar
offences?
APPLICANT:
No
MR
JACOBS: What were you charged for?
APPLICANT:
They said they changed the charge. They said, it’s bribery and
corruption.
MR
JACOBS: Were you found guilty?
APPLICANT:
The first case, it was dismissed. I was not found guilty and then the
investigating officer, he re-opened the case with
other persons. The
first case was. Then all of a sudden there comes plus/minus four
clients claiming that the same thing.
MR
JACOBS: Were you found guilty?
APPLICANT:
No, that one they did find me guilty.”
[5]
The applicant has set out his grounds of review in his founding and
supplementary affidavit. The main
thrust of these review grounds are
that the Arbitrator concluded that his dismissal was substantively
fair in a situation in which
the employer did not lead evidence. The
employer’s representative cross-examined the applicant and made
submissions. Applicant
submits that the Arbitrator simply accepted
that the fact that he had been sentenced to imprisonment for a period
of four years
qualified such absence as incapacity, which warranted
dismissal.
[6]
The supplementary affidavit emphasizes that given the second
respondent did not give viva voce evidence
to prove the dismissal was
substantively fair, the award stands to be reviewed and substituted.
[7]
It is rare to be utterly astounded by the stance of a litigant. This
is one of those occasions. The
applicant seeks to be reinstated
after, on his own version, he was found guilty beyond reasonable
doubt, in a court of law, of
bribery and corruption in relation to
his ‘clients’ i.e. those people in the community in need
of health and social
services from the state.
[8]
The applicant has relied on the principle that ‘incapacity’
in labour law can also arise
from imprisonment. However, as the LAC
in
Samancor
Tubatse Ferrochrome v Metal & Engineering Industries Bargaining
Council & others
[1]
stated:
“…
in
principle, it cannot be the case that the law has developed an
inflexible rule; that is that incapacity which is outside of the
control of the employee cannot be a cause for dismissal.”
[9]
I note that the above LAC judgment was in fact overturned on appeal
because of the way the review test
was applied. However, that
incapacity outside the control of an employee, can lead to either a
fair or unfair dismissal, was reaffirmed.
In
National
Union of Mineworkers & another v Samancor Ltd (Tubatse
Ferrochrome) & others
[2]
the SCA stated as follows:
“
[11]
It was submitted before us by its counsel that Samancor had not
purported to dismiss Mr Maloma for fault on his part (that
is, for
the disciplinary offence of absenteeism). He was dismissed because he
was no longer capable of performing his employment
duties (that is,
for incapacity). Reminding us of the ordinary consequences for a
contract of the inability of one party to perform,
counsel submitted
that the inability of Mr Maloma to present himself for work in
itself entitled Samancor to bring the employment
to an end,
which is what it had purported to do.
[12] The submission is
not altogether correct. While ordinary principles of contract permit
a contracting party to terminate the
contract if the other party
becomes unable to perform, that is not the end of the matter in the
case of employment. The question
that still remains in such cases
whether it was fair in the circumstances for the employer to exercise
that election. In making
that assessment the fact that the employee
is not at fault is clearly a consideration that might and should
properly be brought
to account. But the fact that Mr Maloma was not
at fault was not the sole reason for the arbitrator's decision.
Another consideration
that he took account of - and it was clearly
decisive of his decision - was that there was 'no evidence that [Mr
Maloma] was occupying
such a key position in the company that
necessitated his dismissal after ten days of absence'. …..”
[10] As
opposed to the facts and circumstances considered by the SCA above,
the facts and circumstances leading
to the absence from work of
the applicant,
on his own evidence
, stand in stark contrast.
Given these, a finding that his dismissal was substantively unfair
could not have been within the bounds
of reasonableness.
[11] I can
comprehend that the applicant may have been encouraged in launching
this application after reading the remarkable
notion enunciated by
the Arbitrator: in dealing with procedural fairness, i.e. that the
third respondent should have asked its
sister department of
correctional services to hold a disciplinary hearing in its premises.
However, I am able to note this aspect
only, given that there was no
counter-review in the matter.
[12] This
review application underscores the imperative of avoiding rigidity in
the application of our labour law. Facts
and circumstances of the
particular case before an arbitrator or adjudicator must always be
taken into account. In this matter
the employer did not give evidence
at the arbitration choosing to cross –examine and argue only.
But the employee’s
own testimony confirmed that his dismissal
was substantively fair. In addition, while there is a distinction
between criminal and
disciplinary proceedings, in this matter the
criminal charges were directly related to the applicant’s
conduct as a social
worker auxiliary, employed by the third
respondent.
[13] The
application thus stands to be dismissed. I am of the view that this
is a case where there are exceptional circumstances
that persuade the
Court that costs should follow the result. Indeed, this is what the
applicant sought in his notice of motion
and in the submissions
prepared for him. Given the facts and circumstances of the case
before the arbitrator, I make the following
order:
Order
The
application is dismissed with costs.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
T. Du Preez instructed by Kramer Weihmann Joubert
Third
Respondent: S.S. Jonase instructed by State Attorney
[1]
(2010)
31 ILJ 1838 (LAC)
[2]
(2011)
32 ILJ 1618 (SCA)