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[2019] ZALCCT 31
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Western Cape Government: Department of Education v Hanekom NO and Others (C92/2018; C757/2018) [2019] ZALCCT 31 (17 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case no: C92/2018 &
C757/2018
In the matter between:
WESTERN CAPE
GOVERNMENT: Applicant
DEPARTMENT OF
EDUCATION
and
ADV HANEKOM
N.O. First
Respondent
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING
COUNCIL Second
Respondent
J
S QUTSHU
Third
Respondent
Date
heard: 16 October 2019
Delivered:
17 October 2019
JUDGMENT
CONRADIE,
AJ
[1]
This is a review application which was heard simultaneously with case
number C757/2017 in which the
third respondent in this matter (the
employee) seeks an order in terms of section 158(1)(c) of the Labour
Relations Act to make
the arbitration award handed down by the first
respondent (the arbitrator) on 8 December 2016 an order of court.
[2]
I indicated to the
parties that I would only deal with the merits of C757/2017 if the
review application fails.
The Review
[3]
The background to the matter can be summarised as follows:
3.1
The employee was employed by the Applicant (the
Education Department) as a general
assistant
at the Imizamo Yethu Secondary School in George.
3.2 On 16
April 2015, the employee was given notice to attend a disciplinary
hearing in order to answer to the following
“charge”:
“
Charge
1: It is alleged that you are guilty of theft, in that you
removed gas burners from the school premises, during the
last term of
2014, without the necessary permission of your supervisor with the
intention of permanently depriving the school of
these items.
ALTERNATIVE TO CHARGE
1
It is alleged that you
are guilty of improper conduct in that you removed gas burners from
the school premises, during the last
term of 2014, without the
necessary permission of your supervisor with the intention of
permanently depriving the school of these
items.”
[4]
Following a disciplinary hearing that was concluded on 2 June 2015,
the employee was dismissed.
The employee did not lodge an
internal appeal against his dismissal but referred an unfair
dismissal dispute to the second respondent
(the Bargaining Council).
[5]
The arbitrator heard the matter and his award can be summarised as
follows:
5.1
The employee’s
dismissal was procedurally fair.
5.2
The acting principal at the school during the time of the incident,
Mr. Gunther testified that he applied
the policy rule that no-one
could remove the school’s property without permission.
However, under cross examination
he could not say whether the rules
strictly applied to the removal of scrap before his time at the
school.
5.3
The other witness for the Education Department, a teacher, Ms Frans,
confirmed the employee’s
version that the burners were
defective and that she requested that they be replaced. Further, that
the employee took the old burners
and sold them as scrap;and when
confronted he indicated that he would pay for the burners if he must
and that the employee claimed
that the service provider had given him
the defective burners. Ms Frans did not regard the matter as a
serious one.
5.4
With regard to the appropriate sanction, Mr Gunther testified that
the employee was guilty of serious
misconduct and that dismissal was
appropriate given that the employee had a previous record for theft.
This related to the
employee stealing groceries at the school in
2013.
5.5
The employee testified that he had no intention to steal the
defective burners. As far as he
was concerned, the service
provider was the owner of the old burners and had given it to him as
scrap and they were allowed to
take scrap in the past. The
service provider was not called as a witness. Neither of the
Education Department’s
witnesses could attach a value to the
defective or old burners. They were also not able to refute the
employee’s version
that in the past they could take scrap
regardless of ownership. The arbitrator inferred that the
burners were of little or
no value and questioned why they would need
to be replaced if they were in working condition.
5.6
As Mr. Gunther was not the chairperson of the employee’s
disciplinary hearing, he could only
give his view as to why he
believed that the employee’s dismissal was fair.
5.7.
The arbitrator could not hold the employee’s previous record
against him “to prove
theft in the instant case”. This
was because according to the law, similar fact evidence was
irrelevant as it merely
showed a tendency or propensity to commit
theft;
5.8.
The Education Department bore the onus to prove that the employee had
the intention to steal
the burners;
5.9.
The arbitrator could not exclude the possibility that the employee
personally was not aware of
the rule and as such found that he did
not have the intention to steal.
5.10. The
minimus non curat lex
(the law does not bother itself with
trivial issues principle applied in the matter). Even if the
school was to dispose of
the scrap, it made no difference whether it
did so or the employee did so.
5.11.
After weighing up what he thought were the relevant factors as
required by
Sidumo
and Others v Rustenburg Platinum Mines (Pty) Ltd
[1]
,
the arbitrator concluded that it was not a serious case and at most
the employee should have known that he required permission
to remove
the scrap metal. He also found that the trust relationship had not
broken down. He further found that the employee did
not secretly
remove the items and the employer did not suspend him after the
incident. In the circumstances he found that
dismissal was
inappropriate. He however found the employee guilty of removing
items without permission.
5.12. In the
circumstances, the arbitrator found the dismissal of the employee to
be substantively unfair. He however
declined to award retrospective
reinstatement as he believed that the employee contributed to his own
fate.
Preliminary Points
[6]
Before dealing with the Education Department’s grounds of
review, there are
two preliminary points that need to be dealt with.
Firstly, there is an application for condonation which relates to the
failure by the Education Department to serve the review application
on the Bargaining Council within the time period prescribed
by
Section 145 (1) (a) of the LRA.
[7]
The review application was timeously served on the employee and Mr
Phoko who appeared
on behalf of the employee did not oppose the
granting of condonation. I am therefore granting condonation.
[8]
The second preliminary point raised by the employee is that the
application is deemed
to have been withdrawn because the record of
the proceedings was not filed within the 60 days as provided for in
clause 11.2.2
of this court’s practice manual. There is no
merit in this argument, because if one has regard to how days are
calculated
as provided for in clause 3 of the practice manual then
the Education Department is correct when it states that the last day
for
filing the record was 20 November 2017, the date on which it
delivered the record.
Grounds of Review
[9]
In broad terms the Education Department seeks to review the
arbitration award on the
basis that the arbitrator committed
misconduct in relation to his duties as an arbitrator and committed a
gross irregularity in
the conduct of the arbitration proceedings.
Overall it is of the view that the decision reached by the arbitrator
that the
dismissal was substantively unfair, is one that a reasonable
decision maker could not reach. The review grounds are dealt
with below.
No intention to steal
the gas burners
[10]
The uncontested evidence of Mr Gunther was that anything at the
school belongs to the school.
According to him, no property at
the school belonged to the service provider and if the service
provider replaced the burners they
would give it to the school to be
placed in a storeroom.
[11]
The allegation in Charge 1 was that the employee was guilty of theft
in that he removed gas burners
from the school premises without the
necessary permission of his supervisor with the intention of
permanently depriving the school
of these items.
[12]
Based on the evidence the gas burners were removed from the school
premises without permission
from the employer. It must therefore
follow that the employee’s intention was to permanently deprive
the school of those
items, unless the employee could show that he
laboured under the incorrect impression that the burners belonged to
the service
provider and that the service provider had given him
permission to take the burners. The evidence of the service
provider
was critical to the employee’s defence, yet it did not
testify on his behalf. In this regard the Labour Court in
Heath
v A & N Paneelkloppers
[2]
relied on the Labour Appeal Court judgment of
Absa
Investment Management Services (Pty) Ltd v Crowhurst
[3]
in assessing why a witness was not called to put its version before
the court, and held that:
“
'[I]t
is long established that the failure of a party to call an available
witness may found an adverse inference, the inference
being that the
witness will not support — and may even damage — that
party's case.”.
[13]
Sight must also not be lost of the fact that the Education Department
is a government department
which of necessity needs to ensure that
all its assets remain firmly under its control. It would be
unable to do this if
employees could simply walk off with its assets
and when confronted claim, without confirmation from the service
provider, that
the assets belonged to a service provider who gave
them permission to remove the assets.
The
de minimus
principle
[14]
I see no basis for the arbitrator concluding that the goods were of
little value.
[15]
As argued by the Education Department, there was no evidence led that
the burners were not of
any economic value to it. This court and the
Labour Appeal Court have on several occasions rejected the notion
that the value of
the stolen goods is relevant.
[4]
The employee did not
secretly remove the items
[16]
There is no basis for this finding by the arbitrator. I
[17]
It was only when the Education Department confronted the employee
about his removal of the burners
that he owned up to removing the
burners.
Failure to suspend the
employee
[18]
I also find no basis to support the reasoning of the arbitrator in
this regard.
[19]
The failure of an employer to suspend an employee should not easily
be used to support an argument
that dismissal was not inappropriate.
Our law is clear on the circumstances in which an employee can be
suspended. If those
circumstances are not present, then an employee
should not be suspended and be allowed to continue performing his
services pending
the outcome of a disciplinary hearing.
Reliance on similar
fact evidence
[20]
The arbitrator’s reliance on the law applicable to similar fact
evidence is also misplaced.
[21]
According to the documentary record, on 27 June 2014, a few months
before the incident relating
to the removal of the burners, the
employee was given a final written warning and a suspension for two
months without remuneration
for theft of food.
[22]
This disciplinary transgression should have been a material
consideration in the arbitrator’s
assessment of the appropriate
sanction in the circumstances.
[23]
Rather, the arbitrator applied the ‘similar fact principle’
which is mainly used
in criminal cases to effectively exclude this
critical evidence.
[24]
Schwikkard and van der Merwe in their book, Principles of Evidence,
describe similar facts as
“
facts
that are directed at showing that a party to the proceedings or a
witness in the proceedings has behaved on other occasions
in the same
way as he is alleged to have behaved in the circumstances presently
being considered by the court”.
Although it is evidence that is ordinarily inadmissible due to its
irrelevancy, it will be admissible when it is logically and
legally
relevant. The exclusion of similar fact evidence is primarily
because of its potential prejudice exceeding the probative
value of
it. In
DPP
v Boardman
[5]
confirmed by the Appellate Division in
S
v D
[6]
it was held that the
admissibility of similar fact evidence was only possible where its
probative value exceeds it prejudicial effect
[25]
The admission of similar fact evidence may result in prejudice to the
accused in a number of
ways, one of which is that it may place ‘an
accused person’ in the precarious position of having to defend
the present
matter and any previous charges of misconduct.
[7]
[26]
The LAC in
Gaga
v Anglo Platinum Ltd & others
[8]
has
had an opportunity to deal with similar fact evidence in a case of
misconduct relating to sexual harassment. Murphy AJA found
in regards
to an arbitrator’s refusal to admit similar fact evidence,
that:
“
As
regards the commissioner's ruling in respect of the similar fact
evidence, that too was a reviewable irregularity. The exclusion
of
evidence that ought to be admitted will be either misconduct in
relation to the duties of a commissioner or a gross irregularity
in
the conduct of the arbitration proceedings, as contemplated in
section 145(2)(a) of the LRA. In the context of an unfair dismissal
arbitration, similar fact evidence of a pattern of behaviour or
serial misconduct will often be relevant to both the probabilities
of
the conduct having been committed and the appropriateness of
dismissal as a sanction. It may be more so where the alleged
misconduct
is characterised by an element of impulsivity ….
There ordinarily would be a sufficient link or nexus between the
earlier
similar misconduct (if proved) and the disputed facts
pertaining to a method of commission, or a pattern possibly revealed,
to
make that evidence exceptionally admissible. Given the nature of
the evidence which the first respondent proposed to lead, and the
fact that the allegations would have been known to the appellant, it
would not have been unfair or oppressive to have allowed the
evidence
because the appellant had adequate notice and was in a position to
deal with it”.
[9]
“
The
absence of the similar fact evidence has some bearing on the
determination of the appropriate sanction in this case. Without
such,
this Court is obliged to regard the appellant as a first offender,
albeit one who had been advised and counselled by his
superior in the
past, and who by virtue of his position in the company would have
been aware of the reprehensible nature of sexual
harassment in
general”.
[10]
[27]
Had the arbitrator properly dealt with the undisputed evidence that a
few months before the removal
of the burners the employee was
sanctioned with a final written warning and docked 2 months’
pay, he would not have come
to the conclusion that dismissal was
inappropriate.
[28]
For all the reasons stated above, I am of the view that the review
application must succeed.
This means that there is no need for
me to deal with the merits of the application under case number
C757 /2017 to make the
arbitration award an order of court.
[29]
As far as costs are concerned, I see no basis for awarding costs in
either case based on the
ongoing relationship between the parties and
bearing in mind the Constitutional Court’s judgment in
Zungu
v Premier of the Province of KwaZulu-Natal and others
[11]
.
While it is correct that the Education Department wrote to the
employee’s union warning it that it would seek a punitive
cost
order if the application under case C757 /2017 was not withdrawn, it
is clear to me that Mr Phoko, from the employee’s
union, who
represented him in court was mistaken in the course of action he
adopted in this case. When this was pointed out
to him he did
not persist with his arguments in support of the matter.
Order
[35]
In the circumstances I make the following order in respect of case
C92/2017.
1.
The Applicant’s non-compliance with
the rules of this court is condoned.
2.
The arbitration award of 8 December 2016
under Case No GPBC390/16 is reviewed and set aside.
3.
The dismissal of the third respondent was
substantively fair.
4.
There is no order as to costs.
[36]
In the circumstances I make the following order in respect of case
C757/2017.
1.
The application is dismissed.
2.
There is no order as to costs.
_________________
BN.
Conradie
Acting
Judge of the Labour Court
Appearances:
Applicant:
Adv.
A Coetzee
Instructed by:
State Attorney P
Melapi
Third
Respondent: J S Qutshu representative of the GPSSBC
[1]
2007
28 ILJ 2405 (CC ).
[2]
(2015)
36 ILJ 1301 (LC).
[3]
(2006)
27 ILJ 107 at par 14.
[4]
See
Anglo
American Farms t/a Boschendal Restaurant v Komjwayo
(1992) 13 ILJ 573 (LAC).
[5]
1975
AC 421.
[6]
1991
(2) SACR 543 (A) 543.
[7]
Schwikkard
and van der Merwe
Principles
of Evidence
77.
[8]
[2012]
3 BLLR 285 (LAC).
[9]
At
par 45.
[10]
At
par 47.
[11]
[2018]
4 BLLR 323
(CC).