Sneller Verbatim/HDJ
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR680/02
2002-10-16
In the matter between
TUBE SEGAETSHO ARCHIBALD Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
1ST Respondent
2ND Respondent
DEPARTMENT OF PUBLIC WORKS 3RD Respondent
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J U D G M E N T
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REVELAS J:
1. This is an application for a review of an arbitration
award of the second respondent, who found that the
dismissal of the applicant by the third respondent, by
whom he was employed, was substantively and
procedurally fair. At the arbitration hearing both
parties were represented and there was an agreement to
the effect that the arbitrator would decide the matter
on the documents presented by the parties. In other
words, no other evidence was required or led.
1. 2. It appears from the award of the arbitrator, that
the applicant was charged with three offences, namely
(a) misappropriation of a government vehicle ( to
which he pleaded guilty ) and (b) that he drove
recklessly and negligently. He was involved in a car
accident on the same day, (c) that he obstructed of the
course of justice by driving away from the scene of the
accident and (d) that he was drunk whilst so driving.
3. Blood alcohol tests were taken but no collision report
was obtained.
4. It is not apparent what was before the arbitrator or by
way of evidence, or what the full record before the
arbitrator comprised of. For instance, the arbitrator
had sight of minutes of a disciplinary inquiry which is
not complete. The transcript of the evidence is also
incomplete. A certain document, called “Annexure F”,
was also before the arbitrator in which the following
is said at paragraph 7.2:
"There is an excessive high tendency of misappropriation of
especially government vehicles in this province, resulting in
unnecessary and unwarranted depreciation of the value of
these state assets, fruitless expenditure, due to the fact that
the taxpayer's money and interests are directly involved, and
in the light of the well publicised policy of the administration to
stamp out the type of occurrence. There rests a strong duty
upon the government towards the community to act against
the employees who are using these vehicles, inter alia, to
ensure that it will be utilised correctly and to erase the
perception of irresponsible government."
5. In his finding the chairman of the disciplinary inquiry
held, that offences of which the applicant was found
guilty, are aggravated by the following factors.
"7.4.1: He misused his senior position in order to obtain
possession of the vehicles.
7.4.2: He had consumed liquor, well knowing that he was
going to drive a government vehicle.
7.4.3: He had endangered the life of a colleague as well as
innocent members of the public.
7.4.4: He had endeavoured to escape the consequences of his
actions by speeding away and he attempted at the last
moment, absolving himself with an incredible explanation."
6. According to the arbitrator, the result of the alcohol
test was before him and he referred to a document
called “Annexure A”, which has notably been omitted
from the applicant’s papers. I do not have the full
record in front of me. It is extremely difficult for
me to interfere with the award when the applicant has
only selected certain portions of the record to place
before the court. The applicant also pleaded guilty to
all the charges after the evidence by the respondents
had been led at the disciplinary inquiry. This was
observed by the arbitrator as well.
7. The main and essential dispute before the arbitrator
was that the applicant was prejudiced because the third
respondent had instituted a disciplinary hearing after
a considerable period had elapsed.
1. 8. It was submitted by the third respondent that the
delay in the procedure was caused by a complicated
investigation into the misconduct and the third
respondent had to rely on outside sources to provide
the alcohol report and the collision report. The latter
report was not obtained.
9. The appeal of the applicant also was referred from one
department to the next. A condonation application also
failed and the ruling on that aspect was subsequently
set aside. There have been several causes for delay,
not all to be blamed on the third respondent.
10. The arbitrator found in respect of the delay " that the
period of the delay between the discovery of misconduct and
the disciplinary hearing was proportional to the amount of time
the respondent had been under investigation and the
accumulation of evidence. " And that the respondent had to
depend on outside sources over which he had no control.
11. The arbitrator concluded that the sanction of dismissal
was appropriate because the applicant knew about the
third respondent's rule against misuse relating to the
control of motor vehicles and as a senior employee he
should have acted more responsibly.
12. He further took into account that the applicant had
pleaded guilty to the offences and was legally
represented by a representative who acted on the
instructions of the applicant.
1. 13. It was also argued that there were certain
mitigating factors which outweighed the aggravating
features of the misconduct. It was argued that the
applicant was remorseful as he reimbursed the third
respondent for the damage caused by his misconduct to
the vehicle and pleaded guilty.
14. However, I have to take into account that he only
pleaded guilty to the more serious charges after he
heard what evidence was presented. This does not
constitute remorse. Furthermore, there was the finding
of the presiding officer at the disciplinary hearing,
that the applicant justified his actions with what he
termed “an incredible version”.
15. In my view the third respondent considered all the
evidence he was required to take into account and made
his decision based on that evidence. It may have been
better if oral evidence was led, but the parties were
legally represented and they agreed that the arbitrator
decide the matter on the documentation presented to
him.
16. In the circumstances I make the following order:
1. The application is dismissed.
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E. Revelas