Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J6197/00
2002-12-11
In the matter between
THE PREMIER OF GAUTENG Applicant
and
ADV N C MDLADLA Respondent
_______________________________________________________________
_
J U D G M E N T
_______________________________________________________________
_
LANDMAN J: Mr N E Malgas was employed as a director in the
office of the premier of the Gauteng Province. His immediate
supervisor, the chief director, was Ms Sadic. There was
tension between then. Ms Sadic had complained to the acting
director-general, Mr Bolton, about Mr Malgas. It has been felt
necessary for a labour relations officer to sit in on their "one on
one" meetings. Mr Malgas had in turned complained to Mr
Bolton about Ms Sadic. A staff meeting concerning inter alia
job descriptions was to be held in Mr Malgas' department. A
meeting was duly convened. Ms Sadic sent her secretary to
the meeting to apologise that she had other business but that
she would try to attend the meeting. The secretary also gave
a memo to Mr Malgas for distribution to the staff members
present. While Mr Malgas was addressing the meeting Ms
Sadic arrived. An incident occurred. This led to charges begin
preferred against Mr Malgas. He was charged with the
following:
"1. That he physically assaulted his immediate supervisor,
Ms S Sadic, in front of other members of staff by laying his
hands upon her shoulders and forcefully attempting to push
her towards the door.
2. That he conducted himself in a disgraceful and unbecoming
manner."
Mr Patlela, an attorney, an AMSA panellist was appointed
to chair a disciplinary inquiry. In the course of the inquiry he
found Mr Malgas to be guilty and recommended that he be
dismissed from the service.
Subsequently Mr Malgas was dismissed. He was
unhappy with this and referred the dispute to the Public
Sectorial Bargaining Council. The dispute was arbitrated by
the first respondent. She found that his dismissal was
substantively and procedurally unfair. She awarded him
compensation in an amount equivalent to ten months'
remuneration. The premier's office seeks to review and set
aside the award.
The arbitrator heard the evidence and witnessed the
demonstration of the assault. The arbitrator was satisfied
Mr Malgas had committed the misconduct. The arbitrator's
finding of the assault differed from that described by the
disciplinary tribunal in so far as it was not found that Mr
Malgas had pushed Ms Sadic towards the door. The arbitrator
found that he had ushered her to the door, in so doing that he
had touched her. He did so with the necessary intent to make
his actions constitute an assault according to our law. There is
nothing irregular about this finding of the arbitrator and of the
grounds arrived upon avail the premier's office.
Can it be argued that the findings were erroneous? The
answer is that this is not an appeal and the award which was
made pursuant to the Arbitration Act 42 of 1965 is not open to
the challenge on the basis of the justifiability test which is
applicable to awards brought in terms of section 145 of the
Labour Relations Act 66 of 1995.
Was the dismissal substantively and procedurally fair?
The key to this lies in the arbitrator's finding that the
disciplinary inquiry was procedurally defective. The arbitrator
finds this to be so for the following reasons: The premier
invoked the services of an independent person to chair the
disciplinary inquiry. This she found was in conflict with the
applicable code. She goes on to say: The disciplinary code in
the public service is a collective agreement between the
unions that are party to it and the public service as an
employer. As such the employer does not have to alter or to
deviate from it without consulting the affected party. Though
there is a provision in it that allows such deviance the
respondent should have informed the applicant the extent at
which it intended to deviate from its code, so as to give him
the opportunity to select from a list of names proposed for
chairing his disciplinary hearing (sic).
Both parties should have agreed on the chairperson
since the procedures laid down in the code was not followed.
The unilateral decision of the respondent led to the allegation
of bias. For procedural fairness to prevail the rules of natural
justice should be applied. There are two rules of natural
justice - rule against bias nemo judics sue causa (?) and the
rule to give the other party the opportunity to be heard ( aure
alteram partum(?). Where the employer envisages an inquiry
the chairperson of that inquiry should be an independent
unbiased person. The test of bias is whether the reasonable
lay observer would gain the impression that there is a
likelihood of bias (Baxter 1989:324).
Now in the absence of the agreement between the
applicant (the then accused) and the employer to choose the
chairperson wouldn't a reasonable lay observer have gained
the impression that there is a real likelihood of bias on the part
of the chairperson whom the employer has chosen, take into
consideration the nature of the charges and the relationship
between the victim and the applicant (the then accused) and
the fact that they (the chairperson, the complainant and the
victim) were of the same racial group and chairperson was an
outsider? The answer to this is yes, the reasonable lay
observer would have gained such an impression. Therefore
the respondent erred in deviating from its disciplinary
procedure by appointing an outsider without giving the
applicant the opportunity to choose from the list.
The finding of procedural fairness on the grounds of bias
would have the effect that the disciplinary inquiry's findings
and recommendation and the premier's decision would all be
null and void. This would mean that the arbitrator would be at
large to decide the entire matter, including the imposition of a
sanction. However, it is questionable whether the chairperson
was at all biased, bearing in mind the test which the
commissioner has correctly articulated, to the extent that the
arbitrator inferred the inception of bias based upon the breach
of the code, that perception must be based on the correct
facts. See President of the Republic of South Africa and Others
v South African Rugby Football Union and Others 1999 4 SA
147 (CC) at 177.
The facts in this matter are that there was no duty upon
the premier's office to consult with Mr Malgas, although it may
have been desirable, and accordingly there was no breach of
the code. The arbitrator's inference that there was a
perception of biased based on the nature of the charges and
the relationship between all the persons involved is not
sustainable. First there was no evidence that Ms Sadic had
herself been involved in the appointment of the chairperson.
Secondly, this line of reasoning attacks the integrity of the
chairperson on the basis of his mere appointment. It has
nothing to do with what he did during the inquiry or before the
inquiry of how he decided the matter. Thirdly, the
constitutional court has rejected a similar attack on the
impartiality of its judges where it was contended that they
could not sit in the matter where they had been appointed in
their case by the president of the country. The arbitrator's
finding that there was a reasonable perception of bias, given
the racial classification of the various persons involved is so
grossly erroneous that it amounts to a gross irregularity.
In S v Collier 1995 2 SACR 648 (C) Hlope J ,as he then
was, held:
"The mere fact that the presiding officer is white does not
necessarily disqualify him from adjudicating from a matter
involving a non white accused. The converse is equally true,
otherwise no black magistrate or judge could ever administer
justice fairly and even-handedly in a matter involving a white
accused. For the reasons set out above the argument that the
white magistrate erred in refusing to recuse himself upon
when asked to do so at the appellant's trial is both unfortunate
and untenable. The fact that he is a white person does not
disqualify him from presiding in a case involving an accused
belonging to a different race."
This quotation is equally applicable to the situation involving
the disciplinary inquiry of Mr Malgas.
The arbitrator's finding constitutes a gross irregularity
and it is so grossly unreasonable that it shows that the
arbitrator failed to appreciate the nature of the test of bias and
the public policy considerations involved. It may also be that
she did not apply her mind to the facts of the matter,
particularly when it comes to determining whether the
chairperson himself gave rise to a perception of bias.
The arbitrator did not consider the other ground upon
which Mr Malgas relied to prove a procedural unfairness.
There is no cross review and I find it unnecessary to consider
it. In any event the suspension of Mr Malgas does not impact
upon the fairness of the disciplinary inquiry. It did create an
inhibition on the ability of Mr Malgas or his attorneys to consult
with the persons called as witnesses by the premier's office,
but this does not constitute a procedural defect.
The result is that the procedural fairness of the
disciplinary inquiry was fair. In view of this the arbitrator was
not entitled to interfere with the sanction unless it was such to
induce a sense of shock. The arbitrator concluded with
regards to the sanction that one must have regard to the
guidelines that appear in the code of good practice of the
Labour Relations Act 66 of 1995 as amended. According to
these guidelines disciplinary measures should be corrective
and progressive rather than punitive (item 3.2 of schedule 8 of
Act 66 of 1995 as amended). It further states that if it should
be made to correct the employee's behaviour through a
system of graduated disciplinary measures such as counselling
and warnings, item 3.2 states that it is not generally
appropriate to dismiss an employee for a first offence except if
the misconduct is serious and of such gravity that it makes the
continued employment relationship intolerable. This reason
contains a fundamental error of reasoning when applied to the
final award which was made by the arbitrator. It amounts to a
failure of the arbitrator to properly apply her mind to the facts
and to the considerations in the code.
The arbitrator's principle reason for finding that the
dismissal was inappropriate and that reinstatement would not
be a suitable sanction was ... (inaudible) based on the fact that
the continued employment relationship was not made
intolerable by reason of the misconduct. However, in granting
compensation the arbitrator accepted that reinstatement or
reemployment was intolerable and therefore ordered
compensation to Mr Malgas. This error entitles me to decide
the matter afresh, having regard to the sanction imposed by
the disciplinary inquiry.
A reading of the facts and circumstances set out in the
chairperson's decision shows that dismissal was entirely
appropriate in the circumstances of this case. It was a gross
case of involving an assault by a junior official on a senior
official in front of other persons and none of the mitigating
circumstances which were advanced by Mr Malgas are of
sufficient weight to cause this to be inappropriate. The
sanction is appropriate and there is no reason to interfere.
In the premises the award of the first respondent under
case number PSGA151 of 16 November 2000 is reviewed and
set aside and replaced with the finding that the dismissal of
the applicant (Mr Malgas) was substantively and procedurally
fair. The second respondent is ordered to pay the costs to the
application in terms of section 158(1)(C) of the Labour
Relations Act of 1995, is dismissed with costs.
LANDMAN J:
ON BEHALF OF APPLICANT:
ON BEHALF OF RESPONDENT: