Sneller Verbatim/sem
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR430/04
2005- 03-15 REPORTABLE
In the matter between
MEMBERS OF THE EXECUTIVE COUNCIL
FOR TOURISM AND ENVIRONMENTAL AND
ECONOMIC AFFAIRS: FREE STATE Applicant
and
ZIMASILE NEVILLE NONDUMO 1st Respondent
THAMSANQA GARRY MVUMBI N.O.2nd Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 3rd Respondent
_________________________________________________________
_J U D G M E N T
_________________________________________________________
_
REVELAS J : This is an application for review in terms of section 145 of
the Labour Relations Act 66 of 1995 ("the act") wherein the applicant
seeks to set aside an award made by the second respondent, in favour
of the first respondent. The second respondent ("the arbitrator") made
the following award:
"1. I find the suspension of the applicant, (Mr Z. Nondumo) to be
procedurally and substantively unfair.
2. I therefore order the respondent, to compensate the applicant in an
amount of R1 258 852,00 calculated as follows:
• 18 months' outstanding salary and benefits as per section 195;
(presumably of the Labour Relations Act,
• 12 months' compensation as per section 194(4) of the Labour
Relations Act number 66 of 1995 as amended at the current
salary scale of a chief director, which is R503 541,00 per annum.
The said amounts should be paid by no later than March 2004.
3. I further order the employer to pay the costs of this arbitration
proceedings as per section 138(1) and section 142 of the Labour Relations
Act, and the costs of the applicant on an attorney and client scale.
4. The applicant is hereby reinstated and should resume his duties by
no later than 1 March 2004 as per section 193(4) of the Labour Relations
Act."
The unfairness of the first respondent's suspension, both substantively
and procedurally, was conceded by the applicant during the arbitration
proceedings.
The applicant objects to the relief granted by the arbitrator on several
grounds and seeks substitution of the award with one that is more
appropriate with regard to the facts of its case. In its amended notice of
motion the applicant suggests the following relief:
"3.1 Nine months of outstanding salary and benefits in terms of section
195 of the Labour Relations Act 66 of 1995;
3.2 12 months compensation as per section 194(4) of the Labour
Relations Act."
The facts which gave rise to this application for review are briefly the
following. The applicant was appointed as Chief Director: Economic
Affairs for a period of five years from 1 June 1998 commencing at an
annaul salary of R197 466,00. He was appointed on a contractual
basis in terms of section 8(1)(c)(ii) of the Public Service Act, 1994,
which provides for a term of service of five years. According to the
applicant, the first respondent's services would have, in terms of this
section, have terminated on 31 May 2003. Hence the relief suggested
by the applicant, being outstanding salary equal to nine months. That
would cover the period from the date that he was no longer paid his
salary, until 31 May 2003.
The first respondent was also charged criminally for certain offences
arising from allegations of misconduct such as fraud, which gave rise to
disciplinary charges against the first respondent. The first respondent
disciplinary charges against the first respondent. The first respondent
received the charge sheet for the criminal matter on 6 March 2000 and
was suspended on full pay from October 1999 to 2 July 2002, except
for a period of two and three quarter years for which he was not
remunerated. He was thereafter suspended without pay from July
2002.
In the criminal court he was acquitted on the charge of fraud on 22
October 2002. The first respondent thereafter took no legal action,
either by referring the matter to the bargaining council or the CCMA or
the High Court, until 5 December 2002 when he brought an urgent
application. The first respondent made application to the High Court for
his suspension to be uplifted. The first respondent then referred a
dispute about the suspension, as an unfair labour practice, to the
General Public Service Sector Bargaining Council ("the GPSSBC") on
28 January 2003.
On 16 April 2003 the first respondent received notification from the
GPSSBC that the matter had been set down for 19 May 2003 to be
heard. On that day the commissioner ruled that the GPSSBC had no
jurisdiction and that the matter should have been referred to
Commission for Conciliation, Mediation and Arbitration, (“the CCMA”)
which was subsequently done.
On 27 May 2003 the first respondent referred his dispute about an
unfair labour practice to the CCMA, and on 11 July 2003 the first
respondent lodged an application for condonation for the late referral of
the dispute and the third respondent granted the condonation.
Conciliation took place on 15 December 2003 and there it was argued
that the CCMA did not have the necessary jurisdiction as at that time
the first respondent was no longer an employee as his employment
contract had lapsed. The arbitration was heard on February 2004 and
the award was issued on 19 February 2004.
The first ground of review raised by the applicant, was that the first
respondent was not an employee after 31 May 2003 and therefore
when he referred his dispute to the CCMA, the latter had no jurisdiction
to hear or arbitrate the matter. In my view the jurisdiction point raised
by the applicant in this regard has no merit. It was not raised before the
by the applicant in this regard has no merit. It was not raised before the
arbitrator, and the dispute which the first respondent referred to the
CCMA was about an alleged unfair labour practice which occurred
while he was still an employee.
Whether the arbitrator had exceeded his powers by granting
reinstatement, is quite another matter.
The arbitrator clearly misdirected himself when he ordered
reinstatement, compensation and arrear payments in one award. He
simply did not apply his mind to the provisions of the Act. Section
194(4) of the Act reads as follows:
"(4) The compensation awarded to an employee in respect of an unfair
labour practice (my underlining) must be just and equitable in all the
circumstances, but not more than the equivalent of 12 months'
remuneration."
It is clear that in terms of this section, reinstatement does not follow as
the proper remedy for an unfair labour practice. There is a clear limit of
12 months' compensation and it may not be awarded simultaneously
with reinstatement.
The first respondent was entitled to his outstanding salary in terms of
section 195 of the Act, which provides that an award of compensation
made in terms of the chapter on compensation, is in addition to, and not
a substitute for, any other amount to which the employee is entitled to in
terms of any law, collective agreement or contract of employment.
The first respondent is therefore entitled to his unpaid salary over and
above compensation.
I now consider the question of the first respondent's status as an
employee and to the question of the reinstatement of the first
respondent. The provisions of the Public Service Act, in particular
section 8(1)(c)(ii) of that act, is quite clear. The term of service of an
employee is five years. Thereafter the employee must be evaluated
before reappointment. In this matter where the employee was
suspended for a long period, and in the circumstances where
disciplinary proceedings were pending, it is most improbable that his
contract was to be renewed and he therefore remained an employee.
His contract was bound to come to end on 31 May 2003 by the
operation of the relevant statute. In the circumstances, I do not see any
obligation on the part of the applicant to re-employ the first respondent.
In the absence of a referral of a dismissal dispute, the arbitrator had
misdirected himself by reinstating the applicant. The arbitrator was not
entitled to reinstate the first respondent because of two factors:
The arbitrator had to determine a dispute about an unfair labour
practice only. Secondly the first respondent’s contract of employment
had come to an end and he did not refer a dismissal dispute based on
his employer’s failure to reappoint him.
In a matter where it was conceded that the suspension was both
procedurally and substantively unfair, the first respondent would be
procedurally and substantively unfair, the first respondent would be
entitled to 12 months' remuneration. Furthermore the applicant has
conceded that the first respondent is entitled to nine months' salary
which he was not paid and to which he was entitled to, in terms of his
contract of employment.
The arbitrator ordered a punitive cost order against the applicant, which
is something which arbitrators do not normally resort to. The fact that
the applicant conceded during the arbitration proceedings, that the
suspension was procedurally and substantively unfair makes such an
order even more surprising.
The arbitrator also referred to the applicant's “ineptitude” and
“incompetence”. In this regard I wish to caution against such insults.
Governmental bodies are part of a large machinery of bureaucracy.
Such institutions are not always run as smoothly and efficiently as
profit- seeking businesses. Government bodies are not entitled to any
special deference, but unnecessary rebukes are of no value and such
language as used in this arbitration award should rather be refrained
from. No reasons were given by the arbitrator for the remarks either.
There was no reason given for such punitive cost order. I believe that
an ordinary costs order party and party scale would have met the case.
In the circumstances the entire award is set aside and substituted with
the following:
“1. The suspension of the first respondent was both procedurally
and substantively unfair.
2. The applicant is to pay the first respondent compensation in an
amount equal to 12 months' remuneration.
3. The applicant is to pay the first respondent an amount equal to
nine months' remuneration for salaries not paid in terms of the first
respondent's contract of employment.
4. The applicant is to pay the first respondent's costs on a scale as
between party and party, and I make no order as to costs in the
review application.”
_____________________
E.REVELAS
DATE OF HEARING: 14 April 2005
DATE OF JUDGMENT: 15 April 2005
ON BEHALF OF THE APPLICANT: Mr I.P. Gough (State Attorney)
On BEHALF OF THE RESPONDENT: Mapitse & Khang Attorneys