IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
JOHANNESBURG
CASE NO JR 1223/02
DATE 2005-01-09
In the matter between
THE PUBLIC SERVANTS ASSOCIATION OF Applicant
SOUTH AFRICA (on behalf of JJ Venter)
And
AP LAKA N.O. 1st Respondent
GENERAL PUBLIC SERVICE SECTORAL 2nd Respondent
BARGAINING COUNCIL
DEPARTMENT OF LAND AFFAIRS 3rd Respondent
JUDGMENT
REVELAS, J:
[1] The applicant, a trade union, acting on behalf of Mr JJ Venter, one of its
members, seeks to set aside an award made by the first respondent (“the
arbitrator”) in terms whereof the unfair dismissal dispute referred to the
second respondent (“the council”), was dismissed. In addition, the
applicant seeks to substitute the award with a finding that Mr Venter’s
dismissal by the third respondent (“the Department”) was unfair and that he
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be reinstated or compensated. The application for review is brought out of
time and the applicant has brought an application for condonation.
[2] When Mr Venter was dismissed by the Department on 28 February 2001,
he had been in the employ of the latter since 1 December 1976 as an officer
of the Public Service and at the time of his dismissal he held the post of
Deputy Director: Internal Audit.
[3] A disciplinary enquiry was held on 21 and 24 November 2000 into several
allegations of misconduct with which Mr Venter was charged. He was
found guilty of three counts of misconduct. They were the following:
1. Insubordination, in that he failed to return a cell phone to the
Department and kept it in his possession, despite an instruction from
the Department’s Human Resources director to return it. The
sanction imposed for this charge of misconduct was a written
warning with counselling.
2. The second charge was one of using information obtained in the
course of his official duties for personal gain. The facts relied on in this charge
were, that the applicant attempted to obtain a 10% commission fee on an amount
of approximately R280 000.00 (unpaid value added tax) which he discovered was
owing (and later paid) by a firm called F Systems Technology, to the South
African Revenue Services, as a result of his discovery and report, and as part of
his official duties. Also in respect of this charge, a warning and counselling was
imposed.
3. Thirdly, Mr Venter was charged with fraud (in that, on or about six
occasions over a period of twenty months’ between 21 October 1998 to June 2000,
Mr Venter fraudulently presented the Department with claims for accommodation
expenditure which exceeded the amounts actually spent in respect of such
expenditure. In other words Mr Venter misrepresented his expenses incurred and
defrauded the Department during the aforesaid period in an amount of R7 455.00.
defrauded the Department during the aforesaid period in an amount of R7 455.00.
In respect of this charge of misconduct the chairperson of the disciplinary hearing
imposed suspension without pay for three months.
[4] The Director General of the Department felt that particularly the third
sanction imposed, was “shockingly inappropriate”. Mr Venter was invited
to submit representations as to why he should not be dismissed or
discharged from the Public Service in terms of section 17 of the Public
Service Act 103 of 1994, as amended (“the PSA”), in view of the
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seriousness of his actions.
[5] The applicant (or “Union”) responded on 18 December 2000, stating
(briefly) that it would be unfair to expect Mr Venter to provide further reasons as
to why he should not be dismissed as that would constitute “double jeopardy” or a
second enquiry for the same charge of misconduct. In the same letter it was
pointed out that the chairperson or presiding officer followed a fair procedure and
a sanction in terms of the applicable disciplinary code was imposed.
[6] In turn, the Department responded on 6 January 2001, stating that it was
normal practise for all serious cases of misconduct to be submitted to the Director-
General (as indeed happened in this case through an internal memorandum) for a
final decision on an appropriate sanction and attention was drawn to the
Department’s view that in terms of its own provisions, the disciplinary code
(referred to above) was only a guideline and could be departed from in appropriate
circumstances.
[7] The Department made the point, or submitted, that the request for reasons
from Mr Venter as to why he should not be dismissed, did not amount to a second
enquiry, but a revision of the sanction imposed by the chairperson. The request for
reasons was repeated in this letter.
[7] The Union reiterated its concerns about the legality and fairness of the
Director-General’s intervention in further correspondence, and the Department
presented Mr Venter with a final, third opportunity to furnish reasons as to why he
should not be dismissed. The Union stood by its view that the furnishing of such
reasons would indeed constitute an unfair, second enquiry for the same
misconduct.
[8] On 20 February 2001, recommendations to the Director-General of the
Department, to the effect that Mr Venter should rather have been dismissed than
suspended, were accepted. A letter form the Department was then forwarded to the
Union advising that Mr Venter was dismissed with effect from 1 March 2001.
Union advising that Mr Venter was dismissed with effect from 1 March 2001.
[9] The Union then referred a dispute to the second respondent (the Bargaining
Council), based upon the allegation that the employer (the Department) changed
the sanction of the chairperson of the disciplinary hearing (a suspension of three
months’ without pay) to one of dismissal. A dispute concerning the interpretation
of a collective agreement was also included.
[10] The matter was set down for an arbitration hearing to be heard on 25
January 2001, after conciliation had failed: Prior to the arbitration hearing, the
parties reached an agreement in terms of which no oral evidence was to be lead
(Mr Venter had pleaded not guilty at the disciplinary hearing but did not appeal
against the three findings of guilty) or the sanctions imposed in respect of them.
[11] The arbitrator found that in terms of section 17 of the PSA, the Director-
General was empowered to interfere and that such interference was not tantamount
to a rehearing of Mr Venter’s case.
[12] The arbitrator further found that section 17 of the PSA should take
precedence over the negotiated code and procedures for the Public Service, despite
the conflict between the Resolution of the Bargaining Council on the one hand,
and the PSA on the other.
[13] In addition the arbitrator held that that even if the intervention of the
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Director-General amounted to a re-hearing (which he did not find was the
case) such a re-hearing was admissible in the circumstances of the case,
and in any event, Mr Venter had deliberately declined the opportunity to
state his case, when requested to do so when the question of sanction was
revisited.
[14] Finally, the arbitrator upheld the view that the sanction imposed by the
chairperson of the hearing was inappropriate, given the seriousness of the
misconduct and found that dismissal was the appropriate sanction in the
circumstances.
[15] The applicant on behalf of Mr Venter submitted that the arbitrator’s award
ought to be reviewed on the basis that there was a defect in the arbitration
proceedings, or alternatively that the arbitrator did not apply his mind to
the evidence before him and that his conclusions were irrational or
unjustifiable given the facts before him. It was further submitted, in the
alternative, that the arbitrator’s conclusions were grossly unreasonable, in
view of his reasoning that when there was a conflict the Code and
Procedures and the PSA, the Act should prevail.
[16] The first question to be determined in this case is whether section 17 of the
PSA indeed empowered the Director-General to act as he did, given the existence
of the collective agreement. If answered in the affirmative, the next question is
whether dismissal was the appropriate sanction or whether the dismissal was fair.
[17] According to the Department, the collective agreement had no legal effect
on section 17 of the PSA, since the latter was an Act of Parliament, whereas a
collective agreement was not, and despite the provisions of such an agreement, the
Director-General retained the power to dismiss in terms of section 17 of the Act.
Secondly, it was argued that the interference by the Director-General was not a
disciplinary rehearing, but the exercise of an administrative statutory power, and
thirdly, that the dismissal was not unfair in any event.
thirdly, that the dismissal was not unfair in any event.
[20] The above submissions were also what the arbitrator had, in essence, found
in his award.
[21] The collective agreement does make provision for a disciplinary code and
procedure. Those procedures were in fact followed in this case. There is no
specific provision in the collective agreement which seeks to circumvent or oust
the powers conferred upon the Director-General by section 17 of the Act.
[22] In my view, the fact that a collective agreement is or could be interpreted to
be at variance with the PSA, does not render the provisions of the latter
automatically as pro non scripto, as the argument of the Union would suggest.
[23] Clearly in some circumstances, parties (an employer and a trade union)
would conclude a collective agreement wherein there are provisions which do not
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coincide with the provisions of the Labour Relations Act 66 of 1995, as amended
(“the Act”) or, as in this case the PSA. The reasoning behind such a divergence
from an Act would be that in respect of certain matters, particularly of mutual
interest, between the parties, it may be more expedient for their labour
relationship, to make their own rules rather than to resort to or follow the
provisions in a statute.
[24] An example of the aforesaid would be where the parties agree on a
procedure to be followed prior to the employees embarking on a strike. Often such
a collective agreement would make provision for a “cooling off” period, which is
absent from the Act, but some parties would enter into such an agreement because
the particular industry they operate in, may require such a procedure, or they could
make rules for any reason which may facilitate disputes between them.
[25] Section 17(1)(a) of the PSA reads as follows:
Discharge of officers
(1) (a) Subject to the provisions of paragraph (b), the power to
discharge an officer or employee shall vest in the relevant
executing authority, who may delegate that power to an
officer, and the said power shall be exercised with due
observance of the applicable provisions of the Labour
Relations Act, 1995 (Act 66 of 1995).
[Para. (a) substituted by s. 14 (a) of Act 47 of 1997.]
(b) Notwithstanding paragraph (a), the power to discharge an
officer, excluding a head of department, in terms of
subsection (2) (e), shall be vested in the head of
department.
[26] The necessity of such a provision in the public sector is abundantly clear. It
is in the interests of sound public policy that the disciplinary sanctions
imposed by a government body, should be second-guessed by someone
other than the decision maker or delegate of the head of the Department
(such as the chairperson of a disciplinary enquiry). This is so because the
Government is accountable to its citizens for what it does with its taxes.
Government is accountable to its citizens for what it does with its taxes.
[27] Mr Venter was a public officer. The third charge related to instances where
Mr Venter, in the scope and course of his duties was required to make use of hotel
or other accommodation as he had to attend to duties away from his own
residence. The Department was liable to reimburse him for the expenses he had
incurred in this regard. He managed to qualify for special rates which were
cheaper than the usual rates offered where he stayed. Instead of claiming from the
Department, the special rate, he claimed the higher rate and appropriated the
difference for himself, thus making a profit for himself at the expense of the
Department and ultimately the taxpayers of this country. That is fraud. It is quite
trite that for offences of dishonesty, dismissal is the appropriate sanction, even in
cases where the misconduct is a first offence.
[28] The Department, as most other Governmental bodies, had adopted a “zero
tolerance” policy towards fraud. It has done so for a reason. Millions of Rand are
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lost annually through the fraudulent conduct of some governmental officials. This
scourge will never be rooted out if there is no scrutiny of the sanctions imposed
for fraud committed by officials.
[29] A collective agreement such as the one in question, does not prevent the
Director-General to intervene and overturn an inappropriate sanction. The
Director-General’s intervention did not amount to a re-hearing of the matter. No
new facts were relied on.
[30] At the arbitration hearing there was evidence that some of Mr Venter’s
subordinates followed the same practices when claiming subsistence expenses
from the Department, but had done so on the advice of Mr Venter, their
supervisor. The Department viewed these cases as less serious because the
employees in question acted on Mr Venter’s advice. There was also evidence that
in some seven cases the Department had dismissed officers and employees for
misconduct amounting to dishonesty and insubordination, which ruled out the
argument for inconsistency on the part of the Department in applying discipline.
[31] Part of Mr Venter’s responsibilities as Head of Internal Audit was to
prevent financial mismanagement and by committing fraud for personal gain he
abused a position of trust and set a bad example to his subordinates. Even though
his misconduct was regarded as a first offence, it is of importance to note that the
several fraudulent claims he lodged, were claimed over a twenty month period and
were detected only because of an anonymous letter which was sent to the
Department.
[32] The arbitrator’s conclusion that a collective agreement is not capable of
overriding an Act of Parliament or prevailing over it, is neither illogical,
irrational or incorrect. The terms of the collective agreement itself declares
the collective agreement to be a guideline only.
[33] The Labour Appeal Court has cautioned against having a second
disciplinary enquiry in circumstances where second enquiry is ultra vires
disciplinary enquiry in circumstances where second enquiry is ultra vires
the employer’s disciplinary code and held that save in exceptional
circumstances a second enquiry would probably be unfair.
[34] See: BMW SA (Pty) Ltd Van der Walt (2000) 21 ILJ 113 (LAC) paragraph
12. In the same judgment it was also held that the principles of auterfois acquit
and re juidictata ought not be imported into labour laws as fairness and fairness
alone is the yardstick.
[35] As a matter of law therefore, it can not be said that proceedings under a
collective agreement raises a bar to the exercise of a statutory power contained in
section 17 of the PSA. The question is whether it was unfair to change the sanction
imposed to a harsher one.
[36] The arbitrator held that Mr Venter’s dismissal was not unfair. Given the
circumstances outlined above, such a finding is not irrational or disconnected to
the evidence before him. Mr Venter was guilty of three serious counts of
misconduct (insubordination, using official information for personal gain and
fraud). These were all offences for which dismissal was in each case, a justifiable
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sanction.
[37] Mr Venter elected not to make use of the opportunities given to him to put
any further mitigating circumstances before the Director General. He was
subjected to one proper hearing only, and it was a fair one.
[38] In the circumstances, I find no reason to set aside the arbitrator’s award.
Condonation:
[39] The application for review was brought out of time. The degree of lateness
was in dispute and the explanation for the delay was that Mr Venter had
sought legal advice. Given the poor explanation for the delay and the lack
of prospects of success as shown above, condonation for the delay is not
granted.
[40] The application for review is dismissed with costs.
__________________
E.REVELAS
REPORTABLE: YES/NO
REPORATABLE
DATE OF HEARING: 17 MARCH 2005
DATE OF JUDGMENT: 5 OCTOBER 2005
ON BEHALF OF THE APPLICANT: The Public Servants Association of
South Africa
ON BEHALF OF THE RESPONDENT: State Attorney
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