Bihl v Greater Kokstad Municipality and Others (JR 641/2020) [2022] ZALCJHB 262 (16 September 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 641/2020

In the matter between:

DOLLY BIHL

Applicant

and

GREATER KOKSTAD MUNICIPALITY

First Respondent

SALGBC

Second Respondent

JERALD VEDAN N.O.

Third Respondent

Heard: 08 September 2022

Delivered: 16 September 2022

(This judgement was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLII. The date on which the judgment is delivered is deemed to be 16 September 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant applies to review and set aside an arbitration award issued by the third respondent (the arbitrator). In his award, issued on 13 December 2019, the arbitrator held that the applicant had been fairly dismissed by the third respondent.

[2] The review application was filed late. The applicant states that the award came to her attention on 13 December 2019, when she received it from the bargaining council. After confirmation of cover from her legal insurer, the applicant was able to consult with her attorney on 18 February 2020. Confirmation of cover was received on 3 March 2020 and a consultation held on 12 March 2020. At that stage, the applicant learned that the review application ought to have been filed within six weeks. The founding affidavit was commissioned on 24 March 2020. The application itself was filed only on 19 May 2020, the reason for the delay being the hard lockdown that came into effect on 27 March 2020, and the closure of the registrar’s office.

[3] The general principles to be applied are well-established. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR 601 (LC); Derrick Grootboom v National Prosecuting Authority & another [2014] 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted. This court is required to exercise a discretion, having regard to the extent of the delay, the explanation proffered for that delay, the applicant’s prospects of success, and the relative prejudice to the parties that would be occasioned by the application being granted or refused.

[4] The applicant has proffered a satisfactory explanation for a delay that is not excessive. On that basis, and without any reference to the applicant’s prospects of success (the merits of the application are dealt with below) the late filing of the review application is condoned.

[5] The award under review records the material facts. The applicant was employed by the first respondent as a wellness officer. She was dismissed on 21 June 2018 after a disciplinary hearing. The applicant was found guilty of contravening the Municipal Systems Act, 2000, in that she engaged in business and/or trade without the consent of her

employer. Secondly, the applicant was found guilty of fraud in that she misrepresented to her employer that she was indisposed and incapable of rendering services when in fact she was attending to private business. Thirdly, the applicant was found guilty of an abuse of sick leave, in circumstances where there was evidence to the effect that the applicant was not sick, but engaging in private business. Fourthly, the applicant was found guilty of using her employer’s property without authority, in that she used the first respondent’s contact number as a contact number for her private business. Finally, the applicant was found guilty of fraud in that she misrepresented that she was permanently incapable of rendering services on the grounds of ill-health when at all material times, she was actively participating in her private business and engaging in private remunerative work.

[6] In his analysis of the evidence, the arbitrator recorded that a disciplinary hearing had been convened in respect of the charges brought against the applicant but that she had not attended any of the sittings, on the basis that she had submitted a medical certificate stating that she was ill and unable to participate. The proceedings continued in her absence and that of her representative. The arbitrator found that the applicant was fully aware of the dates of her disciplinary hearings, and that the certificates issued by her witness, Dr Seape, were not acceptable. The arbitrator agreed with the chairperson’s approach to the requirement that Seape either attend the hearing or produce an affidavit, and his decision to proceed with the inquiry in the absence of either. Further, the arbitrator agreed with the chairperson’s decision to grant the third respondent legal representation at the hearing.

[7] In regard to the first charge, the arbitrator found that the applicant was listed as the sole director of Prop Leap (Pty) Ltd a registered company with its registered address at the address of the applicant’s leased council property. The arbitrator found that there was a rule to the effect that the third respondent’s employees were not permitted to engage in private business without its consent and that there were no documents found in the applicant’s

personnel file in terms of which she declared her business interests. Further, two declarations made in 2015 and 2017, produced by the applicant, did not bear the stamp of the third respondent’s human resources department. In the circumstances, the arbitrator accepted the evidence of the third respondent’s first witness, Ms Eksteen, that no declarations had been made. In regard to the second charge, the arbitrator referred to the evidence given by a candidate attorney, Mr. Hlongwane, that he had clandestinely negotiated a business proposition with the applicant while she was on sick leave, and that she had provided him with a quotation for the service that he sought. The arbitrator found on the balance of probabilities that Hlongwane had interacted with the applicant, who had under taken to perform work for him in her personal capacity, although she was on sick leave. In regard to the third charge, regarding the abuse of sick leave, the arbitrator noted that despite the applicant’s prolonged sick leave and the closure of the facility of the wellness center, the applicant conducted private business utilizing the third respondent’s facilities. In regard to the fourth charge, the arbitrator found that the applicant had conducted business from the municipal residential premises that she occupied, using the third respondent’s telephone numbers to conduct that business. The arbitrator referred to an advertisement published by the applicant containing these details and concluded that the applicant was thus guilty on charge four. In respect of the fifth charge, the arbitrator found that the medical certificates issued by the applicant’s doctor were thoroughly discredited, to the extent that the doctor (Seape) admitted that the certificates were invalid. The arbitrator concluded that the applicant had misrepresented herself as permanently incapable of rendering services to the third respondent and that she had confirmed that misrepresentation by completing medical boarding forms. In a paragraph which assumed some significant steering the present proceedings, the arbitrator recorded the following:

112. The applicant’s health has appeared to deteriorate while the hearing was taking place, and to all intents and purposes, she appears visibly not to be capable of performing her work functions, as evidenced by documentary evidence and her doctor.

[8] The arbitrator nonetheless concluded that the applicant’s dismissal was substantially and procedurally fair.

[9] The founding affidavit records grounds for review to the effect that the third respondent made findings inconsistent with the evidence before him, that he admitted and relied on inadmissible evidence, that he exceeded his powers on having elevated the burden of proof, and that he failed properly to identify the real dispute between the parties, which was one that concerned the applicant’s incapacity rather than misconduct. Further, the applicant submits that the arbitrator ought not to have admitted the evidence of a single witness (Hlongwane) whose evidence was obtained as the result of entrapment.

[10] The applicant avers further that the evidence of Seape ought to have been accepted when she testified that the applicant had for a long period been suffering from psychotic depression, and that she was incapable of perceiving reality. The applicant relies in particular on the submission that depression is a medical condition and that it ought to have been treated by the third respondent as such. In short, the applicant submits that the third respondent erred by finding that she had the necessary mental capacity to commit the acts of misconduct with what she had been charged.

[11] The test to be applied in review applications is clear. This court may intervene if and only if the applicant establishes that the decision to which the arbitrator came was so unreasonable that no reasonable decision-maker could come to it. In a matter such as the present, where the applicant relies on what are contended to be reviewable irregularities in the assessment of the evidence, the court must be cautious to ensure that the line between an appeal and a review is not crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC)), the Labour Appeal Court noted that a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process related irregularity sufficient to set aside the award.

[12] The court cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgment). Specifically, the questions for a review court to ask are whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that he or she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with substantial merits of the dispute and whether the decision is one that another decision-maker could reasonably have arrived at based on the evidence (see paragraph 20). In short, when an arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21).

[13] Precisely how this determination to be made was the subject of guidance provided by the Labour Appeal Court. In Head of the Department of Education v Mofokeng & others [2015] 1 BLLR 50 (LAC), Murphy AJA said the following:

The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of interrelated questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisaged in the distinctive review grounds developed at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act (“PAJA”); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith arbitrarily or capriciously etc. The Court must nonetheless still consider with apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence (at paragraph 31)

Further:

Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had on the arbitrator’s conception of the enquiry, the determination of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. The material error of this order would point to at least a prima facie unreasonable result.

[10] To summarise: the threshold to be met by an applicant in a review application is one of reasonableness. The court is required to apply a two-stage test. The first stage is to determine the existence or otherwise of any error or irregularity on the part of the arbitrator. If the applicant is unable to establish any error or irregularity, that is the end of the enquiry. In this regard, it is not the function of a review court to engage in a nitpicking exercise; the focus is on whether the arbitrator appreciated the nature of the enquiry and forwarded the parties a fair hearing. When an error or irregularity is established, the court must proceed to the second stage of a determination of the reasonableness of the result. Put another way, the award must be sustained if, by reference to the record and regardless of any error or irregularity on the part of the arbitrator, the award is one which

a reasonable decision-maker could reach. This approach distinguishes a review from an appeal, the latter being a remedy that the

legislature specifically denied parties aggrieved by the outcome of arbitration proceedings under the LRA. So, in the present instance,

it is not for this court to determine the dismissal dispute afresh, as opposed to considering the reasonableness of the award under

review.

[14] I fail to appreciate how it can be said that the arbitrator failed to appreciate the nature of the enquiry before him, or that he incorrectly identified the issues in dispute, or that he failed to deal with the substantive merits of the dispute. On the Gold Fields test, on this basis alone, the application stands to be dismissed.

[15] I deal first with the applicant’s submission that the arbitrator ought not to have proceeded to conduct the hearing under review on account of the applicant’s mental incapacity. The first respondent does not dispute that the applicant has a legitimate mental condition. The first respondent does dispute that the applicant was mentally incapable when in early 2018 she committed the offences of which she was found guilty. Further, the first respondent contends that the applicant’s case at the arbitration hearing was not that she was mentally incapable of committing the alleged offences; her case was that she did not commit the offences at all.

[16] Seape’s evidence was that the applicant was unwell and could not perform her official duties on account of her medical condition. Seape did not testify that the applicant was mentally incapable of committing misconduct. An applicant in a review application may not seek to make out a new case on review. The test on review is one that requires the record of the arbitration proceedings to be scrutinized to determine first, any reviewable irregularity on the part of the arbitrator and secondly, whether notwithstanding that irregularity, the outcome of the arbitration proceedings none the less meets the threshold of rationality. It is thus not open to the applicant to contend, in the broad terms now articulated, that the arbitrator is in proceeding with the arbitration hearing at all. It should also be recalled that at the time, the applicant was represented and that her attorney made no objection to the proceedings commencing or continuing on the grounds of the applicant’s mental incapacity.

[17] Insofar as the arbitrator’s findings on the specific charges brought against the applicant are concerned, and in particular, the first charge, it was common cause that the applicant was a member of a corporate entity that was conducting private business. The only issue for determination then was whether the applicant had declared that interest to the first respondent. The first respondent led evidence on the process of submission of declaration forms. As indicated above, the applicant’s vision was that she submitted two declarations in 2015 and 2017, respectively. Eksteen testified that these forms could not be located

[18] In regard to the second charge against the applicant, it is not in dispute that the first medical certificate submitted by her was dated 21 May 2018 indicating that the applicant was booked off from to May 2018 to 31 May 2018. Similarly, the second certificate was dated 21 May 2018, in terms of which the applicant was booked off from 1 June 2018 to 30 June 2018. Under cross-examination, Seape conceded that the certificates lacked validity on account of the fact that they lacked the dates and times of examination. Hlongwane’s evidence was that the applicant had undertaken to provide services to him

although she was booked off sick between 15 January 2018 to 1 May 2018. There was no reason to exclude Hlongwane’s evidence given the injunction in terms of section 138(1) that arbitrators conduct proceedings in an informal manner in order to determine disputes fairly and quickly. The fact that the arbitrator did not apply the test that would be ordinarily applicable in a criminal trial is not an indication of any material irregularity.

[19] In regard to the third charge brought against the applicant, the first respondent led evidence that during the time of her sick leave, the applicant engaged in private business in the form of making phone calls from the wellness center. That evidence, coupled with evidence in relation to the applicant’s refusal to comply with the third respondent’s request that she obtained a second opinion, was not seriously challenged and the arbitrator’s decision that the applicant was guilty of this charge cannot be called into question.

[20] In relation to the fourth charge against the applicant, the applicant did not dispute using the address of the property owned by the first respondent, as well as the first respondent’s telefax and telephone number as contact details in an advertisement for the private business conducted by her. I fail to appreciate the full material irregularity can be said to have been committed by the arbitrator in concluding that the applicant was guilty of this charge.

[21] Finally, in relation to the charge that the applicant had falsely represented that she was permanently incapable of rendering services in circumstances where she was actively participating personally in her private business, the arbitrator found that the applicant, while engaging in private business activities, made an application for permanent ill health retirement benefits. In consequence, she was granted an extra 20 days’ sick leave. Her doctor had declared to the applicant for her return to work on 1 May 2018, thereby rendering her claims for permanent disability invalid and ‘the she profited from this assertion’.

[22] I fail to appreciate, having regard to the record, on what basis it can be said that the arbitrator committed any reviewable irregularities. In any event, the outcome of the proceedings under review is sustainable having regard to the reasonableness threshold. It follows that the application for review must fail.

[23] Finally, in relation to costs, the court has a discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness. The court is ordinarily reluctant to make orders for costs in the case of individual employees who in good faith pursue grievances against their employers. The basis for this reluctance is the need to ensure that the doors of the court remain open to bona fide applicant who might otherwise be deterred from seeking recourse against their employers. This case falls into that category and for that reason, the requirements of the law and fairness are best served by each party bearing its own costs.

Order

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: S Seepamore, Attorney

For the first respondent: S Hlongwane, Attorney