Breytenbach v South African Local Government Bargaining Council and Others (JR 1316/06) [2013] ZALCJHB 274 (23 October 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no JR 1316/06

In the matter between:

MR RNJ BREYTENBACH ................................................................................APPLICANT

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL ..................................................................FIRST RESPONDENT

DE WET R (COMMISSIONER) N.O. ............................................SECOND RESPONDENT

MADIBENG LOCAL MUNICIPALITY ..............................................THIRD RESPONDENT

Heard: 12 March 2012

Delivered: 23 October 2013

________________________________________________________________________

PATTERSON, AJ

Introduction

[1] This is a review application in terms of which the Applicant seeks an Order in the following terms:

That the arbitration award made by the Second Respondent on 14 April 2006 under SALGBC, Case Number: NW90501/2, be reviewed and set aside and be corrected by this Honourable Court by substituting the dismissal of the application with an award of reinstatement of the Applicant on the same terms and conditions which applied to the Applicant at the time of his dismissal, alternatively an award of 12 (Twelve) months remuneration in favour of the Applicant;

That the costs of this application be paid by the Respondents jointly and severally, should any one or more of them oppose the application;

Further and/or alternative relief.

Material Background Facts

[2] The Applicant was employed as a Senior Manager at the Madibeng Local Municipality. It is disputed whether the Applicant’s position was Assistant Town Treasurer or Financial Assistant Specialist. Nothing turns on this as it is common cause that his position is a senior position.

[3] The Madibeng Local Municipality, the Third Respondent in this matter, resolved through its council:

1. To replace the ageing BIQ financial system with the Sebata system.

2. Mandated the Applicant, who at the time was the only employee with specialist knowledge of the BIQ system, to be at the forefront of the conversion process; to render technical assistance and to act as a liaison officer to the new financial systems administrators.

3. It was alleged by the Third Respondent that the Applicant often claimed excessive overtime and a standby allowance for attending to problems experienced in the use of the BIQ system and by implication had an interest in maintaining the BIQ system.

4. Whether this is true or not, the Applicant clearly vigorously opposed the new financial system and had an investment in the old system. It is common cause that he did not support the implementation of the new system.

5. It is alleged by the Third Respondent that the Applicant took leave at the time that the new system was to “go live” and generally was a disruptive force in meetings that were called to address problems that were encountered.

6. When a member of public visited the Third Respondent’s office with regard to a billing query, it is common cause that the Applicant denigrated the new financial system in vulgar terms (referring to it as “shit”) and was further alleged to have incited a ratepayer to be rude and abusive in respect of an official of the Madibeng Town Council.

7. Disciplinary action was instituted against the Applicant for the following acts of gross misconduct:

‘7.1. Unacceptable conduct in that on or about 7 October 2004, at the municipal offices in Brits, he allegedly described the municipality’s

new financial system as “shit” in front of a member of the public, Mr Conrad Engelbrecht, thereby inciting him against the Third Respondent’s official.

7.2. It was also alleged that he encouraged Mr Conrad Engelbrecht to address council officials assisting him in a rude and abusive manner.

7.3. Insolence, in that he conducted himself in an unacceptable and contemptuous manner towards myself as a superior, and that he deliberately became a disruptive force in implementation committee meetings held on 28 April 2004, 19 May 2004, 30 September 2004.

7.4. Gross negligence, for his failure to adjust affluent rates accordingly, with the result that the Third Respondent lost a lot of revenue that should have been generated had affluent rates been regularly adjusted.

7.5. Gross negligence, for deliberately presenting wrong files to Sebata (new financial system) representatives at the time when the correct information was required for finalisation of the charge to the new financial assistant, which the Third Respondent was implementing.

7.6. Gross negligence, for failing to implement the free basic water policy correctly as per council resolution.

7.7. Unacceptable conduct, in relation to wilful and unfounded rumours attributed to him and the mayoral committee was going to dismiss senior officials. This had the effect of destabilising the municipality.’

[4] A disciplinary inquiry was held pursuant to an investigation and recommendation by the attorneys of the local municipality of Madibeng. Disciplinary complaints were brought involving 6 (Six) charges of misconduct against the Applicant. In respect of the first charge, the Applicant was alleged to have described the municipality’s new financial system as “shit” in front of a member of the public. This was confirmed by the employer’s witness, Mr Cas Raymond. It is further alleged that this was accepted by the Applicant. In addition it is further alleged that the Applicant said in Afrikaans that “dit is nou tyd dat iemand moet gemoer word”, so that the council could see how bad the new financial system was. Mr Raymond confirmed

that such remark was made by the Applicant.

[5] In respect of the second charge, the Madibeng Local Municipality called 3 (three) witnesses to testify on unacceptable conduct displayed by the Applicant towards Mr Mapulane in various meetings. It appears from the record that whilst the Applicant acknowledged a number of the allegations made against him, he denied that his cell phone was the only cell phone that rang in meetings and more particularly that this was in and of itself insubordinate.

[6] Insofar as the third charge is concerned, the Applicant was found not guilty by the chairman of the disciplinary hearing, due to insufficient evidence.

[7] The Applicant was found guilty of the fourth complaint. It is apparent from the evidence that the Applicant did not render proper

assistance to the Sebata officials because he disapproved of the institution of the new system. Indeed the Applicant suggested that once he had given information to the Sebata officials, it was then Sebata’s obligation to take the matter further and he is alleged to have displayed a disinterested attitude. The Applicant was found guilty of the fourth charge.

[8] In respect of the fifth charge, the chairperson of the disciplinary inquiry found that the council had suffered financial loss as a result of miscalculation of tariffs and that it was the Applicant’s duty not just to capture information but to interpret it. The Applicant was accordingly found negligent.

[9] In respect of the sixth charge, the Applicant denied having said that heads will roll, but admitted that he alleged that Mr Magwala’s head “would be on the block”. The Applicant was found guilty by the chairperson of the hearing of the above complaint.

[10] On 15 June 2005, the chairperson found that in view of the gravity of the complaints and the fact that the trust relationship, which is the cornerstone of every employment relationship, had broken down irretrievably. The Applicant’s dismissal was recommended with immediate effect.

[11] The Applicant referred an unfair dismissal dispute to the First Respondent. The Second Respondent, Commissioner R de Wet acting for and on behalf of the First Respondent, found the dismissal of the Applicant substantively and procedurally unfair on 14 April 2006.

[12] The Applicant seeks to review the finding of the Second Respondent in terms of Section 145 and 158(1)(g) of the LRA.

The Law

[13] The test to be applied in review applications is now well established. The Court is entitled to interfere with an arbitration award made by a CCMA Commissioner if and only if the commissioner’s decision is so unreasonable that it is a decision which no reasonable decision maker could come to – Sidumo and Another v Rustenburg Platinum Mines Ltd and Others.1.

[14] Van Niekerk J in Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others2 captures the essence of the reasonableness enquiry as follows:

‘In summary, s145 requires that the outcome of CCMA arbitration proceedings (as represented by the commissioner’s decision)

must fall within a band of reasonableness, but this does not preclude this court from scrutinising the process in terms in terms of which the decision was made…’

[15] Zondo JP in the Fidelity Cash Management Services v CCMA and Others3 case had this to say about the Sidumo test:

‘[T]he Sidumo test is a stringent test that will ensure that such awards are not lightly interfered with. It will ensure that, more than before, and in line with the objectives of the Act and particularly with the primary objectives of the effective resolution of disputes, awards of the CCMA will be final and binding as long as it cannot be said that such a decision or award is one that a reasonable decision maker could not have made in the circumstances of the case…’”

[16] In Discovery Health Limited v CCMA and Others4 Van Niekerk AJ, as he then was, answers the pertinent question whether the Labour Appeal Court expanded the test in Fidelity Cash Management, in relation to the reasons that do not appear from the arbitration award but may be found in the record as follows:

‘The Fidelity Cash Management judgment is also authority for the view that while there may have been a debate in the Carephone era as to whether a Commissioner's decision for which bad reasons are given could nonetheless be justifiable if there were other reasons on the record not articulated by the Commissioner but that could sustain the decision made, Sidumo makes it clear that the reasonableness or otherwise of a Commissioner's decision does not depend solely on the reasons proffered by the Commissioner Reasons on which the Commissioner did not rely to support the finding under review can legitimately be taken into account…’ .

[17] The recent decision of the Supreme Court of Appeal of South Africa in Herholdt v Nedbank Ltd and Another5 places the Sidumo decision in proper context.

[18] Cachalia and Wallis JJA held as follows:

‘[]13 the distinction between review and appeal which the Constitutional Court stressed is to be preserved, is therefore clearer in the case of the Sidumo test. And while the evidence must necessarily be scrutinised to determine whether the outcome was reasonable, the reviewing court

must always be alert to remind ourselves that it must avoid “judicial over zealousness in setting aside administrative decisions that do not coincide with the judge’s own opinions’. The LAC subsequently stressed that the test ‘is a stringent one and that will ensure that … awards are not likely interfered with’ and that its emphasis is on the result of the case, rather than the reasons for arriving at that result. The Sidumo test will, however, justify setting aside an award on review if the decision is ‘entirely disconnected with the evidence’ or is ‘unsupported by any evidence’ and involves speculation by the commissioner.

[25] In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’

Ground for Review

[19] I turn now to deal with the grounds of review raised by the Applicant.

[20] The Applicant raises two preliminary grounds, namely the late prosecution of the complaints and the non-hearing of the appeal. Insofar as the late prosecution of complaints is concerned, the Applicant alleges that the Commissioner came to an incorrect finding

in terms of the SALGBC disciplinary procedure. In terms of clause 3.1 of the disciplinary procedure, it was clearly and collectively agreed that actions that commenced prior to 1 February 2004 shall be regulated by the terms of the existing code. Clause 5.1 of the disciplinary procedure collective agreement provides for discipline to be effected “fairly, consistently, progressively and promptly”. It is the Applicant’s contention that he should not have been charged nor found guilty of incidents that allegedly occurred between June 2003 and June 2004. This is, it is alleged, not “prompt” disciplinary action.

[21] The Commissioner, whilst accepting that there was a period of delay between the date during which some of the alleged incidents occurred, concluded that the significant delay related to the third charge (the incidents which occurred during July 1996 to May 2004), in respect of which the Applicant had been found not guilty by the disciplinary chairperson, concluded that charges four and five (June 2003 to June 2004) the complaints had been brought timeously. No specific time limits were imposed by the collective agreement and it is clear that the Third Respondent acted within a reasonable time after it had been brought to senior management’s attention that the suspicion of misconduct on the part of the Applicant.

[22] It cannot be said that the Third Respondent did not act within a reasonable time after it had been brought to its attention that there was a suspicion of misconduct on the part of the Applicant.

[23] In light of the need to properly investigate the matter, the complexity of the complaints and to instruct its attorneys to investigate and report, I cannot find that the Commissioner arrived at an unreasonable result or committed any material error of fact in this regard.

[24] The Applicant also raises the non-hearing of the appeal and points out that he had a “right” in terms of clause 14(1) of the disciplinary procedure collective agreement to an appeal. The Commissioner simply states in her finding that “no appeal hearing was held” and it was accordingly the Applicant’s case that the Commissioner misdirected herself in this regard. The issue raised by the Applicant largely relates to a matter of procedural unfairness and no evidence was led at the hearing that suggested that there was a procedural attack in respect of the dismissal, which in itself adequately explains why the Commission did not expressly address such matters. There also appears to be an agreement between the parties that the matter would be heard by the Commissioner. Such hearings are in any event de novo. In the circumstances, this does not provide a proper ground for review in this matter.

[25] The Applicant thereafter, in his application, addresses each of the five complaints [of which he was found guilty] with a view to establishing that the decision of the Second Respondent was unreasonable. The Applicant’s contentions can in essence be summarised as follows:

1. Allegation 1: Unacceptable Conduct

1.1. The Applicant states “In the evidence nobody ever said it’s high time someone gets assaulted”. The words in Afrikaans were allegedly “hier gaan iemand gedonner word”, in a reaction to the argument in the office. I realised that if it happens management will realise something is wrong. I never swore at anyone, but described the IT system in words that are commonly used by the male staff of Madibeng (Third Respondent)”. The distinctions between the two versions appear nuanced.

1.2. It is the Applicant’s case that the Second Respondent erred in finding that it was unlikely that it was someone else that made the remark. It is also his case that the Second Respondent erred that his description of an IT system that was not working, as a “shit” system, was a dismissible offence without any previous warning.

1.3. The dispute between the Applicant and the First Respondent versions is riddled with nuances, which only serve to obfuscate the matter.

1.4. The nature of the compliant is a simple one; the Applicant is alleged to have denigrated his employer’s computer system to a member of the public and did so publicly in a fashion that was entirely unacceptable, disparaging and highly provocative.

1.5. There is no doubt, even on the Applicant’s version, that this is so. Whether this is dismissible in and of itself (as a first offence) may be the subject matter of debate. When, on a broad conspectus, the Second Respondent takes into account the Applicant’s general approach to the new computer system, his obvious unwillingness to cooperate with the implementation of the new system, his action to retard its implementation and his outspokenness to members of the public, who are his employer’s clients, and the damage that this has undoubtedly caused, I cannot find (on a broad consideration of all of the above) that the finding of the Second Respondent, both in respect of guilt and penalty, was unreasonable in all the circumstances.

1.6. Whilst an employee is of course entitled to have his own views [and sometimes obliged] to express such views stridently, he is not entitled to do so in a manner that is derogatory and denigrating to his employer in the presence of third parties. In short, there is a time and place to do so. This is particularly so when the employee does so unnecessarily and in a public manner that can only serve to enflame the situation and make it extremely difficult for other employees to communicate with members of the public. In my view, the Commissioner’s finding of guilt was not unreasonable. Moreover, dismissal in such circumstances would not be inappropriate and accordingly the review falls to be dismissed on this ground alone.

2. Allegation 2: Conduct at Staff Meetings

2.1. The Applicant alleges that the Commissioner erroneously preferred the evidence of Coetzee, Bossert and Magwala over his own, and alleges that the applicant was attempting to “build a case” to get rid of him.

2.2. Mapulane testified that the Applicant was disrespectful and disruptive during meetings. The issue of the cell phone and whether there was any policy or practice in this regard was not in and of itself of singular importance. There is no proof to substantiate that there was an orchestrated attempt or conspiracy to get rid of the Applicant.

2.3. A careful consideration of all the evidence of the above witnesses suggests that, on a balance of probabilities, it was not unreasonable for the Second Respondent to conclude that the Applicant did act in an unacceptable, disrespectful and perhaps at times insolent fashion. The fact that he may have bona fide believed that the implementation of the new financial system was misguided, does not in and of itself warrant or justify such behaviour. I cannot find that the finding of the Second Respondent is unreasonable in this regard.

3. Allegation 3:

3.1. The Applicant was found not guilty.

4. Allegation 4: Data of Sebata

4.1. The Applicant is a Senior Manager and was identified by the First Respondent as the point of liaison between the Third Respondent and the project leader of the Sebata system. He was to assist in the conversion of the BIQ system to Sebata. Whilst the Applicant was entitled to raise his misgivings in respect of the system, he was also required to apply himself, on his employer’s behalf, to the best of his ability to make a success of the new system if his employer wished to pursue it. It was not for him to question thereafter the implementation of the Sebata system and it is not for this Court to determine whether the decision was a good or bad one in the greater scheme of matters.

4.2. It is clear that the Applicant failed to apply himself with the necessary vigour and conviction and to provide the assistance required. It appears from the evidence presented to the Second Respondent that his decision to find the Applicant guilty of failing to provide requested data, alternatively negligently presenting wrong files, cannot be held to be unreasonable.

5. Allegation 5:

5.1. The Applicant was found not guilty.

6. Allegation 6: Spreading of unfounded rumours

6.1. The Applicant suggests that the gist of this complaint is that he made a protected disclosure relating to matters to the MEC and relies, by way of a defence, of Section 7 of Act 26 of 2000.

6.2. The nub of the Second Respondent’s complaint is not so much the complaint that he rendered to the MEC and whether it constituted a protected disclosure or not [which for the purposes of this review it is not necessary to decide], but spread unfounded rumours relating to the system amongst his colleagues and staff.

6.3. The Second Respondent finds that the Applicant told Magwala’s boss that “the chickens have come home to roost” and “that senior management was going to be fired”. Justification for these comments arose from his alleged frustrations that he had experienced. Whilst there were disputes about the version which is to be accepted, it is clear that any difficulties or problems that the Applicant had with the new system should have been processed through the grievance procedures provided for at the council. Irrespective of whether the Applicant was entitled to write a letter to the MEC or not (which is a matter which it is not necessary for me to decide upon for the purposes of this review), the Applicant appears to have conducted himself in a manner that was disruptive and inimical to the continued employment relationship and disruptive to the council decision to implement a new system.

6.4. Whilst the Applicant may bona fide be entitled to have a different view to the one adopted by the council, he was not entitled to act in a manner that would frustrate and delay the implementation of the council’s decision. Irrespective of whether his conduct in this regard is bona fide or not, it cannot be said that he acted in the best interests of his employer. It accordingly cannot be said that the finding of the Second Respondent were unreasonable.

[26] On the broad conspectus of all of the above, it cannot be said that the award of the Second Respondent is unreasonable nor “entirely disconnected with the evidence”, “unsupported by any evidence” or “arises out of speculation by the Commissioner”. The finding of the Second Respondent is a cogent and well considered one and the Second Respondent does not appear to have misconceived the nature of the inquiry or arrived at an unreasonable result, particularly having regard to all the evidence presented before the Second Respondent.

[27] It is not for this Court, in such circumstances, to second guess the decision of the Commissioner and engage in unwarranted judicial activism by way of a review application.

[28] In the premises, the review falls to be dismissed.

Finding

[29] I, accordingly, make the following order:

The application for review is dismissed.

There is no order as to costs.

_______________

Patterson, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate J Crause

Instructed by: Attorney C van der Walt

For the Respondent: Advocate Nalane

Instructed: Maserumule Attorneys Inc

1(2007) 28 ILJ 2405 (CC).

2[2009]11 BLLR 1128 (LC) at para 17.

3 (2008) 3 BLLR 197 (LAC) and para 110.

4(2008) 29 ILJ 1480 (LC) at para 17[2008] ZALC 24; ; [2008] 7 BLLR 633 (LC).

5(701/2012) [2013] ZA SCA 97 (5 September 2013) ..