Department of Community Safety and Transport Management v General Public Service Sectoral Bargaining Council (GPSSBC) and Others (JR1537/15) [2021] ZALCJHB 453 (6 December 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1537/15

In the matter between:

DEPARTMENT OF COMMUNITY SAFETY AND

TRANSPORT MANAGEMENT, NORTH WEST

PROVINCIAL GOVERNMENT Applicant

and

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL (“GPSSBC”) First

Respondent

PANELLIST MASHOODA PATEL Second

Respondent

GK MENYATSOE Third

Respondent

Heard: 11 November 2021 (via Zoom)

Delivered: This judgment 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 and time for hand-down is deemed to be 10h00 on 06 December 2021.

Summary: Review application – parity principle is not intended to promote chaos in the workplace or absolve employees convicted of dismissible transgressions.

Arbitrators must deal with all charges levelled against an employee even if he is absolved on one charge.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] In this review application, the applicant (Department), impugns the arbitration award issued by the second respondent (Arbitrator), under case number GPBC1723/2014, dated 15 June 2015 and issued under the auspices of the first respondent (GPSSBC). The Arbitrator found the dismissal of the third respondent (Mr Menyatsoe) procedurally and substantively unfair and ordered his retrospective reinstatement.

[2] The Department impugn is hinged on the several grounds and pertinently that the Arbitrator misconceived the nature of the enquiry; and alternatively, that she acted unreasonably by failing to make a finding on other substantive issues. Mr Menyatsoe is defending the award.

Factual Background

[3] Mr Menyatsoe was employed by the Department as a Traffic Officer, Principal Provincial Inspector, stationed at the Lehurutshe Traffic

Office of the Department near the town of Zeerust, near the South African border with Botswana. Mr Menyatsoe’s supervisor was Mr W C Fourie (Chief Provincial Inspector), who in turn reported to the Lehurutshe Station Manager, Mr Mokgatle.

[4] Mr Menyatsoe’s duties primarily involved detection and prosecution of road traffic offenders. He was accordingly placed in possession of a motor vehicle which was subsidised by the Department and was expected to keep a logbook distinguishing official from private trips travelled for any specific month. The logbook would then be used to calculate Mr Menyatsoe’s travelling subsidy based on official kilometres travelled. Traffic officers in the position of Mr Menyatsoe are also entitled to claim for subsistence allowance (meals and discomfort) if on official duty for an uninterrupted specified period.

[5] A Provincial Inspector is also a Peace Officer and is required to testify in criminal court proceedings against traffic offenders. As such, as a Provincial Inspector, Mr Menyatsoe was expected to demonstrate the highest standard of honesty and integrity.

[6] The training and qualifications of a traffic officer are uniformly regulated in terms of the National Road Traffic Act 93 of 1996 and the regulations issued in terms thereof. The training of traffic officers takes place at accredited traffic colleges in accordance

with a syllabus prescribed by regulation and in order to undergo such training, a prospective traffic officer must already be employed by a Provincial or Municipal Traffic Department, which Department then nominates and pays for those candidates whom the Department enrols at such Traffic College. One of the accredited Traffic Colleges in terms of the National Road Traffic Act is the Gauteng Traffic College (Boekenhoutkloof) situated in Pretoria.

[7] On 12 August 2013, Mr Menyatsoe was charged with serious misconduct, and 11 charges were levelled against him which broadly related to the following incidents:

7.1. Nine charges of misrepresentations in relation to Mr Menyatsoe’s private trips to Botswana. He claimed for travelling and subsistence allowances reserved for official travelling purposes, to which he had not been entitled to.

7.2. Irregular and/or ultra vires nominations of numerous person to undergo training at the Gauteng Traffic College by making fraudulent use of the Department’s letterhead. Even though the said nominees were not in the employment of the Department, they were accepted for training. Mr Menyatsoe accordingly exceeded his authority and abused official departmental stationary in the process of making misrepresentations to the Gauteng Traffic College.

7.3. Insubordination and insolence in that Mr Menyatsoe supervisor challenged the authority of Mr Fourie by, inter alia, refusing to have his speedometer inspected; by inserting his name in the duty register of the Lehurutshe office when he was not entitled to do so; and by calling Mr Fourie a “hooligan” in the presence of other subordinates.

[8] Mr Menyatsoe was found guilty of all the charges and accordingly dismissed. Displeased with his dismissal, he referred an unfair dismissal dispute to the GPSSBC. Following a failed conciliation, the matter preceded to arbitration resulting in the impugned award.

Procedural unfairness

[9] Mr Menyatsoe raised two procedural issues. Firstly, that he did not receive the findings of the presiding officer of the disciplinary enquiry in relation to the sanction. Mr Menyatsoe testified that he was not sure as to who ultimately decided on the sanction of dismissal as the presiding officer’s ruling contains a recommendation. Secondly, that the respondent failed to act promptly in relation to charge 10 as the allegations levelled against him in this regard took place four years prior to him being charged.

[10] The Arbitrator rejected the evidence of the Department and found in favour of Mr Menyatsoe. In these proceedings, the Department concedes that there may have been some minor procedural issues. As such, it tendered to pay Mr Menyatsoe compensation equivalent to three months’ salary calculated at the applicable rate at the date of his dismissal. To my mind, this offer is generous, given the negligible nature of Mr Menyatsoe’s procedural complaints. Nonetheless, I deem it unnecessary to tempter with it and that then ends the inquiry in this regard.

Substantive fairness

[11] The arbitrator found Mr Menyatsoe guilty as of all 11 charges which are patently serious and have an element of dishonesty and gross insubordination. Since there is no cross review, this matter turns on three issues; i.e. incontinency, appropriateness of the sanction of dismissal and the relief of retrospective reinstatement.

[12] Inconsistency Mr Menyatsoe’s case was that the Department inconsistently applied the rule in respect of charges one to nine, which dealt with fraudulent travelling and subsistence claims. He testified that it was a practice that was commonly known and that most of his colleagues also claimed for the trips to Botswana. Mr Menyatsoe submitted the names his colleagues who also undertook the trips to Botswana and submitted the fraudulent claims as well.

[13] Mr Keetile, one of the supervisors and the Department’s witness, testified that the Department was not aware that there were other employees who were also fraudulently claiming travelling and subsistence allowances. He also denied any involvement in the alleged practice. Yet the Arbitrator rejected his evidence solely because he did not bring his logbook despite the fact that he was not notified to produce it prior to the arbitration proceedings. The arbitrator also found that the Department was probably aware of the practice but did nothing. He then found that the Department inconsistently applied the rule.

[14] The parity principle has been the subject of many decisions of this Court and the Superior Courts on several instances. In Absa Bank Limited v Naidu and Others,[1] the Labour Appeal Court, expounded this principle as follows:

‘Indeed, in accordance with the parity principle, the element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal. However, as I say, it is only a factor to take into account in that process. It is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. In my view, the fact that another employee committed a similar transgression in the past and was not dismissed cannot, and should not, be taken to grant a licence to every other employee, willy-nilly, to commit serious misdemeanours, especially of a dishonest nature, towards their employer on the belief that they would not be dismissed. It is well accepted in civilised society that two wrongs can never make a right. The parity principle was never intended to promote or encourage anarchy in the workplace...’ (Emphasis added)

[15] It is clear from the above authority that inconsistency is a factor to be taken into account in the determination process of the fairness of a dismissal. However, it is not a self-standing factor which is decisive of the outcome on the determination of the fairness of the decision to dismiss. It stands to reason, therefore, that the Arbitrator misconstrued the nature of the enquiry by elevating the parity principle into a self-standing factor. I hasten to warn Arbitrators that they must exercise caution when applying the parity principle as it is not intended to promote chaos in the workplace or absolve employees convicted of dismissible transgressions.

Appropriateness of the Sanction

[16] Even if the Arbitrator’s finding on the issue of inconsistency was sustainable, still she had to consider the appropriateness of the sanction of dismissal and the reasonableness of the relief of reinstatement. It is not in dispute that Mr Menyatsoe was found guilty of serious transgressions that have element of dishonesty and serious challenge to the authority of the Department.

[17] Yet, the Arbitrator unreasonably ignored the Department’s evidence that Mr Menyatsoe was a Peace Officer in the law enforcement sector. Inherent in the duties of Peace Officer is an expectation to act with utmost goof faith and in the best interest of the Department on all the dealings. Mr Menyatsoe, however, failed dismally as he deliberately committed acts of dishonesty. Also, he was seriously insubordinate and insolent to Mr Fourie. To make matters worse, the act of insolence took place in the presence of Mr Fourie’s subordinates. In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others,[2] referred to with approval in ABSA,[3] the LAC stated the following:

‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.’

[18] While, in Samancor Chrome Ltd (Eastern Chrome Mines) v Commission for Conciliation, Mediation & Arbitration & Others,[4] the LAC crisply encapsulated the review test as follows:

‘The task of the commissioner, as was made clear in Sidumo & another v Rustenburg Platinum Mines Ltd & others,[5] was to determine whether the dismissal of the employee was fair or not. In doing so, he did not undertake the wrong enquiry, nor did he fail to ‘tie the evidentiary knots’ or approach the misconduct allegations narrowly and incorrectly in the manner

contended by the appellant. On a conspectus of the material before him, the outcome reached by the commissioner was not one which a reasonable commissioner in his position could not have reached.’

Conclusion

[19] In the circumstances, it is evident that the Arbitrator undertook the wrong enquiry and failed to ‘tie the evidentiary knots’. As a result, she deprived the parties a fair hearing. The award accordingly stands to be reviewed and set aside. I am, however, not inclined to remit back to the GPSSBC as I am in a position to deal with the matter to its finality in the interest of justice.

[20] After a careful perusal of the record and in the light of the findings I have arrived at above, I am convinced that the dismissal of Mr Menyatseo is procedurally unfair but substantively fair.

Costs

[21] As a rule, costs do not follow the result in this Court in line with the requirements of the law and fairness. In any event, the circumstances of this case dictate that each party pays its own costs.

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

Order

1. The arbitration award under case number GPBC1723/2014, dated 15 June 2015 is reviewed and set aside and substituted with the following order:

1.1 The dismissal of the Menyatsoe is substantively fair but procedurally unfair.

1.2 The Department is to pay Mr Menyatsoe compensation equivalent to three months’ salary calculated at the applicable rate at the date of his dismissal.

2. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate

MG Hitge

Briefed by: Leepile

Attorneys Incorporated

For the Third Respondent: OJ Thobegane from Thobegane attorneys

[1] [2015] 1 BLLR 1 (LAC); (2015) 36 ILJ 602 (LAC) at para 42.

[2] (2000) ILJ 1051 (LAC) at para 22.

[3] Supra n 1 at para 51.

[4] (2020) 41 ILJ 2129 (LAC) at para 13.

[5] 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC)[2007] ZACC 22; ; [2007] 12 BLLR 1097 (CC); 2008 (2) BCLR 158 (CC) at para 79.