Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR 1736/18) [2022] ZALCJHB 46 (4 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1736/18

In the matter between:

DEPARTMENT OF HOME AFFAIRS Applicant

and

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL

First Respondent

E. MAREE

Second Respondent

RAYMOND XOLANI JAN Third Respondent

Heard: 02 September 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email. The date and time for hand-down are deemed to be 04 March 2022.

JUDGMENT

MAHOSI. J

Introduction

[1] The applicant launched an application in terms of section 145 of the Labour Relations Act[1] (LRA) for an order to review and set aside the arbitration award dated 28 June 2018, issued by the second respondent (the arbitrator),

under the auspices of the first respondent, the General Public Service Sectoral Bargaining Council (the bargaining council), under

case number GPBC 1151-2009.

Background

[2] The third respondent was employed by the applicant as an Immigration Officer at OR Tambo International Airport (OR Tambo). In 2010, the third respondent was dismissed from the applicant for an alleged act of misconduct. Following his dismissal, the third respondent referred the dispute to the CCMA for conciliation. The dispute could not be resolved through conciliation and was ultimately arbitrated.

[3] On 02 September 2010, the award was issued in terms of which it was found that the third respondent's dismissal was substantively unfair. The basis of the finding was that there was no evidence to show that the third respondent committed the acts of misconduct. As a result, the applicant was ordered to pay the third respondent compensation

amounting to his six months salary.

[4] Dissatisfied with the award, the applicant launched an application for an order to review it. On 10 March 2018, the Court issued an order in terms of which the matter was referred to the bargaining council for redetermination of the appropriate relief.

[5] The matter was scheduled for 20 April 2018 and during the hearing, the parties agreed to have the matter determined on written arguments. Having had regard to the parties’ arguments, the arbitrator found that retrospective reinstatement was the appropriate relief. It is this award that is the subject of this application.

Grounds of review

[6] The applicant challenged the award on the basis that the arbitrator committed misconduct in relation to the duties of the commissioner and committed gross irregularity in the conduct of the arbitration proceedings in that she:

6.1 Failed to consider and apply her mind to the fact that the circumstances surrounding the dismissal of the third respondent were such that a continued employment relationship would be intolerable and/or not reasonably practicable for the purpose of reinstatement.

6.2 Failed to consider and apply her mind to the submission that the applicant’s employees who were stationed at OR Tambo Airport at the time of the third respondent’s employment had since been replaced with members of the SANDF and that the third respondent's post no longer existed, which made it not reasonably practicable to reinstate him.

6.3 Misconstrued the issue in dispute in that she found that the applicant's argument in relation to the changes at the workplace and systems as well as its dire financial situation that have resulted in the non-filling of vacant posts did not show that there were no prospects in restoring a good working relationship.

6.4 Failed to consider and apply her mind to the third respondent's delay in prosecuting his litigation and the practical implications thereof.

6.5 Considered the evidence/argument that was irrelevant to the issue in dispute and not presented to her by either party when she made the following finding:

‘The respondent is a large government department and this does not mean per se that there are no positions available. Case law shows that even if a post previously occupied by an applicant has been filled - the employment of the current incumbent can be terminated on the grounds of operational requirements.’

6.6 Failed to consider the argument that there is a moratorium on the filling of posts due to staff over compliment and lack of funds, thereby failing to consider the practicability of reinstating the third respondent.

6.7 Exceeded her powers by ordering reinstatement of the third respondent even though there was evidence that was presented before her that the third respondent had already received payment for compensation from the applicant in compliance with the award issued by Commissioner Molema.

Grounds of opposition

[7] The third respondent submitted that there was no evidence led to show that the continued employment relationship would be intolerable. Further that the applicant lost sight of the fact that those employees who were deployed in OR Tambo were obviously redeployed to other posts within the applicant.

[8] In addition, it is the third respondent's submission that the fact that a long period has elapsed since the dismissal of the employee and that the dismissed employee’s position has been filled do not necessarily constitute a basis to deny him reinstatement.

[9] It was for the above reasons that the third respondent submitted that the arbitrator took into account all the factors alluded to by the applicant and advanced persuasive reasons for the conclusion that the third respondent should be reinstated and that the legal submissions support the conclusion he arrived at.

Applicable law and analysis

[10] The arbitration awards are reviewable in terms of section 145 of the LRA and section 145(2) defines a defect as the commissioner’s misconduct in relation to the duties as an arbitrator, gross irregularities in the conduct of the arbitration proceedings, exceeding the commissioner's powers or improperly obtaining an award.

[11] The test for review is trite.[2] The key issue is whether the commissioner’s decision is one that a reasonable decision-maker could not reach.

[12] Section 193(2) of the LRA makes reinstatement the primary remedy unless one of four exceptions is applicable and it reads as follows:

‘The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless-

(a) the employee does not wish to be reinstated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the employer to re-instate or re-employ the employee; or

(d) the dismissal is unfair only because the employer did not follow a fair procedure.’

[13] The discretionary nature of the power to grant relief in terms of section 193 was reaffirmed in Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v NUM obo Masha and Others[3] where the Court stated as follows:

‘…If the exceptions to the remedy of reinstatement do not apply, the Labour Court and arbitrators only have discretion with regard to the extent to which reinstatement should be made retrospective. An employer wishing to avoid reinstatement must satisfy the arbitrator that one of the exceptions to reinstatement applies, in this case to show that it would not be practicable. The employer should lead evidence concerning relief in anticipation of a finding that a dismissal might be ruled unfair.

[14] In casu, the third respondent's dismissal was found to be substantively unfair and he sought reinstatement. Thus, for the applicant to avoid reinstatement, it had a duty to satisfy the arbitrator that one of the exceptions existed. In this case, the applicant had to show that either section 193(2)(b) or (c) existed.

[15] To support its case, the applicant submitted arguments around the changes to the workplace and systems as well as its dire financial situation that has led to vacant post not being filled and other constraints imposed for its survival. The applicant further submitted that the applicant’s employees who were stationed at OR Tambo Airport at the time of the third respondent employment have since been replaced with members of the SANDF and that the respondent's post no longer existed.

[16] However, the arbitrator was not satisfied that the applicant succeeded in showing that there were no reasonable prospects in restoring a good working relationship and to support the contention that there were circumstances that made the continued employment intolerable.

[17] On the documentary evidence presented to show that it would not be reasonably practicable to reinstate as a large number of posts were discontinued due to budgetary constraints, the arbitrator took the view that as the applicant was a large department, it would still seem possible to reinstate the third respondent.

[18] The arbitrator was not convinced that reinstating the third respondent would cause “a disproportionate level of disruption or an unbearable and/or financial burden” to the applicant.

[19] It is apparent from the above that in considering the appropriate relief, the commissioner carefully took into consideration the

implications of section 194(2) which requires that the employee be reinstated unless he/she does not wish to be reinstated or re-employed, the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable, it is not reasonably practicable for the employer to reinstate or re-employ the employee or dismissal is unfair only because the employer did not follow a fair procedure.

[20] It is further apparent that the arbitrator further took into account all the factors raised by the applicant in its arguments. Having done so, she found that none of the exceptions was applicable and concluded that reinstatement was justifiable. It is my view that her conclusion is reasonable. The changes to the workplace and systems as well as its dire financial situation do not make it impracticable for the applicant to reinstate the third respondent. In addition, the fact that a long period elapsed since the third respondent's dismissal cannot be a reason to deny him reinstatement.

Conclusion

[21] In light of the above, it is my view that the applicant failed to show that the arbitrator did not pass a value judgment or that the discretion he exercised was capricious or founded on a wrong principle. There is, therefore, no reason for this Court to interfere with his award. As such, the review application stands to be dismissed.

Costs

[22] With regard to costs, I am of the opinion that the requirements of law and fairness dictate that there should be no order as to costs.

[23] In the circumstances, the following order is made:

Order

1. The application to review and set aside the arbitration award dated 28 June 2018, issued by the second respondent, under the auspices of the first respondent and under case number GPBC 1151-2009 is dismissed.

2. There is no order as to costs.

_____________

D. Mahosi

Judge of the Labour Court of South Africa

Appearances

For the applicant: Advocate M. Rantho

Instructed by:

State Attorney, Pretoria

For the third respondent: Advocate C. Swanepoel

Instructed by:

Galloway Van Coller and Griessel Attorneys

[1] Act 66 of 1995 as amended.

[2] See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 (28) ILJ 2405 (CC); Herholdt v Nedbank Ltd and Congress of South African Trade Unions 2013 (34) ILJ 2795 para 25; Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC).

[3] (JA 4/15) [2016] ZALAC 25 (14 June 2016) at para 8