Department of Public Works, Roads and Transport, Mpumalanga Provincial Government v Sambo NO and Others (JR1890/16) [2021] ZALCJHB 334 (4 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1890/16

In the matter between:

DEPARTMENT OF PUBLIC WORKS, ROADS AND

TRANSPORT, MPUMALANGA

PROVINCIAL GOVERNMENT Applicant

and

MARTIN SAMBO N.O. First Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNNCIL Second Respondent

PABALLO MOTHULWE Third

Respondent

PERCY NKAMBULE Fourth

Respondent

POLICE AND PRISON CIVIL RIGHTS UNION Fifth

Respondent

Heard: 26 November 2020

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives through email. The date for hand-down is deemed to be 04 October 2021.

JUDGMENT

MAHOSI. J

Introduction

[1] This is an application brought in terms of section 145 of the Labour Relations Act (LRA)[1] for an order to review and set aside an arbitration award issued by the first respondent (the arbitrator) acting under the auspices of the second respondent (the bargaining council), dated 11 August 2016 under case reference number GPBC 940/2015.

[2] Before the Court is also a cross-review and the condonation application for the late filing thereof.

Background

[3] The third and fourth respondents (the employees) were employed by the applicant as Transport Inspectors, whose duties included, inter alia, the verification of licences and permits for public vehicles.

[4] Following an incident that occurred on 15 May 2013, the employees were charged with two counts of misconduct. The first charge was corruption in that they allegedly solicited bribe in return for not impounding a vehicle that belonged to Mr Nkosinathi David Thusi (Mr Thusi), an off-duty police officer who was stopped by the employees for the purpose of checking for his vehicle’s permit. The second charge related to failure to carry out a lawful order or routine instruction without just or reasonable cause in that they were posted in Standerton but elected to go to Greylingstad.

[5] Following the disciplinary hearing, the employees were found guilty and a sanction of dismissal was imposed on them. Aggrieved by the applicant’s decision to dismiss them, the employee referred a dispute of unfair dismissal to the bargaining council. The dispute was conciliated unsuccessfully and was therefore referred to arbitration, which was held on 20 January 2016 and 23 to 24 March 2016.

In the arbitration

[6] The issue before the arbitrator was whether the employees’ dismissal was substantively and procedurally unfair.

[7] In his analysis of evidence and arguments, the arbitrator found that the manner in which the applicant conducted the disciplinary inquiry was fair. In relation to substantive fairness, the arbitrator considered whether the employees committed the misconduct that they were charged with.

[8] On the first charge, the arbitrator had regard to Article 7 of the Code of Good Practice. In this regard, he found that the rule against corruption existed in terms of common law and that the rule against insubordination was standard in institutions following a chain of command. The arbitrator further found that the validity or reasonability of the rules were not disputed by the employees. Furthermore, the arbitrator found that the employees ought to have been reasonably aware of the rules.

[9] The arbitrator then considered whether the employees contravened the rules and found the applicant’s version to be more plausible and probable and found, on balance of probabilities, that the employees committed corruption in that they demanded and received money from Mr Thusi. On the charge relating to insubordination, the arbitrator found that the employees did not commit the offence. On the issue of consistent application of the rule, the arbitrator could not, on the evidence before him, make a ruling.

[10] On the appropriateness of the sanction, the arbitrator found that the applicant failed to lead evidence to show that there was a breach of trust relationship and that the rule against corruption was consistently applied. In addition, the arbitrator took into consideration his finding that the employees were not found guilty of the charge relating to insubordination to arrive at the conclusion that the dismissal was not an appropriate sanction and ordered the applicant to reinstate the employees without back-pay and with a final warning.

[11] At the end of the arbitration, the arbitrator found that the dismissal of the employees was procedurally fair and substantively unfair. It is this award that is the subject of this application.

In this Court

[12] The arbitration awards are reviewable in terms of section 145 of the LRA, which provides that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award. Section 145(2) defines a defect as the commissioner’s misconduct in relation to the duties of the commissioner as an arbitrator, gross irregularities in the conduct of the arbitration proceedings, exceeding the commissioner's powers or improperly obtaining an award.

[13] On review, the applicant challenged the award on the basis that the arbitrator failed to properly apply his mind on the issue of sanction. On cross-review, the employees challenged the arbitrator’s finding that they committed an act of corruption, that they be issued with a final written warning and that they should not be compensated or forfeit their back-pay. The review application is considered first, should I find that the arbitration award is reviewable then there would not be a need to consider the cross-review.

Review

[14] Item 3 of the Code of Good Practice: Dismissal provides guidance on how the employers should deal with the determination of sanction and it provides as follows:

‘3. Disciplinary measures short of dismissal.

Disciplinary procedures prior to dismissal.

(1) All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer‘s business. In general, a larger business will require a more formal approach to discipline. An employer‘s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules of standards may be so well established and known that it is not necessary to communicate them.

(2) The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.

(3) Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.

(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.

(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances, the nature of the job and the circumstances of the infringement itself.

(6) The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.’

[15] Thus, in determining the appropriateness of the sanction, the arbitrator must enquire into the gravity of the contravention of the disciplinary rule; the consistent application of the disciplinary rule and sanction; and the mitigating and aggravating factors. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[2] the Constitutional Court held that:

‘In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional

training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.’

[16] In light of the above authority, it is apparent that in determining whether the sanction imposed by the employer is fair, the arbitrator is required to take into account the totality of circumstances.[3] In the current matter, the arbitrator found that the employees guilty of corruption, which conduct he found to be falling within the category of gross dishonesty. Despite his finding, the arbitrator found that dismissal was not an appropriate sanction.

[17] The basis of this finding was that the applicant failed to lead evidence to show that the trust relationship was broken. In this regard, the arbitrator clearly failed to take into consideration the employees’ position, the serious nature of the allegations against them, the public interest in ensuring that allegations of corruption and mismanagement in the public service are acted against swiftly and efficiently. Had he done so, he would have found that corruption went to the heart of the employment relationship and further that it was destructive.

[18] The arbitrator further based his conclusion on sanction on the finding that the applicant failed to lead evidence to show how it consistently dealt with officials who committed an act of corruption. However, this is contradictory to his finding that he could not make a ruling on whether the rule on corruption was consistently applied or not and therefore grossly irregular.

[19] Furthermore, the arbitrator based his finding on the fact that the employees were not found guilty on the charge relating to insubordination. In this regard, the arbitrator failed to take into account that each charge carries its own sanction. There is no legal basis to award a lesser sanction on account of an employee being found guilty on one charge and not guilty on another. As aforesaid, the misconduct of corruption has an element of gross dishonesty, which has an effect of breaking

the trust relationship between the employer and the employee.

[20] In light of the above, it is apparent that the arbitrator failed to properly assess the appropriateness of sanction. Had he done so, he would have arrived at a conclusion that the dismissal of the employees was fair.

[21] As such, the outcome the arbitrator arrived at cannot be reasonable. His decision does not fall within a range of possible justifiable decisions that could be reached based on the facts before him. Therefore, the arbitrator committed a reviewable irregularity, and his award stands to be set aside.

[22] Based on the material before me, I do not deem it wise to remit the dispute to the first respondent for arbitration de novo. On the evidence before the arbitrator and this Court, it is apparent that the dismissal of the employees was procedurally and

substantively fair.

Costs

[23] In terms of section 162 of the LRA, the Court has wide discretion in awarding costs. The Constitutional Court has recently reiterated in Zungu v Premier of the Province of Kwa-Zulu Natal and Others,[4] that costs orders should be made in accordance with the requirements of law and fairness. In this matter, the requirements of law and fairness dictate that there should be no order as to costs.

[24] Accordingly, the following order is made:

Order

1. The arbitration award issued by the first respondent (the arbitrator) acting under the auspices of the second respondent (the bargaining council), dated 11 August 2016 under case reference number GPBC 940/2015 is reviewed, set aside and substituted with the following order:

1.1 The dismissal of the third and fourth respondents is procedurally and substantively fair.

2. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Advocate S. Tilly

Instructed by: V. Ramruch of the State Attorney

For the respondent: Mr Makinta and Mr Mokoena of E.S Makinta Attorneys

[1] Act 66 of 1995 as amended.

[2] [2007] 12 BLLR 1097 (CC) at para 78.

[3] Sidumo at para 78.

[4] (2018) 39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC) at para 24.