Dr. Pixley Ka Isaka Seme Local Municipality v South African Local Government Bargaining Council and Others (JR409/2019) [2023] ZALCJHB 99 (12 April 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR409/2019

In the matter between:

DR. PIXLEY KA ISAKA SEME LOCAL MUNICIPALITY Applicant and SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL First Respondent N NKGOENG, N.O. Second Respondent PHUMZILE PRINCESS MASEKO Third Respondent

Heard: 28 February 2023

Delivered: 12 April 2023

JUDGMENT

VOYI, AJ

[1] This is an application to review and set aside an arbitration award that was issued by the second respondent, Mr Noko Nkgoeng (the arbitrator) dated 09 February 2019. The applicant is Dr. Pixley Ka Isaka Seme Local Municipality, a local government authority established in terms of the Local Government: Municipal Systems Act[1] (Municipal Systems Act).

[2] The arbitrator issued the award pursuant to an unfair dismissal dispute that was lodged by IMATU on behalf of Ms Phumzile Princess Maseko (Maseko). The dispute was submitted to the first respondent, the South African Local Government Bargaining Council (the Bargaining Council) on 03 October 2018 and case number MPD 101801 was allocated to the matter.

[3] The dismissal of Maseko occurred on 03 September 2018 following a disciplinary enquiry into charges of gross misconduct. She was charged with various instances of gross negligence. The charges emanated from a burglary incident which occurred on 19 January 2017 at the office where Maseko was working, resulting in the theft of an amount of R69 848.20. This money represented cash and cheques collected by the applicant’s licensing office and it was to be banked the following day. At the time of the incident, the cameras in the building where the burglary and theft occurred were not operational.

[4] It is common cause between the parties that the money that was stolen ought to have been kept in a designated safe. However and contrary to what was expected of her, Maseko kept the money inside a cupboard within her office overnight and not in the designated safe. The safe was in the passage within the building where Maseko’s office was located. On this aspect, the arbitrator found against Maseko and held that she knew it was wrong to keep the money in the cupboard instead of the safe. Notwithstanding this finding, the arbitrator stated that he was persuaded by Maseko’s version that she kept the money in the cupboard because there was no one to help her open the safe by the time she had finished her work for the day. He also stated that the issue around difficulties to open the safe was confirmed by two of the three witnesses called by the applicant.

[5] In ultimately reaching his decision that the dismissal of Maseko was substantively unfair, the arbitrator reasoned as follows:

“51. This incident was avoidable had the manager concerned attended the difficulties to open the safe after he was alerted. A blame therefore cannot be put squarely on [Maseko]. The [applicant] neglected its responsibility by not fixing the door of the safe. Their failure to remedy the situation made her vulnerable to such incident. I do not even think it would have been a wise move for her to alert anyone that she left money in the cupboard.

52. The issue of a practice is neither here nor there. A practice amongst employees without a knowledge of the employer cannot stand the test of time. Ms. Van Rensburg (if indeed she did it) was lucky there was no burglary. Even their situation is not the same. Ms. Van Rensburg was seen putting it inside a cupboard. It simply means there was someone to assist her to open the safe. [Maseko’s] case is that there was no one to help her.

53. Was the dismissal an appropriate sanction?

54. Having considered carefully the evidence of this matter including documentary evidence, it is my findings on the balance of probabilities that the dismissal was not an appropriate sanction given the fact that the [applicant] knew but decided not to address the situation. This exposed [Maseko] to a situation where she had to decide what to do because there was no one to help her to open a safe. Taking it home was not an option.”

[6] As the appropriate remedy for the dismissal which he found to have been substantively unfair, the arbitrator ruled that it was in the interest of fairness and equity that he orders the primary remedy of reinstatement, and he ordered it with retrospective effect.

[7] The applicant assails the arbitrator’s award on the basis that he committed gross irregularity in relation to his duties as a commissioner and/or that his decision is not one that a reasonable decision maker could reach. In the first place, it is contended that the arbitrator’s findings are not supported by the reasons given in the award. Secondly, the applicant takes issue with the arbitrator’s finding that the employer neglected to fix the door of the safe. According to the applicant, there was no evidence that the safe was faulty such that it required fixing. In further support of the review grounds, there is also an issue raised about the arbitrator failing to scrutinise the convenient explanations proffered by Maseko, namely the absence of male colleagues to assist her to open the safe, the absence of security officers, faulty telephone lines and lack of airtime to make a call.

[8] It is by now trite that the test for reviewing and setting aside an arbitration award such as the one in the present matter is whether

the decision reached by the arbitrator is one that no reasonable arbitrator could have reached.[2] When applying this test, this court is required to give due recognition to the fact that the test on review is a stringent one,

aimed at ensuring that awards are not lightly interfered with.[3] It must also be recognised that the task of determining the fairness or otherwise of an employee’s dismissal is, in terms of the Labour Relations Act[4] (LRA), primarily given to the one arbitrating an unfair dismissal dispute.[5]

[9] It is clear to me that I can, therefore, only interfere with the arbitrator’s award if I am convinced that his decision is one to which no reasonable person could have come. It also seems to be clear to me that a decision can be said to be unreasonable in relation to the evidence or facts upon which it is based. It is irrelevant to the equation whether or not I agree with the arbitrator’s decision or the reasons underpinning it.

[10] The arbitrator had to determine the dispute before him in accordance with his own sense of fairness.[6] In the end, he took the view that the dismissal of Maseko was not an appropriate sanction. In the final analysis, I must determine if the arbitrator’s decision is one that is justified by the evidence and falls within the band of decisions to which a reasonable

decision-maker could come.

[11] In his award, the arbitrator identified the issue of difficulties to open the safe. At arbitration, evidence was led that it was difficult for female employees of the applicant to open the safe. There was no dispute on this particular aspect of the matter.

[12] The applicant’s first witness, Mr MG De Wet (De Wet) testified on the applicant’s licensing department having a safe which was difficult to open.[7] The arbitrator recounts this aspect of De Wet’s evidence at paragraph 22 of the award, stating that, under cross-examination, De Wet said that it was difficult for any woman to open the safe without a helping hand.

[13] The second witness for the applicant, Mr Thembinkosi Johannes Radebe (Radebe) conceded under cross-examination that Maseko was unable to open the safe on her own. His evidence went as follows in this regard:

“MR STEYN: Okay sir, let us turn to the safe itself, this safe sir, if [Maseko] comes and testifies that she as a woman are unable to open the safe on her own, what would you say?

MR RADEBE: I will say okay to that.

….

THE ARBITRATOR: There could, maybe he did not understand, they are putting [Maseko’s] version that [she] is going to say she could not open the safe on her own as a female.

MR RADEBE: I cannot dispute that.”[8]

[14] The third witness to testify for the applicant at arbitration was Mr Sam Ngwenya (Ngwenya). On the issue pertaining to the safe, he testified as follows:

“MR DUBE: What did you say then when you were told that it was stolen from the cabinet, not from the safe?

MR NGWENYA: I asked why the money was not in the safe, she replied to me that she could not open the handle of the safe and the safe is broken.

MR DUBE: Were you informed before that the safe is broken and they cannot handle, the handle of the safe is broken and they cannot open it?

MR NGWENYA: Not per se, but they told me that when they open the handle it is, they call a man, because when you open it as a lady, you cannot open it, most of the time Johannes used to open it for them.”[9]

[15] Under cross-examination, Ngwenya was again referred to the assistance that would be required by a female employee to open the safe. He did not deny that this difficulty existed. He actually recognised it when he testified as follows:

“MR STEYN: Okay. So even if there were securities at the time sir, why would Ms Maseko and remember she will deny that there was any security, she will testify to that, and why would she ask someone from outside, that is not employed by the employer to assist her to open a safe where, that non employer keeps his money?

MR NGWENYA: I think they are referring to the security in terms of manpower of the handle of the safe.

…

MR STEYN: So Ms Maseko will testify that there was no security in the vicinity where she, on the day, at the time when she finished counting the money. Now on top of that sir, why would an employee, Ms Maseko, from this municipality ask someone from an outside company, outsourced company, who is not an employee of this municipality, to assist her to open a safe where the Municipality keep their money?

ARBITRATOR: The answer?

MR NGWENYA: The answer is no.

MR STEYN: She would not ask her?

MR NGWENYA: Yes.”[10]

[16] It was Maseko’s unchallenged evidence that the safe was hard to open and she could not open it on her own. It was also her

unchallenged evidence, the version of which was put to Radebe,[11] and to Ngwenya,[12] that by the time she finished with her work on 19 January 2017, there was no one around to assist her to open the safe.

[17] In my view, there was nothing warranting denunciation in Maseko working beyond her contracted hours of work. If the applicant was of the view Maseko orchestrated the burglary and the actual theft of the money or was somewhat involved in same, hence she remained at work beyond 16h30, she should have been charged accordingly. She was, however, charged with gross negligence in relation to inter alia her handling of the money and not with the actual theft of the money.

[18] In his award, the arbitrator found that there was no one to help Maseko to open the safe by the time she finished with work. He also found that the issue around difficulties to open the safe was confirmed by two witnesses. It was the arbitrator’s finding that the incident was avoidable had the manager concerned attended to the difficulties to open the safe after he was alerted. He specifically stated that the applicant neglected its responsibility by not fixing the door of the safe. All of these findings are consistent with the evidence presented before the arbitrator.

[19] In any event and even if the safe did not require any fixing, as contended by the applicant, Ngwenya testified that he was informed by Maseko that the safe was ‘broken’. When asked if he was ‘… informed before that the safe is broken…’, he simply said ‘[n]ot per se’. Whatever Ngwenya meant by those words, he did not refute the allegation that the safe was broken. Quite to the contrary, he testified that this was communicated to him by Maseko.

[20] If the arbitrator was incorrect in finding that the door to the safe required fixing, my view is that such an error had no distorting effect on the outcome he reached. It is, therefore, of no avail for the applicant to persist with its contention that the safe did not require fixing. The fact remains: there was an impediment to female employees such as Maseko using the safe. They could not open it on their own. As correctly pointed out by the arbitrator, it is clear to me that this situation was untenable and had to be remedied.

[21] All things considered, the arbitrator’s decision can, therefore, not be said to be one that is a complete non sequitur of his earlier findings, as it was argued by the applicant. In the circumstances of this matter, it is my considered conclusion that the arbitrator’s award is manifestly reasonable. It is justified and supported by the evidence tendered. The application for review must, therefore, fail.

[22] With regard to costs, I cannot find that the applicant was wholly unjustified in launching its application for review. The review fails because the applicant has not, in my view, met the high threshold for interference with arbitration awards by this court. In my consideration of the law and fairness, I do not find it warranted that a costs order should be made in this matter.

[23] I end by pointing out that I disregarded the supplementary affidavit filed by Maseko. As there was no leave sought to file this affidavit, same fell to be regarded as pro non scripto.[13]

[24] The following order is accordingly made:

Order

1. The application for review is dismissed.

2. There is no order as to costs.

N P Voyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv M D Maluleke Instructed: Mohlala Attorneys For the Third Respondent: Adv J Mmolai Instructed by: Toka Machabaphala Inc.

[1] No. 32 of 2000

[2] Makuleni v Standard Bank of South Africa Ltd and Others (JA125/2021) [2023] ZALAC 4 (8 February 2023) at para 2.

[3] Fidelity Cash Management Services v CCMA and others (2008) 29 ILJ 964 (LAC) at para 100 (Fidelity).

[4] No. 66 of 1995, as amended.

[5] Fidelity at para 98.

[6] See: National Commissioner of the South African Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC) at para 85, referring to Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at para 75.

[7] Transcript of the reconstructed evidence p 27.

[8] Transcript pp 48 – 49.

[9] Transcript pp 65 - 66.

[10] Transcript, p. 74.

[11] Ibid, p. 50.

[12] Ibid, p. 74.

[13] Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C) at para 13.