Ekurhuleni Metropolitan Municipality v IMATU obo Van der Poel and Others (JR03/13) [2016] ZALCJHB 176 (13 May 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR03/13

In the matter between:

EKURHULENI METROPOLITAN MUNICIPALITY Applicant and IMATU obo RAYMOND VAN DER POEL Fist Respondent SIBONGILE KHOZA Second Respondent SOUTHAFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL Third Respondent

Heard: 11 May 2016

Delivered: 13 May 2016

Summary: Review. Application granted.

JUDGMENT

GUSH, J

[1] In this matter the applicant applies to review and set aside the award of the second respondent under case number GDD 141205 dated 12 November 2012. The applicant prays that the award be set aside and substituted with an order that the dismissal of the first respondent was both procedurally and substantively fair and that the application to the third respondent be dismissed. In the alternative the applicant prays the award be set aside and the matter be referred back to the third respondent for consideration de novo by an arbitrator other than the second respondent.

[2] The application is opposed by the first respondent.

[3] A disturbing feature of this matter is that the review of the award, that was made available to the parties in late November 2012, is only now nearly four years later being considered by this court.

[4] There is scant explanation for the delays in the papers. They reveal that the applicant launched the review in January 2013 and that the record of the arbitration was filed on 15 November 2013 accompanied by a supplementary affidavit. The respondent indicated its intention to oppose the application and filed its answering affidavit in December 2013. In January 2014 the applicant filed a replying affidavit.

[5] Late November 2014 the applicant filed an amended notice of motion and “second supplementary affidavit”. The explanation appears in this affidavit. The parties apparently during the course of preparation decided that the “record was deficient and that … an attempt [should] be made to reconstruct the record”. The affidavit records that the basis of reconstruction took place and “a further transcribed record was produced”.

[6] Whilst it is not clear from the papers whether the first respondent was involved in this process of reconstruction or not, the first

respondent’s answering affidavit to the second supplementary affidavit simply admits these averments. Even more puzzling is the averment made by the first respondent in paragraph 15 of the answering affidavit that he was not furnished with “the bundles of the arbitration proceedings” filed with the court in terms of rule 7.

[7] The then applicants filed a “second replying affidavit” in February 2015.

[8] The record comprises 10 lever arch files containing 626 pages.

[9] Apart from one unidentified quote ostensibly from the record, (a quote incidentally that the first respondent argued was in any event inaccurate), neither the applicant nor the first respondent had referred in the main affidavits filed in this matter to the record at all. It is difficult to comprehend why if the parties did not intend relying on the record it was filed. This is particularly so given the suggestion that the original record was incomplete. The rule regarding the filing of a record in matters of this nature is clear the applicant parties obliged to file such portions of the record upon which it intends to rely.

[10] The only issue that is more disturbing than the delay and the proliferation of the pleadings is the award itself.

[11] The first respondent was charged with the misconduct set out in the annexure to the first founding affidavit namely:

Charge one

Breach/contravention of clause 1.2.5 in that you failed to conduct yourself with honesty and integrity in that on or about 11 February 2011, whilst a staff member of this municipality, you misappropriated approximately 50 litres of fuel without the necessary permission authority to remove such fuel, at the Metro Park’s depot in Benoni.

Charge two

Breach/contravention of clause 1.2.4 in that you failed to obey a lawful and reasonable instruction given by a person having authority to do so in that on or about 4 July 2011, whilst the staff member this municipality, you disobeyed instructions issued by the acting executive director as per a pre-suspension ruling to be temporary transferred to the Kempton Park depot from the Benoni depot.

Charge three

Breach/contravention of clause 1.2.4 in that you failed to refrain from the wilful negligent behaviour, which resulted in the damage of property in that on or about 30 May 2011 while the staff member this municipality, you damaged a Council air conditioner whilst driving a Council vehicle at the Metro Park’s depot in Kempton Park.

[12] The background and evidence adduced at the arbitration in respect of these charges of misconduct are set out in the award and in every one of the many affidavits filed by the parties. I do not intend to repeat this evidence save where necessary when dealing with the reviewability of the second respondents award.

[13] When dealing with charge one, the second respondent came to the conclusion that the applicant had failed to comply with the provisions of clause 6.3 the collective agreement relating to charges of misconduct brought against employees of municipalities.

[14] During the misconduct enquiry the first respondent, through his representative had raised points in limine relating to the timeframes

regulated by the collective agreement under clause 6.3. These preliminary points had been dismissed by the chairperson at the commencement of the disciplinary enquiry and the disciplinary enquiry had proceeded. The first respondent had not attended the further

proceedings of the disciplinary enquiry into his misconduct despite being notified. He had subsequently been found guilty of all three counts and was dismissed.

[15] At the arbitration the first respondent again averred that the applicant contrary to the provisions of clause 6.3 had failed to charge him with misconduct within three months of becoming aware of the misconduct.

[16] The first respondent however records in her award that:

i. the applicant’s third witness, the investigating officer, had continued his investigations into the alleged theft of petrol “after these first respondent was suspended”;

ii. the sixth witness, the applicant’s chief horticulturalist and manager of the depot had instructed the first respondent to move temporarily from the depot to Kempton Park to allow investigations “to unfold without any interferences”. The first had refused to obey the instruction and had as a result of thereof, been suspended. Thereafter “the investigations were continued and completed after a report was issued to the effect that the applicant be charged”; and

iii. the first respondent confirmed that he had been suspended sometime after he had been instructed that he was to be temporarily transferred.

[17] A simple calculation of the dates would have revealed that the report of the investigator, a condition precedent to charging the first respondent was submitted within 3 months of the charges being brought..

[18] The second respondent’s award contains no indication of whether or not she in any way considered or interpreted the provisions of the collective agreement relating to the institution of disciplinary proceedings. Suffice to say that the provisions of clause 6 of the collective agreement dealing with disciplinary procedures commences by recording that accusation of misconduct is to be brought in writing and that once such accusation has been made the municipal manager authorised representative may institute disciplinary

proceedings. (See clauses 6.1 and 6.2). In the context of the collective agreement and clauses 6.1 6.2 it was clearly incumbent

upon the second respondent to consider the evidence relating to the submission of the report in the light of the provisions of clause 6.3. and whether the time limit had expired.

[19] This she did not do. Without debating the niceties of the provisions of the collective agreement at very least it would seem that an employer would only become aware of the alleged misconduct on receipt of the accusation which in turn in this matter, given the evidence, would be the submission of the report.

[20] The second respondent simply concluded that the applicant did not comply with clause 6.3 and it followed the dismissal on this account was substantively and procedurally unfair.

[21] Despite having dismissed this charge the second respondent proceeds to analyse aspects of the merits of the charge in order to impute an improper motive on the applicant. This does not appear to have been an averment made by the first respondent in his defence.

[22] As far as the second count is concerned the second respondent comes the startling conclusion that the applicant having instructed the first respondent to transfer to Kempton Park and having suspended the first respondent as a consequence of the first respondent’s refusal to comply with the instruction “actually agreed that the instruction for him to be temporary transferred was unlawful,

unreasonable and thus invalid”.

[23] There is no justification for this conclusion save for the somewhat startling conclusion that in the face of a refusal to comply with an instruction the applicant nullified the instruction by suspending the first respondent.

[24] Turning briefly to the third charge the record reveals that the first respondent acknowledged having been negligent in causing damage to the applicant’s air conditioner. Despite this acknowledgement the second respondent concluded “it is clear from the evidence before me that there was no negligence on the part of the [first respondent].”

[25] Taking the above into account I am satisfied that the second respondent’s, award is given the materiel placed before her, not an award that a reasonable arbitrator could reach. Accordingly I am satisfied that the award should be reviewed and set aside.

[26] The applicant prayed that should the court set aside the award it should substituted it with an order that the dismissal of the first respondent was fair alternatively that the dispute be referred back for consideration de novo. Despite the lengthy delay in this matter being brought to court I am of the view that the dispute should be referred back to the third respondent for determination afresh before a commissioner other than the second respondent.

[27] Considerations of fairness dictate that there should be no order as to costs.

[28] In the circumstances and for the reasons set out above I make the following order:

i. The arbitration award under case number GPD 041205, dated 12 November 2012 is reviewed and set aside.

ii. The matter is remitted to the South African Local Government Bargaining Council for arbitration de novo before a commissioner other than the Second Respondent.

iii. There is no order as to costs.

___

D H Gush

Judge of the Labour Court of South Africa Johannesburg

APPEARANCES:

For the Applicant: Adv G Hulley SC

Instructed by: Tshiqi Zebediela Inc

For the Respondent: Mr A Goldberg of Goldberg Attorneys