IMATU obo Wolmarans v City of Tshwane Metropolitan Municipality and Others (JR2223/14) [2016] ZALCJHB 374 (29 September 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 2223/14

In the matter between:

IMATU OBO HENRY OLIVER WOLMARANS

Applicant

and

CITY OF TSHWANE

METROPOLITAN MUNICIPLALITY

First Respondent

MMAMAHLOLA GLORIA N.O.

Second Respondent

SALGBC

Third Respondent

Heard: 20 April 2016

Delivered: 29 September 2016

Summary: Review application

Molahlehi J

Introduction

[1] This is an application in terms of which the applicant sought to review and set aside the arbitration award of the third respondent under case number PMD 101317 dated 29 August 2014 in which the arbitrator found the second applicant guilty of an offence of dishonesty.

[2] The first respondent, hereinafter referred to as the “respondent,” has applied for condonation for the late filing of its answering affidavit which is sixty three weeks late. There is no doubt that the period of the delay is excessive, however the explanation for it is understandable. It is for this reason that I am of the view that it would serve the interest of justice to condone the late filing of the respondent’s answering affidavit.

Background facts

[3] The second applicant was at the time of his dismissal employed as a licensing officer by the first respondent. He was charged with an act of dishonesty and lack of integrity. The charge arose from an incident where after testing an applicant for a driver’s

licence he made an incorrect entry into the driving licence sheet.

[4] It is common cause that the second applicant pleaded guilty to the offence and it was because of that the parties did not present

detailed facts surrounding the commission of the offence. Apparently, Mr Sibeko, the Head of the testing station was present at the time the test in question was being conducted. On completion of the test Mr Sibeko instructed the second applicant to go to the office and complete the administrative process relating to the test.

[5] After waiting for the applicant, Mr Sibeko went to the office to check where the applicant was. He found him issuing the licences to the applicant who failed the test.

[6] In mitigation of the sanction, the applicant stated that he issued Miss EM Bopape a licence because he knew her and her personal circumstances.

The grounds of review

[7] The applicant contends that the finding by the arbitrator that Mr Wolmarans and his union representative were aware that the disciplinary hearing was formal as opposed to being informal was not supported by evidence and thus is not a justifiable finding. The applicant further contended that the arbitrator failed to apply his mind to the evidence before her in finding that the hearing was formal.

[8] The other ground raised by the applicant is that the arbitrator committed a gross irregularity in converting the informal hearing into a formal hearing. Therefore in doing so acted in a biased manner.

[9] The finding that the hearing was procedurally fair despite the deviation from the provisions of the collective agreement was according to the applicant illogical and thus this is not a finding which a reasonable decision maker could have made.

The arbitration award

[10] The Commissioner identified the issue which he was to determine to be as follows:

“[33] The dispute is whether a dismissal sanction was appropriate pursuant to the nature of the hearing. I must determine if the forum had the powers to issue a dismissal sanction. The respondent maintained that the hearing was formal since the charges were serious. The mention of a departmental hearing on the charge sheet was a typo error. On the other hand the applicant maintained that it was an informal hearing by virtue of the insertion of departmental hearing on the charge sheet.”

[11] As concerning the facts, the key issue which the Commissioner had to determine was whether the union official who represented the employee during the disciplinary hearing sought clarity as to whether the hearing was formal or informal. In this respect the Commissioner found that it was immaterial whether the hearing was formal or informal because even if it was informal the employee would still have admitted having committed the offence. He accordingly found no prejudice on the employee even if his contention that the hearing was informal was to be accepted.

[12] In addition the Commissioner found that the offence which the employee was alleged to have committed was serious and that the rules of natural justice was observed in arriving at the conclusion that the offence was serious enough to justify a dismissal.

[13] The Commissioner found that the approach adopted by the chairperson of the disciplinary hearing to have been in line with the decision of the Labour Appeal Court in Highveld District Municipality v CCMA[1].

[14] The Commissioner also relied on clause 67 of CCMA Guidelines on misconduct.

Evaluation/Analysis

[15] The test for review requires the review court to determine whether the arbitration award which the subject of the review is one which a reasonable decision maker could not reach when regard is had to the evidence properly presented during the proceedings.[2] The authorities are in agreement that the grounds of review envisaged in s 145 of the Labour Relations Act are suffused in the reasonable decision maker tests.

[16] It is common cause that the employee committed a misconduct by issuing a driver’s licence to a person who had failed the driving test.

[17] The disciplinary hearing proceedings were governed by the provisions of the South African Local Government Bargaining Council: Disciplinary

Procedure and Code Collective agreement which came into operation on 1 July 2010. The purpose of the agreement is as set out at clause 4 thereof, which is to establish

“a fair common and uniform procedure for managing employees’ discipline.”

[18] The code further provides under clause 4.2 that:

“4.2 The code is the product of collective bargaining and the application thereof is peremptory and it is deemed of be a condition of service.”

[19] In terms of clause 7 of the code, the chairperson of the disciplinary proceedings has the power to determine the procedure to be followed during the hearing. This power is however subject to the following:

“7.1.1 The rules of natural justice must be observed in the conduct of the proceeding:

7.1.2 Unless otherwise agreed to by the parties, the hearing must be adversarial in nature and character;

7.1.3 The Presiding Office, in discharging his duties is to exercise care, proceed diligently and act impartially; and

7.1.4 The Presiding Officer shall not counsel, confer or have causal contact with any of the parties or their representatives regarding the case while handling the matter without the present or consent of the other party concerned.”

[20] In addition to the above, the chairperson has the following powers in terms of clause 7.5 of the code:

‘7.5.1 Determine the procedure to be followed for the conduct of the enquiry that he deems appropriate with the minimum of legal formalities provided that the rules of natural justice are observed.”

[21] The code draws a distinction between serious and less serious misconduct. In this regard clause 6.4 of the code reads as follows:

‘6.4 In the event of misconduct by an Employee that appears less serious and warrants a sanction less than a final written warring, a formal hearing will not be required, provided that the Employee shall be entitled to challenge the evidence submitted by the Employer and the Employee shall also be entitled to be represented by a shop steward. The Employee will be given an opportunity to make either verbal or written representations prior to the Employer making a finding and prior to any written warning being issued. Proper records must be kept of the above proceedings.”

[22] A formal hearing is defined by clause 6.5 of the Code which reads as follows:

“6.5 In the event of misconduct by an Employee that appears sufficiently serious to warrant a sanction more serious than a written warning, the Municipal Manager or his authorised representative shall establish a Disciplinary Hearing to conduct the enquiry.”

[23] It is common cause that the first respondent issued the employee with a notice to attend a “departmental hearing”. It has not been disputed that the concept “departmental hearing” refer to an informal hearing as envisaged in clause 6.4 of the code.

[24] There is a dispute as to whether the disciplinary hearing was formal or informal. The first respondent argued before the arbitrator that the hearing was formal, whilst the employee on the other hand argued that it was not.

[25] The arbitrator found that it was a formal hearing and that is why he concluded that the dismissal was the appropriate sanction in the circumstances.

[26] In my view the probabilities do not support the first respondent’s proposition that the hearing was formal for the reasons that follow below. It is for this reason essentially that I find the conclusion reached by the arbitrator to have failed the reasonableness structure as set out in Sidumo.

[27] Before dealing with the issue of the nature of the hearing it is important to note that the employee pleaded guilty to the charge and thus no oral evidence was presented. The case of the employee in the arbitration hearing is that he pleaded guilty because he knew the proceedings to be informal and at worst the sanction he would have expected to receive was a final written warning.

[28] In support of its contention that the hearing was formal, the first respondent, presented the testimony of Mr Laurence, the chairperson

of the disciplinary hearing who testified that after the conclusion of the hearing he went through the charge sheet and the pleadings and noticed that the charges were actually serious. He further stated that he noticed that the employee and his representative were under the impression that this was a normal informal disciplinary hearing, which according to him, was not.

[29] The chairperson then wrote the letter to the employee’s representative indicating that the hearing was conducted as a formal

hearing. The employee’s representative was invited to submit further mitigating factors if she so wished. It is important to note that the letter was written after the closure of the disciplinary hearing when the parties were awaiting the outcome from the chairperson of the hearing.

[30] During cross examination Mr Laurence was asked to indicate where does the notice say that the hearing was formal. His answer which appears at page 11 line 20 of the transcript reads:

‘…We took it from the start, I took it from the start this is a disciplinary, formal disciplinary hearing. But according to Miss Kim

Burton it was an informal disciplinary hearing…”

[31] He further reads into the record that:

‘…so if the employer’s representative decided it is a departmental hearing the decision is with him, you must just decide if the guy is guilty or not”.

[32] The second witness of the first respondent was Mr Kok, the initiator during the disciplinary hearing. He testified that the intention when he wrote the notice to attend the disciplinary hearing by the employee was that it would be a formal hearing. He stated that the use of the phrase “departmental hearing” was an error. He read into the record during the arbitration hearing the following:

“…I only noticed that the charges, 1 to 3, are not the charges that actually will come in an informal hearing, like a departmental

hearing.”

[33] He conceded during cross examination that the employee’s representation did raise the issue of whether the hearing was informal or not.

[34] The employee in support of his case presented the testimony of Ms Burton who represented the employee during the disciplinary hearing. She testified that the issue of the nature of the hearing was raised at the beginning of the hearing. She specifically confirmed with the chairperson of hearing that the hearing was informal.

[35] In my view, the over-whelming probability supports the proposition that the disciplinary hearing was informal. In the first instance the notice indicated that the employee was required to attend a “departmental hearing” which as indicated earlier is

understood by everybody to be referring to an informal hearing under clause 6.4 of the code.

[36] The second fact that supports the above proposition is that at the beginning of the hearing, the employee’s representative

confirmed her understanding that the hearing was informal. It was after she confirmed that the hearing was informal that a plea of guilty was entered, and this was done with the understanding that the power of the chairperson in that context would be limited to a sanction less than dismissal.

[37] The opportunity to correct any error in the notice availed itself when the employee’s representative confirmed at the beginning of the hearing that their understanding was that the hearing was informal. In this context the assertion of Mr Kok that it was a typing error which occurred in the copying and pasting process has no merit. If indeed that was the case, then the question is, why did he not correct the error when the representative of the employee indicated that their understanding was that the hearing was informal?

[38] The chairperson’s intervention also points to the fact that the hearing was informal because if it was otherwise why did he not simply proceed to deliver his finding and not call upon the applicant to make further submissions. Procedurally the approach adopted by the chairperson of the disciplinary hearing contravened the collective agreement whose provisions are clear as to the role of the chairperson of the disciplinary hearing. The provisions of the collective bargaining did not allow him to do what he did.

[39] I agree with the employee that the arbitrator’s finding is not supported by the evidence and therefore it cannot be a justifiable

and a reasonable finding. It is a decision that does not fall within the bounds of a reasonable decision that could have been made by a reasonable decision maker.

[40] In the circumstances I find that the applicant has made a case justifying interference with the arbitrator’s arbitration award. There is sufficient material before this Court to substitute the decision of the arbitrator. I also do not see any reason in the circumstance why costs should not follow the result.

Order

[41] In the premises the following order is made:

1. The arbitration award made by the third respondent under case number PMD 101317 dated 29 August 2014, is reviewed and set aside.

2. The arbitration award is substituted with the order to the effect that:

a. The dismissal of the applicant was unfair.

b. The first respondent is ordered to reinstate the applicant retrospective to the date of his dismissal without loss of any benefit that may have accrued including back pay.

c. The applicant is issued with a final written warning.

3. The first respondent is to pay the costs of the applicant.

______________________________

E Molahlehi J

Judge of the Labour Court of South Africa

Appearances:

For the Applica Adv. Erusmus

Instructed by: Du Randt Du Toit Pelser Attorneys

For the Respondent: Adv. F Venter

Instructed by: DP Du Plessis Inc.

[1] (200) 12 BLLR 1158(LAC).

[2] Sidumo v Rustenburg Platinum Mines (Pty) Ltd (2007) ILJ 2405 (CC).