Masisi v City of Matlosana and Others (JR334/13) [2016] ZALCJHB 504 (13 December 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR334/13

In the matter between:

KEHIHLILE SAMUEL MASISI

Applicants

and

CITY OF MATLOSANA

First Respondent

COMMISSIONER PRAKASH ROOPA N.O

Second Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Third Respondent

Heard: 5 November 2015

Delivered: 13 December 2016

Summary: Application reviewed and set aside.

JUDGMENT

Introduction

[1] The applicant seeks the review and setting aside of an arbitration award rendered by the second respondent (the “commissioner”)

under Commission for Conciliation, Mediation and Arbitration (CCMA) Case Number NWKD67-12 dated 6 January 2013 in which the commissioner

found that the dismissal of the applicant was procedurally and substantively fair. The application is brought in terms of section

145 of the Labour Relations Act (LRA).[1] The application is opposed by the first respondent (the “municipality”).

[2] The applicant was employed by municipality until his dismissal on 5 December 2011 following a disciplinary hearing in which he was found guilty on 16 charges of misconduct.

[3] In the aftermath of his dismissal, the applicant referred a dispute of unfair dismissal to the CCMA in which he contended that the dismissal was procedurally and substantively unfair. The commissioner found that the applicant was guilty of 14 of the charges of misconduct and that his dismissal was fair. It is this decision that the applicant seeks to be reviewed and set aside. In addition to the order setting aside the award, the applicant seeks the following relief - (i) substitution of the award of the commissioner with a decision that the dismissal of the applicant is procedurally and/or substantially unfair and that the municipality pay compensation in accordance with section 194 of the LRA, alternatively, the matter is remitted to the CCMA for a hearing anew by a commissioner other than the second respondent.

[4] Both the applicant and the municipality sought condonation – (i) the applicant for the late referral of the application and delivery of its supplementary and replying affidavits; and (ii) the municipality for the late delivery of the answering affidavit. I considered the explanation offered by each party for the delay and at the hearing of the matter, I granted condonation.

Summary of relevant facts

[5] The facts in this matter are unavoidably extensive particularly as a result of the number and nature of charges against the applicant. For that reason, I intend only to summarise the relevant facts and hope to do so without inadvertently omitting any material facts. My failure to mention any fact does not mean that I did not consider that fact.

5.1. The applicant was employed by the municipality as Director: Infrastructure and Utilities on a fixed term contract from 2 July 2007 until his dismissal on 5 December 2011.

5.2. At some stage during 2010, the municipality carried out investigations into acts of misconduct alleged against the applicant. It appears that the applicant was informed of the allegations against him and afforded the opportunity to respond to the charges and that he did so in a letter dated 14 December 2010, in which he denied any wrong doing. It appears that the applicant was placed on suspension from employment on 8 July 2011 (this being the date when the applicant appears to have received the letter informing

him of the decision to place him on suspension.

5.3. On 3 August 2011, the municipality’s council resolved that a disciplinary hearing be instituted against the applicant. The 17 charges of misconduct which the applicant is accaused of broadly fall under the headings – (i) tampering with the supply chain management process; (ii) failure to safeguard the property of the employer; (iii) causing fruitless and wasteful expenditure and (iv), dishonesty and misrepresentation; bringing the name of the employer into disrepute.

5.4. In a letter dated 30 September 2011, the applicant submitted to the municipality notice of resignation from employment. On 25 October 2011, the council resolved to accept the resignation of the applicant. The applicant also resolved that and that the disciplinary process against the applicant would continue notwithstanding his resignation and the acceptance thereof.

5.5. In accordance with the resolution of the council, the disciplinary hearing against the applicant commenced in October 2011 and was concluded on 13 December 2013 and it resulted in the dismissal of the applicant.

5.6. For completeness, I mention that On 3 August 2010 the council of the first respondent resolved that “(a)(5) That no offer of resignation by any person cited in the grievance and allegations, or interviewees of the Investigation Committee, should be accepted by the Council or the municipality pending the finalisation of the disciplinary proceedings”. The resolution of 3 August 2010 was rescinded by a further council resolution of 31 August 2010, in which the council resolved that “In the light of clause 9 of the Disciplinary Code and Collective Agreement, point (a)(5) of the Council Resolution 83/2010 dated 3 August 2010 be deleted from the resolution”.

Grounds for review

[6] The applicant seeks the review of the award on the following grounds –

6.1. The award is not one that a reasonable commissioner would have made;

6.2. The commissioner committed a gross irregularity by excluding and/or disregarding and/or failing to properly take account of relevant evidence when arriving at his decision; and/or

6.3. The commissioner committed misconduct and/or a gross irregularity in the proceedings by failing to properly resolve the factual disputes and including making unjustified conclusions despite all the material circumstantial evidence before him, alternatively, the Commissioner adopted an erroneous legal approach in seeking to resolve those factual disputes when determining my guilt; and/or

6.4. The commissioner committed misconduct and/or a gross irregularity in the proceedings by failing to apply his mind to material evidence before him; and/or

6.5. The commissioner committed a gross irregularity in the conduct of the arbitration and proceedings by placing too much reliance or attaching too much weight to irrelevant, alternatively improbable evidence in circumstances where he found inconsistencies in such evidence; and/or.

6.6. The Commissioner, in arriving at the factual and legal conclusions, reached conclusions which, were not rationally justifiable and which, in certain material respects, indicate a failure to properly construe his powers under the relevant provisions of the LRA.

[7] In the founding and supplementary affidavits, the applicant relied on the following in support of the grounds for review (I do not intend to set out verbatim the applicant’s contentions but will provide a summary that I hope will fairly encapsulate the applicant’s contention).

7.1. The rejection of the applicant’s medical certificate by the chairperson of the disciplinary hearing and refusal to postpone the disciplinary hearing in accordance with the dates indicated in the medical certificate until the applicant could return to work as advised by his medical doctor in the medical certificate resulted in procedural unfairness;

7.2. The chairperson’s refusal to allow the applicant to be represented by a person a dismissed employee who at the time was appealing his dismissal was procedurally unfair;

7.3. The chairperson’s refusal that the applicant address points in limine before answering how he intended to deal with the evidence of two witnesses who had already testified in the absence of the applicant

was unfair;

7.4. The applicant resigned from employment before the outcome of the disciplinary hearing was concluded and the disciplinary hearing should not have proceeded following his notice of resignation.

7.5. The chairperson of the disciplinary hearing is not a person authorised by the South African Local Government Bargaining Council Code of Discipline (“SALGA Code”) to preside in a disciplinary hearing which rendered the disciplinary process procedurally unfair.

7.6. The applicant is not guilty of the misconduct charged.

[9] The test for review of arbitration awards rendered in terms of the LRA has been, and continues to be, extensively articulated in various analyses and pronouncements by our courts and in commentary. I do not propose to attempt any addition to the various considered and erudite views for present purposes as I am satisfied that the question of the reviewability of the award in the present matter can be answered with reference to and the application of the guidance of the Labour Appeal Court in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA[2]. With respect to the test for review on the grounds of misconduct, gross irregularity and/or excess of power, the court said that the proper questions to ask in relation to the conduct of arbitration proceedings or “process-related” issues, are the following:

I. In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute?

II. Did the arbitrator identify the dispute he or she was required to arbitrate? (this may in certain cases only become clear after both parties have led their evidence).

III. Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?

IV. Did he or she deal with the substantial merits of the dispute?

V. Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?[3]

I accordingly take guidance from the above.

Is the arbitration award liable to be set aside?

[10] In answering the question whether the award of the commissioner is liable to be set aside, I propose to deal first with the complaint that in the light of the applicant’s resignation, the municipality was precluded from continuing with the disciplinary

hearing. I do so because I consider that this issue is dispositive of the matter. The facts relevant to this issue which were before the commissioner may be briefly set out as follows –

10.1 Clause 16.2 of the applicant’s contract of employment, the municipality would be entitled to terminate the applicant’s employment provided it complied with its disciplinary code and procedure, in the absence of which, with the disciplinary code and procedures of the South African Local Government Bargaining Council as well as the Labour Relations Act.

10.2 The applicant’s was suspended in terms of clause 14.2 of the SALGA Code (it appears that in the arbitration there was some confusion about whether the clause 14.2 referred to is of the North West Bargaining Council Disciplinary Code or the SALGA Code. I do not consider that this is of any consequence and I am prepared to proceed on the basis that the SALGA Code was applicable to the applicant in accordance with his contract of employment.

10.3 At the time that the council resolved that a disciplinary process be instituted against the applicant, the applicant was subject to the SALGA Code of Discipline (the “SALGA Code”).

10.4 Clause 9.1 of the SALGA Code prescribes that, where an employee resigns while facing a disciplinary hearing and before a determination is delivered, the disciplinary hearing shall not proceed. The acting municipal manager at the time of the applicant’s suspension, Mr Sipho Mabuda and Mr Morris Moadira, the municipal manager in the period when the alleged misconduct was committed, witnesses for the municipality and the applicant respectively, testified that where employees resigned during a disciplinary hearing, the municipality discontinued with the disciplinary process.

10.5 The SALGA Code was effective from 1 July 2010 to 30 June 2012 and was amended on 21 April 2011 by regulation which introduced the Senior Manager’s Code. Strydom who testified on behalf of the council conceded that at the time of the commencement of the disciplinary process of the applicant, the Senior Managers Code had not come into effect. For completeness, I consider it necessary to mention that in any event, clause 17 of the regulations reads, under the heading “Transitional Arrangements”,

“(1) any disciplinary process instituted prior to the commencement of the Regulations must –

(a) Be finalised in terms of the Code and Procedures or any policies which were applicable at the time when the proceedings were instituted; or

(b) By mutual agreement in writing between the senior manager and the municipal council be finalised in terms of these Regulations”[4].

[11] The municipality does not dispute the applicant’s contention that the disciplinary proceedings commenced in 2010, in which event the SALGA Code applied to him, unless otherwise agreed in accordance with clause 1(b) of the Senior Managers Code. The municipality does not contend that the applicant consented to the application of the Senior Managers Code or indeed that both Codes would apply in the hearing as is common cause was the case. In any event, I point out that the Senior Managers Code is silent about the continuation, or otherwise, of a disciplinary hearing when the employee has given notice to resign.

[12] Clause 9 of the SALGA Code reads:

“An employee who receives a Notice of Misconduct, shall be entitled to resign, retire, or terminate his employment on any other ground that is permitted in his contract of employment, provided that:

9.1.1 The employee does so prior to the handing down of a determination;

9.1.2 …

9.2 In such event (as referred to in clause 9.1 above), the Disciplinary Hearing shall not proceed.”

[13] Accordingly, in terms of clause 9, a disciplinary hearing against an employee could not be continued with, if the employee gave notice of resignation before the outcome of the disciplinary hearing was delivered. The relevant evidence was before the commissioner and the commissioner was pertinently required to decide the issue whether in the light of clause 9, and the resignation of the applicant, his dismissal on the charges was fair.

[14] It is clear from the award that the commissioner did not deal with this issue which manifestly, if decided in favour of the applicant, would have been dispositive of the matter in favour of the applicant. The issue was material and undoubtedly decisive of whether the disciplinary hearing against the applicant and his dismissal was fair in the circumstances. The failure to deal with this substantial issue and make a determination thereon, as the commissioner did with the other points in limine and substantive merits of charges, constitutes a gross irregularity resulting in the applicant being denied a proper and fair hearing as noted by Ngcobo J in Sidumo v Rustenburg Platinum Mines Ltd [5]. By failing to deal with this issue, the commissioner, at best, did not understand the nature of the dispute he was required to decide. It follows that the decision of the commissioner fails the test of the reasonable decision-maker[6]. This quite evidently renders the award reviewable and liable to be set aside. I find accordingly.

[15] In the light of the conclusion to which I have arrived on this issue, I do not consider it necessary to consider the other grounds for review in the circumstances.

Remedy

[16] The applicant seeks substitution as primary relief and remittal in the alternative.

[17] It is a well established principle that, the court must be weary to substitute its decision for that of the administrative body and should rather remit the matter for a decision anew. However, in appropriate cases, and where the facts are before the court, the court may substitute its decision for the decision of the arbitrator. I consider that the present case is such a case.

[18] The facts pertaining to the applicant’s resignation and its consequence, and the municipality’s answer thereto are before this court. They have been comprehensively dealt with in the record and in the papers and I consider that I am in a position to dispose of the matter on the evidence before me. It is my view that in the circumstances, a remittal to the CCMA will not serve justice and will only further delay the final resolution of a matter which has its genesis in 2010 and that cries out for finalisation in the interest of both parties.

[19] Clause 9 of the SALGA Code does not predicate the continuation of a dicplipinary process upon a resolution of a council whether or not to continue with the disciplinary hearing. By virtue of the collective agreement, the SALGA Code, and therefore by law, a disciplinary process must be discontinued where the employee has resigned. The consequence in clause 9(2) follows, without more, upon the employee tendering his resignation and the qualification and by resolving otherwise, the council arrogated to itself a power it did not have as the issue is regulated by a binding collective agreement. This is what the parties to the collective agreement elected. The Senior Managers Code did not alter this position with regard to the applicant and the council’s resolution to continue with the disciplinary hearing in the circumstances was ill-advised. It follows that the award must be set aside on this basis.

[20] It is in my view instructive that the municipality hedges its entitlement to continue with the disciplinary hearing on the ground that the applicant’s notice of resignation did not comply with his contract which required 2 months notice while the applicant gave only a month’s notice. In the light of what I have said in paragraph 19 above, suffice to say that there is no merit in this contention. Indeed, I do not see that the municipality seriouslya nd strongly asserted this position.

[20] I have already found that the disciplinary hearing should not have been continued with in the light of the employee’s resignation. It follows that his dismissal is unfair.

[22] With respect to the claim for compensation, I do not consider that an award of compensation is appropriate or fair in the circumstances.

The applicant resigned from his employment. But for the council’s ill-advised resolution to continue with the disciplinary process, he would not have received any monies other than what he was entitled to by contract. I accordingly do not intend to award any compensation to the applicant.

Costs

[23] The applicant has been substantively successful in this application and there is no reason to depart from the normal rule that costs follow the cause.

Conclusion

[24] I have found that the municipality was precluded by clause 9 of the SALGA Code of conduct to continue with the displinary process after the applicant tendered his resignation. His dismissal is not fair. It follows that the applicant must succeed in the application.

[25] Having found that the dismissal of the applicant is not fair for the reasons I have stated, I do not consider that an award of compensation will be just and equitable.

Order

[26] In the result I make the following order

a) The decision of the commissioner that the dismissal of the applicant is procedurally and substantively fair is reviewed and set aside.

(b) No compensation is awarded to the applicant.

(c) The municipality is to pay the costs of this application.

_____________

Baloyi, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

FOR THE APPLICANT: Adv Patrick Flynn

INSTRUCTED BY: Cowan Harper Attorneys

FOR THE RESPONDENT: Adv Riaan Venter

INSTRUCTED BY: Makgale & Mtlapeng Attorneys

[1] Act 66 of 1994

[2] [2007] ZALC 66; [2014] 1 BLLR 20 LAC

[3] At para 20

[4] Record:p1268

[5] [2007] 12 BLLR 1097 (CC) para 268

[6] See Herholdt v Nedbank Ltd [2012] 9 BLLR 857 (LAC) para 35