Member of the Executive Council, Department of Public Works, Road and Transport, Limpopo Provincial Administration and Another v General Public Service Sectoral Bargaining Council (GPSSBS) and Others (JR1213/05) [2007] ZALCJHB 16 (18 April 2007)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: JR 1213/05

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF PUBLIC WORKS,

ROAD AND TRANSPORT,

LIMPOPO PROVINCIAL ADMINISTRATION First Applicant

PREMIER, LIMPOPO PROVINCIAL GOVERNMENT Second Applicant

and

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL (GPSSBS) First Respondent

COMMISIONER DENGA MULIMA N.O Second respondent

KHAMBANI, MBHAZIMA KENNETH Third Respondent

MATLAILA, TOROKISI STEVEN Fourth Respondent

JUDGMENT

RAMPAI AJ

[1] The matter came before this court by way of a review application. The relief sought by the applicant is to have the arbitration award issued by the second respondent in favour of the third respondent and the fourth respondent in Polokwane on 15 March 2005 reviewed and nullified. The applicant also seeks to have its late filing of the review application condoned.

[2] Brevitas causa, from now on I shall refer to the applicant as the employer, the first respondent as the bargaining council, the second respondent as the commissioner, the third respondent and the fourth respondent collectively as employees.

[3] The third respondent and the fourth responded were in the employ of the applicant. They were engaged as traffic officers. The employer was a provincial government department responsible for public works roads and transport in the Limpopo Province. Among others, it was incumbent upon the employer to enforce the provisions of the national legislation pertaining to the road traffic and ancillary matters. The employer tasked the employees with the duties of doing licensing tests of members of the public. The third respondent was attached to Mhala station and the fourth respondent to Nebo station. They each reported to their respective station supervisors who were their immediate superiors in the chain of command.

[4] The stations were equipped with certain eye-testing machines and certain prescribed official forms for the purpose of testing

candidates, in other words, members of the public, applying for driving licences. The employees were required, in terms of section 24 Road Traffic Act No. 29 of 1989, to perform an eye test in addition to other tests in respect of each applicant for a driver’s

licence. The employees performed all the required tests save the eye tests.

[5] The third respondent was then charged with twenty two counts of misconduct. It was alleged that he contravened the said section 24 (4) read with section 24 (6) of Act No. 29 of 1989 during the period dating from 1 January 1998 to 31 December 1999. The workplace

disciplinary enquiry was scheduled for hearing at Glenshield Hotel on 19 September 2003. He pleaded guilty as charged. He was found guilty on his plea. The chair of the workplace disciplinary hearing, Mr S S Ndou imposed outright dismissal as a sanction.

[6] The fourth respondent was charged with 64 acts of misconduct. It was alleged that he committed the statutory offences during the period beginning on 01 January 1998 and ending on 31 December 1999. In this instance the workplace disciplinary enquiry was scheduled for hearing at the Landmark Lodge on 26 September 2003. He too pleaded guilty. He was found guilty on his plea. The chair of the workplace disciplinary hearing, Mr EJG Brits imposed outright dismissal as a sanction.

[7] Both the employees appealed to the Provincial Appeal Authority of Limpopo Provincial Government. The two appeals were heard and dismissed at Polokwane on 05 August 2004. The appeal proceedings were chaired by Mr SR Maponya. The verdicts of guilt and the sanctions of dismissals were upheld.

[8] The employees were aggrieved by their sanctions. They considered their sanctions to be unfair dismissals. They referred the matters to the first respondent, the sectoral bargaining council. The parties could not resolve the two disputes through the conciliation process. The conciliator Mr Denga Mulima issued the section 135 certificate of outcome on 13 October 2004. The parties were referred to the arbitration dispute resolution forum under the auspices of the aforesaid bargaining council.

[9] The arbitration hearing took place in the boardroom of the employer at Polokwane on 10 March 2005. The two cases were heard together by prior agreement inter partes. The proceedings were chaired by Mr Denga Mulima, the commissioner. The employees were represented by Ms D Reyneke an official of the Public Servants Association. The employer was represented by Mr KL Magomarele, the in-house labour relations manager.

[10] All in all six witnesses testified before the commissioner- two witnesses for the employer, the two employees for themselves and two witnesses called by the commissioner mero motu. The core issue in dispute was the unfairness or otherwise of the sanction of the dismissals of the employees.

[11] The commissioner, after analysing the facts, digesting the argument and considering the law came to the conclusion that the two verdicts returned by the two chairs of the workplace disciplinary forum and confirmed on appeal could not be sustained by the evidence tendered and that the subsequent sanctions imposed on the employees were tantamount to unfair dismissals from the employer’s employment. Accordingly he issued an arbitration award on 15 March 2005 whereby he ordered that the dismissed employees be reinstated to the same positions they were officially designated to occupy immediately before their unfair dismissals and that they be paid all their arrear salaries which they had wrongly forfeited on account of their unfair dismissals. As regards the third respondent, the monetary value of the award was R77094.70 and as regards the fourth respondent R57127.00.

[12] The employer relied on an arsenal of grounds for the review of the aforesaid arbitration award. The employer attacked the arbitrator’s

findings both on the merits and on the sanction. The employer contended that the arbitrator misdirected himself on both fronts.

[13] As regards the merits the employer contended that the arbitrator misdirected himself by rehearing the merits of the matters and then concluding that the employees were not guilty of the misconduct. The arbitrator should have held the employees strictly to the earlier pleas. So contended Mr JJ du Plessis, the employer’s deponent to the supplementary founding affidavit. In the workplace disciplinary forum they had admitted the misconduct of issuing permanent drivers’ licences to members of public without first subjecting them to the required exam to test the efficiency of their eye-sight. This averment was made in the employer’s founding affidavit by Mr KB Mehale, the employer’s main deponent and head of department. It was admitted by both employees in their respective answering affidavits. The employer’s two witnesses Mr TS Ndou and Mr EJG Brits testified to that effect in the arbitration tribunal. It would seem that Mr Ndou found the third respondent guilty because the third respondent said he was guilty. Similarly, it appears to me that Mr Brits found the fourth respondent guilty because the fourth respondent said he was guilty.

[14] Mr Ndou as the employer’s witness took the commissioner through the process that he followed during the workplace disciplinary hearing of the third respondent. His testimony starts from p121:11 to p123:12. It covers about two pages. Only three lines of those two pages concerned the merits. He said:

“But in this case they admitted that they were guilty and accordingly I had to follow all processes in terms of the verbal or, I had to weigh the seriousness of the offences…”

The rest of his testimony was about the sanction.

[15] It is fair to say he accepted the third respondent’s plea on its face value. On the strength of that plea, and that plea alone, he accepted that the third respondent was guilty. He then found him guilty and proceeded to deal with the issue of sanction. The third respondent was apparently unrepresented. The chair did virtually nothing to assist the unrepresented employee in order to make doubly sure that indeed he had absolutely no valid defence to an array of the charges he was facing.

[16] Item 7 of Schedule 8 Code of Good Practice of the Labour Relations Act No66 of 1995 provides that any person determining whether the dismissal for misconduct is unfair, should consider:

“7(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) if a rule or standard was contravened, whether or not-

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.”

Obviously item 7 (b)(ii) is pertinent and critical at the pleading stage of a workplace disciplinary enquiry. Logic dictates that an employee who is unaware of the wrongfulness of his conduct or the rule which prohibits such conduct cannot subjectively be guilty of violating or contravening the rule which regulates such conduct. In his testimony during the arbitration proceedings Mr Ndou hardly made mention of the important item 7.

[17] I am almost certain that if, as the chair, he had engaged the third respondent in terms of item 7 Schedule 8 of Act No. 66 of 1995 he would have realised that the third respondent did not intend pleading guilty or that he had a plausible defence to the various counts of misconduct levelled against him. His failure to properly question the employee led to miscarriage of justice. Therefore I am of the view that the commissioner was entitled to interfere as he did. In doing so he did not prejudice the employer’s case since he afforded both parties to present their respective cases fully to him.

[18] It was the third respondent’s case before the commissioner that he was unaware that applicants for driver’s licences just like applicants for learner’s licence had to undergo eyesight testing. He testified that the official forms used in connection with driver’s licences did not make provision for eye testing as did those that were used in connection with learner’s drivers’ licences. He testified that his daily work was routinely checked and approved as correct by his immediate supervisor at the local testing station. He testified that a certain Mr Mkhari at the employer’s head office had instructed then that the issuing of the learner driver’s licences had to go on in spite of the fact that the eye-testing machine at Mhala station was functionally inoperative. He added that he was really a law enforcement officer and not an eye testing officer. By this I understand him to mean that he felt more at home doing law enforcement duties than when doing eye examination duties. The former was apparently what he, as a traffic officer, knew best. Apparently he performed such duties for years. The business of eye examination duties was clearly not his cup of tea. His testimony was materially corroborated by the commissioner’s witness, Mr Tshabalala, the acting head of Mhala testing station, the third respondent’s superior. He added a further dimension. According to him the third respondent was occasionally called upon to perform eye exam duties on account of shortage of personnel. The thrust of Tshabalala’s evidence was that the third respondent did the eye testing business on an ad hoc basis.

[19] I deem it unnecessary to deal at length with the fourth respondent’s workplace disciplinary enquiry which was chaired by Mr Brits, the employer’s second witness. Broadly speaking, it suffices to say, that a strikingly similar picture emerges here upon careful analysis of the evidence as in the inquiry of the third respondent. Therefore my views are also pretty much the same as above. I may add that the version of the fourth respondent was substantially fortified by the testimony of Mr Manamela, the commissioner’s witness and the direct supervisor of the fourth respondent by virtue of his status as the head of Nebo testing station. According to this witness it was an accepted general practice at Nebo station that an applicant for driver’s licence was not required to undergo an eye testing exam. It has to be mentioned that the employer did not call any other witness to refute the coherent versions of the employees as supported by their supervisors.

[20] The third respondent was thrown into the deep end. The station was ill-equipped. His plea and outcry for help went unheeded by the employer’s top functionaries. There were simply no effective back-up systems and tools. The employer had abdicated its responsibilities to make the station fulfil the purpose for which it was set up. In the end the innocent employees were made to perform duties they were not really trained to perform. The third respondent was employed in 1981, seven years below the provision he was alleged to have contravened became law. The fourth respondent was employed in 1979, ten long years before the particular legislation was enacted. During the arbitration proceedings and indeed during the workplace disciplinary hearing no concrete evidence whatsoever was given on behalf of the employer to the effect that since the legislation contravened was enacted these two employees were trained in any meaningful way concerning the practical implementation of the testing procedures in terms of section 24.

[21] The finding that the two were well trained to know the section cannot be justified. They and their supervisors inadvertently misconstrued the law and misapplied it. The two were not properly trained, not properly equipped and not properly supervised. They were unfairly used as sacrificial lambs. This downward shifting of the blame was legally and morally inequitable.

“The 44 employees were the only employees dismissed: the others, whose conduct was equally reprehensible, were left undisturbed in their positions. The only thing which set the 44 employees apart from the remaining 98% of employees was the fact that they were victims of an unfair labour practice. But they became the whipping boys”.

Per Nicholas AJA in National Union of Metalworkers & others v Henred Fruehauf Trailers (Pty) Ltd (1994) 15 ILJ 1257 (AD) at 1263I – 1264A.

Justice cannot be served by the courts putting on the blinkers. Nullifying the commissioner’s decision would be doing just that.

[22] Therefore there is no substance whatsoever in the employer’s contention that there was no rational connection between the evidence tendered and the conclusion reached by the commissioner on the merits. Indeed during argument before me Ms Pillay, applicant’s attorney conceded, and quite correctly so, that the employees’ common defence that they were unaware that they were violating statutory enactment by not testing the eyesight of the applicants for drivers’ licences was justified and valid in law, on the facts. I would, therefore, decline to interfere with the commissioner’s conclusion on the merits.

[23] I now turn to the issue of the sanction. I shall assume that the employees were correctly found guilty only for purposes of

determining an appropriate sanction. It will be recalled that item 7 of Schedule 8 stipulates that any person, (and any person includes the chair of the workplace disciplinary inquiry such as Mr Ndou and Mr Brits in the instant case) called upon to determine whether a dismissal for a misconduct is unfair as the employee claims, should consider, whether or not, among other things, if a rule contravened has been consistently applied by the employer-vide sub item (b)(iii). This also entails considering whether or not the delinquent employees were consistently punished for similar violations. In casu, the answer is in the negative. The employees testified about specific instances of how the employer’s workplace disciplinary tribunal meted out remarkably inconsistent sanctions. The leniency of some of the sanctions for similar violations cannot be simply justified on the basis of the number of the transgressions committed by the third respondent and the fourth respondent. The absurdity of the chairs numerical reasoning lies in the inevitable conclusion that it implicitly invokes the notion that the two employees, we are here concerned with, were severely punished for working harder than their other colleagues and fellow culprits – assuming, of course, that they were correctly found guilty on the merits.

[24] The fact that the two employees, comparatively speaking, contravened the section on several occasions more than their undismissed fellow culprits does not justify the huge distinction drawn and the drastic sanctions imposed. The two dismissed employees did not go out on a serious and active recruitment drive to lure members of the public to their testing centres. The members of the public involved in these two cases went to the testing centres on their own. It may well be that the two employees have the excessive contraventions because their stations at Mhala and Nebo serviced larger communities or bigger operational areas than their counterparts with less contraventions.

[25] It was not contended that the two employees gained any undue benefit through such numerous contraventions. There was virtually nothing in those high contravention figures for the employees. Certainly this is not the case where the provisions of the law were fragrantly flaunted and the whole purpose of the road safety undermined and jeopardised. Therefore the number of the contraventions by the two employees could not fairly be used, as it was by the two chairs Mr Ndou and Mr Brits, as an indicator of high moral blameworthiness on their part. Although their conduct was illegal and prejudicial to the nation as a whole in that it undermined the general objectives of road safety, such behaviour was certainly not reprehensible in the extreme.

[26] In my view the dismissals were substantively unfair and constituted unfair labour practices. In National Union of Metal Workers & others v Henred Freuhauf Trailers (Pty) Ltd (1994) 15 ILJ 1257 (AD) at 1264A-D Nicholas AJA said the following about the employer’s inconsistent sanction:

“Equity requires that the courts should have regard to the so-called ‘parity principle’. This has been described as a basic tenet of fairness which requires that like cases be treated alike (see Brassey ‘The Dismissal of Strikers’ (1990) 11 ILJ 213 at 229-30). So it has been held by the English Court of Appeal that the word ‘equity’ as used in the United Kingdom statute dealing with the fairness of dismissals ‘comprehends the concept that the employees who behave in much the same way should have meted out to them much the same punishment’ (Post Office v Fennel (1981) IRLR 221 at 223). The parity principle has been applied in numerous judgments in the Industrial Court and the LAC in which it has been held for example that an unjustified selective dismissal constitute an unfair labour practice”.

[27] Once again Ms Pillay correctly conceded that the sanctions were inconsistent. Therefore the finding of the commissioner that the sanctions of outright dismissal were unfair must stand. I am of the firm view that the sanctions were disturbingly drastic and unfair in the light of the remarkably lenient but inconsistent sanctions meted out to the colleagues of the third and fourth respondents. Even if they were aware of the wrongs they were committing and they were thus correctly found guilty, there are a few strongly mitigating factors which would render their dismissals unfair. It is unnecessary to recite them again. Certainly they would have been charged with insubordination if they dared refuse to do their duties because they were not properly equipped by their employer.

[28] The evidence of the third respondent that when their testing station reported to the employer that the eye-testing machine used in respect of applicants for learner driver’s licences was broken, the employer’s seemingly very senior employee, Mr Mkhari, simply told them that machine or no machine, the work had to be done, was never denied. In the light of all these I am persuaded by Mr Van der Merwe and Mr Sefanyetso’s argument that there are virtually no fatal flaws in the commissioner’s findings as regards the entire arbitration process to warrant the setting aside of the arbitration award. As I see it the commissioner’s conclusions as regards the sanctions is one which I, on review, cannot hold to be wrong. I would therefore uphold the arbitration award. He did not commit a reviewable irregularity. He applied his mind and acted properly. The entire process and the award(s) were not flawed.

[29] On the facts of this case, it seems to me that considerations of fairness and justice dictate that reinstatement of the employees was an appropriate remedy for the unfair dismissals. Among others the conduct of the parties indicate that the employment relationship has not been irredeemably destroyed as evidenced by the retention on the employer’s workforce roll of other employees found guilty of similar violations.

[30] For the reasons which are obvious, I deem it unnecessary to deal with the condonation application in a detailed manner. I choose to deal with substance rather than form. The delay was not particularly disturbing. The fourth respondent did not really oppose the condonation application. During argument the third respondent did not seriously dwell on it. Therefore I decided to grant the employer’s condonation application with the rider that the employer has to bear the costs thereof.

[31] As regards the costs of the employer’s review application the general rule that the successful litigant is entitled to recover the costs from the unsuccessful litigant applies.

[32] Accordingly I make the following order:

32.1 The application for the review of the arbitration award issued by the second respondent at Polokwane on 15 March 2005 in favour of the third respondent and the fourth respondent is dismissed.

32.2 The applicant employer is directed to pay the costs of the third and the fourth respondent relating to the review application on the scale as between party and party.

32.3 The employer’s application for condonation is granted.

32.4 The employer is ordered to pay the costs of the third and fourth respondent relating to such condonation application on the same scale as in par 32.2 above.

_______________

Rampai AJ

APPEARANCES

For the applicant: Attorney L Pillay

Instructed by:

The State Attorney

Pretoria

For the first respondent: no appearance

For the second respondent: no appearance

For the third respondent: Adv F Van der Merwe

Bouwers Attorneys

For the fourth respondent: Attorney N U Sefanyetso

Magabane Attorneys Inc

Polokwane

Date of hearing: 06 February 2007

Date of judgment: 18 April 2007