Minister of Finance v Bredenkamp and Others (J768/15) [2016] ZALCJHB 431 (11 November 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J768/15

In the matter between:

MINISTER OF FINANCE

Applicant

and

M BREDENKAMP

First Respondent

P KIRSTEIN N O

Second Respondent

GENERAL PUBLIC SERVICE

SECTORAL BARGAINING COUNCIL

Third Respondent

Heard: 8 September 2016

Delivered: 11 November 2016

Summary: Review. Application granted

JUDGMENT

GUSH J

[1] This is an application by the applicant to review and set aside and/or correct the arbitration award handed down by the second respondent

dated 27 February 2015 under case number GPBC 1089/2013.

[2] The second respondent concluded that the dismissal of the first respondent by the applicant was substantively and procedurally unfair

and ordered her reinstatement.

[3] The first respondent was employed by the applicant as a deputy director. Following an altercation with one of her subordinates on a March 2012, she was charged with three counts of misconduct, found guilty and dismissed.

[4] The charges of misconduct were:

1 improper behaviour/conduct, in that on or about 8 March 2012, Madiba Street 23rd floor, you allegedly created a disruptive and harmful environment for efficient administration of the office, when she summoned Ms. Ashani Singh into the printer/photocopier room, which results in a heated argument, and/or unacceptable behaviour from herself.

2 Tripping, in that on or about March 2012 and at or near Madiba Street 23rd floor, you allegedly tripped Ms. Ashani Singh, business support manager for the chief director: African Economic Integration.

3 In that on or about March 2012 and at or near Madiba St. 23rd floor, you allegedly used racist remarks against Ms. Ashani Singh, by calling her a “koelie”, which is deemed to be a derogatory reference to people of Asian [Indian] orientation.[1]

[5] At the commencement of the arbitration, the parties recorded common cause facts and, inter alia that the following issues were in dispute:

1 whether the applicant had complied with the time frames envisaged by the public service disciplinary procedures;

2 whether the tripping was intentional or unintentional;

3 whether the word “koelie” was said to Ms Singh;

4 whether the contravention warranted dismissal.

[6] The arbitration commenced before a Mr. J J Erasmus and proceeded on the following dates:

a. 4, 5 and 6 February 2014;

b. 9 and 10 April 2014;

c. 18 June 2014 and;

d. 18 August 2014.

[7] At this point in the proceedings, Mr. Erasmus recused himself. There is nothing in the record of the proceedings or in the pleadings to explain under what circumstances or what caused Erasmus to recuse himself.

[8] When the matter was again enrolled on 14 January 2015, the parties agreed that the second respondent, who had been appointed to deal with the matter, would have regard to the transcript of the evidence led before Erasmus and the bundles of documents. The parties were to submit written heads of argument by 30 January 2015 and present oral argument on 19 February 2015. The parties in addition submitted further written submissions on 20 and 23 February 2015.

[9] The essence of the second respondent’s award is that he found:

a) that the first respondent was guilty of charge 1;

b) that the first respondent was guilty of deliberately tripping Ms Singh (charge 2);

c) that the applicant had failed to prove on a balance of probabilities that the first respondent had called Ms. Singh in a “koelie”

(Charge 3); and

d) that the procedure followed by the applicant was unfair.

[10] The parties agreed that the issues the court was to determine was whether:

a) the conclusion reached by the second respondent that the deliberate tripping of Ms Sigh did not justify dismissal was reviewable;

b) the conclusion that the applicant had not proved charge 3 was reviewable; and

c) in the event that the dismissal was found to be fair the appropriate compensation for the procedural unfairness.

[11] I will confine myself to these issues.

[12] There is no doubt that the evidence adduced at the arbitration established clearly that the first respondent, after her altercation with Ms. Singh, deliberately and unintentionally tripped as Ms Singh was leaving the printer room after their colleagues had intervened.

[13] The second respondent correctly concluded that this should be regarded as serious misconduct. The second respondent, however, concluded that despite the seriousness of the assault because they were “no consequences” dismissal was inappropriate.

[14] What the second respondent ignored was that the deliberate tripping took place after the intervention of the colleagues and the break up of the altercation. That the first respondent saw fit after the breakup of the incident and in the presence of her colleagues to then deliberately trip Ms Singh exacerbates the seriousness of her misconduct.

[15] In a further attempt to minimise the seriousness of the misconduct, the second respondent suggested, somewhat fancifully, that the evidence adduced by the applicant that the misconduct had caused a breakdown in the employment relationship was only relevant to charge 3. (The allegation that the first respondent had called Ms Singh a “koelie”).

[16] There is no doubt that an assault in the particular circumstances of this matter is extremely serious, regardless of whether it was established that the first respondent called Ms Singh a “koelie”.

[17] As far as the finding on charge 3 is concerned, the first respondent’s analysis of the evidence leaves much to be desired. The second respondent surprisingly suggested that despite Ms. Singh’s extensive cross-examination, “it is not clear from the evidence of Ms. Singh exactly when the derogative words were uttered.”[2]

[18] The second respondent, without any evidence in support thereof, further concluded that “if the derogative words were uttered it is expected that Ms Singh would have immediately informed her superior or at least Ms Kometsi and Nkosi regarding the uttering of the derogative words”[3]. This, the second respondents uses as the basis for rejecting her evidence. Having regard to the record of Ms. Singh’s evidence

and cross-examination, this is not a justifiable conclusion.

[19] The test to be applied in determining whether an award is reviewable is succinctly set out in the Gold Fields matter[4]. The court held that

‘… the enquiry … extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls in a band of decisions to which a reasonable decision-maker could come on the available material’.[5]

And

‘This piecemeal approach of dealing with the arbitrator’s award is improper as the review court must necessarily consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision-maker could make.’[6]

[20] In this matter, with the consent of the parties, the second respondent was provided with a transcript of the evidence and the bundles of documents. Having considered the evidence, the second respondent concluded that the first respondent deliberately tripped Ms Singh. This was a deliberate assault by a senior on a subordinate, aggravated by the circumstances in which it took placeThe second

respondent correctly found that this is a serious misconduct but disturbingly decides that dismissal is inappropriate. This decision,

taking into account the evidence and the absence of any credible justification in the award, is clearly not one that a reasonable

decision-maker could make.

[21] The award shows the same absence of credible justification for rejecting Ms Singh's evidence in regard to charge three. The first respondent simply offered a bare denial in contrast to the detailed evidence of Ms Singh.

[22] By agreement and due to the circumstances, the second respondent handed down his award without the benefit of hearing the witnesses.

What the second respondent did in rejecting the evidence of Ms Singh is to make a credibility finding that is not justified having regard to the transcript.

[23] In the circumstances, I am satisfied that the second respondent’s finding that the deliberate assault on Ms Singh did not warrant dismissal is not a reasonable conclusion based on the evidence placed before him.

[24] Likewise, I am persuaded that the conclusion that the applicant did not establish on a balance of probabilities that the first respondent had in fact called Ms Singh a “koelie” is not a conclusion to which a reasonable commissioner could come based on the material placed before him.

[25] Even if I am wrong that the conclusion by the second respondent that the applicant did not prove that the first respondent was guilty of charge 3, I am satisfied that the seriousness of the deliberate assault in itself justifies dismissal.

[26] In the circumstances and having regard to the reasons and conclusions upon which the second respondent’s conclusion to the effect that the dismissal of the first respondent was substantively unfair is reviewable and falls to be set aside.

[27] As far as the issue of procedural unfairness is concerned, it was common cause that the applicant had not complied with the disciplinary

procedures and that the procedure was, in fact, unfair. The parties appeared to be ad idem that a reasonable compensation for the unfair procedure was an amount equivalent to six months’ salary.

[28] Given the particular circumstances of this matter, I am not persuaded that is appropriate to make a costs order.

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

(i) the second respondent’s award is reviewed and set aside and substituted with the following order:

a) The dismissal of the first respondent on 4 March 2013 was substantively fair but procedurally unfair;

b) The applicant is ordered to pay the first respondent an amount equivalent to six months’ salary as compensation for the procedural

unfairness.

c) There is no order as to costs.

D H Gush

Judge of the Labour Court of South Africa Johannesburg

APPEARANCES:

FOR THE APPLICANT:

Adv. D J Skosana SC

Adv. Z Z Matebese

Instructed by: State Attorney

FOR THE RESPONDENT:

Adv. G van der Westhuizen

Instructed by Strydom Attorneys

[1] Arbitration award para 3 pages 24/5 of the pleadings.

[2] Award at para 6.

[3] Award at para 6.

[4] Gold Fields (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation` Mediation And Arbitration and Others [2014] 1 BLLR 20 (LAC).

[5] At para 14.

[6] At para 18.