Minister of Justice and Correctional Services v Police and Prisons Civil Rights Union obo Kgagara and Others (JR262/17) [2021] ZALCJHB 194 (2 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR262/17

In the matter between:

MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES Applicant

and

POLICE AND PRISONS CIVIL RIGHTS UNION

OBO LM KGAGARA

First Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL Second Respondent

DIALWA MATHALA N.O. Third Respondent

Heard: 14 January 2021

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 02 August 2021.

JUDGMENT

RHEEDER, AJ

Introduction

[1] This is an application brought in terms of Section 145(1) of the Labour Relations Act[1] (LRA) to review and set aside the award of the Third Respondent, dated 7 September 2016, under case number GPEC26/2016. The Applicant, the Minister of Justice and Correctional Services, launched an application for review in terms of the LRA on 22 February 2017 applying for the following order:

‘1.1 That the arbitration award dated 07 September 2016, issued by the Second Respondent in favour of the First Respondent be, and is hereby reviewed and set aside and/or corrected;

1.2 That the enforcement of the arbitration award be stayed pending the Court’s decision in respect of the review;

1.3 That the late filing of the application in terms of Section 145(1) of the LRA be condoned;

1.4 That the Respondents be ordered to pay the costs of the application if they oppose it;

1.5 That this Honourable Court grants any further and/or alternative relief.’

The relevant background

[2] The employee Mr. LM Kgagara, duly represented by the Police and Civil Rights Union was employed by the Applicant on 27 July 1998 as a Security Official: External Custody. His duties entailed escorting offenders to courts of law, hospitals and doctor’s surgeries. It appears not to be in dispute that Mr. Kgagara had approximately 17 years of service with the Applicant at the time of his dismissal.

[3] It is also not in dispute that Mr. Kgagara experienced personal difficulties and went through a divorce which caused turmoil and stress in his personal life for which he sought private intervention with a psychologist. As a result of his personal issues Mr. Kgagara lapsed in periodical absenteeism, which appears not to have been part of his normal behaviour prior to November 2013.

[4] Mr. Kgagara appeared to have committed the following misconduct which resulted in him receiving warnings and ultimately being dismissed on 21 May 2015:

4.1. On 02 October 2013, Mr. Kgagara took family responsibility leave and failed to submit a sick note in respect thereof for which he received a verbal warning;

4.2. On 19 November 2013, Mr. Kgagara took sick leave and received a final written warning valid for three months which was issued on 28 November 2013;

4.3. On 26 August 2014, he reported an hour late for work without informing his supervisor for which he received a written warning valid for six months.

[5] On an inspection of the dates on which the Applicant metered out warnings to Mr. Kgagara, it appears that he received a warning for absenteeism on 2 October 2013 and 19 November 2013.

[6] The misconduct which caused the dismissal of Mr. Kgagara occurred during the course of November and December 2014, approximately a year later. It was admitted during evidence that the warnings of 2013 had expired during that period.

[7] Mr. Kgagara lapsed into more instances of absenteeism as a result of his personal problems during the period of August to December 2014. He received a written warning for reporting an hour late on 26 August 2014 and a final written warning for a similar offence on 2 November 2014. Whilst being under this final written warning, he again was absent without permission on 16 and 20 November 2014 and 7 December 2014. Disciplinary action was instituted and he was dismissed for the three days of absence on 16 and 20 November 2014 and 7 December 2014; as a result of the fact that he was already on a final written warning for similar misconduct of 2 November 2014 and the one hour late reporting of 26 August 2014.

[8] The employer appeared to have been aware of his personal circumstances and tried to accommodate Mr. Kgagara by placing him on 4x4 shift which he later requested to be relieved from as he did not have sufficient supervision for his children, whilst being on night shift. He was also offered assistance of the EAP programme which he declined due to the fact that he was already seeing his personal psychologist.

[9] The chairman of the disciplinary inquiry deemed the employee’s long years of service as aggravation as he felt he should have set an example for young employees and that the employee failed to improve his behaviour even after he had been issued with a final written warning for similar offences. In the circumstances the employer deemed progressive discipline to have been exhausted and that the employee failed to repent his behaviour.

[10] The line manager of Mr. Kgagara testified that his absence was serious to the extent that he could not trust him anymore and that the trust relationship broke down irretrievably as a result of his failure to repent and the risk that he posed to the operations of the Applicant. The matter was referred to the Second Respondent and the arbitration took place on 28 July 2016 in terms whereof the parties agreed for the arbitrator to concern himself with only one question; being whether or not the dismissal of Mr. Kgagara was substantively fair and to pronounce an appropriate relief thereof. It was common cause that Mr. Kgagara in fact committed the offences, he knew the rule and that the rule was valid and reasonable. He however took offence with the severity of the sanction. The issue of double jeopardy was abandoned during the course of the arbitration and so were the procedural defects.

The arbitration award

[11] The Third Respondent found that the Applicant’s dismissal was substantively unfair only to the extent that dismissal was not an appropriate sanction. He therefore substituted the dismissal with a final written warning valid for six months with effect from the date of the arbitration award and ordered the Applicant to reinstate Mr. Kgagara without back pay.

[12] The Third Respondent considered the fact that Mr. Kgagara was on a final written warning but found that is not a bar for dismissal; as he was of the view that the circumstances of the case required a unique approach not to dismiss Mr. Kgagara even in light of the fact that he was on a final written warning for a similar offence. This was so, in light of Mr. Kgagara’s personal problems of which the Applicant had knowledge of. He found that the Applicant was not without alternative remedy in that unpaid leave was still available in particular knowing that Mr. Kgagara was receiving the necessary assistance through his private psychologist and the fact that he was not a habitual transgressor and that his behaviour started only during his personal problems caused by his divorce.

Grounds for review

[13] The Applicant argued that the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings and committed a misconduct in relation to his duties as an arbitrator and/or failed to apply his mind to the facts placed before him, his arbitration award is irrational and is so unreasonable that no reasonable arbitrator would have made such a decision.

[14] The Applicant submitted that the Third Respondent committed a gross irregularity in that he trivialised the offences which the employee committed in finding that the absenteeism had not been a norm and that he was not absent for more than 2 consecutive days at a given time.

[15] Furthermore, it is submitted that the arbitrator manifestly failed to deal with the substantial evidence on the prejudice suffered by the Applicant due to the employee’s absenteeism and yet he took into consideration the likelihood that his absenteeism negatively affected the Applicant’s planning and operations.

[16] In coming to this decision, the Third Respondent trivialised the gravity of the consequences of the absenteeism and the possibility of breach of security and the nature of the business of the Applicant. He, furthermore, demonstrated a lack of understanding and appreciation of the situation that the employer faced due to absenteeism. This included the difficulty in allocation of available resources for a specific task.

[17] It is submitted that, had the arbitrator applied his mind to the nature of the business of the employer, he would have given a more empathetic ear to the concerns of the Applicant relating to the gravity of the misconduct. The Applicant further argued that the arbitrator came to an unreasonable decision in that he made light of the attempts by the Applicant to assist the employee by placing the employee on a 4x4 shift and offering EAP assistance. The arbitrator therefore over-emphasised the personal circumstances of the employee over the interests of the Applicant. Furthermore, the arbitrator failed to deal with the substantial evidence to show that reinstatement was not practical and the relationship of trust between the parties had broken down irretrievably, as testified by the witnesses of the Applicant, Mr. Opperman.

[18] The arbitrator then failed to draw a distinction between the grounds of dismissal for misconduct and poor performance in stating that in this case further training and counselling was required. Although the Applicant argued that the Third Respondent’s misconstrued the Gcwentsha v CCMA and Others[2] judgment. The Applicant did not go so far as arguing in it’s grounds for review that a legal error was committed. It only argued that the Third Respondent misconstrued the judgment to be in support of Mr. Kgagara’s case.

[19] It is also argued that the arbitrator also failed to deal with the evidence which was not in dispute, being that the employee was on a final written warning.

Application for condonation

[20] The award of the Second Respondent is dated 7 September 2016 and was received by the Applicant on 19 September 2016. Due to an error made in the award, the award was sent back to the arbitrator for correction, which corrected award was received by the Applicant on 30 September 2016.

[21] The application for review in terms of section 145 (1) (a) was therefore due to served and filed in this Court no later than 11 November 2016 and it is common cause that the application was late.

[22] The application was ultimately served and filed in this Court on 22 February 2017 and is therefore approximately 14 weeks and 5 days late.

[23] It appears that the approval process within the office of the Applicant took place within a reasonable period of time, however, the matter got lost in the State Attorney’s office when an advocate within the State Attorney was only appointed in the latter part of December 2016. Counsel was only briefed on 20 January 2017 and a consultation was held on 31 January 2017.

[24] There is no explanation in the papers of the Applicant for the delay between 31 January 2017 to 22 February 2017 when the papers were filed in Court.

[25] Subsequent to the matter being filed on 22 February 2017 this matter got dragged out and delayed for another period of close to four years before the matter was heard by the Court in January 2021. During the course of this four year period, two applications were launched specifically dealing with an application to dismiss the Applicant’s claim and an application to compel the Second Respondent to file the missing record.

[26] A rule 11 application brought by the First Respondent was dismissed on 5 June 2019.

[27] This matter is in fact a locus classicus of “justice delayed being justice denied”. Mr. Kgagara was dismissed in the middle of 2015, some 6 years ago for failing to report for duty on 3 separate days during the course of November and December 2014.

[28] The condonation is opposed on the basis that the Applicant did not provide good cause for the lateness, especially that it did not explain all the periods relating to the reasons for lateness.

[29] The requirements for condonation to be granted in review applications, especially in light of the fact that the review application is inherently urgent in nature, in this Court, is trite law. However, in casu the delays in this matter was not occasioned so much by the late filing of the review application but by the steps taken by both parties’ post or the failure to take steps by both parties as opposed to the launching of the review application which appears to have originated mainly due to the failure of the Second Respondent to timeously file the record of the arbitration proceedings with this Court. It is not clear from the papers why the matter dragged out since February 2017 and why neither of the parties took steps in order to bring the matter before Court timeously. It appears that the only party suffering in this regard is Mr. Kgagara.

[30] I therefore find that the delay in launching this matter with the Labour Court is not excessive to the point where the Applicant should be denied an opportunity to bring the review application to conclusion. Condonation for the late filing of the application is therefore granted.

[31] This brings me to the question as to whether the finding of the Third Respondent should be reviewed and set aside; alternatively remitted back to the bargaining council, the Second Respondent, for rehearing.

[32] At this junction, it should be noted that the record of the proceedings before the Bargaining Council is still incomplete.

[33] Although the Applicant raised various grounds for review in its critique of the conduct and the finding of the Third Respondent, there is only one real issue to be considered and that is whether the dismissal of the employee, Mr. Kgagara was an appropriate sanction in light of the mitigating circumstances presented to the employer, the action taken by the employer in order to accommodate Mr. Kgagara and the effect of the final warning on the sanction metered out.

[34] Although the record of the proceedings is still incomplete before this Court, it is sufficient to make a final adjudication on the matter at hand.

[35] I have to decide as to whether the decision of the Third Respondent fell within the band of reasonableness when he took into account mitigating factors in determining that Mr. Kgagara should not have been dismissed and reinstated him with a final written warning without back pay.

[36] The commissioner’s role regarding sanction was restated in the matter of Bridgestone SA (Pty) Ltd v National Union of Metalworkers Union of South Africa and Others[3] where the Labour Appeal Court restated the principles in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[4] as follows:

“To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”

[37] In Sidumo, the Court expressed itself as follows regarding what is expected of the commissioner when considering the fairness or otherwise of the sanction:

“In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”

[38] I am of the view that the commissioner fully considered all the relevant factors in casu. He most importantly looked at the effect of the misconduct of the employee on the employer as well as the personal circumstances of the employee and the fact that the personal circumstances directly gave rise to the conduct of the employee. The employee had 17 years of service and the personal circumstances of the employee was not placed in dispute.

[39] The decision of the Third Respondent does not fall outside of the band of reasonableness, taking into consideration the mitigating circumstances, the misconduct itself and effect on the operations of the Applicant.

[40] When considering whether dismissal is an appropriate sanction, item 3(5) of the Code of Conduct issued in terms of the LRA, Schedule 8 determines that:

“When deciding whether or not to impose the penalty of dismissal, the employer should, in addition to the gravity of the misconduct consider factors such as the employee’s circumstances including length of service, previous disciplinary record and personal circumstances, the nature of the job and the circumstances of the infringement itself.”

[41] The commissioner in this instance came to a reasonable decision taking into consideration the totality of the circumstances. He was correct in finding that the final written warning is not a bar in preventing the employee from keeping his job in the special circumstances applicable. The Third Respondent was alive to the seriousness of the transgression and imposed the final written warning and also deprived Mr. Kgagara of the back pay he would ordinarily have been entitled to, for reinstatement. He therefore in my view applied his mind to all relevant factors and to the determination of an appropriate sanction. He gave reasons as to why he arrived at this conclusion and to this conclusion. It has also been held in Sidumo that it needs to be recognised that different commissioners may have arrive at different conclusions on the same facts. The question is whether the Third Respondent decision falls within the band of reasonableness, which I find that it has.

[42] In the premise, the following order is made:

Order

1. The application for review is dismissed.

2. No order as to costs is made.

J.S. Rheeder

Acting Judge of the Labour Court of South Africa

Appearances:

No appearances as the matter was heard in chambers

[1] No. 66 of 1995, as amended.

[2] [2006] 3 BLLR 34 (LAC).

[3] (2016) 37 ILJ 2277 (LAC) at para 17.

[4] [2007] 12 BLLR 1097 (CC) at para 78.