Minister of Police v Safety and Security Sectoral Bargaining Council and Others (PR 130/20) [2022] ZALCPE 24 (31 August 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

CASE NO: PR 130/20

In the matter between:

MINISTER OF POLICE Applicant

and

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL

First Respondent

WILLIAM RICHARD' PRETORIOUS Second Respondent

ASHEY BRANDON MARTIN

Third Respondent

Heard: 18 May 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant's and Third Respondent's Legal Representative by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 15h30 on 31 August 2022.

JUDGMENT

LALLIE J

[1] The applicant launched this application seeking an order reviewing and setting aside the second respondent's arbitration award. The application is opposed by the third respondent.

[2] The applicant delayed in filing the review application and sought condonation. The condonation application is also opposed by the third respondent. The reason advanced for the delay in filing the review application was that owing to the lockdown which the government imposed in its fight against the spread of the covid19 virus in 2020, there were disruption at the office of the applicant's counsel. The disruptions resulted in the review application documents falling between the cracks. Although a strong argument was made on behalf of the third respondent, the gravity of the effects of the covid19 pandemic cannot be denied. I accept the applicant's argument that it is in the interest of justice to afford the applicant an opportunity to have an application involving misconduct by an off-duty police officer properly ventilated. Refusal of that opportunity would result in the applicant suffering prejudice which outweighs by far prejudice the third respondent stands to suffer as a result of the delay. The applicant further delayed in filing his heads of argument and indexing and paginating the court file. The delay can be addressed properly by an appropriate costs order.

[3] The facts of this matter are largely not in dispute. They are that the third respondent was employed by the South African Police Service (SAPS) as a policeman in 1992. During the course of his employment he would be accommodated at Summerhouse Bed and Breakfast Guest House which will be referred to as the guest house in this judgment. The guest house is in Gqeberha and is owned by Mr Ellis (Ellies). The SAPS would foot the bill for the third respondent's stay at guest house which he used in the course of duty.

[4] In December 2016 the third respondent was transferred from Mthatha to Gqeberha which was known as Port Elizabeth at the time. He stayed at the guest house until 31 May 2017. He did not make the required payment and generated a debt in excess of R75 000, 00. Ellis then laid a compliant with the SAPS. Arising from the complaint, SAPS charged the third respondent with misconduct and dismissed him. He referred a dispute to the first respondent challenging the substantive and procedural fairness of his dismissal. In an arbitration award issued on 19 December 2019, the second respondent found the third respondent's dismissal procedurally fair but substantively unfair. He ordered the third respondent's reinstatement without payment of the remuneration he lost for the period of his unemployment occasioned by the dismissal. In this application, the applicant seeks an order reviewing and setting aside the second respondent's decision on the substantive fairness of the third respondent's dismissal and the relief he granted.

[5] The main grounds for review are that the second respondent misconceived the issue before him and misdirected himself in deciding that the first alternative to charge 1 related to unfair duplication of charge 1 and alternative 2 to the same charge. It was further alleged that the second respondent also misdirected himself in finding that alternative 1 to charge 1 did not meet the requirements for misconduct committed outside the workplace. It was the applicant's case that the second respondent committed a gross irregularity not finding a link between the conduct on which the compliant against the third respondent was based, his duties and workplace.

[6] It was submitted on behalf of the applicant that the second respondent misconstrued the issue before him in finding the third respondent’s failure to honour the agreement between the third respondent and Ellis was none of the applicant's concern. The applicant expressed the view that the third respondent's choice of a guest house which the applicant used for its officials, telling Ellis that SAPS would pay for his stay and making excuses based on the inefficiencies of SAPS for the non-payment constituted sufficient link between the third respondent's conduct and SAPS. A further attack on the award is based on the second respondent's failure to consider relevant evidence including the third respondent's dishonesty. He instead considered irrelevant evidence in reaching his decision. The applicant submitted that the second respondent committed an error in finding that SAPS did not prove the substantive fairness of the third respondent's dismissal and reached an unreasonable decision that the dismissal was substantively unfair.

[7] The applicant further relied on the alleged unreasonableness of the relief the second respondent granted. It was submitted that the relief is contradictory and irrational because having stated that he had no reasons for not reinstating the third respondent with back pay the second respondent reinstated him without back pay.

[8] The third respondent's grounds for opposing this application are that the second respondent's decision is correct, reasonable and supported by the evidence tendered at arbitration. It was the third respondent's case that his failure to pay the private debt he owed Ellis had nothing to do with the constitute misconduct.

[9] The test for review is whether the award under review constitutes a decision a reasonable decision maker could not make[1]. The determination of the reasonableness of an award is made on the totality of the evidence which was properly tendered at arbitration. In order to have a proper perspective of the dispute which served before the second respondent, the reason for the third respondent's dismissal has to be taken into account. The applicant was summoned to a disciplinary enquiry to answer the following charges:

Charge 1

In terms of section 40 of the South African Police Service Act,1995 (Act No 68 of 1995), read with the South African Police Service Regulations, 2016, you are hereby charged with serious misconduct as provided for in regulation 5(3)(G) prejudices the administration, discipline or efficiency of a department, office or institution of the State. You have contravened the discipline of the SAPS in that you committed an act of gross dishonesty when you informed Christian Ellis of the Summerhouse bed and breakfast that your stay at the Summerhouse bed and breakfast would be paid for by the SAPS, Approximately 2016-12-05 to 2017-05-31. At 14 5th avenue, Summerstrand, Port Elizabeth.

Alternative 1 to charge 1

Regulation 5(3){t) conducts himself or herself in an improper manner. You as an employee of the SAPSA and who is known to be an employee of the SAPS by Christian Ellis of Summerhouse Bed and Breakfast failed to pay your stay at Summerhouse Bed and Breakfast to the amount of approximately R75000.00. Approximately 2016-12-05 to 2017-05-31. You thus brought the name of the SAPS in disrepute.

Alternative 2 to charge 1

Contravenes the Code of Conduct of the Service or the Public Service, whichever may applicable on his or her. In that you failed to act honestly when you involved your employer the SAPS in a false agreement for accommodation with Summerhouse Bed and Breakfast when you stated that your employer the SAPS would pay your accommodation bill of approximately R75000,00 for the approximate period 2016-12-05 to 2017-05-31. While you knew your employer will not do so. You thus brought the name of the SAPS in disrespect.'

[10] The applicant was found guilty of only alternative 1 to charge 1 and dismissed. The enquiry the second respondent had to conduct therefore was whether the decision to dismiss the third respondent

for being guilty to alternative 1 to charge 1 was fair. There is merit in the applicant's submissions that the second respondent made errors in the conduct if the arbitration. The errors include dealing with the irrelevant issue of the duplication of the charges. The second respondent further erred in finding that there was no need to deal with alternative 1 to charge 1 any further than finding that the charge related to the unfair duplication of charge 1 and alternative 2 to charge 1. In Head of the Department of Education v Mofokeng and Others[2] the court reaffirmed that not every error or irregularity renders an award unreasonable but it is the materiality of the error or irregularity and its relation to the result that determines the reasonableness of the award.

[11] The applicant did not prove that the errors and irregularities the second respondent committed in determining the substantive (fairness of the third respondent's dismissal had an impact on his decision. Notwithstanding the second respondent's finding that there was no need for him to deal with alternative 1 to charge 1, he in fact dealt with it comprehensively. He considered the test for the determination of acts of misconduct committed outside the workplace. He applied the test to the facts before him. He found no link between the conduct which forms the basis of alternative 1 to charge 1 and the workplace. The second respondent made a finding that the agreement to pay the money owed to the guest house was between the third respondent and Ellis and that the third respondent's failure to honour the agreement had nothing to do with SAPS. He, for those reasons found the dismissal substantively unfair.

[12] The third respondent was dismissed for being guilty to alternative 1 to charge 1, which is failure to honour the agreement between himself and Ellis, conduct SAPS considered to have brought its name into disrepute. The agreement created no obligation for SAPS and the third respondents failure to honour it affects the third respondent in his capacity as a party to the agreement. It was argued correctly on behalf of the third respondent that SAPS tendered no evidence of how the private commercial deal between the third respondent and Ellis brought SAPS into disrepute.

[13] The applicant's attempts to introduce the dishonesty on which charge 1 and the second alternative to charge 1 are based cannot assist him because at the disciplinary enquiry SAPS found the third respondent not guilty of charges. The charges involving dishonesty were therefore not before the second respondent. They may not be relied upon in determining the reasonableness of the second respondent's decision on the substantive fairness of the third respondent's dismissal. The attack on the second respondent's finding that the acquittal of the third respondent on charge 1 and its second alternative has neither a legal or factual basis. The finding is in fact consistent with the evidence tendered at arbitration. The second respondent conducted the correct enquiry into the fairness of the third respondent's dismissal for making himself guilty of alternative 1 to charge 1. He dealt with that issue, considered the evidence before him and reached a decision based on that evidence. The errors that he committed in the conduct of the arbitration had not impact on the reasonableness of his final decision. In the circumstances, I find that the applicant left the finding on the substantive fairness of the third respondent unvitiated.

[14] It was argued on behalf of the applicant that the second respondent's finding on relief is contradictory in that he made a finding that based on the evidence before him there was no reason for not reinstating the third respondent with back pay. He, however, decided not to make an order regarding back pay as the second respondent's hands were not entirely clean. The applicant did not establish how the contradiction rendered the finding on relief unreasonable. The finding on relief is not one a reasonable decision-maker could not reach. The finding is therefore reasonable.

[15] The applicant and POPCRU, the trade union which opposed this application on behalf of the third respondent have a relationship. The circumstances of this case particular the some errors the second respondent made rendered the applicant's decision to institute these proceedings reasonable.

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

Order:

1. The late filing of the application for review is condoned.

2. The application for review is dismissed.

3. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Advocate T. Mqobi

Instructed by the

State Attorney

For the Third Respondent: Advocate J. Grogan

Instructed by

Mdlangazi Attorneys

[1] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC).

[2] [2015] 1 BLLR 50 (LAC).