Mogale City Local Municipality v South African Local Government Bargaining Council and Others (JR3065/12) [2016] ZALCJHB 357 (23 September 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Of interest to other judges

Case no: JR 3065/12

In the matter between:

MOGALE CITY LOCAL MUNICIPALITY Applicant And THE SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL First Respondent ARBITRATOR M M LEGODI N.O Second Respondent IMATU obo JAKOBUS NIKOLUS BOSCHOFF VAN WYK and JOHANNES FRANCOIS JAKOBUS NEL Third Respondent

Heard: 17 June 2015

Delivered: 23 September 2016

Summary: (Review – dismissal – failure to determine guilt on major charge – misdirection amounting to a reviewable irregularity – substitution – Failure to hold in loco inspection or grant postponement not reviewable irregularities in context of the circumstances)

judgment

LAGRANGE J

Introduction

[1] The applicant municipality wishes to review an arbitration award issued by the second respondent, in which he found that the dismissals of Mr J N Van Wyk (‘Van Wyk’) and Mr J F Nel (‘Nel’) were substantively unfair because the applicant had failed to prove the charges against them. The arbitrator ordered the applicant to reinstate them with retrospective effect to the date of their dismissal.

[2] At the time of their dismissal Van Wyk, a technical officer in the muncipality’s technical department and Nel, a superintendent in the muncipality’s traffic department had been employed by the municipality for approximately 17 and 29 years respectively.

[3] On 31 May 2011, a default award was issued in favour of Van Wyk and Nel which was subsequently rescinded. A new award was issued, again in the employees’ favour, on 26 November 2012. The arbitration took place over 13 days.

[4] The applicants were charged with the following misconduct:

“Charge 1: Theft

On the 7th and 8th March 2010 it is alleged that you wilfully or intentionally took the employer’s property to wit 5 buckets of 20 L of paint (3 white 20 L and 2 yellow 20 L) without permission or consent with the intention to deprive the employer of ownership

thereof.

Alternatively

Unauthorised Possession of Employer’s Property

On 7 and 8 March 2010 you were allegedly seen at the Monument Liquor Store in possession of the Municipal paint without lawful authorisation. The very same paint was then used for private purposes and benefit at the expense of the employer in contravention of disciplinary collective agreement or condition of service.

Charge 2: Doing Private Business without the Prior Permission of the Department head or Municipal Manager

In that on the 7th to the 8th or between this periods the 7th and 8th March 2010 it is alleged that You rendered similar/same services rendered by the municipality to Monument liquor store and by so doing you have contravened conditions of employment contract [in] contravention of disciplinary agreement or conditions of service.

Charge 3: Gross Dishonesty

On 8 March 2010 it is alleged that you acted with gross dishonesty against the employer, in that you went to fetch some of our employees

to do your private job at Monument liquor store and remunerated them for helping you to do the job which is in contravention of disciplinary collective agreement or conditions of service.”

(Unnecessary capitalisation removed)

[5] At the internal disciplinary enquiry, the employees were acquitted of the charge of theft and the alternative charge of unauthorised possession but were found guilty of the second and third charges, which essentially both related to performing unauthorised private work, and were dismissed.

[6] In essence, the defence advanced by the employees to the charges was that the work done by them on Sunday 7 March 2010 was private work done on the premises of the bottle store to demarcate parking areas, which they were not prohibited from doing, and the erection of road signs on Monday 8 March 2010 in the vicinity of the store was official work done for the municipality.

[7] It was not disputed that the requirement for the work originated when Van Wyk was approached by the owner of the liquor store while he was doing other work on a public road nearby. The owner asked if he could paint the parking area of the store and erect certain signs on the service road adjoining the store premises. Van Wyk’s undisputed evidence was that he had advised the owner that they could do the painting work privately, but he would have to speak to his supervisor Nel about the road signs as that was official work. Nel corroborated that he had confirmed with the owner that the signs could be erected but the owner would have to supply the signs as the department did not stock the maximum tonnage signs and did not have stop signs in stock at the time. Once the store owner bought the signs and paint, they organised the painting of the parking area on Sunday 7 March and on the following day Van Wyk and his team erected the signs he had purchased using the municipality’s poles and concrete.

[8] Nel claimed that he had been granted permission to do private work in 1986 when he was working with the former Krugersdorp municipality. Van Wyk claimed that since he was performing the work in his own time he did not require permission to do so. They disputed any knowledge of a policy by Mogale City Municipality governing private work. They did not dispute that they were paid for the private work performed on the Sunday but denied they were paid anything for the municipal work performed on the Monday.

[9] It was common cause that on Sunday 7 March Van Wyk and Nel were assisted in painting the parking areas of the liquor store by Mr S Manong (“Manong”) and Mr P Groenewald (“Groenewald”). Manong worked under Van Wyk at the municipality. Van Wyk paid Manong and Groenewald for the work they did on Sunday. Manong did not go to work on Monday. It also is common cause on the evidence that on Monday 8 March Van Wyk, Groenewald and Mr K Gobidolo (“Gobidolo”) erected two maximum tonnage signs and a stop sign. The tonnage signs prohibited trucks over five tons on the road. There was some controversy whether the stop sign was erected inside the yard of the liquor store or on a public road, but there was no real dispute that the tonnage signs were erected on the road near the liquor outlet. Neither Groenewald nor Gobidolo were paid for the work they performed in erecting the signs that Monday, and were wearing their municipal uniforms that day.

[10] According to Gobidolo, the poles and the stop sign had been loaded onto the municipal vehicle at the Depot that morning. He also testified that the maximum tonnage signs had been erected in Voortrekker Street. He was unclear whether the stop sign was erected on the service road running next to the street or whether it was on the premises of the liquor store property itself. However, he confirmed that he agreed with the sketch presented to him by the applicant’s representative, which apparently showed that

the stop sign was erected on the service road and not on the premises of the liquor store as such. Under re-examination his identification

of the location on the sketch was not revisited. Later, when his testimony on this issue evidence was mentioned again during Nel’s

evidence in chief, the applicant’s representative at the enquiry did not dispute that Gobidolo had identified the location

of the stop sign on the sketch but contended that whether or not it was private property was something that needed to be ‘argued’.

The award

[11] The arbitrator wrote a detailed award setting out the evidence, though her reasoning for her award was unnecessarily brief. The essence of her reasoning may be summarised as follows:

11.1 There was no evidence suggesting that Nel had worked at the bottle store on Monday, 8 March 2010 and consequently he was not guilty of doing private work.

11.2 The employer’s witnesses could not say with certainty that the owner of the bottle store did not provide the paint which was used to paint the private parking area, as alleged by Van Wyk, though there was some evidence that the paint colours used were the same colours used by the respondent. There was also no evidence of any shortfall in the employer’s paint stocks.

11.3 In respect of the signs which were erected on Monday, there was conflicting evidence whether the signs were provided by the owner of the bottle store but erected on a public road, or whether the signs were provided by the respondent and erected on private property. The evidence provided by Gobidolo in a statement made to the respondent and what he testified to in the arbitration as to where the signs were erected was inconsistent.

11.4 The respondent had failed to prove a case of theft or dishonesty on the applicant’s part on a balance of probabilities and accordingly their dismissal was substantively unfair.

Grounds of review

[12] In summary, the municipality claimed in its founding affidavit that the award was reviewable on the following grounds:

12.1 The arbitrator’s finding that the employees were not prohibited from doing private work in their spare time could not be supported by the evidence.

12.2 The arbitrator’s conclusion that some of the construction and painting work done on Monday was done on public land could not be justified on the evidence.

12.3 The arbitrator’s finding that the materials used did not belong to the municipality and were all provided by the owner of the bottle store was unreasonable on the evidence before her and the arbitrator applied the incorrect standard of proof in determining this question.

12.4 The arbitrator committed a gross irregularity by not conducting an inspection in loco to determine the location of the work performed, which was necessary in the circumstances and thereby deprived the applicant of a fair hearing.

12.5 Similarly, the arbitrator’s refusal to grant a postponement to secure the attendance of the bottle store owner was also a gross irregularity.

12.6 The arbitrator’s finding that the employer had failed to prove a case of theft or dishonesty showed that she failed to apply her mind to the case before her because the case was not limited to allegations of theft and dishonesty. Consequently she misconceived the nature of the enquiry and failed to reach a conclusion on each of the issues requiring determination.

[13] The municipality decided not to supplement its grounds of review after the record was filed and accordingly the application is confined to the grounds summarised above.

Evaluation

First ground of review-finding on prohibition against private work

[14] It is unclear why the applicant raises this particular claim on review because the only definitive finding the arbitrator made in her award was that Nel could not have been doing private work on 8 March because he was not working with the others near the Monument bottle store site on that day. Nowhere in the rest of her award did she make other findings though she recorded the evidence relating to the issue. Nevertheless, the failure of the arbitrator to make a finding on whether they were doing private work without permission contrary to the applicant’s policy is obviously an important issue that she ought to have expressly decided and will be addressed under the last ground of review.

Second ground of review-finding that some of the work done on Monday was done on public land

[15] Like the previous ground of review, this ground is also somewhat paradoxical as the arbitrator did not make any conclusive determination about where the work was performed other than effectively noting that it was common cause that the painting of the parking lot was part of the bottle store premises. In relation to the placing of the signs, the arbitrator only recorded the conflicting evidence in this regard.

[16] The only issue relevant to the charges which concerned the painting of the parking lot itself was whether the employees were permitted to do this work privately. The significance of the placement of the three road signs which were erected on Monday 8 March was that, even if they were not prohibited from doing private work, they should only have been performing municipal duties at that time. Correlatively, the implication was that if a road sign had been erected on the liquor store premises that would not have constituted municipal work, but would have amounted to private work being performed during ordinary working hours.

[17] On the evidence, there was actually no dispute that the two maximum tonnage signs had been erected along a service road, from which access could be gained to the bottle store premises and which could also be entered from the same premises. Accordingly as regards those two signs, it is difficult to understand why the applicant would have a difficulty with the conclusion that they were erected on public land. Moreover, it never provided any evidence that those signs were ones it stocked or provided, but sought to challenge the evidence that the store owner had bought them. The only controversial placement concerned the single stop sign erected on 8 March. The issue in dispute concerned precisely where it was positioned on the borderline between the bottle store premises and the service road. Van Wyk testified that Nel had told him to erect it on the service road. The evidence of Gobidolo was that it

was on the bottle store premises but he also agreed it was on the public road.

[18] There did not seem to be any dispute that the purpose of the stop sign was to control traffic entering the service road from the liquor store premises. However, in the course of the presentation of the evidence, the debate about the sign did not concern the purpose it served but whether it was on municipal or private land. It was this factor which was considered important in deciding whether the erection of the sign constituted private work or municipal work. As discussed elsewhere the debate about it being on

public or private land should really have been about whether the stop sign was erected on a public road with reference to what constitutes a public road.

[19] However, this ground of review is misplaced anyway because the arbitrator did not make a finding that the work on 8 March was done partly on public and partly on private land. As such it does not provide a basis for setting aside the award.

Third ground of review -finding that materials used did not belong to the municipality

[20] It is correct that the arbitrator concluded that none of the applicant’s witnesses could say with certainty that the owner of the bottle store did not provide the materials used which included the two maximum tonnage signs, but not the stop sign. The arbitrator also concluded that all that could be said about the paint used was that it was the same colour paint that was used by the applicant, and there was no evidence of any shortage of the applicant’s stock being raised in the arbitration. It is also apparent that the arbitrator did not make a specific finding about whether the poles used to erect the signs were loaded from the applicant’s store together with cement on 8 March as Gobidolo had testified, but that was common cause in any event.

[21] However, the arbitrator did find that the two employees were not guilty of theft. She could hardly have made such a finding unless she accepted that none of the materials used for the private work belonged to the applicant.

[22] However, the arbitrator’s finding that the two employees were not guilty of theft also points to one of the mis-directions committed by the arbitrator because the employees had not actually been dismissed on a charge of theft. I will deal with this under the last ground of review, though it does have an indirect bearing on the charge of doing private work without permission.

Fourth ground of review-failure to conduct an in loco inspection

[23] The employees contend that the parties had agreed in the pre-arbitration minute that an in loco inspection would not be necessary and accordingly it was not for the arbitrator to determine whether one should be held. The pre-arbitration minute in the record simply reflects that the word ‘None’ under the heading ‘In loco Inspection’ was scratched out and initialled by the parties but was not replaced with anything else. During the evidence of Mr Malopo, it became clear that the parties had not agreed on whether an in loco inspection was necessary or not. It is also apparent that in the mind of the applicant’s representative at the arbitration, the failure to agree on an in loco inspection was somehow tied up with possible surveillance video footage which the employer was thinking of introducing which showed the painting work being performed in the parking area on Sunday, 7 March. However, had such evidence being made available, there is no reason to believe it would have revealed anything more than what was already common cause concerning the painting of the parking area.

[24] From the evidence, it is clear that as far as the painting of the parking area was concerned there was no dispute this was on the liquor store premises and not on a public road. From the discussion of the second ground of review, it is also apparent that the parties only differed over the exact placement of the stop sign on 8 March, leaving aside the question whether or not there was agreement about a sketch apparently depicting the placement of the signs, which the applicant failed to include as part of the record of the arbitration proceedings.

[25] Ought the arbitrator to have held an in loco inspection? As mentioned, the only disputed issue that an in loco inspection might have settled was the precise location of the stop sign. Mr Gobidolo agreed with location of the sketch map Van Wyk had drawn up which showed the placement of the stop sign on the service road from which the bottle store premises could be entered and exited. His interpretation of the sketch map was not questioned in re-examination. Van Wyk was adamant that the stop sign was placed on public property and because it was official work that is why it was not erected the previous day when they were doing the private painting work in the parking area. Nel testified that in his position as a traffic superintendent, he had authority to order where traffic signs could be located in accordance with the National Road Traffic Act 93 of 1996 and the associated manual, and the stop sign was erected at an intersection with a public road. As previously mentioned, when Gobidolo’s confirmation of the placement of the stop sign on the sketch was raised during Nel’s evidence in chief, the only point of disagreement which the applicant’s representative raised was ‘...whether it is a private property or not, actually it is something we need to argue upon. He [Gobidolo] did not say that Madam Commissioner.”

[26] Nchefu had denied that the sign was erected on a public road, though the definition of a public road in the Road Traffic Act cited by Nel was not specifically put to him in cross-examination. Despite that, what Nel’s testimony highlighted is that given that the fact that there was no material dispute that the location of the stop sign was at the exit of the liquor store onto the service road, the question of its precise location was less relevant than whether it would be construed as being part of a public road in terms of the Road Traffic Act. Nel read the definition of a public road as follows:

“'public road' means any road, street or thoroughfare or any other place (whether a thoroughfare or not) which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access, and includes-

(a) the verge of any such road, street or thoroughfare;

(b) any bridge, ferry or drift traversed by any such road, street or thoroughfare; and

(c) any other work or object forming part of or connected with or belonging to such road, street or thoroughfare;..”

It was the applicant which needed to prove that the stop sign regulating access to the public road could not have been construed as being on a public road, but its focus was whether the sign was erected on private property or public property. The real focus ought to have been proving that it was on a public road within the meaning of the definition which it did not do. Be that as it may, the onus of proving that it was not on a public road fell on the applicant.

[27] From time to time during the hearing the issue of an in loco inspection came up. It first arose during the examination in chief of the applicant’s first witness, Mr Malopa, the Commissioner

expressly asked the applicant’s representative if it wanted to reserve its rights in relation to the introduction of the

surveillance video footage of the liquor store which showed the painting of the parking area. The issue of an in loco inspection had been brought up in the context of corroborating the evidence of the video footage in the event that the video footage was introduced as evidence.

[28] It arose again during the evidence of Nchefu on 30 May 2012 when there was an argument about the attempt by the applicant’s

representative to introduce photographs which had not been put to previous witnesses, in particular to Gobidolo. The applicant’s

representative argued that if the photos could not be introduced that there must be an inspection in loco. The arbitrator declined to admit the photographic evidence for a number of reasons. Firstly, the arbitrator was satisfied that the issue of the location had been put to rest and in so far as what happened and where it had happened. Secondly, the arbitrator felt that it was problematic that a number of witnesses had already testified on the issue of the location and it would be wrong those witnesses had not been canvassed about the photographic material. Lastly, the arbitrator was concerned that the provenance of the photographs was unclear and that no one had testified as to when the photos had been taken. Once she made her ruling, the applicant’s representative did not persist at that stage to ask for a ruling on an in loco inspection.

[29] At the end of the proceedings on 12 May, the issue came up again when there was a debate about the earlier evidence of Gobidolo as to what he said about the location of the signs. The employee’s representative correctly pointed out that the applicant had not sought to clarify the evidence he gave under cross-examination, namely that he agreed with the location of the stop sign as depicted on a diagram drawn by Van Wyk and that he had ultimately agreed that was located on a public road. The applicant’s representative disputed this and once again raised the need for an in loco inspection, claiming that the arbitrator had previously been expected to make a decision on that issue, though that is not clear from the transcript. The proceedings on 12 May concluded on the basis that the arbitrator would review her notes, which she did not have with her on that occasion, “…to see exactly where matters stood as regards the diagram, the photos and stuff on the ruling that is supposed to have been made…” However, when the proceedings resumed on 18 July 2012, neither of the parties nor the arbitrator mentioned the issue and that they continued to hear the evidence of another witness and then reverted back to continue to hear the incomplete evidence of Nchefu. There was no further reference to a ruling on an in loco inspection in the transcript.

[30] No doubt an in loco inspection might have been useful in the circumstances, though as indicated already the dispute was a fairly narrow one about the precise placement of the single stop sign and the real issue was its relationship to the public road. Even that dispute was limited in scope as it would appear that there was no real contention that it was located anywhere else than at the entrance to the public service road from the premises, so it is not entirely clear what more useful information could have been gleaned from an inspection in loco. The evidence of various witnesses that the stop sign was near the boundary or on the borderline of what was called public and private land and that it controlled access to the public service road, readily supports a finding that the stop sign was on a public road. If it controlled access onto the public road its pre-eminent public purpose as opposed to any private purpose seems self-evident.

[31] In any event, even if it might have been useful and even though a ruling was clearly contemplated, one was never made. Strangely, even though a ruling was clearly expected after proceedings adjourned on 12 May 2012, there is no mention of it when proceedings resumed nor at any stage thereafter. If the applicant wished to persist with requiring a ruling on the issue it was fully entitled to do so and was plainly well aware that it could insist on one, but for reasons best known to it, it did not pursue it further. Had the applicant not been represented and if it had been obvious the applicant was unaware of its right to apply for an in loco inspection, the failure to hold one might be something the arbitrator could be faulted for. However, in the context of the fact that the applicant was obviously entitled to expect a ruling when matters resumed on 12 July 2012 and aware of that, I do not think the failure of the arbitrator to make one on that occasion can now be relied on as a procedural irregularity warranting the setting aside of the proceedings, when it never queried the arbitrator’s failing to make the ruling at the time. It ought to have been obvious to it on 12 July 2012 that if it was still concerned about the matter it was entitled to insist on ruining on that date in the light of the last discussions on 12 May 2012. There is no record of the applicant so much as murmuring a query about that date.

[32] In the circumstances, the failure to hold an in loco inspection was not an irregularity, and even if it was, it is by no means certain it would have been decisive, given the narrow issue in dispute and the real nature of what was under consideration,

namely that it served to control access at an intersection to a public road.

Fifth ground of review-failure to postpone the arbitration hearing to allow the bottle store owner to attend

[33] The employees concede that the bottle store owner was potentially an important witness for the applicant but argue that the applicant failed to make an effort to secure his presence at the arbitration and the parties had in fact agreed that if he did not appear at the arbitration hearing on 3 October 2012, that the matter would proceed without him. At the proceedings on 12 September 2012 the arbitrator issued a postponement ruling in which she stated:

“REPRESENTATIONS and FURTHER POSTPONEMENT

All parties were present; as before the two applicants were represented by Mr S Mofokeng and the respondent was represented by Mr J Baloyi.

The matter proceeded and the respondent called Mr Nchefu, who finalised his evidence. The respondent then produced a subpoena of C Tiago, whom it had intended to call on 07 August 2012. Mr Tiago was not at the proceedings.

The subpoena, at face value, was not vetted and I ruled against enforcing it in its present form. Mr Baloyi undertook to call at Mr Tiago’s place to ask him to come and testify. Whatever the outcome of the discussion, it was agreed that the arbitration still continue on the next day to try and finish it, and the applicants will testify.

The parties agreed to have the matter postponed to the 03 October 2012 to continue with the evidence.

RULING

1. the arbitration is postponed to 03 October 2012 by agreement;

2. the costs of this postponement are to be paid by the respondent.”

(emphasis added)

[34] When the hearing resumed on 3 October 2012, the arbitrator recorded that the subpoena had apparently been served on the store owner but that he had written on the subpoena that he was unable to attend because he had a business to run and he was busy. The applicant had again applied to postpone the matter for him to attend as a witness. The arbitrator took into consideration that the matter been running since 19 October 2011 and the employees had been dismissed in March that year and that most of the postponements granted had been at the instance of the applicant. She also considered the fact that the employees’ livelihoods were at stake and they needed finality in the matter. In the result, she declined to postpone the proceedings further but still offered assistance to the applicant if it wished to pursue the enforcement of the subpoena further.

[35] However, instead of taking up the offer of the arbitrator, the applicant then indicated its intention to require the arbitrator to make a written ruling on the subpoena, though it is not entirely clear what sort of ruling it contemplated, as it intended to pursue the matter in the Labour Court. It then closed its case, but subject to reserving its rights pending the outcome of the further proceedings relating to the subpoena.

[36] Evidently, the applicant did not seek to enforce the subpoena or to initiate contempt proceedings and there is no evidence it sought the arbitrator’s assistance in doing so. The arbitration proceedings continued.

[37] Given the drawn out nature of the arbitration proceedings at that stage and the recalcitrant witness’s attitude towards the subpoena, the arbitrator’s attitude towards the application for postponement cannot be said to have been unreasonable at that point. It must also be remembered that between the previous state of the hearing on 18 July and the resumption on 3 October nearly three months had passed during which the applicant could have taken steps to ensure his attendance. By the time it arrived at the proceedings on 3 October it already knew that it was unlikely that the witness would attend but it had not taken any further steps to compel his attendance after learning this. Moreover, the arbitrator clearly was willing to assist the applicant in pursuing the matter further but was simply reluctant to stop the continuation of the proceedings. In addition, the applicant chose not to take up the arbitrator’s offer of assistance in prosecuting the matter, but indicated it would pursue the matter itself. In the circumstances, it is difficult to say that the applicant was demonstrably prejudiced by the arbitrator’s decision to

continue with the proceedings, whilst offering to assist it in pursuing the enforcement of the subpoena. In my view the failure to grant the postponement was not irregular.

Sixth ground of review-misconstruing the issues to be decided

[38] The employees agree that it was not necessary for the arbitrator to determine if they were guilty of theft as they had not been found guilty or dismissed for that charge at the internal enquiry. However, they contend that the arbitrator did make findings on whether they were guilty of performing private work without permission and on the charge of dishonesty. Accordingly, they contend the arbitrator did not misdirect herself.

[39] Strictly speaking, the arbitrator only made a clear determination that Nel had not worked on Monday, 8 March and therefore could not be guilty of doing private work on that day, but she did not make any findings on whether Van Wyk and Nel had permission to do private work or on the existence of the prevailing policy on employees doing private work in their own time. Likewise she did not make a finding on whether Van Wyk had been performing private work on 8 March. Clearly, these were fundamental issues the arbitrator was required to decide and in failing to do so committed a reviewable irregularity, warranting set aside the award.[1] However, this is not a case where any purpose would be served in remitting the matter back for a hearing de novo so the court should determine what the arbitrator failed to do.

[40] Mr Nchefu, the Traffic Manager of the municipality testified that there were municipal employees who performed private work, including himself, but it was necessary to apply for permission to do so. He also claimed there was a written policy governing private work which was also set out in the employees’ contracts of employment. He undertook to provide such documents to the arbitrator but never did so by the time the proceedings ended. Van Wyk was unaware of any written policy requiring prior permission to do private work and he had never been told he could not engage in private work. He also mentioned two other employees he knew of who had private businesses. There was also the evidence of Nel that, prior to the amalgamation of Krugersdorp municipality with others to form Mogale City Municipality, he had been given written permission to do private work, and that all employees had been told in 1986 they needed written permission to do private work and the letters granting it was put on their personnel files. Krugersdorp municipality had been incorporated into the applicant municipality. He claimed that the permission he had been given by Krugersdorp municipality was in his personnel file but said his Krugersdorp records appeared to have disappeared when the investigation started. He denied ever seeing a letter prohibiting private work allegedly issued by the applicant municipality or any policy prohibiting it. He denied that Nchefu had ever mentioned that at any parade of the department’s staff. To his knowledge no new policy dealing with private work was developed to replace the one that applied in Krugersdorp, but the permission he had obtained was never cancelled.

[41] Van Wyk initially claimed he did not know it was necessary if he did it in his own time, though he conceded that in 1996 he had acknowledged in another enquiry that he had permission to do private work and later claimed that this was why he felt he had authorisation to do so. That enquiry also pre-dated the amalgamation of the municipalities, so it did not really assist in advancing the applicant’s case that a policy on private work in employee’s own time was in place under the amalgamated municipality of Mogale City.

[42] As things stood on the evidence, there is very limited support for the applicant’s case that there was a clear standing policy of Mogale City muncipality requiring an employee to obtain permission to do private work in their own time. It is noteworthy that despite Nchefu’s insistence that this was spelled out in letters of appointment, contracts of employment and in a written policy, he was unable to support these claims with even a single document even after being given an extended opportunity to do so by the arbitrator. Further, despite evidence of other employees doing private work no supporting evidence was adduced to show that they had received the necessary permission either. In the circumstances, it is difficult to see how the applicant could argue

so emphatically that the evidence could not support a conclusion that there was no policy governing private work outside normal working hours.

At this point, it should also be mentioned that neither of the other two employees whom Van Wyk paid for their services on the Sunday were charged with performing private work on 7 March. No explanation was provided by the applicant for this inconsistency, though it seems the applicant’s attitude was that they could not be blamed for doing so as they were mere pawns who were bound to do the bidding of their superiors even outside normal working hours and it was suggested they should have been paid more for the private work they had done that Sunday. In Van Wyk’s cross-examination, it was suggested that Manong was not charged for doing private work, because Van Wyk and Nel were only charged for doing private work on Monday and not for the previous day, which was the only day Manong worked. Not only was that misleading because they were both charged for doing private work on Sunday but it also highlights that Groenewald, who like Manong was paid by Van Wyk for the work he did on Sunday, was not charged for doing private work without permission either.

[43] Of course, private work during working hours by its very nature is prohibited because it means an employee is not devoting their services to their employer’s interests whilst at work. In the case, the only possible instance of this concerns what transpired on Monday 8 March. Moreover, on that day the only work which might have been construed as private was the erection of the stop sign, the precise location of which was the subject matter of conflicting evidence. The sole witness of the applicant with direct knowledge of where the signs erection was Gobidolo. He confirmed the location was in the spot depicted on Van Wyk’s diagram and that it was on a public road. He was not re-examined on this concession. The explanation for the purchase of the signs was not inherently implausible. There was no evidence to gainsay the fact that the applicant was out of stock of stop signs and did not in the normal course stock the maximum tonnage signs. Van Wyk testified he had brought the stop sign to work with the other signs after collecting them from the store owner.

[44] Even on a generous interpretation of the evidence in favour of the applicant, the probabilities are at best evenly balanced and accordingly the applicant failed to discharge the onus of proving the charges against the two employees and consequently their dismissals were substantively unfair.

[45] I have not dealt with the issue of inconsistent treatment of Nel and Van Wyk vis-à-vis Gobidolo and Groenewald who were not even charged with doing private work, but should mention in passing that had Nel and Van Wyk been guilty of doing unauthorised private work on 7 March, dismissal would have been an inappropriate sanction in the face of a justifiable reason for treating them so drastically differently.

Relief

[46] Apart from setting aside the award and substituting the arbitrator’s findings where necessary, the relief to be awarded to Nel and Van Wyk as a result of the substituted findings needs to be considered.

[47] Van Wyk and Nel had been continuously employed since 1993 and 1983 respectively. Van Wyk was due to retire in February 2013 but it would seem Nel, who was 48 years old at the time of his dismissal, was not due for retirement for some time. Section 193(2) of the Labour Relations Act, 66 of 1995 (‘the LRA’) prescribes reinstatement as the primary remedy for unfair dismissal unless the circumstances surrounding the dismissal would make it intolerable or it would not be reasonably practicable to do so, but no basis has been provided to conclude that either of these two exceptions apply. The fact that Van Wyk was due to retire

is not a bar to his limited reinstatement for the period he would have remained in service.

[48] The applicant has succeeded in the sense that the award must be set aside on the basis of the arbitrator’s fundamental failure to determine issues she was required to decide, the employees’ dismissals are still substantively unfair. Accordingly, an equitable approach to the costs would be that both parties must pay their own costs.

Order

[49] The arbitration award of the second respondent issued on 26 November 2013 under case number JR 3065/12 (‘the award’) is reviewed and set aside, to the extent that her findings are replaced with the findings below.

[50] The second respondent’s findings in the award that Nel and Van Wyk were not guilty of theft is set aside and substituted with a finding that they were not guilty of doing private business without the prior permission of the Department Head or Municipal Manager. Her finding that they were not guilty of the charge of dishonesty remains unchanged.

[51] Paragraph 6 of the award is replaced with the following:

“6 Award

1) The applicants’ dismissals were substantively unfair.

2) Mogale City Local Municipality must reinstate Mr J N B Van Wyk for the period 17 March 2010 up to an including his due date of retirement in February 2013.

3) Mogale City Local Municipality must reinstate Mr J F J Nel with retrospective effect to 17 March 2010.

4) Mogale City Local Municipality must comply with the above reinstatement orders within 15 days of receipt of the Labour Court

judgment reviewing and setting aside the award”

[52] The costs order in paragraph 7 of the award is not replaced.

[53] The parties must bear their own costs in the review application.

_______________________

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT:

Adv HW Sibuyi instructed by Phungo Inc

THIRD RESPONDNT:

C. Higgs for Higgs attorneys

[1] See at Head of the Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) at 59-61, paras [30]-[33]