Public Servants Association of South Africa obo Janse van Rensburg v General Public Service Sectoral Bargaining Council (GPSSBC) and Others (JR 2028/11) [2013] ZALCJHB 205 (29 July 2013)

Of interest to other judges

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA,

IN JOHANNESBURG

JUDGMENT

Case no: JR 2028/11

In the matter between:

PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA obo W A JANSE NAN RENSBURG Applicant and THE GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL (GPSSBC) COMMISSIONER SILAS RAMUSHOWANA DEPARTMENT OF CORRECTIONAL SERVICES MINISTER OF CORRECTIONAL SERVICES First Respondent Second Respondent Third Respondent Fourth respondent

Heard: 26 July 2013

Delivered: 29 July 2013

Summary: (Review – parties making submissions to arbitrator – no evidence of arbitrator’s evaluation of facts – apparent misconstruction of evidence - award set aside).

judgment

LAGRANGE, J

This is an application to review and set aside an arbitration award in which the arbitrator found that the applicant's dismissal was substantively fair. The applicant has also applied for the late filing of the review application which was approximately 2 weeks late.

The condonation application

The explanation for the delay concern limitations in the applicant’s union processes for approving litigation and the remote location of the applicant from the branch official dealing with the matter which complicated the consultation process. I agree with the respondents’ submissions that there are gaps in the explanation, but I, in view of the overall period of delay, do not think the applicant was unduly dilatory in pursuing the matter.

Although the application for review has been formally opposed no answering affidavit has been filed opposing the condonation

application, so there is no reason for the court to believe that the respondent has suffered any prejudice as a result of the reasonably short delay. Considering these factors and in view of the merits of the review application which are more fully set out below the applicant's late filing of the review application is condoned.

The review application

The parties did not present oral evidence but agreed that written argument would be submitted to the arbitrator. According to the applicant, this was because the facts were common cause, he did not deny committing the misconduct in question and only the substantive fairness of his dismissal was in issue. He submitted that the central issue was whether that had been an appropriate sanction in the circumstances or whether it had been too harsh and a lesser penalty should have been imposed.

The applicant was dismissed for contravening the provisions of the Department of Correctional Services Departmental Code And Procedure (Resolution 1 of 2006, clause (dd) by intimidating or threatening a fellow employee and displaying disrespect towards others in the workplace or demonstrating abusive or insolent behaviour by using vulgar words against officials.

The arbitrator did not go into any of the detail of the actual misconduct and his reasoning is encapsulated in paragraphs 19 and 20 of the award as follows:

"19. It was not disputed that the applicant had committed the offence and he was aware of the rule of the company. The applicant

stated that he had a clean disciplinary record. It was argued by the applicant that it was a mistake and the applicant was remorseful at the hearing and plead that sanction was a harsh one. The respondent on the other hand maintain that the dismissal was an appropriate

sanction as per their code. It is trite law that a Company's Disciplinary Code and Procedure are guidelines in terms of what sanction to be imposed on certain offences as it was demonstrated in this case. The respondent had indicated that offences of this nature

could not be tolerated and in similar situations, employees were dismissed.

20. As to what relief would be appropriate the applicant seeks reinstatement into his former position. It was demonstrated that the

trust relationship is irretrievable broken down."

(sic)

In concluding that the trust relationship had broken down it appears that the arbitrator relied on an alleged submission by the

applicant's representative which he recorded at paragraph 14 of the award, namely: “Applicant's representative concluded the case by stating the commission of the offences was not disputed but it was the applicant's first misconduct, no previous warnings, the misconduct that not warrants a dismissal, the trust relationship is irreparable and that he did not inflict or assault anybody." (sic)

No doubt because the parties only made submissions there is no record of their argument. However, the union representative’s

statement that he never made a submission that the trust relationship had irreparably broken down has not been disputed in

the absence of an answering affidavit. Further, if one has regard to the arbitrator's summary of his submissions set out in the paragraph above, it seems improbable that he would have conceded an irreparable breakdown in the relationship in the context of the other submissions he made. Moreover, there is no indication that the employer representative argued that an irreparable breakdown had occurred. Rather, it appears as if the thrust of the employer's representations were that, previous instances of similar misconduct had resulted in dismissal. Again, because those representations were not reduced to writing the court does not have the benefit of knowing what they consisted of.

[9] The transcript of the internal disciplinary enquiry was filed as part of the record of the arbitration. From that, the incident which resulted in the charges can be summarised as follows.

9.1. The incident took place at the relevant personnel office.

9.2. The applicant had received no salary payment in October 2009, apparently as a result of the application of the leave without pay policy.

9.3. Unsurprisingly, the applicant was highly agitated about his lack of salary.

9.4. The applicant had gone to the personnel office to complain and the acting staff support, Ms Masango, was called to speak to him because he was angry.

9.5. He told one staff member that he was going to “make trouble”.

9.6. When he met his union representative he swore and made threatening remarks about what he would do, though this threat was

never addressed to other staff members.

9.7. Ms Masango took him aside and explained that his pay had been docked because he had not reported his absence. Following her

explanation he then said in Afrikaans “Jy ken my nie. Wag hier ek gaan jou wys wie is ek.”

9.8. The applicant then approached his union representative again and started to relate his frustrations to him swearing as he did so. Although he had used vulgar language, Ms Masango was not offended by this as it was not directed at her.

9.9. However, she felt threatened by his original remark and went to report it. She spoke to a Mr Nel who then addressed the applicant. It appears that Mr Nel had asked the applicant if he had threatened Ms Masango. The applicant responded by addressing Ms Masango saying: “Het ek you gedreig en as ek iemand [dreig] dan sal ek hom in die geskig se ek sal hom fokken skiet.”

[10] No evidence was tendered by the employer about how other similar instances of misconduct were dealt with, nor did anyone testify on the trust relationship during the enquiry, so there was no evidence before the arbitrator to draw adverse conclusions on these issues. On the other hand there was evidence that the applicant was a COII level officer with a clean record of 16 years service.

[11] The applicant raised a number of grounds of review, but it is only necessary to address those relating to the main issue which is the appropriateness of the sanction of dismissal. These relate amongst other things to:

11.1. The fact that the applicant was understandably upset at receiving no salary;

11.2. The meaning of his original remark was not threatening and his vulgar language was not directed at the complainant.

11.3. He had long service and a clean record;

11.4. He had made no physical threats or gestures;

11.5. The lack of evidence that corrective measures would not have been appropriate, and

11.6. The absence of any evidence of an irreparable breakdown of trust.

The heart of the arbitrator’s reasoning set out above has a formulaic character and consists more of a statement of conclusions

than a summary of the facts in the matter. On the face of it, it would appear that the arbitrator only had regard to the disciplinary

code in determining the sanction and his misconstrued understanding of what the applicant's representative supposedly said on the question of a breakdown of trust. He clearly did not embark on a wider consideration of mitigating and aggravating factors as he should have. Consequently, the applicant was denied a fair hearing on the substantive fairness of his dismissal for the misconduct in question. Moreover, the failure to consider the evidence that was before him on aggravating and mitigating circumstances meant that his conclusions were not reasonable in relation to the evidence before him. Consequently, the award cannot stand and must be set aside.

At the arbitration, the parties had agreed not to lead further evidence but contented themselves with making submissions. The court did not have the benefit of hearing these submissions and is not in the same position as the arbitrator to evaluate them. In the circumstances, it does not seem appropriate for the court to substitute its own decision for that of the arbitrator in the absence of hearing the benefit of that argument. Accordingly, the appropriate remedy appears to be to remit the matter of the appropriateness of the sanction of dismissal to be determined by another arbitrator.

Order

The applicant’s late filing of the review application is condoned.

The award of the second respondent under case number GPBC 3330/2010 dated 20 June 2011 is reviewed and set aside.

The matter is remitted back to the first respondent, which must set the matter down for a hearing before another arbitrator to determine the substantive fairness of the applicant’s dismissal by the fourth respondent on the record that was placed before the second respondent and after hearing any submissions the parties may wish to present in argument.

No order is made as to costs.

_______________________

R LAGRANGE, J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT: R Carvalheira instructed by PSA

Third and Fourth RESPONDENT: D Mtsweni instructed by The State Attorney