Public Servants Association of South Africa obo Makhale v Sita (Pty) Ltd and Others (JR200/13) [2016] ZALCJHB 562 (29 September 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable/Not reportable

Case no. JR200/13

In the matter between:

THE PUBLIC SERVANTS ASSOCIATION OF

SOUTH AFRICA OBO S C MAKHALE

Applicant

and

SITA (PTY) LTD First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Second Respondent

L RAMABULANA N O

Third Respondent

Heard: 11 February 2016

Delivered: 29 September 2016

MAHOSI AJ

[1] The applicant seeks to review and set aside in terms of section 145 of the Labour Relations Act 66 of 1995 (“LRA”) the arbitration award of the third respondent (“commissioner”) acting under the auspices of the second respondent. The commissioner found that the dismissal of Mr Makhale was fair.

[2] The applicant is the Public Servants Association of South Africa (“PSA”), a union duly registered in terms of the LRA. The PSA represents its member, Mr Makhale (“employee”) in these proceedings. The first respondent is SITA (Pty) Ltd, a juristic person incorporated as a private company in accordance with section 3 of the State Information Technology Agency Act, No. 88 of 1998. The second respondent is the Commission for Conciliation, Mediation and Arbitration (“CCMA”), a dispute resolution body established in terms of the LRA. The third respondent, Mr L Ramabulana is the commissioner whose award is sought to be set aside. The facts leading to the current dispute are common cause and are as follows.

Background facts

[3] The employee commenced working for the first respondent in March 2004 as a contractor before being made permanent in October 2004. The employee was appointed in the information management system department. During or about November 2011, the employee was charged with four counts of misconduct, which read as follows:

‘1) Unpunctuality or Late Reporting for duty

In that

On the following dates whilst employed as Advanced Operations: LAN Networks you reported late for duty without valid reasons or obtaining permission from your line manager:

Ÿ 23, 24 and 25 August 2011; and

Ÿ 5 September 2011.

It is therefore alleged that your conduct constitutes unpunctuality and/or reporting late for duty.

2) Unauthorized Absence

On the following dates whilst employed as Advanced Operations: LAN Networks you took leave without authorisation from your line manager:

Ÿ 18 July 2011;

Ÿ 2 and 3 August 2011; and

Ÿ 16 and 17 August 2011 (Leave submitted only on 18 August)

It is therefore alleged that your conduct constitutes unauthorised absence, which had impacted negatively on the business of SITA.

3) Refusal to capture and submit timecards

During the period 1 April 2011 to date you have refused to complete or capture and submit the timecards on the ERP system (OTL) from 1 April 2010 to date.

It is therefore alleged that your conduct constitutes a refusal to complete or capture and submit timecards as per SITA Conditions of Employment, which had impacted on the business of SITA.

Alternatively

Contravention of the SITA Conditions of Employment

(See facts in 3 above). It is therefore alleged that your conduct constitutes a contravention of SITA Conditions of Employment, which had impacted negatively on the business of SITA.

4) Dereliction of Duty

During the period of 18 July 2011 to 11 September 2011 you wilfully neglected to attend to and finalise calls logged for the Centurion site, which resulted in work being inequitably distributed to your co-workers.

It is therefore alleged that your conduct constitutes dereliction of duty which had negatively impacted on the business of SITA.’

[4] In November 2011, the employee was subjected to a disciplinary hearing where he was found guilty of all four charges but dismissed

on the last two charges. In respect of charges 1 and 2, the chairperson of the disciplinary hearing issued a final written warning valid for 12 months.

[5] Dissatisfied with his dismissal, the employee referred an alleged unfair dismissal dispute to the CCMA for conciliation. The dispute remained unresolved at conciliation and proceeded to arbitration.

[6] After hearing evidence led by both parties during the arbitration proceedings, the commissioner in his analysis found that the employee did not deny that he failed to capture and submit his timesheets for the periods stated by the first respondent in the charge sheet. The commissioner also found that the employee was aggrieved by the fact that he received a two-point score during his performance appraisal that made him ineligible for performance bonuses. It was the commissioner’s view that the employee seems to have escalated his displeasure about his performance appraisal to Human Resource officials, legal representatives and other individuals but failed to escalate it to the CCMA. Although the commissioner sympathised with the employee, he made it clear that the issue of his performance appraisal did not justify the employee’s blatant refusal to capture and submit his timesheets. The commissioner correctly stated that there was very little that he could do with the issue of the employee’s performance appraisal, as that dispute was not before him. The rule relating to the recordal of the timesheet was important for the first respondent because it enabled it to monitor the employee’s work so as to be able to account for his performance and the expenses incurred in relation thereto. The commissioner took into account the fact that the employee had a final written warning for the same offence, which was not challenged. The commissioner then found that there was no justification for the employee’s conduct of denying capturing and submitting his timesheets taking into account the opportunity granted to him to correct his behaviour.

[7] In respect of the charge of dereliction of duties, the commissioner dismissed the employee’s response that he made the calls using other person’s codes because his evidence was not corroborated. The commissioner found that it could not be verified how the employee executed his work because of his failure and/or refusal to submit timesheets. As a result, the commissioner concluded that the employee’s dismissal was appropriate in the circumstances. It is this finding that the applicant seeks to set aside on review.

Grounds for review

[8] It was the first respondent’s submission that the applicant failed to clearly set out the grounds of reviewing the commissioner’s award in its founding affidavit, supplementary affidavit, heads of argument and supplementary heads of argument. I agree with the first respondent. The applicant did not set out any factual basis for its grounds of review, but it simply set them out in a form of a conclusion.

[9] The applicant’s first ground of review is that although the employee’s procedural fairness was not challenged at the arbitration proceeding, the commissioner misdirected himself in concluding that the procedural fairness was unchallenged as the record shows that the employee was not given written reasons for his dismissal.

[10] The second ground of review is that the commissioner failed to appreciate the fact that at the disciplinary hearing, the employee was, in respect of charge 3 and 4, found guilty of gross insubordination, a charge that had not been levelled against him. The applicant’s argument is that the charge of gross negligence would have required the employee to lead evidence regarding receipt of reasonable instruction to capture and submit timecards and to attend to and finalise calls. This ground was supplemented in the supplementary heads of argument by stating that there was no evidence of a clear and unequivocal instruction to the employee to forget about his grievance and submit the timecard at the end of the week.

[11] The applicant further summarised the evidence led at the arbitration proceedings in respect of charges 3 and 4 and concluded that the commissioner arrived at a decision that no reasonable decision-maker, based on the evidence before him, could have made. Before considering these arguments, I deem it fit to set out the applicable law for reviews.

Applicable law

[12] The jurisprudence for review is well established and has been expressed in numerous cases of this Court, the Labour Appeal Court and the Constitutional Court. Review applications are regulated by section 145 of the LRA, which provides that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award. Section 145(2) provides that:

‘(2) a defected referred to in (1), means-

(a) that the commissioner-

(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;

(ii) committed gross irregularities in the conduct of the arbitration proceedings; or

(iii) exceeded the commissioner's powers; or

(b) that an award has been improperly obtained.’

[13] The test for review which has been authoritatively stated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1] was reiterated in Herholdt v Nedbank Ltd and Congress of South African Trade Unions[2] as follows:

‘[25] In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls in one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings amount to gross irregularity is contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable

if it is one that is reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular fact, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome and unreasonable.’[3]

[14] The test is therefore whether the decision reached by the Commissioner is one that a reasonable decision-maker could reach.

Analysis

[15] It is trite that an application brought in terms of section 145 of the LRA is not an appeal. There is a fundamental difference between an appeal and a review and this has been confirmed in numerous

decisions of various Courts. When reviewing an arbitration award, it is not the function of the Court to decide whether the commissioner

acted correctly but whether he or she committed misconduct or gross irregularity or exceeded his or her powers within the meaning of section 145 of the LRA. The onus to establish that the arbitration award is reviewable rests on the shoulders of the applicant. Rule 7A of the rules of this Court requires the applicant who is desiring to review a decision of an arbitrator to deliver a notice of motion supported by an affidavit setting out the factual and legal grounds upon which the applicant relies to have the decision or proceedings corrected or set aside.

[16] The applicant’s first ground of review is not a ground of review but simply states that although the employee’s

procedural fairness was not challenged at the arbitration proceedings the record shows that the employee was not given written reasons for his dismissal. What the record shows is that Mr Smith, the PSA official, stated at the beginning of the arbitration proceedings that the procedural fairness of the employee’s dismissal was not in dispute.[4] This resulted in the commissioner correctly not making any finding on whether the dismissal was procedurally fair or not. There is therefore no basis for the applicant to raise the issue of procedural fairness only at the review proceedings.

[17] The second ground of review which relates to the commissioner’s failure to appreciate the fact that at the disciplinary hearing, the employee was, in respect of charges 3 and 4, found guilty of gross insubordination which had not been levelled against him: An arbitration is a process de novo. The LRA requires the commissioner to determine whether a dismissal was fair. For the commissioner to approach the dismissal dispute impartially, he is required to take into account the totality of circumstances. In this case, the commissioner took into account the unchallenged evidence of the existence of the rule that required the employee to complete and submit his timesheets as well as the rule that requires him to attend to and finalise calls logged. The commissioner further took into account the importance of the rule to complete the timesheet. This is evident from his analysis of the submissions and arguments where he stated as follows:

‘30. It is quite evident that applicant’s job conditions require him to complete and submit time sheets in order for his employer to track on his work into and to be able to account to work claimed and expenses incurred.

31. Applicant does not deny that he did not capture and submit time sheets for the period stated by his employer. In his defence he reasons it would not have had any effect due to a performance appraisal dispute that he had with the Company. During the arbitration I continuously reined him that the two are completely distinct from each other as the other regulates and reports his work attendance and assist the company to justify his employment and his earning.’

[18] Furthermore, the commissioner took into account the employee’s previous record that was not challenged and rejected the employee’s submission that his failure to submit timesheets would not have had any effect because of a performance appraisal dispute he had with the first respondent. The commissioner concluded from the evidence that the employee bluntly refused, over a period of time, to abide by the conditions of his employment, refused assistance and even ignored the threat of escalating his matter to the first respondent’s executive committee. As a result, the commissioner found nothing that could justify the employee’s action as he was granted more than reasonable opportunity to correct his behaviour. The applicant’s argument that there was no evidence of a clear and unequivocal instruction to the employee to submit timesheets does not hold any water.

[19] It was the applicant’s argument that there was insufficient evidence to conclude that the trust relationship had broken down irretrievably. The applicant acknowledged that there was reference by the first respondent’s witness, Mr Motloung, to the “relationship deteriorating, tension, negative influence and rebellious behaviour” but it was of the view that such testimony was insufficient as the employee’s supervisor, Mr Lloyd did not testify. I agree with the first respondent that it is irrelevant that Mr Lloyd did not testify at the arbitration proceedings. Mr Motloung was the first respondent’s technology manager and he testified that the relationship between him and the employee as well as with other employees had already reached a point where they could not work together anymore. This is evident from the record where he testified as follows:

‘MR MOTLOUNG: Through the process and also looking at the charges, the relationship for me, what I have recommended as part of my closing statement in the disciplinary hearing was that should Mr Makhale have been in the employ of SETA I would really request him to be moved out of my department as (inaudible) the relationship between me and him and also with other teams had already reached a state where (we) cannot work together any more.’[5]

[20] The applicant took issue with the fact that the commissioner made no reference to the it’s argument that the first respondent’s refusal to pay the employee’s ex-gratia bonus was a “punishment” for failure to submit timesheets. It is apparent from the record and the commissioner’s analysis of evidence that the employee had issues with his performance appraisal as the performance score he was awarded did not make him eligible for various increases including performance bonus. There was no evidence before the commissioner that the employee was disciplined twice or that the non-payment of the bonus was a penalty for the misconduct for which the applicant was charged. It follows that the question of double jeopardy does not arise in this case.

[21] Having applied his mind to the facts and the merits of the case before him, the commissioner was not persuaded by the applicant’s arguments and he came to no other conclusion other than that the employee’s dismissal was fair and appropriate. It is my view that the commissioner dealt exhaustively with the evidence before him and considered all the factors before coming to the conclusion that the employees’ dismissal was fair. Taking into consideration the depth of his treatment with the evidence, it cannot be said that he misconceived the nature of the enquiry. In the premise, there is no basis for this Court to interfere with his decision.

[22] With regard to costs, I am of the opinion that the requirements of law and fairness dictate that there should be no order as to costs.

[23] I therefore make the following order

a) The application is dismissed.

b) There is no order as to costs.

_____________

Mahosi AJ

APPEARANCES:

FOR THE APPLICANT: Adv. Francois van der Merwe, instructed by Martin Wier-Smith Inc. Attorneys

FOR THE FIRST RESPONDENT: Adv. Fumani Baloyi, instructed by Raphela Inc. Attorneys

[1] (2007) 28 ILJ 2405 (CC).

[2] 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (SCA).

[3] At para 25.

[4] Page 336 of the record.

[5] Page 353 of the record.