Statistics South Africa v General Public Service Sectoral Bargaining Council and Others (JR119/2010) [2014] ZALCJHB 327 (28 August 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

case no: JR 119/2010

In the matter between:

STATISTICS SOUTH AFRICA

Applicant

and

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL

First Respondent

NGAKO, PM; NO

Second Respondent

NKUNA, TN

Third Respondent

NEHAWU

Fourth Respondent

Heard: 5 June 2012

Delivered: 28 August 2014

Summary: Application for an Order to review and set aside an Arbitration Award ruling the dismissal of the Third Respondent procedurally and substantively unfair; The yardstick against which awards are to be adjudicated on review is not that which the Court would have found, but only reasonableness

HALGRYN AJ

Nature of application

[1] This is an application for an Order reviewing and setting aside the Award by the Second Respondent, (“the Arbitrator”), made in the First Respondent, (“the Bargaining Council”), under case reference number PSGA 1084-07/08, dated the 3rd of December 2009, (“the Award”).

[2] In the Award, the Arbitrator found that the dismissal of the Fourth Respondent, (“the employee”), by the Applicant herein (“the employer”), was procedurally and substantively unfair. The Arbitrator also ruled that the employer should pay to the employee compensation in an amount of R369 000-00 calculated on the basis of twelve months compensation and that the employer should reinstate the employee on the same terms and conditions which existed at the time of his dismissal.

The test on review

[3] The test on reviews in this Court is by now trite; the Constitutional Court having finally ruled thereon, i.e. “Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”[1]

[4] It is not my place to restate this lucid test; but a few observations may well serve to put in plain words what this test means and what it does not mean - in the context of what I am about to embark upon hereunder. I do this due to the fact that these Courts remain inundated with protracted review applications wherein it is contended by applicants that the arbitrator erred by not making the finding they advocated for – whilst ignoring whether the finding which was actually made, (taking into account the evidence which served before the arbitrator), falls within a range/band of findings which any reasonable arbitrator could have made.

[5] This test has now irreversibly taken reviews in this Court beyond the ambit of appeals; welcomingly allowing no more room for applicants to obfuscate between appeals and reviews.

[6] The significance of this cannot be overstated. It means that even if an applicant manages to convince a Court on review that the Court would have come to a different or even a more appropriate finding, the arbitrator’s findings may not be reviewed and set aside unless the Court is convinced that that the actual finding which was made and complained of, is not one which a reasonable arbitrator could have reached.

[7] Otherwise put; a Court may not review and set aside an Award, even if the Court is convinced that it would have come to a different finding (had it been the decision-maker), unless it can be said that the findings therein are so unreasonable that no reasonable decision-maker could have made them.

[8] In the context of what I am about to embark upon, i.e. an analysis of the evidence relating to five charges of misconduct, the aforesaid test requires of me not to lose sight of the arbitrator’s reasoning and findings - whilst I am doing so - and not to compare the findings I would have made with those made by the Arbitrator after my analysis; and to adjudicate the award by the yardstick of what I would have done.

[9] The benchmark - throughout - is reasonableness; and not if I (or the employer) feel the Arbitrator got it wrong and would have found differently.

Substantive unfairness

[10] There was no attack on the finding by the Arbitrator that the employee’s dismissal was procedurally unfair[2] and I proceed to deal with the merits relating to the substantive fairness of the dismissal forthwith. The employee, a Team Leader in the employ of the employer at the time of his dismissal, was subjected to a disciplinary hearing at which he was charged with and found guilty of some five[3] charges of misconduct. I proceed to deal with each charge, the most pertinent evidence relating to it,[4] the Arbitrator’s findings in respect thereof and the grounds of review levelled at the findings.[5] I mention at the outset that the Arbitrator did not particularly mince his words in his Award, but in his scarcity of words I read a distinct impatience with the employer and the way it conducted its case; an impatience which I appreciate after having perused the over-lengthy transcript of the arbitration and the prolix papers filed herein; which reads with difficulty. If one bears in mind the way the employer simply brushed the employee’s repeated requests for obviously relevant documentation aside and how the employer continuously failed to rebut the employee’s version, it is understandable why the Arbitrator ultimately seemed to have held the view in his curt award, that the employer had only itself to blame.

Charge 6

[11] Charge 6 reads as follows:- “You are hereby charged with misconduct for negligence and non-compliance with Stats SA procurement procedures in that you prejudiced other registered suppliers by acquiring quotes from a service provider, namely Sebenzani Trading, in respect goods and services which they are not registered for in the Stats SA database.”

[12] The charge is simply that the employee made use of the services of Sebenzani Trading whilst they were not registered on the employer’s data base for printing services. The employee firmly stood his ground during cross-examination and insisted that the employer’s procurement policy does not exclude the use of companies which are not on the registered list. Mr Tsiri countered this merely by stating that preference should be given to those on the list.

[13] Significantly Mr Tsiri also did not deny the employee’s version when he stated, that when he used Sebenzani Trading, it was not the first time the employer had used their services and directly accused the employer of relying on selective documentation in support of this charge. He went so far as to challenge the employer to adjourn, to allow the employer to produce all the batches of relevant documentation; a challenge which Mr Tsiri ignored.

[14] The employee also stated that he did approach the companies on the data bases firstly but that “...if they keep on disappointing you, time is not waiting for you.” This too, was not denied.

[15] The employee convincingly went further and queried why he was charged, comparing his “one” use of a company not registered for the purpose he used them, against the “fifty“ other companies which he used which were so registered; compared further with the “thousands” of companies used by the employer’s employees which were not registered. He repeatedly accused the employer of not producing the relevant documentation which he had requested, which would show this. Mr Tsiri responded only by stating “Okay it is fine, we will put a question mark on that, we will maybe arrange to get the document that you are talking about...so that you can give us proof of companies that were approached before you decided to go this one.”

[16] The employee also denied that the registered suppliers were prejudiced, stating that they had themselves to blame for not reacting. This was also not refuted by Mr Tsiri. The simple logic of the employee’s statement in this respect could not be denied by the employer. That is obvious.

[17] In short, the Arbitrator correctly found that that the employer’s procurement policies were generally not complied with and that employees often used suppliers which were not on the data base. These findings obviously impact on the adjudication of the other charges as well.

[18] The findings by the Arbitrator in respect of charge 6 so obviously fall within the range of decisions which a reasonable arbitrator

could make, it warrants no further comment. It is significant to add that the employer’s conduct, by not responding to the

employee’s repeated challenges to produce the requested and obviously relevant documentation, does not serve to assist the

employer at all and this too, impact on the adjudication of the other charges.

Charge 3

[19] Charge 3 reads as follows:- “You are hereby charged with misconduct for performing an act that is to the prejudice of the administration, discipline and efficiency of Statistics South Africa in that you approved procurement of information Technology IT equipment from service providers without acquiring Information Technology Committee (ITC) approval.”

[20] After much was unnecessarily said and done (in a manner which was so confusing that the Arbitrator had to be reminded which charge he was dealing with) in the protracted arbitration on this charge, it turns out that there was no merit in it at all. The procurement which the employee and his fellow Finance Control Committee approved was the procurement of service mounting fixed

installation which did not even require Information Technology Committee approval. It was the user who had to obtain approval and

who was incidentally not dismissed for not following the alleged prescribed procedure. The Arbitrator said little in respect of this charge as little was required to be said. His findings in respect of this charge are undoubtedly reasonable and in fact quite correct.

Charge 5

[21] Charge 5 reads as follows:- “You are hereby charged with misconduct for failing to comply with clauses C.4.5 and C.4.6 of the Public Service Code of Conduct in that you signed invoices and approved procurement of furniture and installation of demountable screens from a service provider, namely Mashoko Trading, with whom you have a personal relationship and did not declare and recuse yourself.”

[22] The employer initially and clumsily set out to show that the employee had in fact approved this procurement. The employee again stood his ground and insisted that he had not; which led to Mr Tsiri changing his tack to one of the employee having involved himself in the decision making process (as opposed to actually approving it) and which may have resulted in improper gain for the employee. The fact that another employee was still to approve the procurement is a factor which in itself militates against the notion that the employee is guilty on this charge.

[23] Mr Tsiri attempted to show that a relationship existed between Mr Mashoko and the employee by producing cell phone records which revealed a number of conversations between them. A number of inferences can be made from the fact that they had spoken to each other on these occasions and the only inescapable one is not necessarily one of impropriety.

[24] The Arbitrator correctly found that the employee and Mr Mashoko did not come from the same area,[6] which the employer was unable to refute.

[25] The Arbitrator dealt as follows with the only troubling aspect of this charge, i.e. that the supplier somehow used the same postal address as the employee. According to the Arbitrator nothing came of it as the supplier only started to use this postal address after the employee had been suspended. Even though the fact that the employee and the supplier shared the same postal address is certainly a worrying factor, I am required to adjudicate whether the Arbitrator’s findings in this respect were unreasonable and not if I would have found otherwise.

[26] The Arbitrator found that the employee would have been obliged to disclose the fact that he shared the same postal address with a supplier, (which shows that he applied his mind to this issue), but that he was suspended before he could do so and that the employer in the premises did not suffer any prejudice.

[27] It certainly is a worrying aspect for me that this supplier (eventually by all accounts) got to know the employee so well that they actually shared a postal address, but I cannot find that the Arbitrator acted unreasonably by not attaching more weight to it or failing to find it equally troubling, simply because the evidence at the arbitration does not reveal any shared postal address before the employee’s suspension. There is simply not sufficient evidence of an inappropriate personal relationship between them, which can compel me to find that the Arbitrator acted unreasonably by finding the employee not guilty of this charge.

Charge 2

[28] Charge 2 reads as follows: “You are hereby charged with misconduct for performing an act that is to the prejudice of the administration, discipline and efficiency of Statistics South Africa in that you aided and/or caused specific service providers namely Lebone Litho Printers, Sebenzani Trading, Morula Offset and JCS Lebone Primers to be favoured in getting business from Statistics South Africa from 2004 up to 2005.”

[30] As is the case with the other charges, it is difficult to glean from the evidence precisely what the complaint comprises of. It appears that it lies, inter alia, in the fact that, Lebone received two orders within five days of each other, whilst the other registered suppliers were ignored. Even without any version by the employee it is difficult to conceive how this on its own can suffice for a finding of guilty in the absence of any evidence that the employer’s procurement policies expressly prohibit this and that these policies were consistently enforced. As I have already found, the opposite was the case.

[31] But the employee did deal with it and contended that the order was urgent due to training that was underway. He challenged Mr Tsiri to check if this was so and Mr Tsiri accepted it without further ado and even confirmed that there was a red sticker attached which proved the urgency. But - so Mr Tsiri contended - whilst this may so in respect of Lebone, it was not so in respect of Sebenzani, where there was no such red sticker. The employee was swift to correct Mr Tsiri and confronted him with the fact that the employer had failed to produce the request memo and could therefore not state if the request was urgent or not. Mr Tsiri left it that.

[32] Mr Tsiri then proceeded to question the employee as to why he would obtain two quotations from the same supplier on the same day as opposed to “...hitting the button for the service and it would throw up three companies.”

[33] Even if this were so – one is tempted is ask “So what?” Bearing in mind that if I am unable to understand where the mischief in this lies; then the employer has only itself to blame. I am supposed to understand the nature of the complaint clearly from the evidence which was led. If I somehow missed this evidence, (which I doubt), an acceptable explanation was provided.

[34] The employee successfully dealt with it. He repeated for the umpteenth time, (as he had done over and over during the arbitration), that he was prejudiced due the employer’s failure to provide all the documentation he had requested. He complained bitterly about the fact that he could hardly be expected to meaningfully deal with questions about orders which he processed some “six years ago” without this documentation. I do not find his complaints at all to be frivolous or made to delay matters. In fact, I hold that the view that he was quite within his rights and that he was subjected to the nigh impossible, i.e. being forced to manifest recall capabilities akin to that of an elaborate computer. He pointed out at this specific juncture that the request memo would contain all the reasons why the orders were directed at these specific suppliers which would include reasons for urgency. The absence of, inter alia, this memo makes for a valid complaint in my book. But more revealing is the fact that the employee’s complaints were water off a duck’s back to this employer. Not once was the employee confronted with denials of the relevancy of what he had requested. The employee repeatedly stated that what he did was correct, that no policy or procedure was “broken”, that there was nothing wrong in what he did and in fact, “Everything was done to perfection.” A perusal of the employee’s evidence – especially during cross-examination – reveals very clearly the evidence of a person absolutely confident that he had done nothing wrong and that he was wronged by a process designed to single him out.

[35] The Arbitrator’s reasoning in respect of his finding on this charge is as curt as his reasoning on the others. I do not fault him for this. He seems to be of the view that it is actually inconceivable that the employer even persisted with this charge, given the overwhelming uncontested evidence that general non-compliance with the employer’s procurement policies existed. This approach by the Arbitrator is not only reasonable, but consistent with what I would have expected of him.

[36] It must be borne in mind that this was not only a simple case of an employee objecting to being disciplined whilst others were not. It was a case where the employee attacked the very existence of the rules which he was accused of having broken by stating repeatedly that these rules were not enforced by the employer and that general non-compliance was the order of the day. This was also a case where the employee repeatedly challenged the employer that if it would produce the documentation he had requested, he would be able to show just that. Fairly late in the day, the Arbitrator - too - made some telling remarks about the failure to discover fully. I also cannot fault the Arbitrator for not compelling the employer to produce the requested documentation. Arbitrators are not empowered to run employer’s cases for them. The employer had itself to blame for this failure and the impression I got from a perusal of the transcript was that the employer was being allowed enough rope to eventually hang itself.

[37] As I have stated earlier on, the employee’s repeated requests for documentation, were water off a duck’s back and the resultant findings in the employee’s favour were thus inevitable. The Arbitrator’s findings in respect of charge 2 were clearly reasonable.

Charge 1

[38] Charge 1 reads as follows:- “You are hereby charged with misconduct for performing and act that is to the prejudice of the administration, discipline and efficiency of Statistics South Africa for abusing your position an (sic) obtaining quotes in a manner that compromised Stats SA internal procurement procedures.”

[39] As I understand it, the complaint lies in the fact that the employee procured orders from a number of companies, which he knew were owned by the same person. I was unable to find evidence which was led as to precisely what constituted the mischief in this but I am prepared to accept that it lies therein that a single owner would have an unfair advantage over other suppliers through his ownership of a multitude of companies registered on the employer’s date base.

[40] But what I could not find is precisely why the employee was charged for requesting quotes from these companies when they all appeared to be on the data base. If I am correct about this, the real wrong would lie in the fact that they ought not to be on the data base - which is not the charge levelled at the employee at all. But if I am wrong about this, the employer had to show that the employee knew that these suppliers were owned by one owner and that he requested quotes from them with the view to benefit their mutual owner.

[41] The Arbitrator found that the employer did not prove that the employee knew that these suppliers all had one owner. The employer sought to rely on telephone conversations which the employee had with this owner after his suspension, which the employee admitted, although he could not remember the reason for the conversations. But he added that he also had various telephone conversations with other suppliers after his suspension. Bearing in mind that the employee was not charged with breaching suspension conditions, I cannot fault the Arbitrator’s findings that this does not suffice to show that the employee knew that these suppliers were all owned by one person. I actually hold the view that the Arbitrator could not find otherwise and his findings in this respect were thus also reasonable.

[42] Much was said and done about how I should approach the Arbitrator’s stance on the production of the employee’s cell phone records. I fail to understand why this was such an issue. The Arbitrator found that the accuracy of the cell phone records which were produced were attacked by the employee as unreliable – which he was quite within his rights to do; and again the employer failed to adduce better evidence despite yet another challenge. This approach is not only reasonable but correct. I go further by finding that the admissibility of the cell phone records does not assist the employer. Even if the cell phone records were accepted for it purported to be, in itself it does not prove what the employer had to prove, i.e. that the employee knew that a number of suppliers were owned by one owner. Proof of a number cell phone conversations do not prove this at all and again –

the only inescapable inference is not one of impropriety. As was the case with all the charges, the issues at stake were extremely serious and in point of fact may well have attracted criminal sanction. Allegations of favouritism in this context amount to accusations of fraud, which the employer was seemingly prepared to make with alacrity, but simply lacked the capacity to properly prove on a uncomplicated balance of probabilities at the arbitration.

Conclusion

[43] Whilst it is so that the employer’s representatives took care not to misstate the test on review in terms, this is precisely what they have done. Every single ground of review – although predicated on the stated ground that the findings are not those which a reasonable arbitrator could have made – actually amounted to no more than accusations that the Arbitrator erred and that I should come to a different conclusions on the facts. The employer failed to convince me on any of the charges that the findings of not guilty thereon, do not fall within the range of reasonable findings which the Arbitrator could have made.

[44] In the premises the application has to fail and I make the following Order herein:-

1. The application is dismissed with costs.

_____________

HALGRYN AJ

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant:

Mr PM Mosebo

Per: Maserumule Inc Attorneys

For the Respondents:

Advocate JJ Mphahlani

Instructed by:

Baloyi Attorneys

[1] SIDUMO & OTHERS V RUSTENBERG PLATINUM MINES LTD AND OTHERS; (2007) 12 BLLR 1097 (CC); at [110]. See also FIDELITY CASH MANAGMENT SERVICE V CCMA & OTHERS (2008) 3 BLLR 197; at [97].

[2] In short, this finding involves the fact that the employer utilised an external Labour Consultant to represent it at the disciplinary

hearing herein, which is not provided by PSCBC Resolution 1 of 2003 and which in fact requires that the employer should appoint an employee as its representative. The finding by the Arbitrator that the said Resolution forms part of the employee’s conditions of employment, thus rendering the deviation procedurally unfair, cannot, in my view, be faulted on review in any event.

[3] There appears to be no Charge 4.

[4] I do not think that a summary of all the evidence is necessary. The cross-examination of the employee and resultant responses provide a helpful comparison between the parties’ various cases

[5] I do not deal with the charges in their numerical order but rather in the order with which they were dealt with by the employer’s

representative during the employee’s cross-examination. I do this, inter alia, because the way the employer’s representative, (a Mr Tsiri), dealt with (and often did not deal with) and reacted to (and often did not react to) the employee’s responses goes a long way to assist in the adjudication of whether the Arbitrator’s findings fall within the range of reasonable findings which a reasonable arbitrator could have made.

[6] The Award contains an obvious error here, but I assume this is what the Arbitrator meant.