Tshikomba v South African Local Government Bargaining Council and Others (JR1186/24) [2024] ZALCJHB 412 (23 October 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1186/23

In the matter between:

COLLEEN TSHIKOMBO Applicant and SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL First Respondent LINDOKUHLE DLAMINI, N.O Second Respondent CITY OF TSHWANE METROPOLITAN MUNICIPALITY Third Respondent

Heard: 16 October 2024

Delivered: 23 October 2024

JUDGMENT

MUSIKER, AJ

Introduction

[1] This is a review application, in terms of which, the Applicant seeks to review and set aside the arbitration award of the Second Respondent (Commissioner) dated 31 May 2023.

[2] The review application is opposed by the Third Respondent.

Background

[3] The Applicant was dismissed for the following acts of alleged misconduct:

‘a. Charge 1

you have contravened clause 1.2.4 Code of Conduct which reads as follows: “employees are expected to obey all lawful and reasonable instructions given by a person having the authority to do so” in that on or about the 06 of September 2019 you have intentionally failed to comply with the lawful instruction from your supervisor Mr. Ndivhuwo Litole to report duty at Centurion.

b. Charge 2

you have contravened clause 1.2.4 Code of Conduct which reads as follows: “employees are expected to obey all lawful and reasonable instructions given by person having the authority to do so” in that on or about the 09 December 2019 you have intentionally failed to comply with the lawful instruction from your supervisor and Mr. Ndivhuwo Lithole to report duty at Centurion.

c. Charge 3

you have contravened clause 1.2.4 Code of Conduct which reads as follows: “employees are expected to obey all lawful and reasonable instructions given by person having the authority to do so” in that on or about 11 September 2019 you have intentionally failed to comply with the lawful instruction from your supervisor and Mr. Ndivhuwo Lithole to report duty at Centurion.

d. Charge 8

you have contravened clause 1.2.9 of Code of Conduct which reads as follows: “employees must refrain from any rude, abusive, insolent, provocative, intimidatory or aggressive behaviour to a fellow employee or member of the public” in that on or about the 20 November 2019 you have intentionally intimidated your supervisor Mr. Ndivhuwo Lithole when you held him hostage in his office at city of Tshwane Centurion.’

The grounds for review

[4] Despite having raised ten grounds for review in its founding papers and then providing written heads of argument wherein the Applicant persisted with five grounds for review, the Applicant during its oral submissions before this Court abandoned all but two of its grounds for review. These grounds are as follows:

1. The Commissioner committed an irregularity in finding that the application of discipline was consistent and that the 13 other employees in respective charge eight were not charged or dismissed for the same misconduct; and

2. The Applicant was not given the opportunity to address the appropriateness of this sanction of dismissal.

The review application

[5] The Third Respondent took issue with the fact that the Applicant had failed to provide detail and clarity regarding the allegations of the alleged misdirection of the Commissioner. The allegations raised were bald allegations, absent of clarity and substance. In support of this allegation, the Third Respondent presented the unreported judgment of Mtyala v The Motor Industry Bargaining Council and 2 others[1], penned by Prinsloo, J which inter alia reads:

‘in short: it is critical that the factual foundation of the review application, including the relevant evidence or reference thereto, be canvassed in the founding or supplementary affidavit and that it be linked to the applicant’s grounds for review, supported by the evidence adduced at the arbitration proceedings.’

[6] While it is true that the effort placed in the pleadings was a half-hearted attempt at setting aside the review application and the grounds for review are bald, catch-all allegations, I have, in the interests of fairness considered the two grounds for review as persisted by the Applicant.

The Commissioner committed an irregularity in finding that the application of discipline was consistent and that the 13 other employees in respective charge eight were not charged or dismissed for the same misconduct

[7] During the arbitration proceedings, the Applicant attempts to draw upon the parity principle, however, on the Applicant’s own fruition, she abandoned the line of questioning during the arbitration proceedings as evidenced by the transcribed record:

‘APPLICANT REPRESENTATIVE: on charge, the charge number 8 you said another guy, is that guy one of your employees?

MR. NDIVHUWO LITHOLE: (inaudible).

APPLICANT REPRESENTATIVE: you heard about as you rightfully indicated 14 people, were all charged?

MR. NDIVHUWO LITHOLE: no charged (inaudible) my direct … (intervened).

APPLICANT REPRESENTATIVE: why were they not charged?

RESPONDENT REPRESENTATIVE: Commissioner again, the same…. (intervened)

APPLICANT REPRESENTATIVE: that’s why I said I wanted to withdraw.

COMMISSIONER: its fine, withdraw, there is no point in arguing, its withdrawn. Once the question or the statement is withdrawn its withdrawn, no point continuing. Any questions?

APPLICANT REPRESENTATIVE: none.’

[8] Despite the above, the Applicant seeks this Court to intervene in an award where the evidence was not presented to the Commissioner, citing that it is the duty of the Commissioner to raise consistency as a ground for the fairness of the dismissal, mero motu.

[9] During the arbitration proceedings, the Applicant was afforded the opportunity to be represented by a G. Moloane, who represented himself as being an attorney. Through the Applicant’s representations, consistency was not placed in dispute.

[10] Even if I were to find that discipline, in respect of charge eight, was applied inconsistently on the common cause facts alone, charges one through three constitute dismissible offences.

The Applicant was not given the opportunity to address the appropriateness of this sanction of dismissal.

[11] In adducing evidence, during the arbitration process, the Commissioner was made to be aware of the personal circumstances of the Applicant. The Commissioner may not have stated that he considered the circumstances regarding the employee’s position and length of tenure when making the adjudication, however, this evidence was certainly before the Commissioner.

[12] Should the Applicant have been desirous in placing any further personal circumstances before the Commissioner, it was incumbent upon her, and through her legal representative, to do so.

[13] The Commissioner did consider the appropriateness of sanction in the award, which reads as follows:

‘these are serious offences and the more serious they are the more likely they are the appropriate sanction under the circumstances is that of dismissal the important thing to remember is whether under the circumstances the sanction is an appropriate one… the conduct of the applicant in this matter cannot be said to be that of a person who aspires a confidence of trust. Her actions harmed the relationship of trust that ought to exist between the employer and the employee.’

[14] In certain instances, the offence/s are so gross that dismissal is required and sanction.

The test for review

[15] The Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[2] held:

‘To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.’

[16] It is not the function of this Court to substitute a rational and competent finding made by a commissioner with one of its own, especially in an instance where there is no challenge as to the reasonableness of the arbitration award rendered.

[17] In Bestel v Astral Operations Ltd and others[3] the Labour Appeal Court (LAC) considered the limited scope possessed by this Court to review an arbitration award and accepted that an arbitrator’s finding will be unreasonable if the finding is unsupported by any evidence, if it is based on speculation by the arbitrator, if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted. The LAC held that:

‘…the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal.’[4]

Conclusion

[18] Considering the evidence that was placed before the Commissioner: the abandoning of the points regarding the consistent application of discipline and the fact that the Commissioner did indeed expressly consider the appropriateness of the sanction, I do not believe that any other reasonable decision maker would have arrived at a finding substantially different to that of the Commissioner. Accordingly, the review application stands to fail.

[19] In the premises, the following order is made:

Order

1. The review application is dismissed.

2. There is no order as to costs.

N.S. Musiker

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Richard Sithi Instructed by: Richard Sithi Attorneys For the Respondent: Lebogang Sebako Instructed by: Leepile Attorneys Incorporated

[1] (JR 2426/2021) [2023] ZALCJHB 352 (8 March 2023) at para 10.

[2] [2007] ZACC 22; [2007] 12 BLLR 1097 (CC) at para

[3] [2010] ZALAC 19; [2011] 2 BLLR 129 (LAC).

[4] Ibid at para 18.