PSES 545-12/13 KZN
PSES 545-12/13 KZN
Award Date:
12 April 2013
Case Number: PSES 545-12/13 KZN
Province: KwaZulu-Natal
Applicant: Hotellica Obo Nkosi TW
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Newcastle
Award Date: 12 April 2013
Arbitrator: AS Dorasamy
IN THE ARBITRATION CASE NO.: PSES 545-12/13 KZN
IN THE MATTER BETWEEN :-
HOTELLICA OBO NKOSI T W APPLICANT
AND
DEPARTMENT OF EDUCATION-KZN RESPONDENT
________________________________________________________________
DATE : 02 APRIL 2013
TIME : 10H00
VENUE : D O E -NEWCASTLE
NEWCASTLE
ARBITRATOR : A S DORASAMY
ATTENDANCE/S : APPLICANT
MR L MAZIBUKO
APPLICANT
RESPONDENT
MR G MNCWANGO
ARBITRATOR'S AWARD
The arbitration proceedings commenced at 10h00 on the 2 April 2013.
ARBITRATOR'S SUMMARY
HEARING AND REPRESENTATION
2. Mr L Mazibuko of HOTELLICA represented the applicant and Mr G Mncwango represented the respondent.
SPECIAL NOTE
After discussing the matter the parties agreed as follows:
No oral evidence will be tendered.
The parties agreed to submit Heads of Arguments on or before the 9 April 2013 to address the following issues:
2.1. The right of the union HOTELICCA to represent the applicant:
2.2 The applicant to advance arguments in respect of the challenge on the
MEC’s decision to change the decision of dismissal and the powers of the
arbitrator to interfere with such a decision.
2.3. The applicant’s grounds for launching the challenge of unfair sanction
and the reasons for overturning the decision.
BACKGROUND
The applicant was disciplined for misconduct and was sanctioned with dismissal. He appealed the sanction and the MEC commuted the sanction to three months suspension without pay and a final written warning.
The applicant seeks a reduction of the sanction whilst the respondent prays for the dismissal of the matter.
APPLICANT’S (EMPLOYEE) HEADS OF ARGUMENTS
3.1.
No ruling was made although the matter was scheduled to arbitrate on the 2nd of April 2013.
3.2.
No point in limine was raised by the respondent in our presence (Applicant and Applicant Representative)
3.3.
Code of conduct for arbitrators and conciliators (ELRC) page F-23 (4) (1-8).
3.4
Both parties were told to submit Heads of Arguments and Applicant and its representative were to explain why?
3.4.1.
Do they feel they have right represent the applicant while they are not party to the council.
3.4.2.
Power to change MEC’s decision.
3.4.3.
Grounds challenged based on and why it should be changed.
4. Applicants Heads of Argument:
Representation-1
4.1. At the conciliation the issue of representation was dealt with and no
formal point in limine was made even now.
4.2 The Respondent raised this point and said our Union was not party to the
Council therefore cannot represent the Applicant
4.3 The conciliation went –out for some minutes and came –back and told
the Respondent that the Applicant can be represented by Hotelicca.
4.4 In terms of SS4-10 of Labour Relation Act, allows the applicant to join
sector or Represent by such. Union and Applicant do not want to be part
of the Council.
5. MEC’s decision 2
5.1. Decision of the MEC can be changed based on the following grounds:
5.1.1. If this decision is harsh and exceed its punitive purpose.
5.1.2 Unreasonable and unreasonable period of suspension without pay.
6. Ground of challenging MEC’s or Respondent’s decision
The grounds of challenging the decision are based on the following:
6.1
The side of the Applicant was not entertained, prior to taking sanction.
6.2
The decision should be changed for unreasonable period of suspension without pay, i.e. At least a month unpaid and two months paid or only a final warning.
6.3
The Applicant was informed on the 29th October 2012 that on the 1st November 2012 the three month suspension without pay will start, that is very, very much unfair and unjust.
6.4
Failure to attend an enquiry would generally not constitute misconduct because it is held for the benefit of the employee, i.e.so that he could have an opportunity to be heard. Refer Fidelity Cash Management Services vs CCMA and others (2008) 3 BLLR197 (LAC)
6.5
Not every case of insubordination triggers off capital punishment in a labour context that is dismissal.
Therefore, it must follow that there are cases where it would not be reasonable to dismiss an employee for insubordination. The Commissioner is required to come to an independent decision as to whether the employer’s decision was fair in the circumstances.
Refer to Wasteman Group vs SAMWU (2012)8 BLLR 778(LAC).
Failure of the respondents the applicant prayed for an order which will reduce the period of suspension without pay to one month.
7. RESPONDENT’S (EMPLOYER) HEADS OF ARGUMENTS
POINTS OF ARGUMENTS
7.1. The applicant Mr T.W Nkosi was represented by HOTELLICA but in terms of ELRC constitution there are two unions which are affiliated with ELRC which are CTU SADTU and CTU ATU.HOTELLICA is not covered by the ELRC and it’s not an educator union. We have checked with both CTU SADTU and CTU ATU if this union HOTELLICA is affiliated with them and they both confirmed that they are not affiliated with them, in the basis of that HOTELLICA has no jurisdiction to represent members in this forum.
7.2. Originally the applicant Mr T.W Nkosi was given a sanction of dismissal. He lodged an appeal to the MEC. The MEC overruled the presiding officer’s decision and gave him three months suspension without pay and a final written warning as an alternative to dismissal. I think the applicant should be grateful because the MEC ruled in his favour by overturning the decision of dismissal to three months suspension without pay and a final written warning. The sanction was implemented during the months of November 2012, December 2012 and January 2013. Therefore it is not possible to secure the relief that the applicant is seeking because the sanction has already been implemented.
7.3. We plead that the commissioner dismisses the matter.
8. ISSUE TO BE DECIDED
I am required to determine whether the Respondent (employer) had perpetrated an act of unfair labour practice against the applicants in respect of their disciplinary finding and sanction. Should I find in favour of the applicants, I am to determine what relief should be granted to them.
9. SURVEY OF EVIDENCE AND ARGUMENT
9.1. The applicant’s representative was advised to make submissions to justify its right to represent the applicant at the arbitration as this issue was raised at conciliation but no ruling was made. Thereafter the applicant was directed to make representations on the relief sought that of amending the MEC’s decision to reduce the sanction meted out by the presiding officer and to advance arguments favouring such relief.
9.2. The respondent challenged the right of the union to represent the applicant at arbitration.
10. ANALYSIS OF EVIDENCE AND ARGUMENT
10.1 I have taken cognizance of the decision in Sweeney/ Transcash [2000] 6 BALR 712 (CCMA) where the commissioner held that arbitration hearings constitutes a rehearing de novo on the merits.
10.2. In respect of the right of the union to represent the applicant the following is recorded from the ELRC Constitution:
6. Parties to the Council
(1) The parties to the Council shall be the employer and trade unions
registered in terms of the provisions of the Act, and have members who fall within the registered scope of the Council and admitted to the Council in terms of the provisions of this constitution.
Section 16 (2) (j) reads as follows:
In any arbitration proceedings, a party to the dispute may appear in person and / or be represented by a legal practitioner or by a member, office bearer or official of that party’s trade union.
As the respondent objected to the right of the union to represent the applicant the union representative was directed to provide reasons to represent the applicant and tender the union’s constitution, and the proof of applicant’s membership of the union. The representative failed to furnish the documents requested. As a consequence thereof I determine that the union was not entitled to make representations on behalf of the applicant.
In order not to deal with the matter on a technical basis and for completeness the following is recorded:
10.3. The applicant in this matter challenges the decision of the MEC in respect of the amended sanction imposed by the MEC. He prays for the MEC’s decision to be set aside and a reduced sanction be ordered.
10.4. The respondent prays for the MEC’s decision to be upheld as it favours
the applicant whose original sanction was one of dismissal..
10.5 This dispute is in terms of section 186(2)(b) of the LRA viz. that the
applicant alleges that the employer has perpetrated an act of unfair labour practice against him in respect of his unfair suspension or any other unfair disciplinary action short of dismissal.
10.6. The applicant was found guilty after a disciplinary hearing and the sanction imposed was dismissal. He appealed the decision and the MEC varied his sanction to three months suspension without salary coupled with a final written warning.
10.7. He seeks the setting aside of the MEC’s decision. In this award I intend to deal with this aspect only.
10.8. The applicant’s condition of employment is regulated by the Employment of Educators Act 76 of 1998 (as amended).
Section 9 of the Employment of Educators Act contains an educator’s appeal procedures and the following are of importance:
(5) The Member of the Executive Council or the Minister, as the case may
be,must consider the appeal, and may-
(a) uphold the appeal;
(b) in the case of misconduct contemplated in section 18, amend the sanction; or
(c) dismiss the appeal.
(6) The employer must immediately implement the decision of the Member
of the Executive Council or the Minister, as the case may be.
10.9 Arising from the above the disciplining of educators must be in accordance
with the procedures as detailed in the conditions that govern the employment of educators read in conjunction with the provisions of the Employment of Educators Act. The question that arises is whether the decision of the MEC in this case may be reviewed.
10.10 In the matter MEC for Finance, KwaZulu-Natal & another v Dorkin NO &
another [2008] BLLR 540 (LAC) it was held that discipline in a particular department is the business of the MEC in charge of that department. Any employee aggrieved about the manner in which an MEC was maintaining discipline in a department, would have to approach the Premier.
Arising from the above decision I am constrained to interfere with the MEC’s decision.
10.11 In the event the above position is wrong I turn to the relief sought by the
applicant. He faced a disciplinary hearing and on appeal his sanction was varied and the question that arises is whether the decision of the MEC was unfair to the applicant.
10.12. I have concur with the decision in South African Transport and Allied Workers Union o b o Mampane & Paile/ Great North Transport (2013) 22 SARPBC 6.5.1 where the following is recorded:
“.. appeal tribunals have discretion to impose a fresh sanction. The LRA provides three remedies for unfair dismissals- namely, reinstatement, re-employment and compensation. There was no reason why employers should not be entitled to make the same choice. If the employee were dissatisfied with the outcome, they could have referred an unfair dismissal to the CCMA.
The Commissioner, accordingly, ruled that re-employment was a competent penalty, and that no unfair labour practice had been perpetrated.
In this case I believe that the penalty meted out to the applicant was not only to his benefit but was also favourable to him in that he escaped being dismissed.
11. AWARD
11.1. The application is dismissed
11.2. The sanction is confirmed.
11.3. There is no order as to costs.
DATED AT DURBAN ON THIS 12 DAY OF APRIL 2013.
A S DORASAMY (ARBITRATOR)
Province: KwaZulu-Natal
Applicant: Hotellica Obo Nkosi TW
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Newcastle
Award Date: 12 April 2013
Arbitrator: AS Dorasamy
IN THE ARBITRATION CASE NO.: PSES 545-12/13 KZN
IN THE MATTER BETWEEN :-
HOTELLICA OBO NKOSI T W APPLICANT
AND
DEPARTMENT OF EDUCATION-KZN RESPONDENT
________________________________________________________________
DATE : 02 APRIL 2013
TIME : 10H00
VENUE : D O E -NEWCASTLE
NEWCASTLE
ARBITRATOR : A S DORASAMY
ATTENDANCE/S : APPLICANT
MR L MAZIBUKO
APPLICANT
RESPONDENT
MR G MNCWANGO
ARBITRATOR'S AWARD
The arbitration proceedings commenced at 10h00 on the 2 April 2013.
ARBITRATOR'S SUMMARY
HEARING AND REPRESENTATION
2. Mr L Mazibuko of HOTELLICA represented the applicant and Mr G Mncwango represented the respondent.
SPECIAL NOTE
After discussing the matter the parties agreed as follows:
No oral evidence will be tendered.
The parties agreed to submit Heads of Arguments on or before the 9 April 2013 to address the following issues:
2.1. The right of the union HOTELICCA to represent the applicant:
2.2 The applicant to advance arguments in respect of the challenge on the
MEC’s decision to change the decision of dismissal and the powers of the
arbitrator to interfere with such a decision.
2.3. The applicant’s grounds for launching the challenge of unfair sanction
and the reasons for overturning the decision.
BACKGROUND
The applicant was disciplined for misconduct and was sanctioned with dismissal. He appealed the sanction and the MEC commuted the sanction to three months suspension without pay and a final written warning.
The applicant seeks a reduction of the sanction whilst the respondent prays for the dismissal of the matter.
APPLICANT’S (EMPLOYEE) HEADS OF ARGUMENTS
3.1.
No ruling was made although the matter was scheduled to arbitrate on the 2nd of April 2013.
3.2.
No point in limine was raised by the respondent in our presence (Applicant and Applicant Representative)
3.3.
Code of conduct for arbitrators and conciliators (ELRC) page F-23 (4) (1-8).
3.4
Both parties were told to submit Heads of Arguments and Applicant and its representative were to explain why?
3.4.1.
Do they feel they have right represent the applicant while they are not party to the council.
3.4.2.
Power to change MEC’s decision.
3.4.3.
Grounds challenged based on and why it should be changed.
4. Applicants Heads of Argument:
Representation-1
4.1. At the conciliation the issue of representation was dealt with and no
formal point in limine was made even now.
4.2 The Respondent raised this point and said our Union was not party to the
Council therefore cannot represent the Applicant
4.3 The conciliation went –out for some minutes and came –back and told
the Respondent that the Applicant can be represented by Hotelicca.
4.4 In terms of SS4-10 of Labour Relation Act, allows the applicant to join
sector or Represent by such. Union and Applicant do not want to be part
of the Council.
5. MEC’s decision 2
5.1. Decision of the MEC can be changed based on the following grounds:
5.1.1. If this decision is harsh and exceed its punitive purpose.
5.1.2 Unreasonable and unreasonable period of suspension without pay.
6. Ground of challenging MEC’s or Respondent’s decision
The grounds of challenging the decision are based on the following:
6.1
The side of the Applicant was not entertained, prior to taking sanction.
6.2
The decision should be changed for unreasonable period of suspension without pay, i.e. At least a month unpaid and two months paid or only a final warning.
6.3
The Applicant was informed on the 29th October 2012 that on the 1st November 2012 the three month suspension without pay will start, that is very, very much unfair and unjust.
6.4
Failure to attend an enquiry would generally not constitute misconduct because it is held for the benefit of the employee, i.e.so that he could have an opportunity to be heard. Refer Fidelity Cash Management Services vs CCMA and others (2008) 3 BLLR197 (LAC)
6.5
Not every case of insubordination triggers off capital punishment in a labour context that is dismissal.
Therefore, it must follow that there are cases where it would not be reasonable to dismiss an employee for insubordination. The Commissioner is required to come to an independent decision as to whether the employer’s decision was fair in the circumstances.
Refer to Wasteman Group vs SAMWU (2012)8 BLLR 778(LAC).
Failure of the respondents the applicant prayed for an order which will reduce the period of suspension without pay to one month.
7. RESPONDENT’S (EMPLOYER) HEADS OF ARGUMENTS
POINTS OF ARGUMENTS
7.1. The applicant Mr T.W Nkosi was represented by HOTELLICA but in terms of ELRC constitution there are two unions which are affiliated with ELRC which are CTU SADTU and CTU ATU.HOTELLICA is not covered by the ELRC and it’s not an educator union. We have checked with both CTU SADTU and CTU ATU if this union HOTELLICA is affiliated with them and they both confirmed that they are not affiliated with them, in the basis of that HOTELLICA has no jurisdiction to represent members in this forum.
7.2. Originally the applicant Mr T.W Nkosi was given a sanction of dismissal. He lodged an appeal to the MEC. The MEC overruled the presiding officer’s decision and gave him three months suspension without pay and a final written warning as an alternative to dismissal. I think the applicant should be grateful because the MEC ruled in his favour by overturning the decision of dismissal to three months suspension without pay and a final written warning. The sanction was implemented during the months of November 2012, December 2012 and January 2013. Therefore it is not possible to secure the relief that the applicant is seeking because the sanction has already been implemented.
7.3. We plead that the commissioner dismisses the matter.
8. ISSUE TO BE DECIDED
I am required to determine whether the Respondent (employer) had perpetrated an act of unfair labour practice against the applicants in respect of their disciplinary finding and sanction. Should I find in favour of the applicants, I am to determine what relief should be granted to them.
9. SURVEY OF EVIDENCE AND ARGUMENT
9.1. The applicant’s representative was advised to make submissions to justify its right to represent the applicant at the arbitration as this issue was raised at conciliation but no ruling was made. Thereafter the applicant was directed to make representations on the relief sought that of amending the MEC’s decision to reduce the sanction meted out by the presiding officer and to advance arguments favouring such relief.
9.2. The respondent challenged the right of the union to represent the applicant at arbitration.
10. ANALYSIS OF EVIDENCE AND ARGUMENT
10.1 I have taken cognizance of the decision in Sweeney/ Transcash [2000] 6 BALR 712 (CCMA) where the commissioner held that arbitration hearings constitutes a rehearing de novo on the merits.
10.2. In respect of the right of the union to represent the applicant the following is recorded from the ELRC Constitution:
6. Parties to the Council
(1) The parties to the Council shall be the employer and trade unions
registered in terms of the provisions of the Act, and have members who fall within the registered scope of the Council and admitted to the Council in terms of the provisions of this constitution.
Section 16 (2) (j) reads as follows:
In any arbitration proceedings, a party to the dispute may appear in person and / or be represented by a legal practitioner or by a member, office bearer or official of that party’s trade union.
As the respondent objected to the right of the union to represent the applicant the union representative was directed to provide reasons to represent the applicant and tender the union’s constitution, and the proof of applicant’s membership of the union. The representative failed to furnish the documents requested. As a consequence thereof I determine that the union was not entitled to make representations on behalf of the applicant.
In order not to deal with the matter on a technical basis and for completeness the following is recorded:
10.3. The applicant in this matter challenges the decision of the MEC in respect of the amended sanction imposed by the MEC. He prays for the MEC’s decision to be set aside and a reduced sanction be ordered.
10.4. The respondent prays for the MEC’s decision to be upheld as it favours
the applicant whose original sanction was one of dismissal..
10.5 This dispute is in terms of section 186(2)(b) of the LRA viz. that the
applicant alleges that the employer has perpetrated an act of unfair labour practice against him in respect of his unfair suspension or any other unfair disciplinary action short of dismissal.
10.6. The applicant was found guilty after a disciplinary hearing and the sanction imposed was dismissal. He appealed the decision and the MEC varied his sanction to three months suspension without salary coupled with a final written warning.
10.7. He seeks the setting aside of the MEC’s decision. In this award I intend to deal with this aspect only.
10.8. The applicant’s condition of employment is regulated by the Employment of Educators Act 76 of 1998 (as amended).
Section 9 of the Employment of Educators Act contains an educator’s appeal procedures and the following are of importance:
(5) The Member of the Executive Council or the Minister, as the case may
be,must consider the appeal, and may-
(a) uphold the appeal;
(b) in the case of misconduct contemplated in section 18, amend the sanction; or
(c) dismiss the appeal.
(6) The employer must immediately implement the decision of the Member
of the Executive Council or the Minister, as the case may be.
10.9 Arising from the above the disciplining of educators must be in accordance
with the procedures as detailed in the conditions that govern the employment of educators read in conjunction with the provisions of the Employment of Educators Act. The question that arises is whether the decision of the MEC in this case may be reviewed.
10.10 In the matter MEC for Finance, KwaZulu-Natal & another v Dorkin NO &
another [2008] BLLR 540 (LAC) it was held that discipline in a particular department is the business of the MEC in charge of that department. Any employee aggrieved about the manner in which an MEC was maintaining discipline in a department, would have to approach the Premier.
Arising from the above decision I am constrained to interfere with the MEC’s decision.
10.11 In the event the above position is wrong I turn to the relief sought by the
applicant. He faced a disciplinary hearing and on appeal his sanction was varied and the question that arises is whether the decision of the MEC was unfair to the applicant.
10.12. I have concur with the decision in South African Transport and Allied Workers Union o b o Mampane & Paile/ Great North Transport (2013) 22 SARPBC 6.5.1 where the following is recorded:
“.. appeal tribunals have discretion to impose a fresh sanction. The LRA provides three remedies for unfair dismissals- namely, reinstatement, re-employment and compensation. There was no reason why employers should not be entitled to make the same choice. If the employee were dissatisfied with the outcome, they could have referred an unfair dismissal to the CCMA.
The Commissioner, accordingly, ruled that re-employment was a competent penalty, and that no unfair labour practice had been perpetrated.
In this case I believe that the penalty meted out to the applicant was not only to his benefit but was also favourable to him in that he escaped being dismissed.
11. AWARD
11.1. The application is dismissed
11.2. The sanction is confirmed.
11.3. There is no order as to costs.
DATED AT DURBAN ON THIS 12 DAY OF APRIL 2013.
A S DORASAMY (ARBITRATOR)