ARBITRATION AWARD - GPSSBC

ARBITRATION
AWARD
Panelist: JACQUES F M VERHOEF
Case No.: GPBC3918/2011
Date of Award: 5 APRIL 2012
In the ARBITRATION between:
________________________________MALESELA SAMUEL MAROTOLA_________________________
(Union / Applicant)
and
______________________________DEPARTMENT OF WATER AFFAIRS__________________________
(Respondent)
Union/Applicant’s representative:
Union/Applicant’s address:
Telephone:
Telefax:
SELF___________________________________________
PO Box 1157 ______________________________________
MOGODUMO ______________________________________
0735 _____________________________________________
015 6337162 _______________________________________
015 6337178 _______________________________________
Respondent’s representative:
Respondent’s address:
Telephone:
Telefax:
Mr. L Z MOKOENA (Employee) _______________________
PRIVATEBAG X313 _________________________________
PRETORIA ________________________________________
0001 _____________________________________________
012 336-8453 ______________________________________
086 586 5125 ______________________________________
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ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1) This is the award in the arbitration between Malesela Samuel Marotola, the
employee/applicant, and the Department of Water Affairs, the
employer/respondent.
2) The arbitration was held under the auspices of the GPSSBC in terms of Section
191(5)(a) of the Labour Relations Act, 1995 as amended (the “LRA”) and issued
in terms of Section 138(7) of the LRA.
3) The arbitration hearing was set down for 14 February 2012 at the Department of
Water Affairs, Chuenespoort Dam. The matter became part heard and was
finalized on 4 April 2012. The proceedings were digitally recorded.
4) The employee was present on 14 February 2012 and represented by Mr. EK
Mathabatha, a Union Official of the Public Service Association (”PSA”). After it
was established that the employee was not a member of the PSA, it was ruled
that Mr. Mathabatha was not allowed to represent the employee during these
proceedings. The employee then made an application that the matter be
postponed. After entertaining the application it was ruled that it was not in the
interest of justice that the matter be postponed and the matter proceeded. The
employee represented himself during all further proceedings.
5) The employer was present and represented by Mr. L Z Mokoena, an employee
in the employ of the respondent.
ISSUES TO BE DECIDED
6) The issues to be decided are whether the dismissal of the employee was
procedurally and/or substantively unfair and if found to be unfair, the remedy to
be awarded.
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BACKGROUND TO THE ISSUE
7) The employee had been working for the employer on a contract based
employment contract since 18 August 2009. The last fixed term contract that
was signed was supposed to have expired on 31 January 2012.
8) The employee earned a salary of R6 025.00 per month at the time of his
dismissal.
9) The employee attended a disciplinary hearing on 19 September 2011. He was
charged with and pleaded guilty to “Bribery: Transporting unauthorized state
property in attempt to receive bribe.”.
10) The employee was dismissed on 20 September 2011. He did not appeal
against the decision.
11) The employee referred a dispute to the GPSSBC. A conciliation meeting was
held on 25 October 2011. The dispute remained unresolved and a certificate
was issued.
12) The employee requested that the dispute be arbitrated and the matter was set
down for hearing on 14 February 2012. The matter became part heard and was
finalized on 4 April 2012.
13) Both the employee and employer submitted bundles of documents and it was
marked exhibit/bundle “A” and “B” respectively. All documents tabled were
agreed to be what they purported to be. In respect of the contents of the
documentation, it was agreed that the contents had to be proved before it could
be taken into account by the commissioner.
SURVEY OF EVIDENCE AND ARGUMENT
14) I am required to issue an award with brief reasons. I do not propose to offer an
exhaustive survey of all the evidence and argument led at the arbitration
hearing. I have had regard to everything presented to me, and what follows is a
brief summary of the evidence relevant to my findings only.
15) Mr. K D Malatji was the first witness to give testimony on behalf of the
respondent. He testified that he is in the employ of the respondent as a Labour
Relations Officer and was present at both the disciplinary hearings of the
applicant, as well as that of Mr. Chuene.
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16) He was also present when the notice to attend a disciplinary hearing was
handed to the applicant by Maria Moloto. She explained the charges and his
rights to the applicant.
17) The disciplinary hearing held for the applicant was conducted in Northern Sotho
and English. According to him the applicant understood everything. The
applicant was also informed of his right to have a representative present and to
call witnesses. At no stage did the applicant indicate that he wanted a
representative.
18) The charge against the applicant was one of bribery for receiving money in
transporting stolen goods, the property of the department, for another person.
During the disciplinary hearing the applicant said that he was hired to transport
those goods from where it was stored to Chuene’s house, but did not know
where Chuene had found the goods or whether it had been given to him by the
employer. He however did not dispute that the goods belonged to the
department and that it was transported in the middle of the night.
19) The applicant pleaded guilty to the charge, advanced mitigating factors and
asked for forgiveness after apologizing.
20) He also indicated that he did not have witnesses as he and his son was driving
the bakkie and were the only ones that knew what happened.
21) The goods that were transported were removed from the site where the
applicant was working.
22) The second witness who testified on behalf of the respondent was Mr. K F
Mothiba, the site manager at Chuenespoot Dam. He testified that he was the
presiding officer in the disciplinary hearing of the applicant. The hearing was
conducted mostly in Sepedi and the applicant’s rights were explained to him
during the hearing. The applicant was not represented and did not want to call
any witnesses. He was afforded the opportunity to state his case. The applicant
pleaded guilty at the hearing and said that he was guilty of transporting the
stolen goods to the destination. The applicant was found guilty of the alleged
misconduct and dismissed as dishonesty was a serious offence and cannot be
taken lightly. Mr. Chuene was also dismissed as a result of this incident.
23) The third witness for the respondent was Ms. M Moloto. She testified that she is
the labour relations officer stationed in Tzaneen. She handed the notice to
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attend a disciplinary hearing to the applicant on 13 September 2011. She read
the document to him and informed him of his rights. He indicated that he
understood his rights.
24) The last witness to testify on behalf of the respondent was Mr. H T Hlabati. He
testified that he is the head of the Security and Investigation Department in the
employ of the respondent.
25) During his investigations he was at first informed by the applicant that he knew
nothing about the theft of goods at the respondent, but latter the applicant had
admitted that he knew what had happened. The applicant had informed him that
Mr. Chuene had phoned him during the night and had asked him to come and
assist him by transporting goods to Chuene’s house. He had ordered his son to
go and assist Chuene. After they had left he followed them on foot and found
that they had nearly finished loading the goods. He then drove the bakkie to
Chuene’s house where they have offloaded the goods. The applicant then
instructed Chuene to give his son R50.00, which he did. He then went with
Chuene to Lebowaghomo to put R100.00 petrol in his vehicle. When they came
back they went to a tavern and had some beers. He took a statement from the
applicant. The applicant confirmed that the statement was correct and had
signed it after it was read back to him.
26) The applicant also admitted that he knew the goods belonged to the state as it
was found on site.
27) The applicant, Mr. M S Marotola, elected to testify. He testified that he has been
employed at the respondent since 18 August 2009 and that his last contract
was until 31 January 2012.
28) He did receive a notice to attend a disciplinary hearing, attended the hearing
and was dismissed on 19 September 2011. He feels that the hearing was unfair
because he was not told that he could bring witnesses. He however
acknowledges that he was afforded the opportunity to state his case.
29) He further testified that he attended a funeral on 13 August 2011 and went to
bed when he came home. During the evening, around 22/23h00, he received a
phone call from Chuene. Chuene asked him to come and transport goods for
him. He informed Chuene that he was tired and could not help. After 45 minutes
Chuene again phoned him and said that he could not find anyone to help him.
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He then said to Chuene that if he can get someone to inflate the tyres of his
vehicle, he will come along. Chuene arrived at his home around midnight. He
asked Chuene what he wanted to transport and was informed that it was timber.
He woke his son and after they have inflated the tyres of his bakkie, his son and
Chuene left. After a while he decided to go and look where they were and he
started walking in the direction where they were supposed to go to. On his way
he met with them and they then went to Chuene’s house to offload the goods.
He saw that it was timber and reinforcing. He was given R100.00 for petrol and
his son was given R50.00 for his assistance. He and his son then went home
30) During cross examination he conceded that he did plead guilty during the
disciplinary hearing. He also conceded that he suspected that the goods that
were transported looked familiar as it were similar to the timber and reinforcing
used at the workplace. He also acknowledged that the goods were in fact stolen
at the workplace and that when he went back to work, he did not say anything
about the goods. His reason for the latter was that Chuene was not at work.
31) He also conceded that the employer had reason not to trust him anymore
because he did not report the incident to the employer.
32) Mr. Joas Morotola, the son of the applicant was called to come and give
evidence. He testified that his father had woken him during the night. They then
inflated the bakkie’s tyres where after his father instructed him to go with the
men. They left and loaded timbers and reinforcement onto the bakkie. Just as
they were finished loading, his father arrived and drove the bakkie to Chuene’s
place. They offloaded the goods. He was given R50.00 and then drove home.
His father stayed behind with Chuene. He does not know what time his father
came home.
ANALYSIS OF EVIDENCE AND ARGUMENT
33) Whenever considering whether or not a reason for dismissal is a fair reason or
whether or not the dismissal was effected in accordance with a fair procedure, I
must take into account any relevant code of good practice issued in terms of the
Labour Relations Act, 1995 (“the LRA”).
34) Whilst an employer is not expected to follow a complex or involved predismissal
procedure, it is nevertheless required to observe the core tenets of
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natural justice. As there is no workplace procedure in place at the workplace,
the guidelines provided in Schedule 8 – Code of Good Practice: Dismissal (“the
Code”) requires that an employee should be notified of the charges against him
and given an opportunity to prepare for the hearing. The employee should be
afforded an opportunity to be represented, to call witnesses, and to cross
examine the employer’s witnesses. Importantly, in terms of the audi alteram
partem principle, an employee must be given an opportunity to be heard.
35) From the evidence presented by the employee it is clear that he only felt
aggrieved because he was allegedly not afforded the opportunity to call
witnesses. This is however disputed by the witnesses who testified on behalf of
the employer. The chairperson, as well as the labour relations officer, testified
that he was in fact informed of his right to call witnesses, but that he did not
want to call any witness. I can find no reason as to why these witnesses for the
employer would lie about the latter. Bearing in mind that when afforded the
opportunity to call witnesses during the arbitration, the employee called his son
as a witness. His son’s testimony did not promote his case in any way, but was
in fact detrimental to his case. This would therefore have had no result had he
been not afforded the opportunity to call a witness during the disciplinary
hearing.
36) The employee confirmed that he was afforded the opportunity to state his case
during the disciplinary hearing. In Old Mutual Life Assurance Co SA Ltd v
Gumbi (2007) 28 ILJ (SCA) the court held that the right to a pre-dismissal
hearing imposes upon employers nothing more than the obligation to afford
employees the opportunity of being heard before employment is terminated by
means of dismissal.
37) Having had regard to the abovementioned I find that the employer did prove
that the hearing conducted was in accordance with a fair procedure.
38) Schedule 8 of the Code also gives guidance to an arbitrator evaluating the
fairness of a dismissal for misconduct. It provides that any person who is
determining whether a dismissal for misconduct is unfair should consider
whether or not the employee contravened a rule or standard regulating conduct
in the work-place, and if such rule or standard was contravened, whether the
rule was valid or reasonable, the employee was aware of the rule, the rule was
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consistently applied by the employer and dismissal was an appropriate sanction
for the contravention.
39) The notice to attend a disciplinary hearing handed to the employee states that
the employee is charged with the alleged offence of “Bribery: Transporting
unauthorized state property in attempt to receive bribe.”.
40) The details of the alleged offence as per the complaint sheet (also handed to
the employee) are “Bribery (transporting unauthorized state property in attempt
to receive bribe. Between 13/08/2011 around 15h30 & 15/08/2011 around 7h00
at Chuenespoort Dam Mr Marotola M.S transported timbers & 4 reinforce of
about 6m length to Mr. Chuene L.J’s home.”
41) It is expected of employers to advise accused employees of the precise charges
they are required to answer to. The charges should be specific enough to
enable the employee to answer to them, but need not to have the same detail
as required for indictments in criminal proceedings (see Mutual Construction
Company Tvl (Pty) Ltd v Ntombela NO & others (2010) 5 BLLR513(LAC)).
42) Although the notice and details of the alleged offence are badly worded, one
can ascertain from the notice, read with the complaint sheet, that it was
expected of the employee to give answers as to why he had transported stolen
goods, the property of the employer, to the house of Mr. Chuene. From the
evidence presented it is also evident that the employee did understand what
was expected of him and what the case was about.
43) In determining whether there was a rule in the workplace, one may accept that it
is a basic rule of conduct that employees should act in the best interest of the
employer and that it can also be expected of employees not to part take in
criminal activities involving the employer.
44) In determining the issue whether the employee had contravened the rule
charged with, it is clear that the only version as to what has transpired on the
evening of 13 August 2011 is the version presented by the employee himself.
The employee’s testimony in brief was that he assisted Mr. Chuene in
transporting timber and reinforcing, the property of the employer, to Mr.
Chuene’s house at around midnight. His explanation given at first that he did
not know at the time that the goods were stolen is rejected. It is highly
improbable that a person will not be suspicious when asked to transport goods
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in the middle of the night, especially when transporting timber and reinforcing
similar to that used by the employer. I therefore find that even if the employee
may not have been involved in the actual stealing of the goods, he was well
aware at the time when the goods were transported by him that it was in fact
stolen. He however elected to transport the goods for his own gain, knowing
that he would be paid for the transportation. This made him an accomplice to
the actual stealing of the goods as he had furthered the commission of the
crime by transporting the goods to Mr. Chuene’s house.
45) I must now ask myself whether dismissal was an appropriate penalty for this
conduct. Whilst the Code of Good Practice: Dismissal (Schedule 8 to the LRA)
provides that workplace discipline is to be progressive and corrective, it states
that some misconduct is of such gravity as to make a continued employment
relationship intolerable. I am persuaded that the applicant’s conduct fell into this
category. An element of dishonesty is a serious intrusion of the trust relationship
that has to be in existence in any employment relationship. The employee
testified that he was suspicious when he saw the goods, but that he did not
report what had transpired when he learned that the employer was investigating
the theft of goods from the premises. He rather elected to protect the thief, than
to assist his employer in apprehending the culprit. His assistance to the thief in
transporting the goods and failure to report the latter to the employer in my mind
goes to the root of the employment relationship, namely trust. It can never be
expected of the employer to trust the employee again. The employee’s actions
do not fall into a category of conduct that is susceptible to correction.
Employee’s two years service is not a persuasive mitigating factor.
46) The employer accordingly proved on a balance of probabilities that it had a fair
reason for dismissing Mr. Marotola and I therefore find that the dismissal of the
employee is substantively fair.
AWARD
47) I have found that the dismissal was both procedurally and substantively fair. In
the premises I make the following award:
48) The dismissal of the employee, Malesela Samuel Marotola, by the employer,
Department of Water Affairs, is upheld.
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Signature: _
____________
Jacques F M VERHOEF
Arbitrator: GPSSBC
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