The LC refused the employer’s application to review an arbitral award ito s 145 of the LRA.  In terms of the award the employee was reinstated.  The employer had ‘interfered’ with a plea-bargain arrangement and dismissed the employee.  Golden AJ held that the employer should have reviewed the chairperson’s plea-bargain under PAJA, based on the principle of legality.

Minister of Justice and Constitutional Development v GPSSBC (JR2760/12) [2016] ZALCJHB 325; (2017) 38 ILJ 213; [2016] JOL 37060 (LC) (25 August 2016) per T Golden AJ.

LC summary:   

“Review application of arbitrator’s award where arbitrator did not overturn a plea bargain arrangement reached between the employer and employee.

Sanction – employer terminated employee’s employment, did not agree with ‘sanction’ in plea-bargain arrangement; employee alleging that the employer could not, in law, interfere with finding of chairperson of the internal disciplinary enquiry and that ‘sanction’ in terms of plea-bargain arrangement stands

Appropriateness of the ‘sanction’- where ‘sanction’ in plea-bargain arrangement inappropriate in relation to ‘charges’; – position of arbitrator

Plea-bargain arrangement – whether arbitrator can interfere with plea-bargain arrangement reached in the disciplinary enquiry and endorsed by the chairperson

Disciplinary Code – general rule that employer not permitted to interfere with disciplinary hearing outcome where chairperson has power to make final decision – disciplinary code as collective agreement obliges employer to implement decision of chairperson – employer cannot change decision of chairperson

Section 145 review of arbitrator’s decision not to be used in order to review the chairperson’s ruling on ‘sanction’ – procedure to be followed by employer to set aside a decision that is irrational and/or irregular that of reviewing the decision of the chairperson of the disciplinary enquiry”.

Excerpts without footnotes

The Background

[7]   The third respondent, Mr Evald Maseletje Kgare (‘Kgare”), was employed by the Department of Justice and Constitutional Development (‘the Department”) as an Administration Clerk at the Magistrates’ Court in Thabamoopo, Limpopo Province.

[8]   A disciplinary hearing was convened on 16 March 2016 where Kgare was called upon to defend four counts of misconduct which involved inter alia the theft of traffic control documents and bribes.  The charge sheet described the charges as follows:

. . . . .

[10]   During the disciplinary hearing, the initiator acting on behalf of the Department, entered into a plea bargain agreement (“plea agreement”) with Kgare’s union representative in terms whereof Kgare would plead guilty to the charges in exchange for a lesser sanction of three months’ suspension without payment of salary. Whether the initiator had the authority to enter into such an arrangement and whether the chairperson of the inquiry who endorsed the arrangement was empowered to do so were not issues raised in the review application before me.

. . . . .

[13]   Dissatisfied with the sanction imposed by the chairperson, the Department addressed a letter dated 24 November 2014 to Kgare wherein Kgare was informed that the sanction imposed was lenient and that it intended to approach the Executive Authority to overturn the decision of the Presiding Officer to dismiss him from the public service.  Kgare was given an opportunity to submit written representations as to why his employment should not be terminated on account of misconduct.

[14]   Kgare failed to make any written representations, and was subsequently dismissed.

[15]   According to the Department, Kgare was called upon to make representations as to why the sanction of the chairperson should not be altered, given that the chairperson had not imposed an appropriate sanction as was required of him, but had merely recommended that the sanction agreed between the parties in the plea agreement be imposed.

. . . . .

[18]   The arbitrator concluded that Kgare’s dismissal was procedurally unfair and given the “unique manner” in which the dismissal was effected, ordered that Kgare be reinstated into his former position on the same terms and conditions that prevailed prior to his dismissal.  The arbitrator also ordered that he be paid back-pay and imposed a final written warning on Kgare valid for a period of twelve months.  The arbitrator did not interfere with the three month suspension without pay sanction.

. . . . .

[22]   The arbitrator was of the view that Kgare had pleaded guilty on the understanding that he would be given a lesser sanction, that interference with this plea arrangement was unfair and that an agreement freely entered into should be adhered to.  This is the basis for his finding that Kgare’s dismissal was procedurally unfair.

. . . . .

[24]   The starting point of this enquiry is the terms of the Disciplinary Code and Procedures for the Public Service (“the Disciplinary Code”), a collective agreement in terms of section 8(b) of the Public Service Act 1998 (“PSA”) which regulates the procedure for disciplinary hearings in the public service.

[25]   Paragraph 7.4 of the Disciplinary Code provides that the chairperson must pronounce a sanction if the chairperson finds an employee has committed misconduct.

[26]   Section 17(1)(b) of the Public Service Act provides that:

The power to dismiss an employee on account of misconduct in terms of subsection 2(d) shall be exercised as provided for in section 16B(1)’.

[27]   Section 16B(1) of the PSA reads as follows:

“16B.  Discipline

(1)   Subject to subsection (2), when a chairperson of a disciplinary hearing pronounces a sanction in respect of an employee found guilty of misconduct, the following persons shall give effect to the sanction:

(a)   …

(b)   In the case of any other employee, the relevant head of department.”

[28]   Section 16B(1) is cast in peremptory language which provides that the relevant persons (which includes the relevant head of department), shall give effect to the sanction [imposed by the chairperson]. There is nothing in the PSA or in the Disciplinary Code which permits the employer to change or substitute the sanction imposed by the chairperson.  There is nothing to suggest that such a substitution by the employer is implicit in the wording and context of the PSA or Code.  The mere fact that the chairperson “recommended” a sanction in his findings does not detract from the intention and wording of both the PSA and the Disciplinary Code that the chairperson must pronounce a sanction and that the sanction must be given effect to by the employer.

[29]   The jurisprudential nature of the chairperson’s power has received the attention of the Labour Appeal Court in two recent decisions.

[30]   In SARS v CCMA & Others (“Chatrooghoon”)[1] the essential issue on appeal was whether SARS, in its capacity as employer, was entitled to substitute a sanction short of dismissal imposed on an employee by an independent disciplinary tribunal appointed in terms of a collective agreement, in circumstances where the collective agreement was silent on the issue of substitution.

. . . . .

[33]   In its analysis of the case, the LAC held that the wording of the disciplinary code, as a collective agreement, was clear and unambiguous on the point that the decision of the chairperson on the issue of penalty was a final sanction, and not merely a recommendation. . . . . .

[34]   More recently the LAC in SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others[1] (“Kruger”) considered the same question – whether an employer may unilaterally substitute a decision of a chairperson to whom final decision-making authority had been assigned, and impose a harsher sanction. The employee, Mr Kruger, pleaded guilty at the disciplinary hearing.  A plea bargain was struck in terms of which the chairperson found him guilty as charged and imposed a final written warning, suspended him without pay for ten days and directed him to receive counselling for the racial abuse he had directed at a colleague.  SARS informed Kruger that the chairperson’s “recommendation” on sanction had been declined and that his services were terminated with immediate effect.

[35]   The question before the arbitrator in Kruger turned on whether the employer had the power to change the disciplinary enquiry outcome. Following the LAC’s authority in Chatrooghoon, the LAC confirmed that the employer, who is also subject to the disciplinary code, has no power to change the sanction imposed by the chairperson.

[36]   The nature of a disciplinary enquiry chair’s power is explained by Sutherland JA in Kruger[2] as follows.   The person appointed to perform that function as internal disciplinary chairperson is clothed with the persona of the employer, and the chair’s decision is that of the employer.     An employer that is an organ of state cannot unilaterally repudiate its own decision.  Anomalously, an employer that is an organ of State may review itself, an escape mechanism not available to employers in the private sector.  With reference to Chatrooghoon, Sutherland JA found that it must follow that the substitution of a sanction is invalid and that this invalidity is more than procedural fairness, as it denotes an unlawful act.

[37]   Both Chatrooghoon and Kruger are on point and are of direct application in the current matter.

[38]   The Department did not have the power or authority to interfere in the disciplinary sanction handed down by the chairperson. It must follow that the Department’s substitution of the sanction was ultra vires the Disciplinary Code, and therefore unlawful.

[39]   The arbitrator who reached a similar conclusion accordingly did not misdirect himself or commit any “misconduct” in relation to his duties as an arbitrator in this respect. There is accordingly no basis to interfere with the arbitrator’s decision on this ground.   [3]

[40]   Instead of unilaterally overturning the decision of its own chairperson the Department should have sought a review of the sanction imposed by the chairperson either in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) or in terms of section 158(1)(h) of the LRA.

. . . . .

[42]   See also Hendriks v Overstrand Municipality & another[1] where Murphy AJA held that the decisions of the LAC and the SCA in Ntshangase are weighty authority for the assertion that a determination by a presiding officer appointed under a collective agreement applicable in the public sector is reviewable on grounds of lawfulness, rationality, reasonableness and procedural fairness.  Murphy AJA held that such a decision can be reviewed in terms of section 158(1)(h) of the LRA ‘on such grounds as are permissible in law’.  He went on to say that there is no need to classify the decision as administrative action in terms of PAJA before a review will be competent under s 158(1)(h).

[43]   In Karoo Hoogland Municipality v Nothnagel & another[2], Sutherland JA in his exposition of the ambit of the doctrine in Oudekraal Estates (Pty) Ltd v City of Cape Town[3]  referred to MEC for Health, Eastern Cape & another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute [4].   In Kirland, the majority, per Cameron J, rejected what the Constitutional Court labelled a shortcut by an organ of state to be released from the invalid decision taken by itself by regarding it as non-existent, and held that a review application to declare the decision invalid had to be prosecuted, and upon that being decided, a further decision would have to be taken about what to do about the consequences.

. . . . .

[50]   The enquiry now turns to whether the arbitrator’s decision was rational and reasonable, and one that a decision-maker could reasonably have arrived at.

[51]   In my view the arbitrator correctly identified the issues for determination in paragraph 47 of the award: namely whether the employer was permitted to overrule the decision of the chairperson in terms of the Disciplinary Code.

. . . . .

[56]   The Department’s complaint all along has been that the sanction imposed by the chairperson was inappropriate. It did not however seek to review that decision as it ought to have done at the time if it was dissatisfied with the decision.   Instead it now seeks to do so via Kgare’s referral of his unfair dismissal claim.

[57]   The grounds of review are all in effect aimed at reviewing the decision of the chairperson, and not that of the arbitrator, which this Court has held for the reasons set out herein is not reviewable.

[58]   The Department is seeking to achieve through a review of the arbitrator’s decision that which it would have asked for had it followed the route of taking the decision of the disciplinary chairperson on review.

[59]   Such a review would have raised entirely different issues to those raised in this review of the arbitrator’s decision.

. . . . .

[64]   In Maluti-A-Phofung Local Municipality v Rural Maintenance (Pty)Ltd & another[1], the LAC, with reference to Oudekraal and Kirland, stated that the challenge to have irregular decisions set aside springs deeply from the rule of law.[2]

[65]   In Kirland, Cameron J held:

‘The fundamental notion — that official conduct that is vulnerable to challenge may have legal consequences and may not be ignored until properly set aside — springs deeply from the rule of law.  The courts alone, and not public officials, are the arbiters of legality.’[1]

[66]   The same principle requires proper procedures to be followed in order to set such conduct aside.