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IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Not Reportable

Case no: C876/2018

In the matter between:

RICHARD JOHN HARRISON                                                            Applicant

and

THE SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL (WESTERN CAPE)                                   First Respondent

COMISSIONER T NDZOMBANE N.O.                                              Second Respondent

THE CITY OF CAPE TOWN                                                              Third Respondent

Date heard: November 11 2020 on the papers

Delivered: By email of scanned judgment on 18 January 2021

JUDGMENT

[1]       This is an opposed application to review an arbitration award under case number WCM121711. In terms of the Award, the applicant’s dismissal was found to have been substantively fair.

[2]       The applicant was employed by the City as a Law Enforcement Officer and was dismissed along with two of his colleagues (Links and Van Niekerk[1]) on the 8 December 2017. He was charged with the following misconduct:

“a.    Charge 1: it is alleged that on or about 28 January 2018 you committed an act of gross misconduct when you deserted your posting for the day, by going to your residence at about 10h00 and remained at the location until 14h00, without having the necessary permission or authority to do so.

b.            Charge 2: it is alleged that on or about 28 January 2017 you committed an act of fraud when you claimed overtime from 08h00 to 16h30, but from about 10h00 until 14h00 you were not involved with work related activities when you stood off at your residence.

c.            Alternative to charge 2: it is alleged that on or about 28 January 2017 you committed an act of gross dishonesty when you claimed overtime from 08h00 to 16h30, but from about 10h00 until 14h00 you were not involved in work related activities when you stood off at your residence.”

[3]       The applicant submits that the second respondent (the Arbitrator) made findings that had no rational basis in relation to the Charges against him. In his supplementary affidavit he makes inter alia the following averments:

“In para 94 of the award, the Second Respondent specifically finds that I was not at home between 10h and 14h00. His finding is that I performed duties in the Belhar area, instead of the Bellville CBD where I was posted for the day, and that this equates to not working.”

[4]       Applicant also submits that the finding in paragraph 95 of the Award that he acted fraudulently bore no rational relation to the Charge against him averring that:

“The charge against me is based on an alleged misrepresentation: that I was working when in fact I was at home.”

[5]       It is further averred that the Abitrator’s finding that applicant’s actions were not in accordance with operational needs, was made in spite of the fact that the City did not allege that his actions amounted to misconduct because of its operational needs. Neither, he submits, did the City allege he was not working because he was working in Belhar, rather than in Bellville CBD. He argues that: “It was improper for the Second Respondent to fabricate this reasoning for the Third Respondent in the absence of evidence that I spent the morning at home as alleged.”

[6]     In the Award the arbitrator finds as follows in regard to applicant:

“90. I then turn to Mr Harrison’s case. On the day in question he was scheduled to work overtime. Overtime is planned and is meant to meet the needs of the operations. Resources and personnel get deployed according to the need of an employer. There is operational need to deploy and post the employees in accordance with a need and requirement of its operations. It stands to reason therefore that only the supervisor will be able to distribute both the personnel and resources in accordance with the need of the employer.

91.             In the circumstances Mr Harrison was deployed and posted to Belville CBD to issue fines. Although Mr Barnes denies that he gave permission to Mr Harrison to go and fetch his bullet proof at his residence in Belhar. Under cross- examination he conceded that he was aware that Mr Harrison did not have a bullet proof vest. It stands to reason therefore that the mere fact that he was aware that he had no bullet proof vest that itself does not mean that permission was sought and granted. I also note that they had a tense relationship and communication between them was virtually impossible to be made.

92.             To me it does not matter whether he had permission or not because such would not make any difference. Even if I were to accept that Mr Harrison had permission to fetch his bullet proof vest such permission was confined to such a request and not more than that. He had no permission to work there if indeed he had worked. Mr Harrison could not give any evidence as to what he had done in performing his duties rather than that he was a backup to his colleagues. As I have already concluded that employees are deployed because of the need. Mr Barnes saw it fit to deploy in Belhar and its nearby surroundings two law enforcement officers. As the matter stands Mr Harrison failed to provide any evidence as which functions he did during the period in question.

93.             If he had some difficulties to return back to Bellville where he was posted he should have contacted Mr Barnes and related the same. In my view only Mr Barnes had the authority to reshuffle the personnel and without his permission. Mr Harrison had unnecessary added numbers in the area which actions were not in accordance with the operational needs.

94.             He knew that he did not work instead he added unnecessary numbers and he decided on his own to be a backup against the operational needs. He was not permitted to perform any duties in that area and he should have known that his actions would be considered as having not worked. Employees were required to work overtime and he should have deducted the hours he did not work when he submitted his overtime claim. For the above reasons I find on balance of probabilities that the respondent has discharged the onus that Mr Harrison did not work the period between 10h00 to 14h00.

95.             I am convinced that he acted fraudulent when he claimed for the said period instead he should have acted with integrity by deducting the said time when he made his claim. There is no remorse on his part as he embarked on denialism crusade without giving any reasonable explanation for his actions. In De Beers Consolidated Mines Ltd V CCMA & Others (2000) 21 ILJ (LAC) at 105 F-G it was stated “Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise”.

96.             I therefore find that there is no compelling evidence submitted to require me to interfere with the sanction of the respondent as the actions of Mr Harrison were destructive in nature and had gone to the heart of the employment relationship which is based on honesty and trust. Having considered the evidence before me I find on balance of probabilities that the respondent has discharged the onus that the dismissal of Mr Harrison was for a fair reason.” (emphasis mine)

[7]          A reading of the above does not establish that the Arbitrator found that Harrison had performed duties from 10 am until 2pm for which he claimed overtime. As the Arbitrator states there was no evidence provided by applicant to show what duties he had performed, only his say-so that he ‘provided back-up’ to the work that his colleagues performed in the vicinity of his home. Further, there was no paperwork to evidence that he had performed any duties himself. In such a situation a finding that Harrison ‘deserted his post’ and remained in the location of his home cannot in the Court’s view be found to be irrational or unreasonable.

[8]          The Arbitrator’s statement about safety officers being deployed according to operational need in various areas of the City is common sense and moreover applies to all employers and their employees. It was not improper and related to the issue of deserting his post.

[9]          The applicant further makes certain submissions regarding the failure of the Arbitrator to take relevant evidence into account. In particular, that the arbitrator failed to apply his mind to the events after the applicant went to his home to collect his vest. He avers he had no means to return to Bellville CBD until van Nierkerk and Links had an opportunity to take him back. He adds that: “during this period that I was waiting for them, I did not do nothing, but assisted them to the best of my abilities.”

[10]       A reading of the record of the Arbitration reveals that it was the applicant’s evidence under cross examination, that he could not remember how he got to work on the day in question. He also could not remember whether he had a pocket book on the day in question. In his evidence in chief, he testifies that:

“That morning we reported for duty at 8 oclock, that was on a Saturday morning. Right, we had a parade, we didn’t have a formal parade but we had a parade in the office and I remember I didn’t have a bullet proof on that day I asked Inspector Barnes if I can go and get my bulletproof. On a Saturday morning we have, it’s a normal thing for us to have breakfast in the morning so I normally have breakfast with Officer Links and Officer Van Nierkerk. I went to Officer Links, they said we going to have a breakfast time and then we got breakfast I told them , listen here, I must get my bullet proof, Inspector Barnes gave me permission to get my bulletproof but I must go with the vehicle that’s in the area and we went to my house to get my bullet proof and I went in….”

[11]    It was common cause at the arbitration that applicant and his colleagues went to breakfast in Milnerton. On applicant’s own version, it was only at breakfast that he told them that he left his bulletproof vest at home. As to the giving of permission to go with the vehicle stationed in his home area, Inspector Barnes’ evidence was that he did not do that. Barnes also testified that if applicant had asked the team going to Belville to take him to pick it up in their ten seater vehicle, it wouldn’t have been a problem:

“No, I am just saying that logical sense wouldn’t say get into a bakkie and go to that, logical sense would have been going with the people you posted with go fetch your bullet proof come back, that would be more probable and more logical.”

[12]    On applicant’s own version therefore, he had already decided to proceed with Links and Van Niekerk after they had reported on duty and before he went to Milnerton. He knew they were on duty in the Belhar vicinity. He did not suggest that he asked them to take him to his own posting in Bellville at any stage, before or after, the alleged incidents that occurred close to his home. The trip to Bellville only happened when all three of them proceeded there to do their stats and arrived there at two o’clock.

[13]    According to applicant he gave ‘back-up’ to his colleagues around the vicinity of his home until about 12.42 and then warmed up lunch in his house which lunch took about 35 minutes. From 12.42 and 2 o’clock, his version is as follows:

“We came out, got into the vehicle, there’s people that normally ask, ‘what happened here’, ‘what transpired’, there’s busy people you answer them and then when we got into the vehicle, Mr Links, because his EPIC is working with this thing that’s in the bakkie, the only (inaudible) got a complaint. He must attend to, and we went to attend to the complaint and when he was done with the complaint on our way, he closed the complaint, we went to Belville, where every, where all the Officers write their stats and that’s where I wrote all my fines for that time also.”

[14]       I am satisfied on a reading of the Award and the record, that there was no material evidence that the Arbitrator ignored that caused the proceedings to amount to an unfair trial of the issues. It is necessary to restate the test in Herholdt v Nedbank Ltd (Cosatu as Amicus Curiae)[2] 

“[25] In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.”

[15]       It is submitted on behalf of the applicant that the Arbitrator misconceived the nature of the enquiry because he “did not make a finding that the applicant did not work, but rather that the applicant working in an area that he was not assigned to amounted to ‘not working’”. This while the decision of the City to dismiss him was based on a contention that applicant did not work but stayed at home.

[16]       The applicant is clutching at straws in my view. In effect what the Arbitrator found, was if indeed the applicant was working in the sense that he was giving ‘back up’ to his colleagues, as he claimed, he had in any event deserted his post and it was fraudulent for him to claim overtime for the entire period that he did. There was no evidence presented at arbitration to establish that Links and Van Nierkerk required ‘back-up’ for the minor offences they ostensibly investigated in the area around applicant’s house. The Arbitrator found that the sanction of dismissal in respect of the applicant was fair in these circumstances. This finding is fortified by the facts that I have highlighted from the record i.e. that applicant had decided to travel with Links and Van Nierkerk without permission from the moment they had reported for duty, and that he never indicated a request that they should take him to Bellville before they were due to go there to do their statistics.

[17]       In all these circumstances, I am of the view that that the outcome of the Award is within the bounds of reasonableness and is not susceptible to review. I make the following order:

Order

1. The review application is dismissed.

H. Rabkin-Naicker

Judge of the Labour Court of South Africa

Representation

For the Applicant:    Greenberg & Associates

For the Third Respondent: C.M. Timothy Attorneys

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