- The Labour Court found that an arbitrator wrongly decided a dismissal dispute without hearing evidence despite clear factual disputes.
- A municipal employee’s dismissal was set aside after the commissioner incorrectly recorded disputed facts as common cause.
- The matter has been sent back for a fresh arbitration focused on inconsistent discipline by the municipality.
The Labour Court in Johannesburg has set aside an arbitration award that upheld the dismissal of a Mangaung Metropolitan Municipality cashier, finding that the commissioner committed a serious irregularity by deciding the matter without oral evidence and by incorrectly recording disputed facts as common cause.
Judge T Gandidze ruled that the arbitration process was fundamentally flawed and ordered that the dispute be heard afresh by the South African Local Government Bargaining Council before a different commissioner.
At the heart of the case was whether the municipality had applied discipline consistently after cashier TS Scheepers was dismissed for under-banking municipal funds, while another employee, allegedly guilty of similar misconduct, was accepted.
Arbitration decided without evidence
Scheepers, represented by the South African Municipal Workers Union, was dismissed in February 2017 after admitting to taking municipal money. Her dismissal was upheld at arbitration, where the commissioner accepted that the facts were common cause and decided the matter purely on documents and written argument.
The Labour Court found this approach untenable in circumstances where critical facts were plainly disputed.
Judge Gandidze emphasised that while some cases may be decided without viva voce evidence, this is only permissible where sufficient agreed facts are properly placed before the commissioner. In this matter, that threshold was not met.
“As set out by the Labour Appeal Court, while some cases cannot be arbitrated in the absence of viva voce evidence or a stated case, others can be arbitrated without either,” the judge explained. “The determining factor is whether sufficient facts are before the commissioner.”
The court found that the commissioner should not have proceeded without evidence where disputes existed about how Scheepers pleaded at her disciplinary hearing and whether her conduct was comparable to that of other employees.
Incorrectly recorded “common cause” facts
A decisive flaw identified by the court was the commissioner’s finding that it was common cause that Scheepers had pleaded not guilty at her disciplinary hearing, unlike another employee, Portia Rapudi, who pleaded guilty and was not dismissed.
This factual finding was central to the commissioner’s conclusion that the two cases were distinguishable and that dismissal was therefore fair. However, Judge Gandidze found that this was simply incorrect.
“To the extent that the commissioner found it common cause that Scheepers pleaded not guilty in the disciplinary proceedings, this finding is incorrect,” the judge held. “The parties were in dispute over the issue, and evidence was required to resolve it.”
The court noted that union submissions explicitly recorded the plea as a disputed issue and that even the disciplinary chairperson’s ruling suggested an admission of wrongdoing. Despite this, the commissioner treated the matter as settled, without hearing any evidence.
Inconsistent discipline is still unresolved
The court also criticised the fragmented way in which information about other dismissed employees was handled, including references to another cashier dismissed for similar misconduct that were ultimately ignored by the commissioner.
“This is another reason why the matter must be remitted,” Judge Gandidze said, adding that all relevant evidence must be placed before a new commissioner to properly determine whether discipline was applied inconsistently.
Given that factual disputes remain unresolved, the Labour Court declined to substitute its own decision on the fairness of Scheepers’ dismissal. “It cannot be said that this court is in as good a position as the commissioner to make a finding on the substantive fairness or otherwise of Scheepers’ dismissal when there are disputes of fact that must still be resolved,” the judge ruled.
Fresh hearing ordered
The arbitration award was reviewed and set aside, and the dispute was sent back to the bargaining council for a de novo hearing, limited to whether the municipality applied discipline inconsistently and what relief, if any, Scheepers should receive.
Notably, this will be the third arbitration hearing in the long-running dispute. “There is no order as to costs,” Judge Gandidze concluded.
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