On 16 August 2024 the Labour Court (Cape Town) handed down judgement in the matter of SAMWU obo R Cheemee v City of Cape Town and others.
Background
Cheemee worked for the City for 30 years with a clean disciplinary record. On dismissal he was a Senior Superintendent at the Solid Waste Disposal Facility at Kraaifontein, where Reliance Compost was the chipping contractor. Cheemee was responsible for managing Reliance. The tender specifies, inter alia hours of operation and that payment was to be done by the City to the contractor on volume (cubic meter) load mass.
The City instituted a forensic investigation spanning the period January 2012 to November 2018 regarding payments to Reliance. The investigation was found that on instruction from Cheemee the trucks of Reliance were allowed into the site before operating hours and was allowed to compile their own waybills, often they returned with the same load and issued a new waybill for it. Often, they would have loads of sand with green waste on top for which they issue a waybill. Cheemee would override the system afterwards and instruct the capturers to do the waybills to make it look as if the waybills were issued during working hours.
It was confirmed that Cheemee gave Reliance access to the site before it became operational. According to Cheemee it was to prevent stockpiling, environmental issues and a fire hazard. This, so Cheemee contended, constituted exceptionally circumstances. The City was billed by Reliance, for the early delivery notes for period December 2016 to February 2017 an amount to the tune of R2.25million.
On account of the information from the forensic investigation, The City levelled disciplinary charges against Cheemee, and he was found guilty of gross negligence and dishonesty. An unfair dismissal dispute was referred by Cheemee and at arbitration the commissioner, after referring to demotion as the appropriate sanction, found that the dismissal of Cheemee was both procedurally and substantively fair.
Arbitration
The commissioner (Ursula Bulbring for the SALGBC) found that Cheemee did not dispute that there was a deviation from the tender provisions under his watch. In so far as Cheemee asserted that he didn’t read the tender provisions, the commissioner found that whether he read the tender provisions or not is irrelevant. He knew the operating hours, but still allowed Reliance to enter and exit the site outside the normal operational hours. The commissioner noted further that there were no special measures put in place to ensure control and risk mitigation. She pointed out that Cheemee allowed trucks to enter and exit the site outside the normal operational hours, and failed to ensure that the weight was accurately captured by a City Official over the weighbridge.
The commissioner found that Cheemee created an ongoing risk for the City and acted contrary to the rules for an extended period of time. Further that his version that he believed he had authority to act in the manner he did, cannot be reasonably plausible or true. The Commissioner concluded that Cheemee acted in a grossly negligent manner, especially by him allowing the early loads to continue for the length of time it did. He acted without permission from his superiors and this, the commissioner found, alarming. She also found that there was an element of dishonesty in Cheemee’s conduct in that he shared his password (which he should not have done) and allowed data to be entered into the system after the fact.
Sanction
Though Bulbring found that there is no real evidence that Cheemee cannot be trusted as he continued to work for a period of more than two years without incident until the final forensic report. This indicates that dismissal was not the appropriate sanction at the time. Also, I note that he has 30 years’ unblemished service and that he did show some insight and remorse.
Bulbring concluded that Cheemee’s inability to act in a responsible way in a senior position means that he cannot return to this position. She confirmed the dismissal.
Review at Labour Court
The review, brought obo Cheemee was in relation to “A reasonable Arbitrator would have replaced the sanction of dismissal with a lessor sanction. This much was within her powers.” It was argued, on behalf of Cheemee, that the commissioner was wrong in finding that she did not have the discretion to award demotion as sanction. This because Bulbring stated that “A demotion would have been appropriate at the time of the enquiry, and were I empowered with that discretion, it would be my finding.”
It was argued that this was in line with the judgement in Rustenburg Platinum Mines Limited (Rustenburg Section) v CCMA and others (2006) 27 ILJ 2076, where the SCA held that a CCMA commissioner is entitled to interfere with the sanction imposed by the employer, and that the arbitrator’s sense of fairness must prevail over that of the employer. This judgement was set aside by the Constitutional Court.
The City argued that as Cheemee previously refused a demotion that that option was not available to the Commissioner. Further, that the commissioner is not permitted to interfere with the employer’s sanction. The City referred to the Constitutional Court judgement in the same matter of Sidumo and another v Rustenburg Platinum Mines Ltd and others 2008 (2) BCLR 158 (CC), where it was stated:
“It is a practical reality that in the first place it is the employer who hires and fires. The act of dismissal forms the jurisdictional basis for a commissioner, in the event of an unresolved dismissal dispute, to conduct an arbitration in terms of the LRA. The commissioner determines whether the dismissal is fair. There are therefore no competing “discretions”. Employer and commissioner each play a different part. The CCMA correctly submitted that the decision to dismiss belongs to the employer but the determination of its fairness does not. Ultimately, the commissioner’s sense of fairness is what must prevail and not the employer’s view. An impartial third party determination on whether or not a dismissal was fair is likely to promote labour peace.”
And at paragraph 79, the court (CC) stated:
“To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
In his assenting judgment in Sidumo, Ngcobo CJ, said [at par 178], with reference to whether the commissioner can interfere with the employer’s sanction:
“What this means is that the commissioner… does not start with a blank page and determine afresh what the appropriate sanction is. The commissioner’s starting point is the employer’s decision to dismiss. The commissioner’s task is not to ask what the appropriate sanction is but whether the employer’s decision to dismiss is fair.”
Finding of The Labour Court
The Labour Court confirmed that the commissioner does not have the authority to consider a sanction afresh and was accordingly correct in her assessment and recordal of the legal position. The application was therefore dismissed.
