Arbitrator : Lesane Sesele

PHSDSBC ARBITRATION AWARD

Arbitrator : Lesane Sesele Date of Award: 26 NOVEMBER 2008 Case No.: PSHS 197-08/09

In the between:

PSA obo J I Molefe (union / applicant) and

Department of Health- Free State (respondent)

Applicants’ representative: Mr A J L Greeff

Applicant’s address:P O Box 7673 Bloemfontein 9300 Telephone: (051) 403 1300 Telefax: (051) 403-1319

E-mail : [email protected]

Respondent’s representative: Mr M M Lekgela

Respondent’s address: P O Box 227 Bloemfontein 9300

Telephone: (051) 408 1632 Telefax: (051) 408 1993

-2- 1. DETAILS OF HEARING AND REPRESENTATION

1.1 The hearing was held in Bloemfontein on 16 October 2008.

1.2 Mr A J L Greeff, the union official, appeared for the applicant while Mr M M Lekgela, the Manager: Employment Relations Sub: Directorate, appeared for the respondent; and

1.3 The representatives chose not to lead evidence but to submit the heads of argument.

2. ISSUES IN DISPUTE

2.1 The applicant’s case was whether the sanctions imposed by the presiding officer of the disciplinary hearing were appropriate for the nature of misconduct committed or not; and

2.2 Whether the Head of the Department could alter the sanctions imposed by the Presiding Officer.

3. BACKGROUND TO THE ISSUE

3.1 The applicant had pleaded guilty to the charge of practising illegally from 2005 as a Senior Optometrist (level 10) while he was aware that he was not registered as such in compliance with the professional regulations.

3.2 The presiding officer of the disciplinary hearing had imposed the sanctions of a final written warning, one-month suspension and counselling. The applicant did not appeal against the sanctions. The head of department subsequently invited the applicant to make representations on why the imposed sanctions should not be changed to a dismissal. The sanctions were changed to a dismissal without the applicant having submitted representations.

4. SUBMISSIONS

4.1 Mr Greeff argued that:-

4.1.1 The sanction of dismissal was too severe; -3-

4.1.2 The head of department did not have the power to alter the sanction imposed by the Presiding Officer; PSA obo Venter v Laka NO & Others (2005) ILJ 261 ILJ 2390 (LC)

4.1.3 Clause 7.3 of the Disciplinary Code and Procedure for the Public Service, Resolution 1 of 2003 provides that the chairperson of the hearing must communicate the final outcome of the hearing to the employee within five working days after conclusion of the hearing. The outcome should then be recorded in the employee’s personal file;

4.1.4 The words “final outcome” were indicative of the fact that the head of department has no power after the “final outcome” was announced;

4.1.5 The Presiding Officer, having been appointed by the head of department, makes the final decision during the disciplinary proceedings;

4.1.6 Escalation of the sanction meant that there was political or personal determination in the disciplinary process; and

4.1.7 It was submitted that the respondent should withdraw the sanction of dismissal; and

4.1.8 The withdrawn sanction should be substituted with the sanctions of a final written warning, one-month suspension without pay and counselling.

4.2 Mr Lekgela argued that:-

4.2.1 The sanctions imposed by the presiding officer were not appropriate hence same were interfered with;

Greater Letaba Local Municipality v Mankgabe NO & Others (2008) 19 SA LLR (LC)

4.2.2 The applicant was afforded the opportunity to present further mitigating factors on why his services should not be terminated; and

4.2.3 The applicant elected not to make the representations and his services were terminated on 1 July 2007 consistent with section 17(2)(e) of the Public Service Act 103 of 1999, as amended.

Semenya & Others v CCMA & Others [2006] 6 BLLR 521 (LAC) 4.2.4 The head of department was entitled to interfere with the sanctions imposed by the presiding officer.

PSA of SA obo Venter v Laka NO & Others [2006] 1 BLLR 20 (LC)

MEC for Finance, KwaZulu- Natal & Another v Dorkin NO & Another [2008] 6 BLLR 540 (LAC)

5. ANALYSIS OF SUBMISSIONS

5.1 The parties seemed to have incorrectly formulated the first issue in dispute as the appropriateness or otherwise of the sanctions imposed by the presiding officer. There was no evidence of the alleged political interference. I therefore refrained from making findings in this regard.

5.2 The real issue for determination was whether the head of the department had the power to alter the sanctions to one of a dismissal;

5.3 The head of the department had invited the applicant to submit representations as to why the sanction of a dismissal should not be imposed. The applicant elected not to make representations and was subsequently dismissed.

5.4 The decision in PSA of obo Venter v Laka NO & Others [2006] 1BLLR 20(LC) was more in line with the case under consideration. In that case the sanction of a final written warning was interfered with resulting in the dismissal of the employee for fraud. When interfering with the imposed sanction the director-general relied on sanction 17(1)(a) of the Public Service Act, 1994. The intervention was found not to be a rehearing.

5.5 In the case under consideration the applicant practised as Senior Optometrist from 2005 while he was not registered as such with the applicable professional body. It appeared that registration as such was a requirement in terms of the applicable regulations. This was, in my view, a serious contravention which indeed entitled the head of department to interfer with the imposed sanction. Authority hereof is the PSA obo Venter v Laka NO & Others referred to above. Consequently, I made the following award:- 6. AWARD

6.1 The dismissal of the applicant was substantively and procedurally fair; and

6.2 I made no award as to costs.

Arbitrator : Lesane Sesele