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[2022] ZALAC 101
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Burton and Others v MEC for the Department of Health Eastern Cape Province and Others (PA11/16) [2022] ZALAC 101; (2022) 43 ILJ 2284 (LAC); [2022] 10 BLLR 883 (LAC) (5 July 2022)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
reportable
Case
No: PA11/16
In
the matter between:
COLIN
PETER BURTON

Appellant
NKULULEKO
DOMINIC MANTANA
Second Appellant
MLINDELI
MSENGANA
Third Appellant
HEMSLEY
TOTO KONTYO
Fourth Appellant
and
M
E C FOR THE DEPARTMENT OF HEALTH
EASTERN
CAPE PROVINCE

First Respondent
THE
PUBLIC HEALTH AND SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
Second Respondent
SILAS
RAMUSHWANA
Third Respondent
Heard:
22 March 2022
Delivered:
5 July 2022
Coram:
Phatshoane ADJP, Savage et Tokota AJJA
ORDER
SAVAGE
AJA (PHATSHOANE ADJP concurring):
1.
The appeal is
dismissed.
2.
The cross-appeal
succeeds in part and the order of the Labour Court is set aside and
substituted only to the following extent:
‘
The
review application in relation to Mr V Mheshe is dismissed with no
order as to costs.’
JUDGMENT
TOKOTA
AJA
Introduction
[1]
This appeal, with the leave of the Labour Court (Whitcher
J), is
against the order of that Court in terms of which it set aside on
review the award of the third respondent (the arbitrator).
The Labour
Court found that the dismissals of the first to fourth appellants
(the appellants) were substantively fair. The appeal
is concerned
only with the consistency in the sanctions imposed on the appellants
in circumstances in which certain of the appellants’
colleagues
received a final written warning for the same misconduct.
[2]
The first respondent, the MEC for the Department of Health
(the MEC),
cross-appeals against the orders of the Labour Court in terms of
which the review application of Mr Mheshe, cited as
the sixth
respondent in the proceedings before the Labour Court, was upheld
where it ordered that his matter be remitted to the
Council for
arbitration
de novo
. Mr Mheshe did not appeal against the
order of the Labour Court, nor did he oppose the MEC’s
cross-appeal.
Relevant
factual background
[3]
During August 2008 the department awarded a contract
of service to a
company called National Airways Corporation (Pty) Ltd (NAC) to
provide air ambulance services and what was called
‘
outreach
programme’
. In terms of the contract, NAC was to provide
two helicopters and one fixed wing aircraft to render the said
services. The primary
duty of the NAC was to respond to medical
emergencies and evacuate patients to fixed medical facilities and
undertake inter hospital
transfer of patients within the Eastern Cape
Province. The two helicopters and the fixed wing were to be at the
sole disposal and
authority of the Emergency Medical Rescue Services
(EMRS) of the department and could not be made available to any other
person
without the written approval from the Director or Deputy
Director with the concurrence of the Head of the Department.
[4]
During June 2009 Messrs Maharaj, Mheshe, Mxesibe (employees
within
the EMRS division) and Mr Dreyer, an employee of the service
provider, flew to Cape Town to meet one Mr Fahlem to discuss
the
purchasing of ambulances. During the trip Mr Dreyer offered Mr
Maharaj a flight to Bloemfontein for him and departmental officials

to attend a Confederations Cup soccer match. Mr Dreyer was a
paramedic in the fixed wing aircraft. The aircraft was owned by
Aerocare,
Mr Dreyer’s employer. The conversation between Messrs
Maharaj and Dreyer was within the hearing shot of Mr Mxesibe.
[5]
On their return to East London, and on the instructions
of Mr
Maharaj, Mr Mxesibe informed the EMRS metro heads of Mr Dreyer’s
offer. He contacted the appellants (except the first
appellant who
was called by Mr Mabenge, the Chief Ambulance Officer), including
Messrs Gcolothela, Bokoda and Mabenge and the late
Mr Kontyo and
invited them to attend the soccer match in Bloemfontein. The first
appellant indicated to Mr Mabenge that he was
not a soccer supporter
but Mr Mabenge insisted that he attends. The trip to Bloemfontein was
scheduled for 24 June 2009. The following
officials in the EMRS
division attended the match: Mr Mantana, the Chief Ambulance Officer
East London; Mr Msengana, the Chief
Ambulance Officer Queenstown; Mr
Mxesibe, the Provincial Fleet Manager and Mr Gcolothela, the Deputy
Chief Ambulance Officer Mount
Ayliff; Mr Kontyo, Mr Burton and
Mabenge.
[6]
On 24 June 2009, the air ambulance had, at the request
of Drs Mdaka
and Madiba, transported a patient from Mthatha to East London and was
to return to the base in Bloemfontein. None
of the officials bought
entrance tickets at the match for themselves nor did they interact
with any of their counterparts in Bloemfontein.
[7]
The trip to Bloemfontein was an entertainment gesture
by Aerocare
which was a sub-contractor to NAC. Aerocare paid for transport,
accommodation and all expenses attendant to the match
such as
entrance tickets, transport arrangements, meals and accommodation.
The officials returned to East London on 25 June 2009.
None of them
reported the incident to the department nor did they give any report
of what they had gone to do in Bloemfontein.
Mr Mabenge passed away
immediately after the trip.
[8]
Subsequent to the trip, there was a media report of the
incident. A
member of the Provincial Legislature, Mr J Pienaar, directed
questions to the MEC responsible for the department. The
substance of
the query was whether the MEC for Health was aware of the service
provider of the department (Fixed Wing Aircraft)
having offered free
service to senior officials by flying them to Bloemfontein to watch a
confederations soccer cup match. The
MEC passed the questions to Mr
Zitumane, the HoD, who in turn passed them to Mr Maharaj for his
response. Mr Maharaj convened a
meeting in Bhisho where some of the
appellants attended with a view to provide answers. I accept that Mr
Maharaj had already formulated
answers when he called the meeting.
[9]
Mr Maharaj was less than frank in his response to the
questions which
were directed to the MEC by a member of Legislature and stated that
the trip to Bloemfontein was as a result of
an invitation from the
Acting HoD, Free State. To that end, he attached a letter to that
effect. When he did so, he knew full well
that such an invitation was
never approved by the Hod. He stated that paramedical support was
provided for the two matches that
were played in the Free State; that
the flight was at no cost to the department in that the aircraft was
in any event on its routine
maintenance to Free State and that no
offer of gift or bribe of any nature was made by the company.
[10]
Mr Zitumane was not happy with the response from Mr Maharaj thus he
decided
to investigate the matter. On or about 31 July 2009 he
appointed Price Waterhouse Coopers (PWC) to conduct a forensic
investigation
into the circumstances of the Bloemfontein trip.
[11]
On 5 August 2009 Mr Maharaj met with Messrs Gcolothela, Kontyo and
Msengana
and informed them that the trip was under investigation.
[12]
After PWC had completed its investigations it submitted a report to
the HoD
with recommendations that disciplinary action be taken
against the implicated employees. Mr Maharaj was suspended in August
2009.
Pursuant to this misconduct charges were preferred against the
appellants including Mr Maharaj. On 22 January 2010 the department

signed an exit agreement with Mr Maharaj in terms of which he was
allowed to resign. The department, represented by Dr Marimuthu

Pillay, in her capacity as the Superintendent-General, undertook not
to proceed with the disciplinary process against Mr Maharaj.
In
addition, he would be paid his pension and other exit benefits and
would not be prejudiced in any way. In return, Mr Maharaj
undertook
to make an affidavit regarding his response to the Parliamentary
questions in respect of the Bloemfontein trip.
[13]
Mr Mheshe, who was due to retire in two months’ time, also
requested
to be offered an early retirement. The request was refused
and therefore he had to face the disciplinary enquiry where he was
found
guilty of misusing or conspiring to misuse the aircraft. Like
Mr Maharaj, he did not fly to Bloemfontein. He was found to have
played a substantial role in organising the trip
,
second only to the role played by Mr Maharaj.
[14]
On 16 April 2010 Mr Mxesibe concluded what was called “
plea
bargaining and sanction agreement
” with the department in
terms of which he agreed to plead guilty. He also undertook to give
frank and honest evidence against
the other employees in return for a
sanction of (a) final written warning valid for six months in respect
of certain charges; and
(b) suspension without pay for a period of
two months.
[15]
The substance of the charges preferred against the remaining four
appellants
was that: (a) they undertook an unauthorised trip to watch
a confederations cup soccer match in Bloemfontein using an aircraft
of the department’s service provider for their own benefit and
for which the department was invoiced; (b) they accepted a
benefit
from the service provider which included accommodation and entrance
tickets to the soccer match; (c) they used departmental
transport
without authority which conveyed them from East London to the airport
for purposes of flying to Bloemfontein; (d) they
provided false
answers to the MEC in respect of questions relating to the trip; and
(e) they failed to report or account for the
trip to the department.
[16]
The four appellants were found guilty of gross dishonesty in that
they accepted
gifts and/or benefits from the service provider and of
having provided false explanations to the MEC regarding the questions
raised
by a member of the Provincial Legislature in relation to the
Bloemfontein trip. They were dismissed.
[17]
Messrs Gcolothela and Mxesibe were also found guilty but given final
written
warnings. The reason for giving Mr Mxesibe the final written
warning was because he concluded a plea bargain with the employer.
Mr
Gcolothela was found guilty of benefiting from the trip but not
guilty of concealing that an irregular trip had taken place.
He also
did not participate in the meeting with Mr Maharaj, where a false
report was formulated for the MEC’s consideration.
[18]
Dissatisfied with the outcome of the disciplinary enquiries, the
appellants
referred an unfair dismissal dispute to the second
respondent, the Public Health and Social Development Sectoral
Bargaining Council
(the Council), for conciliation and then
arbitration.
The
Arbitration
[19]
The arbitrator found that the employer applied discipline
inconsistently by
giving other employees written warnings and/or
settlement agreements. He held that the evidence demonstrated that
most of the appellants
were “
clueless
” as to
whether the trip to Bloemfontein was authorised or not. He found that
Mr Maharaj was a law unto himself and the mastermind
of the trip who
together with the service provider were aware of the nefarious nature
of the trip. He was of the view that the
employer did not adopt
progressive and corrective approach to discipline.
[20]
The arbitrator held that the employer failed to consider:(a) the harm
caused
by the employees;(b) the extent to which additional training
and instruction could result in the employees’ not repeating

the same misconduct; and (c) their length of service. In his view the
misconduct was not of a degree that could damage the employment

relationship to the extent of being rendered intolerable.
[21]
Accordingly, the arbitrator concluded that the dismissals of the
appellants
were procedurally fair but substantively unfair. He
ordered that the appellants be reinstated with retrospective effect
from 1
September 2010 on terms and conditions not less favourable to
those which they enjoyed prior to their dismissals except Mr Mheshe,

who had retired at the time of the award. He further awarded
compensation to all the appellants including Mr Mheshe of specified

amounts for a period of two and half years. In addition, he
sanctioned that the appellants be issued with final written warnings

valid for six months
.
The
Labour Court
[22]
Dissatisfied with the arbitrator’s award the employer took the
arbitration
award on review to the Labour Court. The Labour Court
held that the arbitrator’s finding that the employer’s
dismissals
were inappropriate was one that no reasonable decision
maker could make. It held that the arbitrator misunderstood and
misapplied
the evidence and the law on inconsistency.
[23]
The Labour Court reasoned that the cases of Messrs Gcolothela and
Mxesibe were
sufficiently distinguishable from those of the
appellants. This was on the basis that Gcolothela was found guilty of
benefiting
from the trip but not concealing that an irregular trip
had taken place. He also did not participate in the meeting with Mr
Maharaj,
where a false report was formulated for the MEC’s
consideration. In the case of Mr Mxesibe, the Labour Court reasoned
that
by entering into a plea bargaining with his employer he enabled
the employer to acquire evidence of wrongdoing within the group.
It
held that the important feature in the circumstances was that the
agreement itself was not aimed at recognising that the charge
against
him was not serious but it was rather ‘
a necessary
compromise by the employer to induce the co-operation of an
accomplice in a disciplinary hearing’
.
[24]
With regard to the treatment of Mr Maharaj
,
the Labour Court was of the opinion that his case (Maharaj) was
comparable to Mr Mheshe’s case. It held that the difference

between the two comparators was the legal exit. Insofar as Mr Maharaj
was allowed to leave the department with a clean slate through
his
resignation
,
Mr Mheshe should likewise
have been accorded the same treatment by being allowed to leave the
department not under a cloud but through
retirement which he had
requested.
[25]
The arbitrator’s award to the effect that the appellants be
reinstated
was reviewed and set aside and replaced with an order that
the dismissals of the appellants were substantively fair. The Court
dismissed the application to review and set aside the arbitrator’s
finding that the dismissal of Mr Mheshe was substantively
unfair. The
arbitrator’s reinstatement order of two and half years’
salary, later varied to three years in favour of
Mr Mheshe, was
reviewed and set aside. The Labour Court remitted the issue of the
relief in respect of Mr Mheshe to the Council
for determination
de
novo
with no order as to costs.
Issues
for determination
[26]
Although there was an initial attempt to challenge the finding of
guilt of
the appellants
Mr Dodson SC
who, together with Ms
Maharaj-Pillay
, appeared for the first to the third
appellants, conceded that the only issue to be determined is that of
inconsistency on the
sanctions imposed upon the appellants compared
with those of Messrs Maharaj, Gcolothela and Mxesibe. Mr
Nduzulwana,
who appeared for the fourth appellant, followed the same argument as
Mr
Dodson
.
[27]
Therefore, the following issues arise for determination in this
appeal. First,
whether the first respondent applied the discipline to
its employees who were charged with misconduct inconsistently.
Secondly,
whether the Labour Court erred in dismissing the
application to review and consequently setting aside the arbitrator’s
finding
that the dismissal of Mr Mheshe was substantively unfair and
remitting it to the Council to be determined
de novo.
The
discussion
[28]
The parity principle
requires that like cases be treated alike which is an element of
disciplinary fairness. It applies where there
are two or more
employees engaged in the same or similar conduct at the same time but
only one or some of them are disciplined
or where different penalties
are imposed. Unfairness flows from the principle that like cases
should, in fairness, be treated alike.
[1]
[29]
Where
a number of employees commit the same misconduct, but the employer
arbitrarily selects some of them to be disciplined, leaving
the other
transgressors unaffected, the employer is guilty of applying the
discipline inconsistently.
[2]
In
Reckitt
& Coleman (SA) (Pty) Ltd v CWIU and others
[3]
this Court held that
there is a difference between cases where employees are arbitrarily
selected for discipline and cases in which
an employer selects for
discipline from a mass of workers only those against whom it has
evidence.
[30]
The
other context is where historical inconsistency is raised as a basis
to challenge the fairness of the sanction of dismissal
.
[4]
In
this
instance, there would be no
dispute
that
what the employee was charged with was indeed valid and proper to
constitute misconduct, of which the employee is guilty
.
However,
the
issue would be that the dismissal of the employee for such misconduct
is inconsistent with the sanction imposed by the employer
for similar
and related misconduct, in the past, in respect of other employees.
In
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[5]
,
the Court, in this context, said:
‘
The
courts have distinguished two forms of inconsistency - historical and
contemporaneous inconsistency. The former requires that
an employer
apply the penalty of dismissal consistently with the way in which the
penalty has been applied to other employees in
the past; the latter
requires that the penalty be applied consistently as between two or
more employees who commit the same misconduct.
A claim of
inconsistency (in either historical or contemporaneous terms) must
satisfy a subjective element - an inconsistency challenge
will fail
where the employer did not know of the misconduct allegedly committed
by the employee used as a comparator (see, for
example,
Gcwensha
v CCMA & others
[2006]
3 BLLR 234
(LAC) at paras 37-38). The objective element of the test
to be applied is a comparator in the form of a similarly
circumstanced
employee subjected to different treatment, usually in
the form of a disciplinary penalty less severe than that imposed on
the claimant
’.
[31]
The soundness of the
principle of parity is that it brings about certainty within the
employment sphere. In that way employees would
be aware in advance of
what the resultant sanction would be in the event of an infraction of
a particular rule applicable in the
workplace. This of course is not
a principle which is cast in stone and is to be applied inflexibly
regardless of the peculiarity
of a case. In
Absa
Bank Limited v Naidu and Others
[6]
Ndlovu JA stated thus:
“
However,
it ought to be realised, in my view, that the parity principle may
not
just
be applied willy-nilly without any measure of caution. In this
regard, I am
inclined
to agree with Professor Grogan when he remarks as follows:
[7]
‘
[T]he
parity principle should be applied with caution. It may well be that
employees who thoroughly deserved to be dismissed profit
from the
fact that other employees happened not to have been dismissed for a
similar offence in the past or because another employee
involved in
the same misconduct was not dismissed through some oversight by a
disciplinary officer, or because different disciplinary
officers had
different views on the appropriate penalty.’
[32]
Save for Mr Maharaj and Mr Mheshe all the employees undertook an
unauthorised
trip to Bloemfontein; they all benefitted from the gift;
the trip was undertaken through a service provider for the
department;
none of the employees enquired about the role they had to
play at the match regard being had to the fact that none of them were

equipped for official duties; one of them was present when the trip
was discussed with Mr Maharaj and knew full well that it was
all
about entertainment; no report was made after the trip until it
emerged from the media and a query was raised in the Provincial

Parliament; the first appellant had even remarked that he was not a
soccer supporter which was an indication that he knew that
he was
going to watch the match; when Mr Maharaj formulated the answers to
the MEC’s questions none of those that were present
made any
inputs. So, that being the case, it is immaterial if any one of them
was not present at the meeting that was arranged
by Mr Maharaj.
[33]
Furthermore, I do not agree that most of these managers were
“
clueless
about whether the trip was authorised or
not”.
That finding is not consistent with the facts of the
case. All the employees were senior in their ranks. There was an
attempt on
their part to shield behind the so-called instructions to
go to Bloemfontein. If this was an instruction there would have been
defined parameters of the trip. It must have been clear to all them
that the trip was outside their official duties
.
In my view, this was a single act of an offer and acceptance of a
benefit from the department’s service provider and none
of the
employees were forced to accept it.
[34]
The justification for differentiated sanctions was partly based on
the premise
that some of the employees were guilty of an unauthorised
trip (charge 1) and some guilty of an unauthorised use of
departmental
transport (charge 3). In my view, the distinction of
employees on the basis of the charges they faced was superficial in
comparison
to the treatment accorded to Messrs Maharaj, Gcolothela
and Mxesibe as I will now demonstrate.
[35]
I commence with Mr Maharaj. It is common cause that he was the sole
organiser
of this trip. He fraudulently obtained a letter from one Mr
Mohamed, dated 16 September 2009, purporting to be coming from the
National Department of Health, Pretoria. In this letter Mr Mohamed
lied and stated that (a) representatives from the Department
of
Health Eastern Cape and KwaZulu-Natal attended a briefing and
orientation sessions which was held on 24 June 2009 in Bloemfontein

(b) that the briefing addressed a variety of activities including VIP
Medical Centre, Players’ Medical centre, Public Medical
Centre
etc (c) that these two Provinces were not part of Confederations Cup
in 2009 venue centres and (d) that the representatives
were given a
‘feel’ of what was expected of the Provinces. The
inference is irresistible that Mr Mohamed lied following
an influence
from Mr Maharaj.
[36]
The circumstances under which the trip was organised makes one
suspect that
there was an intention to have the department pay for
it. This is so because the trip was organised in such a manner that
the date
thereof would coincide with the trip from Mthatha
transporting a patient to East London. The invoice for the
Bloemfontein trip
was indeed submitted with the invoice from Mthatha.
Unfortunately for the service provider this was discovered before
payment could
be effected. The service provider submitted an invoice
for Bloemfontein in the amount of R101 250. It was recorded in
this
invoice “
25/6/09 Outreach/Med personnel inspector Air
rescue centre”.
As it turned out, there was no such
“
outreach
” flight that took place. The
invoice dated 25 June 2009 was meant to cover the trip to
Bloemfontein but payment thereof was
stopped because of the impending
investigation by PWC.
[37]
Despite the major role played by Mr Maharaj he was let off the hook.
As already
said, whilst on suspension in August 2009 he arranged with
the HoD, one Dr Marimuthu Pillay, to sign an agreement referred to
above.
During the hearing in the Labour Court further evidence was
permitted to show that Mr Maharaj was subsequently re-employed
albeit
in a lower rank in 2014. Mr Maharaj may not have been a comparator in
respect of the case of appellants save with regard to Mr
Mheshe,
which case is considered in the cross-appeal. However, it remains
significant that despite the serious nature of his misconduct
he got
off scot-free without any loss of the benefits of employment.
[38]
With regard to Mr Mxesibe, in my view, the fact that he pleaded
guilty cannot
be considered a distinguishing factor. An admission of
guilt in circumstances where the employee is faced with an open and
shut
case becomes a neutral factor and cannot be counted as a weighty
justification for imposing a different sanction. The organised
trip
to Bloemfontein was an open secret and none of the attendees would
have been in a position to credibly deny it. Furthermore
,
Mr Mxesibe was not frank in his admission of guilt, for example,
although he was within the hearing range when the trip was planned

between Messrs Maharaj and Dreyer he pretended not to have heard
everything. Moreover, the presiding officer in the disciplinary

hearing expressed his dissatisfaction with his evidence and treated
it ‘
with some reservations’
, a factor which in my
view weighs heavily against distinguishing him from the appellants.
In holding differently, the Labour Court
erred.
[39]
By the same token there was no ground for distinguishing the case of
Mr Gcolothela
from that of the appellants on the basis that he did
not attend a meeting called by Mr Maharaj. His presence there would
have made
no material difference given the fact that Mr Maharaj
prepared the answers to the Provincial Parliamentary questions alone.
The
meeting itself was merely called to go through the motions. As
alluded to above, Mr Gcolothela attended the match; he benefitted

therefrom and also concealed it from the authorities. Like the other
employees, he did not make any report about it until it was

questioned by a member of the Provincial Legislature. That he was not
found guilty of concealing the trip is, in my view, immaterial.
[40]
In the end is should be considered whether the award issued by the
arbitrator
was one that the reasonable decision maker could have
reached. On the aforegoing exposition the answer must be in the
affirmative.
Cross-Appeal
[41]
I now turn to consider the cross-appeal by the department against the
order
of the Labour Court insofar as it dismissed the review
application relating to Mr Mheshe and remitted his case to the
Council to
be heard
de novo.
The basis of Labour Court’s
dismissal of the review was that the case of Mr Mheshe was comparable
to that of Mr Maharaj.
The court reasoned that Mr Maharaj was allowed
to resign and escape disciplinary process whereas Mr Mheshe’s
request to be
allowed to retire was refused. At that time Mr Mheshe
was left with less than two months before his retirement was due.
[42]
Mr Mheshe did not participate in this appeal. We were advised from
the bar
by Mr
Nduzulwana
that Mr Mheshe is now mentally unfit
and thus no instructions could be obtained from him.
[43]
The role that was played by Mr Mheshe in co-ordinating the
Bloemfontein trip
was almost similar to that of Mr Maharaj. He was
present when Mr Maharaj arranged this trip with Mr Dreyer on their
way to Cape
Town. When they returned from Cape Town Mr Mheshe invited
certain officials to attend the Bloemfontein soccer match. Like Mr
Maharaj
he did not attend the soccer match. He attended the meeting
that was called by Mr Maharaj to formulate a response for the MEC.
Like Mr Maharaj he was aware that Mr Maharaj was misleading the MEC
in the response.
[44]
It was argued on behalf of the department that the agreement between
the department
and Mr Maharaj was against public policy and therefore
unenforceable. Consequently, so the argument ran, Maharaj could never
be
a legitimate comparator. It was submitted further that the Labour
Court erred in referring the matter back to the arbitrator in
that it
would not be competent for the arbitrator to order reinstatement by
reason of the fact that Mr Mheshe has retired and therefore
would not
be able to tender his services.
[45]
It cannot be discerned why Mr Mheshe was treated differently from Mr
Maharaj.
The employer, in appropriate circumstances such as the
present, ought not to treat its employees differently. The Labour
Court
correctly found the distinction to be a mere technicality. Both
employees sought a remedy to end their employment relationship when

they were faced with the accusations of misconduct. The only
difference was the reason advanced for the request to end employment.

If the employer was keen to conclude an agreement with Mr Maharaj in
such a manner that he was not prejudiced following his conduct,
Mr
Mheshe, who was equally blameworthy like Mr Maharaj, was entitled to
the same treatment. It follows, therefore, that the dismissal
of Mr
Mheshe was substantively unfair, as the Labour Court correctly found.
[46]
Taking into account the period that this case took before it reached
finality
it is not in the interests of justice to remit the case of
Mr Mheshe to the Council. Accordingly, the order of the Labour Court

remitting the matter must be set aside.
Remedy
[47]
This brings me to the
consideration of an appropriate remedy. Section 193(1) of the Labour
Relations Act
[8]
(LRA) provides
that once the arbitrator or the Labour Court finds that the dismissal
was substantively unfair it must order reinstatement
or re-employment
or compensation to the employee concerned. Where it is not reasonably
practical to order reinstatement or re-employment,
compensation would
be an appropriate remedy. This is so because reinstatement means
placing the employees in the same positions
and the conditions of
service which existed prior to their dismissal.
[9]
[48]
At the time the
arbitration award was made Mr Mheshe had already retired. An order
for his reinstatement would have therefore been
incompetent in that
it was not practically possible for him to resume his work. The
appropriate remedy in the circumstances would
therefore be
compensation for the loss of his two months’ salary.
[10]
[49]
Mr Maharaj concluded an agreement with the department wherein the
department
undertook to give him all the benefits to which he would
have been entitled. It was not clarified which benefits the
contracting
parties had in mind. It was further agreed that he would
not be prejudiced by his resignation. In this regard again it remains
unclear what prejudice the parties had in mind. However, the dictates
of equity and fairness would require that Mr Mheshe should
also not
suffer any prejudice consequent upon termination of his employment
due to misconduct. In the premises, he should be entitled
to acquire
all the benefits to which employees who retire would receive.
[50]
The other appellants’ case is somewhat different from that of
Messrs
Mxesibe and Gcolothela. As will be shown, their conduct of
this litigation is one factor which weighs heavily against
reinstatement
with retrospective effect from the date of their
dismissals. Had it not been for the different treatment which was
accorded to
them, this would have been a proper case where a
dismissal would have been an appropriate sanction.
[51]
Ordinarily, reinstatement
is accompanied by back-pay. The court has a discretion as to the date
of reinstatement save that it cannot
be a date earlier than the date
of dismissal.
[11]
In my view,
when ordering reinstatement, it is important to have regard to
section 23 of the Constitution for the Republic of South
Africa,
1996, which provides that everyone has a right to a fair labour
practice. The right to a fair labour practice applies to
both the
employer and employee.
[52]
Twelve years have elapsed
since their dismissal. The probability is that those posts have been
filled. Although we do not have evidence
in this regard it is unheard
of that the department would operate without these posts being
filled; In
Equity
Aviation
[12]
it
was said:
“
As the language of
section 193(1)(a) indicates, the extent of retrospectivity is
dependent upon the exercise of a discretion by
the court or
arbitrator. The only limitation in this regard is that the
reinstatement cannot be fixed at a date earlier than the
actual date
of the dismissal. The court or arbitrator may thus decide the date
from which the reinstatement will run, but may not
order
reinstatement from a date earlier than the date of dismissal.”
[53]
As foreshadowed in the preceding paragraphs the appellants did not
approach
the council and the courts with clean hands. They should
thus not be allowed to benefit from their misconduct. In my view,
this
is not a case where reinstatement ought to be ordered. Although
they were not charged with corruption their conduct fits in well

within the ambit of corruption which is a scourge in the Government
departments.
[54]
Legislation on Prevention
and Combating of Corrupt Activities Act
[13]
was enacted for purposes of combating corruption. It’s preamble
reads inter alia:
“
AND WHEREAS
corruption and related corrupt activities undermine the said rights,
endanger the stability and security of societies,
undermine the
institutions and values of democracy and ethical values and morality,
jeopardise sustainable development, the rule
of law and the
credibility of governments, and provide a breeding ground for
organised crime…”
[55]
The conduct of the appellants undermined the values of democracy,
ethical values
and morality. It jeopardised the credibility of
Government.
[56]
Moreover, the conduct of the appellants in this litigation has
contributed
almost exclusively in the delay to its finalisation.
Their flagrant non-compliance with the rules of this court dates back
from
2017 when the matter was struck off the roll because appellants
had failed to properly arrange the record. In 2019 the same problem

was still not cured as the record included unnecessary volumes
resulting in the matter being struck off the roll again. Despite
the
subsequent striking off of the matter this yielded no positive
results.
[57]
Consequently, it would be
grossly unfair if the appellants were allowed to benefit from their
own misconduct in this litigation.
I am therefore of the view that
the reinstatement which would result in the appellants being paid for
entire period of twelve years
would be unfair to the employer. In my
view, the Labour Court should have reviewed the arbitration award and
ordered re-employment.
The court must ensure that an employer is not
unjustly financially burdened if retrospective reinstatement is
ordered or awarded.
[14]
In
these circumstances, justice and equity dictate that the employer
should be ordered to re-employ the appellants.
Costs
[58]
The question of costs is
one that lies within the discretion of the Court. In labour matters
fairness and equity are key considerations.
The state of the record,
which in this case was in disarray, would invariably have an impact
in exercise of the court’s discretion
to award costs against a
defaulting party. No proper indexing and pagination in terms of the
Rules was made; the date and nature
of the exhibits were not briefly
described;
[15]
the
discrepancies of the record continued to exist despite the fact that
the matter was struck off the roll in September 2019 by
reason of a
deficient record; some documents were duplicated. It became difficult
and time consuming to coordinate the facts by
reference to relevant
documents.
[59]
The dismissals of the appellants took place in 2010. It is now almost
twelve
years after the dismissals. The delay itself, which is largely
attributable to both parties, undermines the object of the LRA to

resolve disputes in a speedy manner. The appellants had a duty to
ensure that the record of the proceedings is in order in terms
of
Rule 5 of the Rules of this Court. This was flagrantly ignored. The
rules are made for the convenience of the court. They facilitate
the
speedy preparation of the hearing and the judgment.
[60]
Had it not been the fault of all the parties a cost order would have
been warranted.
As alluded to above, trawling through the record in
the matter for purposes of writing this judgment was very tedious and
frustrating.
One can only hope that this will be avoided in future.
[61]
I would therefore have proposed the following order:
61.1
The appeal succeeds with no order as to costs;
61.2
The cross-appeal is dismissed with no order as to costs;
61.3  The order of
the Labour Court is set aside and replaced with the following:
“
1. The
application for review is dismissed.
2. The employer is
directed to re-employ the applicants.
3. Mr Mheshe’s
dismissal is set aside.
4. The department is
directed to pay Mr Mheshe his two months’ salary.
5. There is no order
as to costs.”
TOKOTA
AJA
SAVAGE
AJA (Phatshoane ADJP concurring):
[62]
I have had the advantage of reading the
judgment of my colleague Tokota AJA, with which I respectfully am
unable to agree.
[63]
There is no dispute in this appeal that the
four appellants committed serious misconduct in having taken an
unauthorised trip to
Bloemfontein in an aircraft, owned by a service
provider contracted to the Department of Health, Eastern Cape (the
department)
for emergency medical purposes. The purpose of the trip
was to attend a Confederations Cup soccer match, with all expenses
related
to the trip paid for by the department’s service
provider. The department, as the appellants’ employer, knew
nothing
of the trip. Although Mr Maharaj played a central role, the
appellants were equally complicit in misleading the department and
the first respondent, the Member of the Executive Council for Health,
Eastern Cape (the MEC), as to the purpose of the trip, dishonestly

stating that they had attended the match in Bloemfontein on official
business to provide medical services when this was not so.
[64]
The appellants were senior employees with long
service, employed in managerial positions by the department. Mr CP
Burton was a Station
Officer employed in January 1982; Mr M Msengana,
a Chief Ambulance Officer, employed in October 1989; Mr H T Kontyo, a
Deputy Chief
Ambulance Officer, employed in July 1987; and Mr N
Mantana, a Chief Ambulance Officer, employed in October 1989.
[65]
Following a disciplinary hearing, the
appellants were dismissed from their employment in September 2010.
Aggrieved with their dismissals,
the appellants referred an unfair
dismissal dispute first to conciliation, and thereafter arbitration
under the auspices of the
second respondent, the Public Health and
Social Development Sectoral Bargaining Council. The third respondent
(the arbitrator)
found that most of the managers were “
clueless
about whether the trip was authorised or not”
and
that the misconduct committed was not of such a nature as to make the
employment relationship intolerable.
[66]
The arbitrator relied on the fact that another
employee, Mr Gcolothela, had received a final written warning, but
was not dismissed,
for having gone on the trip. This was so in that
he had not attended the meeting with Mr Maharaj at which the
misleading response
to questions raised about the trip was agreed.
Another employee, Mr Mxesibe, agreed to plead guilty to the
misconduct and received
a final written warning, coupled with a
suspension without pay for two months, on condition that he testified
against his colleagues
at the disciplinary hearing. Mr Maharaj, who
did not go on the trip, was found to have been the mastermind behind
it. He prepared
the false response to the questions raised about the
trip. By agreement, he resigned from his employment with the
department on
22 January 2010, with no disciplinary action taken
against him, on the basis that he depose to an affidavit regarding
the trip.
[67]
The arbitrator found that by imposing written
warnings and concluding settlement agreements with some employees and
not others,
the employer had acted unfairly. In his view, progressive
and corrective discipline was not applied, with the harm caused by
the
employees not properly considered. No regard was given to whether
training and instruction would have been appropriate to avoid

dismissal given the employees’ length of service. In addition,
it was found that the trust relationship was not damaged and
that the
employees had showed some sense of remorse by co-operating with the
investigation. For these reasons, the dismissal of
the appellants was
determined to be substantively unfair.
[68]
The department was ordered to reinstate the
appellants with retrospective effect from 1 September 2010 on terms
and conditions no
less favourable to those which they enjoyed prior
to their dismissals, with a final written warning valid for six
months imposed.
Judgment
of the Labour Court
[69]
On review, the Labour Court found the
arbitrator’s finding that the employer’s dismissals were
substantively unfair
was one that no reasonable decision-maker could
have made. The arbitrator was found to have misunderstood and
misapplied the evidence
and the law on inconsistency when the
misconduct committed was of a serious nature, sufficient to destroy
the employment relationship.
The Labour Court found the cases of Mr
Gcolothela and Mr Mxesibe were sufficiently distinguishable from
those of the appellants
in that although Mr Gcolothela benefited from
the irregular trip, he had not been party to concealing the trip and
was not at the
meeting at which the dishonest responses to the
questions raised about it were agreed. Mr Mxesibe had entered into a
compromise
to enable the employer to obtain evidence of the
appellants’ wrongdoing. As a result, it was held that the
findings of inconsistency
were unreasonable given the distinguishing
features between the comparators relied upon and the appellants.
[70]
The case of Mr Maharaj was found to be
comparable to that of Mr V Mheshe, who was dismissed two months
before his retirement. Since
Mr Maharaj was allowed to resign, the
Labour Court found that Mr Mheshe should equally have been allowed to
exit through retirement,
a request which was unfairly denied. The
Court therefore dismissed the application to review and set aside the
arbitrator’s
finding that the dismissal of Mr Mheshe was
substantively unfair, with the issue of the relief in respect of Mr
Mheshe remitted
to the bargaining council for determination
de
novo
with no order as to costs. In
relation to the remaining appellants, the Labour Court set aside the
arbitrator’s award and
replaced it with an order that the
dismissals of the appellants were substantively fair.
Discussion
[71]
In
considering the fairness of the dismissal, each case is to be
determined on its own merits. An arbitrator is required to take
into
account the totality of circumstances, including the importance of
the rule breached, the reason the employer imposed the
sanction of
dismissal and the basis of the employee’s challenge to the
dismissal. In addition, the harm caused by the employee’s

conduct, whether additional training and instruction may result in
the employee not repeating the misconduct, the effect of dismissal
on
the employee and their long-service record are factors to be
considered.
[16]
[72]
A
disciplinary sanction imposed must be fair, and neither selective nor
capricious. Historical consistency contemplates that a penalty
will
be applied consistently with how it has been applied to other
employees in the past. Contemporaneous consistency contemplates
that
a penalty will be applied consistently as between two or more
employees who commit the same misconduct.
[17]
The
parity
principle is not an immutable rule, since the fairness of each
dismissal is to be considered on its own facts.
The
fact that an employee has previously not been dismissed for a
specific instance of serious misconduct does not in itself grant
a
licence to employees to commit such serious misconduct or warrant a
finding that the dismissal of an employee for such misconduct
is
unfair. Similarly, where there has been an oversight by a
disciplinary officer, or different disciplinary officers hold
different
views on the appropriate penalty, this in itself does not
necessarily warrant a finding of unfairness.
[18]
[73]
The conduct of the appellants was of a serious
nature and severely adversely impacted on the credibility and public
perception of
the department. As much was apparent from the fact that
the trip caused a public outcry which led to questions being raised
about
it in the provincial legislature. As long-serving and senior
state employees, the appellants would reasonably have known that
their
conduct in accepting the all-expenses paid unauthorised benefit
was impermissible; and when asked to explain such conduct they were

dishonest in their response to their superiors. Such conduct fell far
short of what was required of senior public sector employees.
[74]
I am not persuaded that the department acted
inconsistently in its decision to dismiss the appellants. Important
factual distinctions exist between the cases of Mr Maharaj, Mr
Mxesibe and Mr Gcolothela and the appellants.
The
Labour Court correctly found that the department was within its
rights to enter into agreements with Mr Mxesibe and Mr Maharaj
so as
to obtain information on oath regarding the misconduct committed. Mr
Gcolothela, although he went on the trip, was not part
of the meeting
at which the dishonest version to be given to the MEC was produced.
[75]
While
the long-service and disciplinary record of the appellants were
relevant considerations, the misconduct committed, and the
harm which
resulted from it, was of a serious nature and underpinned by
dishonesty on the part of senior public sector employees.
In
Naidu
this
Court recognised that
“
(
g)enerally,
a
sanction
of dismissal is justifiable
and,
indeed, warranted where the dishonesty
involved
is of a gross nature.
”
[19]
In
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[20]
it was recognised that “
(d)ismissal
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
”
.
[76]
It follows for these reasons that the decision
taken by the employer to dismiss the appellants was fair. In finding
differently,
the decision of the arbitrator fell outside of the ambit
of reasonableness required and the Labour Court correctly found as
much.
For these reasons, in my view, the appeal must fail.
[77]
Mr Mheshe, a deputy director in the EMS
department, was employed in February 1982 and was dismissed on 23
August 2010. The department
cross-appeals against the order of
the Labour Court
remitting the dismissal of Mr
Mheshe back to the bargaining council to be heard
de
novo.
Like Mr Maharaj, Mr Mheshe did
not participate in the trip but was involved in arrangements related
to it and was aware that the
response to the questions raised
regarding the trip was dishonest. It appears to me that the dismissal
of Mr Mheshe was unfair
given the similar role he played to that of
Mr Maharaj in the misconduct and having regard to the fact that he
was to retire from
his employment within two months. The finding of
the arbitrator that his dismissal was unfair and that he be
reinstated retrospectively
from 1 September 2010 with back pay and a
final written warning, was therefore one which a reasonable
decision-maker on the material
before him could have made. The Labour
Court ought properly to have found as much and not remitted the
matter back to the bargaining
council for a hearing
de
novo
when no purpose was to be
served in doing so, more so given the delay in the matter and Mr
Mheshe’s age. The retirement of
Mr Mheshe would then follow as
a matter of course in accordance with the applicable departmental and
pension fund rules.
[78]
Although the Labour Court permitted evidence to
be put up in the course of argument that Mr Maharaj had been
re-employed at a lower
rank by the department, that fact is not
relevant to a consideration of the fairness of the dismissals of the
appellants. It may
be that a different cause of action arises from
the re-employment of Mr Maharaj but that issue is not one before this
Court for
consideration.
[79]
As to costs, there is no reason in law or
fairness why an order of costs should be made in this appeal.
Order:
[80]
For these reasons the following order is made:
3.
The appeal is
dismissed.
4.
The cross-appeal
succeeds in part and the order of the Labour Court is set aside and
substituted only to the following extent:
‘
The
review application in relation to Mr V Mheshe is dismissed with no
order as to costs.’
SAVAGE
AJA
Appearances
:
For
the first to third appellants:
A Dodson SC
P Maharaj-Pillay
Instructed
by:

Wikus van Rensburg Attorneys
For
the Fourth Appellant:

M Nduzulwana
Instructed
by:

Sithembele Zibi attorneys
For
the Respondent :

P N Kroon SC
B Ndamase
Instructed
by:

Wesley Pretorius and Associates
[1]
National
Union of Metalworkers of SA and Others v Henred Fruehauf Trailers
(Pty) Ltd
(1994)
15 ILJ 1257 (A) at 1264A-D
:
National
Union Of Mineworkers, obo Botsane v Anglo Platinum Mine (Rustenburg
Section)
(2014)
35 ILJ 2406 (LAC)
at
para 25.
[2]
See
:
Chemical Energy Paper Printing Wood and Allied Workers Union v
National Bargaining Council for the Chemical Industry and Others
(2010)
31 ILJ 2836 (LAC)
at
para 20.
[3]
(1991) 12 ILJ 806 (LAC).
[4]
See
Schedule 8 Item 3(6) which reads: ‘
The
employer should apply the penalty of dismissal consistently with the
way in which it has been applied to the same and other
employees in
the past, and consistently as between two or more employees who
participate in the misconduct under consideration.’
[5]
(2010)
31 ILJ 452 (LC) at para 10. (‘
Southern
Sun Hotel
’
)
[6]
(2015) 36 ILJ 602 (LAC) para 36. (‘
Naidu
’
)
[7]
Grogan,
Dismissal,
Discrimination and Unfair Labour Practices
2
nd
ed, (Juta 2007) at
273-274.
[8]
No.
66 of 1995, as amended.
[9]
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[2008] ZACC 16
;
2009
(1) SA 390
(CC) (
Equity
Aviation
)
at para 36.
[10]
Toyota
SA Motors (Pty) Ltd v CCMA and Others
(2016)
37 ILJ 313 (CC) at para 16.
[11]
Equity
Aviation
(Id
fn 9) at para 33.
[12]
Equity
Aviation
(Id
fn 9) at para 36.
[13]
No.
12 of 2004
[14]
Equity Aviation (Id fn 9) at para 43.
[15]
Rule
5(g) of the Labour Appeal Court Rules
[16]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ
2405 (CC) at para 78.
[17]
Southern
Sun Hotel
(Id
fn 5)
at
para 10.
[18]
Naidu
(Id
fn 6)
at
para 36.
[19]
Naidu
(Id
fn 6) at para 52.
[20]
(2000)
ILJ 1051 (LAC) at 1058E-G;