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[2006] ZALCJHB 30
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Minister of Correctional Services v Mthembu NO and Others (JR953/04) [2006] ZALCJHB 30 (24 March 2006)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO JR 953/04
In
the matter between:
THE
MINISTER OF CORRECTIONAL SERVICES
Applicant
And
JB MTEMBU N.O.
1
st
Respondent
THE GENERAL PUBLIC
SERVICE
SECTORAL BARGAINING
COUNCIL
2
nd
Respondent
W
GROVES
3
rd
Respondent
JUDGMENT
D
VAN ZYL J:
[1]
The third respondent is employed by the applicant as a prison warder
and is stationed at the Grootvlei Prison. During
December 2002
the applicant charged the third respondent with two counts of
misconduct. The first count relates to a contravention
of
paragraph 2.1 (b) of the applicant’s disciplinary code, in that
the third respondent performed unsatisfactorily by withdrawing
five
hundred rand cash from a bank account of a prisoner and handing it
over to the prisoner well knowing that it was against departmental
policy to do so.
[2]
Count 2 relates to a contravention of clause 6.4 (a) of the said
disciplinary code, in that the third respondent permitted prisoners
to use alcohol in his presence without taking disciplinary action or
confiscating the alcohol. The third respondent admitted
his
guilt at the disciplinary inquiry. The sanction of dismissal
was imposed in respect of both counts. The third respondent’s
internal appeal failed and the dispute with regard to his dismissal
was referred to the first respondent for arbitration in terms
of
section 191 of the Labour Relations Act 66 of 1995 (“the
Act”). The first respondent issued an award to the
effect
that the sanction of dismissal was unfair and imposed a sanction
involving his re-employment.
[3]
The evidence placed before the first respondent consisted of the
record of the disciplinary proceedings, the record of the appeal
proceedings, an extract from the applicant’s disciplinary
register and the record of disciplinary proceedings of a co-employee,
one Esterhuizen, who was also charged with and found guilty of
misconduct relating to a failure to act upon having found prisoners
in possession of alcohol. It is common cause that the third
respondent’s case before the first respondent was limited
to
the issue of consistency in the disciplining of employees of the
applicant and the question whether or not the sanction imposed
was
excessive. On the evidence placed before him, the first
respondent made the following findings:
“
Consistency
It
is indeed so that from the cases cited by Mr Venter there are
transgressions that are more serious than in the case i
n
casu
but, however, the
transgressors got away with far more lenient sanctions. While I
agree with Mrs Gounden that consistency
is not a rule unto itself but
where the differentiation is so glaring that it induces a sense of
shock, and the employer has not
provided or has failed to provide
reasons for the differentiation, then the dismissal is unfair as held
by the Court in the Early
Bird case above. In this case the
respondent has failed to provide reasons for the differentiation in
sanctions regarding
this case and those cited by Mr Venter. Mrs
Gounden only argues that Mr Venter does not mention the facts of each
case and
merely provides outcomes. I would then have expected
the respondent to provide the facts; however, be that as it may there
is the case of Esterhuizen. The first charge for which the
applicant was dismissed for is akin to that of Esterhuizen.
In
the latter’s case, the chairperson’s findings were that
Esterhuizen had pleaded not guilty and fabricated evidence
which is
not the case with the applicant. It would then appear that the
applicant was punished more severely for playing
open cards with the
respondent.
Even
though the facts of the other cases cited by Mr Venter are unknown, I
submit that the charges and the sanctions are sufficient
for one to
make an informed comparison with the case
in
casu
. In Country Fair Foods
(Pty) Ltd v CCMA & Others
(1999) 11 BLLR 1117
(LAC) the Court
held that interference with a sanction is justified if the employer’s
decision is unreasonable and unfair.
In
casu
the employer has failed to
provide reasons for the differentiation in sanctions and I submit
that this renders the applicant’s
dismissal unreasonable and
unfair.
Harshness
In
Korsten v McSteel (Pty) Ltd & Another
(1996) 8 BLLR 1015
(IC) the
Court held that a dismissal is justified when the misconduct of an
employee has harmed the employment relationship.
Given the
serious nature of the cases cited by Mr Venter, I cannot agree that
it is the case here.
In
Nyembezi v NEHAWU
(1997) 1 BLLR 94
(IC), the Court held that if the
employer has not lead evidence that the employment relationship has
been rendered intolerable,
the dismissal is unfair. How can
this argument hold water against the applicant when e.g. employees
who have sold keys to
prisoners, committed theft, brought dagga to
the prison etc, have been treated much more leniently and are still
in the respondent’s
employment when their transgressions go to
the core of the nature of the respondent’s enterprise?
I
submit that he applicant’s sanction of dismissal was indeed
harsh.
On
the second charge against the applicant, even the chairperson of the
disciplinary hearing remarked that had it not been for the
first
charge she would have given the applicant a final written warning as
this charge is not serious. Need I say more when
a person who
borrows money from a prisoner is treated lightly? In the
premise I find that the sanction of dismissal is harsh
and
inappropriate and has to be substituted with an appropriate
sanction.”
[4]
Having found the imposition of the sanction of dismissal to be
unfair, the first respondent substituted it with a final written
warning. The applicant now seeks to review and set aside the
arbitration award. The applicant’s grounds of review
are
that the arbitrator misdirected himself by failing to apply his mind
to the facts placed before him and further of having committed
an
irregularity in the conduct of the proceedings by ignoring or
misinterpreting the facts. The arbitration was conducted
under
the auspices of the second respondent. It is not in dispute
that the second respondent is a bargaining council, accredited
in
terms of the Act. The first respondent was accordingly
performing functions in terms of the Act when he conducted the
arbitration and issued the award. The review application is
consequently regulated by section 158 (1)(d) of the Act. (See
Reddy v KZN Department of Education and
Culture and Others
(2003) 7 BLLR 661
(LAC) at 667H-668A) This section gives this Court the power
“
to
review the performance or purported performance of any function
provided for in this Act or any act or omission of any person
or body
in terms of this Act or any grounds that are permissible in law.”
A review under this section is what is
referred to as a common law review (See
Toyota
SA Motors Ltd v Radebe & Others
[2000]
3 BLLR 243
(LAC);
Stocks Civil
Engineering (Pty) Ltd v Rip NO & Another
[2002]
BLLR 189
(LAC) and
Coin Security (Pty)
Ltd v CCMA & Others
[2005] 7 BLLR
672
(LC)). The grounds of review where the power or function is
a decision-making one were set out in
Johannesburg
Stock Exchange & Another v Witwatersrand Nigel Ltd & Another
1988 (3) SA 132
(A) at 152A-E:
“
Broadly,
in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues
in
accordance with the ‘behests of the statute and the tenets of
natural justice’ …Such failure may be shown
by proof,
inter alia,
that the decision was arrived at arbitrarily or capriciously or
male
fide
or as a result of
unwarranted adherence to a fixed principle or in order to further an
ulterior or improper purpose; or that the
president misconceived the
nature of the discretion conferred upon him and took into account
irrelevant considerations or ignored
relevant ones; or that the
decision of the president was so grossly unreasonable as to warrant
the inference that he had failed
to apply his mind to the matter in
the manner afore-stated …. Some of these grounds tend to
overlap.”
[5]
The powers and functions of the first respondent are found in the
provisions of the Act (sections 191 and 193). Because
he
exercised a public power or performed a public function in terms of
an empowering section, the grounds of review would also
incorporate
the constitutional requirement of lawfulness and that the decision is
rationally related to the purpose for which the
power was given,
failing which it would be arbitrary. (See
Pharmaceuticals
Manufactures Association of South Africa: In re Ex parte President of
the Republic of South Africa & Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at paras [85] and [90]). The approach to be
adopted by a Court of review exercising its powers in terms of
section 158
(1)(g) of the Act was extensively dealt with by Francis J
in the
Coin Security Case (supra)
and
I do not find it necessary to repeat it
.
[6]
The question that must be determined is whether the decision of the
first respondent to substitute a lesser penalty for the
penalties
imposed by the employer is reviewable on any of the grounds referred
to above. To answer this question it is necessary,
as a point
of departure, to have regard to the nature of the duty or function of
an arbitrator in relation to the sanction imposed
by an employer.
The Code of Good Conduct: Dismissals, states that the functionary who
determines whether a dismissal for
misconduct is unfair should
consider the following:
“
(a)
Whether or not the employee contravened a rule or standard
regulating conduct in, or of relevance to, the workplace; and
(b)
if a rule or standard was contravened, whether or not -
(i)
the rule was a valid or reasonable rule or standard;
(ii)
the employee was aware, or could reasonably be expected to have been
aware, of the
rule or standard;
(iii)
the rule or standard has been
consistently applied by the employer; and
(iv)
dismissal was an appropriate sanction
for the contravention of the rule or standard.”
[7]
Section 193(1)(a)
of the
Labour Relations Act provides
that if an
arbitrator finds that a dismissal is unfair he or she may order the
employer to reinstate the employee. This,
according to Willis
JA in
De Beers Consolidated Mines Ltd v CCMA & Others (
2000)
21 ILJ 1051 (LAC) at 1062G-1063A means that the arbitrator’s
function is to decide whether the dismissal was unfair
and not to
impose what he or she viewed as the correct sanction. (See
further
County Fair Foods (Pty) Ltd v CCMA & Others
(1999)
20 ILJ 1701 (LAC) at 1707G-I and 1713D-F and
Nampak Corrugated
Wadeville v Khoza
(1999) 20 ILJ 578 (LAC) at 584A-B.) The
arbitrator is therefore not exercising an independent discretion.
His function
is limited to assessing the reasonableness and fairness
of the decision to dismiss and can only interfere with the employer’s
decision if its found to fall outside a “
band of
reasonableness”
, the parameters of which are determined by
general principles of fairness. (See
Nampak Corrogated
Wadeville v Khoza
(
supra)
at 584B-C and Grogan
Dismissal
Discrimination & Unfair Labour Practices
at page 226.)
The result is that the arbitrator must show a degree of deference
towards an employer’s decision to dismiss
an employee. (See
De Beers Consolidated Mines Ltd
v CCMA & Others (supra)
at 1063A;
County Fair Foods v CCMA (supra)
at 1713A-E and
Grogan
op cit
at page 226). The decision of the
arbitrator on the fairness or unfairness of the sanction imposed is
reached, not only with
reference to the evidential material before
the employer, but on the basis of an assessment of all the evidence
placed before the
arbitrator. To that extent the proceedings
are a hearing
de novo.
(See
County Fair Foods (Pty)
Ltd v CCMA & Others (supra)
at 1707H-I). The principle
that emerges from these decisions was correctly stated as follows by
Cohen “
The Reasonable Employer Test - Creeping in Through
the Back Door”
SAMLJ (2003) Vol 15 No 2 at page 196:
“…
the
arbitrating commissioner, although deciding the matter afresh on the
evidence presented, is required to assess whether the sanction
imposed by the employer is reasonable and fair. This assessment
entails the arbitrator passing a value judgment that considers
the
individual circumstances of the matter, the objectives of the
legislation, and societal and workplace norms. In passing
this
judgment the arbitrator is bound to defer to an employer’s
discretion to impose standards of conduct at the workplace
and
appropriate penalties for transgressing these standards.
Provided that these are reasonable and fair, the arbitrator
is not at
liberty to substitute a different sanction for the employer’s.
To do so would be to usurp the role of management
and exceed the
mandate given to arbitrators”.
[8]
The consideration of consistency or equality of treatment (the
so-called “parity principle”) is an element of
disciplinary
fairness, and it is really “
the
perception of bias inherent in selective discipline that makes it
unfair
.” (See
Early
Bird Farms (Pty) Ltd v S Mlambo [
1997]
5 BLLR 540
(LAC) at 545H-I;
SA
Commercial Catering And Allied Workers Union & Others v Irvine &
Johnson Ltd [
1999] 20 ILJ 2302 (LAC) at
2313D-E;
Cape Town City Council v
Masitho and Others [
2000] 21 ILJ 1957
(LAC) at 1960F-1961F
and National Union
MetalWorkers of SA v Henred Fruehauf Trailers
[1994] ZASCA 153
;
1995
(4) SA 456(A)
at 463G-I.) When an employer has in the past, as
a matter of practice, not dismissed employees or imposed a specific
sanction
for contravention of a specific disciplinary rule,
unfairness flows from the employee’s state of mind, i.e. the
employees
concerned were unaware that they would be dismissed for the
offence in question. When two or more employees engaged in the
same or similar conduct at more or less 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. However, as stated
by Conradie
JA in the
Irvine & Johnson case
(supra)
at 2313C-J, the principle of
consistency should not be applied rigidly and that “…
some
inconsistency is the price to be paid for flexibility, which requires
the exercise of discretion in each individual case. If
a
chairperson conscientiously and honestly, but incorrectly, exercises
his or her discretion in a particular case in a particular
way, it
would not mean that there was unfairness to the other employees.
It would mean no more than his or her assessment
of the gravity of
the disciplinary offence was wrong.”
[9]
This statement was qualified by the Labour Appeal Court in the case
of
Cape Town
City Council v Masitho & Others (supra)
where Nugent AJA stated the following at 1961 E-F:
“
While
it is true that an employer cannot be expected to continue repeating
a wrong decision in obeisance to a principle of consistency
(751D),
in my view the proper course in such cases is to let it be known to
employees clearly and in advance that the earlier application
of
disciplinary measures cannot be expected to be adhered to in the
future. Fairness, of course, is a value judgment, to
be
determined in the circumstances of the particular case, and for that
reason there is necessarily room for flexibility, but where
two
employees have committed the same wrong, and there is nothing else to
distinguish them, I can see no reason why they ought
not generally to
be dealt with in the same way, and I do not understand the decision
in that case to suggest the contrary.
Without that, employees
all inevitably, and in my view justifiably, consider themselves to be
aggrieved in consequence of at least
a perception of bias”.
Consistency
is therefore not a rule unto itself but rather an element of fairness
that must be determined in the circumstances of
each case. (See
also
SRV Mills Services (Pty) Ltd v CCMA
& Others
[2004] 25 ILJ 135
(LC) at 143 B-C.)
[10]
The assessment of the fairness of a dismissal is a moral or value
judgment. (See
National Union of
Metal Workers of SA v Vetsak Co-operative Ltd & Others (
1996)
17 ILJ 455 (A);
Media Workers
Association of South Africa & Others v Press Corporation of south
Africa & Others
[1992] ZASCA 149
;
1992 (4) SA 791
(A)
at 798I and 802A and
Cape Town City
Council v Masitho & Others (supra)
.)
What is unreasonable and unfair would depend on the facts and
circumstances of each particular case. A dismissal
can be said
to be unreasonable “…
when
you look at the sentence and you say to yourself, this sentence is so
excessive (or so lenient) that I cannot in all good conscience
allow
it to stand; it is open to interference.” (
Per
Conradie AJ in the
Country Fair Foods
case at 1716C-D. The use of the
word “
sentence”
is
unfortunate as the purpose of imposing a sanction is not to punish an
employee.) In
Toyota
SA Motors (Pty) Ltd v Radebe &
Others (supra)
at 355A-E Nicholson JA
also suggested that the basis for interference with a sanction was a
“
yawning chasm between the
sanction which the court would have imposed and the sanction imposed
by the commissioner.
In
SACCAWU
obo Johnson / Clover SA (Pty) Ltd,
[2000]
4 BALR 397 (CCMA) at 403” Grogan C noted that “
a
commissioner acting as arbitrator must ask himself or herself whether
there is such an alarming disparity between the penalty
that was
imposed by the employer and that which the commissioner would have
been inclined to impose as to justify interference”.
[11]
When assessing whether the sanction imposed by the
employer is so excessive or grossly inappropriate that it justifies a
finding
of unreasonableness, regard may be had to the circumstances
surrounding the commission of the misconduct, the employee’s
moral blameworthiness, the manner in which like cases were handled in
the past (the element of consistency), the employee’s
disciplinary record, his length of service, the gravity of the
misconduct and whether the employer may reasonably be expected to
continue with the employment relationship. (See
Early
Bird Farms (Pty) Ltd v Mlambo (supra)
at
545H-I;
Toyota SA Motors (Pty) Ltd v
Radebe & Others (supra)
at 258G-I
and Grogan
Dismissal
at 98-106 and the case law referred to). The list is not
intended to be exhaustive.
[12]
It is clear from a reading of the award that the first respondent’s
finding that the sanction imposed by the applicant
was unreasonable
and unfair was primarily based on the inconsistent treatment of
employees. The extract from the applicant’s
disciplinary
register reveals that employees who, in the past, and subsequent to
the third respondent’s case, were found
guilty of far more
serious misconduct, were not dismissed by the applicant. It
indicates that the applicant consistently
treated employees who were
guilty of conduct such as theft, gross negligence and corruption very
leniently. By comparison
the third respondent’s
misconduct was found to be of a less serious nature and the penalty
imposed was inconsistent with
the treatment of employees in the
past. The first respondent further found that it follows from
this that it did not lie
in the mouth of the applicant to state that
the third respondent’s conduct had irreparably damaged the
employment relationship.
[13]
It was submitted on behalf of the applicant that the first respondent
misdirected himself in finding that on the information
placed before
him, the applicant acted inconsistently in dismissing the third
respondent. The applicant’s case was
not that the first
respondent could not make a finding on the issue of consistency by
having regard to the treatment and discipline
meted out to employees
who were engaged in misconduct that was not similar to that of the
third respondent in the present case.
The fact that those
employees received more lenient treatment may similarly result in
unfairness. The reason is that other
employees may be unaware
that dismissal would follow in respect of less serious misconduct.
The applicant’s submission
was rather that without further
information relating to the facts and the surrounding circumstances
of the incidents of misconduct
reflected in the disciplinary
register, the first respondent could not make a finding on the issue
of consistency. The disciplinary
register produced by the third
respondent reflects particulars of the names of employees, the nature
of the misconduct, the sanction
imposed and the year during which it
occurred. As stated, it is clear having regard to the said
register that most of the
misconduct reflected therein are of a far
more serious nature compared to present matter. For instance,
an employee found
guilty of selling a key to a prisoner and other
employees who were grossly negligent in instances where inmates
escaped were given
final written warnings.
Prima
facie
this evidence, which was
undisputed, points to inconsistency in the sanctions imposed and is
likely to produce in the minds of interested
and impartial observers
alike a perception of unfairness and, possibly, one of bias or
ulterior purpose. I say
prima
facie
because there may have been
justification in differentiating between those employees and the
third respondent, such as their personal
circumstances or the
merits. The third respondent placed in issue the fairness of
the decision to dismiss him and pertinently
raised the issue of
consistency. He established a basis therefor by presenting
evidence with sufficient particularity in
order to have enabled the
applicant to deal therewith. Faced with a challenge to the
consistency of the applicant’s
treatment of employees, the
applicant, who bore the
onus
of proving the fairness of the dismissal (section 192(2) of the Act),
elected not to place any evidence before the first respondent
demonstrating that there was no inconsistent disciplining of
employees. (See
SACCAWU &
Others v Irvin & Johnson Ltd (supra)
at 2314C and
SRV Mill Services (Pty)ltd
v CCMA & Others (supra)
at 143E).
I accordingly do not find any fault with the reasoning of the first
respondent in this regard.
[14]
It was submitted further that the first respondent erred in drawing a
parallel between the case of the employee Esterhuizen
and the case of
the third respondent. As stated earlier, the said Esterhuizen
was similarly charged with, and found guilty
of, failing to take
action whilst aware of the fact that prisoners were in possession of
alcohol. Esterhuizen was given a
final written warning.
The differences between the two cases put forward by the applicant
are more apparent than real.
While the third respondent had
told the prisoners to put away the alcohol they had in their
possession, Esterhuizen, on the other
hand, even though fully aware
of the alcohol, walked away without confiscating it. He
similarly failed in his duties in this
regard and also indirectly
colluded with the prisoners as the third respondent was found to have
done. As in the case of
the third respondent, the chairman of
the disciplinary hearing in the Esterhuizen case came to the
conclusion and took into account
that Esterhuizen must have made
himself guilty of similar conduct in the past. Although
Esterhuizen was not also charged
with unsatisfactory performance as
the third respondent was, it is quite clear from the disciplinary
record that this was a less
serious charge and was treated as such by
the chairman of the disciplinary enquiry. It may further be
correct, as argued
by the applicant, that in the case of the third
respondent there were aggravating features that were not present in
the case of
Esterhuizen. On the other hand, there were
mitigating factors such as the fact that the third respondent did not
deny his
guilt and expressed remorse for his actions. As stated
earlier, the imposition of an appropriate sanction is a value
judgment
and, assuming the sanction imposed on Esterhuizen was fair,
the distinguishing features between the two cases are not such that
it can be said that in respect of the third respondent a different
sanction on the charge in question was justified.
[15]
The applicant submitted that the first respondent wrongly applied the
consistency principle, suggesting that he slavishly adhered
thereto.
Reliance was in this regard placed on the word of caution sounded by
Conradie J in the
Irvine & Johnson
case
(supra)
at
page 2313C-J of the judgment (See para.[ 9] above). However, by
stating in his reasons for the award that “…
consistency
is not a rule onto itself…”
the
third respondent was in my view quite alive to the fact that the
consideration of consistency is simply an element of the general
principle of fairness and should not be applied rigidly.
[16]
The applicant also relied in support of this submission on two
subsequent awards made by the first respondent wherein he upheld
the
decision of the applicant to dismiss the employees concerned.
Save to the extent that these awards may be used as authority
in
support of the applicant’s submissions relating to the approach
to be adopted in cases where the issue of consistency
is raised, I am
not convinced that it could be used as evidence of a ground of
review. The present award must be adjudicated
on the evidence
before the first respondent when he made the award and the reasons
furnished in support thereof. Copies of
the subsequent awards
were handed in and it is clear the employees concerned, namely
Boucher and Van Heerden, were charged with
and found guilty of
allowing prisoners to have alcohol in their possession and not
confiscating it as well as taking money from
a prisoner (Boucher) and
trading in and using alcohol whilst on duty (van Heerden).
These cases are therefore distinguishable
from the present matter.
[17]
The question, in my view, rather is whether, in the words of Nugent
AJA in the
Cape Town
City Council case (supra)
,
the applicant in advance clearly advised employees that the earlier
more lenient application of disciplinary measures could not
be
expected to continue in the future. What the position was in
this regard must be determined within the context of what
transpired
during March to May 2002 when the third respondent transgressed the
applicant’s disciplinary code. At the
third respondent’s
disciplinary hearing one of the applicant’s witnesses, who
testified with regard to the imposition
of an appropriate sanction,
alluded to the policy of the Department of Correctional Services to
stamp out corruption. He
referred to what appears to have been
an article by a Commissioner Matthee (in a departmental publication
“
Nexus”)
wherein reference was made to corruption in prisons
that had to
be dealt with, that there will be no tolerance for transgressions, a
merciless disciplining of those who assist prisoners
to escapes and a
ruthless approach to combating crime in prisons. There is no
indication that any of the parties relied on
this evidence at the
arbitration hearing. From the record of the disciplinary
enquiry there appear to have been a dispute
whether or not this
policy statement was generally brought to the attention of
employees. Whether this can be interpreted
as having
constituted an advice to employees that any form of misconduct will
be treated harsher than in the past, is not clear.
It may
explain why no reliance was placed thereon at the arbitration
hearing. More significantly however are the following
remarks,
by the same chairman who presided over the third respondent’s
disciplinary hearing, in her reasons for imposing
the sanction of a
final warning in respect of the employee Esterhuizen:
“
This
is the only case where the proof of inconsistency in this Department
is shown in a disciplinary hearing. I am aware that
we cannot
be stuck with wrong decisions that had been made by other managers or
by other chairpersons. I am almost certain
that the
Commissioner himself or the Minister and/or the President would not
believe or would be more surprised to learn that after
all their
endeavours that they have tried to uproot acts of corruption and
maladministration in prisons, we still have cases in
2003 where
members who bring dagga to prison are actually issued with a final
warning.
It
is clear from the evidence of Mrs Dooling, Setlai himself, Vorster
and Mr Damons that circumstances prevailed in Grootvlei at
the time
where members and managers contravened the policy almost as a custom
or practice. Other members simply decided not
to adhere to
policy.”
It
would appear from this that the applicant did not implement its own
policy, at least to the extend that it would have been clear
to the
applicant that past disciplining practices would no longer be adhered
to.
[18]
The applicant’s final submission was that the first respondent
misdirected himself in finding that the employment relationship
between the applicant and the third respondent had not been harmed.
The first respondent based his finding in this regard
on the fact
that the applicant in the past, when employees were convicted of more
serious forms of misconduct, did not deem it
necessary to discontinue
the employment relationship. An employer relying on irreparable
damage to the employment relationship
to justify dismissal should
lead evidence in that regard, unless it is apparent from the nature
of the misconduct that the employees
conduct had rendered the
employment relationship intolerable. (See Grogan op cit at page 230).
I agree with the first respondent’s
conclusion that at least
prima facie,
and
in the absence of any other evidence, it cannot be concluded that the
employment relationship had been harmed. Although
the conduct
of the third respondent cannot be described as constituting minor
misconduct, it is not of such a nature that it can
per
se
be said to have rendered the
employment relationship intolerable. Both counts did not
contain an element of dishonesty but
rather constituted a failure on
the part of the third respondent to perform his duties
satisfactorily. I agree with third
respondent’s counsel
that it appears to have been the approach of the applicant, and that
of the chairman of the disciplinary
enquiry, that any form of
misconduct would result in the employee no longer being worthy of
trust. Such an approach is clearly
incorrect. Whether or
not the relationship of trust between employer and employee has been
broken would depend on the nature
of the misconduct concerned and on
the facts and circumstances of each particular case.
[19]
It is common cause that the disciplinary steps taken against
the
third respondent and other employees arose from the Jali commission
appointed to investigate corruption in prisons. It
would appear
that the said commission exposed malpractices in prisons including
the Grootvlei prison and this led to charge of
misconduct against the
third respondent. I am left with the distinct impression that
the dismissal of the third respondent
was in response to revelations
at the Commission that errant employees were not being disciplined,
resulting in a knee jeck reaction
on the part of the applicant.
There is continuous reference to corruption in the disciplinary
record. Unsatisfactory
work performance can hardly be said to
constitute corruption. As stated earlier, there was no
suggestion of dishonesty in
the conduct of the third respondent or
that he personally received any benefit from his conduct or his
failure to act.
[20]
On a conspectus of all the evidence, I am satisfied that the first
respondent’s award was properly based on the evidence
before
him and reflects an application of his mind to all the relevant facts
and considerations. The conclusion reached by
the first
respondent, in my view, cannot be said to be irrational or
unjustifiable. He also clearly understood his function
as being
limited to one of having to determine the fairness or unfairness of
the sanction imposed.
[21]
Turning to the sanction imposed by the first respondent, namely that
of a final warning, it cannot, in all the circumstance
be said to be
“
so out of kilter with what this
Court would have imposed, that it constitutes a gross irregularity.”
(Per Nicholson JA in
Toyota
SA Motors (Pty) Ltd v Radebe &
Others (supra)
at 258J.) As
stated, the determination of an appropriate sanction is a value
judgment based on fairness and upon a consideration
of all the
relevant circumstances. When the gravity of the third
respondent’s misconduct is weighed against considerations
such
as his long service (25 years), his clean disciplinary record, the
fact that he showed remorse, confessed and pleaded guilty,
and that
he did not derive any benefit from his conduct, I am satisfied that
the sanction imposed by the first respondent is reasonable
and fair.
The mitigating factors are such that they serve to indicate that the
third respondent is unlikely to repeat the
offences in question.
[22]
For the aforegoing reasons the application falls to be dismissed.
There is no reason, and none has been suggested, why
costs should not
follow the result.
[23]
I therefore make the following order:
“
The
application is dismissed with costs.”
__________________________
D
VAN ZYL J
Counsel
for Applicant
: Adv D T
Skosana
Instructed
by
: The State Attorney
Old
Mutual Centre
8
th
Floor
167
Andries Street
PRETORIA
Counsel
for the third Respondent : Adv F J Van Der Merwe
Date
of Judgment: 24 March 2006