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[2007] ZALCD 8
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Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and Others (D679/04) [2007] ZALCD 8 (6 December 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
CASE
NUMBER: D 679/04
In
the matter between:
HULLET
ALUMINIUM (PTY) LTD
Applicant
and
BARGAINING
COUNCIL FOR
THE
METAL INDUSTRY
1
st
Respondent
COMMISSIONER
M COWLING
N.O
2
nd
Respondent
P
RAMLAKAN
3
rd
Respondent
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
The applicant, Hullet Aluminium (Pty) Ltd,
seeks an order reviewing and setting aside the undated arbitration
award issued by the
second respondent (the commissioner) under case
number MEKOR 354.
[2]
In terms of the arbitration award the commissioner found the
dismissal of the first respondent (the employee) to be unfair and
ordered her reinstatement.
Background
Facts
[3]
The third respondent who was an accounts clerk was charged,
disciplined and dismissed for dishonesty by the applicant on the
8
October 2003.
[4]
It is common cause that the applicant had a policy which granted its
employees a privilege of purchasing parcels of scrap products
from
it. The policy apparently set out the procedure to be followed
whenever an employee wished to purchase scrap products.
[5]
In terms of this policy an employee was not
permitted to purchase products exceeding the monetary value of R20-
00 at a given time.
The policy also set out a specific procedure to
be followed when an employee whished to purchase scrap products.
[6]
The procedure required that an order for the purchase of
scrap to be placed with the dispatch section where the
purchase
would be packed and an employee’s purchase slip would be
generated and thereafter an employee from dispatch
would collect
money from the employee who has placed the order. The purchase was
limited to the maximum of 2kg and the standard
price was R10-00 per
kg.
[7]
The payment for the scrap item was taken to
the accounts section where a receipt would be generated and issued to
the employee.
The employee would then hand the receipt to the
security before collecting the purchased scrap and leaving the
premises.
[8]
The charge
against the employee concerned the dispatch of a sealed box
containing material weighing 3.9 kg and valued at R426- 00
which was
dispatched to the employee’s daughter who is an employee of
Servopack, a customer of the applicant.
[9]
The employee testified that on the day in
question she approached Mr Cassim who was busy supervising the
loading operations and
requested him to pack 2kgs of “employee
sales” which she wanted to send to her daughter in Pretoria. Mr
Cassim is a
relative of the employee.
[10]
After the request the employee returned to
her office. During the cause of the day she, according to her
received a sealed box from
Mr Johnson, the packer. She assumed this
to be the “employee sales” that she had ordered. She
testified that without
checking the content of the box she labelled
it for
“
Attention: Sarika
Ramlarkin-Servopack.”
[11]
The box was then handed back to Johnson who
she claimed to have assumed would do the necessary paper work
including coming back
to her to collect payment and consequently the
necessary receipt would be generated. Johnson never came back to her
and had no
further involvement with the box that day. The reason for
her not following up with the box was because she was very busy that
day.
[12]
Since then the employee claim to have
forgotten about this purchase and was reminded of it when she
overheard some employees discussing
the issue of containers. The
conversation about the containers reminded her of the container that
she purchased for her daughter.
She then went and paid R20-00 for the
said containers.
[13]
It transpired later after the applicant’s
investigation that the dispatch of the parcel which was not a
standard type scrap
for purchase by an employee but a sample was
dispatched on the pretext that it was being sent to Servopack, one of
the customers
of the applicant.
[14]
It is apparent that arising from the
investigation the employee was charged, disciplined and ultimately
dismissed. Subsequent to
her dismissal she filed an appeal which was
unsuccessful.
[15]
In her appeal the employee pleaded
inconsistency and submitted that Mr Cassim was intrinsically involved
in this matter and that
the initial inquiry showed that “
he
breached the Company procedures for sales (both sample and employee)
on a number of occasions yet he was not dismissed.”
This
argument was pursued further by the employee’s representative
during the appeal hearing.
[16]
Mr Cassim testified that he was on the day
in question approached and given a list of samples that needed to be
sent to Servopack.
He testified that he did not scrutinise the list
but simply passed it over to Mr Johnson.
[17]
The employee’s defence was that she
was never involved in any misconduct nor was she part of perpetrating
any theft of the
applicant’s product.
The
award and grounds for review
[18]
The applicant contended that the
commissioner committed a gross irregularity in placing undue emphasis
on the sanction accorded
to Mr Cassim who was charged and found
guilty of failing to follow company procedure in dealing with the
parcel in question. The
case of Mr Cassim was heard by a chairperson
different to the one who heard the applicant’s case.
[19]
The applicant also criticised the
commissioner for failing to take into account the fact that the
employee was charged with an offence
of gross dishonesty and also
that the employee persisted with her denials both during the
disciplinary and the arbitration
hearing.
[20]
The applicant further contended that the
commissioner misapplied the principles relating to inconsistency and
placed undue emphasis
on the years of service of the employee.
[21]
The commissioner found that the employee
“
initiated the entire unlawful
process.”
He further found that
the employee sought to convey the impression that all she wanted was
“
employee sales
”
and yet she was unable to explain how she could
mistake the product that she received as “employee sales”
when it had
been brought to her by Mr Johnson in a sealed box.
[22]
The commissioner further found that the
fact that a list did exist militated against the transaction in
question being an “employee
sales” because the
“
employee
sales”
consist of a random sample
of containers without lids.
[23]
The commissioner found the employee guilty
of the offences she was charged with but held the sanction to be
inappropriate and for
this reason decided to interfere with the
award. It is apparent that in interfering with the sanction the
commissioner was influenced
by the following factors:
·
The fact that Mr Cassim had been given a
final written warning and received a suspension as opposed to being
dismissed.
·
The years of service that the employee had
served with the applicant.
·
The procedures concerning the sales of
scrap to employees were not strictly adhered to by the applicant.
[24]
At the time the judgement in this matter
was reserved the applicable test for reviewing commissioners’
arbitration awards
was the rationality and justifiability test as was
set out in
Rustenburg Platinum Mines LTD
( Rustenburg Section) v CCMA & Others
[2006]
11 BLLR 1021(SCA).
This test has since been done away with by
the Constitutional Court. The applicable test now is that of
a
“
reasonable decision maker.”
In
my view the result would have been the same even if that test was
used in this review.
[25]
In the unreported recent case of
Sidumo
v Rustenburg Platinum Mines LTD
(Case
N0 85/06), the Constitutional Court, was called upon to consider two
issues. The first issue which is very much similar to
the issue in
the current case was whether in deciding on the fairness of the
sanction in a case where the employee had been found
guilty of
misconduct, the commissioners should approach the employer’s
decision with a “measure of difference.”
The second issue
was whether or not in reviewing the CCMA awards the Labour Court
should apply the Promotion of Administration
Act 3 of 2000 or the
grounds as set out in section 145 of the Labour Relations Act 66 of
1995 (the LRA).
[26]
The Constitutional Court discussed at
length the two issues and reasoned that the LRA requires the
commissioners to determine whether
or not dismissals are fair. In
determining the fairness of the dismissals the first inquiry that the
commissioners need to conduct
is a factual inquiry concerning whether
or not the misconduct was committed. In conducting this inquiry the
commissioners act in
the similar manner like a court.
[27]
The second inquiry that the commissioners
must conduct is that of determining the fairness of the dismissal. In
conducting this
inquiry the commissioners must take into account the
reasonableness of the rule breached by the employee and the
circumstances
of the infringement.
[28]
The Court further held that in arriving at a decision whether or not
the dismissals are fair, the commissioners exercise a
value
judgement. In exercising the value judgement the commissioners need
to take into account all the circumstances of the case,
including the
importance of the rule that was breached and the reasons why the
employer imposed the sanction of dismissal. The
employee’s
inputs need also to be taken into account.
[29]
The other relevant factors to be taken into
account are; (a) the harm caused by the employee’s conduct, (b)
whether the repetition
thereof might be avoided through training or
counselling, (c) the length of service of the employee and (d) the
impact and the
effect of the dismissal on the employee.
[30]
The result of
Sidumo’s
case
is that the test to apply in
review cases is no longer whether a reasonable employer would have
imposed the sanction of dismissal
but whether the decision of the
arbitrator is one which a “
reasonable
decision maker”
would have
arrived at.
[31]
Thus, the issue to consider in the current
case is whether a reasonable decision maker, based on the evidence
and the material before
him or her, would have arrived at a different
decision. In other words would a reasonable decision maker in
applying the parity
principle have come to a different or the same
conclusion?
[32]
I am of the view, for the reasons set out
below, that the decision of the commissioner in the current case is
not reasonable. Objectively
speaking a reasonable decision maker
would have in the first place taken into account the approach that
has been followed by both
the Courts and other dispute resolution
institutions in dealing with the issue of parity. Secondly, he or she
would have taken
into account the serious nature of the offence and
the fact that Mr Cassim was found guilty of an offence of a less
serious nature
than that of the employee. He or she would have
found that the case of the applicant and that of Mr Cassim had
different
features and therefore fairness would not dictate that they
be treated like cases.
[33]
In dealing with the issue of consistency, Du Toit Bosch et al
Labour Relations Law’, A comprehensive Guide
, state the
following:
“
Consistency
however implies treating like cases alike. An employer may thus be
justified in differentiating between employees who
have committed
similar transgressions on the basis of differences in personal
circumstances of the employees (such as length of
service and
disciplinary record) or the merits (such as the roles played in the
commissioning of the misconduct).”
[34]
In dealing with the same issue the Labour Appeal Court in
case of
SACCAWU and Others v Irvin & Johnson
(1999) 20 ILJ
2303(LAC) at page 2313 (para 29) held that:
“
In
my view too great an emphasis is quite frequently sought to be placed
on the 'principle' of disciplinary consistency, also called
the
'parity principle' (as to which see e.g. Grogan Workplace Law
(4 ed) at 145 and Le Roux & Van Niekerk The SA Law
of Unfair
Dismissal at 110). There is really no separate 'principle'
involved. Consistency is simply an element of disciplinary
fairness
(M S M Brassey 'The Dismissal of Strikers' (1990) 11 ILJ 213 at 229).
Every employee must be measured by the same standards
(Reckitt &
Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union &
others (1991) 12 ILJ 806 (LAC) at 813H-I). Discipline
must not be
capricious. It is really the perception of bias inherent in selective
discipline which makes it unfair. . . “
[35]
The Court went further to say:
“
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 towards the other
employees. It would mean no more than that his or her assessment
of
the gravity of the disciplinary offence was wrong. It cannot be fair
that other employees profit from that kind of wrong decision.
In a
case of a plurality of dismissals, a wrong decision can only be
unfair if it is capricious, or is induced by improper motives
or,
worse, by a discriminating management policy. (As was the case in
Henred Fruehauf Trailers v National Union of Metalworkers
of SA &
others (1992) 13 ILJ 593 (LAC) at 599H-601B; National Union of
Mineworkers v Henred Fruehauf Trailers (Pty) Ltd
(1994)
H 15 ILJ 1257 (A) at 1264.) Even then I dare say that it might
not be so unfair as to undo the outcome of other
disciplinary
enquiries. If, for example, one member of a group of employees who
committed a serious offence against the employer
is, for improper
motives, not dismissed, it would not, in my view, necessarily mean
that the other miscreants should escape.
Fairness is a value
judgment. It might or might not in the circumstances be fair to
reinstate the other offenders. The point is
that consistency is not a
rule unto itself.”
[36]
It is evidently clear from the ratio of Irvin & Johnson that when
deciding the issue of parity, the gravity of the misconduct
of the
employee who seeks to rely on that principle should receive serious
attention.
[37]
The Labour Appeal Court, in confirming its
decision in
Irvin & Johnson
decision held in
Gcwensha v
CCMA & Oth
ers
(2006) 3 BLLR 234
(LAC) that:
“
Disciplinary
consistency is the hallmark of progressive labour relations that
every employee must be measured by the same standards.”
The Court went further so
say:
“…
when
comparing employees care should be taken to ensure that the gravity
of the misconduct is evaluated …
”
[38]
Similar to the present case, in
Metcash Trading (PTY) t/a
Trador Cash & Carry Wholesalers v Sithole & Others
(1998) JOL 3591
(LC), the Court found that reliance on the
parity principle was misplaced in circumstances where different
chairpersons
of disciplinary hearings arrived at different
conclusions. In that case one of the chairpersons found the
employee
guilty of the misconduct whereas the charges against the
other two were withdrawn. The court further held that the
principle
of parity is applicable when persons have been convicted of
the same offences.
[39]
Whilst I agree with the decision of Landman J in the
Sithole
matter
, I need to point out that there are circumstances where
the parity principle may apply even when there has not been a
conviction.
However, in the circumstances of this case as was
the case in the
Metcash’s case
conviction plays a
critical role.
[40]
In this case as indicated earlier the employee was found
guilty of a serious offence of dishonesty and dismissed whereas Mr
Cassim
was found guilty of a lesser charge of failing to follow
company policy. This is consistent with the version of the employee
as
set out in her grounds of appeal. I have indicated earlier that
the basis of the appeal was that Mr. Cassim had breached the company
procedures relating to the sales and no action was taken against him.
[41]
The same was reaffirmed during the appeal by the employee’s
representative when he submitted that:
“
Essa
Cassim was intrinsically involved in this matter and the evidence led
at the initial enquiry showed that he breached the company
procedures
for sales (both sample and employee) on a number of occasions yet he
was not dismissed.”
Thus, even on the
employee’s own version the offence committed by the Mr. Cassim
was not only different but also of a less
serious nature than that
committed by her.
[42]
Turning to the issue of the seriousness of the offence, the
presence of dishonesty tilts the scales to an extent that even the
strongest
mitigating factors, like long service and a clean record of
discipline are likely to have minimal impact on the
sanction
to be imposed. In other words whatever the amount of
mitigation, the relationship is unlikely to be restored once
dishonesty has
been established in particular in a case where the
employee shows no remorse. The reason for this is that there is a
high premium
placed on honesty because conduct that involves
corruption by the employees damages the trust relationship which
underpins the
essence of the employment relationship. In this
regard the Court in
Sappi Novaboard (PTY) Ltd v Bolliers
(1998
19 ILJ 784 (LAC), held that:
“
In
employment law premium is placed on honesty because conduct involving
moral turpitude by employees damages the trust relationship
on which
the contract is founded.”
[43]
The same approach was adopted in the case of
Standard Bank
of SA v CCMA and Others
(1998) 19 ILJ 903, where the court held
that dishonesty in general renders the employment relationship
intolerable and incapable
of restitution. See also
Central News
Agency v CACWUSA & Anoth
er (1991) 12 ILJ 343 (LAC) and
Toyota
South Africa Motor (Pty) Ltd v Radebe & Others
(2000) 21 ILJ
340(LAC).
[44]
Another distinguishing feature between the case of the Mr
Cassim and that of the employee is the fact that the employee has
failed
to show remorse. The persistent denials both during the
disciplinary and arbitration hearings exacerbated the case of the
employee.
[45]
It would in my view be unfair for this Court to expect the
applicant to take back the employee when she has persisted with her
denials
and has not shown any remorse. An acknowledgement of wrong
doing on the part of the employee would have gone a long way in
indicating
the potential and possibility of rehabilitation including
an assurance that similar misconduct would not be repeated in the
future.
See in this regard
De Beers Consolidated Mines Ltd v CCMA
& Oth
ers (2000) 21 ILJ 1051 (LAC).
[46]
The different roles that each played in concealing the
misappropriation is also an important factor that has to be weighed
in the
application of the parity principle. It is evidently clear in
this matter that the applicant played a central role in orchestrating
the whole plan to conceal the true nature of the product and having
others to assist in having the product sent to her daughter.
In this
regard the commissioner found that:
“
She
attempted to convey the impression that all she wanted was “employee
sales” and yet she was unable to explain how
she could mistake
the product that she had received as “employee sales”
when it had been brought to her by Mr Johnson
in a sealed box. This
was not the ordinary procedure in regard to the “employee
sales.” In addition she was unable
to offer any explanation
whatsoever as to why she labelled the box with her daughter’s
name as well as the destination Servopak
in Pretoria.”
[47]
Having regard to the evidence and material which were placed
before the commissioner, I am of the view objectively so, that his
conclusion was unreasonable. It is evidently clear from the material
before the commissioner that the employee was dishonest in
the manner
she procured and forwarded the product to her daughter. The finding
of the commissioner itself supports this view.
[48]
It needs to be reemphasized that the employee did not show
remorse as opposed to Mr. Cassim who apologized for his conduct. The
employee showed no concern in the damage that had been caused to the
trust between her and the applicant by her dishonest conduct
and
therefore how could the applicant be expected to take her back into
its employ.
[49]
The material before the commissioner also revealed very
distinct features between the case of the employee and that of Mr
Cassim
and therefore the commissioner misapplied the principles of
parity and accordingly committed a gross irregularity which resulted
in the applicant being denied a fair hearing.
[50]
Accordingly the commissioner’s award is not reasonable
and grossly irregular because of the misapplication of the
application
of the principle of parity. And it is for this reason
that the award stand to be reviewed. There is no need to refer
the
matter back for a rehearing, the material and the evidence on the
record being sufficient for this Court to make its own determination.
[51]
It was not unreasonable for the employee to defend the review.
In the circumstances it would not be fair to award costs.
Order
[52]
In the premises the following order is made:
1.
The arbitration award is reviewed and set aside.
2.
There is no order as to costs.
3.
The arbitration award is substituted with the following order:
a.
The dismissal of the third respondent was both procedurally
and substantively fair.
b.
The dismissal of the third respondent is confirmed.
_______________
Molahlehi
J
Date
of Hearing: 13 August 2007.
Date
of Judgment: 06 December 2007.
Appearances
Applicant
Attorneys: Garlicke & Bousfield.
For
the Respondent: Adv D P Crampton.
Instructed
by: Tolinson Mnguni James Attorneys.