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[2009] ZALCJHB 60
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Nissan Diesel (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR177/08) [2009] ZALCJHB 60 (21 July 2009)
JR
177/08-T J
KOEKEMOER
JUDGMENT
21/07/2009
NOT
REPORTABLE
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO: JR177/08
In
the matter between
NISSAN
DIESEL (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
ELSABE MAREE
Second
Respondent
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA
Third
Respondent
MOTSEPE,
DANIEL
THIPE
Fourth
Respondent
J U
D G M E N T
DE
SWARDT AJ:
The
fourth respondent in this matter, Mr Daniel Thipe Motsepe, was first
employed by the applicant, Nissan Diesel (Pty) Ltd (‘Nissan’),
on 7 January 1982. He was a shop steward for a period of 15
years and as from 1 July 2003 Mr Motsepe became the company’s
IR officer. He had 25 years’ service when he was
dismissed on 30 May 2007. His dismissal arose as a result of
the distribution of some pornographic material via the internet.
During
2004 Mr Motsepe had inadvertently distributed pornographic material
to applicant’s management by e-mail when he sent
a nude picture
along with a minute of a work related meeting. At the time the
Executive Vice President of the company, Mr
Richards, verbally
reprimanded him and pointed out not only that the policies and
procedures of the company prohibited the keeping
of pornographic
material on a computer in the office environment, but that further
transgressions of this nature could and would
lead to disciplinary
inquiry and possible dismissal.
The
evidence of Mr Richards in this regard, as it appears at page 509 of
the record, reads as follows:
‘
And
he explained to me that he did it by mistake and I explained to him
that policies and procedures of the company constitutes
(sic) that
you are not allowed to even keep such pornographic material on your
computer in the office environment. I told
him that I
understand that it is a mistake, but he must understand that if this
would happen again it would lead to definitely
a disciplinary inquiry
and that this could lead to his dismissal if so decided by the
Chairman. Madam Commissioner, my feeling
is that my actions at
that stage were that of giving Mr Motsepe a verbal warning that he
must understand that this could not be
tolerated in our company and
that it is against the policies and procedures of the company.
’
The
reprimand was, however, not recorded on Mr Motsepe’s
personnel file because Mr Richards trusted that there would
not be a
recurrence of such conduct in the future. Mr Richards dealt
with this specifically and I refer in this regard to
his evidence at
page 514 of the record. When he was asked why the warning or
reprimand was not recorded, his response was:
‘
I
did not feel it necessary at that stage. There was a trust
position between the employee which I have known and I have explained
earlier for 15 years, or at this stage 15 years, at that stage it was
12 years that we knew each other and that I felt that he
would not do
these actions again in future and I felt that a verbal warning
without the recording was adequate at that stage.
’
It
seems that Mr Richards’ trust in Mr Motsepe was misplaced,
because on 18 May 2007 Mr Motsepe again sent pornographic
material by e-mail. On the latter occasion this did not happen
inadvertently or by mistake. He sent a set of 23 pornographic
images containing,
inter alia,
explicit photographs of a couple having intercourse in an office, to
Ms Conceilia Lebese, an employee of Super Group Supply Chain
Partners, a company which provided logistic and distribution support
to Nissan at the latter’s premises.
These
images had been sent to Mr Motsepe by e-mail in 2004 by a fellow
employee, a Mr Jonas Legodi. As it happened, Ms
Lebese was
absent from work due to illness on 18 May 2007 and it was arranged
that her e-mails would automatically be forwarded
to a Ms Botha who
was then her site manager.
Ms
Botha was very shocked and dismayed when she opened the e-mail and
saw the content. She immediately contacted Mr Wouter Combrinck,
the
applicant’s Senior Manager: Information Technology.
As
a result of the distribution of this e-mail Mr Motsepe was
charged with contravening the applicant’s policy on electronic
communications. The charges read as follows:
‘
(a)
You have contravened the company’s IT policy by distributing
email messages with an illegal content to third
parties outside the
company.
(b)
The distribution of
pornographic and unacceptable information to a third party.’
Mr
Legodi was also charged with a contravention of the applicant’s
policy as aforesaid, but the charges against him related
to seven
different images of naked women which were found on his computer.
He was not charged with transmitting the 23 images
which he had
forwarded to Mr Motsepe in 2004.
Mr Motsepe
appeared before a disciplinary inquiry and he was dismissed on 30 May
2007. He felt himself aggrieved by his
dismissal, particularly
in view of the fact that Mr Legodi was not dismissed and accordingly
referred a dismissal dispute to the
CCMA.
On
24 November 2007 the second respondent, who was the Commissioner at
the CCMA, published her arbitration award. She
found that
the applicant’s dismissal was substantively unfair in that
Nissan had acted inconsistently and that dismissal
was not
appropriate. She did, however, find that the dismissal was
procedurally fair. The award that she made read
as follows:
‘
The
respondent, Nissan Diesel SA (PTY) Ltd, is ordered to:
1.
Re-employ the applicant Daniel Thipe
Motsepe from 14 December 2007 in any reasonably suitable work on the
terms and conditions the
respondent deems fit in accordance with the
said position.
2.
The re-employment is accompanied by
a final written warning valid for a period of 12 months commencing on
14 December 2007 regarding
any offence that relates to the sending of
‘illegal content’ as per the respondent’s IT
policy, Electronic Communication.
3.
The re-employment to be without the
payment of any back-pay.
4.
I make no order as to costs.’
On
30 January 2008 Nissan launched proceedings in this Court for the
review and setting aside of the Commissioner’s award.
In
addition to the oral evidence that was led at the proceedings before
the CCMA, a bundle of documents served before the Commissioner.
This bundle of documents also contained the written IT policy of the
company. In fact, there were two written IT policies,
the ‘old’
IT policy having being applicable up to the end of 2006 and a new
policy which commenced in January 2007.
The
old policy was the one that was still applicable in 2004 when
Mr Motsepe had made the mistake in transmitting pornographic
e-mail together with minutes of a meeting. In terms of that
policy, it was provided in Clause 1.1 that Nissan Diesel provides
electronic e-mail for internal and external communications, primarily
for the purpose of improving business productivity and
communications.
Clause 1.2 read that ‘
the
policy principles defined below govern the proper and professional
use of the company’s e-mail system by all its employees,
dealers, contractors and other e-mail users. It is imperative that
all users of the system adhere to the policy guidelines and
criteria
for use as defined below
.’
In
Clause 2 of the old policy and more particularly clause 2.2.1, it was
expressly stated that the main purpose for the provision
of e-mail
facilities was for company business use. In Clause 2.2.3
it was provided that authorised users of the company’s
e-mail
and computer facilities were prohibited from engaging in certain
activities and that users who were found to have contravened
the
rules may be denied access to the e-mail system and may face
disciplinary charges. The prohibited activities, which were
detailed in 2.2.3.1, included transmitting items (defined as being
notes, information, jokes, innuendos or images) which contain
offensive, derogatory, obscene, indecent, lewd or lascivious material
or material which explicitly or implicitly refers to sexual
conduct.
This
old policy was published on the company’s sharepoint portal
internet site and employees were asked to familiarise themselves
with
the contents thereof. In fact, an e-mail had been sent out by
one Helen Van Vuuren, a legal assistant, on 26 May 2006
drawing all
employees’ attention to this fact.
As
from January 2007 the new IT policy at Nissan became operative.
That policy contained the following relevant clauses. In
clause
2.1 it was expressly stated that the policy applied ‘
to
all users as well as third parties that have temporary access to
Nissan Diesel’s e-mail, internet access or network and
who use
Nissan Diesel’s facilities to send and receive e-mail
messages
.’
Under
clause 3, dealing with the purpose of the code, it was specifically
stated that the purpose of the electronic communications
policy was
to create rules for the use of e-mail and the internet and to provide
for disciplinary action against users who failed
to comply with the
policy.
Clause
5, which contained the definitions, defined illegal content as
follows in clause 5.2:
‘
IC
constitutes mail and websites that contain material that is
pornographic, oppressive, racist, sexist, defamatory against any
user
or third party, offensive to any group, a violation of users’
or a third party’s privacy, identity or personality,
copyright
infringement, malicious codes such as viruses and Trojan horses and
content containing any personal information of users
or third parties
without their consent.’
In
clause 8.1.1 of the policy it was specifically stated that ‘
users
are personally responsible to abide by the rules created in the
policy and must delete all incoming e-mail messages that contain
content or links to content that are not allowed in terms of this
policy
.’
Clause
8.3, which dealt with non-acceptable and punishable use, provided in
8.3.1 that: ‘
The following actions
and content are not allowed and will lead to investigation and
disciplinary action
.’ A
number of bulleted points follow and one of these reads: ‘
receiving,
storing, downloading, printing, distributing, sending or accessing
illegal content [as defined above].’
In
clause 8.4 under the heading ‘
Consequences
of Misuse’
the clause states that
‘
Failure and or refusal to
abide by the rules detailed in this policy shall be deemed as
misconduct and NDSA may initiate the appropriate
investigation and
disciplinary action against users.’
In
an e-mail dated 11 January 2007 Ms Helen Van Vuuren advised the
workforce at Nissan of the new policy and the e-mail which she
sent
out specifically stated that ignorance of the policy would not
constitute a valid defence. According to the e-mail,
which is to be found at page 136 of the paginated papers, it was sent
to Nissan’s internal distribution list and attention
was drawn
to three different policies, the first being the Electronic
Communications Policy under the reference Information Technology,
the
effective date being 4 December 2006. The e-mail states:
‘
Please
note that the above policy substitutes all previous policies
applicable to the subject matter. The policy can be viewed on
the
Sharepoint portal link / Information Technology ... It is each
employee’s responsibility to take note of the contents
and to
act in accordance with the policy. Ignorance of this
publication will not constitute a valid defence in the event
of
non-conformance. Your co-operation in the effective
implementation and enforcement of the policy is appreciated.’
The
company’s disciplinary code and procedure contained a clause
which dealt with disciplinary action against employees and
in
particular with the sanction which would be imposed. In clause
2.3.4 under the heading ‘
General’
it is stated that
‘
The
employer will strive, whenever possible and with due regard to the
circumstances of each case, to be consistent in taking disciplinary
action. The employer will, however, reserve its right to issue
different penalties for similar misconduct based on the circumstances
of each misconduct and this will not be considered as setting a
precedent.’
Examples
of serious misconduct which could result in summary dismissal after a
formal disciplinary inquiry had been held, include
computer usage
which involves distribution of pornographic or unacceptable
information to other persons.
Reverting
to the circumstances of the case, it is quite clear on the record
that despite Mr Motsepe’s stance that he
was not fully
au
fait
with the company’s IT
policy, he indeed had knowledge of Nissan’s IT policy and the
Commissioner’s finding in
this regard is correct.
Mr
Johannes Jacobus Marais, a Senior Manager: Logistics and Production
Planning Control, acted as the Chairman of the disciplinary
inquiries
of both Mr Motsepe and Mr Legodi. He explained his reasons for
dismissing Mr Motsepe and for giving Mr Legodi only
a written
warning. These appear in summarised form on pages 19 to 21 of the
paginated papers in paragraphs 24.13 to 24.16.
In
essence, Mr Marais decided not to dismiss Mr Legodi - whom I might
mention was charged separately from Mr Motsepe, – inasmuch
as
it only came to the attention of the authorities at Nissan during the
subsequent investigation of Mr Motsepe’s conduct,
that Mr
Legodi was in fact the one who had previously sent the 23
pornographic images to Mr Motsepe. At the time of
Mr Legodi’s hearing, he had accordingly been regarded as a
first offender, his disciplinary record having been clean.
A
second aspect that was taken into account, was that the nature of the
images which Mr Legodi sent by e-mail differed from those
sent by
Mr Motsepe. The images which Mr Legodi forwarded were
pictures of nude females with exceptionally heavy
pubic hair, whereas
the pictures transmitted by Mr Motsepe portrayed sexual acts in
an office environment which were very
explicit. A further
aspect which Mr Marais took into account in deciding not to dismiss
Mr Legodi, was that no complaints
had been raised by an outside
entity in relation to Mr Legodi’s actions.
In
deciding to dismiss Mr Motsepe, Mr Marais took into account the
fact that Mr Motsepe had already received a warning
from Mr
Richards as a result of the incident in 2004. He further had
regard to the fact that Mr Motsepe had failed to
correct his
behaviour after he had been given the opportunity to do so and that
he could therefore not be trusted. Mr Marais
also took into
account that Mr Motsepe was an IR officer and, as such, he was a
leader in the workplace and had to set an
example. Moreover, a
complaint relating to Mr Motsepe’s conduct had been raised
by a third party, Ms Botha from
the Super Group Supply Chain Partner,
which had placed Nissan at risk for civil litigation. In
addition, the 23 pornographic
images forwarded by Mr Motsepe were
extremely graphic in nature and portrayed various sexual acts,
including intercourse, in an
office situation.
Mr
Marais’ evidence was to the effect that in his view the company
would have acted inconsistently had he dismissed Mr Legodi
in
circumstances where Mr Motsepe had received a warning for his
first offence. Mr Legodi was accordingly offered
a chance
or an opportunity to redeem himself. Mr Motsepe, on the
other hand, was regarded as a repeat offender who had
distributed
graphic sexual material after having been warned against such
conduct.
As
far as the previous warning or reprimand in 2004 was concerned, the
versions given by Mr Richards and Mr Motsepe differed.
I have
referred earlier in the course of this judgment to the evidence given
by Mr Richards. Mr Motsepe, in essence, denied
that he had ever
been reprimanded by Mr Richards. He alleged that Richards
essentially told him ‘
These things
happen in life, do not worry, forget about it.’
In
dealing with this evidence, the Commissioner said the following at
page 46 of the paginated papers. She deals specifically with
the
evidence of Mr Motsepe and then says:
‘
I
find it a bit difficult to believe that the Executive Vice President
would say this. It is more probable that the conversation
went along
the lines as testified to by Mr Richards. However, this does
not mean that the conversation ended in the issuing
of a verbal
warning. I was not presented with convincing evidence that such a
warning was issued and in view of the fact that the
applicant and Mr
Richards had known one another for approximately 15 years it is
probable that Mr Richards might have merely discussed
the incident
with the applicant, but stopped short of issuing a warning.
Based on this the applicant’s dismissal constituted
inconsistency. In any event, even if the applicant had a
previous warning, the dismissal would still not be justified as
the
argument that the images sent by the applicant was more graphic than
those sent by Mr Legodi is also rejected.’
It
is not clear to me how the Commissioner could have made the finding
that she did in regard to the evidence of Mr Richards.
Mr
Richards’ evidence, according to the transcript, is quite clear
that he gave Mr Motsepe a verbal warning. He
told him in
so many words that he had to understand that this kind of behaviour
would not be tolerated in the company, that it
was against the
policies and the procedures of the company and that Mr Motsepe
had to mend his ways.
When
Mr Richards was asked specifically why the written warning was not
recorded he explained that it was not recorded on the personnel
file
because he trusted Mr Motsepe and in those circumstances, where he
had known him for 15 years, he expected that it would not
be
necessary to refer to this again. The evidence of Mr Richards
was clear, it was explicit and he did not deviate from it
in the
course of cross-examination. There is thus no room for
construing his evidence along the lines that he did not reprimand
Mr Motsepe and that he did not point out to him what the
consequences of future misconduct would be.
The
Commissioner found on the evidence before her that both Mr Motsepe
and Mr Legodi ought to have been dismissed, but
that Mr Motsepe
had to gain from the fact that Mr Legodi was only given a
written warning. The Commissioner says
in so many words (in the
first paragraph on page 47 of the papers):
‘
I
need to say that both the applicant and Mr Legodi should have
been dismissed as the images they sent are equally disgusting.
Fortunately for the applicant Mr Legodi was not dismissed and he
thus stands to gain from the respondent’s inconsistency.’
This
stance appears to have led to the Commissioner’s interference
with the employer’s sanction. On page 48 of
the paginated
papers she states that the applicant’s dismissal was
procedurally fair and that the applicant was, unfortunately,
merely
benefiting from the mistakes made by the employer in not applying the
policy and meting out the sanction of dismissal consistently.
The order which she made, makes a mockery of the sentiments
which she expressed in her award and it appears to me that the
Commissioner misconceived her task, i.e. to determine whether or not
the employer’s decision to dismiss Mr Motsepe was
fair.
It
is quite clear if one has regard to the case of
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
2008 (2) SA 23
(CC) at 83E-J, paragraphs 177 to 179 and at 84D paragraphs 181 to
183
, that the Commissioner had to pass
a value judgment against the background of all of the surrounding
circumstances pertaining to
Mr Motsepe’s dismissal.
The mere fact that there was an ostensible inconsistency in the
sanctions imposed on Mr
Legodi and Mr Motsepe does not offer
sufficient grounds to interfere with an employer’s sanction.
In this regard, I
would refer to what was said in
Minister
of Correctional Services v Mthembu NO and others
2006 27 ILJ 2114 (LC) at 2120
a judgment of Van Zyl AJ.
‘
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’… 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 was stated by
Conradie JA in the
Irvin and Johnson case … 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 that his or her assessment of the gravity
of the disciplinary offence was wrong”.’
The
reference to the I
rvin and Johnson
case
is a reference to
SA Commercial Catering
and Allied Workers Union and others v Irvin and Johnson Ltd 1999
20ILJ 2302 (LAC)
. The judge
in the
Mthembu
case proceeds as follows:
‘
This
statement was qualified by the Labour Appeal Court in the case of
Cape Town City Council v Masito and others where Nugent AJA
stated
the following at 1961 E to F.
“
While
it is true that an employer cannot be expected to continue repeating
a wrong decision in obeisance to a principle of consistency,
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. 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
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.’
The
case of
Cape Town
City
Council v Masito and others
is reported at (2000) 21ILJ 1957 (LAC).
In
applying the aforegoing basic principles laid down in these cases to
the instant case, it appears to me that there is in fact
no
inconsistency. The case of Mr Legodi is not exactly like
the case of Mr Motsepe. The ostensible inconsistency
which
greets one at first blush is in fact not real. There are
particular distinguishing features in Mr Motsepe’s
case,
least of which is not that he had in the past committed a breach of
the company’s IT policy, that he was reprimanded
for such break
and that it was explained to him that a further breach of that nature
would not be tolerated. If the
principles in these
previously decided cases are applied to the evidence which was before
the Commissioner, it seems to me that
it was abundantly clear that
Mr Motsepe’s case stood on a totally different footing to
that of Mr Legodi, albeit
that Mr Legodi was the person who
had originally sent the graphic images to Mr Motsepe by email.
Mr Motsepe
had not only retained these images on his computer for a period of
approximately three years, which in itself constituted
a breach of
the policy and to my mind is an aggravating feature, but Mr Motsepe
knew quite well that the company’s policy
would be enforced and
that it would be strictly enforced. Mr Motsepe attempted
to disavow knowledge of the detail of
the company’s policy, in
a transparently disingenuous attempt at avoiding responsibility for
his actions.
On
the totality of the evidence as it is on record, it would appear to
me that no reasonable commissioner would have made the award
that the
Commissioner had made in this particular instance and that the
Commissioner’s award is therefore open to review.
The
remaining aspect which has to be decided, is whether or not the
matter ought to be remitted to the CCMA so that evidence can
be led
afresh before another Commissioner, or whether this Court ought to
make an order on the basis of the evidence which is already
on
record, as was submitted by Mr Van As.
I
have had regard to the principles laid down in this regard in the
case of
Shield Security Group (PTY) Ltd
v CCMA and others
2000
21ILJ 958 (LC) at 965 G-I
. It
appears to me that this Court has the benefit of a full transcript of
the evidence at the CCMA, that the material facts
pertaining to the
case are clear and that it is apparent that neither party’s
case could improve or be expanded upon in a
manner which might lead
to a different assessment of the underlying facts. In the
circumstances it would seem to me that
a remittal of the manner to
the CCMA would merely cause a delay in the final determination of the
matter.
I
accordingly make the following order:
1. The
application for the review of the award made by the second respondent
on 18 December 2007 under case number GAPT5121/07 is
granted.
2. The
aforesaid award made by the second respondent is hereby set aside and
substituted by the following:
‘
The
dismissal of
Mr DT Motsepe by Nissan Diesel (PTY) Ltd on 13 May
2007 was procedurally and substantively fair.’
3. The
third and fourth respondents will pay the applicant’s costs
jointly and severally, the one paying the other to be absolved.
As
regards the order for costs that I have made, I might mention that I
have been persuaded by the argument of Mr Van As that where
a person
in a disingenuous manner attempts to avoid responsibility for his or
her actions at a disciplinary inquiry and subsequent
proceedings in
the CCMA and then proceeds to this Court, costs should follow the
result. There appears to be no justification
for making a
different costs order in a situation such as this.
A
further factor which has influenced my decision in this regard is the
fact that there is not an ongoing employment relationship
and the
fourth respondent only has himself to blame for this situation.
_____________________
A
M DE SWARDT, A J
For
Applicant
Adv M van As
Respondent
In Person
Date
of Hearing 21 July
2009
Date
of Judgment 21 July 2009