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[2009] ZALCJHB 56
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Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR243/05) [2009] ZALCJHB 56 (24 July 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR243/05
In
the matter between:
SOUTHERN
SUN HOTEL INTERESTS (PTY)
LTD Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
& ARBITRATION
First
respondent
MOLETSANE,
R,
N.O.
Second
respondent
SOUTH
AFRICAN COMMERCIAL CATERING
AND
ALLIED WORKERS UNION
Third
respondent
MOKOENA,
E Fourth
respondent
PERSONS
LISTED IN ANNEXURE
‘
A’
TO FOUNDING AFFIDAVIT
Fifth
and further respondents
REASONS
FOR JUDGMENT
VAN
NIEKERK J
Introduction
[1]
On 23 April 2009, I made an order reviewing and setting an
arbitration award made by the second respondent, to whom I shall
refer as “the commissioner”, with no order as to costs. I
further ordered that the commissioner’s award be substituted
by
a ruling to the effect that the dismissal of the applicants in the
arbitration proceedings was substantively and procedurally
fair. I
stated then that I would provide reasons for the order. These are my
reasons.
[2]
The applicant applied in terms of section 145 of the Labour Relations
Act to review and set aside an arbitration award issued
by the second
respondent (‘the commissioner’). The application was
opposed by the third respondent (‘the union’)
on behalf
of the fifth and further respondents, but it was not opposed by the
fourth respondent.
[3]
The applicant’s heads of argument were drafted by Adv. AT
Myburgh (Adv. AIS Redding SC appeared for the applicant at the
hearing of the application). I am indebted to Adv. Myburgh for his
comprehensive heads, on which I have drawn liberally in the
preparation of this judgment.
[4]
The fourth, fifth and further respondents (there being 19 in total)
and to whom I shall refer as ‘the employees’,
were all
employed at the Johannesburg International Airport Holiday Inn.
Eleven of them were attached to the hotel’s food
and beverage
department, and the remaining four held clerical positions. After
having experienced problems with costs of sales
in the department and
further to having exhausted all conventional means at resolving the
issue, the hotel installed video cameras
at the hotel in the guest
bar, the kitchen, the service bar and the storeroom. The footage was
monitored for approximately six
weeks in the months of June and July
2003. In mid-July 2003, 36 employees were charged with the
unauthorised consumption of company
beverages and some with an
additional charge of consuming alcohol on duty. Thirty-two individual
disciplinary enquiries were convened,
after three employees resigned
and another absconded in reaction to the charges. Of these 32
employees, two were found not guilty,
one (Kele) given a final
warning, and the remaining 29 dismissed. The dismissals were effected
on different dates during July and
August 2003.
[5]
Of the 29 employees who were dismissed, 19 of them (the individual
respondents in these proceedings) challenged the fairness
of their
dismissal before the CCMA in arbitration proceedings presided over by
the commissioner. At the arbitration, it was common
cause that all of
the employees were guilty as charged, save for Madimlane and Tema
(who contested their guilt), and that but for
the company allegedly
having acted inconsistently in not dismissing
inter alia
One
Peter, Nyembe and Kele, the sanction of dismissal was fair and
appropriate. A number of challenges to the procedural fairness
of the
employees’ dismissal were also raised.
[6]
The company called two witnesses at the arbitration: the first was
Lonie, the IR director of Tsogo Sun Holdings, and the second
Carstens, the erstwhile food and beverage manager at the hotel. Four
of the employees then gave evidence: they were Nkunzi; Tema;
Madimlane; and the fourth respondent, Mokoena. In his award, the
commissioner rejected the employees’ procedural challenges
and
found that all of them were guilty as charged. In effect, the
commissioner accepted all the company’s evidence in relation
to
the employees’ guilt, based as it was on video footages and
which revealed that of the 19 employees, seven of them consumed
alcohol (in varying amounts, some together with mixers) and thus
faced two charges (unauthorised consumption and drinking alcohol
on
duty); five of them consumed more than one non-alcoholic beverage;
and seven of them each consumed one K-way (i.e. soda stream
cool
drink).
The
arbitration award
[7]
At the conclusion of the arbitration proceedings, the commissioner
handed down an award in which he found that the dismissal
of the
employees was procedurally fair, but substantively unfair. The sole
basis on which he made the finding of substantive unfairness
was that
of inconsistent conduct by the company in the application of
discipline. In his summary of the law on inconsistency, the
commissioner recorded that the law was controversial, but that he
would “attempt to reconcile different decisions in order
to
come with a sober approach that is applicable in to the facts in
casu.” After referring to the Labour Appeal Court’s
decision in
SA Commercial Catering & Allied Workers Union v
Irvin & Johnson Ltd
(1999) 20
ILJ
2302 (LAC), the
commissioner recorded that “some doubt” about the
correctness of the approach adopted in that matter
had been expressed
by the Labour Appeal Court in
Cape Town City Council v Mashito &
others
(2000) 21
ILJ
1957 (LAC). After applying what he
considered to be the law to the facts before him (this was done in a
single paragraph), the
commissioner found that the employees had
established inconsistency in both a historical and a contemporaneous
sense. The basis
for this conclusion was the following:
“
Inconsistency
has been established. I am also of the view that the inconsistency
was unfair given that:
·
Singleton was representing the employer
and was not honest when issuing a written final warning in respect of
Kele.
·
There was no good reason not to dismiss
Nyembe and one Peter.
·
Lonie testified that consumption of
alcohol and non-alcoholic beverages is treated the same.
·
Other things being equal, it is unfair
to dismiss an employee for an offence which the employer has
habitually or frequently condoned
in the past or to dismiss only some
of a number of employees guilty of the same infraction…”
[8]
Turning next to the question of sanction, the commissioner found that
the hotel had failed to apply the sanction of dismissal
consistently
in that it had failed previously to dismiss Peter, Nyembe and Kele
for similar misconduct and that on this basis,
and only on this
basis, the employees’ dismissal was substantively unfair. The
commissioner awarded each of the employees’
compensation
equivalent to 11 months’ remuneration, denying them the
reinstatement that they sought because of them having
given
‘
dishonest evidence
’ and having ‘
showed
no remorse
’.
[9]
In these proceedings, the applicant attacks the commissioner’s
finding that the employees’ dismissal was substantively
unfair.
The essential grounds of review are that the commissioner committed a
gross irregularity (and / or acted unreasonably)
in failing to apply
his mind to a host of materially relevant considerations that arise
from the evidence, and that he made material
errors of law.
Relevant legal
principles
[10]
The legal principles applicable to consistency in the exercise of
discipline are set out in Item 7 (b) (iii) of the Code of
Good
Practice: Dismissal establishes as a guideline for testing the
fairness of a dismissal for misconduct whether ‘
the
rule or standard has been consistently applied by the employer
’.
This is often referred to as the ‘parity principle’, a
basic tenet of fairness that requires like cases to
be treated
alike.
[1]
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.
[2]
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.
(See
Shoprite
Checkers (Pty) Ltd v CCMA & others
[2001] 7 BLLR 840
(LC), at para 3.) Similarity of circumstance is the
inevitably most controversial component of this test. An
inconsistency challenge
will fail where the employer is able to
differentiate between employees who have committed similar
transgressions on the basis
of
inter
alia
differences in personal circumstances, the severity of the misconduct
or on the basis of other material factors.
[3]
[11]
Further, the Labour Appeal Court has held that employees cannot
profit from an employer’s manifestly wrong decision in
the name
of inconsistency. In
SACCAWU &
others v Irvin & Johnson Ltd
[1999]
8 BLLR 741
(LAC), Conradie JA held:
“
Where,
however, one is faced with a large number of offending employees, the
best that one can hope for is reasonable consistency.
Some
inconsistency is the price to be paid for flexibility, which requires
the exercise of a 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 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 induced by improper motives
or, worse, by a
discriminating management policy…. Even then I dare say that
it might not be so unfair as to undo the outcome
of other
disciplinary enquirie
s.”
[4]
[12]
In
Cape Town
City
Council v Masitho & others
(2000) 21
ILJ
1957 (LAC), Nugent JA held as follows with
reference to
Irvin & Johnson
:
“
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”
.
[5]
This
passage (which was relied upon by the commissioner in his award as
having cast doubt on the correctness of
Irvin & Johnson
),
deals with what an employer must do to protect itself in the future
against a claim of historical inconsistency arising from
a wrong
decision in the past. It is evident from the above principles that
there is no confusion in the jurisprudence as it relates
to the
consistency requirement, nor is there any conflict between decisions
of the Labour Appeal Court.
[13]
I turn now to the test to be applied by a reviewing court in
applications for review. In
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007]
12 BLLR 1097
(CC), Navsa AJ held that in the light of the
constitutional requirement (in s 33 (1) of the Constitution) that
everyone has the
right to administrative action that is lawful,
reasonable and procedurally fair, “the reasonableness standard
should now
suffuse s 145 of the LRA.”
[6]
The majority of the Constitutional Court set the threshold test for
the reasonableness of an award or ruling as this: “Is
the
decision reached by the commissioner one that a reasonable
decision-maker could not reach?”
[7]
This formulation, derived from
Associated
Provincial Picture Houses Ltd v Wednesbury Corporation
[1947] EWCA Civ 1
;
[1947] 2 All ER 680
(CA), is not particularly helpful. As Prof Cora
Hoexter points out, not only does the
Wednesbury
formulation
offer no real clues as to the content or meaning of reasonableness,
it contains a circular logic - it merely links the
reasonableness of
the action to the reasonableness of the actor.
[8]
Prof Hoexter also expresses the concern that, depending on how the
test is interpreted, it sets such a low standard for decision-making
that it is worthless except as a ground of last resort. These
concerns aside, the
Sidumo
formulation also leaves unclear the manner in which reasonableness
“infuses” s 145 and, in particular, the nature and
extent
of its impact on process rather than outcome.
[14]
It might be inferred from the
Sidumo
line of reasoning that in
an application for review brought under s 145, process-related
conduct by a commissioner is not relevant,
and that the reviewing
court should concern itself only with the record of the arbitration
proceeding under review and its result.
I do not understand the
Sidumo
judgment to have this consequence. Section 145 of the
Act clearly invites a scrutiny of the process by which the result of
an arbitration
proceeding was achieved, and a right to intervene if
the commissioner’s process-related conduct is found wanting. Of
course,
reasonableness is not irrelevant to this enquiry - the
reasonableness requirement is relevant to both process and outcome.
Prior
to
Sidumo
, in
Minister of Health & another v New
Clicks South Africa (Pty) Ltd & others (Treatment Action Campaign
& another as
amici curiae)
2006 (2) SA 311
(CC), Ngcobo J
made the point in the following way:
“
There is
obviously an overlap between the ground of review based on failure to
take into consideration a relevant factor and one
based on the
unreasonableness of the decision. A consideration of the factors that
a decision-maker is bound to take into account
is essential to a
reasonable decision. If a decision maker fails to take into account a
factor that he or she is bound to take
into consideration, the
resulting decision can hardly be said to be that of a reasonable
decision-maker”
[15]
In his judgment in
Sidumo
,
Ngcobo J reaffirmed the role of reasonableness in
relation to conduct (as opposed to result) in these terms:
“
It
follows therefore that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot in principle
be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing … the commissioner’s
action
prevents the aggrieved party from having its case fully and fairly
determined. This constitutes a gross irregularity in
the conduct of
the arbitration proceedings as contemplated in section 145 (2) (a)
(ii) of the LRA. And the ensuing award falls
to be set aside not
because the result is wrong but because the commissioner has
committed a gross irregularity in the conduct
of the arbitration
proceedings
’.
[9]
The
LAC recently cited this passage with approval.
[10]
As
Davis JA put it:
“
When
all of the evidence is taken into account, when there is no
irregularity of a material kind in that evidence was ignored, or
improperly rejected or where there was … a full opportunity
for an examination of all aspects of the case, then there is
no gross
irregularity”
.
[11]
[16]
Since
Sidumo
,
the Constitutional Court has again had occasion to consider the role
of commissioners and their process-related obligations when
conducting arbitrations. In
CUSA
v Tao Ying Metal Industries
& others (2008) 29
ILJ
2461 (CC), O’Regan J held:
“
It
is clear, as Ngcobo J holds, that a commissioner is obliged to apply
his or her mind to the issues in a case. Commissioners who
do not do
so are not acting lawfully and/or reasonably and their decisions will
constitute a breach of the right to administrative
justice
.
[12]
[17] In summary, s 145
requires that the outcome of CCMA arbitration proceedings (as
represented by the commissioner’s decision)
must fall within a
band of reasonableness, but this does not preclude this court from
scrutinising the process in terms of which
the decision was made. If
a commissioner fails to take material evidence into account, or has
regard to evidence that is irrelevant,
or the commissioner commits
some other misconduct or a gross irregularity during the proceedings
under review and a party is likely
to be prejudiced as a consequence,
the commissioner’s decision is liable to be set aside
regardless of the result of the
proceedings or whether on the basis
of the record of the proceedings, that result is nonetheless capable
of justification.
[18]
With this background, I turn now to consider the challenge to the
commissioner’s award.
The inconsistency
challenge involving ‘Peter’
[19]
The pre-arbitration minute records that the employees intended to
raise an inconsistency challenge
vis-à-vis
‘
Peter, whose surname is unknown
to the
[employees]
,
but who used to work at the
[hotel’s]
banqueting department
’.
In his evidence-in-chief, Lonie testified that he was aware of this
inconsistency challenge, but not of the details. Despite
the
commissioner having warned the employees’ representatives to
put the employees’ inconsistency challenges to Lonie
under
cross-examination, they failed to do so in relation to Peter. In his
evidence-in-chief, Carstens would appear to have stated
that he was
unaware of any incident involving Peter. Under cross-examination,
Carstens was referred to a document where it is recorded
that it was
submitted at Mokoena’s internal appeal enquiry that ‘
recently
… Peter was found helping himself and having a sandwich
[and]
he was charged and made to pay for the
sandwich
’. In response,
Carstens stated that while this issue had been raised on appeal, the
company had done nothing to rebut
it because it was made in the form
of a submission and not given in evidence. Under re-examination, by
which time it appears to
have come to light that Nkunzi (a cashier)
alleged that Carstens had instructed her to charge Peter for the
sandwich, Carstens
denied his involvement, stated that he did not
know who Peter was, and confirmed that, despite being requested to do
so on the
first day of the arbitration, the union had still not
provided Peter’s surname. In her evidence-in-chief, Nkunzi
appears
to have stated that after Peter was caught eating a sandwich,
Carstens had asked her to charge Peter and bring him (Carstens) the
receipt to prove that she had done so. Under cross-examination,
Nkunzi demonstrated herself as an unreliable witness. Despite it
being common cause throughout the proceedings up to that point that
only two employees (Madimlane and Tema) denied unauthorised
consumption, Nkunzi denied guilt (contending that she had been
‘
tasting
’),
then admitted guilt (after having been afforded an opportunity
to consult with her representative during cross-examination),
only to
change her version and then change back again. When it was pointed
out to her that the video footage revealed that she
had consumed four
glasses of K-way cool drink in the space of 41 minutes on 3 July 2003
(from 13h59 to 14h40), she contended that
she had been consuming
drinks returned by guests (and no longer tasting or testing drinks).
This was disingenuous because she was
captured on video actually
pouring herself the cool drinks from the K-way machine. Indeed, so
glaring was Nkunzi’s mendacity
that the commissioner intervened
at this point to remind her that she had taken the oath to tell the
truth. Nkunzi could not provide
Peter’s surname, and appeared
to accept that she had mentioned nothing about Peter at her
disciplinary enquiry, with this
being borne out by the agreed
minutes. For the first time under cross-examination, she contended
that Peter had told her of his
interaction with Carstens (which was
not put to Carstens under cross-examination). It was put to her that
Carstens denied her version
regarding Peter, but there was no audible
response. Asked what she had meant when she stated at her
disciplinary enquiry
that she had made a mistake and that she was
sorry. Nkunzi fell back on the disingenuous contention that she had
been ‘
testing
’
the cool drinks. She did not know whether she was sorry, but changed
her evidence after having been prompted to do so by
Tshabalala, an
employee representative who sat in on the proceedings, which the
commissioner took him to task about.
[20] The commissioner
found as follows:
“
I
am of the view that notwithstanding Nkunzi’s lack of
credibility when she lied by stating that she had been tasting the
cool drinks (i.e. not admitting guilt after having instructed SACCAWU
to admit guilt), Nkunzi was able to establish that Peter
was not
charged let alone … given any form of penalty after he was
found in possession of company’s items
.”
In so finding, the
commissioner clearly failed to have regard to the evidence before
him, particularly in that:
·
Nkunzi’s
version regarding her actual interaction with Peter, which was
presumably accepted by the commissioner, was not put
to Carstens
under cross-examination. This constitutes a self-standing ground of
review.
[13]
·
To
resolve the factual controversy between Carstens and Nkunzi, the
commissioner had to embark upon a balanced assessment of the
credibility, reliability and probabilities associated with their
respective versions. But the commissioner did nothing of the sort
–
and instead simply plumbed for Nkunzi’s version. In the result,
the award is bereft of any reason whatsoever for
why Nkunzi ‘
was
able to establish’
her version on this score. Notwithstanding the fact that she ‘
lied’
about her guilt, which ought to have cast doubt over the balance of
her evidence
[14]
, Nkunzi’s
evidence was patently unreliable, with the commissioner having failed
to apply his mind to any of the other material
failings in her
evidence. There was simply no way that her evidence could be accepted
over that of Carstens (whose credibility
and reliability was not
impeached).
·
The commissioner also failed to apply his
mind to the fact that Nkunzi had apparently not mentioned anything
about Peter at her
disciplinary enquiry, a fact that was materially
relevant and pointed towards the improbability of Nkunzi’s
version.
The inconsistency
challenge involving Nyembe
[21] Nyembe was employed
at the Sandton Sun. On 29 April 2003, Nyembe was apprehended while in
unauthorised possession of two cans
of Sprite and a packet of
Pringles. At his disciplinary enquiry on 7 May 2003, Nyembe pleaded
guilty as charged, with the initiator
thereupon having called for his
dismissal. Nyembe testified (at his disciplinary enquiry) that he
suffers from schizophrenia and
was being treated at Tara Hospital. On
the day in question, he had forgotten his lunch box at home, started
hearing voices in his
head, and had taken the items because he could
not take his medication on an empty stomach. Regarding whether he had
thought at
the time that he was committing theft, he stated:
“
No,
at that moment well, I wasn’t aware because I couldn’t
think properly but I discovered afterwards that it was wrong.”
[22] On the resumption of
the disciplinary enquiry on 8 May 2003, the chairperson held as
follows:
“…
the
offence is very serious and the initiator has quite rightly said
regardless of what you take … the fact of the matter
is theft
is theft. The difference in this case though Steward is that you have
admitted guilt
.
You have
shown remorse
and you obviously are
very
responsible in your job
and in
your position and you do admit to having an
illness
which I have confirmed with some of the managers.
And
in the light of that, I am going to give you a final warning, which
means that if you do, do this again you could be dismissed
’
(own emphasis).”
At his disciplinary
enquiry, Nyembe had introduced a letter from Tara Hospital, which
reflected that he had been a patient at the
hospital since October
1994, that he suffered from chronic schizophrenia ‘
which is
a chronic mental illness and needs treatment for life’
,
that his ‘
prognosis is poor, because the disease shows a
deteriorating course over time
’, and that he was on
mediation. During the cross-examination of both Lonie and Carstens at
the arbitration, it was put to
them by Mokoena’s attorney that
it had not been established at Nyembe’s disciplinary enquiry
that his schizophrenia
was the actual cause of his misconduct. This
was, however, not a line pursued by the union.
[23] The union’s
main line of attack, which was explored with Carstens under
cross-examination, was that, because the company
had given Nyembe the
benefit of a ‘medical defence’, it ought to have done
likewise in relation to Ngwenya, Matsi and
Mtshali, as they had also
raised such a defence internally. In this regard, during their
disciplinary enquiries:
·
Ngwenya (who was on a final warning for
bringing dagga onto the premises) contended that she had drank two
brandy and Cokes to ‘
soothe her
throat
’ as she was ill;
·
Matsi contended that she had consumed
(behind the door in the storeroom) a K-way Fanta because she was a
diabetic; and
·
Mtshali contended that he had consumed
(behind the door in the storeroom out of a milk jug) a K-way Coke
because he was a diabetic
and did so in the process of taking
medication (which does not accord with the video footage).
[24]
As Carstens made clear in his evidence, in the first instance, these
‘medical defences’ were not credible and were
rejected,
and, secondly, they were, in any event, not comparable to Nyembe’s
case. That the ‘medical defences’
of the employees in
question were not credible is further borne out by the fact that
despite having undertaken – in response
to a query from the
commissioner – to submit proof that Matsi and Mtshali were in
fact diabetics, The union failed to do
so at the arbitration. In
these circumstances, and as a result of the fact that neither
Ngwenya, Matsi nor Mtshali was called to
testify, these challenges
fizzled out. In argument, the point was made by the company that the
challenge in relation to Nyembe
related only Ngwenya, Matsi and
Mtshali, with this not having been disputed by the union in reply.
[25] The commissioner
found as follows:
“
It
was testified on behalf of the
[company]
that in imposing a final written
warning, the chairperson of the enquiry took into account (amongst
others) the fact that
[Nyembe]
suffers
from “chronic schizophrenia illness and needs treatment for
life.
However,
I am not satisfied about the explanation above. It is clear that
there was no medical proof that
the stealing by Nyembe was caused by his chronic mental illness
.
On this reason alone, it shows that the chairperson did not apply his
/ her mind properly. This has resulted in inconsistent treatment
’
(own emphasis).”
[26] In so finding, the
commissioner failed to apply his mind to the evidence before him and
thus committed a reviewable defect,
in that:
·
The commissioner completely misconstrued
the relevance of Nyembe’s illness. As the chairperson’s
finding reflects, Nyembe’s
illness was considered to be a
factor in mitigation of sanction and not a factor absolving Nyembe of
guilt (as found by the commissioner).
·
There was, accordingly, no need for
‘
medical proof
[to
be produced]
that the stealing by Nyembe
was caused by his chronic mental illness
’
before his illness could be considered as a factor in mitigation of
sanction, and the commissioner’s criticism of
the chairperson
in this regard is entirely unsustainable. Quite obviously, the
chairperson applied her mind to the matter,
as demonstrated by the
minutes. In the result, the commissioner misdirected himself in
failing to attach any weight to Nyembe’s
‘
chronic
mental illness
’, which was a
materially relevant consideration, and legitimately served to
distinguish Nyembe’s case from that of
the employees (whether
at the level of guilt or sanction). The implied finding by the
commissioner that Nyembe ought not to have
been given the benefit of
the fact that he was ill, was inconsistent with the thrust of the
case advanced by the union in the cross-examination
of Carstens,
which was to the effect that the three employees in question ought –
like Nyembe – to have been given
the benefit of a ‘medical
defence’.
·
The commissioner’s conclusion that
‘
this resulted in inconsistent
treatment
’ is unsustainable for
the reasons mentioned above, and because the commissioner failed to
apply his mind to the fact that
Nyembe’s illness was one of a
number of factors in mitigation of sanction considered by the
chairperson of his disciplinary
enquiry. Consideration was also given
to
inter alia
the fact that Nyembe admitted guilt and showed remorse.
·
Different to Nyembe, of the 19 employees,
12 pleaded not guilty at their disciplinary enquiries and virtually
all of them presented
disingenuous defences internally, which served
to distinguish their cases from that of Nyembe.
·
Remarkably,
while it was the employees’ lack of remorse and dishonest
evidence that caused the commissioner to deprive all
the employees of
reinstatement – which serves to demonstrate the importance
thereof
[15]
–
he
failed to apply his mind thereto in the context of evaluating the
inconsistency challenge involving Nyembe. Notwithstanding the
relevance of Nyembe’s illness, these two factors alone were
sufficient to distinguish Nyembe’s case from that of the
employees.
The inconsistency
challenge involving Kele
[27]
Given the unique nature of its business and the implications of
dishonesty by employees, the company adopts a zero tolerance
approach
to dishonesty. In this regard, Lonie testified that some 80 employees
had been dismissed by the company for dishonesty
over the past 24
months, and that, during the course of the company’s
relationship with the union dating back some 20 years,
several
thousands of employees had been dismissed on this basis. The union
also collaborated with the company with a view to combating
dishonesty. As mentioned in above, of the 29 employees (including the
19 employees herein and three assistant managers) found guilty
herein, only one – Kele – was not dismissed. Regarding
the specifics of her case, on 15 July 2003, Kele was charged
with
unauthorised consumption and called to attend a disciplinary enquiry.
Kele’s disciplinary enquiry was presided over
by Jeremy
Singleton, the general manager of the Holiday Inn Garden Court,
Sandton and sat on 1 August 2003, 5 August 2003 and 6
August 2003.
[28] On 6 August 2003,
having found her guilty as charged, Singleton issued Kele with a
final written warning valid for a year.
This sanction was imposed
despite Carstens (who was the initiator at all the disciplinary
enquiries) having called for Kele’s
dismissal, as he did in all
cases where employees were found guilty as charged. In this regard,
the minutes reflect Carstens as
having submitted to Singleton that:
“…
I
would also like to add that where employees are found guilty of
consuming company property, the sanction that is applied is summary
dismissal
.”
When
Carstens and Lonie came to learn of the sanction imposed by
Singleton, they were, respectively, ‘
shocked
’
and ‘
most alarmed
’.
As Lonie put it, when compared with company policy and practice, the
sanction was nothing short of an ‘
aberration
’.
In the light of this, Lonie commissioned an investigation into the
matter. In the process, Kele was suspended on 8 August
2003, and
Singleton was interviewed and then counselled about his decision. The
conclusion reached was that, although Singleton’s
decision was
manifestly wrong, it had not been taken
mala
fide
or dishonestly, such as may have
given rise to the company being able to set aside the finding and
call Kele to a second disciplinary
enquiry without falling foul of
the double jeopardy rule. It was repeatedly stated by Lonie that
there was no evidence of Singleton
having acted
mala
fide (
which is borne out by the letters
and memorandum addressed below). There was no challenge to this under
cross-examination.
[29] In the result, four
things occurred – each of which demonstrated the company’s
bona fides
and the legitimacy of the problem that it faced.
Firstly, an attempt was made to buy Kele out of her employment, but
she refused
offers of six and 12 months’ remuneration,
respectively. Secondly, on 25 August 2003, a letter was addressed to
Kele recording
inter alia
as follows:
“…
As
you are aware you were found guilty of the offence. However, contrary
to the well-established company policy and practice, dismissal
was
not determined to be an appropriate sanction and you were issued with
a final written warning. As you are also aware a number
of other
employees found guilty of acts of dishonesty have been dismissed.
Whilst in some
circumstances there may be individual reasons relating to such cases
which result in a lesser penalty, the company
nevertheless regards
the outcome of your case, in the particular circumstances, as
an
unjustified departure from its well established policies and
practices. The sanction is, accordingly, inconsistent with the
policies, practices and values of the company
. The chairman of
your disciplinary hearing has been counselled accordingly.
This letter serves to
record the findings of the company’s investigation and to
clarify to you that any act of misconduct
involving an element of
dishonesty is regarded by the company in a most serious light and all
employees may anticipate that they
would ordinarily be dismissed,
should they be guilty of dishonest conduct.
The
company recognises that, in the absence of any deliberate
manipulation of the disciplinary process, you are entitled to believe
that the case against you has been concluded. We accordingly wish to
confirm this to be the case, and you are advised to report
for work
tomorrow”
(own emphasis).
Thirdly, a memorandum
along the same lines as the above was issued to the workforce at the
hotel. The memorandum provoked no reaction
from the union –
with it seemingly being prepared to accept the reaffirmation of the
company’s zero tolerance approach
towards dishonesty, and
recording that Kele’s case was an unjustified departure from
this policy / practice. Fourthly, on
27 August 2003, a letter was
addressed to Singleton – which was considered to be a warning
and was placed on his file - recording
inter alia
as
follows:
“…
Contrary
to the well-established company policy and practice, dismissal was
not determined to be an appropriate sanction and you
issued Ms Kele
with a final written warning. As you are also aware a number of
employees found guilty of acts of similar dishonesty
have been
dismissed.
Whilst in some
circumstances there may be individual reasons relating to such cases,
which result in a lesser penalty, the company
nevertheless regards
the outcome of this case, in the particular circumstances,
as an
unjustified departure from its well established policies and
practices. The sanction is, accordingly, inconsistent with the
policies, practices and values of the company
. The explanations
provided by you for the departure from established policy and
practice are not acceptable and do not constitute
a valid basis upon
which to distinguish this case from any others involving dishonesty.
This letter serves to
record the findings of the company’s investigation and to
clarify to you that any act of misconduct
involving an element of
dishonesty is regarded by the company in a most serious light and all
employees may anticipate that they
would ordinarily be dismissed,
should they be guilty of dishonest conduct.
You are accordingly
advised to take careful note of the findings of the company’s
investigation. Please be aware that any
departure from the company
policies and / or practices would only be permissible where relevant
factors exist which would justify
such a departure or distinguish the
circumstances as being different from the norm.
The company recognises
that, in the absence of any deliberate manipulation of the
disciplinary process, employees are entitled to
believe that the case
against them has been concluded once a sanction has been determined
by the chairman of the proceedings. We
have, accordingly, confirmed
this to be the case with the employee concerned who has resumed her
normal duties.
We
trust that you will be mindful of the importance of consistency in
the address of discipline and adherence to company policy
and
practices into the future”
(own
emphasis).
[30] The commissioner
found as follows:
“
It
is common cause that
[Kele]
was
charged with the
[employees]
,
but was however not dismissed but given a written final warning and
is currently employed.
Lonie
and Carstens for the
[company]
testified that they were shocked by the
outcome.
Lonie testified that
the chairperson of the enquiry (Singleton) deviated from the policy
and as a result was given a warning letter
dated 27 August 2003.
In
my view, the fact that Singleton was given a warning letter itself
shows that Singleton was not honest in coming to the decision
of a
final warning instead of dismissal. It was not the
[company’s
case]
that Singleton was honest. If he
was honest there was no need for him to be given a warning. You do
not give an honest person a
warning. As stated above, Lonie and
Carstens were shocked by the outcome
.”
[31] In so finding, the
commissioner failed to have regard to the evidence before him and
thus committed a reviewable defect, particularly
in that:
·
It
was never in issue at the arbitration that Singleton had acted
dishonestly in not dismissing Kele, with no such contention having
been raised in evidence or in argument by
either
party. The commissioner’s finding that Singleton acted
dishonestly is thus unsupported by any evidence, and amounts to the
commissioner having given the employees the benefit of an
unarticulated defence (i.e. a defence / case not advanced by them at
the arbitration).
[16]
·
The commissioner’s reasoning that the
mere fact that Singleton was issued with the letter in question
demonstrated that he
must have been considered dishonest is patently
unreasonable, because it is devoid of any evidential basis.
·
The commissioner’s finding that it
‘
was not the
[company’s
case]
that Singleton was honest
’
is equally in conflict with the unchallenged evidence of Lonie and
all the documentation traversed above, and thus devoid
of any
evidential basis whatsoever.
·
Contrary to what appears to have been found
by the commissioner, the fact that both Lonie and Carstens were
‘
shocked
’
by Singleton’s decision did not imply that they considered him
dishonest. Indeed, the investigation, and all the written
recordings
relating thereto, reflect that the company came to the contrary
conclusion. Again, this finding by the commissioner
is devoid of any
evidential basis. (See para 20 above.)
·
The
commissioner totally misconstrued the company’s case. It was as
a consequence of the fact that the company came to the
conclusion
(after a careful investigation) that Singleton was not
mala
fide
in his decision, that the company was prevented from re-opening the
case against Kele. If it had come to the opposite conclusion,
as the
commissioner appears to have found, then it would, in terms of the
prevailing jurisprudence
[17]
,
have been permitted to set aside Singleton’s decision and
recharge Kele, which would have resolved the issue.
The commissioner’s
finding that Singleton was ‘not honest’ gives rise to the
inescapable inference that the commissioner
hopelessly failed to
apply his mind to the evidence before him. Indeed, the only inference
to be drawn from the award is that the
finding of dishonesty was
contrived with a view to overcoming the decision of the LAC in
Irvin
& Johnson
to the effect that, in the absence of
mala fides
or dishonesty by their employer, employees should not be allowed to
profit from a wrong decision. This in itself is an act of gross
misconduct, warranting the review and setting aside of the entire
award.
[32]
For these reasons, all of which establish gross misconduct on the
part of the commissioner, the commissioner’s award
was reviewed
and set aside. It was not necessary in these circumstances for me to
consider the argument that to the extent that
the commissioner found
in his award that
Masitho
changed the law, as determined in
Irvin
& Johnson
, he committed a
reviewable defect in the form of a material error of law. I take the
matter no further than to repeat what I have
said above, i.e. that
the two judgments are entirely reconcilable, and
Masitho
did not overturn or supersede
Irvin &
Johnson
. To the extent that the
commissioner thought otherwise, and to the extent that he applied
legal principles at odds with the existing
jurisprudence, he
misconceived the nature of the enquiry that he was required to
conduct.
[33]
The company submitted that the matter should be finally determined,
as opposed to remitting it to the CCMA for a fresh hearing.
The LAC
and this court have held that they should correct a decision rather
than refer it back to the CCMA for a hearing
de
novo
in the following circumstances: (i) where the end result is a
foregone conclusion and it would merely be a waste of time to order
the CCMA to reconsider the matter; (ii) where a further delay would
cause unjustified prejudice to the parties; (iii) where the
CCMA has
exhibited such bias or incompetence that it would be unfair to
require the applicant to submit to the same jurisdiction
again; or
(iv) where the court is in as good a position as the CCMA to make the
decision itself.
[18]
In
this matter, the factors listed under (i), (ii) and (iv) were
present.
[34] For these reasons, I
ordered that the commissioner’s award be reviewed and set
aside.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR
COURT
Date of Hearing: 15 April
2009
Date of Judgment: 24 July
2009
Appearances
For the Applicant: Adv A
I S Redding (SC)
Instructed
by: Deneys Reitz Attorneys
For
the Respondent: Mr. P Ngoato (Union Official)
[1]
See
Brassey “The Dismissal of Strikers” (1990) 11
ILJ
213
at 229.
[2]
See Van Niekerk et al
Law@work
(LexisNexis
2008) at p. 244.
[3]
Early
Bird Farms (Pty) Ltd v Mlambo
[1997]
5 BLLR 541
(LAC) at 545H-I;
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) at para 20;
NUM
& another v Amcoal Colliery t/a Arnot Colliery & another
[2000] 8 BLLR 869
(LAC) at para 6;
Cape
Town City Council v Masitho & others
(2000) 21 ILJ 1957 (LAC) at para 13.
[4]
At
para 29.
[5]
At
para 14.
[6]
At paragraph [106] of the judgment.
[7]
At para [110].
[8]
Hoexter
Administrative
Law in South Africa
(Juta & Co) 2007 at p. 311.
[9]
At
para 268.
[10]
Ellerine
Holdings Ltd v CCMA & others
(2008) 29
ILJ
2899 (LAC).
[11]
At
p 13. In another recent judgment by the LAC post-
Sidumo
,
Maepe
v CCMA & others
[2008] ZALAC 2
;
[2008]
8 BLLR 723
(LAC) at para 11, the court also confirmed that the
failure to have regard to materially relevant factors constitutes a
reviewable
irregularity.
[12]
At para 134.
[13]
To
rely on evidence in the absence of it having been put to the
opposing party’s witnesses under cross-examination constitutes
a reviewable defect. See in this regard:
SA
Nylon Printers (Pty) Ltd v Davids
[1998] 2 BLLR 135
(LAC) at 137I-138A;
ABSA
Brokers (Pty) Ltd v Moshoana NO & others
[2005] 10 BLLR 939
(LAC) at paras 38 - 42.
[14]
If
a litigant lies about a particular incident, the court may infer
that there is something about it which he or she wishes to
hide and
this may add an element of suspicion to facts which were previously
neutral (
S
v Rama
1966 (2) SA 395
(A)). The commissioner did not even begin to
consider the implications of Nkunzi’s lies.
[15]
This
is in accordance with the jurisprudence of the LAC to the effect
that dishonest evidence and a lack of remorse render the
continuation of the employment relationship intolerable. See in this
regard:
De
Beers Consolidated Mines Ltd v CCMA & others
(2000) 21 ILJ 1051 (LAC) at para 25;
Foschini
Group (Pty) Ltd v Fynn, Pather NO & CCMA
(unreported LAC judgment, case no. DA1/04, dated 31/01/2006, per
Davis JA) at para 21.
[16]
Which
constitutes, in itself, a reviewable defect. See in this regard:
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v CCMA & others
(2007)
28 ILJ 1107 (LC) at para 20;
Rustenburg
Platinum Mines v CCMA & others
(2007) 28 ILJ 1114 (LC) at paras 28 – 29.
[17]
Gorgan
Dismissal
Discrimination & Unfair Labour Practices
(1
st
ed, 2005) at 296.
[18]
See:
Department
of Justice v CCMA & others
(2004) 25 ILJ 248 (LAC) at 304, para 48;
Rustenburg
Platinum Mines Ltd v CCMA & others
(2007) 28 ILJ 417 (LC) at para 12.)