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[2009] ZALCD 23
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Samson v Commission for Conciliation Mediation And Arbitration and Others (D460/08) [2009] ZALCD 23 (29 May 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO. D460/08
In
the matter between:
SHAUN
SAMSON
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
ALMEIRO
DEYZEL
Second respondent
TOYOTA
SA MOTORS (PTY)
LTD
Third Respondent
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
made by the second respondent, to whom I shall refer as
“the
commissioner”. The award was made after an arbitration
conducted by the commissioner under the auspices of the
first
respondent, the CCMA, at which the applicant challenged the fairness
of his dismissal by the third respondent, (“the
company”).
[2] The applicant was dismissed for
distributing pornography on the company’s intranet. At the
disciplinary enquiry convened
on 5 November 2007 to consider the
charges against him, the applicant pleaded guilty, expressed remorse
for his conduct, and apologised
to the co-employee to whom his email
(with the pornographic material attached to it) was inadvertently
sent. At the conclusion
of the enquiry, the chairperson, Mr Hawley,
imposed a sanction of a final written warning, valid for three years.
On 14 November
2007, Mr. Gazendam, the company’s executive vice
president for corporate affairs, addressed a letter to applicant,
which
read as follows:
“
In
reviewing the merits of this matter and in considering the
Chairpersons duty to apply the disciplinary code and standards set
by
the Company,: I accordingly set aside the original sanction of Final
Written Warning and impose a sanction of dismissal.
You have the right to appeal
against my penalty of dismissal. Should you wish to appeal, you must
notify the company Human resources
Department on the appropriate form
within 48 hours, giving just cause on reasons of the appeal.
You are also
advised that you may refer the matter to the CCMA within 30 days of
your dismissal
.”
In
response to this letter, the applicant lodged an appeal. An appeal
hearing was duly convened, at which the applicant
inter
alia
raised the defence of “double
jeopardy”. The penalty of dismissal upheld. The applicant
referred a dispute to the CCMA,
where after a failed conciliation,
the matter was referred to arbitration.
[3]
At the commencement of the arbitration hearing, the commissioner
dealt first with an application by the company to be represented
by a
legal practitioner. The applicant opposed the application. After
hearing the parties’ respective submissions, the commissioner
granted the company the right to be represented by its attorney.
[4]
The company called two witnesses. The applicant called the chair of
the disciplinary enquiry, a Mr. Hawley, and testified gave
evidence
himself.
[5] In his award, the commissioner
recorded the issue for decision as the fairness of the applicant’s
dismissal, and in particular:
·
Whether it was fair to overturn the
decision of the chairperson of the disciplinary enquiry
·
Whether the company followed a fair
procedure in deciding to dismiss the applicant
·
Whether the sanction of dismissal was fair
·
Whether the company applied discipline
consistently.
In
his analysis of the evidence and argument, the commissioner first
considered a number of judgments on whether an employer may
fairly
overrule a sanction imposed by a chairperson of a disciplinary
enquiry if the sanction was inconsistent with sanctions imposed
in
the past for similar misconduct. The commissioner quoted at some
length from the judgment of this court in
Greater
Letaba Local Municipality v Mankage NO
& others
[2007] ZALC 74
;
[2008] 3 BLLR 229
(LC)), without, it seems, applying any principle
that might be derived from that judgment. The commissioner went on to
find that
the company’s disciplinary code prescribed dismissal
as the sanction for distributing pornography, and that it had in the
past imposed the sanction of dismissal for that offence. The
commissioner found further that the cases relied on to sustain any
allegation of inconsistency by the company in the application of
discipline could be distinguished, on the basis that they concerned
the storing and not distribution of pornography. The distribution of
pornography was a serious offence that in general warranted
the
sanction of dismissal. On the issue of overturning the sanction of a
final written warning, the commissioner found that this
was
recognised and permitted by practice, and finally, the commissioner
found that that the applicant’s dismissal was procedurally
fair. For these reasons, the commissioner concluded that the
applicant was not entitled to any relief. The commissioner’s
reasoning in respect of each of his conclusions is considered below,
in the context of an evaluation of the applicant’s grounds
for
review.
[6]
In these proceedings, the applicant attacked the arbitration award on
a number of grounds. These include the ruling made by
the
commissioner on legal representation, the commissioner’s
acceptance of evidence regarding the company’s practice
of
reviewing the decision of the chair of a disciplinary enquiry when
there was no provision for it in the disciplinary code, the
commissioner’s findings in regard to the consistency of
sanction, the commissioner’s finding that the failure by the
company to afford the applicant a further hearing when the sanction
was reviewed did not amount to procedural fairness.
[7]
The grounds for review, as articulated both in the founding affidavit
and the heads of argument filed on the applicant’s
behalf, are
expressed in the pre-
Sidumo
language of rational justifiability. No reference is made to the
proper test for review, i. e. whether the decision made by the
commissioner represents a decision to which no reasonable decision
maker could come. One might have thought that by now, more than
two
years after the
Sidumo
judgment
was reported, legal representatives in this court would invoke the
correct test when drafting papers and formulating their
submissions.
Indeed, there is a good argument to be made that this application
should be dismissed on this ground alone. That notwithstanding,
I
intend to evaluate the stated grounds for review and the submissions
made by the applicant’s counsel, Mr Pillay, in the
light of the
Sidumo
test. It follows that the commissioner’s award stands to be
reviewed and set aside if and only if it fails to meet the threshold
established by that judgment.
[8]
I deal first with the commissioner’s ruling on legal
representation. The applicant avers that the commissioner permitted
the company legal representation contrary to the provisions of s 140
(1) of the LRA. Section 140 (1) was repealed in 2002. I fail
to
appreciate on what basis the applicant now claims that a breach of
that subsection might form the basis of a reviewable irregularity.
The applicable provision is Rule 25 of the Rules for the Conduct of
Proceedings before the CCMA. In terms of that Rule, the commissioner
was required
inter alia
to take into account the nature of the questions of law raised by the
dispute, the complexity of the dispute and the comparative
ability of
the parties or their representatives to deal with the dispute. It is
clear from the record that the commissioner weighed
up the relevant
factors, and in particular the disadvantage to which the applicant
may be put by allowing the company legal representation.
The
commissioner further considered the nature of the proceedings (which
he indicated would assume an inquisitorial form) and the
clarity that
a legal trained person might bring to what promised to be a debate on
a number of legal technical issues. Further,
the applicant’s
attitude was that he had conducted research and prepared himself to
argue the legal points that would arise
in the course of the
proceedings. When the commissioner ruled against the applicant, the
applicant did not seek the right to secure
legal representation for
himself - he appeared to be content to continue with the proceedings.
In these circumstances, I fail to
appreciate on what basis it can be
said that the commissioners ruling on legal representation was a
decision to which no reasonable
decision-maker could come. The
commissioner was required to exercise discretion as to whether the
company should be afforded the
right to legal representation, and to
exercise that discretion judicially. There is nothing in the record
to suggest that the commissioner
either conducted himself in a manner
so as give rise to a reviewable irregularity, or that the outcome (as
represented by his ruling)
fell outside of the band of reasonableness
established by
Sidumo
.
None of the factors that he took into account was irrelevant, and his
assessment of them given the nature of the claim before
him cannot be
called into question. There is thus no basis for this court to
interfere with the commissioner’s ruling that
the company be
permitted legal representation.
[9]
I turn now to the issue of consistency. At the arbitration hearing,
the applicant submitted that other employees, found guilty
of a
similar charge, had not been dismissed, and that some lesser penalty
had been imposed. Killian's evidence was that the company’s
code prescribed dismissal as a penalty for distributing pornographic
material, and that the company had in the past dismissed employees
found to have committed that misconduct. The commissioner dealt with
the consistency point by distinguishing the cases relied on
by the
applicant to establish inconsistent conduct by the company. Killian’s
unchallenged evidence was that in two of the
five cases raised by the
applicant, no record existed of any disciplinary action on charges of
distributing pornography, and that
three of the cases, the employees
concerned were disciplined for failing to delete pornographic
material received via email and
stored in their inboxes, and not for
distributing pornography. Other cases referred to by the applicant in
which employees were
given a final warning for conduct that was
alleged to be similar were distinguished by Killian on the basis that
they concerned
the distribution of an email that was gender
insensitive, but which did not amount to pornography. None of this
evidence was challenged
by the applicant.
[10]
In his findings, the commissioner held: “
In
my view the previous cases that the applicant relied on was indeed
distinguishable as the respondent contended. Storing pornography
on
computer is simply not the same as distributing it
“
(at para 44 of the award). The parity principle, which has been held
to underlie the requirement that employers treat like
cases alike,
inherently contemplates that different cases should be treated
differently. Where there is a valid basis to distinguish
one case
from another in circumstances where employees have been
involved in the same misconduct, there is a valid ground
to
distinguish one case from another. (See
Cape
Town City Council V Masitho & others
(2000) 21
ILJ
1957
(LAC)). If the employees concerned have been involved in different
conduct, it follows that the parity rule does not apply.
The
commissioner’s decision on the issue of inconsistency therefore
cannot be faulted.
[11]
The next ground for review is the decision by Gazendam to change the
sanction imposed on the applicant from a final written
warning to
dismissal. The applicant’s submissions in this regard have both
a substantive and procedural component to them.
First, the applicant
submits that the commissioner committed an irregularity in that he
accreted evidence of the existence of a
practice in terms of which
decisions made by chairpersons of disciplinary enquiries would be
reviewed. Secondly, it is submitted
that the commissioner’s
conclusion does not accord with the principles of natural justice, in
particular, the
audi alteram partem
rule, in that the applicant was not given an opportunity to present
evidence or mitigating circumstances when the sanction of a
final
written warning substitute with dismissal. I deal with each of these
submissions in turn. Killian’s evidence was that
the company’s
policies and procedures provided that a disciplinary decision can be
reviewed by eth head of corporate affairs
He stated this in
respondent to a question from the commissioner as to whether the
company’s policy anywhere stated that
the senior executive vice
president can overturn a wrong decision made by a chairperson of a
disciplinary enquiry. Killian stated
further that while he did not
have a copy of the procedure with him, it had been a practice for
many years; that unions used the
procedure, employees used it and
that he did not think the matter was in dispute. In his
cross-examination by the applicant, Killian
conceded that he did not
know whether the provision was contained in the HR policy, but he
stated that the rule was so well known
within human resources, and
that he had been aware of it since he joined the company. The
commissioner found that it was practice
for the executive
vice-president: corporate affairs to review the disciplinary
decisions of chairpersons of disciplinary enquiries
and that it was
not prohibited by the respondent’s disciplinary procedure.
Given the evidence before him, and in particular
the applicant’s
failure to dispute Killian’s evidence in this regard (the
debate in the arbitration proceedings was
more narrowly based on
whether this practice was actually written into the company’s
policies), the commissioner's conclusion
that the evidence
established the existence of a practice to the effect claimed by the
company cannot be impugned.
[12] In so far as the procedural
fairness of the applicant’s dismissal is concerned, it is not
the applicant’s case,
either in its founding papers or in the
heads of argument, that the commissioner committed a material error
of law in coming to
the conclusion he did. At the hearing of this
application, Mr Pillay urged me to find that the commissioner had
committed gross
misconduct on this basis. Assuming for present
purposes that in the absence of any averment to this effect in the
founding papers
this court is nonetheless entitled to entertain a
submission to this effect, and looking for the moment at the
commissioner’s
conduct rather than the result of the
arbitration proceedings, I fail to appreciate how it could be said
that the commissioner
could be said to have committed gross
misconduct in the form of committing an error of law. First, it is
trite that not every wrong
conclusion of law leads to a conclusion
that there has not been a fair trail - the mistake of law must be
material (see Stocks
Civil Engineering (Pty) Ltd v Rip NO &
another (2002) 23 ILJ 358 (LAC)). Secondly, the law as it presently
stands is that an
employer is entitled, when it is fair to do so
(subject to the qualification that it is only in exceptional
circumstances that
it will be fair) to revisit a penalty already
imposed and substitute it with a more severe sanction. Further, it
does not axiomatically
follow that a failure to afford a hearing
before a decision is taken is unfair - a failure to afford a hearing
may in some circumstances
at least be remedied by a hearing given
after the event. Authority for the latter proposition is to be found
in
Semenya & others v CCMA & others
(2006)
27
ILJ
1627 (LAC), where the Labour Appeal Court said:
“
Although
generally speaking such an opportunity [the opportunity to be heard]
should be given before the decision can be taken,
there are
circumstances where an opportunity to be heard that is given after
the decision has been taken is acceptable
.”
In
so far as the former proposition is concerned, in
MEC
for Finance, Kwa Zulu Natal & another v Dorkin NO & another
[2008] 6 BLLR 540
(LAC), the LAC considered a case in which a
presiding officer imposed a decision to issue a final written warning
to an employee
found guilty of financial impropriety. The employer
sought to review the decision in the Labour Court. In the course of
his judgment,
Zondo JP recalled the principle established by the LAC
in
BMW (South Africa) (Pty) Ltd v Van
der Walt
(2000) 21
ILJ
113 (LAC) to the effect that an employee may be subjected to further
disciplinary action even though a sanction in respect of the
same
offence has already been imposed provided that it is fair, in all the
circumstances, to do so. In
Bamford v
Metrorail Services (Durban) & others
(2003) 24
ILJ
2269 (LAC), the LAC conformed that the test was one of fairness,
where both the interests of the employee and the employer must
be
brought into account. The court rejected an argument to the effect
that further disciplinary action was permissible only in
exceptional
circumstances. In the
Dorkin
case, the court held while the test was ultimately one of
fairness, it would probably be unfair to subject an employee to
further disciplinary action except in exceptional circumstances (at
para 14). Given the seriousness of the charges and the loss
sustained
by the employer in that case, the matter was one in which it could be
said that exceptional circumstances justified the
employer’s
seeking to have the sanction of dismissal with immediate effect
imposed. The LAC went on effectively to set aside
the warning and
impose the penalty of dismissal.
[13]
In the present circumstances, the commissioner lengthy quote form the
Greater Letaba Local Municipality
case was misplaced - that case deals with the consistency
requirement, in other words, the requirement, as expressed in the
Code
of Good Practice: Dismissal, that an employer should apply the
penalty of dismissal consistently with the way in which it has been
applied to the same and other employees in the past, and consistently
as between two or more employees who participate in the same
misconduct. The commissioner had found that there was no
inconsistency, because the applicant was found guilty of distributing
as opposed to storing pornography. There was therefore no need for
him to consider the debate raised in the
Greater
Letaba
judgment i.e. whether a
“conservative” or “liberal “approach ought to
be adopted to cases of alleged inconsistency,
or, as he might have
done, to consider whether that judgment misconceives the
principles established by the LAC in
Cape
Town City Council v Masitho & others
SACCAWU & others v Irvin &
Johnson Ltd
(1999) 20 I
LJ
2302 (LAC) and (2000) 21
ILJ
1957 (LAC). The issues of inconsistency and “upgrading”
the disciplinary penalty were separate issues, and the commissioner’s
initial conceptual approach might be said to conflate the two. But
this is no more than mild criticism from the comfort of the
proverbial armchair - the commissioner’s approach does not
disclose any mistake of law, at least not one that can remotely
be
described as material.
[14]
On the point of procedural fairness, the commissioner
observed, there was no evidence that Gazendam did not have
regard to
the applicant’s submissions to Hawley. Further, it is clear
from the record that the evidence before the commissioner
(given by
the applicant himself) was that Gazendam afforded him a right of
appeal, and that he exercised that right, claiming “double
jeopardy”. A Mr Badenhorst, who heard the appeal, upheld
Gazendam’s decision. It is evident from the record that
the
applicant was present at the hearing before Badenhorst, that he was
represented and that he participated in the proceedings.
The minute
of the hearing reflects that Badenhorst considered a wide range of
grounds for appeal submitted by the applicant, and
that the main
issue pursued by the applicant was that of double jeopardy.
Badenhorst concluded that a decision to review a penalty
imposed by
the chairperson should happen only in exceptional circumstances, but
that the circumstances of the present case warranted
a review, and
that the decision to dismiss the applicant should be upheld. It is
not disputed in these proceedings that the applicant’s
misconduct was serious, or that the company’s disciplinary code
prescribed dismissal as the appropriate penalty for employees
found
guilty of distributing pornography. In these circumstances, I
fail to appreciate how it can be said that the commissioner,
in
concluding that the company’s failure to afford the applicant a
hearing before Gazendam when he considered the appropriateness
of the
penalty imposed by Hawley did not render the applicant’s
dismissal procedurally unfair can be said to constitute a
gross
irregularity, or that it is a decision to which no reasonable
decision-maker could come.
[15]
For the above reasons, in my view, the commissioner did not commit
any gross misconduct in his conduct of the arbitration proceedings,
nor does the result of those proceedings (as represented by his
award) represent a decision to which no reasonable decision-maker
could not come. This application therefore stands to be dismissed.
There is no reason why costs should not follow the result.
I
accordingly make the following order:
The application is
dismissed, with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of application: 26 May 2009
Date
of judgment: 29 May 2009
Appearances:
For
the applicant: Adv Pillay instructed by Murugasens.
For
the respondent: Adv M Posemann, instructed by Shepstone and Wylie.