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[2010] ZALCCT 8
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Shelco Shelving (Pty) Ltd v Metal And Engineering Industries Bargaining Council (Western Cape) and Others (C31/2009) [2010] ZALCCT 8 (12 March 2010)
IN THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO C31/2009
In
the matter between:
SHELCO
SHELVING (PTY) LTD
Applicant
and
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
(WESTERN
CAPE)
First
Respondent
COMMISSIONER
HILARY MOFSOWITZ N.O.
Second
Respondent
NUMSA
on behalf of SIBONGILE WISEMAN DODA
Third
Respondent
JUDGMENT
TIP
AJ:
1.
On 10 April 2008 there was an incident at
the applicant’s workplace which gave rise to a charge of
fighting against Mr Wiseman
Doda, the third respondent (“Doda”).
He was found guilty and dismissed, the chairman having rejected a
contention
of inconsistent treatment which had been raised on Doda’s
behalf. That outcome was reversed in the arbitration award
made
by the second respondent, who upheld the plea of inconsistency.
The applicant (“Shelco”) now seeks to have
that award set
aside.
2.
The issue of inconsistency rests on a
comparison of the Doda incident with, firstly, an earlier one heard
on 13 December 2007 involving
an employee named Jackson Miller
(“Miller”) and a subsequent one disposed of on 9 May 2008
concerning two employees
called D Manzana and P Arendse (“Manzana”).
Before I turn to a comparative evaluation of these various incidents,
it will be helpful for me to briefly set out the applicable legal
framework.
3.
Consistency in the meting out of
disciplinary consequences forms an important part of dealing with
workplace transgressions.
At its core is the requirement that
the treatment of employees should be fair. Plainly,
inconsistent outcomes in relation
to evidently comparable factual
circumstances will lead to the serious erosion of respect for the
applicable disciplinary regime.
At the same time, it must be
borne in mind that the objective of consistency is but one of several
factors and that it is primarily
essential that fairness should be
seen to result in any particular case on the basis of the facts in
that case. In short,
consistency is not a rigid rule but a
guiding concept calculated to ensure that discipline is not
capricious or uneven. The
manner in which an employer applies
it must be in keeping with existing standards and expectations.
See, variously:
Early Bird Farms
(Pty) Ltd v Mlambo
[1997] 5 BLLR 541
(LAC) at 545;
SACCAWU and others v Irvin
& Johnson Ltd
[1999] 8 BLLR 741
(LAC) at paras [29] and [30];
Cape Town
City
Council v Masitho and others
(2000)
21 ILJ 1957 (LAC) at 1961B-C. Where these considerations must
be applied to a situation where outcomes in different
events fall to
be examined for consistency, it may be useful to compare different
facets of them. Ultimately, though, a value
judgment must be
exercised and not a ‘checklist’ or ‘scorecard’
approach.
4.
What, then, are the pertinent features of
the three cases here at issue? On the basis of the records of
the respective disciplinary
enquiries, which were before the
arbitrator, they may be summarised as follows:
4.1.
In
Miller
a
disagreement arose in the workplace over a bottle of milk.
Miller had asked the complainant (who was then in charge of a
crate
of milk bottles) for some milk and the response was that he should
get milk from the paintshop. The complainant then
found that
there was one bottle short. He approached Miller and asked if
he had taken a bottle. Miller felt that he
was being accused of
taking it and an argument broke out. He then slapped the
complainant once.
4.2.
Directly afterwards, Miller apologised for
what he had done. Two days later he attempted to apologise once
more but the complainant
would not accept the apology. The
complainant said that his ear still hurt, although he hadn’t
gone to a doctor.
Miller was charged and pleaded guilty to
assault at the disciplinary hearing. Having regard to his
evident remorse, the presence
of an element of provocation, and his
personal circumstances, the sanction of a final written warning valid
for 12 months was imposed.
4.3.
The
Manzana
case involved two employees who were
charged with fighting. They pleaded not guilty and a plea
bargaining process was entered
into, the upshot of which was that the
union apparently facilitated an agreement between the two, who stated
that they were good
friends, that they had reaffirmed their
friendship after the incident, that they were not prepared to testify
against each other,
and that the employer was requested to withdraw
the charges.
4.4.
The employer refused to accede to the last
request, pointing to the seriousness of the transgression. In
the result, an agreement
was concluded which involved a formal
recognition by the two employees of the fact that fighting was a very
serious offence and
the imposition of the sanction of three days
suspension without pay. Part of this agreement was that the two
employees would
carry their own medical expenses. This is
significant, since the incident involved injuries, so much so that
one of the two
employees required eight stitches.
4.5.
In the instant case, that of
Doda
,
the circumstances were basically that Doda was in charge of the
loading of orders on to a truck. Different orders needed
to be
kept separate, which was done by putting strips between them.
These had been placed horizontally and Mr Kamfer, a general
labourer,
then started changing them to be vertical. While he was doing
this, Doda came up behind him and hit him very hard
at the back of
his neck and asked what he was doing. Kamfer reacted by pushing
Doda back and asking what was going on.
Doda then struck him
twice with an open hand, once on his chest and once in the face.
Kamfer started crying and went to report.
He had marks on his
face where he had been struck.
4.6.
Doda’s version was that after Kamfer
had pushed him back he, Doda, did not strike Kamfer but pushed him
back with his hands.
He also stated that he hadn’t
initially hit Kamfer on the neck but had grabbed him from behind and
choked him. A difficulty
in this version was noted, in that
there were definite marks on Kamfer’s face. After the
incident, Doda’s representative
went to Kamfer and tried to
persuade him to withdraw the charge of assault. Kamfer didn’t
agree and expressed the view
that Doda should get a stiff warning.
There was no suggestion that Doda had himself approached Kamfer in
order to apologise.
Underlining that in the record is the fact
that at the beginning of the disciplinary hearing, Doda stated that
he had no knowledge
of any incident of fighting.
4.7.
The
Miller
case was raised and the disciplinary
chairman concluded that it did not fit the facts before him. He
alluded to the fact that
Miller had shown remorse, had pleaded guilty
and that provocation was present. He also took into account of
a number of decided
cases dealing with inconsistency issues. In
the result, he applied the company’s code regarding fighting or
assaults
in the workplace and held that Doda was to be dismissed.
I may add that the chairman was an independent external appointee,
namely Mr Giliomee. He had been brought in (appropriately so)
because Mr Petersen, the applicant’s Labour Relations
Manager,
had been involved in the incident in that Kamfer had reported it to
him.
5.
At the arbitration the above records were
traversed in evidence, in considerable detail. Had there been
nothing more before
the arbitrator it would have been difficult to
support her conclusions. Indeed, it is my view that the
reasoning of Mr Giliomee
was sound in relation to the evidence and
submissions tendered at the disciplinary hearing. He gave
evidence at the arbitration
and dealt with his reasoning. It
was
inter alia
pointed
out by him that a notice which the applicant issued to all its
employees to the effect that it would adopt a ‘zero
tolerance’
approach to offences such as assaults did not state that any employee
found guilty of such an offence
would
be
dismissed. Rather, the notice states that these are offences
“that can warrant dismissal”.
6.
However, significant additional evidence
was presented at the arbitration. At one stage Mr Petersen, who
represented the applicant
(and also gave evidence as a witness),
complained that Doda was giving evidence that had not been raised at
the internal inquiry.
Not much more was done about this aspect
of the matter. In any event, by far the most significant such
evidence came not
from Doda but from Kamfer.
7.
That evidence included the following:
7.1.
On the same day, at a later stage, Doda had
apologised to him, saying in effect that he hadn’t known what
he was doing.
Kamfer had accepted this apology and the two had
shaken hands.
7.2.
Subsequently, at a funeral, after Doda had
been dismissed, he had again apologised for what he’d done.
They’d
had a drink together and Kamfer stated that there were
no issues between them. If Doda were to return to work, he
would have
no problems working with him again.
7.3.
Immediately before the incident, Doda had
more than once queried the manner in which Kamfer was setting up the
separator strips
between different orders being loaded on to the
truck. Kamfer confirmed that Doda had been concerned that if
this was being
done incorrectly, orders could become mixed up or fall
off the truck.
7.4.
In the course of this, Doda had said to him
a few times: “What are you doing, what are you doing?”
7.5.
Evidently because Kamfer did not react to
his satisfaction, Doda then slapped the back of his neck.
7.6.
Kamfer’s response to this was to push
Doda back. The latter lost his balance as a result of this.
He then became
very angry and slapped Kamfer hard in his face.
Kamfer accepted that Doda was provoked when he pushed him back.
7.7.
Kamfer described the slap in his face as “a
real slap” and it is clear from his evidence that it was this
slap that
led to him reporting the incident to Petersen. When
asked whether he wanted to put in a case against Doda, Kamfer said to
Petersen: “Yes because Mr Doda did slap me in my face.”
8.
As I have indicated, this evidence was not
tested against what had been said in the course of the disciplinary
hearing. It
must therefore be taken into account at face
value. The result is that material parallels with the
Miller
case are substantially strengthened,
particularly when compared to the record of the internal enquiry.
In the first place
it is so that Doda expressed remorse and that he
and Kamfer have reconciled any remaining differences between them.
In the
second place it is so that the incident was preceded by
work-related verbal interaction, with an apparent failure by Kamfer
to
meet Doda’s queries leading to the initial slap, as distinct
from an utterly baseless attack from out of the blue. In
the
third place it is so that the real core of the complaint, being the
hard slap in the face, was seen even by the complainant
as flowing
from a provocative push by himself.
9.
Certain comparable portions of the evidence
of Doda also need to be identified. He confirmed that he had
apologised to Kamfer
on the same day and that the two of them were
again on good terms. He explained that he had become angry when
Kamfer continued
working in a particular way despite the fact that he
had spoken to him about how that work was to be done. He became
cross
because the company would hold him, Doda, responsible if
anything went wrong, since he was the supervisor in charge.
Doda
also gave an account of his personal circumstances. Just
at the time of this incident, he had lost his mother and his father
had lost both legs. There is a large family and a far greater
burden of support then fell on him. He concluded his
evidence
with the statement that he considered that he had been unfairly
dismissed, having regard to the fact that Jackson Miller
was still
working at the company.
10.
Once these further considerations are
factored into the conspectus of this matter, the differential between
this case and that of
Miller
becomes
well-nigh impossible to sustain. That was the conclusion of the
arbitrator and I see no sufficient ground in the record
before me to
hold that such conclusion should be set aside on review as being
unreasonable and unjustifiable. It follows
that the application
must fail.
11.
The award does however contain a lacuna.
The arbitrator correctly found that Doda was guilty of assaulting a
fellow employee,
but held that dismissal was in all the circumstances
unfair. That concerned the issue of the sanction and not the
finding
of guilt. The arbitrator went on to order reinstatement
and three months remuneration. What she did not do was to make
an order in respect of the sanction. Neither of the parties
addressed this aspect of the matter and I do not propose to deal
with
it as part of my order. It may nonetheless not be inappropriate
for me to observe that the greatest part of the debate
as to
inconsistency revolved around the
Miller
case and the extent to which it was or
was not comparable to the case before me. Given that, it is my
prima facie
view
that Doda should receive the same sanction, namely a final written
warning valid for 12 months calculated as from the date
of his
reinstatement.
12.
Formally, the application for review was
lodged late and condonation thereof was sought. It was
initially opposed but that
was no longer the position as at the date
of the hearing of this application. I am satisfied that
condonation should be granted.
13.
In relation to costs, it seems to me that
this is not a case where the ordinary rule that costs should follow
the result ought to
be applied. As set out above, this is a
somewhat unusual matter in the sense that I essentially concur with
the outcome of
the disciplinary hearing, but depart from it in
consequence of the further evidence led at the arbitration.
Considerations
of fairness persuade me that there should hence be no
order as to costs.
14.
I make the following order:
1
The late institution of this application is
condoned.
2
The application is dismissed.
3
There is no order as to costs.
_____________________
K S
TIP
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
27 JANUARY 2010
DATE OF
JUDGMENT:
12 MARCH 2010
FOR
APPLICANT:
ADV J VAN NIEKERK
Instructed
by SMIT KRUGER INC
FOR THIRD
RESPONDENT:
ADV C BESTER
Instructed
by H MATUKANE ATTORNEYS