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[2011] ZALCJHB 145
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African Fine Carbon (Pty) Ltd v Van Staden NO and Others (JR 914/10) [2011] ZALCJHB 145 (25 August 2011)
9
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
CASE NUMBER: JR 914/10
Not Reportable
In the matter between:
AFICAN FINE CARBON (PTY) LTD
..............................................................
Applicant
and
PIET
VAN STADEN NO
....................................................................
First
Respondent
CCMA
...........................................................................................
Second
Respondent
NUMSA obo M MATSHONA
............................................................
Third
Respondent
Date of hearing : 23 August
2011
Date of judgment : 25 August
2011
Judgment
Cele J
Introduction
[1] In this application, the
arbitration award dated 9 March 2010 issued by the first respondent
as a commissioner of the second
respondent is sought to be reviewed
and set aside in terms of section 145 (2) of the Labour Relations
Act,
1
(the LRA). The fairness of
dismissal, as a sanction imposed by the applicant, is at the heart of
this application. The first respondent
disagreed with the sanction,
describing it as too harsh and not consistent and ordered the
applicant to re-instate him, however
without retrospective effect.
The third respondent acted on behalf of its member, Mr Matshona to
oppose the application.
Factual background
[2] Mr Matshona was in the
employ of the applicant having commenced in 1996. He was dismissed on
14 October 2009 while working as
a welder. He had been charged with
an act of misconduct in that he worked on a conveyor belt while it
was in operation and thus
not following the applicant’s health
and safety regulation. He walked out at the commencement of the
disciplinary hearing
which continued in his absence and a guilty
verdict was returned. A sanction of dismissal was imposed on him. He
referred an unfair
dismissal dispute for conciliation and later for
arbitration. The first respondent confirmed the guilty verdict,
finding also that
there was no reason to doubt that a fair procedure
was followed. He then found that:
1. Mr Sithole who had been
assisting Mr Matshona on the day should not be dismissed but only
counselled;
2. After the dismissal of Mr
Matshona, three other employees were involved in similar breaches of
the safety rules. They were issued
with final written warnings;
3. The disciplinary code of
the applicant suggested a process of progressive discipline in
matters like the present;
4. It would be unfair that
other employees would get away with it but when it happened to Mr
Matshona he had to bite the bullet;
5. While the facts relating to
the infractions of the other employees were not put before him, he
was of the view that dismissal
was a too severe sanction;
6. As serious as the
infraction committed by Mr Matshona was, he (the commissioner) was
not persuaded that dismissal was the appropriate
sanction in the
present matter. He was particularly concerned with the issue of the
consistent application of the rule for which
Mr Matshona was
dismissed.
[3] He ordered the applicant
to re-instate Mr Matshona on terms and conditions no less favourable
than those that would have governed
his employment, had he not been
dismissed, save that re-instatement was not to be retrospective but
with effect from 29 March 2010
as he had contributed to his
misfortune.
Grounds for review.
[4] The submission was that
the first respondent:
committed a gross
irregularity by misconstruing the issue of inconsistency when the
exact nature of the other violations of the
health and safety rules
of the applicant was not before him and thus could not assess
whether those violations were as serious
as the one committed by Mr
Matshona;
exceeded his powers by
determining what sanction he would have imposed rather than whether
the sanction imposed by the applicant
was fair and
came to a decision that a
reasonable decision maker could not come to on the face of evidence
that Mr Matshona was a shop steward
and as such had a more onerous
duty and responsibility to comply with the company rules and set an
example. Further that he ignored
the evidence that the disciplinary
chairperson had considered the experience of the person, the
circumstances of what happened,
the fact that other people were
involved that could be affected by the breach of safety and the
training received by employees
regarding safety and lock-out
procedures.
[5] In opposing this
application Mr Matshona denied that any legal or factual basis
existed for the applicant to institute the present
proceedings. He
said that the first respondent had concluded that Mr Matshona worked
on the moving conveyor belt and indicated
that he was particularly
concerned with the issue of the consistent application of the rule
for which Mr Matshona was dismissed.
The applicant had not changed
its policy after the dismissal of Mr Matshona and therefore it did
not matter whether other violations
of the safety rules of the
applicant took place before or after his dismissal.
Evaluation
[6] I do not consider it
necessary to have to restate the law governing the consistent
application of sanction in any particular
work place. The first
respondent acquitted himself well in this regard and I associate
myself with the jurisprudence he referred
to in his award. It is not
surprising that the attack of the award was not premised on a
misdirection in this regard.
[7] Section 138 (7) of the LRA
permits a commissioner to deal with the arbitration proceedings with
the minimum legal complexity
and to give brief reasons for the award.
Implicit in this approach is the chance that not every aspect of
evidence will necessarily
be dealt with in an award. This leaves an
opportunity for a grieving party to nit peak facts and factors as a
basis for attacking
the award.
[8] The applicant contends
that the first respondent committed a gross irregularity by
misconstruing the issue of inconsistency
when the exact nature of the
other violations of the health and safety rules of the applicant was
not before him and thus could
not assess whether those violations
were as serious as the one committed by Mr Matshona. However the
applicant failed to show the
existence of circumstances that were
different to those under which Mr Matshona was dismissed. In page 52
of the index to the record,
Mr van der Westhuizen, the Engineering
Superintendant of the applicant, was asked, during his testimony, how
many people had been
reported to him having been involved in the
commission of the same incident. That was the opportunity given to
him to dispute the
commission of a similar incident if that was the
case. His answer to the probe was clear as he said that he did go
through the
same procedure with two other employees who also worked
on the machines and they were also disciplined with a final written
warning.
On page 53 of the record, he described the charge against Mr
Matshona as “working on moving machine”. The
transgression
of the two employees that he referred to was therefore
in his terms, the same as that committed by Mr Matshona. This was a
company
which held itself as practising a zero tolerance of the
breach of safety rules. It was never shown why Mr Matshona was
treated
differently from the two employees. In the light of this
evidence, the applicant has therefore failed to distinguish the case
of
Mr Matshona from those of the two or three employees identified to
have committed a similar transgression. The first respondent
was
alive to the fact that he did not have the detailed factual
circumstances under which the other violations of the safety rules
occurred. He however had enough evidence to make the judgment call.
His thinking process was accordingly alive to the important
consideration of comparing similar transgressions.
[9] The applicant knew that it
had treated Mr Matshona differently than it had treated Mr Sithole.
Therefore, it was open to it
to show the first respondent why it
chose to impose different sanctions. The record shows that Mr
Matshona was a welder and a supervisor.
Mr Sithole was a maintenance
assistant who could have been instructed on what to do by Mr
Matshona. Therein lay a difference in
the ranking of the employees
that could justify the imposition of different sanctions. The first
respondent accepted that Mr Sithole
worked on the conveyor belt. The
evidence by Mr Nkosi, who worked with the two men, was that Mr
Matshona had elicited help from
Mr Sithole. The first respondent owed
the applicant an explanation why he rejected the explanation that it
offered as to why it
treated the sanctions differently between Messrs
Matshona and Sithole. No such explanation appears in his award. This
comparison
by the first respondent therefore lacks in substance.
[10] While
prima
facie
the
employees are entitled to receive similar sanctions for similar
transgressions, an employer may be justified in differentiating
between its employees guilty of a similar offence on the basis of
their different personal circumstances. (See in this regard
Early
Bird Farms (Pty) Ltd v Mlambo,
2
and NUM and Another v
Amcoal Colliery t/a Arnot Colliery and Another.
3
)
[11] In scrutinising the
award, the applicant lost sight of the fact that the first respondent
considered not only parity of the
sanction. He considered the policy
of the applicant and found that it favoured progressive discipline.
This alone would have been
a legitimate basis for finding that the
sanction imposed was unfair. Mr van der Westhuizen testified that the
company code on discipline
on a first transgression provided for
counselling, first written warning second written warning and
dismissal. Mr Matshona was
an employee whose working experience was
in the region of 13 years. He must have had a clean record, otherwise
the applicant would
have referred to any adverse record it had
against Mr Matshona. A foundation in evidence had to be laid for the
applicant to decide
to abandon its policy on progressive discipline.
No such evidence was led. In considering this factor, the first
respondent committed
no defect.
[12] The applicant has not, in
my view succeeded in showing that there has not been a full and fair
trial of the relevant issues
that the parties brought before the
first respondent for his consideration, notwithstanding my findings
pertaining to Mr Sithole’s
sanction.
[13] The submission that the
first respondent exceeded his powers by determining what sanction he
would have imposed rather than
whether the sanction imposed by the
applicant was fair is devoid of any merits. In assessing the fairness
of a sanction a commissioner
is entitled to make a value judgment.
The first respondent considered relevant factors and concluded that
the sanction imposed
by the applicant was too harsh and consequently
unfair. Once that point was reached, the first respondent embarked on
a process
to investigate a fair sanction. He found,
inter
alia
, that
Mr Matshona had contributed to his misfortune and did not deserve a
back pay. The result was that Mr Matshona ended with
a sanction which
though fall short of dismissal, was harsher than of those employees
who were subsequently subjected to disciplinary
proceedings for a
similar transgression.
[14] The attack waged against
a consideration of the sanctions imposed by the applicant soon after
it dismissed Mr Matshona, but
before the arbitration proceedings in
this matter were held, lacks merits. There are numerous cases where
the relations of the
parties, as do manifest themselves during the
arbitration hearing, become a consideration in determining the
appropriateness of
re-instatement as a sanction. Therefore events
materialising after the commission of the misconduct complained of
may be considered
in an arbitration hearing pertaining to that
misconduct. The issue turns on the relevance of such considerations.
[15] The first respondent
could not defer the imposition of a sanction to the applicant. He
would have acted unreasonably and contrary
to the powers bestowed to
a commissioner, had he retained a sanction which he had already found
to be too harsh and unfair. It
follows that this ground of review
must similarly fail.
[16] The applicant said that
the first respondent came to a decision that a reasonable decision
maker could not reach, on the face
of evidence that Mr Matshona was a
shop steward and as such had a more onerous duty and responsibility
to comply with the company
rules and set an example. It is not clear
if this submission is intended to mean that shop stewards deserve a
harsher sanction
by the very fact of being shop stewards. This is not
a case where the contention was that Mr Matshona did not know the
rule breached.
The link between the fairness of a sanction and living
an exemplary life style has not been established in these
proceedings. That
he failed to consider the circumstances of the
breach flies on the face of what the first respondent eloquently said
in paragraphs
30 to 32 of the award with particular reference to
paragraph 94 taken from the decision in
Sidumo
and Another v Rustenburg Platinum Mines (Pty) Ltd and Others.
4
He did not have to regurgitate
the evidence of the disciplinary hearing. Accordingly, I am unable to
find that the decision reached
by the first respondent in this regard
falls outside of the range of reasonableness. This ground stands to
be dismissed.
[16] In conclusion, the
following order falls to be issued:
The review application in
this matter is dismissed.
No
costs order is made.
____________
Cele
J.
APPEARANCES:
For
the Applicant : Mr D. Masher
Instructed
by : Bell Dewar Incorporate.
For the third respondent : Mr
N Masutha
Instructed
by : National Union Metal Workers
of South Africa.
1
Number
66 of 1995
2
[1997]
5 BLLR 541
(LAC).
3
[2000]
8 BLLR 869
(LAC).
4
[2007]
12 BLLR 1097
(CC).