About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 71
|
|
International Ferro Metals (SA) (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 1088/2011) [2012] ZALCJHB 71 (5 July 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JR 1088/2011
Reportable
In the matter between:
INTERNATIONAL FERRO METALS
(SA)(PTY) LTD
…...................................
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION (
“
CCMA”)
…...................................................
First
Respondent
JOSEPH TSABADI N O
….........................................................
Second
Respondent
MICHAEL MADLANKOSI BASI
…..................................................
Third
Respondent
Heard: 03 July 2012
Delivered: 05 July 2012
JUDGEMENT
MOSAM AJ:
This matter concerns a review
application to set aside a decision taken by the Second Respondent
(“
the Arbitrator
”) on 12 April 2011 wherein the
Arbitrator made an award that the Applicant had inconsistently
applied discipline in dismissing
the Third Respondent (“
the
Employee”)
and that the Employee’s dismissal was
therefore substantively unfair.
The relevant facts
It is not necessary for the purpose
of this judgment to restate the facts, but the salient ones are
mentioned below.
On or about 9 December 2010, the
Applicant instituted disciplinary proceedings against the Employee
in which the Employee was
required to answer a charge that he had
acted dishonestly in that he had fraudulently acquired a sick note
to cover or excuse
his absence when he had been sent home from work
because he was allegedly found under the influence of an
intoxicating substance
(“
the charge”)
. These
disciplinary proceedings culminated in the Employee being found
guilty of the charge and thereafter dismissed from the
employ of the
Applicant on 14 December 2010.
The Employee referred a dispute to
the CCMA in which he alleged that his dismissal was procedurally and
substantively unfair.
The dispute was arbitrated before the
Arbitrator on 23 March 2011.
In his arbitration award and in
considering the substantive fairness of the Employee’s
dismissal, the Arbitrator held the
following:
“
[32]
I am respectfully in agreement with the respondent [
the
Applicant]
that
the applicant’s [
the Employee’s]
conduct
has seriously damaged the relationship of trust which is the hallmark
of any employment relationship. Even during these
arbitration
proceedings; the applicant did not show any remorse but remained
defiant. It is my finding, therefore, that the dismissal
of the
applicant was procedurally fair. However; substantively the dismissal
of the applicant is found to be unfair from a consistency
point of
view. The dismissal of the applicant cannot stand from a consistency
point of view [sic] as I do indeed have [sic] reason
to disturb the
Respondent’s finding as well as penalty imposed. There is
sufficient factual and legal basis for me to Interfere
[sic] with the
Respondent’s decision as well as penalty imposed for the
reasons stated in paragraph [35] infra.
[33] The Applicant’s
supervisor was equally guilty of dishonesty. Firstly; he sent the
Applicant home prematurely before a
second alcohol test could be
conducted on the Applicant. Secondly, he did not report the incident
or bring it to management’s
attention. Only the security
officers on duty made an OB entry. Lastly; as if all these were not
grossly dishonest enough, he tampered
with the Applicant’s
clock-in cards/time sheets thereby entitling the Applicant to payment
for the day that he tested positive
for alcohol. Had the senior
supervisor not discovered these clocking irregularities, the
Applicant would have been paid for the
day that he did not work after
he was sent home for testing positive for alcohol. For all these acts
of gross dishonesty charges
were brought against the supervisor who
is more senior than the Applicant and he gets away with a final
written warning and the
Applicant gets dismissed. It is my view that
the Respondent was highly inconsistent in meting out discipline.
[34] My finding that the
Respondent was inconsistent in meting out discipline should not be
misconstrued to imply that I condone
the Applicant’s conduct.
The Applicant’s conduct is abhorable to say the least. However,
what is good for the supervisor,
a senior employee, is also good for
the Applicant, who is a junior employee.
[35] It is my finding, therefore,
that the dismissal of the Applicant was procedurally fair but
substantively unfair. The dismissal
of the Applicant does not stand
as I do have sufficient reason to disturb the Respondent’s
finding as well as penalty imposed.
There is sufficient factual and
legal basis for me to interfere with the Respondent’s decision
as well as the penalty imposed.”
The decision of the Arbitrator to
reinstate the Employee with no back pay is the subject matter of
this review application.
Review for reasonableness
In
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs & Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC), the Constitutional Court at paragraph 47 set out the factors
that a Review Court should consider in deciding whether a
decision
was reasonable. The specific factor highlighted is the nature of the
decision and another is the competing interest
involved.
In
Fidelity Cash Management
Services v CCMA & Others
(2008) 3 (BLLR) 197 (LAC), the
Court said:
"Whether or not an
arbitration award or decision of finding of a CCMA Commissioner is
reasonable must be determined objectively
with due regard to all the
evidence that was before the Commissioner and what the issues were
that were before him or her."
In
Fidelity Cash
it was also
said:
"There is obviously an
overlap between the ground of review based on a 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 resultant decision
can
hardly be said to be that of a reasonable maker."
Ngcobo J
in
Minister of Health v New Clicks SA
2006 (2) SA 311
(CC).
In the recent Labour Appeal Court
case of
Andre Herholdt v Nedbank Limited Case No: DA 20/2010
,
unreported (judgment delivered 4 May 2012), Murphy AJA, stated
inter
alia
the following:
“
[39]
… The threshold for interference is lower than that; it being
sufficient that the commissioner has failed to apply his
mind to
certain of the material facts or issues before him, with such having
potential for prejudice and the possibility that the
result may have
been different. This standard recognises that dialectical and
substantive reasonableness are intrinsically interlinked
in that
latent process irregularities carry the inherent risk of causing an
unreasonable substantive outcome.”
Grounds of review
The grounds of review raised by the
Applicant is that the Arbitrator committed a reviewable irregularity
and thereby arrived at
a decision which no reasonable decision maker
could have reached in finding that the Applicant had inconsistently
applied discipline
in dismissing the Employee and that the
Employee’s dismissal was therefore substantively unfair (“
the
first ground of review”)
.
Furthermore the Applicant contended
that the Arbitrator committed a reviewable irregularity and thereby
arrived at a decision
which no reasonable decision maker could have
reached in finding that retrospective reinstatement was the
appropriate remedy
(“
the second ground of review”).
The Applicant also attacked the
Arbitrator’s finding that the Applicant had inconsistently
applied discipline in dismissing
the Employee (“
the third
ground of review”).
Lastly, the Arbitrator committed a
reviewable irregularity by failing to advise the Applicant that he
intended to
mero motu
consider inconsistent application of
discipline in determining the substantive fairness of the Employee’s
dismissal (“
the fourth ground of review”).
Discussion
The gist of the Applicant’s
review relates to the Arbitrator’s finding that the Applicant
acted inconsistently in
issuing the supervisor with a final written
warning and in turn, dismissing the Applicant.
It was submitted by Mr van As,
correctly so, in my view, that it is apparent from the record that
the supervisor received a final
written warning for failing to
report the Employee’s absence from work on 3 October 2010 and
that the supervisor’s
misconduct is clearly distinguishable
from the Employee’s more serious and dismissible misconduct,
namely the submission
of a fraudulent medical certificate which
per
se
involves an element of dishonesty.
In
Mphigalale v Safety and
Security Sectoral Bargaining Council & Others
, Savage AJ
1
made reference to Conradie JA in
De Beer’s Consolidated
Mines Ltd v Commission for Conciliation, Mediation & Arbitration
& Others
2
wherein it was stated:
‘
A
dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be, a sensible operational
response to risk management in the particular enterprise. That is why
supermarket shelf packers who steal small items are routinely
dismissed. Their dismissal has little to do with society’s
moral opprobrium over minor theft; it has everything to do with
the
operational requirements of the employer’s enterprise.’
Savage AJ goes on to state the
following:
“
[
18]
This
‘sensible operational response to risk management’ is one
which must be undertaken fairly. In determining whether
a decision to
dismiss is fair, a commissioner must take cognizance of the fact that
the discretion to dismiss lies primarily with
the employer and
interference with the sanction imposed should not be lightly
contemplated, with a measure of deference afforded
to the sanction
imposed by the employer. The Code of Good Practice: Dismissal
establishes a guideline to test the fairness of a
dismissal, which
includes consideration as to whether ‘the rule of standard has
been consistently applied by the employer’.
As a general rule,
fairness requires that like cases be dealt with alike, whether in the
consistent enforcement of a rule or in
the imposition of a penalty.
…”
Conradie JA in
SACCAWU &
Others v Irvin & Johnson Ltd
3
found that:
‘
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 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. … A wrong
decision can only be unfair if it is capricious, or induced
by
improper motives, or worse, by a discriminating management policy.’
It was therefore correctly
submitted by Mr van As that had the Arbitrator properly applied his
mind to the misconduct committed
by the Employee, as compared to the
misconduct committed by the supervisor, he would have concluded that
such misconduct is distinguishable
and that the Applicant had
therefore not inconsistently applied discipline in dismissing the
Employee but not dismissing his
supervisor.
I am satisfied that the Applicant
has (per
Andre Herholdt
supra
) crossed the threshold
for the review to succeed.
Therefore, in failing to arrive at
such a conclusion, the Arbitrator committed a reviewable
irregularity and thereby arrived at
a conclusion which no reasonable
decision maker could have reached in the circumstances.
It therefore follows that the
Applicant must succeed on the first ground of review and therefore
it is not necessary for me to
consider the other grounds of review.
Mr van As submitted that in the
event I uphold the first ground of review, I should substitute the
arbitration award with a finding
that the dismissal of the Employee
was substantively fair.
4
I agree.
Costs
The Court has a broad discretion,
established by section 162 of the LRA, to make an order for costs
according to the requirements
of the law and fairness. The Applicant
has been successful in this matter and there are no reasons before
me to suggest why costs
in this matter should not follow the result.
Order
Accordingly I make the following
Order:
The arbitration award of the
Arbitrator is reviewed and set aside.
The Arbitrator’s arbitration
award is substituted with an order to the effect that the dismissal
of the Employee was for
a fair reason and accordingly his claim for
unfair dismissal is dismissed.
The Employee is to pay the costs
of these proceedings.
___________________
A MOSAM
Acting Judge of the Labour Court
APPEARANCES:
FOR THE APPELLANTS: M J VAN AS
Instructed by : Edward Nathan
Sonnenbergs Inc.
FOR
THE RESPONDENTS:
N DAROCHA
Instructed by : Magolego Troskie Inc.
1
[2012]
33 ILJ 1464 (LC)
2
[2000]
21 ILJ 1051 (LAC)
3
[1999]
20 ILJ 1957 (LAC)
4
Tedco
Plastics (Pty) Ltd v NUMSA & Others
[2000]
21 ILJ 271 (LC);
Protekon (Pty) Ltd v
CCMA & Others
[2005] 26 ILJ 1105
(LC)