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[2012] ZALCJHB 171
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Monte Casino v Commission for Conciliation Mediation and Arbitration and Others (JR 314/2011) [2012] ZALCJHB 171 (27 December 2012)
THE REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of interest to other
judges
case
no: JR 314/2011
In the matter between:
MONTE
CASINO
................................................................................
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBVITRATION
...............................................
First
Respondent
COMMISIONER NTOMBELA
.
..................................................
Second
Respondent
TONY
VINCENT MASILO
...................................................
Third
Respondent
Heard: 06 August 2012
Date delivered: 27 December 2012
Summary: Review
application- inconsistent application discipline
JUDGMENT
MOLAHLEHI
J
Introduction
This is an application to review and set aside the arbitration award
made by the second respondent (the Commissioner) under case
number
GAJB 27207–10, in terms of which the dismissal of the third
respondent (the employee) was found to have been unfair.
The
applicant was for this reason ordered to reinstate the employee.
Background facts
The employee who was employed by the applicant as a Casino dealer
was dismissed on 23 August 2010. The employee was dismissed
for
gross misconduct relating to the allegation that he was rude to one
of the applicant's customers.
The employee being unhappy with the outcome of the disciplinary
hearing referred a dispute to the third respondent concerning
an
alleged unfair dismissal.
Grounds for review
The applicant contends that the arbitration award is susceptible to
review because the Commissioner failed to apply his mind
to the
issues before him in particular relating to the principles governing
inconsistency in disciplinary matters. In the supplementary
affidavit, the respondent contends that the Commissioner
misconceived the nature of the enquiry before him concerning the
issues
of the sanction and inconsistency.
The arbitration award
In his analysis and evaluation of the evidence before him the
Commissioner identified the issue raised by the employee to relate
to the inconsistent application of discipline.
In arriving at the conclusion that the applicant acted
inconsistently in dealing with the sanction imposed on the employee,
the Commissioner relies on the decision in
National Union of
Mineworkers and Others v Free State Consolidated Goldmines
(Operations) Ltd –President Steyn and others
1
in which the court held that, "like cases should be treated
alike.”
The Commissioner rejected the explanation of the applicant that it
has previously acted against employees, in a similar situation
as
that of the employee. In this regard the Commissioner distinguished
the case of Mr Larry Mntambo, which the applicant sought
to use to
demonstrate that it had previously taken action against employees
who had been rude to customers. The Commissioner
distinguished that
case on the basis that the employee in the Mntambo’s matter
was not only rude but was also accused of
having assaulted a
customer.
The Commissioner further found that, but for the inconsistent
application of discipline by the applicant, he would not have
hesitated to confirm the dismissal of the employee. It was for the
above reasons that the Commissioner found that the sanction
of
dismissal, which was imposed on the employee was too harsh, and as
indicated earlier, ordered the reinstatement of the employee,
with a
final written warning valid for 12 months.
The legal principles
The issue of the application of the consistency principle in
disciplinary hearings received attention by this court in
Hullet
Alluninium (Pty) Ltd v Bargaining Council for the Metal Industry &
others
2
,
a judgment which is relied on by the applicant in support of its
case. In considering the issue the court analysed a number
of
judgements including in particular the leading case of
SACCAWU v
Irvin & Johnson
3
In the
Irvin and Johnson
, Labour Appeal Court at paragraph
[29] held that:
"In my view too great an emphasis is quite frequently sought to
be placed on the 'principle' of disciplinary consistency,
also called
the 'parity principle.' Consistency is simply an element of
disciplinary fairness. Every employee must be measured
by the same
standards. Discipline must not be capricious. It is really the
perception of bias inherent in selective discipline
which makes it
unfair "(references not included).
And at paragraph [35] the Court went further to say:
"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 is 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 enquiries. If, for example, one member of a group of
employees who committed a serious offence
against the employer is,
for improper motives, not dismissed, it would not, in my view,
necessarily mean that the other miscreants
should escape. Fairness is
a value judgment. It might or might not in the circumstances be fair
to reinstate the other offenders.
The point is that consistency is
not a rule unto itself."
The decision of
Irvin & Johnson
was confirmed by the
Labour Appeal Court, in
Gcwensha v CCMA & Others
4
,
where the court observed that:
"Disciplinary consistency is the hallmark of progressive labour
relations that every employee must be measured by the same
standards."
The consideration of the gravity of misconduct in cases where
inconsistency has been raised as an issue plays a critical role
and
is a factor to take into account in weighing particular whether the
sanction imposed by the employer is unfair.
It is trite that the key person in determining whether a dismissal
is fair or otherwise is the arbitrator who does that by answering
the simple question posed in
Engen
Petroleum Ltd v CCMA & others
as being,
"Is this dismissal fair?" The Commissioner answers this
question on the basis of his or her own sense of fairness and
as
stated in Engen Petroleum, “
The question cannot
possibly be answered on the basis of somebody else's notion of
fairness.”
In
Westonaria Local Municiplity v SA Local
Bargaining Council & others
5
this court in dealing with the same issue of inconsistency held
that:
‘
It has been consistently held by the courts
that the responsibility for determining the appropriateness of
dismissal as a penalty
is a matter to be left to the discretion of
the arbitrator. In this respect the Constitutional Court in
Sidumo
said the following:
‘
[75] It is a practical reality
that, in the first place, it is the employer who hires and fires. The
act of dismissal
forms the jurisdictional basis for a commissioner,
in the event of an unresolved dismissal dispute, to conduct an
arbitration in
terms of the LRA. The commissioner determines whether
the dismissal is fair. There are, therefore, no competing
'discretions'.
Employer and commissioner each play a different part.
The CCMA correctly submitted that the decision to dismiss belongs to
the
employer but the determination of its fairness does not.
Ultimately, the commissioner's sense of fairness is what must prevail
and not the employer's view. An impartial third party determination
on whether or not a dismissal was fair is likely to promote
labour
peace."
[20] At paragraph [78] of its judgment the Constitutional Court held
that:
‘
In
approaching the dismissal dispute impartially, a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee's conduct,
whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on
the employee and
his or her long-service record. This is not an exhaustive list.
6
"
Evaluation
The two main complaints of the applicant as concerning the outcome
of the arbitration award is that the Commissioner failed to
apply
his mind to the legal principles governing inconsistency in
disciplinary matters and reinstatement.
In seeking to show that it was consistent in its application of
discipline the applicant referred to the case of Mr Mtambo who
it
had dismissed. The case of Mr Mtambo is distinguishable from that of
the employee and that of Ms Tsitsi. Mr Mtambo was in
addition to
being rude charged with assaulting a customer. The charges against
him reads as follows:
“
Gross Misconduct: in that on 26/06/2010,
while dealing on AR19 you grant the company into disrepute by
approaching a guest on the
table and assaulting him."
The issue of inconsistency in the present matter has to be assessed
in the context wherein Ms Tsitsi was also charged for the
same
offence, found guilty and given a final written warning, and not
been dismissed.
It is common cause that the employee was previously found guilty and
issued with a verbal warning for the same offence, which
at the time
of the disciplinary hearing had expired. A year and a half later the
employee was charged with the following offence:
“
Gross misconduct: conduct not in the best
interest of the company in that on the 18 July 2010, while allocated
to AR4:
You are rude to the guest and contravened the language policy.
Your behaviour or conduct was such that a proper name of the company
into disrepute.”
It was not denied and as will appear later the record shows that Ms
Tsitsi also received several warnings for misconduct over
a period
of four years. The charge for which she received the final written
warning for the misconduct she committed on 16 may
2010, read as
follows:
“
Misconduct: conduct not in the best
interests of the company in that on 16th May 2010, while allocated to
the AR4;
You refused to place bets for a customer.
You are rude to a punter in that you, stated that you don’t
care if management gets informed about the conduct,
You grant the company's name into disrepute."
In comparing the facts of the case of Ms Tsitsi and that of the
employee, there can be no doubt that the applicant acted unfairly,
in dismissing the employee. The charges of the two employees which
are quoted above, are essentially the same. And more importantly,
the employee pleaded guilty and sought to explain his behaviour on
the day in question. The employee explained that he was feeling
stressed and short-tempered on the day in question and attributed
that to the two operations he had recently undergone.
It is clear that the employee showed remorse by immediately pleading
guilty to the charges, requesting to be taken for training
and being
given a mentor. Ms Tsitsi on the other hand pleaded not guilty and
showed no remorse for her conduct. The testimony
of the witness, who
initiated the charges against both the employees indicates that Ms
Tsitsi initially declined to undergo training
when it was offered to
her.
The hurdle which the applicant faced at the arbitration proceedings
was that of explaining the inconsistency in the application
of
discipline. The fact that the disciplinary hearings were handled by
two different chairpersons is in my view insignificant
when regard
is had to the fact that the initiator was the same person. It was in
my view, the duty of the initiator, as the representative
of the
applicant, to have brought to the attention of the chairperson of
the employee’s disciplinary hearing that in a
similar case
another employee received a final written warning, and not
dismissal.
I agree with the Commissioner that but for the failure to provide a
justification for the inconsistent application of the discipline
the
appropriate sanction for the employees would have been dismissal.
This would have been the case because in terms of the provisions
of
the applicant's disciplinary code. This was a dismissible offence in
terms of Item 53 of the disciplinary code of the applicant
reads as
follows:
“
There shall be no counselling sessions, no
verbal warnings, no written warnings and no final written warnings
for, inter alia, the
following offences:
insubordination,
Abuse towards or wilful disregard of the needs of the guest.’
The approach adopted by the applicant in the case seems to have
treated the disciplinary code as a guideline, an approach that
has
to be welcomed because it accords with progressive discipline that
fairness would always expect a flexible approach to discipline
particularly where there is no evidence showing breakdown in the
relationship between the parties. In the case of the employee
where
the facts are very much the same as that of Ms Tsitsi, where there
are even strong mitigating factors and there is no evidence
that
shows breakdown in the relationship between the parties, the
applicant adopted a differentiated and clearly unfair approach.
It is for the above reasons that I find no irregularity or
unreasonableness in the Commissioner’s conclusion.
Re-instatement
There is nothing in the arbitration award nor the record that shows
that the Commissioner considered the provisions of section
193 of
the LRA. In this regard section 193(2) of the Labour relations act
reads as follows:
“
(2) The Labour Court or the Arbitrator must
require the employer to reinstate or re-employ the
employee
unless -
(a) the
employee
does not wish to be reinstated or
re-employed;
(b) the circumstances surrounding the
dismissal
are such that
a continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or
re-employ the
employee
; or
(d) the
dismissal
is unfair only because the employer did not
follow a fair procedure.”
I agree with the applicant that the decision of the Commissioner is
reviewable in as far as the issue or reinstatement order
is
concerned. The question that then arises is whether this failure by
the Commissioner vitiates the whole of the arbitration
award, if it
does not the question that then arises is whether the matter should
be remitted back to the Commissioner for consideration
of this
point.
In my view, the failure by the Commissioner to properly exercise his
discretion in terms of section 193 of the LRA does not vitiate
the
whole of the arbitration award. I am also of the view that in the
interests of expeditious resolution of the dispute, the
matter
should not be remitted back to the CCMA but that it be considered by
this court.
It is trite that the primary relief in the case where it has been
found that the dismissal was substantively unfair is reinstatement.
There is no evidence that the disciplinary code is part of the
contract of employment of the employee. I will for the reason
that
the applicant in the case of Ms Tsitsi deviated from the provision
of clause 53 of the disciplinary code and on the authority
of
Highveld District Council,
7
treat it as a guideline. Adopting the approach which the applicant
followed in the matter Ms Tsitsi, I see no reason why the
primary
relief of reinstatement should not apply in the case of the
employee. On the facts and the circumstances of this case,
I see no
reason why the primary relief of reinstatement should not be made.
As concerning the costs, I see no reason in law and fairness why the
costs should not follow the results.
Order
In the premises, the applicant’s application to review the
arbitration award made under case number GAJB 2727/10, is dismissed
with costs.
_______________________
Molahlehi J
Judge of the Labour Court of South Africa
APPEARANCES
FOR THE APPLICANT: Deneys Reitz Attorneys
FOR THE RESPONDENT: Adv S Msimanga instructed by Maringa Attorneys
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1
(1983)
14 ILJ 341 (LAC),
2
[2008]
JOL 21224
(LC)
3
[1999]
20 ILJ 2302 (LAC).
4
2006]
3 BLLR 234
(LAC)
5
[2009]
JOL 24695
(LC),
6
Sidumo
and Another v Rustenburg Platinum Mines and Others
2008 (2) SA
24
7
Highveld
District Council v CCMA and others
(2002) 12 BLLR 1158
(LAC).