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[2013] ZALCJHB 3
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Masubelele v Public Health and Social Development Sectoral Bargaining Council and Others (JR 1151/2008) [2013] ZALCJHB 3 (17 January 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 1151/2008
In the matter between:
FRANS MASUBELELE
........................................................................................
Applicant
and
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
...................................................
First
Respondent
M J TSABADI N.O.
............................................................................
Second
Respondent
DEPARTMENT OF HEALTH
(GAUTENG PROVINCE)
........................
Third
Respondent
Heard: 10 January 2013
Delivered: 17 January
2013
Summary:
Bargaining Council arbitration proceedings – Review of
proceedings, decisions and awards of arbitrators – Test for
review – Section 145 of LRA 1995 – Requires the
arbitrator rationally and reasonably consider the evidence as a whole
– determinations of arbitrator compared with evidence on record
– arbitrator’s decision entirely reasonable and
regular –
award upheld
Bargaining Council
arbitration proceedings – Review of proceedings, decisions and
awards of arbitrators – assessment
of evidence by arbitrator –
finding of no proper evidence as to inconsistency sustained –
principles stated
Misconduct –
dishonesty – principles applicable to dishonest conduct –
conduct of the employee constituting an
offence of dishonesty –
dismissal justified
Inconsistency –
principles applicable – employee party has evidentiary burden
to show inconsistency – no inconsistency
shown in this instance
JUDGMENT
SNYMAN AJ
Introduction
[1] This matter concerns
an application by the applicant to review and set aside an
arbitration award of the second respondent in
his capacity as an
arbitrator of the Public Health and Social Development Sectoral
Bargaining Council (the first respondent). This
application has been
brought in terms of Section 145 as read with Section 158(1)(g) of the
Labour Relations Act
1
(“the LRA”).
[2] The applicant was
ultimately dismissed by the third respondent on 14 September 2006,
following disciplinary and appeal proceedings
in the third
respondent. In an award dated 14 April 2008, the second respondent
determined that the dismissal of the applicant
by the third
respondent was substantively fair, and dismissed the applicant’s
case. It is this determination by the second
respondent that forms
the subject matter of the current review application brought by the
applicant.
Background facts
[3] From the outset, it
is pointed out that the parties in this matter chose not to lead
evidence at the arbitration but to simply
file heads of argument.
These heads of argument where not exchanged between the applicant and
the third respondent, for the purposes
of answer and reply, but each
party simply filed heads of argument with the second respondent on 3
April 2008. From the documents
forming part of the record of
proceedings in this matter, what follows is the relevant factual
background.
[4] The applicant was
employed by the third respondent as a driver, and commenced
employment in 1988.
[5] On 30 January 2005,
the applicant was on duty and was allocated a Toyota Condor motor
vehicle with registration GFY 564 G to
drive. The applicant actually
drove such vehicle on the day. The records of the conduct of the
applicant with regard to such vehicle
on 30 January 2005 showed that
the applicant filled the vehicle with 65.10 liters of fuel and with
an odometer reading of 18 536
recorded at the time, and then
later that same day filled the same vehicle again with 40.6 liters of
fuel with an odometer reading
of 18645.
[6] The irregularity in
the above is immediately apparent. It is simply impossible to fill
the same vehicle again with 40.6 liters
of fuel after only having
travelled 109 kilometers. The inference is dishonest conduct on the
part of the applicant in this respect
is irresistible.
[7] On 30 November 2005,
the applicant was not on duty. According to the applicant’s own
explanation, he was asked by a fellow
employee driver (a Mr Segooa)
to substitute for him (Segooa) on 30 November 2005, to which the
applicant agreed.
[8] According to the
applicant, he then arrived at work on 30 November 2005 in terms of
this arrangement with Segooa, only to find
Segooa who had asked the
applicant to substitute for him was actually at work and fulfilling
his duties. The applicant then asked
Segooa to drive the applicant
home and Segooa refused.
[9] The applicant stated
that he was then “left stranded” and then simply took one
of the third respondent’s vehicles
home without authorisation.
[10] The fact is that the
applicant of his own accord and without authorisation took a vehicle
of the third respondent for his own
private purposes, which was not
permitted. Again, the inference of dishonesty on the part of the
applicant is irresistible.
[11] According to the
third respondent, the applicant was a shop steward with 18 years’
experience, and should have known
better and set an example.
[12] As a result of the
above, the applicant was charged by the third respondent with
misconduct, and ultimately, following the
conclusion of appeal
proceedings, was finally dismissed on 14 September 2006.
[13] In Court, Mr S
Makhafola, who represented the applicant, stated that the applicant
never disputed that he was guilty of the
above misconduct. Mr
Makhafola actually conceded this to be the case. This is in line with
the applicant’s review application
and founding affidavit,
which does not raise the issue of the applicant’s guilt as an
issue.
[14] The only issue
raised by the applicant is one of the alleged inconsistent
application of discipline by the third respondent.
This case was
presented by the applicant in his heads of argument submitted to the
second respondent. The applicant, however, led
no evidence at all in
respect of the same.
[15] In his heads of
argument, the applicant’s contentions of inconsistency are in
essence as follows:
2
15.1. Messrs Lebaka and
Mokhwaso were arrested for transporting and loading baby napkins
without being authorised to do so, and
for being on the wrong route.
They were not disciplined;
15.2. Messrs Ramatloo and
Lekaba had on numerous occasions instructed drivers to do personal
errands for them, without authority.
They were not disciplined;
15.3. Mr Tsiane had an
accident with a vehicle without being in possession of the necessary
trip documentation. He further failed
to produce petrol slips,
despite being requested to do so by the supervisor. He also deviated
from a prescribed route. No disciplinary
action was taken against
him;
15.4. Mr Buthelezi was on
night duty and he took the vehicle home and only returned the same at
12 noon. He did not have the necessary
authority or documentation to
do so. He was not disciplined;
15.5. Mr Segooa travelled
with a vehicle of the third respondent to collect iron bars, and a
member of the public complained about
this. He further picks up his
wife on a daily basis in an ambulance without authority or documents.
He was not disciplined;
15.6. Mr Mofokeng was in
possession of a vehicle of the third respondent for three days
without reporting his whereabouts. He was
charged, but not dismissed.
[16] The second
respondent subsequently dismissed the applicant’s claim,
rejecting the applicant’s contentions of inconsistency,
for the
reasons as will be dealt with below, giving rise to these
proceedings.
The relevant test for
review
[17] In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
3
Navsa AJ held that
in the light of the constitutional requirement (in s 33 (1) of the
Constitution) that everyone has the right
to administrative action
that is lawful, reasonable and procedurally fair, ‘the
reasonableness standard should now suffuse
s 145 of the LRA’.
The majority of the Constitutional Court set the threshold test for
the reasonableness of an award or
ruling as the following: ‘Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?’
[18] In
CUSA
v Tao Ying Metal Industries and Others,
4
O'Regan J held: ‘It
is clear... that a commissioner is obliged to apply his or her mind
to the issues in a case. Commissioners
who do not do so are not
acting lawfully and/or reasonably and their decisions will constitute
a breach of the right to administrative
justice.’
[19] The
Labour
Appeal Court had the occasion to fully ventilate the issue again in
Herholdt
v Nedbank Ltd.
5
In this judgment, the
Court
concluded:
6
‘…
Where
a commissioner fails to have regard to material facts, this will
constitute a gross irregularity in the conduct of the arbitration
proceedings because the commissioner would have unreasonably failed
to perform his or her mandate and thereby have prevented the
aggrieved party from having its case fully and fairly determined.
Proper consideration of all the relevant and material facts and
issues is indispensable to a reasonable decision and if a decision
maker fails to take account of a relevant factor which he or
she is
bound to consider, the resulting decision will not be reasonable in a
dialectical sense. Likewise, where a commissioner
does not apply his
or her mind to the issues in a case the decision will not be
reasonable…
…
.
Whether or not an arbitration award or decision or finding of a
commissioner is reasonable must be determined objectively with
due
regard to all the evidence that was before him or her and what the
issues were. There is no requirement that the commissioner
must have
deprived the aggrieved party of a fair trial by misconceiving the
whole nature of enquiry. 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
recognizes that
dialectical and substantive reasonableness are intrinsically
interlinked and that latent process irregularities
carry the inherent
risk of causing an unreasonable substantive outcome.’
[20] The judgment in
Herholdt
v Nedbank Ltd
is
in any event in line with what Labour Appeal Court had earlier said
in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
7
when specifically
interpreting the
Sidumo
test. The Court held as
follows: ‘To this end a CCMA arbitration award is required to
be reasonable because, if it is not
reasonable, it fails to meet the
constitutional requirement that an administrative action must be
reasonable and, once it is not
reasonable, it can be reviewed and set
aside.’
[21] As the Labour Appeal
Court in
Herholdt
v Nedbank Ltd
referred
with approval to the judgment in
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others,
8
reference is made to the
following extract from such judgment, where it was held as follows:
‘
In
summary, s 145 requires that the outcome of CCMA arbitration
proceedings (as represented by the commissioner's decision) must
fall
within a band of reasonableness, but this does not preclude this
court from scrutinizing the process in terms of which the
decision
was made. If a commissioner fails to take material evidence into
account, or has regard to evidence that is irrelevant,
or the
commissioner commits some other misconduct or a gross irregularity
during the proceedings under review and a party is likely
to be
prejudiced as a consequence, the commissioner's decision is liable to
be set aside regardless of the result of the proceedings
or whether
on the basis of the record of the proceedings, that result is
nonetheless capable of justification.’
[22] In
Lithotech
Manufacturing Cape - A Division of Bidpaper Plus (Pty) Ltd v
Statutory Council, Printing, Newspaper and Packaging Industries
and
Others,
9
the Court held:
‘
Even
where the reasoning of the arbitrator may be criticized, this in
itself does not render the award reviewable particularly where
the
ultimate result arrived at by the arbitrator is sustainable in the
light of the record. I must, however, qualify this statement
by
pointing out that there may be cases where, although the ultimate
conclusion reached by the commissioner or arbitrator is reasonable,
the reasoning adopted by the arbitrator or commissioner is so flawed
(even if the ultimate result is reasonable), that it cannot
be
concluded that the arbitrator duly exercised his or her functions as
an arbitrator by taking due consideration of matters that
are vital
to the dispute. In such circumstances the reviewing court may well be
inclined to review and set aside the award.’
[23] Against the above
principles and test, the award of the second respondent in this
instance must to be determined, especially
considering the grounds of
review as articulated by the applicant.
Merits of the review:
issue of inconsistency
[24] As referred to
above, the only issue the second respondent was actually called on to
determine was whether the applicant’s
dismissal was
substantively unfair based on the inconsistent application of
discipline by the third respondent. The existence of
the misconduct
was not in issue, and neither was procedural fairness.
[25] The fact is that
what must be determined in this matter is an application to review a
determination by a bargaining council
arbitrator. This must be done
by way of the application of the review test as defined above. It is
therefore important to consider
the actual reasoning of the second
respondent, as embodied in the award of the second respondent.
[26] The substance of the
conclusion of the second respondent on the issue he was required to
determine is as follows:
10
26.1. The second
respondent recorded that the applicant accepted his guilt on the
charges and specifically records that the applicant
“mentioned”
a number of incidents which the applicant claimed supported his
contentions of inconsistency. In this regard,
the second respondent
was clearly referring to the applicant’s own heads of argument,
and properly so;
26.2. The second
respondent found that “Except to merely mention these
incidences no supportive evidence was placed before
me. It is my view
that the Applicant needed more that to merely mention these
incidences.” The second respondent also stated
there was no
“concrete evidence” before him on this issue;
26.3. The second
respondent held that the applicant’s averments that other
employees who committed similar acts of misconduct
went unpunished
are unsubstantiated;
26.4. The second
respondent went further and concluded that even if it were to be
accepted that other employees who committed similar
acts of
misconduct in the past went unpunished does not in itself mean that
other employees who committed similar misconduct later
should not be
punished;
26.5. The second
respondent then considered the nature of the applicant’s
misconduct, his position in the third respondent,
his complete lack
of proper explanation for what he did and the trust relationship;
26.6. On the basis of the
above, the applicant’s dismissal was upheld by the second
respondent.
[27] Before dealing with
the relevant principles of law relating to inconsistency, it is
important to determine what exactly the
evidence was before the
second respondent with regard to the issue of inconsistency he was
required to determine. The fact of the
matter is that there was no
evidence in this regard before the second respondent. There was no
substantiating testimony, no supporting
documents, and a complete
lack of particularity. It is undisputed that the only reference to
inconsistency before the second respondent
is contained in the heads
of argument the applicant submitted to the second respondent. The
first and most immediate problem with
this is that heads of argument
do not constitute evidence. In this instance, the parties never
agreed to dispense with evidence
or that the heads of argument could
be considered as evidence. If this was the agreement, the parties
would have to have had specifically
recorded this.
11
The heads of argument in
this matter remained exactly what they are, which is just written
submissions by the parties which in this
case were without any
substantiating evidence. The applicant was at all relevant times
legally represented in the arbitration,
and should thus have
appreciated the consequences of the decision not to lead evidence.
The second respondent’s conclusion
that there no “concrete”
evidence before him on the issue of inconsistency is therefore not
only reasonable, but actually
correct.
[28] Mr Makhafola
contended that because the issues of inconsistency were raised in the
applicant’s heads of argument, and
these heads of argument were
served on the third respondent, the fact that the third respondent
then did not dispute or contradict
the same would mean that such
contention in the heads of argument be accepted as evidence. There
are a number of difficulties with
this contention. The first is that
for the heads of argument of the applicant to be accepted as evidence
in the first place, there
has to be an agreement to that effect from
the third respondent. Such an agreement cannot come about tacitly,
especially considering
that the third respondent was never asked to
so agree. The fact is that the only agreement recorded to exist, on
the review record
in this matter, is an agreement to only submit
heads of argument on a specified date. Secondly, the heads of
argument in this matter
were not exchanged, meaning that no provision
was made for a first submission by the applicant, then an answer and
then a reply.
Both parties simply filed their heads of argument
directly with the second respondent. There was no provision made for
contradiction
of each other’s submissions. The third respondent
thus simply cannot be blamed and suffer the consequences contended by
Mr
Makhafola, in this instance. By way of comparison to the contrary,
and what the applicant would needed to have shown for the argument
of
Mr Makhafola to be sustainable, reference is made to
SA
Police Service v Safety and Security Sectoral Bargaining Council and
Others
12
where
it was held as follows:
‘
It
is true that in this instance neither party led oral evidence as such
on the issue of whether or not the employer acted consistently
when
imposing sanctions in cases of this nature. In this regard, the
employer failed to introduce the promised evidence of how
previous
cases had been dealt with in Gauteng province. It is noteworthy that
there was an interval of several months between the
first and second
days of the arbitration hearing which ought to have afforded the
applicant more than ample opportunity to obtain
evidence in support
of its claim of having a consistent policy in such cases.’
There was no promise by
the third respondent to produce any evidence about inconsistency. The
third respondent was never called
on to do so. There was no actual
opportunity for the third respondent to produce such evidence. The
third respondent was also not
even confronted with particulars of the
inconsistency allegations
beforehand
. Therefore, and once
again, I conclude that the heads of argument before the second
respondent cannot constitute evidence in this
instance, despite the
contention of Mr Makhafola.
[29] Mr S M Shaba,
representing the third respondent, contended that the applicant had
the evidentiary burden to at least prove
a prima facie case of
inconsistency, before the third respondent could be expected to
answer the same. Mr Shaba stated that in
this instance, the applicant
failed to even provide prima facie evidence to establish
inconsistency and consequently the third
respondent had nothing to
answer. Mr Shaba stated that the applicant should have led evidence,
and only has himself to blame for
not doing so. I agree with these
submissions of Mr Shaba. The applicant had to at least have provided
a prima facie evidentiary
platform to support his contentions of
inconsistency. As was said in
SA
Municipal Workers Union on behalf of Abrahams and Others v City Of
Cape Town and Others:
13
‘
This
situation is, in my view, akin to the question of inconsistency where
an employee alleges inconsistency. The employee must
show the basis
thereof, for example he must reveal the name of the concerned
employee and also the circumstances of the case. This
is necessary
for the employer to respond properly to the allegation. Failure to do
so may lead to a finding that no inconsistency
exists or was
committed by the employer. This situation never shifts the onus from
the employer to the employee to prove that there
is no consistency.’
[30] In
Comed
Health CC v National Bargaining Council for the Chemical Industry and
Others
14
the Court said the
following:
‘
It
is trite that the employee who seeks to rely on the parity principle
as an aspect of challenging the fairness of his or her dismissal
has
the duty to put sufficient information before the employer to afford
it (the employer) the opportunity to respond effectively
to the
allegation that it applied discipline in an inconsistent manner. One
of the essential pieces of information which the employee
who alleges
inconsistency has to put forward concerns the details of the
employees who he or she alleges have received preferential
treatment
in relation to the discipline that the employer may have meted out.’
[31] As the second
respondent in my view correctly stated, for the applicant to “merely
mention” these alleged instances
of inconsistency, which is
exactly all the applicant did, is insufficient. I am therefore of the
view that the applicant did not
discharge the evidentiary burden that
rested on him to provide at least prima facie evidence to show the
existence of inconsistency,
in the proceedings before the second
respondent, and which would have put the duty on the third respondent
to answer the same.
On this basis alone, the applicant’s
application must fail.
[32] Despite the fact
that I am of the view that the applicant failed to substantiate a
case before the second respondent of inconsistency
on the facts, I
will nonetheless deal with the inconsistency case of the applicant on
the heads of argument submitted to the second
respondent as they
stand, assuming what the applicant said in the aforesaid heads of
argument before the third respondent is true.
[33] Firstly, as to the
relevant legal principles at stake, the principle of inconsistency is
also referred to in law as the so-called
“parity principle”.
The judgment in
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd,
15
aptly determined the
principles applicable, as follows:
‘
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' (as to which see eg Grogan Workplace Law (4 ed) at
145 and Le Roux and Van Niekerk The SA Law of Unfair
Dismissal at
110). There is really no separate 'principle' involved. Consistency
is simply an element of disciplinary fairness
(M S M Brassey 'The
Dismissal of Strikers' (1990) 11 ILJ 213 at 229). Every employee must
be measured by the same standards (
Reckitt
and Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union and
others
(1991) 12 ILJ 806 (LAC) at 813H-I). Discipline must not be
capricious. It is really the perception of bias inherent in selective
discipline which makes it unfair. Where, however, one is faced with a
large number of offending employees, 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
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 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.’
[34] In my view, the
ratio in the judgment in
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd
is
clear. The following principles apply to the determination of the
issue of inconsistency so as to ensure inconsistency is not
found to
exist in the case of dismissal of employees: (1) Employees must be
measured against the same standards (like for like
comparison); (2)
The chairperson of the disciplinary enquiry
must
conscientiously and honestly determine the misconduct;
(3) The decision by the
employer not to dismiss other employees involved in the same
misconduct must not be capricious, or induced
by improper motives or
by a discriminating management policy (this conduct must be bona
fide); (4) A value judgment must always
be exercised.
[35] In
Minister
of Correctional Services v Mthembu NO and Others,
16
it was found as follows:
‘
The
consideration of consistency of equality of treatment (the so-called
parity principle) is an element of disciplinary fairness....
When
an employer has in the past, as a matter of practice, not dismissed
employees or imposed a specific sanction for contravention
of a
specific disciplinary rule, unfairness flows from the employee's
state of mind, ie the employees concerned were unaware that
they
would be dismissed for the offence in question.
When
two or more employees engaged in the same or similar conduct at more
or less the same time but only one or some of them are
disciplined or
where different penalties are imposed, unfairness flows from the
principle that like cases should, in fairness,
be treated alike.
However,
as
stated by Conradie JA in the
Irvin
and Johnson
case at 2313C-J,
the
principle of consistency should not be applied rigidly....
…
.Consistency
is therefore not a rule unto itself, but rather an element of
fairness that must be determined in the circumstances
of each
case....’
[36] In
SRV
Mill Services (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
17
the Court said:
‘
The
general requirement that there should be parity of treatment in a
disciplinary context is well established. See for instance
National
Union of Metalworkers of SA and others v Henred Fruehauf Trailers
(Pty) Ltd
[1994] ZASCA 153
;
1995 (4) SA 456
(A) at 463G-J; (1994) 15 ILJ 1257 (A). That has gone
hand in hand with the recognition that differing circumstances may
warrant
different outcomes in respect of particular employees. See
NUM
v Amcoal Collieries and Industrial Operations Ltd
(1992) 13 ILJ 1449 (LAC) at 1452I-1453B....
An
important feature of these passages is that they reassert the primacy
of the criterion of fairness, this being a value judgment
to be
exercised on the facts of the particular case that presents itself
for decision....
As
is clear from these passages, it is not part of the law on
consistency that bias or ulterior purpose must be established before
a disciplinary outcome can be said to be inconsistent to the point
that it impacts on the requirement of fairness. One of the reasons
underlying the need for consistency is that the perception of bias
should be avoided....
Ultimately,
questions of fairness and, perhaps particularly, issues of
inconsistency require the exercise of a value judgment.’
[37] In
Consani
Engineering (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others,
18
it was held as follows:
‘
The
requirement of consistency is not a hard and fast rule. It is
something to be kept in mind as an aspect of disciplinary fairness.
Flexibility in adapting to a changing environment is equally
important. Shifts in policy inevitably introduce standards not
consonant
with past practices. The applicant's change in policy to
one of zero tolerance hence can be fairly regarded as a legitimate
modification
of the operational means for protecting the company from
ongoing stock losses. Any ensuing element of inconsistency cannot be
considered
arbitrary or in bad faith in the circumstances.’
[38] Of relevance to the
current matter, the Court in
Chemical
Energy Paper Printing Wood and Allied Workers Union v National
Bargaining Council for the Chemical Industry and Others
19
concluded:
‘
An
employer can only be accused of selective application of discipline
if, having evidence against a number of individual employees,
it
arbitrarily
selects
only few to face disciplinary action.’ (emphasis added)
The Court then
specifically referred to the passage from the
Irvin
and Johnsson
judgment
referred to above, and concluded that:
20
‘
Hence,
where a number of employees is dismissed consequent upon collective
wrongful conduct, a wrong decision by the employer resulting
in an
acquittal of an employee who did commit the wrong can only be unfair
if it is a result of some discriminatory management
policy.’
[39] Two more recent
judgments of the Labour Court, which were both review applications
where the Court was specifically dealing
with the principle of
inconsistency per se, after the judgment in
Sidumo
,
are of importance. In both these judgments, the awards of arbitrators
which found inconsistency to exist was actually reviewed
and set
aside by the Labour Court. Firstly, in
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others
21
the Court held as
follows:
‘
It
is evidently clear from the ratio of
Irvin
and Johnson
that when deciding the issue of parity, the gravity of the misconduct
of the employee who seeks to rely on that principle should
receive
serious attention.
In
this case as indicated earlier the employee was found guilty of a
serious offence of dishonesty and dismissed, whereas Mr Cassim
was
found guilty of a lesser charge of failing to follow company
policy....
…
Thus,
even on the employee's own version the offence committed by Mr Cassim
was not only different but also of a less serious nature
than that
committed by her.
Turning
to the issue of the seriousness of the offence, the presence of
dishonesty tilts the scales to an extent that even the strongest
mitigating factors, like long service and a clean record of
discipline are likely to have minimal impact on the sanction to be
imposed. In other words whatever the amount of mitigation, the
relationship is unlikely to be restored once dishonesty has been
established in particular in a case where the employee shows no
remorse. The reason for this is that there is a high premium placed
on honesty because conduct that involves corruption by the employees
damages the trust relationship which underpins the essence
of the
employment relationship.’
[40] The second judgment
is
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others,
22
where the Court said the
following:
‘
The
courts have distinguished two forms of inconsistency - historical and
contemporaneous inconsistency. The former requires that
an employer
apply the penalty of dismissal consistently with the way in which the
penalty has been applied to other employees in
the past; the latter
requires that the penalty be applied consistently as between two or
more employees who commit the same misconduct.
A
claim of inconsistency (in either historical or contemporaneous
terms) must satisfy a subjective element - an inconsistency challenge
will fail where the employer did not know of the misconduct allegedly
committed by the employee used as a comparator (see, for
example,
Gcwensha v CCMA and Others
[2006] 3 BLLR 234
(LAC) at paras
37-38). The objective element of the test to be applied is a
comparator in the form of a similarly circumstanced
employee
subjected to different treatment, usually in the form of a
disciplinary penalty less severe than that imposed on the claimant.
(See
Shoprite Checkers (Pty) Ltd v CCMA and Others
[2001] 7
BLLR 840
(LC) at para 3). Similarity of circumstance is inevitably
the most controversial component of this test. An inconsistency
challenge
will fail where the employer is able to differentiate
between employees who have committed similar transgressions on the
basis
of inter alia differences in personal circumstances, the
severity of the misconduct or on the basis of other material factors.
Further,
the Labour Appeal Court has held that employees cannot profit from an
employer's manifestly wrong decision in the name
of inconsistency.’
[41] Also of relevance to
the current matter is the recent judgment in
Mphigalale
v Safety and Security Sectoral Bargaining Council and Others
,
and the following extract from the judgment is apposite:
23
‘
The
evidence before the commissioner was that the chairperson's decision
in respect of the two previous instances of corruption
by police
officers had been made in error. Applying the judgment in
SACCAWU
,
the SAPS is not required to repeat a decision made in error or one
which is patently wrong. This is all the more so given the
nature of
the misconduct committed. In
S
v Shaik and Others
the Constitutional Court warned that corruption is 'antithetical to
the founding values of our constitutional order'. Similarly,
in
SA
Association of Personal Injury Lawyers v Heath and others
[2000] ZACC 22
;
2001
(1) SA 883
(CC) this court held that: '[C]orruption and
maladministration are inconsistent with the rule of law and the
fundamental values
of our Constitution. They undermine the
constitutional commitment to human dignity, the achievement of
equality and the advancement
of human rights and freedoms. They are
the antithesis of the open, accountable, democratic government
required by the Constitution.
If allowed to go unchecked and
unpunished they will pose a serious threat to our democratic State.’
[42] In applying the
above principles to the current matter, accepting what is stated in
the applicant’s heads of argument
in the arbitration is true as
it stands, the applicant simply did not make out a case of
inconsistency in law. The second respondent
was alive to this as
well, and as stated above, specifically made a determination to this
effect. There is no contention by the
applicant or case made out by
the applicant that discipline was not conscientiously and honestly
applied and there were improper
motives or capricious behaviour on
the part of the third respondent. There certainly was no
discriminating policy. The fact is
that even if the third respondent
was wrong in not disciplining the other employees referred to, there
was no case or evidence
that the third respondent was still not
acting bona fide vis-à-vis the applicant. There is simply no
case or reason why
the applicant should profit from any such failure
on the part of the third respondent, should it even exist. Given also
the complete
absence of any factual particularity in respect of the
other employees referred to, it cannot even safely be said that the
misconduct
of the applicant is readily comparable to the other
employees mentioned. Most certainly, there is no case made out or
reference
made to the fact that responsible management at the third
respondent was actually aware of the misconduct by the other
employees
referred to. There was also no case of arbitrary or
subjective selection by the third respondent not to discipline the
employees
referred to, but only the applicant. Therefore, and in
terms of the relevant provisions of law, the applicant’s
inconsistency
challenge has to fail, even as it stood in the heads of
argument.
[43] This then leaves the
final issue of the value judgment to be exercised, as part of the
principles relating to inconsistency
when it comes to the dismissal
of employees. In this regard, the relevant issues are that the
applicant never showed any genuine
remorse and persisted with what
were entirely unacceptable and unreasonable explanations for his
misconduct. Furthermore, the misconduct
of the applicant clearly
related to offences of dishonesty. As to the absence of any remorse
in this instance, reference is made
to the
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others:
24
‘
This
brings me to remorse. It would in my view be difficult for an
employer to re employ an employee who has shown no remorse.
Acknowledgment of wrongdoing is the first step towards
rehabilitation. In the absence of a recommitment to the employer's
workplace
values, an employee cannot hope to re establish the
trust which he himself has broken. Where, as in this case, an
employee,
over and above having committed an act of dishonesty,
falsely denies having done so, an employer would, particularly where
a high
degree of trust is reposed in an employee, be legitimately
entitled to say to itself that the risk of continuing to employ the
offender is unacceptably great.’
[44] Considering the
nature of the misconduct of the applicant, his dismissal per se was
justified. Mr Makhafola for the applicant
conceded this to be the
case. In
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others,
25
it was held:
‘
The
general principle that conduct on the part of an employee which is
incompatible with the trust and confidence necessary for
the
continuation of an employee relationship will entitle the employer to
bring it to an end is a long-established one. See
Council
for Scientific and Industrial Research v Fijen
(1996)
17 ILJ 18 (A)
at
26E-G.’
[45]
In
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration
and
Others
,
26
the Court held as
follows, which in my view is quite apposite to the current matter:
‘
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 of a minor
theft; it has everything to do with the
operational requirements of
the employer's enterprise.’
[46] The applicant
clearly did not act with the necessary fiduciary duty, as required by
law, especially having regard to his position,
status and seniority,
and the interests of the employer (third respondent) he was required
to serve. Once again, the second respondent
was alive to this, and
specifically mentioned the same in his award. In this respect,
reference is made to
Sappi
Novoboard (Pty) Ltd v Bolleurs,
27
where it was held as
follows:
‘
It
is an implied term of the contract of employment that the employee
will act with good faith towards his employer and that he
will serve
his employer honestly and faithfully:
Pearce
v Foster and Others
(1886) QB 356
at 359;
Robb
v Green
(1895) 2 QB 1
at 10;
Robb
v Green
(1895) 2 QB 315
(CA) at 317;
Gerry
Bouwer Motors (Pty) Ltd v Preller
1940
TPD 130
at 133;
Premier
Medical and Industrial Equipment Ltd v Winkler and Others
1971 (3) SA 866
(W) at 867H. The relationship between employer and
employee has been described as a confidential one (
Robb
v Green
at 319). The duty which an employee owes his employer is a fiduciary
one 'which involves an obligation not to work against his
master's
interests' (
Premier
Medical and Industrial Equipment Ltd v Winkler
at 867H;
Jones
v East Rand Extension Gold Mining Co Ltd
1917 TH 325
at 334). If an employee does 'anything incompatible with
the due or faithful discharge of his duty to his master, the latter
has
a right to dismiss him':
Pearce
v Foster
at 359. In
Gerry
Bouwer Motors (Pty) Ltd v Preller
it was said at 133: 'I do not think it can be contended that where a
servant is guilty of conduct inconsistent with good faith
and
fidelity and which amounts to unfaithfulness and dishonesty towards
his employer the latter is not entitled to dismiss him.’
[47] Similarly, reference
is made
Carter
v Value Truck Rental (Pty) Ltd
28
where the Court held as
follows:
‘
It
is trite that, both at common law and under the equitable
dispensation created by the LRA, the employment relationship is
regarded
as one of the highest good faith:
Council
for Scientific
and
Industrial
Research v Fijen
(1996) 17 ILJ 18 (A) at 26B-F;
Standard
Bank of SA Ltd v Commission for Conciliation, Mediation
and
Arbitration
and
O
thers
(1998) 19 ILJ 903 (LC) at 913E-H;
Sappi
Novoboard (Pty) Ltd v Bolleurs
(1998) 19 ILJ 784 (LAC) at para 7 and the copious authorities there
cited. The success of any enterprise depends on the absolute
integrity and honesty of its employees, and any form of dishonesty or
deception potentially may have more serious and far-reaching
consequences at executive level: see, for example,
JD
Group Ltd v De Beer
(1996) 17 ILJ 1103 (LAC) at 1112-13. 'Honesty' in the employment
context does not merely mean refraining from criminal acts; it
embraces any conduct which involves deceit.’
[48] Clearly, therefore,
the third respondent was entitled to dismiss the applicant, and such
dismissal was substantively fair.
The second respondent’s
conclusion to this effect was thus reasonable and justified, and
there is no basis to review and
set aside this conclusion.
29
Conclusion
[49] Therefore, and in
conclusion, there is simply no basis to review and set aside the
award of the second respondent, and I uphold
the same.
[50] In dealing with the
issue of costs, both parties in their heads of argument ask for an
award of costs. No submissions were
made to the contrary in Court. I
was also asked to determine the issue of costs reserved by Soni AJ in
respect of proceedings on
15 April 2009, and in this regard I was
informed by the parties that I just needed to refer to the Court
file. From the file, and
the Order of Soni AJ, it appears that the
proceedings on 15 April 2009 concerned an Order to compel the first
and second respondents
to file the record of the proceedings.
Considering the nature of this matter and the fact that no evidence
was actually led before
second respondent as set out above, a record
was not really necessary in this matter. Considering all of the
above, I can see no
reason why costs should not follow the result in
this matter, save for the proceedings on 15 April 2009, in respect of
which I
intend to make no order as to costs.
Order
[51] In the premises, I
make the following order:
51.1 The applicant’s
review application is dismissed.
51.2 The applicant is
ordered to pay the costs of the application, save for the proceedings
on 15 April 2009, in respect of which
there is no order made as to
costs.
______________
Snyman AJ
APPEARANCES:
For the Applicant: Mr S
Makhafola of Makhafola & Verster Inc
For the Third Respondent:
Adv S M Shaba
Instructed by: The State
Attorney
1
66
of 1995.
2
Record
page 34 – 36.
3
(2007)
28 ILJ 2405 (CC) paras 106 and 110.
4
(2008)
29 ILJ 2461 (CC)
at
para 84.
5
(2012)
33 ILJ 1789 (LAC).
6
Id
at paras 36 and 39.
7
(2008)
29 ILJ 964 (LAC) at para 92.
8
(2010)
31 ILJ 452 (LC) at para 17.
9
(2010)
31 ILJ 1425 (LC) at para 18.
10
See
Record page 47.
11
See
Shoredits Construction (Pty) Ltd v Pienaar No and Others
(1995)
16 ILJ 390 (LAC);
National Union of Metalworkers of SA and Others
v Driveline Technologies (Pty) Ltd and Another
(2000) 21 ILJ 142
(LAC);
SA Commercial Catering and Allied Workers Union and Others
v Sun International SA Ltd (A Division of Kersaf Investments Ltd)
(2003) 24 ILJ 594 (LC).
12
(2011)
32 ILJ 715 (LC) at para
11.
13
(2011)
32 ILJ 3018 (LC) para 50. See also
Minister of Correctional
Services v Mthembu No and Others
(2006) 27 ILJ 2114 (LC) at para
13 where it was said: ‘The third respondent placed in issue
the fairness of the decision
to dismiss him and pertinently raised
the issue of consistency. He established a basis therefor by
presenting evidence with sufficient
particularity in order to have
enabled the applicant to deal therewith. Faced with a challenge to
the consistency of the applicant's
treatment of employees, the
applicant, who bore the onus of proving the fairness of the
dismissal (s 192(2) of the Act), elected
not to place any evidence
before the first respondent demonstrating that there was no
inconsistent disciplining of employees.’
14
(2012)
33 ILJ 623 (LC) at para 10.
15
(1999)
20 ILJ 2302 (LAC) at para 29.
16
Above
n13 at paras 8 – 9.
17
(2004)
25 ILJ 135 (LC) at paras 18; 23; 26; 31.
18
(2004)
25 ILJ 1707 (LC) at para 19.
19
(2010)
31 ILJ 2836 (LAC) para 20.
20
Id
at para 21.
21
(2008)
29 ILJ 1180 (LC) at paras 36; 40; 41 and 42.
22
Above
n8
at paras 10–11.
23
(2012)
33 ILJ 1464 (LC) at para 22.
24
(2000)
21 ILJ 1051 (LAC) at para 25.
25
(2010)
31 ILJ 2475 (LC) at para 23.
26
[2000]
9 BLLR 995
(LAC) at para 22.
27
(1998)
19 ILJ 784 (LAC) at para 7.
28
(2005)
26 ILJ 711 (SE) at para 44.
29
See
in this regard also what the Court said in
Mphigalale v
Safety and Security Sectoral Bargaining Council and Others (supra)
at para 25 in circumstances comparable to the
current matter.