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[2014] ZALCJHB 11
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Molatudi v Sikwane NO and Others (JR3289/11) [2014] ZALCJHB 11 (24 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
No: JR 3289/11
In
the matter between:
ADELAIDE
NTSAKO
MOLATUDI
.............................................................
...... .....
Applicant
and
LERATO
SIKWANE,
N.O.
..........................................................................
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
..................
...........
Second
Respondent
AND
ARBITRATION
PICK
‘N PAY
PHARMACIES
...................................................................
Third
Respondent
Heard: 11
July 2013
Delivered:
24 January 2014
Summary:
Review application- application of discipline; fact that employees
faced the same charge but with different outcomes does
not
necessarily demonstrate inconsistent application of discipline; when
appropriate to remit an award for the giving of reasons
for
compensation by a commissioner
JUDGMENT
MOOKI,AJ
[1]
The Third Respondent employed the Applicant as a pharmacist. The
Applicant was charged with “conniving and/or colluded
(sic) to
steal from the company” and “theft”. She was found
guilty during the domestic hearing and referred the
matter to the
CCMA, alleging unfair dismissal.
[2]
The second respondent (“the Commissioner”) found her
dismissal to be procedurally unfair but substantively fair,
and
granted her compensation in the amount R48 000, 00. The applicant
seeks to have the award reviewed and set aside on a number
of
grounds.
[3]
Mr Sihlali, appearing for the Applicant, indicated to the court when
the matter came for argument that the review was confined
to two
bases; namely the issue of compensation and the Commissioner’s
handling of proceedings regarding attempts by the Applicant
to
cross-examine a witness for the Third Respondent on the issue of
consistency.
[4]
The issue of consistency was said to pertain to the manner in which
the Third Respondent treated Elizabeth Phage, who was charged
at the
same time as the Applicant. The complaint in respect of the
compensation amount was that the Commissioner failed to take
the
circumstances of the applicant into account in granting compensation.
[5]
Mr Sihlali submitted that oral evidence could have proved that there
was indeed inconsistency on the part of the Third Respondent
had the
Commissioner allowed the Applicant to cross-examine Ms Jarvis, a
witness for the Third Respondent. In addition, Mr Sihlali
submitted
that the evidence by Ms Jarvis on the issue of inconsistency could
have changed the circumstances of the award in that
the applicant
could have received a lesser sanction.
[6]
It was submitted on behalf of the Third Respondent that the point on
consistency was not a good one for a number of reasons;
including
that the circumstances pertaining to the charge against the Applicant
and Elizabeth Phage differed on material respects
and as such the
issue of consistency did not arise. I consider these submissions
below.
[7]
The Commissioner concluded that the Applicant failed to make a case
for inconsistency. The Commissioner found that the Applicant
did not
place a record of proceedings in the disciplinary hearing of
Elizabeth Phage before the tribunal. That, according to the
Commissioner, would have laid a proper basis for the Commissioner
considering whether or not there was inconsistent treatment on
the
part of the Third Respondent.
[8]
It bears noting that the Applicant does not, in her review papers,
nor in submissions made to the court during the hearing of
the
application, take issue with the finding in the arbitration that she
committed the theft and connived as set out in the allegations
against her. In particular, the Applicant does not take issue with
the Commissioner’s conclusion that there was overwhelming
evidence that the Applicant intended to steal the medicine in
question and succeeded in doing so. The Commissioner determined that
that finding rendered the dismissal substantively fair.
[9]
The Commissioner’s finding on the dismissal being substantively
fair was not challenged in any meaningful manner. No submissions
were
made on behalf of the Applicant that there was no basis for the
Commissioner to have made the determination referred to above.
[10]
The finding by the Commissioner that the Applicant stole the
medication cannot be faulted. The evidence on behalf of the Third
Respondent, particularly by Mr Sagie Chetty, was overwhelming. That
evidence, even if the evidence based on the recorded conversation
that was disputed by the applicant were to be excluded, justified the
Commissioner’s finding that the Applicant stole the
medication.
[11]
The Commissioner rejected the Applicant’s contention that her
dismissal was substantively unfair because the Third Respondent
had
been inconsistent in its application of discipline. This was on the
basis, according to the Commissioner, that the Applicant
failed to
prove that she and Elizabeth were charged with the same misconduct;
that the Applicant failed to submit the nature of
charges against
Elizabeth, or submit the minutes of the disciplinary proceedings
against Elizabeth.
[12]
Mr Sihlali directed his primary attack on the award on the finding by
the Commissioner on the issue of consistency. Mr Viljoen,
one of the
witnesses on behalf of the Third Respondent, drew the charges against
both the Applicant and Elizabeth Phage (each of
whom was put through
a separate disciplinary hearing). Mr Viljoen conceded that the
Applicant and Elizabeth Phage faced the same
charges.
[13]
The Applicant gave evidence that she was found guilty and dismissed,
but that Elizabeth Phage was found guilty and given a
choice of
suspension without pay or a dismissal. Elizabeth chose suspension.
[14]
There is no suggestion that the same evidence was given in
disciplinary proceedings against the Applicant and in the
disciplinary
hearing concerning Elizabeth Phage. The Applicant did
not allege that the evidence in her proceedings was the same as that
in the
proceedings concerning Elizabeth Phage. In addition, there was
no evidence on whether or not Elizabeth Phage was found to have
colluded to steal or that she committed theft. It bears pointing out
that the Applicant emphasized the issue of the similarity of
the
charges as the basis for her inconsistency complaint.
[15]
The Third Respondent led evidence in the disciplinary hearing of the
Applicant that the Applicant was found in possession of
medication.
This followed a tipoff that the Applicant tried to leave her
workplace with unpaid for medication. This was on 14 October
2010.
That tipoff was related to Mr Sagie Chetty. Mr Chetty advised the
security personnel at the check-out booth that the Applicant
was
thought to be attempting to leave the premises without having paid
for medication and that the Applicant should be searched
and brought
to Mr Chetty’s office.
[16]
The Applicant had a paper bag with a receipt stapled to it when she
was taken to Mr Chetty’s office. He sought the applicant’s
permission to open the paper bag. The applicant agreed. Mr Chetty
observed that there was no pay slip for the medication. In addition,
there was no prescription for the medication. The Applicant told Mr
Chetty that the Applicant would bring the prescription the
following
day (i.e. 15 October 2010). Mr Chetty made a list of the medication
in the bag and got the Applicant to sign for the
medication. He then
allowed the Applicant to leave the premises with the medication.
[17]
The Applicant told Mr Chetty that she required the medication
urgently for her baby. Mr Chetty telephoned a fellow employee
regarding the incident and they arranged to meet the following day
(i.e. 15 October 2010). The meeting took place. The applicant
gave Mr Chetty the prescription for the medication on 15 October
2010.
[18]
The Applicant denied meeting Mr Chetty either on 14 or 15
October 2010. The Commissioner pointed out however, that this
could
not be truthful because a minute of the domestic hearing, which was
introduced by the Applicant in the arbitration, reflects
an exchange
between the Applicant and Mr Chetty. The Commissioner was justified
in rejecting the Applicant’s denial.
[19]
The above account illustrates that the mere fact that the two
employees faced the same charges but had different outcomes does
not
mean that there was inconsistent application of discipline. The
Applicant did not contend that Elizabeth was found in possession
of
unpaid for medication in the same manner as the Applicant.
[20]
It does not follow that there is inconsistent application of
discipline when there are different outcomes in respect of employees
who faced the same charges. 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.
[1]
[21]
There was no evidence before the Commissioner about the disciplinary
proceedings regarding Elizabeth Phage. It is not axiomatic
that the
mere fact that the Applicant and Elizabeth faced the same charges
would result in the same outcome. I conclude that the
Commissioner
cannot be faulted for requesting, at least, some type of evidentiary
material upon which he could test the claim on
whether or not there
was a basis for the inconsistency challenge.
[22]
Mr Viljoen conceded that the Applicant and Elizabeth faced the same
charges. That concession, in the light of the appropriate
application
of the law on inconsistent application of discipline, does not render
the award so defective as to warrant setting
it aside. At best for
the Applicant, and in accepting that Mrs Jarvis would have confirmed
that Elizabeth and the Applicant faced
the same charges, it does not
follow that the award is so defective as to be set aside. In this
regard, the Applicant did not lead
evidence that Elizabeth was found
in possession of medication; there was no evidence that there was
similarity of circumstance
as between the applicant and Elizabeth. It
bears repeating that a charge sheet does not constitute evidence of
the charges.
[23]
The Applicant was correct to complain about the manner in which the
Commissioner dealt with her attempts to cross-examine Ms
Jarvis on
the issue of consistency. I find, however, that the Applicant has not
shown that this error by the Commissioner renders
the award defective
in a material way. The Commissioner’s finding that the
Applicant’s dismissal was substantively
fair should not be
disturbed.
[24]
The Applicant raised three attacks concerning the Commissioner’s
finding on compensation, namely that the Commissioner
failed to take
the following into consideration:
24.1
The
Applicant’s length of service;
24.2
Whether
the Applicant had mitigated her losses by obtaining alternative
employment; and
24.3
The
availability of similar positions in the labour market.
[25]
The Applicant did not lead evidence during the arbitration on any of
the three grounds referred to above. The Commissioner
found that
compensation in the amount of R48000-,00, equivalent to the
Applicant’s salary of two months, to be “fair
and
equitable”. The Commissioner did not explain why that is the
case.
[26]
It was submitted on behalf of the Applicant that the Commissioner was
obliged, at a minimum, to give “brief reasons”
in
justifying the compensation amount and that a failure to do so
constitutes a reviewable misdirection. The Applicant relied on
the
decision in
Mohlakoana
v CCMA and Another
.
[2]
This decision was referred to in
Matjhabeng
Municipality v Mothupi NO and Others.
[3]
[27]
I point out that the award in
Matjhabeng
Municipality
was not set aside because the commissioner in that case had not given
reasons for the compensation. It was set aside because the
conduct of
the applicant did not amount to unfair discrimination.
[4]
[28]
Mohlakoana
is
distinguishable from the current application. The commissioner in
that case found the dismissal to be substantively unfair but
determined that the applicant be paid compensation equivalent to two
months' remuneration, declaring such compensation 'just and
equitable'. The court found that “The applicant, who contends
that the award of compensation was not just and equitable in
the
circumstances, was evidently mystified why the commissioner awarded
two months' compensation having found the dismissal substantively
unfair, particularly given the fact that already more than four
months had elapsed between the date of his dismissal and the date
of
the arbitration award being issued.”
[5]
[29]
The Commissioner in the present matter found the dismissal to be
substantively fair. The failure to give reasons for compensation
awarded by a commissioner is not per se a reviewable irregularity.
Absa
Brokers (Pty) Ltd v Moshoana NO and Others.
[6]
[30]
I agree that the Commissioner should ordinarily have given a fuller
account of why he granted compensation in the amount that
he did, as
opposed to merely stating that he found such compensation to be “fair
and equitable”. I disagree however,
that the finding is fatal
such that the court should interfere with the award on that account.
[31]
The case for the Applicant is essentially that she ought to have
received a greater amount in compensation and that the amount
of
compensation is so inadequate as to make it reviewable. It is correct
that another Commissioner may have awarded the Applicant
greater
compensation. It does not follow however, that the award in the case
of the Applicant was so unreasonable that no reasonable
commissioner
could have granted the same compensation.
[7]
Section 194 of the Act requires that compensation be just and
equitable in all the circumstances. There is nothing in the record
that justifies disturbing the discretion exercised by the
Commissioner in the compensation awarded to the Applicant.
[32]
The court in
Mohlakoana
remitted the matter to the commissioner for the commissioner to
reconsider his decision on an appropriate award of compensation,
after setting out his reasons for his original ruling of compensation
and after hearing any evidence the parties may lead which
is relevant
to the determination of an appropriate award of compensation.
[8]
The court indicated that it was following the approach in
Boxer
Superstores (Pty) Ltd v Zuma and andOthers
[9]
in remitting the award as indicated.
[33]
I regret that I do not consider
Boxer Superstores
to lay a
general rule in the manner suggested by the court in
Mohlakoana
.
The court in
Boxer
dealt with the failure by a commissioner to
give reasons in a particular context. Procedural unfairness was not
an issue in the
Boxer
decision. The commissioner in
Boxer
determined that he was unable to decide on the issue of the
substantive fairness of the dismissal. He however, awarded “minor
compensation” to the employee.
[34]
The failure by the commissioner in
Boxer
to make a finding on
the substantive fairness of the dismissal, meant that the employer
failed to discharge the onus. The Labour
Court found that the award
of compensation was incongruent with a finding that the employer
failed to discharge the onus on the
substantive fairness of the
dismissal. The Labour Court set the award aside and ordered
reinstatement as the only appropriate remedy.
[35]
The Labour Appeal Court found that the Labour Court was wrong to
conclude that reinstatement was the only remedy without taking
account of section 193(2). Reinstatement may well have been the
appropriate remedy but that the enquiry had to be done as
contemplated
in section 193 (2).
[10]
[36]
The court in
Boxer
found that the commissioner did not give reasons for awarding
compensation, notwithstanding, that the employer failed to discharge
the onus in relation to substantive dismissal.
[11]
[37]
The Labour Appeal Court upheld the appeal on two bases. First, that
there was no evidence upon which the Labour Court could
have ordered
reinstatement. Second, the commissioner did not give reasons why he
awarded compensation instead of granting reinstatement,
which is the
default position where an employer failed to discharge the onus for
the substantive fairness of a dismissal.
[12]
[38]
The “failure to give reasons” referred to in
Boxer
are reasons that the commissioner might have given to justify
granting compensation as opposed to reinstatement. The failure to
give reasons in
Mohlakoane
dealt with an entirely different
set of circumstances.
[39]
I am not inclined to follow the decision in
Mohlakoane
that
the matter be remitted for the Commissioner to give reasons why he
awarded compensation as set out in the award. That approach
is not
supported by the decision in
Boxer
.
[40]
It should be remembered that the Commissioner granted the Applicant
compensation because the Commissioner concluded that the
charges were
not explained to the Applicant. The Third Respondent does not
challenge this finding. I am mindful that this court
sits as a court
of review and not as an appellate tribunal. It is important to note,
however, that the finding by the Commissioner
on the issue of
procedural unfairness is not supported by the evidence.
[41]
The Commissioner found that the charges, as drawn, “were
fatally flawed in that they lacked particularities. The charge
does
not tell the date of the commission of the misconduct, what was
stolen and the applicant partner in crime. It is therefore
my finding
that the applicant’s dismissal was procedurally unfair only in
this instance”. The Commissioner, in making
the above
determination, did not take account of the evidence. He did not take
account of evidence by Mr Viljoen that Mr Viljoen
explained the
charge sheet to the Applicant when he served the applicant with the
charges. In addition, Mr Viljoen gave further
evidence that it was
clear that the applicant understood the charges against her.
[42]
The Applicant did not dispute Mr Viljoen’s evidence in the
arbitration. The Applicant’s protestation that she did
not know
the case that she had to answer is not borne by a fair examination of
the record of proceedings.
[43]
The Applicant had raised a number of other complaints in her
application. Those were not persisted with when the matter was
heard.
In any event, such complaints had no merit. The complaints included
that the Commissioner failed to take into account that
the Applicant
was unrepresented during the arbitration. The record of proceedings
shows that the Commissioner took note of the
fact that the Applicant
was unrepresented. It also bears noting that the Applicant, at the
commencement of the arbitration, advised
the Commissioner that she
would proceed without representation. The Commissioner was prepared
to postpone the arbitration to allow
her to secure the services of a
representative.
[44]
There is no warrant to disturb the award. I make the following
order:
1.
The
application is dismissed.
2.
There
is no order as to costs.
______________
Mooki
O
Acting
Judge of the Labour Court of South Africa
APPEARANCE
S:
APPLICANT:
Mr
C M Sihlali, Motlanthe Inc.
RESPONDENT:
Mr K Makapane (Attorney),
Bowman
Gilfillan Inc.
[1]
See, for example,
Cape
Town City Council v Masitho and Others
(2000) 21 ILJ 1957 (LAC) at para 13.
[2]
(2010) 31 ILJ
2688 (LC)
[3]
(2011) 32 ILJ
2154 (LC)
[4]
Para 70
[5]
Para 10
[6]
(2005)
26 ILJ 1652 (LAC) at paras 44 and 47,
Bezuidenhout
v Johnston NO and Others
(2006) 27 ILJ 2337 (LC);
[2006] 12 BLLR 1131
(LC) at paras 57-59
.
[7]
9
Sidumo
and another v Rustenburg Platinum Mines Ltd & others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[8]
Para 24
[9]
(2008) 29 ILJ
2680 (LAC)
[10]
Boxer, para 9
[11]
Boxer
para
11
[12]
Boxer, para 11