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[2015] ZALCJHB 176
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South African Municipal Workers Union and Others v Johannesburg Metropolitan Bus Services (Pty) Ltd and Others (JR 972/12) [2015] ZALCJHB 176 (3 June 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 972/12
DATE:
03 JUNE 2015
Not
Reportable
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
..............................................
First
Applicant
MASWANGANYI
MP
.................................................................................................
Second
Applicant
And
JOHANNESBURG
METROPOLITAN BUS
SERVICES
(PTY)
LTD
................................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
COMMISSIONER
N KESWA
NO
............................................................................
Third
Respondent
Delivered:
3 June 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an opposed application brought in terms of the provisions of
section 145 of the Labour Relations Act (The LRA) to review
and set
aside an award issued by the third respondent (Commissioner) under
case number GAJB28324-11 dated 2 December 2011.
[2]
In the award, the Commissioner found that the dismissal of the second
applicant (Maswanganyi) by the first respondent was substantively
fair. The applicants seek an order declaring the dismissal of
Maswanganyi to be substantively unfair to the date of his dismissal
without loss of benefits. In the alternative, the applicants seek an
order remitting the matter to the second respondent (CCMA)
for
arbitration before another commissioner.
The
application for condonation:
[3]
The application for review was filed on 23 April 2012, and was
therefore some three months outside of the statutory time limits.
The
first respondent did not oppose the application for condonation and
had merely in its written heads of argument, submitted
that the
lateness was excessive and that the explanation thereof was not
plausible or convincing. It nevertheless left the matter
in the hands
of the Court.
[4]
I have had regard to the averments contained in the founding
affidavit of Kidibone Makhura in respect of the condonation
applicant.
I accept that the extent of the delay in filing the main
application is indeed excessive. I have nevertheless accepted the
explanation
proffered for the delay. Further having considered other
factors related to such applications, I am satisfied that good cause
has
been shown, and that the late delivery of the review application
should be condoned.
Background to the
application:
[5]
The facts giving rise to the proceedings under review are not
contentious and I am satisfied with the factual background and
evidence as succinctly summarised by the Commissioner in her award. I
did not understand the parties to take issue with this summary.
The
only issues that are further common cause facts that need to be
re-stated are the following;
5.1 Maswanganyi was
employed as a bus driver with effect from June 2009. He was dismissed
on 1 August 2011 following a disciplinary
enquiry into allegations of
gross negligence for failing to issue 15 bus tickets to passengers
who had paid for their trips.
5.2 At the
arbitration proceedings, Maswanganyi had admitted that he had
committed the misconduct in question. The only issue he
had disputed
was whether the first respondent had consistently applied the
sanction of dismissal in the light of other similar
transgressors not
having been dismissed in the past.
The grounds of
review:
[6]
The applicants’ main two contentions are that the award should
be reviewed on two grounds
viz
;
6.1 The Commissioner
failed to properly consider whether the employer consistently applied
discipline, and further failed to deal
with the allegations of
inconsistent discipline raised by the applicants despite the fact
that specific allegations were put to
the first respondent’s
witnesses during cross-examination. In this regard, it was submitted
that;
6.1.1
At the arbitration proceedings the employer
was made aware that evidence will be led that it had failed to apply
consistency in
respect of the same or similar offences.
6.1.2
The employer however did not deal with the
allegations of inconsistency raised by the applicants, and instead
only chose to identify
instances where the employer had consistently
applied discipline.
6.1.3
The employer merely identified workers who
had historically been dismissed for the same or similar reasons and
neither of the witnesses
called by the employer had dealt with the
applicant’s specific allegations of inconsistency as regards to
other employees,
and that the Commissioner had enquired from the
applicants whether they intended to call those witnesses, thus
demonstrating her
failure to understand the onus.
6.2 The Commissioner
irregularly and unreasonably inverted the onus by requiring the
applicants to prove that discipline was inconsistently
applied by the
employer.
[7]
The first respondent opposed the application on the grounds that
there is simply no evidence before the Court to support or
justify an
order declaring Maswanganyi’s dismissal unfair, and that
reinstatement under the circumstances in the light of
the nature of
the misconduct was not appropriate. The first respondent further
seeks that the application be dismissed with costs
because of the
opportunistic manner in which the applicants are seeking relief from
the Court. In the event that the Court found
that the dismissal of
Maswanganyi was indeed unfair, it was submitted that only
compensation should be awarded rather than remitting
the matter back
to the CCMA.
The
legal framework:
[8]
In considering whether an award is reviewable, the well-known test is
that as laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
The reviewing Court is required to enquire whether the decision
reached by the arbitrator is one that a reasonable decision-maker
could not reach on the material placed before him or her. Where the
Court finds that the decision of the arbitrator does not fall
within
the band of reasonableness, it accordingly should intervene.
[9]
Where the review application is based on an alleged irregularity
committed by a Commissioner as alleged by the applicants in
this
case, a further question to be posed in line with the
Sidumo
test
is whether the Commissioner misconceived the nature of the enquiry or
arrived at an unreasonable result.
[2]
[10]
Flowing from the explication of the review test in
Herholdt
v Nedbank Ltd
and in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
[3]
,
the Labour Appeal Court recently in
Head
of the Department of Education v Mofokeng and Others
[4]
(per Murphy AJA) held that whether or not a decision is unreasonable
in its result is an exercise that is necessarily dependent
on
variable considerations and circumstantial factors. Thus flaws in the
reasoning of the commissioner, evidence of a failure to
apply the
mind, reliance by the commissioner on irrelevant considerations or
the ignoring of material evidence must be assessed
with the purpose
of establishing whether the arbitrator has undertaken a wrong
enquiry, undertaken the enquiry in the wrong manner
or arrived at an
unreasonable result. These lapses and irregularities ought to be of
such a nature as to result in a misconceived
enquiry or a decision to
which no reasonable decision-maker could come on the available
material.
[11]
The Labour Appeal Court in
Goldfields
Mining South Africa (Pty) Limited (Kloof Gold Mine v CCMA &
Others
[5]
also held that in assessing whether the result of an award is
unreasonable, the reviewing Court should not adopt a piecemeal
approach,
and must further enquire whether;
“……
..
(i) In terms of his or her duty to deal with the matter with the
minimum of legal formalities, did the process that the arbitrator
employed give the parties a full opportunity to have their say in
respect of the dispute? (ii) Did the arbitrator identify the
dispute
he or she was required to arbitrate? (This may in certain cases only
become clear after both parties have led their evidence)
(iii) Did
the arbitrator understand the nature of the dispute he or she was
required to arbitrate? (iv) Did he or she deal with
the substantial
merits of the dispute? (v) Is the arbitrator’s decision one
that another decision-maker could reasonably
have arrived at based on
the evidence?
[6]
[12]
In considering whether the dismissal of an
employee for misconduct was substantively fair, an arbitrator is also
required to have
regard to basic guidelines as set out in the Code of
Good Practice: Dismissal as contained in Schedule 8 of the LRA which
provides:
‘
Any
person who is determining whether a dismissal for misconduct is
unfair should consider -
(a) whether or not
the employee contravened a rule or standard regulating conduct in, or
of relevance to, the workplace; and
(b) if a rule or
standard was contravened, whether or not –
(i) the rule was a
valid or reasonable rule or standard;
(ii) the employee
was aware, or could reasonably be expected to have been aware, of the
rule or standard;
(iii) the rule or
standard has been consistently applied by the employer; and
(iv) dismissal was
an appropriate sanction for the contravention of the rule or
standard.’
[13]
In this case, the only consideration before the Commissioner was
whether the rule or standard, including sanction of dismissal
was
consistently applied by the employer. The principles regarding the
‘parity principle’ are well established flowing
from
SACCAWU
and Others v Irvin and Johnson (Pty) Ltd
[7]
,
where the Labour Appeal Court (per Conradie JA) stated 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’ … There is really no separate principle
involved. Consistency must be measured by the
same standards …
Discipline must not be capricious. It really is the perception of
bias inherent in selective discipline
that makes it unfair. Where,
however, one is faced with a large number of offending employees, the
best 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 to the other employees. It would mean
no more than 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 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 … necessarily mean that the other miscreants should
escape.
Fairness is a value judgment.’
[14]
Flowing from the
Irvin and Johnson
and a long line of
subsequent judgments, the parity principles can thus be summarised as
follows;
14.1
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; whilst the
latter requires that the penalty be applied consistently as between
two or more employees who commit the same
misconduct
[8]
.
14.2
T
he
concept of parity, in the juristic sense, denotes a sense of fairness
and equality before the law, which are fundamental pillars
of
administration of justice
[9]
.
14.3
Employees
must be measured against the same standards, i.e. like cases should
be treated alike
[10]
, and in
determining sanction in respect of employees involved in the same
misconduct, the employer must not be capricious, or act
arbitrarily
or be influenced by improper motives or discriminatory policies;
[11]
.
Thus a value judgment must always be exercised, and the principle
should neither be applied rigidly
[12]
,
nor willy-nilly without any measure of caution
[13]
.
14.4
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
[14]
.
14.5
An employer
cannot be accused of inconsistent application of discipline if it was
not aware of evidence that there were other employees
who had
committed similar transgressions;
14.6
A
claim
of inconsistency can never succeed where an employer is
able to differentiate between employees who 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. Thus, in appropriate
cases
an employer may be justified in differentiating between two employees
guilty of the same transgression on the basis of their
personal
circumstances or on the merits of their respective cases
[15]
.
Evaluation:
[15]
Applying the above legal principles to the facts of this case, and
further having had regard to the general nature of the decision
attacked, and the range of relevant factors that informed the
decision of the Commissioner, I am not persuaded that there is any
merit in the applicants’ grounds of review for the following
reasons;
[16]
Firstly, I did not understand the applicants’ case to be that
the process followed by the Commissioner at the arbitration
proceedings did not afford the parties a full opportunity to state
their case. To the extent that the second ground of review can
be
construed as implying that the Commissioner by allegedly inverting
the onus, the applicants were effectively deprived of a fair
hearing
and thus committed a gross irregularity, it was submitted, and
correctly so, on behalf of the first respondent that the
Commissioner
had only considered allegations of inconsistency where the applicants
could present documentary evidence.
[17]
The applicants’ submissions in regards to the question of onus
lose sight of the principle that
where
inconsistency in the application of discipline is raised, it is not
sufficient for the employee to merely make that allegation.
The
employee alleging inconsistency is required at the very least to
provide
a
prima
facie
evidentiary basis to support his or her contentions
[16]
.
Ultimately,
it
is
upon that employee to demonstrate in what material respects another
employee was treated differently from him or her, when both
had
committed the same or similar form of misconduct, and why that was
unfair. The evidentiary burden will then shift to the employer
to
justify the differentiation, if any, in the treatment of the two
employees. In the absence of evidence to demonstrate that the
employer had acted capriciously or was motivated by some irrelevant
or unfair considerations in instituting disciplinary measures
or
handing out sanction between the two employees, it should be
concluded as the Commissioner had done in this case, that the
employer’s decision to differentiate between the two was fair.
[18]
Secondly, there is no reason to doubt that the Commissioner had
properly identified the dispute she was required to arbitrate.
In
this regard the Commissioner identified the dispute as pertaining to
the substantive fairness of the dismissal and more importantly,
whether the employer had consistently applied the sanction of
dismissal in respect of the transgression in question. There is
therefore no basis for any conclusion to be reached that the
Commissioner misconstrued the nature of the enquiry before her, or
diverted from the correct path in the conduct of the arbitration,
resulting in a failure to address the question raised for
determination
[17]
.
[19]
Thirdly, in coming to her conclusions, which in my view are
conclusions that a reasonable Commissioner could come to on the
material before her, the Commissioner took into account the
principles applicable to consistency in the application of discipline
as set out in Item 7 (b) (iii) of the Code of Good Practice:
Dismissal as contained in Schedule 8 of the LRA.
[20]
At the arbitration proceedings, and in the light of the disputed
issues, evidence was led in respect of other bus drivers who
had
committed the same offence (viz, Messrs Tsima and Skwena). The
Commissioner had established that even though the offences may
have
been similar, the merits of those cases were different to those of
Maswanganyi as the latter had conceded
under
cross-examination that this was the case
[18]
.
[21]
The Commissioner had also considered the evidence led by Maswanganyi
in respect of two other bus drivers, (viz, Baloyi and
Maeyina) who
had allegedly committed the same offence but were not dismissed. The
Commissioner came to the conclusion that based
on the documentary
proof submitted by the applicants in regards to these two other
drivers, Baloyi was indeed issued with a final
written warning, but
no evidence was presented in regards to the merits of that case to
support inconsistency.
[22]
In regards to Maeyina, the Commissioner considered the evidence
presented by the first respondent that this driver had pleaded
guilty
at the disciplinary enquiry, and had shown remorse, whilst
Maswanganyi on the other hand had in the disciplinary enquiry,
not
done the same.
The Commissioner was
persuaded that the employer had demonstrated that the merits of
Maeyane’s matter were different as he
had pleaded guilty and
showed remorse.
[23]
As it was pointed out on behalf of the
first respondent, Maswanganyi could not challenge the testimony
presented in respect of other
employees who were similarly dismissed
for ticket irregularities. The Commissioner had as correctly
pointed out, took account
of the evidence that Maswanganyi had
admitted guilt to the transgression in question, and that the
transgression was serious
and warranted dismissal.
[24]
To reiterate then, the grounds of review as
relied upon by the applicants in this case have not laid a basis for
any conclusion
to be reached that the Commissioner committed any
gross irregularity in the conduct of the proceedings, nor has it been
established
that there is a basis for the Court to interfere with the
award on any ground contemplated in section 145 of the LRA.
[25]
I am not persuaded that the applicants were able to demonstrate that
the Commissioner had not taken into account the principles
relating
to inconsistency as summarised elsewhere in this judgment. The
Commissioner was conscious of the principle that a claim
of
inconsistency could never succeed where an employer as in this case,
was able to differentiate between employees who committed
similar transgressions on the basis of,
inter alia
,
differences in personal circumstances, the severity of the misconduct
and other merits of employees’ respective cases.
[26]
I did not understand it to be the applicants’ case that
in dismissing Maswanganyi, the employer had done so arbitrarily or
capriciously, or was influenced by improper motives. In the end, the
Commissioner was persuaded that even if other employees had
committed
the same transgression and were not dismissed, there was no basis for
Maswanganyi to profit from any such failure on
the part of the
employer in the light of the merits and circumstances of his case.
[27]
Central to other considerations which differentiated Maswanganyi’s
case was the issue whether he had shown genuine contrition.
The
applicants in arguments appeared to have downplayed this important
consideration to their detriment. Genuine contrition implies
that an
employee owned up to the misconduct as soon as it took place, and
showed remorse from that moment. This should be distinguished
from
the charade of showing remorse at disciplinary proceedings, purely
for the purposes of pleading in mitigation of sanction,
or as it had
happened in this case, belatedly showing remorse at the arbitration
process itself, simply to avoid the inevitability
of a confirmation
of a dismissal. There is therefore merit in the first respondent’s
contention that in the absence of a
show of remorse, Maswanganyi was
not a candidate for rehabilitation and progressive discipline, as he
did not acknowledged his
wrongdoing.
[28]
As the Commissioner correctly pointed out, Maswanganyi failed to
appreciate that his acts constituted gross misconduct, and
further
that he knew that he had acted dishonestly. He was more concerned
about the fact that other employees who had committed
similar
transgressions were not dismissed. Consistency is but one of the
elements to be taken into account in considering the fairness
of a
dismissal
[19]
. The mere
fact that an employee had a clean disciplinary record
[20]
is also but one of the factors, which on its own, or combined with an
allegation of inconsistency, cannot be a license for employees
to
benefit from their own wrongdoing. This is even more pertinent in
circumstances of this case, where Maswanganyi had by nefarious
and
dishonest means, profited from his conduct to the detriment of the
first respondent. To this end, it is concluded that the
Commissioner’s award is unassailable, as it was reasonable in
the light of the material before her.
[29]
In conclusion, and further in regard to the issue of costs, even
though I am of the view that this application was clearly
ill-considered and opportunistic as correctly pointed out by the
first respondent, considerations of law and fairness militates
against such an order.
Order:
i.
The late filing of the review application
is condoned.
ii.
The application to review and set aside the
award issued by the Third Respondent under case Number GAJB28324-11
dated 22 November
2011 is dismissed.
iii.
There is no order as to costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Mr R Daniels of Cheadle, Thompson & Haysom Inc
For
the First Respondent: Ms H Strijdom of Helena Strijdom Attorneys
[1]
2008
(2) SA 24
(CC) at para 110
[2]
Herholdt
v Nedbank Ltd
(2013) 34 ILJ 2795 (SCA) at para 25.
[3]
[2014]
1 BLLR 20 (LAC).
[4]
[2015]
1 BLLR 50
(LAC) at paragraphs [30] to [34]
[5]
At
para 14
[6]
At
para 20
[7]
(1999)
20 ILJ 2302 (LAC) at para 29. Reaffirmed in
Absa
Bank Limited v Naidu and Others
[2015] 1 BLLR 1
(LAC) at para [37]
[8]
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010) 31 ILJ 452 (LC) at para [10]
[9]
ABSA
Bank Limited v Naidu
ibid
[10]
National
Union of Metalworkers of SA and Others v Henred Fruehauf Trailers
(Pty) Ltd
(1994) 15 ILJ 1257 (A) at 1264A-D. See also
NUM
and another v Amcoal Colliery t/a Arnot Colliery and Another
[2000] 8 BLLR 869(LAC)
“
The
parity principle was designed to prevent unjustified selective
punishment or dismissal and to ensure that like cases are treated
alike. It was not intended to force an employer to mete out the same
punishment to employees with different personal circumstances
just
because they are guilty of the same offence”.
[11]
See
National
Union of Mineworkers, obo Botsane v Anglo Platinum Mine (Rustenburg
Section)
(JA2013/42)
[2014] ZALAC 24
(15 May 2014) at para 25 where the LAC
held that:
‘
The
idea of inconsistency in employee discipline derives from the notion
that it is unfair that like are like are not treated
alike. The core
of this ‘factor’ in the application of employee
discipline (it would be a misconception to call it
a principle) is
the rejection of capricious or arbitrary conduct by an employer.’
[12]
SACCAWU
and Others v Irvin and Johnson (Pty) Ltd
at
2313C-J where Conradie JA held that;
“…
Consistency
is therefore not a rule unto itself, but rather an element of
fairness that must be determined in the circumstances
of each
case....
[13]
ABSA
Bank Limited v Naidu
at para [36]
[14]
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others
(2008) 29 ILJ 1180 (LC) at para [36]
[15]
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & others
[2009]
11 BLLR 1128
(LC). See also
Early
Bird Farms (Pty) Ltd v Mlambo
[1997] 5 BLLR 541
(LAC), and
SATAWU
& Others v Ikhwezi Bus Service (Pty) Ltd
(2009) 30 ILJ 205 (LC) where it was held that an employer is indeed
entitled to impose different penalties on different employees
who
had committed the same misconduct, provided there was a fair and
objective basis for doing so.
[16]
SA
Municipal Workers Union on behalf of Abrahams and Others v City Of
Cape Town and Others
(2011) 32 ILJ 3018 (LC) at para 50, where this Court held that;
“…
..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.‟
[17]
See
Mofokeng
at para [33] where the LAC held that;
“…
..The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant factors informing
the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable equilibrium
has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the arbitrator,
a wrong answer
will not necessarily be unreasonable. By the same token, an
irregularity or error material to the determination
of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the issues, with
the result that the award
may be set aside on that ground alone. The arbitrator however must
be shown to have diverted from the
correct path in the conduct of
the arbitration and as a result failed to address the question
raised for determination”
[18]
Para
42 of the Award
[19]
See
Sidumo
at [78] where it was 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”
[20]
See
Gcwensha
v CCMA & others
(2006) 27 ILJ 927 (LAC), where the LAC at para [24] held that;
“
Even
in the absence of a valid final written warning an employer is
entitled to dismiss an employee in appropriate circumstances……”