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[2015] ZALCJHB 228
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African Explosives Ltd v Mbovane NO and Others (JR2841/11) [2015] ZALCJHB 228 (31 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
2841/11
DATE:
31 JULY 2015
Not Reportable
In the matter
between:
AFRICAN
EXPLOSIVES
LTD
...............................................................................................
Applicant
And
PANELIST B
MBOVANE
N.O
...................................................................................
First
Respondent
NATIONAL
BARGAINING COUNCIL
FOR THE CHEMICAL
INDUSTRY
.....................................................................
Second
Respondent
SACWU
.......................................................................................................................
Third
Respondent
SELLO
MBONGO
...................................................................................................
Fourth
Respondent
Heard: 29 October
2014
Delivered: 31
July 2015
Summary:
When a commissioner disregards the factors which distinguish the
case before him or her and those of comparators in determining
whether the applicant applied discipline inconsistently, he or she
commits a gross irregularity which will
render his or her
arbitration award reviewable if it leads the commissioner to reach an
unreasonable decision.
JUDGMENT
LALLIE J
[1]
This is an application to review and set aside an arbitration award
of the first respondent, who I will refer to in this judgement
as the
arbitrator. It is opposed by the third respondent who acts on behalf
of the fourth respondent. The facts of this matter
are mainly common
cause. They are that the fourth respondent was employed by the
applicant as a Technical Operator in its ISAP
Automated Machines
Plant. The applicant manufactures explosives which are used to break
rocks in the mining industry. By virtue
of his position, the
applicant handled inflammable substances in the performance of his
duties.
[2]
On 1 June 2011, while performing his duties at the Bernice 230
machine, the fourth respondent dropped a spacer causing a fire
to be
ignited and the machine to catch fire. He extinguished the fire and
swiped the burning waste into a bucket which contained
water and
placed it next with the machine. As the water was contaminated with
ethanol, a second fire was ignited and the applicant
extinguished it.
The fourth respondent’s attempts to extinguish the fires caused
damage to the machine and cost the applicant
lost production.
[3]
After investigating the incident, the applicant preferred the
following charge against the fourth respondent:
‘
Gross
negligence in that on the 01/06/2011 at about 2H30, your actions
after the fire had initiated in the Bernice 230 machine,
put your
safety at risk and led to more damage on the machine’.
The
applicant was subjected to a disciplinary enquiry which found him
guilty of the charge and dismissed him. He referred an unfair
dismissal dispute to the second respondent where the arbitrator found
his dismissal both procedurally and substantively unfair
and ordered
the applicant to reinstate him. The arbitrator further substituted
the sanction of dismissal with a final written warning
with effect
from the date of dismissal and ordered the applicant to report for
duty on 24 October 2011. In addition, she stated
that the applicant
was not required to pay the fourth respondent remuneration for the
period he was unemployed owing to his dismissal.
[4]
The arbitrator found the fourth respondent’s dismissal
procedurally unfair owing to the presiding officer’s failure
to
listen to evidence in mitigation and aggravation of sanction. She
expressed the view that had he listened to the evidence he
would have
been aware that other employees used water to extinguish fires in
similar circumstances and realised that the only difference
between
those employees and the fourth respondent was that the latter used
contaminated water to extinguish the fires instead of
a hosepipe. She
expressed the view that had the presiding officer been aware of the
evidence he denied the parties before him an
opportunity to lead, it
is possible that he would have issued a different sanction. Giving
reasons for finding the dismissal substantively
unfair, the
arbitrator stated that the applicant should have extended the same
lenience it treated employees who extinguished fires
using a hosepipe
to the fourth respondent as they all did not walk away from the fires
but attempted to extinguish them. She found
that the applicant had
exercised discipline inconsistently and the sanction of dismissal
harsh. She concluded that the loss of
production and damage to the
machine were unfortunate results of the incident.
[5]
The applicant raised a number of grounds for review based on gross
irregularities committed by the arbitrator in the conduct
of the
arbitration proceedings. It submitted that the arbitrator committed a
gross irregularity in finding that it was evident
from the evidence
of Mr Dikobe (“Dikobe”) that the fourth respondent had
been denied the right to present mitigating
factors as he had
testified that the chairperson had invited the fourth respondent to
address him on anything further which he
wanted him to take into
consideration given the seriousness of the charge. Submitting
mitigating circumstances was implicit in
the invitation. Opposing the
attack on the procedural fairness of the fourth respondent’s
dismissal, the third respondent
submitted that the chairperson
postponed the disciplinary hearing for purposes of issuing his
finding the following day. The third
respondent could therefore not
have mitigated before the finding was issued. The applicant further
submitted that failure to afford
the fourth respondent an opportunity
to lead evidence in mitigation did not render his dismissal
procedurally unfair because in
terms of the code of good practice,
the applicant was required to give the fourth respondent an
opportunity to make representations
in response to the allegations
against him, an obligation which the applicant fulfilled. It was
under no obligation to afford the
fourth respondent an opportunity to
present mitigating factors.
[6]
The test for review is expressed thus in
Fidelity
Cash Management Service v Commission for Conciliation Mediation and
Arbitration and Others
[1]
:
'The
test enunciated by the Constitutional Court in
Sidumo
for
determining whether a decision or arbitration award of a CCMA
commissioner is reasonable is a stringent test that will ensure
that
such awards are not lightly interfered with. It will ensure that,…
awards of the CCMA will be final and binding as
long as it cannot be
said that such a decision or award is one that a reasonable decision
maker could not have made in the circumstances
of the case…’.
[7]
There is merit in the applicant’s argument that in terms of
item 4 of schedule 8 to the Labour Relations Act 66 of 1995
(“the
LRA”), the code of good practice for dismissal cases, it was
required to afford the fourth respondent an opportunity
to state a
case in response to the allegations of misconduct against him. It is
also trite that the LRA does not require disciplinary
enquiries to be
treated like criminal cases. However, the applicant did not dispute
the third respondent’s allegation that
when the disciplinary
enquiry was adjourned on 21 June 2011 to the following day, its
chairperson indicated that the purpose of
the adjournment was for the
finding. The necessity to make submissions on mitigation depends on
the nature of the findings. Had
the chairperson decided that the
fourth respondent had not made himself guilty of the charge against
him, the need for mitigation
would not have arisen. The evidence on
behalf of the applicant to the effect that the chairperson gave the
fourth respondent an
opportunity to lead any evidence he wished to
lead does not assist the applicant because by indicating that the
purpose of the
adjournment was for the pronouncement on his finding,
the chairperson conveyed the message that making submissions in
mitigation
was premature. He therefore created a reasonable
expectation to the fourth respondent that he would afford him an
opportunity to
make representations on mitigation before taking the
decision on the sanction. Having created the expectation, the
chairperson
could not unilaterally deny the fourth respondent the
opportunity to make submissions in mitigation. The arbitrator’s
decision
that the fourth respondent’s dismissal was
procedurally unfair is reasonable and there are therefore no grounds
to interfere
with it.
[8]
The only reason the arbitrator found the fourth respondent’s
dismissal substantively unfair was that the sanction of dismissal
was
harsh and that the applicant had applied discipline inconsistently in
dismissing him. The parity principle requires employers
to exercise
discipline consistently by ensuring that employees who commit the
same or similar misconduct are not treated differently
by the
employer. However, different circumstances may justify different
outcomes. In this regard see
NUM
v Amcoal Collieries & Industrial Operations Ltd
[2]
.
The parity principle should not be applied rigidly as inconsistency
is not
per
se
unfair. See
SACCAWU
and Others v Irvin & Johnson (Pty) Ltd
[3]
.
The application of the principle of inconsistency is expressed as
follows in
Cape
Town City Council v Masitho and Others
[4]
:
‘…
Fairness,
of course, is a value judgement, to be determined in the
circumstances of the particular case, and for that reason there
is
necessarily room for flexibility, but where two employees have
committed the same wrong, and there is nothing else to distinguish
them, I can see no reason why they ought not generally to be dealt
with in the same way, and I do not understand the decision in
that
case to suggest the contrary…’
.
[9]
In
Mabinda
and Others v Baldwins Steel
[5]
the court found that for inconsistency to be unfair, the employer
must apply it arbitrarily.
[10]
The applicant explained that the difference in sanctions meted out to
employees who extinguished fires was based on available
evidence.
Dikobe testified that if they had cameras in the compartments where
fires were extinguished there was a very good chance
that the
applicant would have meted out severe sentences. It is with the
assistance of cameras that the applicant got more evidence
which
enabled it to go further. He added that in the fourth respondent’s
case damage was not caused by his conduct of fighting
the fire but
actions leading to fighting it. Dikobe also explained that in terms
of the applicant’s code of conduct, employees
could do exactly
the same thing but would not necessarily be punished the same way
depending on the seriousness of the consequences.
Of importance,
Dikobe clarified that the fourth respondent was not charged with
fighting the fire but for the series of actions
which took place on
the day in question.
[11]
In evaluating evidence the arbitrator stated that the charge against
the fourth respondent was that he exposed himself to danger
by
extinguishing the fire instead of walking away and based her decision
on how she perceived the charge to be. Her perception
of the charge
led her to conclude that the applicant treated the fourth respondent
differently in that it did not dismiss but issued
warnings to
employees who extinguished fires using a hosepipe. The arbitrator did
not evaluate damage to the machine which was
part of the charge in
coming to the decision that the applicant had applied discipline
inconsistently and imposed a hash sanction.
She merely mentioned
after she had taken her decision based on her incorrect perception of
the charge that loss of production and
damage to the machine were an
unfortunate result of the incident. The arbitrator concluded that the
applicant acted inconsistently
without taking into account the
evidence which distinguished the fourth respondent’s case from
the cases of his comparators.
Treating employees who have committed
the same misconduct differently constitutes inconsistency when there
are no distinguishing
factors in the cases of those employees. No
evidence was presented to prove that the applicant acted arbitrarily
in treating the
fourth respondent differently from his comparators.
By not taking into account the distinguishing features of the fourth
respondent’s
case to those of his comparators, the arbitrator
conducted the enquiry whether the applicant applied discipline
inconsistently
and therefore the enquiry into the substantive
fairness of the fourth respondent’s dismissal in the incorrect
manner. By
so doing he committed a gross irregularity which
influenced the reasonableness of her decision in a manner which
rendered it unreasonable.
[12]
The totality of the evidence proves that the fourth respondent
contravened the rule regulating conduct after fires have broken
out
at the applicant. The rule was valid and the fourth respondent was
aware of it. The rule was applied by the applicant consistently.
Evidence was tendered on behalf of the applicant to prove that the
fourth respondent’s case could be distinguished from those
of
his comparators in that each case was based on available evidence.
Evidence that the fourth respondent had breached the rule
was
conclusive and justified dismissal. The gravity of the misconduct
committed by the fourth respondent was proved. However, no
evidence
was led to prove that the applicant treated the fourth respondent
differently from his comparators arbitrarily. The fourth
respondent
made himself guilty of dismissible misconduct. His dismissal was
therefore substantively fair. For the reasons already
given, the
fourth respondent’s dismissal was procedurally unfair. Having
considered the circumstances of this matter including
the nature of
the procedural fairness, it is just and equitable in all the
circumstances of this case to award the fourth respondent
compensation in the amount of R 72, 208.95 which is equivalent to
remuneration he would have earned over a period of three months
based
on his rate of remuneration on dismissal.
[13] In
the premises, the following order is made:
13.1
The arbitration award issued by the first respondent under case
number GPCHEM 535 – 10/11 and dated 14 October
2011 is reviewed
and set aside and substituted with the following:
13.2
The dismissal of the fourth respondent by the applicant was
substantively fair but procedurally unfair.
13.3
The applicant is ordered to pay the fourth respondent compensation in
the amount of R 72, 2008.95.
Lallie J
Judge of the
Labour Court of South Africa
APPEARANCES
For the
Applicant: Mr Masuku
Instructed
by: Marvyn Taback Inc.
For the Third and
Fourth Respondents: Mr Ramalatso
Instructed
by: Matsobane Ramalatso Attorneys.
[1]
(2008)
29
ILJ
964 (LAC) at para 100
[2]
(1992)
13
ILJ
1449 (LAC)
[3]
(1999)
20
ILJ
2302 (LAC)
[4]
(2000)
21
ILJ
1957 (LAC) at para 14
[5]
[1999]
5 BLLR 453
(LAC)