About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2016
>>
[2016] ZALCJHB 234
|
|
MCC Group of Companies v Mokabane NO and Others (JR2744/11) [2016] ZALCJHB 234 (10 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR2744/11
In
the matter between
MCC
GROUP OF
COMPANIES
Applicant
and
C
MOKABANE
N.O
First Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second Respondent
NUM
obo PULE
KEBOTSEMANG
Third Respondent
Heard:
10 February
2016
Delivered:
10 February 2016
Edited:
21 June 2016
EX
TEMPORE
JUDGMENT
CELE,
J
[1]
The application before me is one brought in
terms of
section 145(2)
of the
Labour Relations Act, 66 of 1995
,
hereafter referred to as the Act, where the applicant seeks to be
granted an order in the following terms:
1.
That the arbitration award issued by the first respondent, being the
Commissioner
Comfort Magubane of the second respondent under case
number MP4019/19 dated October 2011 between the applicant and
the third
respondent be reviewed and/or set aside in accordance with
the provisions of
section 145(1)(a)
and/or 145(2) of the Act.
2.
That it be determined that the dismissal of the third respondent was
procedurally
and substantively fair and that the third respondent is
not entitled to any relief.
3.
Alternatively, that the matter be remitted to the second respondent
for proper
determination of the dispute before a commissioner other
than the first respondent.
4.
That those respondents opposing granting of this application be
ordered to pay
the costs hereof.
5.
Pending the outcome of the application, all further procedures be
stayed.
6.
That such further and/or alternative relief may be afforded to the
applicant
as the court may deem fit.
[2]
The application has been opposed by the
third respondent in whose favour the award was issued. It is common
cause in this matter
that whilst the third respondent was on duty
operating a heavy vehicle, she drove over a board, which is two by
three metres wide
and long. At the time that she did so, her version
was that she did not even see the board. She heard what was told to
her but
it appears that throughout the internal hearing she was not
in a position to actually deny that she committed this kind of
misconduct.
[3]
As a consequence of driving over this
board, she caused damaged to the value of R2 500 to the motor vehicle
company. She was then
subjected to a disciplinary hearing. She was
found guilty and was discharged. She was aggrieved by this dismissal
and she referred
an unfair dismissal dispute for conciliation.
Conciliation failed to resolve it. She referred it to arbitration and
it came before
the first respondent as the appointed commissioner.
Evidence was led. It was common cause that a dismissal had taken
place and
therefore the applicant had to lead its evidence and to
prove that the dismissal was premised on fair grounds. The third
respondent,
also testified in defence of her case.
[4]
A number of challenges have been brought in
the founding and supplementary papers of the applicant but today Mr
Snyman, appearing
for the applicant, has narrowed the issue to one
aspect and one aspect only. It is the fairness of the sanction in
relation to
consistency, what is known as inconsistent application of
disciplinary rules of a company.
[5]
To this end, the third respondent called an
ex-employee, Mr Ndlovu, to come and testify. His evidence was that he
also was involved
in a similar misconduct where he was operating a
heavy vehicle. It collided with another and damage was caused to the
company.
He was given a warning. He was cross-examined as to why he
was given a warning and he gave an obvious answer; that he did not
know.
Obviously, the giving of the warning did not depend on him. As
to why he was given a warning did, therefore, not depend on him but
it is clear that he said he was given a warning. And there is another
colleague who also appears to have caused damage to the company,
Mr
Justice Mohulatsi, who also was given a warning. The warning appeared
to have been given on 27 April 2011.
[6]
What I need to take note of in this matter
is the fact that the incident took place on 20 February 2011 and that
the first date
of hearing was 20 April 2011. It was not completed. It
was postponed to and was finalised on 5 May 2011. The chairperson
adjourned
the proceedings and then submitted his written judgment on
9 May 2011.
[7]
It would appear that after the hearing
started but before the outcome was made known, it is during that
period that Messrs Mohulatsi
and Ndlovu received their warnings. It
appears common cause between the parties that the existence of these
warnings was never
brought to the attention of the chairperson who
presided over the enquiry involving the third respondent. This is
because of the
time issues that were involved. That, therefore, made
it probably difficult for the chairperson, and therefore the
applicant, to
deal with the aspect of these warnings. They would not
have featured because at the time that the matter was dealt with,
they featured
somewhere in between the timeframes, firstly; and
secondly, because none of the parties brought this to the attention
of the chairperson.
[8]
It is known that arbitration proceedings
are a
de novo
hearing. That is why then the third respondent brought it to the
attention of the commissioner that the applicant was inconsistent
in
applying the disciplinary rules that it had. The commissioner upheld
that approach in the award by finding that the applicant
was indeed
inconsistent. To the extent that I deal with inconsistency, I refer
to the findings of the commissioner from paragraph
15 onwards.
Paragraph 16 reads:
‘
16.
The applicant’s averment that she did not see the board is not
sufficient to exonerate her,
given the overwhelming evidence to the
contrary presented by the respondents’ witnesses. Having found
that the applicant
breached a standard workplace rule, I now turn on
consistent application of the above rule. It is common cause that the
applicant
was dismissed for damage to company property, amounting to
R2
500. Page 18
to 21 of the union bundle reflects a final written
warning issued to the employees of the company for commission of the
same offence.
It is apparent from the above that the respondent was
inconsistent in its application of a sanction of dismissal.
17.
The respondent was in breach of its disciplinary code and procedure
and imposing different
sanctions for commission of similar offences.
Although I said that each case should be determined on its own
merits, the respondent
failed to provide a plausible explanation as
to why the above cases were treated differently; safe to say the
supervisors who issued
the warnings erred. There is no evidence
before me that shows that the respondent made efforts to correct the
alleged error committed
by the supervisors. In fact, one of the
warnings was issued after the applicant was charged and dismissed for
the same offence.
18.
For the above reasons, the dismissal of the applicant by the
respondent is found to be procedurally
fair and substantively unfair.
The union prayed for retrospective reinstatement as remedy and the
employer contended that the above
prayer would not be appropriate
under the circumstances. The respondent failed to advance plausible
reasons in support of his argument
and I have not been able to
establish any exception that precludes the granting of the desired
remedy as provided in
section 193(2)
of the LRA.’
[9]
The
applicant says that the commissioner failed to apply his mind
appropriately to the evidential material before him, committed
a
gross irregularity and as a consequence issued an award which is
unreasonable. The test for review or the law governing the test
for
review has become trite. I need only just briefly to refer to the
decisions: 1) In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
[1]
I also want to refer briefly to the application or interpretation of
that principle in
Sidumo
in
Goldfield
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
.
[2]
I have taken note of what the LAC said, in particular from paragraph
12 going through to paragraphs 21. I need not recite this.
I have
referred to the previous matter that I dealt with and the one that I
can only highlight what the court said in paragraph
16 and paragraph
21.
[10]
The principle of inconsistency regulates
the fairness of sanction. Firstly, the applicant points out that
inconsistency was never
raised in the disciplinary hearing. This may
have created a problem because if it was raised at that time, the
facts would have
become clearer as they are clearer to me now;
namely, that none of the parties brought to the attention of the
chairperson that
there were sanctions, a warning that was given to
two employees after the commission of the misconduct in question but
before the
enquiry was finalised.
[11]
The
applicant makes out a case that the documents relied on were of
hearsay nature. I have been taken through the transcript. There
was
an argument between the commissioner and the representative of the
applicant about the admissibility of the documents and how
hearsay
evidence should be treated. Obviously we have the law that regulates
the admissibility of hearsay evidence. I think the
commissioner made
a mistake to assume that hearsay evidence is by its very nature
admissible. It is generally inadmissible but
admissible only by the
exceptions to it and there are guidelines. The decision in
Southern
Sun Hotel (Pty) Ltd v SA Commercial Catering and Allied Workers Union
and Another
[3]
deals with this aspect and makes it clear that there are
circumstances where hearsay evidence may be admissible and that
the
commissioner should be guided by these principles as well.
[12]
I have indicated that one of the third
respondent’s colleagues testified at the arbitration hearing,
namely, Mr Ndlovu. His
evidence was not of a hearsay nature. He
testified and he was subjected to cross-examination. So, the warning
given to him or the
evidence about that warning was not of hearsay
nature. There was direct evidence. So, a comparison can easily be
made between the
treatment of the third respondent’s evidence
here and that of Mr Ndlovu. As I have already indicated, however,
that such
evidence never came to the fore and was never brought to
the attention of the chairperson. It must follow that the applicant
was
never afforded a reasonable opportunity to deal with the question
of consistency at the time that it dealt with the matter of the
third
respondent.
[13]
The commissioner had applied his mind
appropriately to the sequence of events as they have now been shown
to me. And I think they
were always there. One would have realised
that a failure of the employer to follow what he did to Ndlovu and
the other witness
cannot be said to be an arbitrary application of a
disciplinary principle. It cannot be said that the applicant was
arbitrary and
capricious. It is explainable in that it was a factor
that was never brought as evidential material. It is an innocent
error. And
there is room for such innocent errors. It must always be
known that each case must be seen on its own merits. It must not be
assumed
that each time there is a sanction that is different,
therefore, unfairness prevails. Every case must be looked at on its
own merits.
I cannot agree with the commissioner in saying that in
imposing a different sanction the applicant in this case acted
capriciously
or arbitrarily. It acted out of ignorance of the factors
of the other employees.
[14]
This may sound contradictory in that it is
the same employer but we must know that the employer operates through
its agents. It
is incumbent on any employee who wants to say that he
is being treated inconsistently in relation to sanction that he
should bring
such evidence to the fore. If he fails to do so, he
cannot later on come at a later stage to say that he was not fairly
treated.
[15]
In this case, I am unable to find that the
commissioner applied his mind appropriately to the evidential
material before him. He
allowed insufficient evidence to serve before
him without conducting a proper enquiry or probe as to the details of
the warnings
that were issued; so that he would use them to found his
judgment. He used information which was very scanty. He, therefore,
compared
apples with oranges, which is not proper. There must be
similarity in the nature of comparison. As a result of that approach
which
he adopted, which was a gross irregularity, he, in my finding,
issued an award which is unreasonable. He ought to have found that
it
was within the purview of the employer’s discretion to dismiss
this employee; and in so doing acting fairly.
[16]
I have indicated here that every case must
be looked on its own merits. One may also bear in mind the events
that might have ensued
before this incident. We are already aware
that the third respondent got herself involved into some verbal
altercation with Mr
Venter or a senior manager. And from that, she
went on to drive this motor vehicle. She might have been moved by
anger or something
like that. I am aware of the fact that she
complained about the manager and then a grievance was lodged. It
seems to be that that
grievance was not properly disposed of because
she did not come to know of its outcome. Although it is said that by
the time this
matter was heard, the grievance had been finalised. But
I do not think that the manner in which the grievance was dealt with
has
any influence on how this matter should be disposed of.
[17]
In my view, the applicant has shown to me
that it did not act inconsistently; that any of these warnings should
not have featured
in these proceedings.
[18]
I, accordingly, find that:
1.
The arbitration award issued by the
first respondent in this matter as a commissioner of the second
respondent is reviewed, set
aside and substituted.
2.
The dismissal of the third respondent
was substantively fair.
3.
No cost order is made.
________________
Cele,
J
Judge
of the Labour Court of South Africa
Appearances:
For
Applicant: S Snyman, Snyman Attorneys
For
Respondent: MES Makinta,
instructed by MS Molebaloa Attorneys
[1]
2008
(2) SA 24 (CC).
[2]
(2014)
1 BLLR 20 (LAC).
[3]
(2000)
21
ILJ
1315
(LAC) at paras 13 to 14.