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[2016] ZALCCT 29
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Opperman v CCMA and Others (C530/2014) [2016] ZALCCT 29; (2017) 38 ILJ 242 (LC) (17 August 2016)

REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Of
interest to other judges
C
ase
no: C 530/2014
In
the matter between:
MARINA
OPPERMAN
Applicant
and
CCMA
First
Respondent
Commissioner
C L MAKAMA N.O.
Second
Respondent
HARMONY
GOLD MINING CO LTD
Third
Respondent
Heard
:
4 August 2016
Delivered
:
17 August 2016
Summary:
Review – error of law -- misconduct –
sanction. Employee given final written warning for being under the
influence of
alcohol at work. Sanction substituted for that of
dismissal in internal appeal by employer. Arbitrator found sanction
to be fair.
Arbitrator referred to but not applying principle in
Rennies Distribution Services (Pt
y
)
Ltd v Bierman.
Error of law led to
unreasonable result. Award set aside and substituted with an award
reinstating sanction imposed by chairperson
of disciplinary hearing.
JUDGMENT
STEENKAMP
J
Introduction
[1]
It is rare for an arbitrator’s
finding on sanction in a dismissal case to be set aside on review.
This is such a case. The
arbitrator made an error of law that led to
an unreasonable result. The award is reviewable for that reason.
Background
facts
[2]
The applicant employee, Ms Marinda
Opperman, is a professional nurse. She had been employed by the third
respondent, Harmony Gold
Mining Company Ltd, for ten years without
incident when, one morning, she was asked to undergo a breathalyser
test. She had been
drinking the previous night and tested positive
for alcohol.
[3]
After a disciplinary hearing, the employee
was given a “severe written warning” valid for 12 months.
She lodged an internal
appeal against the sanction only. She would
rue the day that she did, as the appeal tribunal amended the sanction
to one of dismissal.
[4]
The employee referred an unfair dismissal
dispute to the CCMA. The Commissioner (the second respondent) found
that the dismissal
was substantively fair but procedurally unfair. He
ordered the company to compensate the employee with three months’
salary.
[5]
The employee now seeks to have the award on
substantive fairness reviewed and set aside. She relies, firstly, on
an error of law;
and secondly, she argues that the arbitrator grossly
misapplied the law pertaining to inconsistency. That, she says, led
to an
unreasonable outcome.
The
award
[6]
At the arbitration, the parties identified
the issues in dispute as the following:
6.1
Did the company act inconsistently by
dismissing the employee?
6.2
Did the appeal chairperson exceed his
powers outlined in the disciplinary code by imposing a harsher
sanction?
6.3
Should the appeal chairperson have advised
the employee that a harsher penalty may be imposed on appeal?
Inconsistency
[7]
The arbitrator considered the disciplinary
code of the company. It provides for dismissal as a sanction where an
employee is found
to be under the influence of alcohol. Three other
employees who had been under the influence of alcohol were not
dismissed. One
got a written warning valid for six months while the
other two got “severe written warnings” valid for 12
months. The
arbitrator found that the employer had not been
consistent in its application of sanctions for the same misconduct.
However, he
took into account that the general manager had issued a
memorandum stating that: “Serious disciplinary action which may
lead
to dismissal will be taken against those who come to work under
the influence of alcohol or drugs or taking [
sic
]
alcohol and drugs while at work”. He found that the employee
was aware of the memorandum; and that the company could not
be said
to have been inconsistent in dismissing her.
Sanction
on appeal
[8]
The arbitrator considered the second and
third issues relating to the powers of the appeal chairperson
together. The company’s
disciplinary code states the following
with regard to the powers of the appeal chairperson:
“
The
chairman of the appeal hearing will determine whether the
disciplinary hearing was procedurally and substantively fair and
whether further evidence is required. The appeal hearing may
therefore be conducted as follows: consideration of the grounds for

appeal, or consideration of the grounds for appeal plus any
additional evidence, or a total rehearing of the entire case, if so

dictated by circumstances. The appeal chairman will forward his/her
verdict to the accused [
sic
]
within two working days of hearing the appeal, or as soon thereafter
as may be reasonably possible. The decision of the appeal
chairperson
will be final and will take effect immediately after being handed
down to the accused [
sic
].”
[9]
The arbitrator noted that the code does not
state that the appeal chairperson may reduce or increase the sanction
initially imposed.
He stated that he was “unable to find that
the appeal chairperson has exceeded his powers without being pointed
as to which
powers he exceeded”.
[10]
The
arbitrator was referred to the dictum by Basson J in
Rennies
Distribution Services (Pty) Ltd v Bierman N.O.
[1]
where the learned judge ventured that “an employee should be
warned that the chairperson [on appeal] is contemplating increasing

the sanction imposed by the chairperson of the disciplinary hearing
and the employee should be granted the opportunity either to
withdraw
the appeal and accept the sanction imposed by the disciplinary
hearing or present argument to the appeal hearing why the
sanction
should not be increased”.
[11]
Having considered this judgement, the
arbitrator accepted that the employee had not been warned that a
“severe sanction”
would or could be imposed on her and
that she was not afforded an opportunity to argue why a more severe
sanction should not be
imposed. He found that dismissal was
substantively fair, but procedurally unfair.
Review
grounds
[12]
The main thrust of Mr
Whyte
’s
argument was that the arbitrator committed an error of law by
disregarding the ratio in
Rennies.
Secondly, he argued that the arbitrator
grossly misapplied the law pertaining to inconsistency with the
result that he came to findings
that no reasonable arbitrator could
make.
Evaluation
/ Analysis
[13]
I shall first consider the “error of
law” argument and then the issue of inconsistency.
Error
of law?
[14]
The arbitrator found that it was
permissible for the employer to increase the sanction on appeal as
there was no prohibition on
this course of action contained in its
disciplinary code.
[15]
Mr
Whyte
argued that, in so doing, the arbitrator disregarded the ratio in
Rennies
;
and that his finding amounts to a gross error of law, is
unreasonable, and inconsistent with the facts before him.
[16]
The question that the arbitrator had
determine was whether it was permissible for the employer to increase
the sanction imposed
by the disciplinary tribunal once the employee
had instituted an internal appeal in terms of the employer’s
disciplinary
code. The code itself was silent on the question of
whether the appeal to person was entitled to impose a more serious
sanction.
[17]
To
consider the impact of the decision in
Rennies
to which the arbitrator was referred and with which he appears to
agree in his award, despite his finding that the dismissal was

substantively fair, it is necessary to quote extensively from that
judgement. Basson J said:
[2]
“
Is
it fair to increase a sanction on appeal?
[19]
Although I am satisfied for the reasons set out in the aforegoing
paragraphs that the review should be dismissed, there is
one further
point raised in Govender’s papers and that relates to the fact
that the chairperson of the appeal hearing set
aside the final
written warning imposed by the chairperson of the disciplinary
hearing and replaced it with a harsher sanction
of dismissal. The
Commissioner did not rule on this point but I am of the view that
this is an additional important point upon
which the dismissal of
Govender was
substantively
unfair
.
[3]
Broad
principles:
[20]
In criminal cases a court of appeal has the right to interfere with a
sanction imposed by the court
a quo
and replace it with an
appropriate sanction (provided that an appeal was lodged against the
sanction). The Court derives this power
from the express provisions
of section 322(6) of the Criminal Procedures Act 51 of 1977 which
sets out the powers of the court
(sitting as a court of appeal) in
detail.  It would appear that a court on appeal has this power
only because it is specifically
empowered by the legislature in terms
of section 322(6) of the Criminal Procedures Act.
[21]
It would, in my view, be unfair to allow a chairperson in an appeal
hearing (as part of a disciplinary process) to simply increase
a
disciplinary sanction except in circumstances where the disciplinary
code expressly allows for such a power.
[22]
Moreover, notwithstanding the provisions of section 322(6) of the
Criminal Procedures Act which allows for the power to increase
the
sanction, courts on appeal are, in any event, reluctant to increase
sanctions on appeal in light of the prejudice that an accused
(in a
criminal case) may suffer as a result. Moreover, even where the court
of appeal may be open to the argument to increase the
sanction on
appeal, the affected accused must be afforded an opportunity to
present argument to the court of appeal to persuade
the court as to
why the sanction should not be increased.  The
audi alteram
partem
rule is thus fundamental even in circumstances where a
court of appeal (in a criminal case) has the right to increase a
sanction.
A similar rule, should, in my view, apply in cases where
the chairperson in an appeal hearing (as part of an employer’s
disciplinary
procedures) is empowered to increase a sanction on
appeal. An employee should be warned that the chairperson is
contemplating increasing
the sanction imposed by the chairperson of
the disciplinary hearing and the employer should be granted the
opportunity either to
withdraw the appeal and accept the sanction
imposed by the disciplinary hearing or present argument to the appeal
hearing why the
sanction should not be increased.
[23]
I am, of course, mindful of the fact that a disciplinary enquiry
should not be equated with a criminal trial. The Court in
Avril
Elizabeth Home for the Mentally Handicapped v CCMA & Others
2006
(27)
ILJ
1644 (LC) correctly cautioned against such
approached. However, the rationale underlying the reasons why a
criminal court on appeal
should caution against increasing a sanction
is equally valid in respect of disciplinary enquiries. Just as the
court on appeal
should ensure that a sentenced individual receives a
just and fair trail, so must the Labour Court ensure that an employee
receives
a fair hearing (albeit less formalistic than a criminal
trial). There is some authority which supports the principle namely
that
a chairperson on appeal should not have an unfettered power to
increase a sanction except in circumstances where the disciplinary

code provides for such a power. See in this regard
UASA obo
Melville and SA Airways Technical (Pty) Ltd
(2002) 11 AMSSA
1.11.1 at paragraph 21 where the CCMA rejected the argument that a
chairperson on appeal has the right to
increase a sanction on appeal
in the absence of an express provision to that effect:
‘
21.
A collective agreement is one legal constraint on the power of an
employer that obliges the employer not to act in conflict
with the
provisions of that agreement. Beyond those constraints, the employer
may act within a particular sphere subject to any
constraints imposed
by statute or the common law of employment.
22.
In discerning the extent of the powers of an appeal chairperson I
should, so it was argued by the employer, have regard to the
"common
law" relating to appeal enquiries. I am inclined to agree with
the respondent that one can have regard to those
incidental powers a
chairperson requires to perform the function of appeal hearing
chairperson. But I do not believe the very ambit
of that
chairperson’s decision making power in respect of the decision
appealed against can be established in this way. Moreover,
I was not
referred to any specific common law authority on this issue.’
[24]
In summary: Firstly, except where express provision is made for such
a power, a chairperson on appeal does not have the necessary
power to
consider imposing a harsher sanction. Secondly, even if it has such a
power the chairperson must adhere to the fundamental
principles of
natural justice which require that
audi alteram partem
must
be afforded to the employee who may be prejudiced by the imposition
of a more severe sanction.”
[18]
Despite quoting extensively from this
judgement, the arbitrator did not apply it. Basson J expressly held
that, except where express
provision is made for such a power, a
chairperson on appeal does not have the necessary power to consider
imposing a harsher sanction.
Secondly, even if it has such a power
the chairperson must adhere to the fundamental principles of natural
justice which require
that
audi alteram
partem
must  be afforded to the
employee who may be prejudiced by the imposition of a more severe
sanction. In this case, Harmony
Gold’s disciplinary code did
not give the chairperson on appeal the express power to increase the
sanction on appeal; and
what is more, Ms Opperman was not given the
opportunity to make submissions why a harsher penalty should not be
imposed.
[19]
In declining to follow this judgement, the
arbitrator committed an error of law. Whether that in itself makes an
award reviewable,
is a matter of contentious debate.
[20]
In
Head
of the Department of Education v Mofokeng
[4]
Murphy AJA stated that:
“
Mere
errors of fact or law may not be enough to vitiate the award.
Something more is required. To repeat: flaws in the reasoning
of the
arbitrator, evidenced in the failure to apply the mind, reliance on
irrelevant considerations or the ignoring of material
factors etc.
must be assessed with the purpose of establishing whether the
arbitrator has undertaken the wrong enquiry, undertaken
the enquiry
in the wrong manner or arrived at an unreasonable result. Lapses in
lawfulness, latent or patent irregularities and
instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived
inquiry or a decision
which no reasonable decision-maker could reach on all the material
that was before him or her.”
[21]
In
DENOSA
obo Du Toit v Western Cape Department of Health
[5]
Davis JA asked, “Does an error of law on its own justify a
review in a case such as the present dispute?” He embarked
on
an analysis of the doctrine of error of law as it was stated in
Hira
v Booysen
[6]
that,
in terms of common law review:
“‘
Where
the complaint is that the tribunal has committed a material error of
law, then the reviewability of the decision will depend
basically,
upon whether or not the Legislature intended the tribunal to have
exclusive authority to decide the question of law
concerned. This is
a matter of construction of the statute conferring the power of
decision.
Where
the tribunal exercises powers or functions of a purely judicial
nature, as for example where it is merely required to decide
whether
or not a person’s conduct falls within a defined and
objectively ascertainable statutory criterion, then the Court
will be
slow to conclude that the tribunal is intended to have exclusive
jurisdiction to decide all question, including the meaning
to be
attached to the statutory criterion, and that a misinterpretation of
the statutory criterion will not render the decision
assailed by way
common-law review.   In a particular case it may appear
that the tribunal was intended to have such exclusive
jurisdiction,
but then the legislative intent must be clear.”
[22]
Davis
JA in
DENOSA
[7]
then
noted:
“
Since
the advent of the Constitution of the Republic of South Africa Act
1996 (‘the Constitution’), the concept of review
is
sourced in the justifications provided for in the Constitution and,
in particular, that courts are given the power to review
every error
of law provided that it is material; that is that the error affects
the outcome.”
[23]
The
most important remark by Davis JA
[8]
appears to be
obiter
,
but it is important for the argument in this case:
“
To
recap, Navsa AJ said in
Sidumo
at para 105, that the review powers in terms of s 145 ‘must be
read to ensure that administrative action by the CCMA is lawful,

reasonable and procedurally fair’. Given that the section must
be interpreted to be in compliance with the Constitution,
it would
appear that the concept of the error of law is relevant to the review
of an arbitrator’s decision within the context
of the factual
matrix as presented in the present dispute; that is a material error
of law committed by an arbitrator may, on its
own without having to
apply the exact formulation set out in
Sidumo
,
justify a review and setting aside of the award depending on the
facts as established in the particular case.”
[24]
Following
on
DENOSA
,
the LAC in
MacDonald’s
Transport
[9]
said:
“
In
my view, there is much to be said for the proposition that an
arbitrator in the CCMA or in a Bargaining Council Forum who wrongly

interprets an instrument commits a reviewable irregularity as
envisaged by Section 145 of the LRA; ie, a reasonable arbitrator
does
not get a legal point wrong. If so, the reasonableness test is
appropriate to both value judgments and legal interpretations.”
[25]
In the case before me, the arbitrator
committed an error of law by referring to and then not following the
dictum of Basson J in
Rennies.
But
even if that in itself does not make the award reviewable, it led to
an unreasonable result. It must be reviewed and set aside
on that
basis.
Inconsistency
[26]
Given my finding on the error of law, it is
not strictly speaking necessary to consider the issue of
inconsistency as well. But
I am persuaded that the award must be
reviewed on that basis as well.
[27]
It
is common cause that a lesser sanction was imposed in three previous
similar cases. The requirement that an employer must be
consistent in
the exercise of discipline (often referred to as the ‘parity
principle’) has its genesis in the self-evident
requirement
that an employee is entitled to be aware of the standard of conduct
expected by the employer, and is entitled to know,
in advance, what
the consequences of non-compliance will be. The parity principle is
nothing more than a general principle the
discipline should not be
arbitrary and unfair.
[10]
[28]
In
CEPPWAWU
v Metrofile (Pty) Ltd
[11]
the LAC confirmed that inconsistent treatment rendered dismissals
arbitrary and substantively unfair, thereby giving rise to the
right
of reinstatement. It is for the employer to demonstrate why like
cases of misconduct should not be treated in the same way
but
adequately distinguishing between those cases on a fair basis.
[12]
In this case, that did not happen.
[29]
In
Cape
Town City Council v Mashito
[13]
the LAC set out the principle as follows:
“…
In
the absence of material distinguishing features equity would
generally demand parity treatment”.
…
“
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… Without that, employees will inevitably,

and in my view justifiably, consider themselves to be aggrieved in
consequence of at least a perception of bias.”
[30]
In this case, Ms Opperman had a clean
disciplinary record for ten years. Three other employees who had
committed the same misconduct
as she did received written warnings
and were not dismissed. She was not drinking at work; the
breathalyser test found residual
traces of alcohol slightly above
0,02 mg/l in her blood because she had been drinking the previous
evening. The chairperson of
the disciplinary hearing was prepared to
impose a “severe written warning” valid for 12 months,
consistent with the
sanction imposed on previous offenders. The
inconsistent treatment of Ms Opperman was unfair. The arbitrator’s
finding to
the contrary was, in my view, so unreasonable that no
reasonable arbitrator could have come to the same conclusion.
Conclusion
[31]
I have found that the arbitrator’s
award must be reviewed and set aside. I agree that, with all the
evidence before me, it
would serve no purpose to remit the dispute to
the CCMA for a fresh hearing before another arbitrator.
[32]
The chairperson of the disciplinary hearing
imposed a fair sanction. The employee should be reinstated subject to
the same sanction.
However, two years have passed since the
arbitration award was handed down. In my view, it would not be fair
to hold the company
responsible for the payment of the employee’s
salary for that period of time in circumstances where it had an
arbitration
award in its favour and where the employee’s
previous attorneys did not act expeditiously in ensuring that the
review application
be heard. Also, the company had already paid the
employee three months’ salary in accordance with the
arbitration award for
procedural unfairness. The parties’ legal
representatives agreed that I had a discretion with regard to back
pay. I think
it would be fair to reinstate the employee
retrospectively, but to limit the back pay due to her from the date
of dismissal to
the date of the arbitration award.
[33]
With regard to costs, I take into account
that there is an ongoing relationship between the employee and the
company, and also between
her trade union, the National Union of
Mineworkers (that represented her at the arbitration) and the
company. Furthermore, the
arbitration award was in favour of Harmony
Gold and it had little option but to defend it. In law and fairness,
I do not consider
a costs award to be appropriate.
Order
[34]
I therefore make the following order:
34.1
The arbitration award of the second
respondent, Commissioner Collins Lenkwasi Makama, under CCMA case
number NWKD 3964-13 dated
1 June 2014, is reviewed and set aside.
34.2
It is replaced with an award that the
dismissal of the employee, Ms Marina Opperman, was substantively and
procedurally unfair.
34.3
The third respondent, Harmony Gold, is
ordered to reinstate Ms Opperman retrospectively to the date of her
dismissal.
34.4
The back pay due to Ms Opperman is limited
to the period from her date of dismissal to the date of the
arbitration award, 1 June
2014.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Jason
Whyte of Cheadle Thompson & Haysom.
THIRD
RESPONDENT:
Prevot
van der Merwe of Webber Wentzel.
[1]
(2008) 29
ILJ
3021
(LC); [2009] 7 BLLR 685 (LC).
[2]
Rennies
(above
n 1) paras 19-24.
[3]
My underlining.
[4]
(2015)
36
ILJ
2802 (LAC) at para 32.
[5]
[2016] ZALAC 15
(12 May 2016).
[6]
1992 (4) SA 69
(A) 93 D-F.
[7]
Above para 21.
[8]
DENOSA
para
22.
[9]
MacDonald’s
Transport
Upington
(Pty)
Ltd v AMCU
[2016]
ZALAC 32
(28 June 2016) para 30 [per Sutherland JA].
[10]
NUMSA
v Henred Fruehauf Trailers (Pty) Ltd
(1994)
15
ILJ
1257 (A).
[11]
(2004) 25
ILJ
231 (LAC) paras 42 and 57-59.
[12]
NUMSA
v Atlantis Forge (Pty) Ltd
(2005)
26
ILJ
1984
(LC).
[13]
(2000) 21
ILJ
1957 (LAC) 1961 A-F.