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[2016] ZALCPE 9
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MEC: Department of Health, ECP v PHSDSBC and Others (PR63/14) [2016] ZALCPE 9; [2016] 6 BLLR 621 (LC); (2016) 37 ILJ 1429 (LC) (16 March 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA,
PORT
ELIZABETH
Case
no: PR63/14
DATE:
16 MARCH 2016
Reportable
MEC:
DEPARTMENT OF HEALTH,
ECP
...........................................................................
Applicant
And
PHSDSBC
......................................................................................................................
First
Respondent
SILAS
RAMUSHOWANA,
N.O
..............................................................................
Second
Respondent
COLIN
PETER
BURTON
.........................................................................................
Third
Respondent
NKULULEKO
DOMINIC
MANTANA
.................................................................
Fourth
Respondent
MLINDELI
MSENGANA
...........................................................................................
Fifth
Respondent
VUYANI
MSHESHE
...................................................................................................
Sixth
Respondent
HEMSLEY
TOTO
KONTYO
................................................................................
Seventh
Respondent
Heard:
26 October 2015
Delivered:
16 March 2016
Summary:
Review -
failure of arbitrator to discount
arguments not a stand-alone ground of review – If arbitrator
wrongly decides point has no
merit by not taking it into account,
this may constitute valid ground of review if decision had distorting
effect on the outcome
of award
Inconsistency
- accomplice plea agreements serve valid purpose –
misapplication of law on contemporaneous inconsistency to
deny them
Sanction
– not invariably necessary to lead evidence establishing
breakdown in employment relationship in all dishonesty cases.
JUDGMENT
Whitcher
J
Introduction
and Background
[1]
This is an application in terms of section 145 of the LRA to review
and set aside an arbitration award issued by the PHSDSBC
under case
number PSHS447-10/11 wherein the arbitrator found the dismissal of
the third to seventh respondents (‘the employees’)
substantively unfair and reinstated them.
[2]
The employees were all managers at the Eastern Cape department of
health in the emergency medical services directorate (‘EMS’).
On 24 June 2009, the employees, except for Mheshe, travelled by air
from East London to Bloemfontein to watch the Confederations
Cup
semi-final match between the USA and Spain. The following day, they
returned home in the same aircraft. The aircraft belonged
to
Aerocare, a company subcontracted to provide aircraft to the
department for medical emergency purposes. The trip to watch the
soccer match was arranged by Aerocare which also paid for the
employees’ accommodation, meals, match tickets and road
transfers
in Bloemfontein.
[3]
After the trip and following reports in the media, the provincial
legislature directed questions to the MEC. The questions were
forwarded to one Maharaj, the then senior manager in charge of EMS,
for a response. In July / August 2009, Maharaj summoned the
employees
to a meeting in Bhisho where a formal reply to the parliamentary
questions was discussed. Maharaj had already prepared
a written
reply, the contents of which he conveyed to the employees. This
response falsely stated that the employees were on official
business
to render medical assistance at the soccer match. Mheshe and all the
employees who flew to Bloemfontein, save for one
Gcolothela, attended
this meeting with Maharaj. The written response was then conveyed to
the Superintendent-General and MEC.
[4]
None of the employees came clean about the trip or reported that
Maharaj had prepared a false account about their trip for submission
to the legislature. When the truth later emerged, the employees were
charged with having undertaken an unauthorised trip by air
to a
soccer match irregularly sponsored by a supplier, and / or being
complicit in lying to the MEC for Health about the matter
in response
to questions from the provincial legislature. The employees were
subjected to a disciplinary hearing, found guilty
and, on 8 July
2010, were dismissed on each of the two charges.
Mheshe, was
found guilty of an additional charge of misusing or conspiring to
misuse the aircraft. Although he did not fly to Bloemfontein,
the
chairperson found that he played a substantial role in organizing the
trip, second only to the role Maharaj played.
[5]
A common complaint at the arbitration was that not all employees
involved in aspects of the misconduct were afforded consistent
disciplinary treatment: an issue at the heart of this matter.
[6]
Indeed, not all employees involved in the misconduct suffered the
same fate. Maharaj was suspended but resigned before he was
charged.
He exited the public service with his employer agreeing not to pursue
further steps against him. Shockingly, in 2014,
he was re-employed by
the department, albeit at a lower level and the department’s
attempts to address this abhorrent situation
have been lethargic. In
contrast to Maharaj, Mheshe’s request to be allowed to retire
was refused. Gcolothela, who also flew
to Bloemfontein but did not
attend the meeting with Maharaj, was not dismissed but given a final
written warning. One Mxesibe,
who was charged alongside the other
employees, was offered a plea agreement in terms of which he pleaded
guilty and accepted a
final written warning coupled with a suspension
without pay for two months conditional on him testifying against his
colleagues
in the internal hearing.
[7]
The employees referred their dismissal to the PHSDSBC. On 12 February
2014, the arbitrator found the employees guilty of the
charges. He
however concluded that the sanction of dismissal was inappropriate
and reinstated the employees with a final written
warning and with 3
½ years’ back-pay, except for Mheshe, who was reinstated
to his date of retirement.
The
arbitration award
[8]
The arbitrator concluded that the dismissal of the employees was
substantively unfair principally on account of a finding that
the
discipline meted out to them was contemporaneously inconsistent with
the treatment of similarly placed employees.
[9]
In deciding penalty anew, the arbitrator also took certain mitigating
factors into consideration and assessed that the charges
were not so
severe as to destroy the employment relationship.
[10]
The following premises informed the arbitrator’s reasoning on
sanction:
(a)
The employees had long service and were senior officials.
(b)
They had ‘let down the department’ by failing to report
Maharaj’s activities especially during the meeting
to discuss
answers to parliament’s questions.
(c)
‘They were supposed to be given a lighter sanction like others
not maximum sanctioning or dismissals.’
(d)
‘In particular, Mr Mheshe tried to secure a settlement as he
was due to retire and it was not acceptable.’
(e)
‘The [employer] was inconsistent in applying the discipline
whilst others were given final written warning or settlement
agreement.’
(f)
Progressive and corrective discipline was not implemented.
(g)
The trust relationship was not damaged.
(h)
The employees showed ‘some sense of remorse by co-operating
with the investigations.’
Grounds of Review
[11]
The applicant submitted that the award suffers from various
reviewable defects. It is not necessary
in deciding this matter to
adjudicate criticisms of the arbitrator’s ancillary findings in
any detail. The two main grounds
are sufficient.
[12]
The applicant’s first ground of review is that the finding that
the department acted inconsistently
is bereft of any reasoning
whatsoever. Although the question whether the comparators were
distinguishable from the employees was
a key issue at the
arbitration, the arbitrator said nothing about this and did not
reason his conclusion.
[13]
The consequences of this are twofold, the applicant argues. First,
the award is irrational, and
thus reviewable;
[1]
and second, the court should conclude that the arbitrator did not
apply himself to the matter and thus malfunctioned as an arbitrator,
which constitutes misconduct in terms of section 145 of the LRA.
[14]
The second ground of review is that the finding of inconsistency is
unreasonable. The applicant
contends that it had to guess at the
identity of the comparator employees who the arbitrator felt were
more favourably treated.
Reading the award carefully, these appear to
be:
(a)
Maharaj, who resigned and who the arbitrator found was given a
settlement agreement;
(b)
Gcolothela, who was given a final written warning; and
(c)
Mxesibe, who was given a final written warning and suspended without
pay for two months.
[15]
The employees also argued that evidence before the arbitrator
suggested that the treatment of Bambiso established that their
treatment on the first charge was inconsistent. Bambiso, a manager,
was informed by a subordinate that he (the subordinate) had
been
invited on the Bloemfontein trip. Bambiso forbade her subordinate to
take this trip as it seemed irregular to her. The employees
submit
that Bambiso thus also had prior knowledge that the Bloemfontein trip
was irregular but failed to report it, yet she was
not disciplined.
[16]
The applicant makes the following relevant submissions in respect of
each of the comparator employees.
Maharaj
[17]
Documentary evidence before the arbitrator showed that on 22 January
2010, while on suspension, and three weeks before the
employees’
disciplinary hearing began, Maharaj resigned. A memorandum of
understanding (MOU) was entered into between Maharaj
and the
department on that day, in terms of which the department undertook
not to proceed with disciplinary action against him
in the light of
his resignation. They also undertook to pay him his pension and other
benefits without prejudicing him. The arbitrator
described this as a
‘settlement agreement’.
[18]
During the disciplinary hearing, the employees raised the issue of
Maharaj having been ‘allowed’ to resign. It
was put to
Mheshe under cross-examination during the internal hearing that he,
too, could choose to resign. His response was that
he ‘didn’t
have any intention of leaving’. None of the employees opted to
resign.
[19]
At the arbitration, Mheshe asserted that given Maharaj’s
resignation, he ought to have been allowed to retire. In this
regard,
on 17 May 2010, towards the end of the internal disciplinary hearing,
Mheshe applied to retire with effect from 1 July
2010. The employer,
however declined this offer.
[20]
The applicant submits that the arbitrator’s finding that any of
the employees were treated inconsistently
vis-à-vis
Maharaj
is unreasonable. Amongst other things, this is because:
(a)
Maharaj resigned from the employ of the department, a unilateral act,
whereas the employer had the option to consent to an early
retirement
application or not. Resignation and an application for early
retirement are different legal concepts;
(b)
Any of the employees could have resigned, as Maharaj did, but elected
not to do so; and
(c)
Maharaj resigned before the hearing began and evidence against him
had taken shape.
[21]
I admitted new evidence that Maharaj had taken up employment in the
department again in 2014.
[2]
This evidence is troubling yet irrelevant to the review application
itself. This new evidence, brought to light
after
the arbitration, may however affect the relief I order, bearing in
mind that the applicant has asked me to finally decide this
matter
and not remit it to the bargaining council. In this regard, the
department’s new superintendent general conceded that
Maharaj’s
re-employment was wrong. He averred that when he discovered that
Maharaj had re-entered the department’s
employ, the department
instituted disciplinary proceedings against Maharaj for the
misconduct for which the employees were dismissed.
This disciplinary
hearing is currently underway.
Gcolothela
[22]
Gcolothela was charged with the employees and attended the same
internal disciplinary hearing.
He faced an unnecessarily complex
charge over the trip to Bloemfontein. The charge had two parts to it
with the department succeeding
in convincing its internal
disciplinary chairperson that Gcolothela was only guilty of having
improperly received the benefits
of the Bloemfontein jaunt. He was
found not guilty of dishonesty in relation to concealing that the
trip to Bloemfontein happened.
[23]
Gcolothela was further acquitted on the charge relating to the
dishonest response to the parliamentary
questions as he was not
present at the meeting with Maharaj. This fact was common cause at
the arbitration. There was thus evidence
before the chairperson
showing that Gcolothela was meaningfully less culpable than the
employees in respect of the Bloemfontein
trip. For his less serious
infraction, the internal chairperson issued Gcolothela with a final
written warning. In these circumstances,
the applicant submits, a
finding by the arbitrator that the employees were treated
inconsistently
vis-à-vis
Gcolothela was unreasonable as
his case was clearly distinguishable from that of the employees.
Mxesibe’s
case
[24]
Mxesibe was charged together with the employees, but on 16 April 2010
he entered into a plea
agreement with the department. In terms of the
plea agreement, Mxesibe admitted guilt to various charges thus
demonstrating remorse.
He also accepted a final written warning and
suspension without pay for two months. He further agreed to testify
on behalf of the
department at the employees’ disciplinary
hearing and the indemnity from dismissal granted to Mxesibe was
conditional upon
him being ‘frank and honest’ in his
testimony.
[25]
As provided for in the plea agreement, Mxesibe duly testified on
behalf of the department at
the employees’ internal
disciplinary hearing and mention was made of this plea in the
internal chairperson’s findings.
Mxesibe also thereupon gave
evidence on behalf of the department at the arbitration. In the
process, he dealt with the plea agreement
again.
[26]
The applicant submits three salient criticisms of the arbitrator’s
finding that the employees’
dismissal was unfair on account of
an inconsistency
vis-à-vis
Mxesibe. First, the
employees were not similarly situated to Mxesibe in that he entered
into a plea agreement. He agreed to give
evidence for the department
against the employees, with the indemnity granted to him being
conditional upon his evidence being
frank and honest. The plea
agreement was modelled on
section 204
of the
Criminal Procedure Act
of 1977
. In circumstances where this is a recognised means of
securing evidence in the criminal law context, there is no reason why
it
should not be adapted and applied in the labour law context.
[27]
Second, the employees were not similarly situated to Mxesibe, in that
he displayed remorse by
admitting guilt and accepting a penalty in
the plea agreement, while the employees did not do so. Right to the
very end, the employees
maintained their innocence, and contended
that no action ought to have been taken against them, thus
demonstrating no remorse whatsoever.
[28]
Third, even if the employees were similarly situated to Mxesibe, any
disparity of treatment did
not give rise to the employees’
dismissal being unfair. Consistency is an element of fairness and not
a separate principle.
It is only where an employer acts
mala
fide
or with a discriminatory motive that the decision to dismiss the
employees but not the comparator (in this case, Mxesibe) will
give
rise to unfairness.
[3]
In the
present matter, there was no question or evidence of the department
acting with
mala
fides
or discriminatory motive. Instead, the department acted with a
legitimate purpose to secure a conviction of the employees for
serious misconduct. In the circumstances, no unfairness arose.
Bambiso
[29]
Although the arbitrator made no finding that Bambiso constituted a
valid comparator, the applicant
argued that her conduct was
distinguishable from the employees. She was not involved in the trip
in any way and, instead of possessing
direct knowledge of the
Bloemfontein flight, she merely had an apprehension that it was
irregular.
Analysis
of Evidence and Argument
[30]
The review test by now is trite and is encapsulated in the SCA’s
judgment in
Herholdt
[4]
and the LAC’s judgment in
Gold
Fields
[5]
.
[31]
Neither the applicant nor the employees seriously challenged the
arbitrator’s finding that
the employees were in fact guilty of
the two charges for which they were dismissed. This is in essence a
penalty review. The issue
of inconsistency did not function as a
stand-alone ground of substantive unfairness, the applicant argued.
Rather, because similarly
placed employees were not also dismissed,
the arbitrator considered the sanction the employees received as
being too harsh. While
this is correct, I am not convinced much turns
on this distinction in this case
.
The kernel of
substantive unfairness in contemporaneous inconsistency is that the
employer was prepared, for no good reason, to
live with one employee
after committing misconduct but not with another employee similarly
placed. The issue is the same
when considering the
appropriateness of the sanction of dismissal which is whether the
employment relationship can fairly be said
to have been irretrievably
damaged.
[32]
On the first ground of review, I do not agree that the arbitrator’s
finding that the department
acted inconsistently is bereft of any
reasoning whatsoever. The arbitrator did not furnish reasons for
discounting the apparently
distinguishing features between the
disciplinary situation of the employees and the comparators. However,
I am hesitant to infer
that the absence of such reasons reveals the
arbitrator malfunctioned in his role. When the arbitrator found that
the sanction
of dismissal handed down to the employees was
inappropriate because ‘lighter sanctions’ were handed out
to others or
that Mheshe should have been allowed to exit the public
service without disciplinary consequence in the same way as Maharaj,
his
implicit reasoning is that, on the evidence before him, any
comparators were not in fact meaningfully distinguishable from the
dismissed employees. While it is desirable, I do not think that the
failure of an arbitrator to discount arguments he or she thinks
have
no merit generally constitutes a stand-alone ground of review. This
would blow arbitration awards up into unmanageable balloons
of
argument. If, however, an arbitrator wrongly decides that a
point has no merit, by, for instance not properly taking it
into
account, this may well constitute a valid ground of review if such an
erroneous decision had a distorting effect on the ultimate
outcome of
the award
[6]
.
[33]
The situation
in casu
is different from
Boxer Superstores
in that a reason for the key finding (any distinguishing features
are immaterial) can be inferred from a reading of the award as
a
whole rather than there being a complete absence of a reason. The
first ground of review must thus fail.
[34]
The second vein of review is, in my view, more profitably mined. This
is whether the arbitrator’s
implied finding that there are no
material distinguishing factors between the employees and the
comparators is one a reasonable
decision-maker would make.
[35]
As to the identity of the comparators, the arbitrator only alludes to
the comparator employees
as “others” who were given a
final written warning or settlement agreement. However, read
holistically, the identity
of the three comparator employees the
arbitrator had in mind is discernible. They are Maharaj, Gcolothela
and Mxesibe
[7]
. The problem is
not that the identity of the comparators is unclear. The deficiency
in the award is that the arbitrator made findings
of inconsistency,
some of which are unreasonable given the distinguishing features
between the comparators and the employees that
plainly emerged in the
evidence.
[36]
When the arbitrator holds Gcolothela and Mxesibe up as comparators he
mishandled the application
of the law on inconsistency or ignored
crucial evidence. It is trite law that inconsistency does not arise
if the dismissed employees
were not similarly situated to the
comparators relied upon by them. In a number of instances where
commissioners have either failed
to grasp this principle or apply it
reasonably, their awards have been set aside on review.
[8]
In
ABSA
v Naidu
[9]
,
in the process of finding that the commissioner’s finding of
inconsistency was unreasonably, the LAC held as follows:
‘
[41]
Accordingly, I am not persuaded that Ms Pin Lai's matter was so
similar to that of Ms Naidu as to have
warranted that they should
have both been treated in the same
way
in terms of sanction. In my view, the facts in the two matters were
sufficiently distinguishable.’
[37]
I agree with the applicant that the cases of Gcolothela and Mxesibe
were sufficiently distinguishable
from those of the employees, with
the result that a finding of inconsistency was unreasonable.
[10]
At the internal disciplinary hearing, Gcolothela was found guilty
only of benefitting from the trip to Bloemfontein but not concealing
that an irregular trip had taken place. He also did not participate
in the meeting with Maharaj. These material facts were before
the
arbitrator and should have been properly taken into account. It was
not. Consequently, the arbitrator’s finding that
the employees’
disciplinary fate should have been the same as Gcolothela’s is
a finding no reasonable decision-maker
would have made.
[38]
Likewise, Mxesibe’s situation was also distinguishable from
that of the employees. He was
offered and accepted a plea bargain in
terms of which testimony against the employees would secure him a
lesser sanction. In my
view, when an employer offers one within a
group of suspected wrong-doers a plea bargain to enable it to acquire
evidence of wrong-doing
within the group, this, on its own, does not
constitute inconsistent application of discipline. An important
distinguishing feature
existed: the existence of a plea agreement.
The employees’ complaint that they were also owed a plea deal
betrays a misunderstanding
of the type of plea deal on offer. It was
not a plea deal where a lesser sanction was agreed in exchange for a
guilty plea so as
to avoid a hearing. The purpose of the plea bargain
offered to Mxesibe was to secure evidence against the rest of the
employees
to enable their discipline. The lesser sanction agreed with
Mxesibe was not in recognition that the charge he faced was not
serious
enough to warrant dismissal if he pleaded guilty but was
rather a necessary compromise by the employer to induce the
co-operation
of an accomplice in a disciplinary hearing. The employer
sought and obtained this co-operation from Mxesibe and not from the
other
employees. It is helpful to think of the plea bargain at stake
in this case as an
accomplice plea agreement
as opposed to a
straightforward
plea in mitigation of sanction
.
[39]
The object of securing evidence to discipline employees who
misconducted themselves would be
completely defeated if every one of
the employees involved in the misconduct were offered a plea bargain
to testify against the
others. Not to allow witness plea bargains on
the basis that they create inconsistency would be to shut the door on
an important
mechanism used in criminal law every day and which may,
in my view, with appropriate checks and balances, be fairly imported
into
labour law as a method of obtaining evidence of wrong-doing.
Indeed, it is hard to see how, without the facility of witness plea
agreements, an employer would successfully prosecute certain acts of
misconduct. It is unfortunately true that
wrong-doers are ever
more resourceful, devising increasingly sophisticated methods of
operation which hide their misconduct and
identity from their
employer. Accomplice testimony is an essential tool in piercing the
veil of secrecy surrounding certain offences
especially in detecting
corruption by public officials, syndicate theft and white-collar
offences.
[40]
The true attack on the present accomplice plea agreement would have
been whether the department
exercised its discretion to select
Mxesibe unfairly. In my view, an employer possesses a wide amount of
latitude in selecting whom
among a group of people involved in
misconduct it selects for an accomplice plea agreement. Factors that
may legitimately be taken
into account in selecting such a witness
could include: an assessment of his or her availability, strength and
credibility as a
prospective witness; trustworthiness and ability to
withstand any pressure to recant; depth of knowledge of the facts
which make
up the misconduct; access to corroborating evidence;
cooperation and initiative during the investigation; attitude of
remorse before
the benefit of a lesser sanction was offered; and
previous disciplinary record.
[41]
An employer is not called upon to justify its decision to offer a
plea agreement to one employee
over another in fine detail. It should
have a wide discretion in selecting the witness it wishes to use. The
key issue is that
its selection should not betray
male
fides
. Signs that the decision to offer
a plea deal were not fairly exercised would include: that
the
evidence the witness gave was not reasonably necessary to secure a
guilty finding against the accused employees, including because
such
evidence was readily available from other sources
;
an imbalance in
the relative degree of culpability of the
witness and the accused employees, such
that the
proverbial ‘big fish’ was used to secure a guilty finding
against the ‘little fish’; that the decision
to conclude
a plea agreement was induced by an improper motive such as obvious
favouritism or capriciousness; and/or unfair racial,
gender or other
discrimination in favour of the accomplice witness or against the
remaining accused employees.
[42]
It is further, in my view, for the party alleging that an employer
has unfairly exercised its
discretion in offering a witness plea
agreement to a particular employee to make out such a case. In other
words, the employee
party has to lay an evidentiary basis for
unfairness before the employer is called upon to justify its
decision
[11]
.
[43]
I reject, however, the applicant’s argument that Mxesibe’s
ostensible show of remorse,
demonstrated by his guilty plea, is a
distinguishing factor. Mxesibe pleaded guilty in the context of a
comprehensive, negotiated
plea agreement in terms of which he was
induced to testify by being given a sanction short of dismissal. Had
one of the other employees
been selected for and accepted the plea
deal, they would, of necessity, also have had to plead guilty. There
was no evidence before
the arbitrator suggesting that Mxesibe had a
change of heart and thus pleaded guilty. Like the other employees he
was dishonest
during the misconduct and lied to investigators in his
first affidavit. If accomplice plea agreements are to be imported
into labour
law, it is best not to be sentimental about those who
accept them. Accomplice plea agreements are by-and-large
induced by
the avoidance of dismissal and not contrition. The
evidence these accomplice witnesses provide should also be evaluated
with this
in mind.
[44]
The absence of evidence of Mxesibe’s remorse does not, however,
mean that he is a valid
comparator
vis a vis
the employees.
What makes him different is that the employer, out of necessity and
using its discretion, exercised its discretion
to select him to be an
accomplice witness. He was the witness upon whose credibility his
employer decided to stake their case against
the other employees and,
absent any facts impugning the fairness of their choice, such a
choice does not in itself constitute inconsistency.
The arbitrator
failed to appreciate that Mxesibe’s selection as an accomplice
witness, which was not impugned in the evidence
before him, made him
different to the employees. This failure is a reviewable
irregularity.
[45]
Turning to Maharaj, the applicant’s argument that his
resignation and Mheshe’s request
for retirement are legally
distinguishable methods of terminating employment strikes me as
superficial. It asks that this court
permit form to trump substance.
Both Maharaj and Mheshe sought to bring their employment to an end
when confronted with accusations
of misconduct. Neither explicitly
showed remorse for their actions. In the circumstances of this case,
it matters little at which
stage of the process they made the
decision to seek a way out other than by dismissal. Mr Nduluzwana,
for Mheshe, correctly emphasized
that Maharaj’s resignation was
part of a settlement
agreement
. His resignation was not the
simple unilateral act, leaving the employer’s hands tied, that
the applicant makes it out to
be. This is because, an employer, faced
with an employee who resigns ahead of a disciplinary hearing, has the
option to convene
the disciplinary hearing during the employee’s
notice period and even conclude it. The department’s agreement
not to
pursue charges against Maharaj is an abandonment of this
statutory (in the public service) and contractual right to discipline
its employees up until the last day they are obliged to render
service. Indeed, viewed properly, Maharaj also obtained a type of
plea agreement. Its terms were that he would resign in exchange for
no adverse disciplinary or financial consequences.
[46]
The department’s previous head of department was one Zitumane
who gave evidence for the
employees. In response to his
evidence that Mheshe’s early retirement would have allowed
Mheshe to leave its employ
without “tarnishing” his
image, the applicant sought refuge in legal form to distinguish him
from Maharaj. The legal
form in which Mheshe unsuccessfully sought
termination was retirement, something he was two months away from
achieving in any event
by effluxion of time. Yet the department was
prepared to accommodate Maharaj’s desire to terminate his
employment on terms
which were self-evidently designed to prevent
Maharaj’s image being tarnished. Under cross-examination at the
internal hearing
and arbitration it was put to Mheshe that Maharaj
simply resigned whereas his retirement required his employer’s
consent.
As I have already found, this is only superficially so.
Maharaj’s exit from the department also required his employer’s
consent. This was consent not to commence disciplinary action against
him as it was entitled to do during his notice period and
thus
tarnish Maharaj’s image. In the circumstances of this case,
Mheshe sought a similar indulgence from the employer to
avoid
discipline in exchange for his imminent exit. He only wanted the
employer to hold off one month longer. While it was put
to Mheshe
that he was free to resign, it was certainly not put to him that the
employer would additionally agree, as it did for
Maharaj, to stop the
disciplinary process against him during the notice period and
guarantee that he suffered no financial prejudice
because of his
decision.
[47]
Moreover, it was common cause that Maharaj was the mastermind and
driving force in all three
of the charges Mheshe faced. The evidence
before the arbitrator showed Maharaj’s behaviour to have been
by far the most reprehensible.
In spite of this, the department did
not simply take note of his resignation and proceed with discipline.
The department agreed
additional terms with Maharaj that enabled
another way out. Resignation and retirement may be different in legal
form, but in the
context of this case and specifically with regard to
Mheshe, I can understand how the arbitrator found that this
distinguishing
feature was immaterial. Consequently, I decline to set
aside the arbitrator’s findings aside with regard to Mheshe.
[48]
The arbitrator failed to notice that Mheshe was found guilty of a
third offence, that of misusing
or conspiring to misuse the aircraft.
This is a reviewable irregularity. However, in the context of this
case it makes no difference
to the outcome. This is because I have
found that Maharaj was a valid comparator
vis a vis
Mheshe on
all three charges.
[49]
The arbitrator also made certain findings on the appropriateness of
sanction beyond pointing
to the comparators who were not dismissed.
These came down to trivialising the seriousness of the two charges of
which the employees
were found guilty or over-emphasising the extent
of mitigating factors (as already discussed). In particular, the
finding that
the trust relationship had not been damaged cannot be
reconciled with the nature of the misconduct of which the arbitrator
found
the employees guilty. This finding is at odds with the
prevailing law.
[12]
In my opinion, no reasonable decision-maker would have found that the
penalty for colluding to mislead the MEC about the misuse
of an
aircraft supposed to be used for medical emergencies warranted only a
final written warning.
[50]
Material errors of the sort set out above point to a
prima
facie
unreasonable result. The remaining question is whether, in
light of any other factors, the distorting effects of the
arbitrator’s
misdirections on inconsistency and sanction
rendered the result of the award unreasonable
[13]
.
The employees submit in this regard that there was, in any event,
insufficient sufficient evidence before the arbitrator
to allow him
find that dismissal was an appropriate sanction as the department
failed to lead any evidence on the breakdown of
the trust
relationship and that this is fatal to the review application.
[51]
There is no merit in this. In circumstances where employees are
guilty of gross dishonesty or
comparable misconduct, particularly in
relation to their core job functions, the
ratio
in
Edcon
[14]
does not apply. Since the ruling in
Edcon
,
the LAC has twice found that it is not, as an invariable rule,
necessary to lead evidence to establish a breakdown in the trust
relationship.
[15]
As a matter
of substantive law, certain forms of misconduct, such as colluding to
lie to the MEC about one’s misuse of an
emergency medical
aircraft, would destroy the employment relationship.
Conclusion
[52]
The arbitrator’s finding that the employees’ dismissal
was an inappropriate sanction
is, by and large, one that no
reasonable decision-maker would make. His misunderstanding or
misapplication of the evidence and
prevailing law on inconsistency
and severity of sanction has distorted the outcome of his award and
these findings fall to be set
aside.
[53]
The exception to the above is the arbitrator’s finding that
Mheshe’s dismissal was
substantively unfair by reason of
inconsistency. The reason this finding stands is that Maharaj, an
employee similarly placed to
Mheshe, was also allowed to exit the
employer on terms substantively denied to Mheshe. I have found that
the manner in which Mheshe
and Maharaj sought to bring their
employment to a close might have differed in legal form but they both
required the same indulgence
from the employer: to be allowed to
leave its employ, more or less immediately, with their reputations
intact. I point out that
Maharaj constitutes a comparator solely in
respect of Mheshe’s dismissal as no evidence was led that any
of the other employees
sought to exit the department as a response to
being accused of misconduct.
Relief
[54]
In the event that I set the award aside, the employees ask that I
remit the matter to the bargaining
council for a rehearing. The
applicant seeks an order setting aside the award and substituting it
with an order that the dismissal
of the employees was fair. Mr.
Myburgh argued that this court should exercise its discretion in
terms of
section 145(4)
of the LRA to finally determine the dispute
because the dismissal dates back to July 2010, this court is in as
good a position
as the bargaining council would be to decide the
matter and the outcome is, in submission, a foregone conclusion.
[16]
[55]
I agree with Mr. Myburgh’s submissions, except in respect to
the relief owed to Mheshe.
[56]
I notice from the identity number attached to Mheshe’s
application to retire, dated 17
May 2010, that he was at the time 64
years and five months old. I take judicial notice of the fact that
the usual age of retirement
in the public service is 65. There thus
appears to be no basis for a reinstatement order of 2 ½ years’
salary, later
varied to 3 years, if Mheshe’s dismissal occurred
six and half months shy of his normal retirement age. However,
sufficient
information is not before me to make a definitive ruling
on this. The relief awarded to Mheshe must be re-considered by the
PHSDSBC
taking into consideration relevant evidence and argument,
including whether retrospective backpay is to be awarded beyond the
date
Mheshe would in any event have retired.
Order
[57]
The second respondent’s findings that the dismissal of the
third, fourth, fifth and seventh
respondents was substantively unfair
and his order that they be reinstated with retrospective effect is
hereby reviewed and set
aside. This ruling is replaced with an order
that the dismissal of the third, fourth, fifth and seventh
respondents was fair.
[58]
The application to review and set aside the second respondent’s
finding that the dismissal
of the sixth respondent was substantively
unfair is dismissed.
[59]
The second respondent’s reinstatement order of 2 ½
years’ salary, later varied
to 3 years, in favour of the sixth
respondent is reviewed and set aside. The issue of the relief due to
the sixth respondent is
remitted to the PHSDSBC for a determination
de novo
, which inquiry must take into account the date on
which he would in any event have retired and any relevant matters
provided for
in
sections 193
and
194
of the LRA.
[60]
There is no order as to costs.
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicant: Adv A Myburgh, SC, instructed by Wesley Pretorius and
Associates
For
the third, fourth and fifth respondents: Wikus van Rensburg Attorneys
For
the sixth and seventh respondents: Adv M Nduzulwana, instructed by
Diko Attorneys
[1]
Boxer
Superstores (Pty) Ltd v Zuma & others
[2008] ZALAC 7
;
[2008]
9 BLLR 823
(LAC) at para 11: ‘The third respondent’s
award was manifestly irrational and, to that extent, the judgment of
Pillay
J is correct. It is irrational because the third respondent
gave no reasons for awarding compensation after having found that
the appellant had failed to discharge the onus in relation to
substantive [fairness].’
[2]
I
questioned this but the applicant agreed that
I
admit the evidence.
[3]
SA
Commercial Catering & Allied Workers Union & others v Irvin
& Johnson Ltd
(1999)
20
ILJ
2302
(LAC) at para 29;
ABSA
Bank Ltd v Naidu & others
(2015) 36
ILJ
602 (LAC) at para 37. See generally, PAK le Roux ‘Consistency
in discipline – a new trend from the courts?’
Contemporary
Labour Law
(2014) 24 (5) at 31.
[4]
Herholdt
v Nedbank Ltd
[2013]
11 BLLR 1074 (SCA).
[5]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and others
[2014]
1 BLLR 20 (LAC).
[6]
See
Head
of the Department of Education v Mofokeng
[2015]
1 BLLR 50 (LAC).
[7]
The
arbitrator does record that the employees also complained about the
lack of disciplinary action against Bambiso but he does
not make a
finding that Bambiso’s treatment actually constituted
inconsistency.
[8]
See,
inter
alia
,
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & others
[2009] 11 BLLR 1128 (LC).
[9]
ABSA
Bank Ltd v Naidu & others
(2015)
36
ILJ
602 (LAC).
[10]
Sidumo&
another v Rustenburg Platinum Mines Ltd & others
[2007]
12 BLLR 1097
(CC) at para 110: ‘Is the decision reached by the
commissioner one that a reasonable decision-maker could not reach?’
[11]
see also
Masubelele
v Public Health and Social Development Sectoral Bargaining Council
and Others (LC), unreported, (JR 1151/2008)
[12]
It
is well accepted by now that gross dishonesty warrants dismissal –
a point again made by the LAC in
ABSA
Bank Ltd v Naidu & others
(2015) 36
ILJ
602 (LAC) at paras 52-56.
[13]
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50 (LAC).
[14]
Edcon
Ltd v Pillemer NO & others
[2010] 1 BLLR 1
(SCA) at para 23
[15]
Anglo
Platinum (Pty) Ltd (BafokengRasemone Mine) v De Beer
[2015]
4 BLLR 394
(LAC) at para 19;
Department
of Home Affairs and another v Ndlovu and others
[2014] 9 BLLR 851
(LAC) at para 18. The finding in
Edcon
Ltd v Pillemer NO & others
[2010] 1 BLLR 1
(SCA) at para 23, is thus not an invariable rule and
must be read in the light of the facts of the case.
[16]
NUMSA
& another v Voltex (Pty) Ltd t/a Electric Centre & others
[2000]
5 BLLR 619
(LC) at 628F-H.