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[2017] ZALCJHB 202
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PRASA Metrorail v Commission for Conciliation, Mediation and Arbitration and Others (JR1914/16) [2017] ZALCJHB 202 (26 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
reportable
Case
no: JR 1914/16
In
the matter between
PRASA
METRORAIL/METRORAIL
GAUTENG
SOUTH
First Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
M.P
SHAI N.O.
Second Respondent
RUDZANI
CHARLOTTE MULAUDZI
Third Respondent
UNITED
NATIONAL TRANSPORT
Fourth
Respondent
UNION
Heard:
17 January 2017
Delivered:
26 May 2017
JUDGMENT
MAKINTA
AJ
Introduction
[1]
This is a review application against an
Award issued by the first and second respondents, to the effect that
the dismissal of the
third respondent, Rudzani is unfair because the
applicant had previously sanctioned another employee guilty of the
same misconduct
with a final written warning valid for twelve (12)
months.
[2]
The applicant further applies for the
substitution of United National Transport Union (UNTU) for South
African Transport and Allied
Workers Union (SATAWU) as the employee’s
representative union, and for the condonation of its late service of
the review
on UNTU.
Background
[3]
The applicant (Prasa) employed the third
responded (Rudzani) as a track worker, based in Wolmeton Perway.
[4]
Prasa charged Rudzani with four charges of
misconduct, all of which related to one conduct, that is,
representing to people seeking
employment by Prasa that she could
help them to get employment, and taking money from such applicants.
[5]
Prasa found her guilty of the charges, and
dismissed her. She then referred the dispute to the CCMA.
[6]
At arbitration, the parties agreed that,
the only issue the arbitrator had to determine was whether or not
Prasa had acted consistently
and fairly, by dismissing Rudzani for
the conduct, whilst it had previously sanctioned an employee guilty
of the same misconduct,
that is, Mungwapane, with a final written
warning valid for twelve (12) months.
[7]
At the end of the arbitration, the second
respondent, arbitrator Shai, found that Prasa had acted
inconsistently and unfairly, by
sanctioning Rudzani with dismissal,
whereas it had previously sanctioned Mungwapane, who was guilty of
the same or similar misconduct,
with a final written warning valid
for twelve (12) months.
[8]
This review application is against the said
Award.
Grounds
of review
[9]
The applicant contends that, the arbitrator
misapplied the parity principle, in that he found that Prasa was
bound to sanction Rudzani
with the same sanction as Mungwapane.
[10]
Prasa further contends that, the arbitrator
has ignored evidence to the effect that, the final written warning
with which the previous
employee had been sanctioned, was too
lenient, and that dismissal is the only appropriate sanction, taking
into account the gravity
of the misconduct, and that it was committed
at least twenty five (25) times in a period of a year.
[11]
Finally, Prasa contents that, the
arbitrator failed to take into account the competing interest of the
employer and employee.
[13]
The above grounds of review are too vague, and lack the particularity
required by the law. Therefore, the review should be
dismissed on
this basis alone.
The
Award
[14]
The arbitrator found that, the issue of
inconsistency was raised, Prasa investigated it, and found that,
indeed, an employee, Mungwanape,
had previously been found guilty of
the same or similar misconduct as Rudzani, and sanctioned with a
final written warning, valid
for (12) months.
[15]
According to the evidence before the
arbitrator, discovering this, Prasa charged the person who had
presided on the case of Mungwanape,
Phaladi, for not sanctioning
Mungwapane with dismissal, and sanctioned him (Phaladi) with a
warning.
[16]
The arbitrator found that, whilst Prasa
took action against Phaladi, it did not take any step to remove the
inconsistency complained
of, and that, the inconsistency remained
intact.
[17]
He considered that, Mungwnape remains
employed by Prasa, whilst Rudzani was dismissed.
[18]
He found that, the misconduct in both cases
is the same, but the sanction differed, and that there is no valid
basis for the differential
treatment.
[19]
The arbitrator found that, Prasa had to
give the same sanction in both cases, and issue a circular to
employees that, whilst it
had previously sanctioned employees guilty
of the misconduct with a final written warning, it would henceforth
issue dismissal
sanctions, failing which, re-open the case of
Mungwanape, to reconsider his sanction.
[20]
He eventually found that, the dismissal
sanction in this case is unfair on the basis of inconsistency.
Analysis
and Evaluation
[21]
It has to be noted that, the court file in
this matter is in a messy state. On the other hand, the transcript
appears to be incomplete.
For instance, the beginning part of the
evidence of Conrad, the applicant’s witness, seems to be
missing.
[22]
The
parity principle requires that like cases should be treated alike. In
ABSA
Bank Ltd v Naidu & Others
[1]
Ndlovu
JA stated that the parity principle should not be “
applied
willy-nilly without any measure of caution
”.
Further, in paragraph 41, the learned judge of appeal suggested that,
for the parity principle to be applied, the two matters
must be so
similar as to warrant that they should have both been treated in the
same way in terms of sanction.
[23]
The Court further stated that inconsistency
is not conclusive to the issue of the fairness of the sanction, but
it is just one of
the factors to be considered.
[24]
Coming
to the present case, the evidence was that, the misconduct committed
in both cases is exactly the same, and there is no basis
for
distinction. In terms of the Code of Good Practice: Dismissal, item
7(b)(ii) requires that an arbitrator must determined whether
or not
the employee was aware or could reasonably have been aware of the
existence of the rule.
[2]
It is also trite law that, knowledge of the rule includes knowledge
of the possible sanction which can be imposed. In this case,
the
employee could not have known or expected to know before commission
of the misconduct, that dismissal was a possible sanction.
On the
contrary, he had reason to expect a sanction no worse than a final
written warning. Therefore, considering this fact, the
Award is
reasonable.
[25]
Prasa’s ground of review to the
effect that, the arbitrator had found that it was bound to sanction
Rudzani with a final written
warning just like Mungwanape is not
correct.
[26]
The essence of the arbitrator’s
finding is that the misconduct committed in both cases is so similar
as to warrant the same
sanction, and there is no evidence on record
to the contrary.
[27]
In an attempt to explain why dismissal is
appropriate, Prasa led evidence to the effect that, Phaladi had
sanctioned Mungwanape
with a wrong sanction, but presented no
evidence to the effect that, in terms of its policy, it was not
permissible for a chairperson
to impose that sanction.
[28]
Therefore, Prasa has not proved that,
indeed, the final written warning imposed on Mungwanape was a wrong
sanction.
[29]
Prasa seems to have held a view that,
unless it did something about the sanction imposed by Phaladi on
Mungwanape, the sanction
on Rudzani would be unfair hence it took
disciplinary steps against Phaladi.
[30]
The arbitrator found that, the fact that
Prasa sanctioned Phaladi for not imposing dismissal as a sanction has
no bearing on the
fairness of the sanction imposed on Rudzani, as
opposed to that of Mungwanape.
[31]
The arbitrator was quite cautious, and he
considered that Prasa took no step which addressed the differential
treatment of the two
employees, and that there is no evidence of the
conduct of anyone of them being more dishonest or faulty than the
other’s.
[32]
The arbitrator considered that Prasa still
keeps in its employ Mungwanape, who is no less dishonest or guilty
than Rudzani, and
found that, in his sense of fairness, the dismissal
sanction against Rudzani is unfair.
[33]
He correctly could not find any bases for
distinguishing the two cases.
[34]
He referred to the options available to
Prasa, that is, re-opening the case of Mungwanape and reconsidering
the sanction imposed
by Phaladi, or imposing the same final written
warning imposed against Mungwanape on Rudzani, and then issuing a
circular informing
its employees that, henceforth, they should not
expect a final written warning for the same misconduct.
[35]
This is clearly in line with Schedule 8,
which requires that, not only should the employee have been aware or
reasonably to have
been aware about the rule breached, but also the
sanction applicable to breach of the rule.
[36]
In this case, on all the evidence, the only
sanction Rudzani knew, or was reasonably expected to have known, is a
final written
warning.
[37]
The arbitrator’s finding in this
regard is consistent with established law, and is reasonable.
[38]
Rudzani did not profit from a wrong
sanction imposed in Mungwanape’s case, as there is no evidence
that Mungwanape’s
sanction is in any way wrong. On the
contrary, the evidence reveals that, Prasa has not lost trust in
Mungwanape, and continues
to employ him.
[39]
According to the evidence on record, the
only explanation given for Rudzani’s harsher sanction is that a
final written warning
is too lenient, and this is according to the
view of Masilela, Prasa’s witness. He did not refer to any
policy or practice
of Prasa in terms of which the sanction is too
lenient to be imposed.
[40]
Whilst it is correct that, different
chairpersons might hold different views about an appropriate sanction
for a similar misconduct,
those views must be rational on the bases
of the reasons given, or on the objective facts. In this case, the
chairperson’s
reasons for imposing dismissal are not clear.
[41]
In this case, Prasa led no evidence of the
chairperson in Rudzani’s case, to explain why he found
dismissal to be appropriate.
Masilela speculated that, it was because
of the misconduct is serious, and that Rudzani had committed the same
conduct twenty five
(25) times. However, there was no evidence
that Mungwanape had committed it lesser times than Rudzani. On the
contrary, the common
cause evidence was that the two employees were
guilty of misconduct that was the same, and therefore, the arbitrator
had reason
to believe that the misconduct was the same in all
respects.
[42]
There is no evidence to prove that, the
only appropriate sanction is dismissal, contrary to one of the
grounds of review raised
by Prasa.
[43]
Prasa contends that, the arbitrator failed
to consider the competing interests of the employer and the employee,
but failed to particularize
this contention. On the available
evidence, the competing interests in both cases are the same.
[44]
Counsel for the applicant contended that,
although the arbitrator has considered whether or not the two cases
have distinguishing
features, and if the Prasa has issues a circular
to employees stating that the past practice of giving a final written
warning
for this misconduct will no longer be tolerated, he failed to
consider whether the final written warning is clearly wrong, and that
to continue with it would unfairly prejudice Prasa.
[45]
Prasa has given no evidence to the effect
that a final written warning would be in breach of any workplace
rule, policy or standard.
There was no evidence that Prasa had at any
stage before sanctioned an employee with dismissal for the same
misconduct. There was
no evidence of the wrongfulness of the final
written warning as a sanction. Therefore, the Award is reasonable in
this regard.
[46]
Counsel further contended that, to continue
with the practice would unfairly prejudice Prasa. However, the Award
is not to the effect
that the practice must continue. Prasa is free
to, after giving Rudzani a final written warning just like
Mungwanape, issue a circular
to all its employees to the effect that,
they should not again expect a final written warning for the
misconduct, but dismissal.
[47]
Therefore, this contention cannot be
sustained.
[48]
The issue before this Court is not whether
or not the Award is correct, but whether or not it is reasonable.
[49]
It is clear from the above that, the Award
is sustainable, not only on the reasons given by the arbitrator, but
also on the evidence
before the arbitrator.
[50]
In the light of the above, the review
should be dismissed on the basis that it is based on grounds which
lack the particularity
required by the law.
[51]
On the other hand, the review should be
dismissed also because Prasa has failed to prove that the Award is
unreasonable and such
that no reasonable arbitrator could have made.
Order
[52]
In the light of the above, the following
order is made:
1.
The United National Transport Union (UNTU)
is hereby substituted for the South African Transport and Allied
Workers Union (SATAWU)
as the fourth respondent.
2.
The applicant’s late service of this
review application on UNTU is condoned.
3.
The review application is dismissed.
4.
There is no order as to costs.
_________________
E.S.
Makinta
Acting
Judge of the Labour Court OF South Africa
Appearances
For
the Applicant:
D Norton of Mkhabela Huntley Adekeye Inc.
For
the Respondent:
No Appearance
[1]
(2015) 36
ILJ 602 (LAC) at para 36.
[2]
Item
7(b)(ii) provides that:
“
Any person
who is determining whether a dismissal for misconduct is unfair
should consider—
(b)
if a rule or standard was contravened, whether or not—
. . .
(ii)
the employee was aware, or could reasonably be expected to have been
aware,
of the rule or standard.”