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[2017] ZALCJHB 316
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Mashigo v MEIBC and Others (JR1147/14) [2017] ZALCJHB 316 (31 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG
Not
Reportable
Case
No: JR 1147/14
In
the matter between:
THABISO
MASHIGO
Applicant
and
MEIBC
First
Respondent
MOHAMMED
RAFEE
Second Respondent
BEKA
(PTY)
LTD
Third Respondent
Heard:
13 July 2017
Delivered:
31 August 2017
JUDGMENT
NAIDOO
AJ,
Introduction
[1]
This is an application to review and set aside
the arbitration award issued by the second respondent on 5 July 2012.
In terms of
that award, the second respondent found that the
dismissal of the applicant by the third respondent was not unfair.
The applicant
also seeks an order remitting the matter back to the
first respondent for arbitration
de novo
.
Preliminary
Issues
[2]
The arbitration award in this matter is dated 5
July 2012. This application was launched on 17 June 2014,
approximately two years
after the award was issued.
[3]
In his founding affidavit in this application,
the applicant states that he was represented during the arbitration
proceedings by
his trade union at the time, the National Union of
Metalworkers of South Africa (NUMSA), and that he was never informed
of the
arbitration proceedings. He states further that he only became
aware of the arbitration award on 22 May 2014 when he enquired of
the
status of the proceedings from the first respondent.
[4]
There is
nothing in the papers before this Court to suggest that this
assertion is incorrect. I am accordingly satisfied that the
applicant
did indeed become aware of the award only in May 2014, and this
application has therefore been delivered within six weeks
of the date
on which the award was served on the applicant, and is thus within
the period prescribed by section 145(1)(a) of the
Labour Relations
Act (LRA).
[1]
[5]
The third respondent has also applied for
condonation for the late delivery of its answering affidavit in this
application.
That affidavit was delivered on 22 March 2016,
approximately six months after the applicant acted in terms of Rule
7A(8) of the
Rules of this Court. The applicant has not delivered a
notice of objection as required in terms of Item 11.4.2 of the
Practice
Manual of this Court, and I am in the circumstances of the
view that condonation is not necessary.
Material
Facts
[6]
The material facts in this matter are largely
common cause.
[7]
The applicant commenced employment with the third
respondent in May 2007 as a Luminaire Assembler.
[8]
In December 2011, the applicant together with
several other employees of the third respondent, were charged with
various acts of
misconduct following their submission of fraudulent
sick notes following their absence from work on various occasions.
Their charges
read as follows:
“
Gross misconduct
in that you have:
1.
Deliberately supplied incorrect or falsified information to
the
company in the form of a fraudulent doctors’ note.
2.
That this is considered fraudulent as it was not supplied by
a
doctor. This is a complete misrepresentation of the facts of your
absence.
3.
Dishonesty during the course of your employment in that you
have
purported to be sick when in fact you were not.
4.
Breach of the trust relationship.
5.
Undue enrichment in that you have been paid for sick leave that
you
were not entitled to.”
[9]
It was common cause that all of the third
respondent’s employees who were charged had indeed submitted
fraudulent sick notes
following their absence from work on various
occasions.
[10]
The applicant and several other employees were
found guilty of the allegations against them, and dismissed. However,
not all of
the third respondent’s employees who had submitted
these fraudulent certificates were dismissed. The third respondent
dismissed
only those employees, the applicant included, who had
submitted fraudulent certificates on three or more occasions.
[11]
Following an unsuccessful internal appeal, the
dismissed employees, through NUMSA, referred an unfair dismissal
dispute to the first
respondent for conciliation. Conciliation having
failed, the matter then proceeded to arbitration.
[12]
During the arbitration, the applicant’s
representative, an official from NUMSA, did not lead any evidence on
behalf of the
applicants. He admitted during the arbitration
that all of the applicants were indeed guilty of the charges against
them,
and challenged the fairness of the dismissals only on the basis
of the third respondent’s apparent inconsistency in the
application
of discipline.
[13]
The second
respondent commenced his analysis of the issues before him from the
premise that in order for the dismissal of the applicant
to be
unfair, it must be established that the differentiation in treatment
between the applicant and those of the third respondent’s
employees who were not dismissed for the same offence, was not
arbitrary, capricious, induced by improper motives or by a
discriminating
management policy. He did so, correctly in my view,
with reference to the judgment of the Labour Appeal Court in
SACCAWU
and others v Irvin and Johnson Ltd.
[2]
[14]
As stated above, it was common cause that all of
the employees who were charged were guilty of offences related to the
submission
of fraudulent sick notes following their absence from work
on different occasions. It was also common cause that the reason why
some employees were not dismissed was because they had submitted
fraudulent sick notes on two or less occasions in the past, whereas
the applicant and the other employees who were dismissed had done so
on three occasions. The second respondent then proceeded to
assess
whether the actions of the third respondent in differentiating
between employees on this basis was arbitrary, capricious,
induced by
improper motives or by some discriminating management policy.
[15]
In doing so, the second respondent considered,
inter alia
, two
important judgments of this Court and the Labour Appeal Court that
similarly considered issues of inconsistency in circumstances
where
prior the disciplinary records of the dismissed employees was the
differentiating factor. I consider those judgments below.
[16]
The second respondent then found that the
differentiation on the basis of the number of prior warnings for the
same offence was
not arbitrary, and concluded that the dismissal of
the applicant was accordingly not unfair.
[17]
In his founding affidavit in this application the
applicant challenges the arbitration award on two bases. First, he
states that
the second respondent committed a gross irregularity by
failing to call upon the applicant and the other dismissed employees
to
give evidence at the arbitration, and proceeded to assess the
fairness of their dismissals solely on the basis of the evidence
presented by the third respondent. Second, the applicant states that
the second respondent committed a gross irregularity in that
he
failed to properly apply his mind to the issues before him in that he
found that the dismissals were unfair in circumstances
where other
employees who were guilty of the same offence were not dismissed. I
consider the latter ground first.
[18]
As appears from the summary of the second
respondent’s assessment of whether there was indeed a
satisfactory reason to distinguish
between the two categories of
employees, the second respondent was indeed alive to the issues he
was required to consider.
[19]
In
NUM
and Another v Amcoal Colliery t/a Arnot Colliery and Another
[3]
two employees of the respondent were dismissed on allegations of
refusing to obey a lawful instruction whereas three others were
issued with less severe sanctions for the same offence. The Labour
Appeal Court, per Mogoeng AJA (as he then was), stated the following:
“
[21] Even on the assumption
that the present offence is unrelated to the previous misconduct, I
still do not think the second appellant’s
disciplinary record
should have been disregarded. The first respondent’s
disciplinary code provides for a progression of
penalties. The
rationale behind it must have been that there would come a stage
beyond which the accumulated penalties cannot be
allowed to progress
further. Their cumulative effect would then provide clear evidence of
ill-discipline which would render a continued
employer-employee
relationship intolerable.
[22] There was therefore justification
for a differentiation of the penalties imposed on the three
categories of employees. Each
penalty was dictated by the different
disciplinary record of each category of employees. All the
circumstances of this case point
to dismissal as the appropriate
sanction for the second appellant.”
[20]
In a
separate judgment, Zondo AJP (as he then was), agrees with these
findings of Mogoeng AJA and notes in addition that his agreement
is
not to be seen in conflict to his earlier judgment in
SACTWU
and others v Novel Spinners (Pty) Ltd
.
[4]
He sates in addition the following:
“
My agreeing with Mogoeng AJA
that the respondent was entitled to take into account the second
appellant’s previous warnings
is not in conflict with my
judgment in
Novel Spinners
. What was argued by the appellants
in this case about previous warnings is not the same point as the one
that was argued by the
applicants in the
Novel Spinners
case.
In
Novel Spinners
it was argued that an employer is not
entitled to take into account previous warnings which were in respect
of individual misconduct
when considering what sanction to impose in
respect of collective action. In this case, the appellant’s
case, upon a proper
analysis of the statement of claim and the heads
of argument, was that, by virtue of the fact that the conduct for
which the previous
warnings had been issued was not related to the
conduct in respect of which the respondent had to decide an
appropriate sanction,
the employer was not entitled to take such
previous warnings into account. These are two different points. In my
view, the former
has merit, the latter none.”
[21]
It is this
issue – the consideration of prior disciplinary records for
individual misconduct in the determination of disciplinary
penalties
for collective misconduct that was considered by this Court in
SATAWU
v Ikhwezi Bus Service (Pty) Ltd.
[5]
Van Niekerk AJ (as he then was) stated the following:
“
[25] In summary,
an employer
is entitled in general terms to impose different penalties on
different employees for the same act of misconduct, provided
there is
a fair and objective basis for doing so. When an existing
disciplinary record is the differentiating factor, prior disciplinary
action short of dismissal (in particular, warnings) can be relevant
in two ways. If the disciplinary record of one employee discloses
prior disciplinary action short of dismissal, this can (I would
suggest must) be taken into account when the employer decides on
an
appropriate sanction
. Thus, in general terms, the nature and
extent of prior sanctions can legitimately form the basis of a
differentiation in penalty,
even when the nature of the misconduct
differs. An exception applies when the employer considers an
appropriate sanction for misconduct
that is collective in nature. In
this instance, prior disciplinary sanctions for individual misconduct
cannot be used to justify
a differentiation in penalty. The employer
has no choice but to impose the same sanction in respect of all the
employees engaged
in the collective misconduct. However commercially
compelling the considerations, to which Mr Myburgh referred in his
evidence,
may have been at the time, they were not legitimate basis
on which to select for dismissal only those employees whose
disciplinary
records disclosed final warnings for acts of
misconduct.” (Own emphasis)
[22]
In the present matter, the prior disciplinary
records considered in the determination of sanction for the applicant
was for precisely
the same offence as the one for which he was found
guilty and ultimately dismissed. So too was it for the other
employees who were
disciplined for the same offence. They all related
to prior individual acts of misconduct.
[23]
The irregularity complained of by the applicant
in this regard is that the second respondent failed to apply his mind
to the material
facts and as a result arrived at an “inexplicable”
conclusion. The only basis provided by the applicant for this
criticism
of the second respondent’s award is that “the
record succinctly shows that there were other employees who committed
the same offences the Applicant committed [who] were not dismissed,
but given final written warning[s]”.
[24]
I do not agree. It is plain from a reading of the
arbitration award that the second respondent properly applied his
mind to the
material issues before him and to the judgments of this
Court and the Labour Appeal Court referred to above. He found in
those
circumstances that, in his view, the differentiation then on
the basis of the number of prior warnings was not arbitrary or
capricious.
There was also no evidence of any ulterior motive of any
discriminatory management policy.
[25]
In my view,
the second respondent committed no irregularity in this respect, and
he arrived at a conclusion that is entirely reasonable
on the
material before him. As Nugent AJA (as he then was) found in
Cape
Town City Council v Masitho and others
:
[6]
“
[T]here may be valid grounds in
a particular case to distinguish one employee from another, albeit
that they have engaged in the
same conduct, on the basis of their
respective records, or on the basis of other material factors (see,
for example,
National Union
of Mineworkers and others v Amcoal Collieries and Industrial
Operations Ltd
(1992)
13 ILJ 1449 (LAC)
at
1453B;
National Union of
Mineworkers and others v Free State Consolidated Gold Mines
(Operations) Ltd - President Steyn Mine; President
Brand Mine;
Freddies Mine
(1993)
14 ILJ 341 (LAC)
at
357J; Le Roux
and
Van Niekerk SA Law of Unfair Dismissal at 110-11) but in the absence
of material distinguishing features equity would generally
demand parity of treatment”.
[26]
As I have stated above, I am of the view that in
the present circumstances the prior disciplinary records of the
applicant and those
of the third respondent’s employees who
were issued with less severe sanctions was a material distinguishing
factor. The
third respondent was therefore, in my view, entitled to
take into consideration the prior disciplinary records of the
employees
in the determination of sanction.
[27]
However,
even if it were to be said that the second respondent did commit an
irregularity in the assessment of whether the differentiation
was
arbitrary, I do not think that it can be said that the result at
which he ultimately arrived is unreasonable. At the very least,
the
second respondent understood the nature of the enquiry he was
required to conduct and he embarked on a proper analysis of the
key
questions before him. The award in those circumstances ought not to
be interfered with (see in this regard the judgment of
the Labour
Appeal Court in
Head
of the Department of Education v Mofokeng and others)
.
[7]
[28]
Regarding the applicant’s second ground of
review relating to the second respondent’s alleged failure to
call any of
the individual applicants to testify during the
arbitration, I am similarly of the view that this ground has no
merit.
[29]
As stated above, the applicant and his fellow
applicants in the first respondent mandated their trade union at the
time to refer
the unfair dismissal dispute on their behalf to
conciliation and to represent them during the arbitration.
[30]
The official from NUMSA who represented the
applicants at the arbitration elected not to lead any evidence during
the proceedings
but rather to argue the matter on the crisp legal
point of whether the dismissals should be found to be unfair on the
basis of
the differentiation used by the third respondent in deciding
which employees should face what sanction.
[31]
Without making any definitive pronouncement on
this issue, this approach does not strike me to be particularly
problematic given
the facts of this case. The transcript of the
arbitration proceedings confirms that the manner in which the
proceedings were
conducted by the second respondent was not
inconsistent with the views of the parties and the material facts
relevant to the determination
of the issues at arbitration were
largely common cause.
[32]
It cannot
in these circumstances be said that the second respondent committed a
gross irregularity, patent as it is alleged to be,
in this regard
that prevented the applicant from having his case fully and fairly
determined (
Shoprite
Checkers (Pty) Ltd v Ramdaw NO and others;
[8]
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration and others
.
[9]
[33]
For the reasons set out above, I am of the view
that the arbitration award of the second respondent is unassailable.
[34]
Regarding costs, having regard to the
requirements of the law and fairness as this Court is required to do
in terms of section 162
of the LRA, I do not consider this a matter
necessitating an order for costs.
[35]
In the circumstances, I make the following order:
Order
1.
The application to review and set aside the
arbitration award of the second respondent under case number MEGA
35267 is dismissed.
2.
There is no order as to costs.
_______________
Naidoo
AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr J Ngubane (Trade
Union official)
For
the Third Respondent: Ms A Davies, Johanette Rheeder Inc.
[1]
Act 66 of 1995.
[2]
(1999) 8 BLLR 741 (LAC).
[3]
(2000) 8 BLLR 869
(LAC).
[4]
(1999) 11 BLLR 1157 (LC).
[5]
(2008) 10 BLLR 995 (LC).
[6]
(2000) 21 ILJ 1957 (LAC).
[7]
(2015) 1 BLLR 50 (LAC).
[8]
(2000) 7 BLLR 835
(LC).
[9]
(2016) 3 BLLR 217
(CC).