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[2017] ZALCJHB 335
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G4S Cash Services SA (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR1103/13) [2017] ZALCJHB 335 (6 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
CASE NO. JR 1103/13
In
the matter between:
G4S
CASH SERVICES SA (PTY) LTD
Applicant
and
NATIONAL
BARGAINING COUNCIL FOR THE
ROAD
FREIGHT AND LOGISTICS INDUSTRY
First Respondent
COMMISSIONER
THLOTHLAMEMAJE
N.O
Second Respondent
SATAWU
obo JERRY MATLALA
Third Respondent
H
eard:
03 May 2017
D
elivered:
06
September 2017
Summary:
Review application: Arbitrator correctly applied
relevant principles
on inconsistency. Review application dismissed.
JUDGMENT
BALOYI
AJ
Introduction
[1]
The arbitration award issued by the Second Respondent is subject
matter of this application. The Applicant is seeking its review
and
set aside though referred to as a
ruling
in the Applicant’s notice of motion. The Second Respondent
found the Third Respondent’s dismissal substantively unfair
and
accordingly awarded him relief of reinstatement coupled with back
pay. The Third Respondent opposed the application and further
brought
a preliminary point that was ultimately argued before me. The Third
Respondent further filed an application in terms of
section 158 (1)
(c) of the Labour Relations Act
[1]
(LRA) seeking an order making the arbitration award an order of Court
which the Applicant opposed.
Preliminary
issues
[2]
The only point pursued during arguments was about the Applicant’s
failure to attach the arbitration award to its papers
and such
omission remained stuck to the matter throughout the process of
prosecution of the review application. Up to the date
of the hearing
still there was no attempt from the Applicant to have the arbitration
award filed. The Third Respondent relied on
the case of
ABSA
Bank v Standard and Another
[2]
to argue that the Court lacked jurisdiction to deal with the review
application due to absence of the arbitration award.
[3]
Given the above objection it is of high importance to first have a
look at the point raised as I am inescapably called upon
to
determine. The absence of a document forming part of the subject
matter of litigation certainly has the effect of rendering
the
application defective. The obvious reason being that the Court falls
to be deprived of the insight to the contentious issues
within such
document. Section 145 of the LRA does not provide for nor make it
mandatory that an arbitration award must be attached
to the
Applicant’s founding papers. Attaching a copy of the
arbitration award has over the years been the most appropriate
practice in cases of this nature. The omission to do so cannot
necessarily render the application fatal. The application may however
be fatal if the Applicant also failed to ensure that the award forms
part of the decision maker’s reasons dispatched in terms
of
Rule 7A(2) and 7(A)(3) of the Rules of conduct of proceedings in this
Court. For reasons not at the Court’s disposal the
Applicant
elected to file a transcript of the record of arbitration proceedings
only. The bundle of documents used during such
proceedings are
normally accompanied by the arbitrator’s reasons and the
arbitration award was never filed. It is worth mention
that on
reading of the transcript many references were made to the documents
which the Applicant strongly relied upon to prove
its case but not
included in the record.
[4]
In so far as this application is concerned, I am of the view that
dismissal of the application based on the omission to attach
the
arbitration award may be a radical measure under the circumstances.
This should by no means be construed as the Court’s
condonation
of lack of diligence in litigation. My view is based on the reason
that in the Third Respondent’s application
in terms of section
158 (1) (c) the arbitration award in question has been attached.
Proper application of discretion favours consideration
of the review
application on its merits as the Court had sight of the very
arbitration award which the Applicant sought to be reviewed
and set
aside. Furthermore, the Third Respondent will not suffer any
prejudice in this regard.
Background
[5]
The Applicant and the Third Respondent entered into employment
relationship in September 2005. The dismissal of the Applicant
on 21
December 2010 brought this relationship to an end. He was found
guilty of various counts of misconduct for failure to follow
procedures in performance of his duties as a custodian. His duties as
described and understood by both parties were to replenish
the ATM’s
that is to load cash into these machines.
[6]
Performance of his duties normally commenced upon being handed an
assignment or a spreadsheet known as Cash Receipt Voucher
(CRV) which
identified ATM’s he had to fill during his shift. The CRV also
contained information as to amounts received by
a Custodian in the
Stop Loss Bags (SLB). He was required to acknowledge receipt of the
SLB’s by initialling and signing of
the CRV that monies
contained in the SLB’s were correct. Failure to follow these
steps created situations which the Applicant
found itself without
proper record of movement of funds. This caused difficulties towards
addressing clients’ complaints
about shortages. The Applicant
could be easily held liable for such
shortages.
[7]
On his return in the afternoon, the custodian was required to scan
back to the box room the bar codes of the SLB’s containing
surplus monies which were not filled into ATM’s. This was done
to ensure that the staff in the box room maintained paper
trail
regarding further movement of monies. This HHT scanning system
replaced the manual type that was carried out by way of completion
of
a normal receipt. Should a technical problem be experienced with the
HHT system, the Custodian had a duty to inform the controller
who
should complete an OB to that effect. If all monies given to the
Custodian happened not to fit into the relevant canister of
the ATM,
the surplus monies should be properly sealed in another SLB to avoid
losses.
[8]
Since there was no bundle of documents filed as part of the record,
the Court accepts that the charges against the Third Respondent
are
as recorded in the award as follows:
“
(i)
Failure to comply with
the correct operating procedures.
·
On the 25/10/2010 you
failed to complete the CRV properly.
·
The 01/10/2010 you failed
to use the HHT to return bags to CMC which is detrimental to the
implementation of the E-Viper system.
·
On 24/09/2010 you
returned money to CMA without securely sealing the money in another
stop-loss bag.
·
On 22.10.20, ATM
Solutions reported a shortage of R1 000-00 which was confirmed
after the ATM was swopped, for which you cannot
account for”.
[9]
It was common cause before the Second Respondent that the Third
Respondent did not complete the CRV. According to the Third
Respondent it was not a hard and fast rule that the CRV must always
be completed. The Applicant’s decision to charge and
dismiss
him was a result of inconsistent application of discipline. He was
not the only one who breached the procedures, the counting
officers
also failed in this respect and they were not dismissed. This was not
disputed by the Applicant’s witness, Jacobus
Hendrick De Beer.
[10]
The Second Respondent found no merit on the Third Respondent’s
reason that he failed to use the HHT Scanner because it
was faulty.
The finding was based on the Third Respondent’s failure to
produce the record of reporting the fault to the controller.
He
further found the Third Respondent’s failure to correctly
complete the CRV, failure to use HHT scanner and the use of
bulk bags
in returning the money instead of SLB’s could not be
attributable to a loss of R1000-00 that was not accounted
for.
[11]
His analysis of the evidence caused him to arrive at a conclusion
that the Third Respondent was guilty of offences he was charged
with.
He found the sanction of dismissal inappropriate due to the
Applicant’s inconsistent application of discipline and
that the
underlying transgressions forming part of the misconduct in question
did not reveal dishonesty. He also found that no
evidence was led to
support the Applicant’s argument that the trust relationship
had broken down.
The
Applicant’s grounds of review
[12]
The prime focus on the Applicant’s grounds was heavily rested
on the Second Respondent’s reliance on inconsistent
application
of discipline. The Second Respondent had as a result made an
incorrect finding that the sanction of dismissal was not
appropriate
based on inconsistency. This finding was according to the Applicant
made despite the Second Respondent’s acknowledgement
of risks
attached to the nature of the Applicant’s business. Having
drawn negative inferences against the Applicant to arrive
at his
findings was indicative of his failure to consider all facts placed
before him. He failed to consider the Third Respondent’s
concessions that he did not complete the CRV form, did not make use
of HHT scanner and that he used bulk bags instead of SLB’s.
The
Applicant further attacked the Second Respondent’s finding of
inconsistency for being unsubstantiated and incorrect as
it is rooted
on failures on the part of counting officers and ATM official to sign
the CRV form. His finding that the loss of R1000-00
could not be
attributed to the Third Respondent’s failure to complete the
CRV form and to use the HHT scanner was incorrect
and not supported
by evidence.
[13]
The Applicant’s grounds were taken further during arguments as
Mr Crafford pointed that the Third Respondent’s
changes to his
version in arbitration proceedings was sufficient to find that the
trust relationship had broken down. By concluding
the matter on
inconsistency with no record before him regarding the other matters
demonstrated the Second Respondent’s failure
to consider all
the facts placed before him.
[14]
The Second Respondent’s decision should be found to be a
reasonable one given that it was a known fact that other employees
who committed similar misconduct were not dismissed. This was pointed
out by Mr Potas for the Third Respondent who further argued
that De
Beer conceded on this point. Other employees such as Motloung had
shortages and were also not dismissed. Contrary to the
Applicant’s
contentions, the issue of inconsistency was indeed raised at the
disciplinary hearing. It did not come as a new
issue during
arbitration proceedings.
Analysis
[15]
The facts of this matter reveal that the Second Respondent was mainly
tasked to determine whether the sanction of dismissal
was
appropriate. That the Third Respondent breached the rules was not in
dispute and he had to take into account all surrounding
factors to
arrive at his decision. He dealt with the matter on charge by charge
basis and scrutinized the Third Respondent’s
justifications on
each charge which he accepted except for failure to use the HHT
scanner. The varying findings regarding the Third
Respondent’s
justifications still came to one result that the Third Respondent was
guilty of failure to adhere to procedures.
[16]
In cases where failure to comply with operational procedures is the
subject matter, it becomes most imperative to conduct an
enquiry on
the extent of such breaches, that is prior to coming to a conclusion
whether a sanction of dismissal was appropriate
or not. It makes more
sense for me to paste a compressed summary of facts of the
Sidumo
[3]
case as dealt with by the
Constitutional Court, courtesy of Sangoni AJA in the Labour Appeal
Court’s judgment of
Edcon
Ltd v Pillemer NO and Others
[4]
in paragraph 20 who simplified them as follows:
“
[20]
I proceed to briefly outline the facts in the
Sidumo
case. The employee was a security officer whose duty was to search
employees before leaving a certain point. Video surveillance
revealed
that he had, in 24 specifically monitored instances, conducted only
one search in accordance with established procedures.
On eight
occasions, he conducted no search at all. Fifteen other searches did
not conform to the procedures. The video also confirmed
that
Sidumo
allowed persons to sign the search register without conducting any
search at all. For this he was dismissed. The commissioner took
into
account the employee’s long service, the fact that no losses
appear to have resulted from his failure to perform his
duty, that
the violation had been unintentional or a ‘mistake’ and
that it had not been shown that the employer had
been dishonest and
found that the dismissal was too harsh a sanction. He did not
consider the offence committed to “go into
the heart of the
relationship (with the employer), which is trust”. This
resulted in the award reinstating the employee.”
[17]
The Constitutional Court in
Sidumo
did not fault the commissioner for finding that dismissal was not an
appropriate sanction based on the reasonableness test
[5]
.
In considering this it was held as follows at paragraph 177:
“
Equally
true is that when an employer determines what is an appropriate
sanction in a particular case, the employer may have to
choose among
possible sanctions ranging from a warning to dismissal. It does not
follow that all transgressions of a particular
rule must attract the
same sanction. The employer must apply his or her mind to the facts
and determine the appropriate response.
It is in this sense that the
employer may be said to have discretion.”
[18]
The Labour Appeal Court in
Edcon
without hesitation followed the
Sidumo
approach with approval
[6]
.
It is highly notable that over the years the Courts exercised caution
when dealing with cases where inconsistent application of
discipline
happened to be an issue. The inconsistency issue in this matter
emerged out of repeated misconduct related to non-compliance
with
procedures which is usually characterized as
comparing
apples with apples
. It is
trite that a plea of inconsistency should to a large extent be
sparingly upheld by arbitrators when raised. With or without
invitation the arbitrator is required to apply a discretion that is
upon consideration of all facts placed before him/her. The
reason
being that the raising of inconsistency cannot automatically come as
a bar to imposition of dismissal. The Court clearly
elaborated on
this point in
Conmed Health
CC v Bargaining Council
for
the
Chemical Industries and
Others
[7]
at paragraph 8 as follows:
“
As
stated previously by this court the parity rule does not take away
the right of the employer to impose different sanctions on
employees
who were involved in the same act of misconduct. The issue
when
faced
with the complaint that the employer has applied discipline
inconsistently is to consider the fairness of such inconsistent
application of discipline. In other words, the differential sanctions
do not automatically lead to the conclusion that the dismissal
was
unfair. The fairness of the dismissal has to be determined on the
basis of
whether
the employer, in imposing differential sanctions, acted unfairly. In
assessing the fairness of a dismissal in a case involving
the
imposition of differential sanctions, the commissioner has to
consider whether there is an objective and fair reason for imposing
different sanctions for misconduct arising from the same offence.”
[19]
In
National
Union of Mineworkers on behalf of
Botsane
v Anglo Platinum mine (Rustenburg section)
[8]
The Labour Appeal Court emphasized the importance of raising the
inconsistency case from the beginning of the proceedings and with
relevant detail. The following was thus said at paragraph 39:
“
Moreover,
as a matter of practice, a party, usually the aggrieved employee, who
believes that a case for inconsistency can be argued,
ought, at the
outset of proceedings, to aver such an issue openly and unequivocally
so that the employer is put on proper and fair
terms to address it. A
generalised allegation is never good enough. A concrete allegation
identifying who the persons are who were
treated differently and the
basis upon which they ought not to have been treated differently must
be set out clearly. Introducing
such an issue in an ambush–like
fashion, or as an afterthought, does not serve to produce a fair
adjudication process. (See:
SACCAWU
and Others v
Irvin
and
Johnson Ltd
(1999)
20 ILJ 2302 (LAC) at [29]; also see:
Masubelele
v Public Health and Social Development Bargaining Council and Others
[2013] ZALCJHB JR 2008/1151] which contains an extensive survey of
the case law about the idea of inconsistency in employee
discipline
).”
[20]
In
SA
Police Services v Safety and Security Sectoral Bargaining Council and
Others
[9]
the Court per Lagrange J restated the applicable approach in matters
where consistency is raised in terms of onus and the following
was
said at paragraph 10:
“
Once
the employee has pertinently put the issue of consistent treatment in
issue, the employer has a duty to rebut such allegations.
In the
context of a case in which evidence was led by the employee of
inconsistent treatment, Landman J held in
Sappi
Fine Papers (Pty)
Ltd
t/a Adamas Mill v Lallie and others
(1999)
20
ILJ
645
(
LC
) at
647 para 5:
'As
regards the onus, the onus of proving that the dismissal was fair,
and thus of rebutting the allegation of inconsistency, is
one which
rests squarely on the employer.”
[21]
Turning onto this instant matter, the persons who committed similar
transgressions regarding failure to complete the CRV and
shortages
were identified. When their respective backgrounds were put to De
Beer, the Applicant’s witness, he was unable
to dispute the
Third Respondent’s propositions on the issue. With no evidence
led by the Applicant to rebut the Third Respondent’s
evidence,
the Second Respondent had to come to the only conclusion that the
Applicant applied discipline inconsistently on its
employees. In
paragraphs 29 and 30 of the arbitration award the Second Respondent
in substantiation of his findings held as follows:
“
[
In this case, the appropriateness of the dismissal was attached on
account
of inconsistent application of discipline. In regard to
the proper completing of the CRVs’ and the use of the HHT, it
was argued that the Respondent had failed to act consistently in
other employees who had committed the breaches were not disciplined.
The inconsistency complained of was contemporaneous in that the
account officials did not complete and sign the same document that
the Applicant was disciplined for not equally signing, and
furthermore, three other custodians were not disciplined for not
using
the HHT on or around the same time that the Applicant committed
the same breach. The inconsistency could not be justified,
and
all that De Beer could attest to was that he did not know the reason
these other employees were not disciplined. In as much
as it was
argued that the Respondent took such breaches seriously, it however
proved to have been inconsistent in the way it dealt
with them, and
this cast doubt on its assertions that it took such breaches
seriously.
[30] The
second attach to this sanction was that it could not be justified on
the basis of an alleged
breakdown in a trust relationship. De
Beer was at pains to indicate in what material respect the
relationship had broken
down. A conclusion was made somewhere in this
award that the alleged loss R1000.00 could not be attributable to the
failure to
correctly complete the CRV, or the failure to use the HHT
or the failure to use the bulk bag in returning the cash to the
premises.
Even though it has been found that the Applicant had
breached the rules in regard to these three charges, the reason that
the Respondent
imposed the sanction of dismissal, i.e. the breakdown
in the trust relationship and the loss of the R1000.00 is not
supported by
evidence on a balance of probabilities.”
[22]
The cumulative effect of the above undoubtedly demonstrates that the
Second Respondent applied his mind to all material issues
placed
before him. He was alive to the fact that a plea of inconsistency
cannot just be accepted on face value but a relevant enquiry
must be
undertaken to find its relevancy. The Applicant’s assertion
that the Second Respondent decided the issue of inconsistency
without
proof of the record regarding other cases being produced by the Third
Respondent is unassailable under these circumstances.
This appeared
to be an attempt to shift onus off the Third Respondent which is not
the correct route to follow in this regard.
The Applicant’s
application is bound to fail.
[23]
In so far as costs are concerned no reason came forth as to why costs
should not follow the result. It will thus not be within
the
requirements of law and fairness not to make a cost order in so far
as the review application is concerned.
Order
[24]
In this regard the following order is made:
1.
The review application is dismissed with costs;
2.
The arbitration award issued under case number GPRFBC 15096 is made
an order of the
Court.
___________________
Moses Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances
:
For
the Applicant
: Mr C Crafford of Crafford
Attorneys
For
the Respondent
: Adv. R Potas
Instructed
by
: Mabaso Attorneys
[1]
Act 66 of
1995 as amended
[2]
(2012) JOL 28604 (GSJ).
[3]
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
(2007) 12 BLLR 1097
CC
[4]
(2008) 5 BLLR 391 (LAC)
[5]
In terms of
Sidumo
judgment the reasonableness upon which the award may be assessed on
review was formulated at paragraph 110 on the question whether
the
Commissioner’s decision. “
is
the one that a reasonable decision maker could not reach”.
[6]
At paragraph 22 it was pointed that: “It is, in fact the
relevant factors and circumstances of each case objectively
viewed that should inform the element of reasonableness or lack
thereof”.
[7]
(2012) 33 ILJ 623 (LC)
[8]
(2014) 35 ILJ 2406 (LAC)
[9]
(2011) 32 ILJ 715 (LC)