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[2018] ZALCJHB 110
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Eskom Holdings SOC Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1372/14) [2018] ZALCJHB 110 (13 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JR 1372 / 14
In
the matter between:
ESKOM HOLDINGS SOC LTD
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
First Respondent
H MALOKA N.O. (AS
ARBITRATOR)
Second Respondent
NUMSA obo RANATO
DENNIS
Third Respondent
RANATO
DENNIS
Fourth Respondent
Heard
:
21 June 2017
Delivered
:
13 March 2018
Summary:
CCMA ar
bitration
proceedings – Review of proceedings, decisions and awards of
arbitrators – Test for review – Section
145 of LRA –
application of review test set out – determinations of
arbitrator compared with evidence on record –
commissioner’s
decision irregular and unsustainable
Misconduct
– breach of safety regulations – nature of misconduct
considered – zero tolerance approach considered
–
dismissal for breach of safety regulations justified – zero
tolerance approach justified – serious misconduct
proven
Misconduct
– inconsistency – principles considered –
application of principles – no like for like comparison
shown –
no indication that employer applied discipline in mala fide or
capricious manner – inconsistency not shown
to exist –
arbitrator’s finding of inconsistency unsustainable
Review
application – ground of review relating to misconduct by
arbitrator – no evidence of misconduct apparent from
record –
arbitrator conducting proceedings properly – no misconduct by
arbitrator shown to exist – no merit in
this ground of review
Review
application – award of arbitrator finding dismissal to be
substantively unfair irregular and not a reasonable outcome
–
proper case for review made out – review application upheld and
award set aside
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This
judgment is given pursuant to an application by the applicant to
review and set aside an arbitration award of the second respondent
in
his capacity as a commissioner of the Commission for Conciliation
Mediation and Arbitration (‘the first respondent’).
This
application has been brought in terms of Section 145 of the Labour
Relations Act
[1]
(‘the LRA’).
[2]
This matter arose from the dismissal of the
fourth respondent by the applicant, following disciplinary
proceedings against the fourth
respondent for misconduct. The
fourth respondent was at all relevant times a member of the third
respondent, which is a representative
trade union in the applicant.
The third and fourth respondents then pursued the dismissal of the
fourth respondent as an
unfair dismissal dispute, to the first
respondent, and this dispute came before the second respondent for
arbitration.
[3]
The parties filed a pre-arbitration minute,
from which it is apparent that there were three principal issues the
second respondent
was called on to decide where it came to the issue
of substantive unfairness, the first being whether the fourth
respondent contravened
a rule, the second being the issue of
inconsistency, and the third being whether dismissal was an
appropriate sanction even if
the fourth respondent did commit
misconduct. Also in terms of this minute, procedural fairness was not
in dispute in the arbitration.
[4]
The arbitration before the second
respondent commenced on 20 March 2014, continued on 23 April and 13
and 14 May 2014, and concluded
with written closing argument on 19
May 2014. In an arbitration awarded dated 21 May 2014, which
was handed down on 22 May
2014, the second respondent held that the
dismissal of the fourth respondent was substantively unfair, and
determined that the
fourth respondent be reinstated by the applicant,
with retrospective effect to the date of her dismissal on 18 October
2013 together
with back pay. It is this arbitration award that now
forms the subject matter of the review application brought to the
Labour Court
by the applicant.
[5]
The
applicant’s review application was filed on 3 July 2014, which
was within the 6 (six) weeks’ time limit under Section
145
[2]
within which to bring a review application. The applicant’s
review application is therefore properly before this Court
for
determination. I will commence deciding this review by first setting
out the applicable factual matrix.
The
relevant background
[6]
The fourth respondent was employed by the
applicant as a technical official, commencing employment on 1
September 2010. Part
of the duties of the fourth respondent is
to attend to faults on the applicant’s electricity supply
infrastructure, when
tasked to do so. It was also emphasized
that the fourth respondent is only authorized to attend to a certain
level of fault
finding and repair, being up to a 1 000 volt
electrical network, called low voltage authorization. The
fourth respondent’s
certificate of authorization issued to her
specifically recorded that ‘
no
work to be carried out on or in close proximity of high voltage
equipment and structures.
’
It
was also never in dispute that the fourth respondent was properly
trained, and aware of all the relevant safety requirements.
[7]
The incident giving rise to this matter
occurred on 23 July 2013. On that day, the fourth respondent
received a work order
to attend to an electricity supply fault on a
pole. She attended to the fault with an apprentice, one
Sibonakaliso Maseko
(‘Maseko’).
[8]
Upon arrival on site, the fourth respondent
proceeded to conduct a fault finding exercise on the first pole. In
terms of the prescribed
process, a proper risk assessment must first
be done on a pole before actual fault finding is done. The
fourth respondent
did this on the first pole. In the end, she
found no fault on that pole.
[9]
Thereafter, the fourth respondent proceeded
to a second pole, where a transformer was located. She did not
do a risk assessment
on the pole. Part of what is called ‘life
saving rule no 1’ in the applicant, is a rule that prescribes:
‘
Always
do a proper risk assessment before you commence with work
’
.
[10]
The fourth respondent then used a step
ladder to climb up the pole to open the Morsdorfer fuses (part of the
transformer) located
on the pole. Also part of what is called
‘life saving rule no 1’ in the applicant, is a rule that
reads: ‘
Only
people who are authorised as competent to do the task may perform
it
’
.
[11]
According to the applicant, the
abovementioned conduct of the fourth respondent resulted in a number
of safety violations. Firstly,
the electricity supply on the
transformer was 22 000 volt and the fourth respondent was not
authorized to conduct fault finding
on such a high voltage of
electricity supply. She should have called an authorized person
to do this work. Secondly,
it is not permissible to use a step
ladder to climb up the pole to open the Morsdorfer fuses. The
operating policy prescribes that
Morsdorfer fuses could only be
opened from ground level using an approved operating stick and
attachments. The fourth respondent
was not issued with an operating
stick, because she was not authorized to do any work on the
Morsdorfer fuses. And finally, she
did not do any risk assessment on
the second pole.
[12]
As fate would have it, there was then a
flash short circuit on this pole right next to the fourth
respondent. She suffered
burns on her arms and to her face, and
she had to be hospitalized as a result.
[13]
The nature of the burns suffered by the
fourth respondent convinced the applicant of another safety
violation. All of the
technicians are issued with safety
equipment that must be used when attending to fault finding on the
applicant’s electricity
network, called ‘PPE’.
In the case of the fourth respondent, this included a pair of
insulated protective gloves
extending to the elbow, and a full face
shield. The burns suffered by the fourth respondent indicated that
when the flash occurred,
she was not wearing the face shield or
protective gloves.
[14]
It the course of the investigation carried
out as a result of the incident, it was also discovered that the
fourth respondent instructed
Maseko to climb up a ladder to test
voltage on a structure, something that Maseko was not authorized to
do. This placed Maseko
in danger, and was another safety violation.
[15]
According to the applicant, it has a zero
tolerance where it comes to the violation of safety rules and
requirements. Employees
are consistently dismissed for these
violations. Strict compliance with these safety rules are essential
to the applicant’s
obligation to provide a safe working
environment, considering all the risks and dangers associated with
servicing a high voltage
and live electricity network. Clause 2.1 of
the life-saving rules policy of the applicant provides that:
‘
Life-saving
rules are safety rules that, if not adhered to, have the potential to
cause serious harm to people. The consequences
of a person
knowingly and wilfully violating these rules will result in a
disciplinary hearing … where the act of misconduct
could
warrant dismissal.
The
objective of this standard is to clarify Eskom’s intention to
enforce “ZERO TOLERANCE” with respect to behaviour
resulting in serious risk to an individual at the workplace.
’
It
may be added that this provision is repeated several times in this
policy, in particular in clauses 3.3.4, and 3.6. Clause
3.6
does however go further and provides that the applicant will
recommend dismissal as a sanction for such violations.
[16]
In fact, the applicant conducts regular
safety seminars to impress safety concerns on employees. There are
daily safety meetings,
held every morning. Employees are
specifically appraised of the fact that they are entitled to refuse
to carry out instructions
that they considered to be in violation of
safety rules, with the operating procedure actually recording that:
‘
The
workers retain the right to refuse to work on grounds of health,
safety and environmental concerns …
’
.
[17]
The operating procedure (clause 4.3.1
thereof) also specifically prescribes that the operator ‘
shall
at all times wear the normal PPE’
.
As stated above, the PPE is defined in this same clause as the full
face shield and insulated rubber gloves. Because
the fourth
respondent did not wear this prescribed PPE, she contravened this
policy.
[18]
Because of all these safety violations, the
applicant decided to take disciplinary action against the fourth
respondent. She
was charged on 20 September 2013 with two
charges of misconduct relating to a failure to comply with
procedures, directives and
statutory requirements. The first
charge had two counts. The first count related to the fact that the
fourth respondent climbed
up the pole without her safety equipment,
being her gloves and face shield. The second count concerned
the fourth respondent
failing to carry out a risk assessment and
doing unauthorised work. Then, the second charge concerned the fourth
respondent allowing
the apprentice to do unauthorised work.
[19]
The disciplinary hearing was scheduled for
3 October 2013. The disciplinary hearing then indeed took place
on that date, and
in a written finding on 8 October 2013, the
chairperson found the fourth respondent guilty of all the charges
against her.
The fourth respondent was then afforded the
opportunity to present mitigating circumstances.
[20]
When deciding the issue of an appropriate
sanction, the chairperson relied on a number of factors. These were
the fourth respondent’s
complete lack of remorse, the fact that
she sought to mislead him with regard to the issuing of safety
equipment to her, and the
seriousness of the misconduct. He remarked:
‘
You
are lucky to be alive and able to see’
.
He further held:
‘
I
must further emphasize that the number of fatalities within Eskom are
significantly high and therefore all employees must take
every effort
to contribute positively towards the reduction of these fatalities.
’
In
his final outcome, dated 18 October 2013, the chairperson recommended
the summary dismissal of the fourth respondent. She
was then
dismissed.
[21]
The fourth respondent pursued an internal
appeal on 22 October 2013. In this appeal, it was contended that the
PPE was only issued
on 6 September 2013, which was after the
incident. The fourth respondent also took issue with the
sanction of dismissal,
contending it was too harsh. In this
appeal, it was then raised for the first time that the applicant
acted inconsistently
in dismissing the fourth respondent, based on
the following contention:
‘…
a
similar incident happen in kaNyamazane CNC but employees who were
involve were never dismissed then that incident happen on the
26
th
of March 2013 the involved employee were given a sanction of 14 day
…
’
(sic)
This
appeal was however not successful, and in a written finding dated 28
October 2013, the dismissal of the fourth respondent was
upheld.
[22]
The third and fourth respondents then
challenged the dismissal of the fourth respondent as an unfair
dismissal dispute, by way of
a referral to the first respondent, on 7
November 2013, and, as stated above, this dispute ultimately came
before the second respondent
for arbitration. Following the
conclusion of the arbitration proceedings, and in the arbitration
award referred to above, the second
respondent held that the
dismissal of the fourth respondent was indeed substantively unfair,
and he reinstated her. This
is the conclusion that is
challenged by the applicant on review.
The
test for review
[23]
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
the
Court held that the standards as contemplated by Section 33 of the
Constitution
[4]
are in essence to be blended into the review grounds in Section
145(2) of the LRA, saying that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’
.
Where it comes to the threshold test for the reasonableness of an
award, the Court said that the question to be asked was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...
’
.
[5]
[24]
This
means, in short, that even if it can be said that an arbitrator acted
irregularly, erred, or failed in making his or her award,
these
shortcomings would only lead to a successful review if it can also be
said that an unreasonable outcome resulted.
In
Herholdt
v Nedbank Ltd and Another
[6]
the Court
said:
‘…
.
A result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.’
[25]
As to
the application of the reasonableness consideration as articulated in
Herholdt
,
the LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[7]
said:
‘…
.
in a
case such as the present, where a gross irregularity in the
proceedings is alleged, the enquiry is not confined to whether
the
arbitrator misconceived the nature of the proceedings, but extends to
whether the result was unreasonable, or put another way,
whether the
decision that the arbitrator arrived at is one that falls in a band
of decisions a reasonable decision maker could
come to on the
available material.’
[26]
Accordingly,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome the arbitrator arrived at can nonetheless be sustained as a
reasonable outcome, even if it may be for
different reasons or on
different grounds.
[8]
This necessitates a consideration by the review court of the entire
record of the proceedings before the arbitrator, as well as
the
issues raised by the parties before the arbitrator. In the end,
it would only be if the outcome arrived at by the arbitrator
cannot
be sustained on any grounds, based on that material, and the
irregularity, failure or error concerned is the only basis
to sustain
the outcome the arbitrator arrived at, the review application would
succeed.
[9]
In
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
[10]
it was held:
‘…
.
the reviewing
court must consider the totality of evidence with a view to
determining whether the result is capable of justification.
Unless
the evidence viewed as a whole causes the result to be unreasonable,
errors of fact and the like are of no consequence and
do not serve as
a basis for a review.
’
[27]
Against the above principles and test, I
will now proceed to consider the applicant’s application to
review and set aside
the arbitration award of the second respondent.
Grounds
of review
[28]
The
applicant’s case and grounds for review must be made out in the
founding affidavit, and supplementary affidavit.
[11]
As was said
in
Northam
Platinum Ltd v Fganyago NO and Others
[12]
:
‘…
.
The basic principle is that a litigant is required to set out all the
material facts on which he or she relies in challenging
the
reasonableness or otherwise of the commissioner's award in his or her
founding affidavit’
.
[29]
In general terms, the applicant in the
founding affidavit contends that the outcome the second respondent
arrived at was unreasonable
because he failed to have regard to
material evidence that was placed before him, he failed to have
regard to or had inadequate
regard to a number of critical
considerations concerning safety at the applicant, and he did not
consider the fourth respondent’s
own admissions.
[30]
The review grounds based on safety
considerations are firstly that the second respondent failed to have
proper regard to the seriousness
of the safety violations and the
possible prejudicial consequence it could have to the applicant and
its business. Secondly,
the second respondent ignored that the
fourth respondent was properly trained and knowledgeable of the
required safety rules.
Thirdly, the second respondent failed to
consider that the fourth respondent was entitled to refuse to do work
that was not in
full compliance with safety regulations.
[31]
As to the review grounds relating to the
fourth respondent’s admissions, the applicant complains that
the second respondent
had inadequate regard to the fourth
respondent’s own admission that she never did a risk assessment
on the second pole, and
allowed her apprentice to work on the pole.
Also in this context, the applicant has raised a complaint that the
second respondent
did have adequate regard to the fourth respondent’s
dishonest explanation for not doing a risk assessment on the second
pole,
to the effect that she did not know she had to do so.
[32]
In
the supplementary affidavit,
[13]
the applicant in essence repeats most of the same grounds of review
as set out above. The applicant did however add a ground
of
review based on an allegation of misconduct on the part of the second
respondent, contending that the second respondent proceeded
with the
arbitration on a day it was not set down, in effect showed bias
against the applicant, prevented a witness from being
called, and
prevented proper cross examination being conducted by the applicant’s
representative.
[33]
I will now consider the applicant’s
review application based on these grounds of review.
Analysis:
misconduct of the commissioner
[34]
I will firstly deal with the grounds of
review of the applicant relating to the alleged misconduct of the
second respondent. In
my view, and for the reasons to follow, these
grounds have no merit. I will start with the proposition that the
second respondent
proceeded with the arbitration on a date it was not
set down for. There is no substantiation for this proposition. The
matter was
specifically postponed on 23 April 2014, to 13 and 14 May
2014 by agreement between all the parties, because a witness for the
applicant was unavailable. The parties actually signed an
agreement to this effect, and the second respondent issued a ruling.
I think it is rather opportunistic for the applicant to come and
suggest that because the first respondent’s set down notice
only referred to 13 May 2014, it was only set down for one day. This
kind of contrived point taking does not serve justice and
should be
discouraged. I am satisfied that the second respondent was
quite entitled to proceed with the matter on 14 May
2014.
[35]
Next, I will consider the contention that
the second respondent prevented the applicant from calling a witness.
Again, proper context
and facts for consideration appears to be
absent from the applicant’s complaint in this respect.
The witness concerned
was not available on 23 April 2014 because he
allegedly had to attend to load shedding problems. The matter
was specifically
postponed to 13 and 14 May 2014 so this witness
could be called. On 13 May 2014, this witness was again
not available,
allegedly because he was ill. The second respondent on
13 May 2014 then in fact made a proposal that the third and fourth
respondents
start presenting their case so long, and the witness
could be interposed the next day. The applicant’s
representative did
not want to agree to this. The third respondent’s
representative insisted on a sick note to substantiate the allegation
that
the witness was ill, and the second respondent stood the matter
down to 12h00 for the applicant to procure it. The applicant’s
representative could not produce it when proceedings reconvened. The
second respondent still accommodated the applicant by not
proceeding,
and standing the matter down to 09h00 on 14 May 2014.
[36]
When the proceedings reconvened on 14 May
2014, the witness was still not in attendance. The applicant’s
representative
conveyed that he would be fit to attend only the next
day, and presented a medical certificate to substantiate this.
However, the
certificate concerned did not reflect the name of the
patient. The second respondent indicated that he would be
inclined
to postpone the matter if he received a proper medical
certificate with the name of the patient, and he afforded the
applicant
an opportunity to get it. What then followed was a
lot of argument and confusion about the sick note, with the applicant
even conceding it was the ‘wrong’ sick note. The second
respondent again afforded the applicant the opportunity to get
a
proper sick note, and it is clear from the record that the second
respondent waited for some time for it to arrive, but nothing
was
forthcoming. The second respondent then ruled that the matter
proceed.
[37]
I can find no fault with the second
respondent’s approach. If anything, he accommodated the
applicant as far as he could.
The undeniable truth is that the
parties agreed to conduct the arbitration on 13 and 14 May 2014.
It was the applicant that
sought an indulgence of another
postponement, despite this agreement. It was then up to the
applicant to make out a proper
case for such an indulgence, and at
least should have provided a proper sick note to justify the
non-attendance of the witness.
The applicant’s conduct
where it came to this is certainly deserving of some censure. I
consider it unacceptable that
the applicant seeks to justify the
indulgence it seeks by first not having a sick note, then presenting
a sick note without a name,
next conceding it was the wrong sick
note, and finally not producing the ‘right’ sick note.
The second respondent was
entirely justified in ruling that the
arbitration proceed. His conduct is in line with
Section
138(1) of the LRA, which reads:
‘
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities
’
.
[38]
This
only leaves the complaint about the alleged bias of the second
respondent and the contention of him inhibiting cross examination.
I
can find nothing in the record to substantiate any of this. Overall
considered, I believe the second respondent conducted the
arbitration
proceedings in a fair and proper manner. Where he intervened in
the proceedings, it was simply for the purposes
of clarity and to
steer the process. There is nothing untoward in this. In
CUSA v
Tao Ying Metal Industries and Others
[14]
the Court
held as follows:
‘…
the
LRA permits commissioners to 'conduct the arbitration in a manner
that the commissioner considers appropriate'. But in doing
so,
commissioners must be guided by at least three considerations. The
first is that they must resolve the real dispute between
the parties.
Second, they must do so expeditiously. And, in resolving the labour
dispute, they must act fairly to all the parties
as the LRA enjoins
them to do.’
The
aforesaid
dictum
in
Tao
Ying Metal Industries
was applied
in
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others
[15]
as follows:
‘
I
also appreciate that in terms of the aforesaid three objectives as
defined by the Constitutional Court in a commissioner would
be
permitted to conduct the proceedings in what may be described as an
inquisitorial manner, and not just leave it up to the parties
to
place the relevant material, evidence and issues before the CCMA.
This being said, there is a fine line between conducting arbitration
proceedings in an inquisitorial fashion and becoming involved in the
proceedings to such an extent so as to constitute a descent
into the
arena by the commissioner. To descend into the area means that the
commissioner becomes an active participant in the conduct
of the case
by one of the parties, and that is simply not fair play and
completely negates the imperative of the conduct of fair
arbitration
proceedings as contemplated by law …’
[39]
I am satisfied that it cannot be
legitimately contended that the second respondent did anything that
could be seen to constitute
a descent into the arena of the
arbitration. There is accordingly no substance in the
applicant’s complaint concerning
the alleged misconduct of the
second respondent, as his conduct in my view resorts well within the
parameters of what can reasonably
be expected of him as an arbitrator
in fairly conducting the proceedings.
[40]
In conclusion, there is thus no substance
in the applicant’s grounds of review where it comes to
misconduct allegedly committed
by the second respondent. These
grounds of review all fall to be rejected.
Analysis:
the merits of the award
[41]
From
the outset, I have some concerns with the award of the second
respondent. On the one hand, the second respondent, as will be
further discussed below, finds that the fourth respondent committed
no misconduct, and that she was not guilty of both counts 1
and 2 of
the charge 1 and charge 2. The second respondent finds that
‘…
at
this point I find the respondent reason for dismissal to be unfair
’
(sic). But
then, and having so found, the second respondent turns to the issue
of inconsistency so as to establish whether the sanction
of dismissal
was fair. This kind of reasoning is contradictory. If an
employee committed no misconduct, then that must
be the end of it,
and no enquiry into the fairness or not of the sanction of dismissal
is competent. The enquiry into whether
dismissal is a fair
sanction only arises if the employee is indeed found to have
committed the misconduct with which the employee
has been charged. As
said in
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others
[16]
:
‘…
a
typical arbitration comprises essentially two phases. The first is
the receipt and evaluation of evidence in order to make factual
findings. That phase is governed by the ordinary rules of evidence
and procedure and no value judgment is involved. If the employee's
guilt is established, the second phase arises, being the
identification and weighing of the factors relevant to the
determination
of sanction. …
’
[42]
Therefore, and considering his own
findings, there was simply no reason for the second respondent to
enquire into the issue of inconsistency
where it comes to deciding
whether dismissal was a fair sanction. But the fact that he did
leaves one in a quandary. Does this
mean that the second respondent
erred when he decided that the fourth respondent committed no
misconduct because he considered
whether dismissal was an appropriate
sanction? Or did he err by enquiring into the issue of
dismissal as an appropriate sanction,
because he found there was no
misconduct? This kind of contradictory reasoning in my view causes
unnecessary confusion with the
parties to the arbitration, and
renders it uncertain whether the arbitrator actually applied his mind
properly to the issues he
was called on to decide.
[43]
The above being said, I will next turn to
the second respondent’s findings relating to the misconduct
with which the fourth
respondent had been charged. The second
respondent decided that the fourth respondent was not guilty of the
misconduct formulated
in count 1 of charge 1 against her, which is
that part of the charge relating to the failure to wear the required
PPE when climbing
up the pole. This conclusion of the second
respondent is based on one single factual determination, being that
the fourth respondent
was never issued with the PPE at the time, as
it was only issued to her on 6 September 2013.
[44]
I must confess that I have considerable
difficulty with this finding of the second respondent. It shows, in
my view, a complete
lack of appreciation what the evidence actually
before him was. In seems that the second respondent simply completely
disregarded
viva voce
evidence, and became confused with the documentary evidence.
[45]
On the facts, properly considered, the
fourth respondent had been issued with PPE when this incident
occurred. The first and most
obvious consideration supporting this is
the fourth respondent’s own version relating to the full face
shield. She never
disputed that she was issued with one. Her version
was actually that she decided not to wear it, because it was
uncomfortable /
difficult to wear if she was also wearing a hard hat.
The point is that she was issued with it, and decided not to wear
it.
No matter what the reason may be for her decision not to
wear it, this is in itself a safety violation. Next, there were
photographs
taken of the incident scene at the time, and this showed
insulated safety gloves found in the fourth respondent’s
vehicle,
and a full face shield on site.
[46]
The first respondent’s finding that
the PPE was only issued on 6 September 2013 (thus after the incident)
is as a result of
him misconstruing the documentary evidence. What
the second respondent simply failed to comprehend is that the
document showing
the issuing of PPE on 6 September 2013 was a
re-issue of PPE. Obviously, regularly used PPE becomes worn,
and new PPE is
issued from time to time. The second respondent failed
to consider that the previous issuing of PPE was on 27 June 2013,
established
by an issuing document of that date.
[47]
It also simply cannot be ignored that the
fourth respondent was fully trained in safety requirements and knew
she was entitled to
refuse to do the work if she was not issued with
PPE. Therefore, even if it can be accepted that the fourth respondent
at the time
had not been issued with PPE, the fact that she elected
to do the work and not insist on compliance with her right to safety
as
she was entitled to do, must mean that this cannot serve as an
excuse or defence to the charge.
[48]
The second respondent’s finding in
favour of the fourth respondent on count 1 of charge 1 thus simply
had no proper foundation
in fact. The second respondent misconstrued
the documentary evidence and ignored pertinent facts. He failed
to consider material
issues in this regard. It is thus my view
that the second respondent’s finding where it came to this
charge cannot
be sustained, and falls to be set aside on review.
[49]
With regard to count 2 of charge 1, the
second respondent concluded that the fourth respondent did conduct a
risk assessment on
the second pole she climbed up on with the step
ladder. This conclusion is entirely at odds with the evidence.
The fourth
respondent herself conceded she did not do a risk
assessment on the pole. The documentary evidence shows only one risk
assessment
was done on the first pole. Further, the fourth
respondent even tried to explain herself for not doing a risk
assessment
by saying that she did not know she was required to do one
on that pole as well, which explanation was clearly false.
[50]
The second respondent also ignored a number
of other crucial safety failures which was apparent from the
evidence. One that jumps
to the fore is that the fourth respondent
sought to open the fuses by climbing up a step ladder, when the
prescribed process for
this was opening the fuses from the ground
using the operating stick referred to above. This situation
then brings one directly
to the second failure, being that the fourth
respondent was not issued with an operating stick for the simple
reason that she was
not authorized to work on that high voltage of
electricity equipment. The fourth respondent had no business climbing
up on the
second pole and conducting fault finding on the transformer
and fuses.
[51]
Therefore, and just as was the case with
count 1, the second respondent’s finding in favour of the
fourth respondent on count
2 of charge 1 simply had no proper
foundation in fact. The second respondent’s conclusions were at
odds with what actual
evidence was. Again, the fourth
respondent failed to consider material issues in this regard. I
similarly conclude that the
second respondent’s finding
relating to count 2 of charge 1 is unsustainable, and thus
reviewable.
[52]
Turning next to charge 2, the second
respondent also found that the fourth respondent committed no
misconduct where it came to this
charge which related to Maseko (the
apprentice referred to) being permitted by the fourth respondent to
climb up the step ladder
and conduct a voltage check on the top box
on the pole, which work she was not authorized to do. The
reason for this this
finding of the second respondent was that that
Maseko was authorized to do that work. This finding is once
again at odds
with the evidence. It is undeniable that Maseko did
this work. The further evidence was that Maseko was not authorized to
carry
out this work. The only basis on which Maseko would have done
this work is if the fourth respondent tasked her to do it. All this
makes the second respondent’s conclusion difficult to
comprehend, as there are simply no facts to support it. It is clearly
an unreasonable conclusion based on the evidence.
[53]
Overall, it is my conclusion that the
second respondent’s finding that the fourth respondent did not
commit misconduct as
contemplated by charges 1 and 2 is
unsustainable. These findings do not correlate with the evidence. It
is clear that the fourth
respondent was issued with the required PPE
which she elected not to use. She also embarked upon work she was
never authorized
to do, did not conduct a proper risk assessment and
allowed her apprentice to do unauthorized work. This is a direct and
flagrant
violation of the applicant’s safety rules, which
serve, as the facts of this case illustrate, a critical purpose in
ensuring
the safety of employees in what is no doubt dangerous
working circumstances. Accordingly, it simply cannot be said that the
second
respondent’s finding that the fourth respondent
committed no misconduct constitutes a reasonable outcome based on the
evidence
properly before him as a whole. His findings in this
regard are clearly reviewable.
[54]
Something
must be said about the nature of the misconduct in this case,
especially considering that it is about contravention of
workplace
safety rules. In
Samancor
Chrome
Ltd
(Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining
Council and Others
[17]
the Court said:
‘
In
my view, having regard to the material before the commissioner and
his reasoning with regard to the fairness of the sanction,
it cannot
be said that his conclusion was one that a reasonable decision maker
could not reach. It is evident from the evidence
that there are
considerable risks associated with the appellant's operations at the
smeltery. It carries a high risk of potential
danger to the safety of
its employees which in turn may hold serious consequences for the
appellant as the employer. The issue
of safety and the rules
pertaining thereto are accordingly of considerable importance to both
the appellant and its employees.
At the arbitration hearing, the
appellant's representative explained that: '[A]
t
Samancor
eighty
percent of the fatalities of people who die at work is related to
(inaudible) or mobile machinery. In other words this is
one of the
areas where most of the people who die at work (inaudible) and as a
company we just cannot tolerate any [breach] of
our rules which is
designed to save peoples lives.' Accordingly, in the context of the
present matter, the importance of the safety
rules concerned, the
reasons for their existence, and the seriousness and potentially life
threatening consequences of a breach
of such rules are important
considerations that must be accorded due weight.
’
[55]
Similar to the case in
Samancor
,
the applicant
in casu
led undisputed evidence about the importance of its safety rules.
Also, there can be no doubt that fault finding in a high
voltage
electricity network is inherently a dangerous occupation, and that
safety rules are there to save lives. The applicant
also led
undisputed testimony that there was a zero tolerance in the applicant
for violation of safety rules, and in my view, for
good reason.
Workplace safety and strict compliance with safety rules is of
fundamental importance not only to protect employees,
but also serves
to protect the employer against possible civil and criminal liability
that may arise in allowing employees to render
services in an unsafe
working environment.
[56]
There
is equally no doubt that the fourth respondent was properly trained
in, and aware of, all the necessary safety rules applicable
to her.
She knew what she was required to do, and what she was permitted and
not permitted to do. She ought to have
contemplated that a
violation of these rules could result in serious injury or even
fatalities. But worse still, she endangered
her apprentice
(Maseko). In
Harmony
Gold Mining Co Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[18]
the Court held as follows:
‘
In
the present instance, the fourth respondent does not deny knowledge
of the safety rules and standard, neither is there evidence
to
dispute that he was trained in the application of that policy. He
also does not deny having received instruction from Mr Loots
regarding securing the workplace for the purpose of drilling in terms
of the safety standard. The testimony of Mr Willemse that
if there
was a fall of ground as a result of failure to comply with the safety
standard there was a high risk of fatal injuries
occurring. In this
respect, the testimony of Mr Loots that the conduct of fourth
respondent had placed other employees in danger
was not challenged.
Similar
to
the
Samancor
case
,
it has not been denied that the risk created by the fourth respondent
in failing to comply with the safety rules was high enough
to pose a
potential danger to the applicant and other employees and pose
serious consequences for the applicant as the employer.
In
my view the commissioner in the present instance failed to attach
sufficient weight to the evidence led by the applicant's witnesses
concerning all charges that were brought against the fourth
respondent and in particular that contravention of a safety rule and
procedure amounts to very serious misconduct which could lead to loss
of life and thus warrant dismissal.
’
In
view, the same considerations apply
in casu
. The second
respondent paid scant regard to the fact that the fourth respondent
was properly trained in the safety rules and that
she carried an
equal responsibility to ensure it was complied with. There can be no
doubt that the misconduct of the fourth respondent
placed her at
serious risk, which in turn, if materialised, could have highly
prejudicial consequences to the applicant.
[57]
Overall
considered, it is my view that the fourth respondent indeed committed
misconduct as contemplated by courts 1 and 2 of the
charge against
her. The second respondent’s finding to the contrary has no
proper foundation in the evidence before him,
and is simply not a
reasonable outcome. The second respondent failed to consider the
importance of the safety regulations the fourth
respondent was
subject to, and what it entailed. He failed to appreciate that
the fourth respondent put her own life and
that of her apprentice at
risk. I consider the following
dictum
from the judgment in
Sasol
Mining (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[19]
supportive of my conclusions in this respect:
‘…
Safety
of
employees at the workplace is paramount. It cannot be compromised. An
employer cannot be expected to wait until an employee is
maimed or
has lost his or her life, before taking decisive action against an
employee who has exposed fellow employees to danger.
Procedures which
are intended to prevent injury and fatality particularly in the
mining industry need to be complied with properly
because a lapse has
disastrous consequences. In exercising his power to determine the
fairness of the third respondent's dismissal,
the commissioner had to
decide the appropriateness of the sanction of dismissal. His decision
that dismissal was inappropriate
disregards the value of the lives
and safety
of
the employees the third respondent had the responsibility of
protecting. It is not supported by the evidence before him. It
constitutes a decision a reasonable decision maker could not reach on
the facts before him and stands to be reviewed and set aside.
’
[58]
Considering
that the fourth respondent in fact committed the misconduct with
which she had been charged, it is thus necessary to
consider the
second respondent’s inconsistency findings, because this is a
relevant consideration when deciding whether dismissal
was an
appropriate sanction. In
Bidserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[20]
the Court had the following to say:
‘
This
court sounded a warning on approaching the question of inconsistency
in the application of discipline willy-nilly without any
measure of
caution. Inconsistency is a factor to be taken into account in the
determination of the fairness of the dismissal but
by no means
decisive of the outcome on the determination of reasonableness and
fairness of the decision to dismiss. …
’
And
in
Absa
Bank Ltd v Naidu and Others
[21]
in the Court held:
‘
However,
it ought to be realised, in my view, that the parity principle may
not just be applied willy-nilly without any measure
of caution. In
this regard, I am inclined to agree with Professor Grogan when he
remarks as follows:
‘
[T]he
parity principle should be applied with caution. It may well be that
employees who thoroughly deserved to be dismissed profit
from the
fact that other employees happened not to have been dismissed for a
similar offence in the past or because another employee
involved in
the same misconduct was not dismissed through some oversight by a
disciplinary officer, or because different disciplinary
officers had
different views on the appropriate penalty.'
’
[59]
The
Code of Good Practice in the LRA also provides for consistency as a
consideration in deciding the issue of the fairness of the
sanction
of dismissal.
[22]
This consideration applies where the employee was charged with
misconduct, and was properly found guilty of the same, but
in
deciding whether dismissal for this would be appropriate the issue
would be that dismissing the employee for such misconduct
would be
inconsistent with the sanction imposed by the employer for similar
and related misconduct, in the past, in respect of
other
employees.
[23]
Where instances of inconsistency are raised as a defence to dismissal
as an appropriate sanction, this would form part of the value
judgment that must be exercised in deciding whether dismissal is
fair.
[24]
[60]
The
Court in
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd,
[25]
aptly
determined the principles applicable to inconsistency, as follows:
‘…
Consistency
is simply an element of disciplinary fairness …. Every
employee must be measured by the same standards ….
Discipline
must not be capricious. It is really the perception of bias inherent
in selective discipline which makes it unfair.
Where, however, one is
faced with a large number of offending employees, the best that one
can hope for is reasonable consistency.
Some inconsistency is the
price to be paid for flexibility, which requires the exercise of a
discretion in each individual case.
If a chairperson conscientiously
and honestly, but incorrectly, exercses his or her discretion in a
particular case in a particular
way, it would not mean that there was
unfairness towards the other employees. It would mean no more than
that his or her assessment
of the gravity of the disciplinary offence
was wrong. It cannot be fair that other employees profit from that
kind of wrong decision.
In a case of a plurality of dismissals, a
wrong decision can only be unfair if it is capricious, or induced by
improper motives
or, worse, by a discriminating management policy....
Even then I dare say that it might not be so unfair as to undo the
outcome
of other disciplinary enquiries. If, for example, one member
of a group of employees who committed a serious offence against the
employer is, for improper motives, not dismissed, it would not, in my
view, necessarily mean that the other miscreants should escape.
…
’
[61]
In my
view, the
ratio
in the judgment in
Irvin
and Johnson
indicates
that the following considerations apply to the determination of the
issue of inconsistency: (1) Employees must be measured
against the
same standards (like for like comparison); (2) Did the chairperson of
the disciplinary enquiry
conscientiously
and honestly determine the misconduct;
(3) The
decision by the employer not to dismiss other employees involved in
the same misconduct must not be capricious, or induced
by improper
motives or by a discriminating management policy (in other words this
conduct must be bona fide); and (4) A value judgment
must always be
exercised
[26]
.
[62]
In
general, inconsistency as a consideration is intended to protect
employees against arbitrary conduct by the employer. Objective
difference in circumstances is thus an important consideration.
In
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[27]
it was said:
‘…
An
inconsistency challenge will fail where the employer is able to
differentiate between employees who have committed similar
transgressions
on the basis of inter alia differences in personal
circumstances, the severity of the misconduct or on the basis of
other material
factors …
’
[63]
Finally,
inconsistency must be properly raised and dealt with in the
arbitration proceedings, in such a manner so as to identify
the other
employee(s) who may have been treated differently, as well as the
basis for the contention that the dismissed employee
should not have
been treated differently. As described by the Court in
Bidserv
[28]
:
‘…
A
generalised allegation of inconsistency is not sufficient. 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 or that no distinction should have been made
must
be set out clearly.’
The
employee has the evidentiary burden to establish this. In
Comed
Health CC v National Bargaining Council for the Chemical Industry and
Others
[29]
the Court said:
‘
It
is trite that the employee who seeks to rely on the parity principle
as an aspect of challenging the fairness of his or her dismissal
has
the duty to put sufficient information before the employer to afford
it (the employer) the opportunity to respond effectively
to the
allegation that it applied discipline in an inconsistent manner. …’
[64]
Applying all the above principles to the
facts, it is clear that only one issue of inconsistency was raised in
the internal disciplinary
proceedings pertaining to the fourth
respondent, albeit only at appeal stage. It concerned, as set out
above, an employee allegedly
committing similar misconduct on 26
March 2013 but he was not dismissed. This inconsistency case was then
elaborated on in evidence,
in the arbitration. It became apparent
that it concerned one Cain Mashego (‘Mashego’). He was
called to a disciplinary
hearing on 29 April 2013, and was charged
with two misconduct charges. The first charge was a failure to comply
with procedures
in that he failed to ensure that minisub was made
safe before employees working on it. The second charge was that he
endangered
the safety of a fellow employee in that he allowed the
employee to perform work without supervision.
[65]
The disciplinary hearing outcome of Mashego
was presented in evidence. He was found guilty of these charges on 21
May 2013. It appears
that there are similarities between the
misconduct of Mashego and that of the fourth respondent. I may
mention that Mashego also
admitted to not wearing his PPE and a
junior employee was allowed to do unsupervised work. But what the
disciplinary hearing finding
does show is that the chairperson simply
opted, without reason or motivation, for a 14 (fourteen) day unpaid
suspension as a sanction,
based on this suggestion being made by the
employee’s representative. In evidence, it came out that
Mashego actually
pleaded guilty to the misconduct charges against
him.
[66]
In terms of the principles as set out
above, what must be done in this case when considering inconsistency
is firstly a like for
like comparison between the case of the fourth
respondent and that of Mashego. In my view, and although there
are similarities,
no proper like for like comparison exists. An
important distinguishing factor is that Mashego admitted his
misconduct and never
sought to provide a false defence, whilst in the
case of the fourth respondent, she disputed that she committed any
misconduct
and even sought to present a false defence where it came
to the issuing of PPE and doing a risk assessment. Secondly,
Mashego
himself did not do work he was never even authorized to do in
the first place, which is what the fourth respondent did. Thirdly,
the charge relating to Mashego’s junior was not that of him
being allowed to do work he was unauthorized to do, but it was
about
him doing work he needed to be supervised on, which Mashego failed to
do. It is not the same as the case of the fourth
respondent
where she actually required the apprentice to do unauthorized work.
[67]
The above being said, further
considerations are that there was no evidence that the findings
relating to Mashego was even before
the chairperson in the
disciplinary hearing, and in terms of the documentary evidence, it
was only raised on appeal. It was in
fact conceded by Calvin Shekoa,
the representative of the fourth respondent in the disciplinary
proceedings, that the evidence
relating to inconsistency was never
placed before the chairperson of the disciplinary hearing. There is
equally no evidence about
what was placed before the appeal
chairperson in this regard, other than Shekoa simply saying that
cases were ‘mentioned’
to the appeal chairperson. There
is no indication that any functionary of the applicant deciding on
the dismissal of the fourth
respondent was even alive to the
disciplinary hearing finding relating to Mashego, and despite this,
came to another conclusion.
[68]
Therefore,
and where it came to the 26 March 2013 incident relating to Mashego,
there was simply no proper like for like comparison.
There was
similarly no case made out that the applicant differentiated between
employees on the basis of some or other
mala
fide
basis or capricious behaviour. There is no indication that the
applicant did not conscientiously and
bona
fide
apply discipline. Even if the applicant may have erred in dismissing
the fourth respondent and not Mashego, it does not mean that
the
fourth respondent must be automatically exonerated as a result.
[30]
It must be remembered that inconsistency is not a rule unto itself.
It is simply an element of disciplinary fairness.
In this
instance, there is simply no case made out that dismissing the fourth
respondent, but not Mashego, was unfair, as contemplated
by the
inconsistency principles discussed above.
[69]
Therefore, the second respondent’s
inconsistency findings are unsustainable. If his award is
considered, he determined
that the fourth respondent and Mashego
committed the same misconduct. As discussed above, that is
simply not so. Whilst
it may be similar, it is in the end not
the same. The second respondent also held that the applicant
failed to advance a
fair and objective basis for the
differentiation. Again, this is not so. The applicant was
at pains to point out the
factual differences between the offences,
Mashego’s service in excess of 20 years, and the fact that he
showed remorse as
proper basis for the differentiation.
[70]
The second respondent also dealt with the
guilty plea of Mashego, as opposed to the fourth respondent disputing
the misconduct,
finding that ‘on its own’ it cannot
justify a different sanction. This approach is inconsistent with the
legal principles
relating to inconsistency – no pun intended.
What it illustrates is that there cannot be a like for like scenario,
because this is a significant difference. It also shows that the
basis for differentiation is objective and
bona
fide
. It follows that inconsistency
could not save the fourth respondent, something the second respondent
completely failed to grasp.
[71]
Finally, the second respondent held that
the applicant was aware of the Mashego incident, because it was
raised in the appeal. Whilst
this may be true, what the second
respondent does not appreciate is that merely raising this issue in
such a fashion is insufficient.
A proper case must be
made out in the disciplinary proceedings so that the chairperson can
apply his or her mind to the issue
of inconsistency. As dealt
with above, the issue of inconsistency was not properly raised in the
internal disciplinary proceedings
[72]
It is
thus clear from the second respondent’s reasoning relating to
inconsistency that he failed to consider what the proper
evidence
concerning inconsistency before him was, and what needed to be proved
to establish inconsistency. The second respondent
never applied the
requisite legal principles that must be considered when deciding any
inconsistency case. The consequence
of these failures to the
outcome the second respondent arrived at was succinctly summarized in
Solari
v Nedbank Ltd and Others
[31]
as follows:
‘…
it
is clear on the totality of the evidence before the commissioner that
he did not properly consider all the evidence and therefore
arrived
at a conclusion that a reasonable decision maker could not reach then
the award ought to be set aside. The same will apply
when the
commissioner makes certain inferences from the proven facts that are
totally out of sync with those facts. The inference
reached without a
proper consideration of the proven facts would be an unreasonable
decision or a decision which a reasonable decision
maker could not
reach’
[73]
In
the end, there can be no doubt that the misconduct of the fourth
respondent is very serious. She violated a number of safety
rules and
sought to perform unauthorized work. She allowed an unauthorized
apprentice to do work she was not allowed to do, putting
her in
danger. It is undeniable that a violation of these rules leads
straight down the path of dismissal. The situation is exacerbated
by
the fact that the fourth respondent never acknowledged her
wrongdoing, showed no remorse for what happened and never undertook
to rehabilitate herself if given a chance by the applicant to do
so.
[32]
It must also be considered that the fourth respondent had the right
to refuse to do any work she considered unsafe, so therefore
on her
own version if she was not issued with PPE, she should have refused
to work.
[74]
I
accept that from a safety perspective, the applicant cannot be seen
to be soft on the violation of safety rules. The applicant
has a
proper operational objective relating to risk management that it
seeks to achieve in adopting a zero tolerance approach where
it comes
to this.
[33]
The Court in
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[34]
held:
‘…
As
the code of good practice enjoins, commissioners will accept
a
zero tolerance approach if the circumstances of the case warrant the
employer adopting such an approach.
’
No
doubt, the circumstances in the applicant’s business and the
purpose behind the safety rules, warrant the approach
in
casu
.
In the end, and as said in
De
Beers
[35]
:
'
A
dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be, a sensible operational
response to risk management in the particular enterprise. …’
Conclusion
[75]
For
all the reasons as set out above, it is my view that the second
respondent’s determination in his award that the dismissal
of
the fourth respondent was substantively unfair is grossly irregular,
and resorts well outside the bands of what may be considered
to be a
reasonable outcome.
[36]
The second respondent in effect ignored pertinent evidence, failed to
apply requisite legal principles, to the extent having
a direct
impact on the outcome of the matter, rendering it unreasonable. As
such, the award of the second respondent falls to be
reviewed and set
aside.
[76]
Having reviewed and set aside the award of
the second respondent, I see no reason to remit this matter back to
the first respondent
again for determination
de
novo
before another arbitrator. All the
required evidence has been led, and is on record. All this evidence
has been properly transcribed.
All the documentary evidence is in
reality uncontested and is part of the record.
[77]
Overall
considered, I thus have sufficient evidentiary material before me to
finally determine this matter.
[37]
Because it is clear from the evidence, and the applicable principles
in
casu
,
that the fourth respondent indeed committed the misconduct with which
she had been charged, and that no inconsistency has been
shown to
exist so as mitigate against the sanction of dismissal imposed by the
applicant, the dismissal of the fourth respondent
must be held to be
substantively fair. I shall therefore substitute the award of the
second respondent with an award that the dismissal
of the fourth
respondent by the applicant was substantively fair.
[78]
This then only leaves the question of
costs. In terms of Section 162(1) and (2) of the LRA, I have a wide
discretion where it comes
to the issue of costs. The third and fourth
respondents did oppose the matter, but I do not think the opposition
was unreasonable.
I am also mindful of the fact that there is a
continuing relationship between the applicant and the third
respondent, which may
be prejudiced by a costs order. I also consider
that the fourth respondent had suffered injuries and should not be
unduly punished.
Finally, I also take into account that the applicant
raised a number of unjustified review grounds relating to misconduct
on the
part of the second respondent. In all these circumstances, the
appropriate order where it comes to costs, is to make no order as
to
costs, and I exercise my discretion accordingly.
Order
[79]
In the premises, I make the following
order:
1.
The applicant’s review application is
granted.
2.
The arbitration award of the second
respondent dated 21 May 2014 and issued under case number MP 8960 –
13 is reviewed and
set aside.
3.
The arbitration award of the second
respondent dated 21 May 2014 and issued under case number MP 8960 –
13, is substituted
with an award that the dismissal of the fourth
respondent by the applicant is substantively fair.
4.
There is no order as to costs.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Adv X Matjolo
Instructed by:
Selebogo Inc Attorneys
For the Third and
Fourth
Respondents:
Mr C N Phukubje of Finger Phukubje Inc Attorneys
[1]
Act 66 of
1995.
[2]
Section 145(1)(a) reads: ‘Any party to a dispute who alleges a
defect in any arbitration proceedings under the auspices
of the
Commission may apply to the Labour Court for an order setting aside
the arbitration award - (a) within six weeks of the
date that the
award was served on the applicant …’
[3]
(2007) 28
ILJ 2405 (CC).
[4]
Constitution
of the Republic of South Africa, 1996.
[5]
Id at
para 110. See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at
para 134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[6]
(2013)
34
ILJ
2795 (SCA)
at
para 25.
[7]
(2014) 35
ILJ 943 (LAC) at para 14. The
ratio
in
Gold
Fields
was followed by the LAC itself in
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[8]
See
Fidelity Cash
Management
(
supra
)
at para 102.
[9]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016) 37
ILJ 116 (LAC) at para 32.
[10]
(2015) 36
ILJ 1453 (LAC) at para 12.
[11]
See
Brodie
v Commission for Conciliation, Mediation and Arbitration and Others
(2013) 34
ILJ 608 (LC) at para 33;
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011)
32 ILJ 730 (LC) at para 9;
De
Beer v Minister of Safety and Security and Another
(2011)
32 ILJ 2506 (LC) at para 27.
[12]
(2010) 31
ILJ 713 (LC) at para 27.
[13]
Filed in terms of Rule 7A(8) on 2 July 2015.
[14]
(2008)
29
ILJ
2461
(CC)
at para 65.
[15]
(2013) 34
ILJ 2347 (LC) at para 41.
[16]
(2010)
31 ILJ 2475 (LC) at para 19.
[17]
(2011)
32 ILJ 1057 (LAC) at para 35.
[18]
(2013)
34 ILJ 912 (LC) at paras 24 – 26.
[19]
(2015)
36 ILJ 2359 (LC) at para 6.
[20]
(2017)
38 ILJ 860 (LAC) at para 31.
[21]
(2015)
36 ILJ 602 (LAC) at para 36.
[22]
See Schedule 8 Item 3(6) which reads: ‘
The
employer should apply the penalty of dismissal consistently with the
way in which it has been applied to the same and other
employees in
the past, and consistently as between two or more employees who
participate in the misconduct under consideration.’
[23]
See
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010) 31
ILJ 452 (LC) at para 10.
[24]
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd
(1999)
20 ILJ 2302 (LAC) at para 29;
Absa
Bank
(
supra
)
at
paras 36 – 37;
Consani
Engineering (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2004)
25 ILJ 1707 (LC) at para 19.
[25]
(1999) 20
ILJ 2302 (LAC)
at
para 29.
[26]
See
SRV
Mill Services (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2004)
25 ILJ 135 (LC) at para 23.
[27]
(2010) 31
ILJ 452 (LC)
at para
10.
[28]
(
supra
)
at para 31. See also
Grindrod
Logistics (Pty) Ltd v SA Transport and Allied Workers Union on
behalf of Kgwele and Others
(2018)
39 ILJ 144 (LAC) at para 47;
Botsane
v Anglo Platinum Mine (Rustenburg Section)
(2014)
35 ILJ 2406 (LAC) at para 39.
[29]
(2012)
33 ILJ 623 (LC) at para 10. See also
National
Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine
(Rustenburg Section)
(
supra
)
at para 39;
Banda
v
General Public Service Sectoral Bargaining Council and Others
[2014]
JOL 31486
(LC) at para 49;
SA
Municipal Workers Union on behalf of Abrahams and Others v City Of
Cape Town and Others
(2011)
32 ILJ 3018 (LC) para 50.
[30]
Compare
Southern Sun
(
supra
)
at para 29.
[31]
(2014) 35 ILJ 3349 (LAC) at para 29.
[32]
See
De Beers Consolidated
Mines Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
(2000) 21 ILJ
1051 (LAC) at para 25;
Greater
Letaba Local Municipality v Mankgabe No and Others
(2008) 29 ILJ 1167 (LC) para 34;
Tiger
Brands Field Services (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[2017] JOL 37306
(LC) at para 54.
[33]
Compare
Anglo
Platinum
(
supra
)
at para 18;
Afrox
Healthcare Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2012) 33 ILJ 1381 (LAC) at para 23;
Miyambo
v Commission for Conciliation, Mediation and Arbitration and Others
(2010) 31 ILJ 2031 (LAC) at para 21.
[34]
(2015)
36 ILJ 2273 (LAC) at para 17.
[35]
Id at
para 22.
[36]
See
Msunduzi
Municipality v Hoskins
(2017) 38
ILJ 582 (LAC) at para 30.
[37]
Section 145(4) of the LRA gives this Court the power to finally
determine the matter. See
W
oolworths
(Pty) Ltd v SA Commercial Catering and Allied Workers Union and
Others
(2016)
37 ILJ 2831 (LAC) at paras 28 – 29;
SA
Custodial Management (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2013) 34
ILJ 1255 (LC) at para 28;
Blitz
Printers
v Commission for Conciliation, Mediation and Arbitration and Others
[2015] JOL
33126
(LC)
at para 77;
Member
of the Executive Council, Department of Health, Eastern Cape v
Public Health and Social Development Sectoral Bargaining
Council and
Others
(2016)
37 ILJ 1429 (LC) at paras 54 – 55
.