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[2018] ZALCJHB 193
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Assmang (Pty) Ltd t/a Khumani Mine v Commission for Mediation, Arbitration and Conciliation and Others (JR2416/15) [2018] ZALCJHB 193 (24 May 2018)
Of
interest to other Judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case no: JR 2416/15
In
the matter between:
ASSMANG (PTY) LTD
T/A KHUMANI MINE
Applicant
and
COMMISSION
FOR MEDIATION,
ARBITRATION &
CONCILIATION
First
Respondent
MAPUTLE
MOHLALA (
N.O.
)
Second
Respondent
LEBOGANG
TETEME
Third
Respondent
NATIONAL
UNION OF MINEWORKERS
Fourth
Respondent
Heard
:
17 May 2018
Delivered
:
24 May 2018
Summary:
(Review –dismissal – inconsistency in disciplinary action
– finding of substantive unfairness
based on inconsistency
unreasonable on evidence before arbitrator)
JUDGMENT
LAGRANGE
J
Background
[1]
This is a review application of an arbitration award in an unfair
dismissal dispute. The third respondent was dismissed for
failing to
follow safety working procedures and legal requirements on the
applicant’s mind in walking across a bridge that
was reserved
for vehicle traffic only.
[2]
The third respondent was a drill rig supervisor. His appointment as a
supervisor was also made in terms of regulation 2.9.2
of the Mine
Health and Safety Act, 29 of 1996 (‘the MHSA’). As such
there were various legislative requirements within
his area of
responsibility that he was required to enforce. Without going into
detail, these entailed numerous health and safety
obligations
including ensuring adherence to health and safety regulations. It was
common cause that when he was confronted by his
Safety Health
Environment Quality (‘SHEQ’) officer when he was seen
crossing the bridge, that he was leading a large
number of other
members of his crew, who were under his supervision. The individuals
who were with him were not identified either
by the company or the
third respondent and were not charged at all, though it is clear that
had they been identified they could
have faced the same charge as the
third respondent.
The
arbitrator’s award
[3]
The crux of the arbitrator’s award turned on the question of
consistency of treatment. The arbitrator found that the applicant
had
inconsistently applied the rule in that, it had disciplined the third
respondent and dismissed him for an offence when it did
not even
charge other transgressors who had committed the same offence on the
same occasion. The arbitrator did not accept the
applicant’s
evidence that the other transgressors could not have been identified.
The arbitrator was astounded that such
disparity of treatment had
taken place, viz:
“
36.
Somerset [the third respondent’s SHEQ officer] had singled out
the applicant because, according to his testimony, he was
the
supervisor of the crew was crew on that day. It is inexplicable how
when safety is responsibility of everyone that the applicant
could be
found to have committed a [more] serious offence than the other
employees. It is also inexplicable how the applicant could
be singled
out when safety transgression does not discriminate depending on the
levels of seniority. It boggles my mind that when
this offence is
considered to be so serious as to may lead to dismissal that other
discretions of the same offence were left out
without being
disciplined.
…
38.
The respondent has failed to bring disciplinary action against the
other employees walked over the bridge. It therefore denied
itself an
opportunity to determine are the merits of the cases of the of the
other transgressors would have been the same or different
and
justifies action against the applicant vis-a-vis the other cases
merits. Had it taken action against the other transgressors
it would
have been able to distinguish the merits of the applicants’
case to those of others.”
[4]
In essence, the arbitrator found that it was unfair not to have taken
action against all potential transgressors, and that only
if that had
been done could a fair assessment have been made of the relative
merits of the third respondent’s case.
[5]
Having concluded that the dismissal was substantively unfair for
failing to apply the rule consistently between the applicant
and
other transgressors who committed the same misconduct, the arbitrator
found that there was no credible evidence that reinstatement
would be
impractical or that the trust relationship had broken down.
Consequently, the arbitrator ordered the reinstatement of
the third
respondent.
Grounds
of review
[6]
In summary, the applicant only raises two grounds of review relating
to the rationality of the award, namely:
6.1
the arbitrator ignored or failed to consider that the third
respondent had responsibilities as
a supervisor and regulation 2.9.2
appointee which included responsibility for the safety of his
subordinates. Had the arbitrator
taken this into account the
arbitrator could not have found his misconduct comparable with the
other members of his team who had
not been specifically identified
but who had also breached the safety regulation.
6.2
In considering an appropriate remedy, the arbitrator failed to
consider a number of factors about
the third respondent’s
conduct such as: his failure at any stage to show any form of
appreciation of his own wrongdoing;
that he simply shrugged his
shoulders and walked on when he was confronted about the infraction,
and that he had a considerable
disciplinary record which made it
difficult to believe that his conduct would improve.
[7]
In support
of the arbitrator’s reasoning, the third respondent argues that
in deciding if the dismissal was fair, the arbitrator
was rightly
exercising his discretion on the basis of his own sense of fairness
and not of the employer’s.
[1]
Secondly, in exercising his discretion in this regard, the
arbitrator’s reasoning could not be attacked any more than one
can attack the findings of chairpersons of disciplinary enquiries,
who come to a different conclusions in respect of similar cases,
unless such findings are capricious or mala fide. The third
respondent also emphasises the value attached to disciplinary
consistency
and, in particular, that all employees must be measured
by the same standards.
[2]
[8]
In a more recent restatement of the role of inconsistency in
substantive fairness the LAC at this to say in ,,,,:
[42]
Indeed, in accordance with the parity principle, the element of
consistency on the part of an employer in its treatment of
employees
is an important factor to take into account in the determination
process of the fairness of a dismissal. However, as
I say, it is only
a factor to take into account in that process. It is by no means
decisive of the outcome on the determination
of reasonableness and
fairness of the decision to dismiss. In my view, the fact that
another employee committed a similar transgression
in the past and
was not dismissed cannot, and should not, be taken to grant a licence
to every other employee, willy-nilly, to
commit serious
misdemeanours, especially of a dishonest nature, towards their
employer in the belief that they will not be dismissed.
It is well
accepted in civilised society that two wrongs can never make a right.
The parity principle was never intended to promote
or encourage
anarchy in the workplace. As stated earlier, I reiterate, there are
varying degrees of dishonesty and, therefore,
each I case will be
treated on the basis of its own facts and circumstances.”
The
arbitrator in this case clearly did consider the issue of consistency
to be dispositive of the issue of substantive fairness.
It is perhaps
this underlying misconception coupled with his single-minded focus on
the failure to initiate disciplinary action
against the members of
the third respondent’s team which resulted in the arbitrator
failing to address important factors
which did distinguish why it was
justified in dismissing the third respondent, even if it should not
have simply failed to make
an effort to also charge his subordinates.
[9]
It is apparent from the arbitrator’s reasoning that he equated
the gravity of the breach of the safety rule committed
by the third
respondent with that of his subordinates. In a simplistic sense, the
arbitrator cannot be criticised for saying that
safety was also the
responsibility of the third respondent’s subordinates. However,
what the arbitrator simply did not consider
was whether an even
greater responsibility lay on the third respondent in view of his
line management position and more specifically
his responsibilities
under the MHSA as a regulation 2.9.2 supervisor. Had the arbitrator
considered these, the arbitrator would
have struggled to avoid the
conclusion that third respondent’s infringement of the
regulation was far more serious than the
same infringement by his
subordinates because of his more onerous responsibilities for safety.
[10]
The arbitrator’s subsidiary finding that the employer made no
effort to hold the third respondent’s subordinates
responsible
for their own infractions, in circumstances under which it ought not
to have been that difficult to have identified
the probable
perpetrators and at least charged them with the same offence, is less
open to criticism on grounds of reasonableness.
Nevertheless, that
could not on any ground be dispositive of the question of the
fairness of the third respondent’s dismissal.
At best, such
selective initiation of disciplinary action might have provided a
basis for a finding of a degree of inconsistency
in the application
of disciplinary action. What the arbitrator did was to collapse the
distinction between a finding of selective
initiation of disciplinary
proceedings with the entire question of whether the third
respondent’s dismissal in any event
was warranted.
[11]
In doing so, the arbitrator overlooked the important issues which
distinguished the third respondent’s conduct from that
of his
subordinates and also failed to consider the third respondent’s
alarming indifference to use breach of the rule which
he displayed in
the presence of team when confronted as well as his failure even by
the arbitration to acknowledge the inappropriateness
of acting the
way he did given his position, even if he did believe he had been
unfairly singled out. The arbitrator also singularly
avoided the
question of the third respondent’s disciplinary record, which
was, and also included previous infractions of
safety procedures. Had
the arbitrator considered this, the arbitrator would have found it
difficult to justify reinstatement of
the third respondent into a
responsible position as a remedy, assuming for the moment that the
arbitrator’s finding that
inconsistency rendered the third
respondent’s dismissal substantively unfair could be rationally
justified.
[12]
In conclusion, I am satisfied that because of the arbitrator’s
approach, he failed to take account of material evidence
both in
relation to his finding that the third respondent’s dismissal
was substantively unfair and that reinstatement
was the
appropriate remedy, but if he had not discounted or ignored that
evidence he could not reasonably have reached the conclusions.
To the
extent that the arbitrator justifiably found that there was an
element of substantive unfairness in the failure to take
any
disciplinary steps against the third respondent’s subordinates
in circumstances where no effort was made to even identify
any of
them in circumstances where they were known to come from a
well-defined group of employees and where their infraction was
not
trivial, that could not reasonably render the third respondent’s
dismissal substantively unfair.
Order
[1]
The second respondent’s award dated 28 October 2015 under case
number NC1589-15 is
reviewed and set aside.
[2]
The findings and relief in the said award are substituted with a
finding that the third
respondent’s dismissal was substantively
fair.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
Van As instructed by Cliffe
Dekker
Hofmeyr
THIRD
RESPONDENT:
K
Ramolefe instructed by
Manamane
Mokalane Inc.
[1]
See Sidumo & another v Rustenburg Platinum Mines Ltd &
others
[2008 (2) SA 24
(CC)] (2007) 28
ILJ
2405 (CC) and earlier Engen Petroleum Ltd v Commission for
Conciliation, Mediation & Arbitration & others (2007) 28
ILJ
1507 (LAC)
[2]
Gcwensha
v CCMA & Others
[2006]
3 BLLR 234
(LAC)