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[2019] ZALCJHB 118
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Nature's Garden (Pty) Ltd v Matumba NO and Others (JR1359/15) [2019] ZALCJHB 118 (17 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
No: JR 1359/15
In
the matter between:
NATURE’S
GARDEN (PTY)
LTD
Applicant
and
RENDANI
EWART MATUMBA
N.O
First Respondent
COMMISION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
GENERAL INDUSTRIES
WORKERS UNION
OF
SA obo PAULOS NTOA
Third
Respondent
Heard: 17
April 2019
Delivered:
17 May 2019
JUDGMENT
BALOYI, AJ
Introduction
[1]
The applicant is seeking to review and set aside the arbitration
award issued out
by the first respondent under case number GAEK
1165-15. The first respondent made a finding that the third
respondent’s
dismissal was substantially unfair and awarded him
reinstatement with retrospective effect. The third respondent
opposed
the application and argued for its dismissal with costs.
Factual
background
[2]
The applicant employed the third
respondent on 08 February 2013 as a general worker in
its factory
warehouse. The third respondent was, as part of his duties,
required to work in the cold room. He was dismissed
on 27
January 2015 after being found sleeping in the canteen at the
workplace during working hours. The applicant adopted a practice
of
allowing employees who perform duties in the cold room to take a
fifteen-minute break in order to warm themselves up in the
canteen.
The applicant used to allow them up to thirty minutes of warming up
if there was not much work to do in the warehouse.
Sleeping on duty
is, in terms of the applicant’s Disciplinary Code, a
dismissible offence.
[3]
What came before the first respondent is that on 04 December 2014 the
supervisor,
Mr Sam Shibiri, combed through the warehouse in search of
the third respondent. He eventually found him sleeping in the
canteen.
After waking the third respondent up he attempted to remind
him that sleeping on duty was prohibited. That did not bear any fruit
as the third respondent had instead raised arguments. This prompted
Shibiri to institute disciplinary proceedings against the third
respondent in view of his unapologetic stance. What was specifically
common cause before the first respondent was that the third
respondent was found sleeping and that it was during working hours.
[4]
The applicant had at some stage in the past dismissed Messrs Msindo
and Ngobese for
sleeping on duty. Their sanctions were however
overturned on appeal and substituted with final written warnings. It
was the
third respondent’s version that he resorted to sleeping
because he was not feeling well. Secondly, the applicant did
not apply the rule consistently as Msindo and Ngobese escaped with
warnings for the same misconduct.
[5]
The disciplinary hearing chairperson testified that he handed down a
sanction of dismissal
solely because sleeping on duty was prescribed
as a dismissible offence in the disciplinary code. The applicant’s
contention
that the third respondent did not show remorse had no
influence on his decision to dismiss the third respondent. He
emphatically
pointed that even if remorse was shown he would have
nevertheless imposed the sanction of dismissal because of the
disciplinary
code.
[6]
The first respondent rested his findings on two points.
Firstly, that the applicant
was inconsistent in the application of
the rule or standard when considering the approach taken in respect
of Msindo and Ngobese.
The first respondent’s reasoning on
inconsistency suggested that the applicant applied the rules or
standards based on Shibiri’s
election, that is, to charge an
employee if such employee failed to apologize to him. Secondly,
the applicant ignored or
failed to consider the circumstances which
led to the third respondent falling asleep. In essence the
applicant failed to
take into account that the applicant was not
feeling well on the day in question.
[7]
In its arguments, as pointed out by Mr Mmoue, the applicant was no
longer pursuing
its ground relating to the first respondent’s
ruling refusing legal representation. In the forefront of the
applicant’s
argument is that the third respondent misconstrued
the principle of inconsistency and that he failed to take into
account that
sleeping on duty was a serious misconduct. He did not
take his arguments further on the disciplinary chairperson’s
approach
of sticking to the sanction of dismissal without considering
any underlying issue which might have had a mitigating effect. On the
same token Mr Bayi for the third respondent argued in defense of the
first respondent’s decision on inconsistency. This issue
was
contended in so far as the applicant’s decision to discipline
the employees was left to the discretion of Shibiri, particularly
if
he did not get an apology. He emphasized the disciplinary
chairperson’s rigid approach as an issue which in itself
has a
bearing on the unfairness of the dismissal. The third respondent also
tried to persuade the Court to consider dismissing
the review
application by granting the order sought in the Rule 11 application.
The
applicable principles
[8]
This application turns on the very two points identified by the
second respondent above. In
SACCAWU
and Others v Irvin &Johnson
[1]
the Labour Appeal Court in its endeavors to place an understanding of
the principle of consistency, which to me is absolutely clear,
said
the following at paragraph 29::
“……
.
In my view too great an emphasis is quite frequently sought to be
placed on to the ‘principle’ of disciplinary consistency,
also called the ‘parity principle’. (as to which see e.g.
Grogan,
Workplace
Law
,
fourth ed. p.145 and Le Roux & Van Niekerk,
The
South African Law of Unfair Dismissal
,
p.110). There is really no separate ‘principle’ involved.
Consistency is simply an element of disciplinary fairness
(The
Dismissal of Strikers, MSM Brassey (1990) 11 ILJ 213 at 229). Every
employee must be measured by the same standards (Reckitt
& Colman
(SA) (Pty) Ltd v Chemical Workers’ Industrial Union &
Others (1991) 12 ILJ 806 (LAC) at 813 HI). 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, exercises 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 page 21 of 25 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.
(As was the case in
Henred
Fruehauf Trailers v National Union of Metalworkers of SA &
Others, (1992) 13 ILJ 593 (LAC) at 599 H 601B; National Union
of
Mineworkers v Henred Fruehauf Trailers (Pty) Ltd, 1994 15 ILJ 1257
(A)
at
1264). 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. Fairness is a value judgment. It might
or might
not in the circumstances be fair to reinstate the other offenders.
The point is that consistency is not a rule unto itself.”
[2]
[9]
The position of the third
respondent conspicuously carries distinguishable features as
compared
to that of Msindo and Ngobese. What is critical around the concept of
inconsistency is that it is unfair that like and
like are not treated
alike
[3]
. Although the two were
dismissed for the same misconduct as the third respondent, it remains
undisputed that the third respondent
did not appeal the dismissal
sanction. Unlike Msindo and Ngobese his failure to lodge an appeal
has effectively denied him an opportunity
to be heard prior to the
confirmation of his dismissal. On this note the cases of Msindo and
Ngobese are in the context of the
third respondent’s case not
an appropriate bench mark to argue whether the applicant applied the
rule consistently.
[10]
What is of utmost importance in review
applications is whether the decision of the arbitrator is so
unreasonable
to a point that no reasonable decision maker could reach
the same. The Constitutional Court has in its enunciation of the test
for review of an arbitration award in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
,
with no hesitation, moved towards an approach that interference with
decisions of arbitrators should only be carried out if such
a
decision would bring about an unfair result. This was accordingly
taken further by the Labour Appeal Court in
Fidelity
Security Services v CCMA and Others
[5]
where the following was said:
“
It will often
happen that, in assessing the reasonableness or otherwise of an
arbitration award or other decision of a CCMA commissioner,
the Court
feels that it would have arrived at a different decision or finding
to that reached by the commissioner. When that
happens, the
Court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal is in
terms of the Act
primarily given to the commissioner and that the system would never
work if the Court would interfere with every
decision or arbitration
award of the CCMA simply because it, that is the Court, would have
dealt with the matter differently.
Obviously, this does not in
any way mean that decisions or arbitration awards of the CCMA are
shielded from the legitimate scrutiny
of the Labour Court on
review.”
[6]
[11]
The test for review was interpreted further in
Herholdt
v Nedbank Ltd and Others
[7]
wherein
the Supreme Court of Appeal had this to say:
“
In summary, the
position regarding the review of CCMA awards is this: A review of a
CCMA award is permissible if the defect in the
proceedings falls
within one of the grounds in s 145(2)
(a)
of the LRA. For a defect in the conduct of the proceedings to amount
to a gross irregularity as contemplated by s 145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. 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 particular facts,
are not in and of themselves sufficient
for an award to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable.”
[8]
[12]
In
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation Mediation & others
[9]
the
Labour Appeal Court cautioned against the segmented way of
determining review applications, this aspect was dealt with
in
paragraph 18 as follows:
“
In
a review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to take into account every factor individually,
consider how the arbitrator treated and dealt with each of those
factors and then determine whether a failure by the arbitrator
to
deal with one or some of the factors amounts to process-related
irregularity sufficient to set aside the award. This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must necessarily consider the totality of
the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision-maker could make.”
Evaluation
[13]
When considering the parties’ submissions, it certainly appears
that the third respondent
is looking at having the rule 11
application considered with a view of disposing this matter for
reasons pleaded in the said application.
I am of the view that
it will not be in the interest of justice to overlook the review
application that was ready for determination
on its merit in favor of
disposing the matter on technicalities. Proceeding with the review
application will under the circumstances
be the most appropriate way
of dealing with this matter. It appears without any doubt in the
arbitration award that the second
respondent saw overwhelming
mitigating factors in the third respondent’s case, specifically
that the applicant was aware
that the third respondent was not
feeling well and that the canteen was an accident free zone.
[14]
In view of the test for review being well established as pointed out
in the above authorities,
for the Court to interfere with the
decision of the arbitrator, such decision should be so unreasonable
to the point that no reasonable
decision maker could reach
[10]
.
What deserves scrutiny is the chairperson’s approach not to
consider aggravating and mitigating factors prior to taking
decision
to dismiss the third respondent. His sole reliance on the plain
reading of the rule, that as long as the commission of
misconduct is
established, a sanction of dismissal should follow has regrettably
failed the applicant in terms of arriving at a
conclusion whether the
dismissal was an appropriate sanction or otherwise. The disciplinary
hearing chairperson was supposed to
hold a separate enquiry post the
guilty finding. The chairperson acted in derelict of his primary duty
of determining the appropriate
sanction. This resulted in the
applicant’s failure to properly conduct this enquiry to weigh
up the mitigating factors as
against the aggravating factors has
certainly resulted in an unfair sanction.
[15]
When taking into account that Shibiri at some point during the
arbitration proceedings admitted
to being approached by the third
respondent about his health condition at the commencement of the
shift, his subsequent denials
do not assist the applicant’s
case. This is in view of the third respondent having been
corroborated by Msindo that Shibiri
was indeed approached by the
third respondent about his health condition on the day but that was
brushed off by Shibiri.
[16]
Furthermore, in Shibiri’s own version, being in the canteen for
a 15 minute warm up session
was an acceptable practice and these
sessions were often overran by the employees. As a result, the
applicant had tolerance of
thirty-minute period and some times more
than that. Proper consideration of the mitigating factors would have
most likely revealed
that the third respondent, to a certain extent,
was found sleeping during the time set aside for regaining body heat
in the canteen.
Secondly, that the third respondent was not feeling
well and Shibiri was aware of this. In the presence of mitigation
factors which
the disciplinary chairperson did not make any effort to
consider, together with the totality of facts placed before the
second
respondent, his decision in the award cannot be found to be
unreasonable.
[17]
In this regard I see no reason why the second respondent’s
award should be interfered with.
The applicant’s review
application is under these circumstances bound to fail.
Regarding costs, considering the law
and fairness it will not be
appropriate to make a cost order particularly where the parties are
facing restoration of employment
relationship in terms of the
arbitration award.
[18]
In this premises, I make the following order:
Order
1.
The application is dismissed.
2.
There is no order as to costs.
___________________________
M.
M. Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant: Mr
K Mmuoe of
Schultz Mmuoe Incorporated
For
the third respondent: M V Bayi of Bayi
Attorneys
[1]
[1999] 8 BLLR 741 (LAC).
[2]
Ibid at para 29.
[3]
National
Union of Mineworkers obo Botsane v Anglo Platinum Mine
(Rustenburg Section) (2014) ILJ 2406 (LAC) at paragraph 25.
[4]
[2007] 12 BLLR 1097 (CC).
[5]
[2008] 3 BLLR 197 (LAC).
[6]
Ibid at para 98.
[7]
[2013] 11 BLLR 1074 (SCA).
[8]
Ibid at para 25.
[9]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).
[10]
Id fn 4 at para 110.