South African Airways Technical SOC Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1889/14) [2020] ZALCJHB 58 (3 March 2020)

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[2020] ZALCJHB 58
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South African Airways Technical SOC Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1889/14) [2020] ZALCJHB 58 (3 March 2020)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 1889/14
In the matter between:
SOUTH AFRICAN AIRWAYS
TECHNICAL SOC LTD    Applicant
And
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION                                                       First

Respondent
LAZARUS MATLALA
N.O
Second
Respondent
MARTIN C
COETZER                                                    Third

Respondent
AVIATION UNION OF
SOUTH AFRICA

Fourth Respondent
Heard:          7 November 2019
Delivered:    3 March 2020
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The third respondent (Coetzer), was employed by the applicant (SAA
Technical)
as Senior Licenced Technician from July 1994 until his
dismissal on 6 August 2013. The applicant performs
maintenance
services on various aircraft at OR Tambo International
Airport (ORTIA). It provides technical and maintenance services to
its parent
company, SAA and also to other airlines such as Air
France, British Airways Comair, Air Mauritius and TAAG. It has been
accredited
by aviation regulatory bodies such as the South African
Civil Aviation Authority, European Aviation Safety Agency and Federal
Aviation
Authority in the USA.
Coetzer in his
capacity was involved in aspects of the work performed on those
aircrafts.
[2]
It is common cause that on 8 March 2013, a long haul SAA
aircraft
ZS-SNI A340/600 (‘The Aircraft’) arrived at the
Base Maintenance Department for a scheduled CKC Check, and that
Coetzer,
together with the Acting Team Leader
(Minords) and the Unlicensed Technician (Martin Moyo), were tasked
with working on the right
wing Engine 4 of the Aircraft. The three
were responsible for the removal of a triangular or blanking cover
and borescope plug
from Engine 4 of the Aircraft, for the purposes of
inspection, and were required to reinstall the same upon completion
of the inspection.
Once the borescope plug
was reinstalled, the triangular or blanking cover was to be placed
over the borescope plug by using 3 bolts
for installation and
securing the blanking cover.
[3]
According to the applicant, Moyo and Minords had
confirmed that this job was completed by completing the paperwork,
when in fact
they had not done the job by installing the
triangle/blanking cover. Minords in terms of the applicant’s
Quality Manual of
Procedures (QMP) was responsible for performing an
inspection of the work done by Moyo. Since the tasks to be completed
were critical
on an engine control system that affected the
propulsive force of the Aircraft, Minords had raised a certificate
for duplicate
inspection in terms of the QMP. He had requested
Coetzer to perform the first leg of the duplicate inspection whilst
the second
leg was performed by him (Minords).
[4]
The job log was generated by Moyo and signed off
by Minords on 25 March 2013. The certificate of duplicate
inspection
was generated and signed by Minords and Coetzer on
28 March 2013, and according to the applicant, in violation
of standing
procedures that such certificates should be issued
simultaneously.
[5]
On 30 March 2013, the Aircraft was
released from the CKC Check and re-entered service upon being
declared serviceable.
On 31 March 2013, the Aircraft
departed from ORTIA to Cape Town International Airport and back. On
the same day, it was
scheduled to depart to JFK International Airport
in New York (JFK). Before departing the First Officer of the Aircraft
performed
an exterior pre-flight inspection and discovered that
fragments of a heat shield were protruding from the tail pipe area of
Engine
4 of the Aircraft. This was brought to the attention of the
engineer on the ground, who had had inspected the engine and trimmed

the protruding heat shield. He had declared the aircraft serviceable.
[6]
On arrival at JFK on 1 April 2013, the
flight crew noticed that Engine 4 consumed more fuel (1.5 tons) than
the other
three engines. The Aircraft returned to ORTIA on the same
day. On 2 April 2013 the Aircraft departed from ORTIA to
JFK.
[7]
Prior to the scheduled flight back to ORTIA, an
external pre-inspection was conducted by its First Officer, who had
discovered fragments
of head shield protruding from Engine 4. The
engineers at JFK where then asked to assist. An engineer from Virgin
Atlantic Airways
assisted and upon opening the cowl of Engine 4, it
was discovered that the Right Hand C-duct insulation of Engine 4 had
been severely
damaged, and that the borescope blanking cover of the
engine was missing. The cover was subsequently found in the right
hand C-duct.
[8]
As a result of the defects to the Aircraft, it was
then grounded by JFK aviation authorities until repairs could be
done. Alternative
flight and accommodation arrangements had to be
made for the stranded passengers and crew at great expense to SAA and
the applicant.
In order to address the problems with the Aircraft
grounded at JFK, the applicant had other than ordering replacement
parts from
France, also had to dispatch a team of engineers from
ORTIA to JFK. Further expenses were incurred as a result of the
Aircraft
having been grounded by the JFK authorities, who had imposed
penalties on the applicant.
[9]
The Quality Control department of the applicant
subsequently conducted investigations into the incident. The findings
of the audit
report were essentially that;
a)
The borescope access blanking plug 1HP NGV was
removed and reinstalled on completion of inspection. This was signed
off by Moyo
and certified by Minords.
b)
Coetzer and Minords had signed off the duplicate
inspection certificate on 28 March 2013
c)
Coetzer, Moyo and Minords did not install the
triangular/blanking cover of the borescope plug, nor did they perform
the duplicate
inspection as required by QMP despite having issued a
certificate for duplicate inspection.
d)
As a result of omissions, the hot air from the
engine escaped the engine case because the triangular/blanking cover
which serves
as an insulator had not been reinstalled, resulting in
the R/H C-duct being severely damaged.
[10]
Coetzer, Moyo and Minords were charged and dismissed following a
disciplinary enquiry into
the following allegations;
i.
“Gross Negligence in that on 28 March 2013 GT/26;
11/009 was signed off for work not
performed on engine number 4
ZS-SN1 by MC Coetzer.
ii.
Neglect of duty or carelessness in that on 28 March 2013 on
GT/26: 11/009 you indicated that
the blanking cover was fitted yet it
was not thereby resulting in damage to SAA aircraft; disruption of
scheduled service which
further resulted in financial loss at a
minimum of $66 879.41”
The
arbitration proceedings and Commissioner’s award:
[11]
Subsequent to his dismissal, Coetzer
as assisted
by the fourth respondent (AUSA)
referred an unfair dismissal
dispute to the first respondent (CCMA). When attempts at conciliation
failed, the dispute was referred
for arbitration and came before the
second respondent (Commissioner) for determination.
[12]
The Commissioner had found that the dismissal of Coetzer was
substantively unfair, and
had ordered Coetzer’s retrospective
reinstatement together with back-pay in the amount of R225 295.00.
The applicant
approached this Court to have the arbitration award
reviewed and set aside. Coetzer as assisted by AUSA opposed the
application.
[13]
Coetzer’s case before the Commissioner was that the allegations
against him were
not proven; that the applicant was not consistent in
the application of discipline; and that the chairperson of the
disciplinary
enquiry was biased.
[14]
Four witnesses,
viz
, Messrs Khan (Senior Manager: Base
Maintenance); Du Plessis (Team Leader); Booysen (Quality Controller);
and Niranjan (Chairperson
of the internal disciplinary enquiry)
testified on behalf of the applicant. To the extent that the
Commissioner had found that
Coetzer’s dismissal was
procedurally fair, it would not be necessary to deal with Niranjan’s
testimony in this judgment.
[15]
Khan’s testimony was essentially that Coetzer in his position
was responsible and
accountable for his own tasks and for overseeing
and signing off work performed on behalf other employees who did not
hold any
licenses. Coetzer was also a health, safety and
environmental representative. Khan further relied on the audit report
which essentially
confirmed that Coetzer, Minords and Moyo did not
perform the duties allocated to them on the Aircraft, and that they
had signed
the paperwork without actually having performed the tasks.
This was further confirmed when the cowl of engine 4 of the Aircraft

was opened whilst it was still at JFK. According to Khan, Coetzer had
maintained throughout that the certificate for duplicate
inspection
was never a requirement when that was not the case.
[16]
Du Plessis’ testimony was merely to confirm that indeed he was
part of the team that
was dispatched to New York to repair and
recover the Aircraft. Upon an inspection of the Aircraft, it was
discovered that there
was extensive damage on the Right Hand C- duct,
which had to be replaced. The engineer from Virgin Atlantic Airways
who had assisted
with the inspection of the Aircraft had handed him
an intact triangular/blanking cover recovered from inside the cowl of
Engine
4, which he had brought back to South Africa. That
triangular/blanking cover was not installed in the first place. He
had then
installed a new C-duct which came from France, and a new
triangular/blanking cover. Thereafter Engine 4 had functioned
normally.
[17]
Booysen’s testimony was to confirm that following his own
investigations from the
maintenance records of the Aircraft, he had
compiled the Quality Control Audit, which was also based on reports
from other individuals
who had assessed the damage to the Aircraft.
He had conceded that the applicant had not conducted its
investigations to determine
as to what had happened with the blanking
cover, and the reason it was found in the C-duct upon the latter
being opened at JFK.
[18]
Coetzer had testified and also called upon Messrs Cronje, Kloppers
(Quality Controller)
and De Abrieu (Team Leader) as his witnesses.
Central to their evidence was that there was no requirement to
conduct a duplicate
certificate. Coetzer had nonetheless conceded
that he had performed a duplicate certificate, but upon instructions
from  his
superior, Minords. Minords’ instructions
according to Coetzer was to specifically inspect the plug and not the
blanking cover,
as its inspection was not specified on the GT26. The
cover was in any event fitted even though he did not personally
inspect it.
[19]
Coetzer further denied any responsibility in respect of the damage
to the Aircraft
and the associated costs of its repairs. He
blamed the engineer on duty in that as at 31 March 2013, an
intermittent
engine number 4 fire loop was reported as well as the
protruding heat shield. According to Coetzer, the engineer on duty
ought
to have opened the engine cowl and had he done so, he would
have discovered the damage. The engineer had however only trimmed off

the excess and declared the aircraft serviceable. Thus, according to
Coetzer, had the engineer done what he was supposed to do,
a cowl
which was available before the Aircraft was declared serviceable
could have been fitted at the time, and thus avoided any
damages to
the Aircraft.
[20]
Cronje, had testified that the damage to the composite material as
seen on photographs
presented by the applicant, was as a result of
impact damage and not heat damage, even though he had not personally
inspected the
C-duct as according to de Abreu and Kloppers, it was
never brought back to South Africa for inspection, as it was sent to
France.
[21]
It was also Coetzer’s case as advanced through the evidence of
de Abreu on his behalf
that the applicant was inconsistent in the
application of discipline. In this regard, he testified that there
were three other
employees who were accused of negligence and causing
damage to other aircraft in the past, which damage had necessitated
the grounding
of the aircraft in question in excess of three days.
These employees were however not dismissed.
[22]
The
Commissioner having had regard to the question of onus under the
provisions of section 192 of the Labour Relations Act (LRA),
[1]
and also the provisions of Item 7 of Schedule 8 of the Code of Good
Practice: Dismissal concluded that;
22.1
In regards to the issue of duplicate inspection, Coetzer, de Abreua
and Klopper had testified
that there was no requirement in the QMP to
do a duplicate inspection, and the testimony of Minords at the
internal disciplinary
enquiry to the contrary could not be relied
upon. To that end, it should be accepted that the QMP did not require
a duplicate inspection
of the GT26.
22.2
The applicant (SAA Technical) had relied on the Quality Control Audit
Report compiled by Booysen
in contending that Coetzer was responsible
for the damage to the Aircraft. Booysen had conceded in the
arbitration proceedings
that he had compiled the report based on
other documents he had seen, had not himself investigated the causes
of the damage to
the Aircraft, did not go to JFK, nor observed the
incident leading to the damage.
22.3
The
evidence of Minords in regards to the existence of the rule or
standard, as well as the evidence of Booysen in regards to incidents

leading to the damage to the Aircraft constituted hearsay evidence
within the meaning of section 3 of the Law of Evidence Amendment
Act
(LEAA)
[2]
. Since Coetzer had
objected to the admission of such evidence, Booysen’s and
Minords’ evidence ought to be rejected.
22.4
SAA Technical had therefore failed to discharge the onus placed on it
to prove that Coetzer had
committed the misconduct in question.
22.5
In regards to inconsistent application of discipline, since there was
evidence that other employees
were in the past charged with gross
negligence and were not dismissed, and further since no evidence in
that regard was presented
by SAA Technical, it should be found that
there was inconsistent application of discipline in respect of
Coetzer, making the dismissal
unfair.
The
grounds of review and evaluation:
[23]
The
principles applicable to reviews of arbitration awards are trite. It
can only be reiterated that an arbitration award will be
set aside,
if it is established that the decision arrived at by the Commissioner
is one which a reasonable decision maker could
not have arrived at in
the light of the material placed before him/her. An arbitration award
or decision will be reviewable if
it is not supported by the evidence
placed before the Commissioner, or where the conclusions reached by
the Commissioner were without
any deductive reasoning. Reasonableness
is therefore the yardstick against which an award is assessed
[3]
.
[24]
In
further clarifying the test on review, it was held in
Head
of the Department of Education v Mofokeng and Others
[4]
;
‘
The
determination of whether a decision is unreasonable in its result is
an exercise inherently dependant on variable considerations
and
circumstantial factors. A finding of unreasonableness usually implies
that some other ground is present, either latently or
comprising
manifest unlawfulness. Accordingly, the process of judicial review on
grounds of unreasonableness often entails examination
of
inter-related questions of rationality, lawfulness and
proportionality, pertaining to the purpose, basis, reasoning or
effect
of the decision, corresponding to the scrutiny envisioned in
the distinctive review grounds developed casuistically at common law,

now codified and mostly specified in section 6 of the Promotion of
Administrative Justice Act (“PAJA”); such as failing
to
apply the mind, taking into account irrelevant considerations,
ignoring relevant considerations, acting for an ulterior purpose,
in
bad faith, arbitrarily or capriciously etc. The court must
nonetheless still consider whether, apart from the flawed reasons
of
or any irregularity by the arbitrator, the result could be reasonably
reached in light of the issues and the evidence. Moreover,
judges of
the Labour Court should keep in mind that it is not only the
reasonableness of the outcome which is subject to scrutiny.
As the
SCA held in
Herholdt
, the arbitrator must not misconceive the
inquiry or undertake the inquiry in a misconceived manner. There must
be a fair trial
of the issues.’
[25]
The applicant relied on three main grounds
in support of its case that the arbitration should be reviewed and
set aside,
viz
,
that the Commissioner failed to understand the dispute before him;
misapplied the law of evidence by excluding hearsay evidence
when
deciding the matter, and failed to apply his mind to certain evidence
led during the arbitration proceedings.
[26]
It is
further trite flowing from
Goldfields
[5]
that in determining whether an award is reviewable, the essential
enquiry is to ask whether in terms of his or her duty to deal
with
the matter with the minimum of legal formalities, the process that
the arbitrator employed gave the parties a full opportunity
to have
their say in respect of the dispute; whether the arbitrator
identified the dispute he was required to arbitrate; whether
the
arbitrator understood the nature of the dispute he or she was
required to arbitrate; whether he or she dealt with the substantial

merits of the dispute; and whether decision arrived at is one that
another decision-maker could reasonably have arrived at based
on the
evidence placed before him or her.
[27]
In this case, the Commissioner was alive to the provisions of
section 192 of the LRA in respect of the issue of onus, and the need

to take into account the provisions of Item 7 of Schedule 8 in
determining the substantive fairness of the dismissal. I further
did
not understand the applicant’s case to be that the parties were
not afforded a full opportunity to have their say in
respect of the
dispute.
[28]
A proper identification and understanding of the nature of the
dispute required to be resolved entails an examination of the
allegations
that led to Coetzer’s dismissal, and a proper
assessment of the evidence led in that regard. It follows that where
there
was a misconception of the true enquiry this would result in an
unreasonable outcome.
[29]
The nature of the enquiry in this case was to determine the
fairness of a dismissal for misconduct. The allegations of misconduct

were that Coetzer was grossly negligent as he had signed off for work
not performed on Engine 4. The second part of the allegations

constituted an elaboration of the first part and the consequences
thereof. In this regard, it was alleged that Coetzer indicated
in the
requisite GT/26 that the blanking cover was fitted when it was not,
and that this conduct had caused damage to the Aircraft,
disruption
of scheduled service and financial loss to the applicant.
[30]
The enquiry therefore was whether Coetzer had signed off for
work that was supposed to be done when he had not done the work.
Coetzer’s
case as I understood it was that  his
involvement in the work done on the Aircraft was limited to doing the
inspection on
the plug and did not relate to work done on the cover
for which he was charged, found guilty and dismissed. To this end,
his argument
was that the applicant failed to prove that he was
guilty of the charges against him in relation to the cover.
[31]
The Commissioner having accepted on the common cause facts
that Coetzer and Minords had signed off the duplicate inspection and
having accepted that there was indeed damage to the Aircraft,
nonetheless got swayed and distracted by disputes of fact as to
whether
there was a rule in respect of the application of the QMP to
the job to be done. He had accepted the evidence of Coetzer, de
Abreau
and Kloppers that there was no requirement in the QMP for a
duplicate inspection. In a nutshell, the Commissioner found that the

fairness of Coetzer’s dismissal was substantively unfair on
account of there being no workplace rule in respect of the
application
of the QMP to the tasks to be performed.
[32]
Clearly the Commissioner misconstrued and misunderstood the
nature of the enquiry and the dispute he was called upon to
determine.
The disputed facts as to the existence of the rule was
neither here nor there. The Commissioner’s approach in regards
to
the existence of the rule or standard and contravention thereof as
contemplated in Item 7 (a) of Schedule 8 is a classic case of
a
mechanical application of those provisions. The enquiry into the
existence of a workplace rule and breach thereof cannot be a

mechanical one. This is so in that depending on the nature of the
work to be done, some tasks do not necessarily only require workplace

rules in order to be performed, but may require common sense and due
diligence in order to be carried out satisfactorily.
[33]
The nature of the work that Coetzer and the others were
instructed to perform on the Aircraft not only required written rules
but
also a high standard of care and common sense expected of
reasonable employees performing inspections and maintenance on
aircraft.
Collectively, they were tasked with removing a triangular
or blanking cover and a borescope plug from engine 4 of the aircraft
for inspection, and to reinstall same upon completion.  This is
so in view of the importance of safety in the aviation industry,
and
the services that the applicant rendered in the industry.
[34]
Furthermore, I did not understand the evidence of Khan in
regards to Coetzer’s responsibilities (i.e., being responsible
and
accountable for his own tasks and for overseeing and signing off
work performed on behalf other employees who did not hold any
license) to have been challenged. Coetzer’s contention
therefore that he was only responsible for the one part of the
inspection
and maintenance and not the whole task in respect of
Engine 4 was unsustainable.
[35]
The allegations against Coetzer were not your typical textbook
allegations, where a simple enquiry is whether there was a rule or

not. The allegations were that he had signed off for work that was
not done. Thus, once the Commissioner had accepted that Coetzer
and
Minords had signed the GT26 indicating that a duplicate inspection
was done, when the evidence on the other hand pointed to
the fact
that it was not done, and that flowing from such conduct there was
damage to the Aircraft, that ought to have been the
end of the
matter.
[36]
It
was therefore irrelevant whether Coetzer had signed the documentation
upon Minords’ instructions or not, or whether a written
rule
existed in that regard or not. The fact remained that the document
was signed (some three days after the alleged completion
of the task
and contrary to the requirements of the QMP). That document indicated
that a duplicate inspection was done, inclusive
on the very Borescope
Plug which Coetzer had removed for inspection and reinstalled, and
which he had alleged was his sole responsibility
[6]
.
It followed that even on Coetzer’s version that he had signed
the documents indicating that the tasks were completed when
this was
not the case, the allegations against him were proven.
[37]
The debates surrounding whether the Quality Control Audit
Report as presented by Booysen was admissible or not is equally
neither
here nor there. Evidence presented at the arbitration by
Booysen was that the report was a collation of reports compiled as a
result
of his own investigations from the records of the Aircraft and
reports from the Pilot.
[38]
Even
if the report was regarded as hearsay, the Commissioner had simply
rejected the evidence of Booysen, Khan and Du Plessis, and
in so
doing, completely misconstrued and misapplied the provisions of
section 3(1) of the Law of Evidence Amendment Act
[7]
.
The mere fact that Coetzer had not agreed to the admission of the
report as presented by Booysens was not the end of the enquiry.
It is
further not clear from the Commissioner’s reasoning as to the
reason the interests of justice would have militated
against the
admission of that evidence.
[39]
A blanket statement that ‘
it is not in the interests
of justice to admit hearsay evidence
’ is meaningless and
does not add any value to any reasoning. As to how the interests of
justice are determined was stated
by the Constitutional Court in
S
v Molimi
as follows;
“
In comparison to
the common law the Act allows a more nuanced approach to the
admission of hearsay evidence. As the Supreme Court
of Appeal stated
in
Makhathini v Road Accident Fund
, in the application of the
Act in the context of a civil case, the Act requires the court to
take a contextual approach. The court
said that the statutory
preconditions for the reception of hearsay evidence are now designed
to ensure that the evidence is received
only if the interests of
justice justify its reception. A court making a determination whether
it is in the interests of justice
to admit hearsay evidence must―
“
have
regard to every factor that should be taken into account, more
specifically, to have regard to the factors mentioned in s 3(1)(c).

Only if, having regard to all these factors cumulatively, it would be
in the interests of justice to admit the hearsay evidence,
should it
be admitted.””
[8]
(Citations
omitted)
[40]
In this case, the Commissioner made no
effort to take into account that arbitration proceedings are not akin
to court proceedings,
and there is a certain measure of flexibility
enjoyed by commissioners when dealing with hearsay evidence, and in
the general conduct
of proceedings. The Commissioner equally paid
scant regard to the nature of the evidence regarded as hearsay,
the
purpose for which the evidence was tendered;
its
probative value, and the reason why Booysen, other than
conducting his own investigations from the material available to him,
had
relied on various reports in compiling the Audit report.
[41]
Equally crucial was the need to assess the
so-called hearsay evidence against other evidence proffered by the
applicant’s
witnesses as against Coetzer, and to the extent
that such evidence was uncontroverted. In this regard, it
was
common cause that the engine 4 of the Aircraft was attended to by
Coetzer, Moyo and Minords, and that the Aircraft was grounded
in JFK
at considerable expense to the applicant and inconvenience to SAA
passengers who were left stranded. Du Plessis and his
team were
despatched to JFK to assess and repair the Aircraft, and had received
a report from the Engineer from Virgin Atlantic
Airlines who was the
first to inspect the damage, and also handed over an intact blanking
cover recovered from inside the cowl
of Engine 4, which he brought
back to South Africa.
[42]
The Commissioner’s conclusions that Booysen’s
evidence ought to be rejected simply on the basis that ‘
he
did not observe any of the incident described by the respondent (SAA
Technical) leading to the damage of the Aircraft with his
own senses
but relied on documents written by other people’
, borders
on the ludicrous. They are not conclusions that could have been
reached by a Commissioner properly applying his mind to
the totality
of the evidence, and the provisions of section 3(1) of the Law of
Evidence Amendment Act. Evidence cannot be regarded
as inadmissible
hearsay simply on the basis that the witness did not observe an
incident with his or her own senses. That is not
the test when
applying the LEAA.
[43]
The
charges/allegations against Coetzer pertained to gross negligence.
The
requirements for a dismissal based on negligence are that the
employee failed to exercise the standard of care that can reasonably

be expected of him through conduct that caused loss or potential loss
to the employer
[9]
. In
Ford
Motor Company (Pty) Ltd v CCMA,
[10]
Van Niekerk J held that there can be no misconduct in the form of
gross negligence without negligence also being present. Gross

negligence inevitably has the same core content as the concept of
‘ordinary’ negligence; in other words, the failure
to
comply with the standard of care that would be exercised in the
circumstances by a reasonable person
.
[44]
In this case, insofar as the totality of the evidence was
concerned, once it was accepted that all associated problems
experienced
by the Aircraft emanated from Engine 4, which was
supposed to have been attended to by Coetzer and others, I find
difficulties
in appreciating how Coetzer can in good conscience,
allege that he was only responsible for one part of the installation
and inspection
and not the other. Coetzer in my view, cannot be
absolved from his own negligence and that of the other individuals,
when they
were collectively responsible for the maintenance and
inspection of Engine 4, and further in circumstances where he had
signed
off for work, when it was not in fact done.
[45]
T
o the extent that conduct in
question had led to the consequences in question, it is clear that
the allegations of misconduct were
proven. Clearly Coetzer did not
live up to the standard of a reasonable employee when attending to
Engine 4 of the Aircraft, and
the uncontroverted evidence was that
the applicant had suffered a loss.
[46]
My earlier conclusions in regards to the Commissioner’s
mechanical application of
the provisions of  Item 7 of Schedule
8 are equally apposite to the extent that he had dealt with the
issues surrounding allegations
of inconsistent application of
discipline. Item 7 (b) of Schedule 8 is specific. As it was correctly
submitted on behalf of the
applicant, it is only if there is a
finding that a standard or rule was contravened, that there is a need
to look at other considerations
such as inconsistent application of
the rule or standard, or appropriateness of sanction for
contravention of the rule or standard.
[47]
In this case, the Commissioner, for reasons not supported by the
evidence, had found that
Coetzer had not contravened any workplace
rule. Ordinarily, the question of inconsistent application of
discipline would not arise,
thus bringing the matter to an end.
I agree with the submissions made on behalf of Coetzer that the fact
that the Commissioner
dealt with the issue of inconsistency does not
necessarily on its own make the award reviewable. The point to be
made however is
that for the Commissioner to have ventured into
whether there was inconsistent application of the rule or discipline
when he had
found that no rules were breached, is a misconception and
misapplication of the provisions of Item 7 of Schedule 8.
[48]
Even if the Commissioner felt compelled to deal with the issue of
inconsistency, again,
there was no basis for any conclusions to be
reached that the argument was sustainable. Coetzer, Moyo and Minords
were dismissed
for the same offence as the circumstances leading to
the incident in question were common to all of them. The mere fact
that other
people in the past that were mentioned by Coetzer and
de
Abreau were issued with lesser sanctions for the same or similar
offence is not the overriding criteria in determining whether

discipline was consistently applied.
[49]
An
inconsistency claim cannot simply be thrown at commissioners to
attain absolution from misconduct, especially in cases of gross

negligence as in this case.
This
point was stressed in
Bidserv
Industrial Products ( Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[11]
where the Labour Appeal Court held that;
‘
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. 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.’
[50]
It is my view that even if an employee is able to identify the
persons who were treated
differently and the basis upon which they
ought not to have been treated differently, the enquiry does not end
at that point, in
that there are other factors to be considered,
including but not limited to personal circumstances of individual
employees, their
positions and responsibilities at the workplace, the
overall effect of the misconduct in question, the employees’
posture
after the misconduct in question, including at internal
disciplinary hearings and arbitration proceedings.
[51]
In this case, I did not for any moment, understand Coetzer to have
been contrite given
the costs and prejudice suffered as a result of
his and others’ negligence. Mercifully nothing more disastrous
had happened
to the Aircraft whilst it was airborne between ORTIA,
Cape Town and JFK.  The conduct in question clearly had
implications
for the applicant’s operations. In all of these,
Coetzer showed no willingness to take responsibility for his actions,
and
instead, sought to blame an engineer for not doing what he
(Coetzer) ought to have done in the first place in ensuring that
Engine
4 of the Aircraft was free of defects. Throughout the
disciplinary enquiry and arbitration hearings, his posture, and as
again
reflected in his pleadings and submissions made on his behalf,
was to blame everyone but himself. In these circumstances, I am in

agreement with the applicant’s view that Coetzer has in the
light of his misconduct, his lack of appreciation of the consequences

of his conduct, and lack of contrition, irretrievably broken any
trust or working relationship with the applicant. He cannot be

entrusted with the proper maintenance and safety of aircrafts, which
function is core to the applicant’s operations.
[52]
In summary, Coetzer failed in his duties and responsibilities to
exercise the standard
of care that was reasonably be expected of him
in regards to the service and maintenance of Engine 4 of the
Aircraft. It was common
cause that the applicant suffered extreme
prejudice (financially) as a consequence of his conduct. The
Commissioner’s award
therefore constituted a gross
irregularity, in that he failed to appreciate, identify and
understand the essence of the dispute
before him and what he was
required to determine. The Commissioner made conclusions without
deductive reasoning, which conduct
in the end, made his decision one
that a reasonable decision make could not have made in the light of
the material before him.
[53]
In the light of the conclusions reached in this judgment, it is my
view that no purpose
would be served by remitting this matter back to
the CCMA, particularly since all the material evidence presented at
the arbitration
proceedings over a period of six days is before the
Court. To this end, the Court is in a position to substitute the
Commissioner’s
award. I have further had regard to the
requirements of law and fairness, and it is my view that a costs
order is not warranted
in this case.
[54]
Accordingly, the following order is made;
Order:
1.
The arbitration award issued by the Second Respondent under case
number GAEK 7989-13 is reviewed, set aside and substituted with
an
order that;
‘
The
dismissal of Martin C Coetzer on 6 August 2013 by South African
Airways Technical Soc Limited was procedurally and substantively

fair.’
2.
There is no order as to costs
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv. M Mkhatshwa, instructed by Cliffe Dekker Hofmeyr
INC
For
the Third and Fourth Respondents: Mr. H Pretorius of Johannette
Rheeder Incorporated Attorneys
[1]
Act 66 of 1995 (as amended)
[2]
Act
45 of 1998
[3]
See
De
Beers Consolidated Mines Ltd (Venetia Mine) v National Union of
Mineworkers & others
(
Case
no: JA83/18; Delivered on
11
December 2019)
[4]
[2015] 1 BLLR 50
(LAC); (2015) 36 ILJ 2802 (LAC) at para 31
[5]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at para [20]
[6]
Annexure
‘MC 6’ to the Answering Affidavit
[7]
3
Hearsay evidence
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or
civil proceedings,
unless-
(a)
each party against whom the evidence is to be adduced agrees
to the admission thereof as evidence at such
proceedings;
(b)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings;
or
(c)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose

credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into
account, is of the opinion that such evidence should be
admitted in the interests of justice.
(2)
The provisions of subsection (1) shall not render admissible any
evidence which is inadmissible on any ground
other than that such
evidence is hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of
subsection (1)
(b)
if the court is informed that the person
upon whose credibility the probative value of such evidence depends,
will himself testify
in such proceedings: Provided that if such
person does not later testify in such proceedings, the hearsay
evidence shall be left
out of account unless the hearsay evidence is
admitted in terms of paragraph
(a)
of subsection (1) or is
admitted by the court in terms of paragraph
(c)
of that
subsection.
(4)
For the purposes of this section;
'hearsay
evidence'
means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of any person
other than
the person giving such evidence;
'party'
means the accused or party against whom hearsay evidence is to
be adduced, including the prosecution.
[8]
[2008] ZACC 2
;
2008 (3) SA 608
(CC) ;
2008 (2) SACR 76
(CC)
2008 (5) BCLR 451
(CC)
at para 35
[9]
EOH
Abantu (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2019) 40 ILJ 2477 (LAC);
[2019] 12 BLLR 1304
(LAC) at para 19
[10]
Ford
Motor Company (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(PR232/2014)
[2015] ZALCPE 44 (16 October 2015) at para 16
[11]
(2017) 38 ILJ 860 (LAC) at para 31