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[2020] ZALCJHB 76
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Solidarity obo Motogi v Commission for Conciliation, Mediation and Arbitration and Others (JR592/18) [2020] ZALCJHB 76 (12 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
No: JR592/18
In
the matter between:
SOLIDARITY
OBO MOTSOGI SH
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
AMOS
MTHIMUNYE
N.O.
Second Respondent
AIR
TRAFFIC AND NAVIGATION SERVICES
COMPANY
LIMITED
Third Respondent
Heard
16 January 2020
Delivered:
12 May 2020
"By
Email"
Summary:
Review Application - Misconduct -
Applicant dismissed for dishonesty -
Raises issue of
inconsistency with regards to the Third Respondent's application of
its Disciplinary Code - No proper evidence
with regards to
inconsistency raised at the arbitration - Review Application
dismissed - No order as to costs.
JUDGMENT
RAMDAW,AJ
Introduction
[1]
This is an application brought to review
and set aside the arbitration award dated 18 March 2018 issued under
case number GAJB20821-17
by the Second Respondent (the Commissioner)
acting under the auspices ofth Commission for Conciliation, Mediation
and Arbitration
(the CCMA).
[2]
Ms Motosogi represented by Solidarity
commenced her employment with the Third Respondent on 17 March 2012
and was dismissed on 6
September 2017 for having committed one act of
misconduct. Motsogi's dismissal was found to be procedurally and
substantively fair
by the Second Respondent.
[3]
The allegations levelled against Motsogi
was that she had unlawfully gained access to and utilized
confidential ATS Assessments/
Memos during the ATSA Rating Course.
Background
[4]
Motsogi and several other employees were
preparing for exams/assessments to be written at the Third
Respondent. Some learners had
insight into past examination papers
which was not permissible. Motsogi confirmed that she did receive a
copy of an exam paper
and memo on her cell phone but denies having
solicited same. She, as well as several other employees/learners,
were charged with
dishonest conduct. They all pleaded guilty and
admitted to committing the misconduct relating to dishonesty. All of
them apart
from one Nicole Govender were dismissed
[5]
Ms Motsogi lodged an appeal which was
dismissed. She then referred an unfair dismissal dispute to the First
Respondent.
[6]
The Applicant as per their heads of
arguments argued as follows:
6.1
Elements of the charges of dishonesty of
the charge was
"Dishonesty in
that you unlawfully gained access to and utilized confidential ATS
Assessments and memos".
6.2
The Second Respondent reached an
unreasonable conclusion in that he made factual errors which renders
his award reviewable.
"
6.3
The Second Respondent misdirected
himself and overlooked the fact that to be found guilty of dishonesty
toe Third Respondent should
show the Applicants intention to deceive
which is a crucial element in determining her guilt.
6.4
The Applicant was not aware of the rule
at the workplace as there is no clear rule. The Second Respondent
failed to consider the
parity principle in 1hat the
"rule
or standard has been consistently applied by the employer'
in
that seven employees including the Applicant as well as one Nicole
Govender were called at the hearing room at the same time
and
all of them pleaded guilty to the
same charge. All were dismissed
apart
from Nicole Govender and no evidence
exists that Nicole Govenders circumstances were
any different.
6.5
The Second Respondent committed a gross
irregularity
"when stating that
the evidence could not established the similarities in this case
between how Govender was treated as compared
to the Applicant who was
dismissed."
6.6
The Second Respondent failed to consider
that the sanction was harsh and as the Third Respondent is basically
the only employer
of this type in Southern Africa, the dismissal has
the effect of ending not only her employment but also the Applicant's
career.
[7]
The Third Respondent argued as follows:
7.1
The applicant breached a rule at the
workplace in that she possessed assessments in breach of the Learner
Code of Conduct irrespective
of
whether
she solicited them or not.
7.2
The Third Respondent submits that any
reasonable decision maker would have inferred reasonably or note that
the Applicant intended
to utilise and therefore benefit from the
assessment she received.
7.3
The
Third Respondent submits that the Second Respondent did not commit
any irregularities as argued by the Applicant.
7.4
As a result the leaked assessments of
the examination were postponed and the Third Respondent had to
prepare new assessments which
were a costly exercise let alone the
delays.
7.5
The Applicant having been employed by
the Third Respondent for over five .years was better placed than
other learners in understanding
the rules of conduct and standard
procedures of the Third Respondent. She was bound by both the
Employees Code of Conduct as well
as the Learners Code of Conduct.
7.6
No further information on similarities
is submitted to establish a pattern of inconsistency which refers to
the sanction of one
Nicole Govender.
7.7
The Applicant breached the relationship
of trust with the Third Respondent through her actions.
7.8
The Third Respondent has the reputation
to protect globally together with ensuring traffic, safety, security
and managing the credibility
of standing of the aviation industry.
7.9
This Application has no merit and should
be dismissed.
Test
for Review
[8]
The
test for review applied by our Courts was set out by the
Constitutional Court in the matter of
Sidumo
v Rustenburg Platinum Mines Ltd and Others
[1]
,
and
determines that the test for review is based .in fairness, that if a
"reasonable
decision-maker'
would
have arrived at the same finding opposed to that if the question of a
reasonable employer would have imposed the sanction
of dismissal.
[2]
In this case it is thus clear that the issue to consider (own
emphasis):
"is
whether
a
reaaooable
decision-maker, based on the evidence and the material before him or
her, would have arrived at
a
different
decision".
[3]
[9]
With
specific regard to review of arbitration awards under section
145(2)(a) Ngcobo J stated the following in his judgment in
Sidumo
[4]
(supra):
"The
grounds of review in section 145(2)(a) provides a cause of action for
the review of Commissioners' awards by the Labour
Court. Whether an
arbitral award should be interfered with under the provisions of
section 145(2)(a) will depend therefore on whether
the conduct of the
commissioner complained of fans under one or more of the grounds of
review set forth in section 145 (2)(a).
It is therefore for a
party alleging a defect in the arbitration proceedings to show that
the facts alleged constitute gross irregularity
or misconduct or show
that the power conferred has been exceeded, as the case may be. This
will require litigants to specify the
grounds of review relied upon
and the facts alleged as constituting the ground of review relied
upon.
[10]
Sidumo does not postulate a test that requires a simple evaluation of
the evidence presented
to the arbitrator and based on that
evaluation, a determination of the reasonableness of the decision
arrived at by the arbitrator.
The court in Sidumo was at pains to
state that arbitration awards made under the Labour Relations Act
continue to be determined
in terms of Section 1415 of the LRA but
that the constitutional standard of reasonableness is "suffused"
in the application
of Section 145 of the LRA. This implies that an
application for review sought on the grounds of misconduct, gross
irregularity
in the conduct of the arbitration proceedings, and/or
excess of powers will not lead automatically to a setting aside of
the award
if any of the above grounds are found to be present. In
other words, in a case such as the present, where a gross
irregularity
in the proceedings is alleged, the enquiry is not
confined 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 to which a reasonable decision-maker could
come on the available material."
[5]
[11]
In bringing a review application it is
necessary to observe the facts of the matter holistically, having
regard to·the·
grounds as listed in Section 145 of the
Labour Relations Act, the evidence before the relevant Commissioner,
the reasons listed
in the arbitration award1 as well as the result of
the award, against a background of fairness as envisaged in the
Sidumo
test.
[12]
It is therefore trite that a Court must
be convinced that a reasonable decision maker, based on the
evidence and the material
before him or her, would have arrived at a
different decision. In assessing this review question, the Court
should engage in a
holistic analysis of all the evidence.
Analysis
[13]
The Applicant who was both an employee
and a learner owed a duty to act in good faith towards the Third
Respondent, her employer.
She received details of an exam paper and
memo on her cell phone without having solicited the same (her
version). The charge was
dishonesty in that she unlawfully gained
access to and utilized confidential ATS Assessments and memos during
the ATSA Rating Course.
[14]
The
Applicant raised the issue of Nicole Govender who was also found
guilty of dishonesty but was not dismissed. However, no further
information nor evidence on similarities was submitted at the
arbitration to establish a pattern of inconsistency before the Second
Respondent. In
National
Union of Mineworkers on behalf of Butsane v Anglo
Platinum Mine (Rustenburg Section)
[6]
it
was held that "a
generalised
allegation is never good enough. A concrete allegation identifying
who the persons are who were treated differently
and the basis upon
which they ought not to have been treated differently
must be set out
clearly."
[15]
In
Southern
Sun Hotels Interest (Pty) Ltd v CCMA and others
[7]
the
Court held that an inconsistency claim will f9'tl where an
employer is able to differentiate between employees who 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.
[16]
In
NUM
and Another v Amcoal Colliery t/a Arnot Colliery and Another
[8]
it
was held ;that:
'The
parity principle was designed to prevent unjustified selective
punishment or dismissal and to ensure that like cases are treated
alike. It was not intended to force an employer to mete out the same
punishment to employees with different personal circumstances
just
because they are guilty of the same offence".
[17]
In
terms of the judgment by the Labour Appeal Court in
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others
[9]
in
which the Court decided that
a
review based solely on the fact that the Commissioner did not take
certain factors into account or placed undue importance on
certain
factors (process related factors) does not comply with the
Sidumo
test
and will most likely not succeed.
[10]
In essence the Court has to find whether the decision reached was
unreasonable or put in another way whether the decision
that the
arbitrator arrived at is one that falls within a band of decisions to
which a reasonable decision maker could come to
on the available
material.
[18]
One has to look at the entire arbitration award issued by the Second
Respondent and not
employ a
"piece
meaf'
approach for
example how the Second Respondent dealt with the
issue of Nicole Govender who pleaded
guilty but was not dismissed. No
proper evidence of inconsistency was placed before the Second
Respondent.
[19]
In
Frans
Masubelele v PHSDSBC and others
[11]
,
Snyman
AJ dealt with misconduct involving dishonesty where dismissal
was fortified and the principles applicable to inconsistency
reiterated. He found that the employee party has the evidential
burden to show inconsistency and that no inconsistency was shown.
Conclusion
[20]
The Applicant given her level of
seniority and given the nature of her job in the aviation industry
has to know her work to control
air traffic. She cannot simply cheat
in an exam, expect to pass her assessments and not know her job
expectations which she was
being tested on. Her action constituted
dishonest conduct which destroyed the relationship of trust, the very
core of the employment
relationship. It is sad that her career has
been brought to an abrupt end as a result of her irresponsible and
dishonest behaviour.
However, the Third Respondent has to protect its
integrity and reputation as the Air Traffic and Navigation Service
Company in
Southern Africa. Dismissal becomes the only appropriate
sanction and the Second respondent's decision was that of a
reasonable
decision maker. No proper case has been made out by the
Applicant for any of the relief sought and the application must fail.
[21]
Therefore, in conclusion, there is
simply no basis to review and set aside the award of the Second
Respondent.
[22]
In the premises the following order is
made:
Order:
1.
The Applicant's review application is
dismissed
2.
There is no order as to costs.
A.Ramdaw
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Herman
Perry of Solidarity
For
the Third Respondent: Adv. P Muthige
Instructed
by: Thipa Attorneys Incorporated
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC).
[2]
Ibid at para 110.
[3]
Hullett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry
&
others
[2008]
3 BLLR 241
[4]
Id fn 1 at para 254
[5]
Id fn 1 at para 254.
[6]
(2014) 35 ILJ 2406 (LAC) at 2417 para 39.
[7]
[2007] 11 BLLR 1128 (CC).
[8]
[2000] 8 BLLR 869
(LAC) at para 19.
[9]
Goldfields
Mining SA (Ply) Ltd (K/oof Gold Mine) v CCMA and others
2014
(1) BLLR 20 (LAC).
[10]
See:
Goldfields
Mining
(supra)
[11]
Frans
Masubelele v PHSDSBC and others
(Case
No: JR1151/08). Delivered on 17 January 2013.