THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no : JR74/24
In the matter between:
BIDVEST PROTEA COIN (PTY ) LTD Applicant
and
SOUTH AFRICAN TRANSPORT AND ALLIED First Responde nt
WORKERS UNION
SPHAMA NDLA MLUNGWANA & ANOTHER Second Respondent
THANDIWE TSHAYANA N.O. Third Respondent
COMMISSION FOR CONCILIATION Fourth Respondent
MEDIATION & ARBITRATION
Heard : 6 November 2024
Delivered : 16 January 2025 (This judgment was handed down electronically
by emailing a copy to the parties. The 16 January 2025 is deemed to be the
date of delivery of this judgment).
JUDGMENT
RAMJI, AJ
Introduction
[1] This is an application to review and set aside an arbitration award made by
the third respondent (the Comm issioner) in a dispute before the fourth
respondent , the Commission for Conciliation, Mediation and Arbitration (the
CCMA).
[2] The applicant is Bi dvest Protea Coin, a subsidiary of the Bidvest group of
companies . The applican t employed the second respondent s, Mr Sphamandla
Mlungwana and Mr Hans Moetlo , as “Tactical Officers”. Mr Mlungwana was a
grade C security officer employed in December 2014. Mr Moetlo was a
grade D security officer employed in January 2014. They are referred by their
names .
[3] On 22 March 2023 , the applicant dismissed Mr Mlungwana and Mr Moetlo for
misconduct (going to sleep while on duty). Mr Mlungwana and Mr Moetlo,
assisted by their trade union, the first respondent , the South African Transport
and Allied Workers’ Union (SATAWU), referre d an unfair dismissal dispute to
the CCMA. Mr Mlungwana and Mr Moetlo’s case related to substantive
unfairness. The allegation of substantive unfairness was narrow : SATAWU
argued that (a) the applicant acted inconsistently in dismissing them whereas
severa l other employees in previous incidents of sleeping on duty received
lesser or no sanctions , and related to this , (b) the sanction of dismissal was
inappropriate.
[4] Mr Mlungwana and Mr Moetlo do not deny that they slept while on duty in the
day in question. Their case is that , in being dismissed on a first offence, they
were treated differently from other employees who slept on duty for the first
time.
[5] The Labour Appeal Court ( LAC) has consistently held that employees alleging
inconsistency must make a con crete allegation, which includes identifying the
comparator employees and clearly setting out why they should not have been
treated differently to these employees.1 SATAWU provided eight alleged
comparators. The applicant knew of each case . The applicant c ontends that
there was no inconsistency between its approach to the previous employees
and to Mr Mlungwana and Mr Moetlo, and that dismissal was an appropriate
sanction in their circumstances. Its case is that Mr Mlungwana and Mr Moetlo
did not merely fall asleep accidentally as previous employees had done, but
that they had both taken a decision to leave their posts to go to sleep, thus
intending to deceive their employer.
[6] A challenge to an employer’s consistency in the application of discipline is not
without difficulty for employees seeking to rely solely on this. The LAC in
ABSA Bank Ltd v Naidu and others ( ABSA )2 made it clear that inconsistency
is one factor to be considered in the fairness inquiry:
“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 tha t 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 would not be dismissed. It
1 National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mi ne (Rustenburg Section)
(2014) 35 ILJ 2406 (LAC) at para 39 ; Bidserv Industrial Products (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and others (2017) 38 ILJ 860 (LAC) at para 31 .
2 (2015) 36 ILJ 602 (LAC) at para 42.
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. ”
[7] The first question is whether the Commissioner’s decision that the applicant
acted inconsisten ly was so unreasonable that n o reasonable decision -maker
could reach the same decision. A second question only arises if it is found
that the Commissioner’s decision was so unreasonable: Besides setting the
decision aside, what is the appropriate relief? Before dealing with these
subs tantive issues, I explain hearing this application on an unopposed basis.
Unopposed roll
[8] There is a notice of appointment of attorneys in the applicant’s bundle
prepared for the Court. Although this notice is unstamped and therefore was
not filed, it sug gests that at some point (the notice of appointment is also
undated), SATAWU appointed Siphiwe Matenzhe Attorneys to represent it
and/or Mr Mlungwana and Mr Moetlo in these proceedings (the notice does
not specify) . The notice of appointment specifically r equired that the applicant
continue to copy the relevant SATAWU legal officer on all correspondence.
[9] Instead of thereafter serving all further pleadings (including the transcript) on
SATAWU’s attorneys and copying the SATAWU legal officers, the applicant ’s
attorneys continued to serve only on SATAWU.
[10] I would ordinarily have taken issue with this, but given the following factors,
considered it appropriate that the matter proceeded on an unopposed basis:
(a) the notice of appointment was never filed; (b) the notice envisioned
SATAWU officials continuing to receive further pleadings and they did; (c)
directives and the notice of the first hearing date was sent to SATAWU
officials and their attorney on 8 July 2024; and (d) when the matter was re -
enrolled, th e set down notice was again sent to SATAWU officials and to their
attorney – this was notification on 31 July 2024 of the hearing on 6 November
2024. Neither SATAWU nor its attorneys filed a notice of opposition or
answering affidavit prior to 8 July 2024, or in the period between 8 July 2024
and the hearing in this Court on 6 November 2024.
[11] The applicant alleges several gross irregularities committed by the
Commissioner .
First ground of review: Mis conceived the nature of the inquiry into inconsistency
[12] The applicant ’s first complaint was that the Commissioner “ placed a heavier
burden of proof” on it. I understand this to relate to a complaint that the
Commissioner misunderstood the nature of an inconsistency challenge. The
applicant expanded on this irre gularity in its founding affidavit, pointing out
that the Commissioner failed to correctly apply the principles of consistency.
[13] The award states :
“I believe that [the applicant] is taking the concept of ‘every case is
dealt with on its own merits’ too fa r, because sleeping on duty is just
sleeping on duty, unless there is prior notification to the employer that
the employee might sleep because of certain medication he is taking. If
the respondent takes the circumstances under which other employees
slept o n duty as mitigation, there is no justifiable reason why in the
case of [the security guards ], the circumstances were not taken into
consideration.”
[14] This part of the award does suggest that the Commissioner failed to
understand the nature of the inquiry t hat she was required to undertake . This
paragraph means that if an affected employee advances mitigating factors to
reduce their sanction, and the employer was persuaded by mitigating factors
in previous cases, then the employer must be persuaded in all fu ture cases by
the mere existence of mitigating factors , and not by the content of those
mitigating factors .
[15] Such an approach in cases where employees allege inconsistency would lead
to absurd outcomes and the content of mitigating factors would cease to hold
any value. The approach might also lead to employers consistently applying
the maximum sanction and not having regard to mitigating factors (as they
should), because if an employer shows any one employee leniency based on
mitigating factors , it runs a serious risk of justifiable dismissals being set aside
based on inconsistency. It is therefore the Commissioner who has taken the
parity principle too far , taking the very position that the LAC in ABSA sought to
guard against. It is also at odds with appr oach required of employers in the
Code of Good Practice on Dismissals, which requires that each case of
misconduct be dealt with on its own merits.
[16] Even though there is merit in the first ground of review , the Commissioner did
appear to engage with the ca ses of alleged inconsistency that were presented
during the arbitration in her award. Therefore, t his misconceived approach to
inconsistency alone is insufficient to conclude that the Commissioner’s
decision is so unreasonable that no reasonable decision -maker could reach
it.3 It may be that the facts do not bear out in favour of the applicant and that it
was not unreasonable for the Commissioner to find that the company applied
discipline in an inconsistent manner, and to such an extent that the dismissal
of Mr Mlungwana and Mr Moetlo was substantively unfair . I turn now to
consider the reasonableness of the Commissioner’s approach to the evidence
before her.
Remaining grounds of review: Failure to apply the mind and to consider relevant
facts
[17] The inquir y related only to the objective elements of an inconsistency
challenge, which van Niekerk J (as he then was) explained as follows with
reference to LAC decisions:
3 Head of Depar tment of Education v Mofokeng and others (2015) 36 ILJ 2802 (LAC) at para 30.
17.1 Was another employee treated differently in the application of discipline
for the same offence?
17.2 Did the employee commit the misconduct in similar circumstances?
17.3 Circumstances include “ personal circumstances , the severity of the
misconduct or on the basis of other material factors .” 4
[18] The law requires that employees claiming inconsisten cy begin by providing
the employer with 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 .”5 SATAWU presented documentary
evidence of the following employees who were charged with sleeping on duty
and either not sanctioned or issued a sanction lesser than dismissal:
18.1 Mr Simphiwe Nkosi, who was charged with sleeping on duty at his post
(a bank branch), was given a final written w arning for sleeping on duty
with the requirement that he not sleep on duty again.
18.2 Ms Joyce Mabusa, who similarly charged and sanctioned .
18.3 Ms Nokuthula Mhlungu who was charged with “unintentional sleeping
on duty and general poor performance” and was given a final written
warning.”
18.4 Mr Makwetla who, allegedly found sleeping on duty, was also given a
final written warning and told, “ Medication or not, in future zero
tolerance for sleeping on duty… at the site of Bidvest Protea Coin. ”
18.5 Mr Lefuna Tshimenze, who allegedly found sleeping on duty by the
applicant ’s client, and was charged with bringing the company into
disrepute and given a final written warning.
4 Southern Sun Hotel Interests (Pty) Ltd v CCMA and others (2010) 31 ILJ 452 (LC) para 10.
5 See: NUM obo Botsane (Id fn 1) at para 39.
18.6 An S Lira, who was dismissed for sleeping on duty, challenged the
dismissal in the CCMA and whose matter was settled in S Lira’s favour
at the CCMA during conciliation, and without the matter ever
proceeding to arbitration.
18.7 Mr Mzwakhe Mafilika who was found sleeping on duty on several
occasions during his shifts over a five -day period, was dismissed,
challeng ed the substantive fairness of his dismissal in the CCMA
based on inconsistency and won. was dismissed, challenged it in the
CCMA on inconsistency and wo n.
18.8 Mr Mbhele , who was “ found sleeping on duty… and is still working. ”
[19] The applicant ’s case was based on different circumstances and not a change
it its approach to discipline for sleeping on duty, i.e. it does not claim that it
has approached misconduct of sleeping of duty wrongly in the past.6 The sole
question is therefore whether the Commissioner was s o unreasonable in
finding that the applicant acted inconsistently in respect of Mr Mlungwana and
Mr Moetlo , compared to the employees listed above .
[20] For whatever reason, the applicant did not aver any irregularities concerning
the Commissioner’s analysis (or sometimes absence of analysis) of the cases
of Mr Nkosi, Ms Mhlungu , S Lira and Mr Mafilika. I shall consider only the
applicant ’s allegations of irregularities set out in its papers. These relate to: (a)
Ms Mabusa; (b) Mr Tshimenze; (c) Mr Makwetja; a nd (d) Mr Mbhele.
Ms Mabusa7
6 See: Cape Town City Council v Masitho and others (2000) 21 ILJ 1957 (LAC) at para 14: “While it is
true that an employer cannot be expected to continue repeating a wrong decision in obeisance to a
principle of consistency…, in my view the proper course in such cases is to let it be known to
empl oyees clearly and in advance that the earlier application of disciplinary measures cannot be
expected to be adhered to in the future .” This is not applicable to the employer in this case.
7 The C omm issioner calls Ms Mabusa , “Ms Mabunda” in the analysis of evidence.
[21] The Commissioner rejected the applicant ’s evidence that Ms Mabusa’s
misconduct of sleeping on duty was mitigated by submissions that she had
worked a double shift and that she was fatigued when she fell asleep on duty.
[22] When the applicant presented its case, the Commissioner writes that its
witness conceded that Ms Mabusa had not just completed a double shift (24
hours) when she fell asleep , but rather that she had worked a double shift
earlier in the week. This suggests tha t the applicant had misled the
Commission, or made an error in determining Ms Mabusa’s sanction. Both the
inference and the approach are incorrect. First, the chairperson of Ms
Mabusa’s disciplinary inquiry correctly noted that Ms Mabusa had worked a
doubl e shift two days prior to falling asleep, but still considered this a
mitigating factor, which it is. Second, more importantly, t he Commissioner’s
reasoning that Ms Mabusa therefore had enough time to recover from her
double shift before falling asleep on duty a few days later is not only
irrelevant, but also speculative.
[23] The applicant , as with the other cases, argued that its approach was to give
Ms Mabusa a second chance because of the physical circumstances under
which she was found sleeping: In her ch air, in her full uniform, implying that
she had accidentally dozed off while being on duty. This was uncontested.
The Commissioner did not consider this , not even commenting on the
probabilities. I can only conclude that this relevant factor was ignored in
favour of the irrelevant material set out above.
Mr Tshimenze
[24] SATAWU testified that another employee, Mr Tshimenze was reported to the
applicant by its own client to whom it was providing security services. The
client took photos of Mr Tshimenze apparen tly sleeping under a tree , and the
client described him as being asleep. The applicant’s witness explained that
the photographs did not clearly prove that Mr Tshimenze was sleeping – they
showed he was reclined under a tree, and one could not see whether h is eyes
were closed. The client (that is, the person who photographed Mr Tshimenze )
refused to testify. As a result, the applicant g ave Mr Tshimenze the benefit of
the doubt. It did, however, issue him with a final written warning for bringing
the company into disrepute, as a case of sleeping on duty could not be shown
on a balance of probabilities .
[25] The Commissioner, unimpressed with the applicant ’s approach , stated the
following:
“If the [the applicant] wanted to dismiss Tshimenze it would have
properly investigated the matter and asked clear photographs from the
client but failed to do that. Furthermore, for [ the applicant ] to say that
they do not believe their own client leaves much to be desired. There is
no plausible reason why [ the applicant ] could not believe th e [Mr
Mlungwana and Mr Moetlo ’s] explanation for their sleeping on duty if it
believed the other employees” (sic).
[26] The Commissioner’s findings relating to Mr Tshimenze are difficult to
understand in relation to the inconsistency test. The Commissioner did not
ask whether Mr Tshimenze’s conduct was like the conduct in this case . The
Commissioner instead reprimanded the applicant for: (a) not seeking out
better evidence against Mr Tshimenze so that it could di smiss him if it “ wanted
to”, even though there was no evidence that better evidence was availabl e;
and (b) not believing its own client. These findings suggest that to find in
favour of Mr Mlungwana and Mr Moetlo , the Commissioner advocates
dismissing all employees against whom there is prima facie evidence of
sleeping on duty, without giving employees an opportunity to rebut that
evidence.
[27] The Commissioner’s conclusions relating to Mr Tshimenze are irrelevant to
the question of inconsistency, as she failed to consider the similarities an d
differences between the two situations. This too is irregular.
Mr Makwetja
[28] SATAWU testified that another employee, Mr Makwetja, was issued a
sanction of final written warning for sleeping on duty at the reception area.
The applicant testified that he was issued a final written warning for sleeping
on duty by a different legal entity and not the applicant , and that the lesser
sanction was because there was no evidence to confirm or suggest that Mr
Makwetja premeditated sleeping on duty.
[29] The Commission er did not pronounce on whether discipline was applied
inconsistently between Mr Mlungwana and Mr Moetlo, and Mr Makwetla. The
apparent failure to apply her mind to the evidence of Mr Makwetja is grossly
irregular given the centrality of comparators in the inconsistency inquiry –
particularly those put forward by the employees who are alleging unfairness.
[30] A key consideration in this case is the common cause fact that Mr Makwetla
was disciplined by Bidvest Magnum (Pty) Ltd, and not the applicant in this
case. Bidvest Magnum and the applicant subsequently merged. It is therefore
a fact that Bidvest Magnum, a different company, employed and disciplined
Mr Makwetja in the case in question. It may be that the applicant is hiding
behind the distinct registered id entities at the time or “technicalities” as was
suggested during Mr Mlungwana and Mr Moetlo ’s case , and that Mr Makwetla
was indeed a suitable comparator . This was something that the
Commissioner was required to weigh up and pronounce on. Instead, the
Comm issioner limited evidence and submissions on the corporate structure at
the time that Mr Makwetla was disciplined.
[31] The result of the Commissioner ’s lack of interest in this relevant consideration
is that there was no decision taken on whether Mr Mlungwan a and Mr Moetlo
were treated inconsistently compared to Mr Makwetla in law. This is irregular.
If the Commissioner did not regard Mr Makwetla as a comparator because he
was employed by Bidvest Magnum at the time of b eing disciplined, then that
point shoul d have been made – especially in the context of an award
upholding an inconsistency challenge.
Mr Mbhele
[32] SATAWU testified that a shop steward, Mr Mbhele, was not charged after
being found sleeping on duty . The applicant testified t hat on the evidence
available (a screenshot from inside the company vehicle) , it accepted
Mr Mbhele ’s submissions that he was not sleeping . It had nothing further – no
video footage, no witnesses and therefore decided that it would not be able to
make out a case on a balance of probabilities for sleeping on duty, and that it
was a probability he was not sleeping or that he was yawning. The
Commissioner found that “ it is clear from the photograph of Mr Mbhele which
is presented in the arbitration hearing that he was sleeping and n ot yawning. ”
The Commissioner continued somewhat gratuitously, “ It is not clear what is
the purpose of the Respondent’s dash cam if they cannot rely on it.”
[33] As was the case with the Commissioner’s approach to Mr Tshimenze , the
Commissioner has failed to consider the relevant factors: These are the
similarities and differences in the respective cases, and not her view on what
the evidence showed in the comparator’s case. It is not for the Commissioner
to determine the fairness o f disciplinary action in a c ase that has not been
referred to the CCMA. This is not simply irrelevant . It is beyond the CCMA’s
jurisdiction to revisit a prior disciplinary process against a different employee
in a different matter.
Mr Mlungwana and Mr Moetlo
[34] It was common cause th at:
34.1 The applicant’s disciplinary code states that for the offence of sleeping
on duty, the sanction may be dismissal even for a first offence.
34.2 Mr Mlungwana and Mr Moetlo had no active final warnings issued to
them prior to their dismissal.
34.3 Mr Mlungwana had taken medication. Mr Moetlo had not and he “ felt
fine”.
34.4 At Eastgate, Mr Mlungwana told Mr Moetlo that he was not feeling well
and Mr Moetlo “figured” that they should leave their post and go to the
applicant’s premises “ because that would be a safer pla ce” for them.
34.5 They then left their posts at Eastgate Mall and both drove to the
applicant’s Kelvin office.
34.6 They arrived at the premises at approximately 01h00. T hey parked in a
“dark secluded spot ” where they were both found sleeping.
34.7 They were found sleep ing after 02h00, close to 03h00.
34.8 They did not report leaving their posts to the Kelvin branch control
room.
[35] The following facts are in dispute:
35.1 Whether Mr Mlungwan a and Mr Moetlo at least reported their actions to
their team leader or anyone else.
35.2 Whethe r it was their intention to sleep.
35.3 Whether the medication that Mr Mlungwana took made him sleepy.
Conclusion
[36] Prinsloo J in Masstores (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration and Others8 in explained the limited bases on which an arbitration
award can be set aside for unreasonableness on review:
8 (JR 2007/2020) [2023] ZALCJHB 254 (18 September 2023) unreported, para 97.
“[A]n arbitrator’s finding will be unreasonable if the finding is
unsupported by any evidence, if it is based on speculation by the
arbitrator, if it is disconnected from the evidence, if it is supported by
evidence that is insufficiently reasonable to justify the decision or if it
was made in ignorance of evidence that was not contradicted.”
[37] In this case, there is a disjuncture between the evidence on record and the
Commissioner’s accou nt of it, and in some cases, her interpretation of the
evidence. The Commissioner effectively ignored relevant factors to such an
extent that the award is supported by evidence that is “ insufficiently
reasonable to justify the decision ”.9 I therefore find that the Commissioner was
unreasonable in concluding that the mitigating factors advanced by SATAWU
and Mr Mlungwana and Mr Moetlo were “ not different to any excuses that
were provided by other employees who received final written warnings. ”
[38] The Commissio ner conducted only a perfunctory inquiry into the comparators
presented to her, ignored relevant evidence, and based her decision on
questionable and irrelevant evidence because she misconceived the legal
inquiry required in inconsistency challenges . Inste ad of testing each
comparator for similarity with Mr Mlungwana and Mr Moetlo , the
Commissioner ignored one comparator and contested the outcomes of the
disciplinary processes in respect of the other three comparators – even
without a record of those proces ses before her. As a result, the Commissioner
made a decision that no reasonable decision -maker could have reached on
the evidence.
Appropriate remedy
[39] I have a large portion of the record before me. However, I do not believe it is
appropriate to substitu te the Commissioner’s finding with a finding of my own
based on the record.
9 Masstores Ibid.
[40] First, there are facts in dispute (listed above), and these remain in dispute
because of the approach that the Commissioner took to this matter. A finding
on the disputed facts depends on the credibility of the two dismissed
employees – Mr Mlungwana and Mr Moetlo must be seen and heard , and it is
difficult to determine their credibility from the record.
[41] Second, the applicant states in its founding affidavit that video footage was
shown of Mr Mlungwana and Mr Moetlo illustrating the circumstances under
which they slept and why these were different from those of the other
employees who slept on duty but who were not dismissed . I have not been
provided with the video footage.
[42] I hav e also considered th e age of this dispute – it is approximately one year
old, which is relatively young in labour law today . Balancing the limitations
discuss ed above with the fact that this matter has not been dragged out over
an extended period, I find t hat the interests of justice are best served if the
dispute is heard afresh .
[43] The purpose of the hearing would be for SATAWU to advance their
comparators and for Mr Mlungwana and Mr Moetlo to explain their sleeping .
An arbitrator may then determine : (a) whether there are factual similarities
between the circumstances under which Mr Mlungwana and Mr Moetlo slept
and the circumstances of the alleged comparators ; (b) whether the similarities
have resulted in the inconsistent application of discipline by the a pplicant ; and
(c) whether the inconsistency or inconsistencies, if any, is a factor that
renders the dismissal of the Mr Mlungwana and Mr Moetlo substantively unfair
bearing in mind the ABSA principles.
[44] In the result the following order is made :
Order
1. The application is granted.
2. The arbitration award dated 11 December 2023 issued under case
number GAJB11245 -23 is reviewed and set aside.
3. The matter is remitted to the CCMA for arbitration afresh before a differ
ent commissioner.
_____________________ __
B. Ramji
Acting Judge of the Labour Court of South Africa
Appearances :
For the Applicant: Sonette Lancaster, Lancaster Kungoane Attorneys
For the Respondent: No appearance