Association of Mineworkers and Construction Workers Union (AMCU) obo Mafatshe v Commission For Conciliation Mediation and Arbitration and Others (JR1672/21) [2024] ZALCJHB 332 (30 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1672-21

In the matter between:

ASSOCIATION OF MINEWORKERS AND CONSTRUCTION WORKERS UNION (“AMCU”) OBO MAFATSHE, M Applicant and COMMISSIONER FOR CONCILIATION MEDIATION AND ARBITRATION First Respondent KOBUS ERASMUS, N.O. Second Respondent LONMIN PLATINUM Third Respondent

Heard: 20 August 2024

Delivered: 30 August 2024

JUDGMENT

BECKENSTRATER, AJ

Introduction

[1] Acting on behalf of its member (Mafatshe), the Applicant brought an application to review and set aside an award of the Second Respondent (Commissioner) appointed by the First Respondent (CCMA). The underlying dispute related to the alleged unfair dismissal of Mafatshe.

[2] Mafatshe had been dismissed by the Third respondent after being found guilty of the unauthorized possession of company property, in the form of store records pertaining to allegations of serious misconduct against another employee (Pholosi). When this dismissal was challenged at the CCMA, the sole issue in dispute was whether Mafatshe’s dismissal was unfair insofar as the Third Respondent had acted inconsistently in dismissing Mafatshe when compared to its actions relating to Pholosi and another employee, Ncekani.

[3] Given this narrowing of the issues at the CCMA, this judgment only briefly summarizes the background to the matter so that the challenge to inconsistency can be understood.

Background

[4] Mafatshe, Pholosi and Ncekani all worked in the Third Respondent’s stores.

[5] Pholosi had been on suspension for some time as a result of charges of serious misconduct brought against her. According to Mafatshe, he had received a phone call from Pholosi around 2 July 2019, advising that she had been granted access to the store records relating to her alleged misconduct. Because she did not have the required PPE to enter the stores, she asked if he could take the boxes/files to his office. Mafatshe then approached Ncekani as he knew where those files were located and requested him to assist in moving those files to his office, which Ncekani did.

[6] It subsequently transpired Pholosi had been granted access to those files subject to supervision.

[7] The evidence in those boxes was subsequently tampered with and the Third Respondent contends that it was a result of this tampering that at the disciplinary enquiry, it could not prove the primary allegation of dishonesty against Pholosi. She was eventually found guilty of gross negligence and issued with a final written warning.

[8] Mafatshe acknowledged that he did not have authorization to remove those boxes to his office.

[9] Pursuant to the above, Mafatshe was charged with “unauthorized possession of company property, tampering and/or enabling the tampering of evidence and/or potential evidence and misuse or abuse of position of authority”. Mafatshe was found guilty of these charges and dismissed.

[10] As mentioned above, at the CCMA the sole issue the Commissioner was called upon to determine was whether Mafatshe’s dismissal was unfair because of the inconsistency of treatment in comparison to Pholosi and Ncekani.

[11] The parties entered into a pre-arbitration minute which, amongst other things, recorded as common cause that:

‘● Rule exist – valid and reasonable.

· The Applicant was aware of the rule.

· Dismissal is the appropriate sanction for contraventions of the rule.

· Incident took place on 2/07/2019- Applicant went to Ncekani where he got the files and the 2 of them then carried the boxes to the Applicant’s office – where they left the files/boxes.

· The time they removed the files/boxes there was a pending misconduct case against the said Ms. Pholosi.

· The Applicant did not have any authorization to remove the said files/boxes to the office.

· Applicant knew there was a pending case against Ms. Pholosi and that at the time she was on suspension.’

[12] The only issue the Commissioner was required to determine was “whether rule consistently applied with respect to Ncekani and Pholosi”.

[13] At the commencement of the arbitration, the Applicant’s representative outlined the complaint of inconsistency as follows:

‘Mafatshe was charged for unauthorized possession of company property, and if you check the interpretation (inaudible) in that charge, is the same because he was in the possession, according to the charges and he was given (inaudible) [dismissal] and [Pholosi] charged for theft but she was given a final warning. So, [Pholosi] who was charged also with theft, he was given final warning and is still working there and Ncekani, he was never charged, and he is still as we speak this morning, he is still working there.’

[14] It was pursuant to this opening statement and a further discussion narrowing issues led by the Commissioner that the pre-arbitration minute referred to above was then signed.

[15] At the outset of the arbitration, the Applicant’s challenge to fairness thus centered around the contentions that:

1. Pholosi had been charged with theft, an offence the employer categorized similarly to the unauthorized possession of goods, but had not been dismissed.

2. Ncekani had been involved in the same incident but had not been charged.

[16] The various witnesses then gave evidence, and each was examined and cross-examined on these contentions.

[17] In relation to the inconsistency challenge relating to Ncekani, the Third Respondent led evidence that he was a general worker whose position was subordinate to that of Mafatshe. At the time he had been fulfilling the position of a store clerk, but the Third Respondent’s witnesses denied that he was officially appointed to act as a store clerk. Emphasis was laid on his lack of education.

[18] The Third Respondent’s first witness (Masinga) was cross-examined on his own investigation statement where he had recorded: “it was clear that Ncekani knew what he was doing and the purpose of tampering with the evidence”. He confirmed that it had been his statement but he had re-considered it after he had received Ncekani’s explanation. He no longer held the view that Ncekani had been aware that the files were being removed improperly. Similarly, he was cross-examined on the recommendation of the chairperson of Mafatshe’s disciplinary hearing that disciplinary action be taken against Ncekani. Masinga contented that the chairperson had also not heard Ncekani’s explanation and that the Third Respondent had considered Ncekani’s explanation before deciding not to charge him. Ncekani himself testified that he considered himself subordinate to Mafatshe and that he did not know what the files were about. His words in cross-examination (through an interpreter) were: “the only thing that I did that day, is to assist him [Mafatshe] to carry those boxes or those file”.

[19] During the arbitration questioning of all of the witnesses in relation to the comparison to Pholosi related to the contention that she had been charged with theft but not dismissed whereas Mafatshe had been dismissed. To deal with this contention, the employer eventually sought a postponement and introduced the disciplinary record relating to Pholosi to demonstrate that she had been charged with dishonesty relating to the stores but had only been found guilty of gross negligence. For that reason, as well as what was argued to be significant mitigating factors, she was only given a final written warning. In both party’s closing arguments, the inconsistency issue relating to Pholosi dealt solely with this contention. The Third Respondent’s argument was that it was clear different charges had been brought against Pholosi as opposed to Mafatshe. The Applicant still argued that: “on the case of Violet (Pholosi), we talk of similarities here because Violet was suspended for theft and then on the go, the company

somersaulted to somewhere”.

[20] After summarizing the evidence and the legal principles applicable to challenges of inconsistency, the Commissioner reasoned as follows in the award:

‘[21.10] The main charge was that of unauthorized possession of company property (to whit the documentary evidence to be used in the disciplinary hearing against Mrs. Pholosi).

[21.11] At the time of the removal of the files to the Applicant’s office, Mrs Pholosi (who was also a clerk) was already on suspension for other more serious misconduct (including dishonesty, insubordination, gross negligence and breaching the Lonmin Code of Business Ethics) and could therefore except for making the request not have played any active part in such unauthorized removal or possession of these files or documents.

[21.12] Due to the fact that she was not part of the unauthorized removal and possession of confidential and crucial property, I am of the view that it was not inconsistent for the Respondent not to also charge and dismiss her for this incident. Even if she had some involvement in this incident, the Respondent decided to rather continue with the said serious charges against Mrs. Pholosi. She was ultimately found guilty of gross negligence and given a final written warning for this particular misconduct. Being a different charge, it clearly warrants a different sanction.

[21.13] Inconsistency was also challenged with reference to Mr. Ncekani. It was common cause that he was appointed on a lower level than the Applicant (namely as a general worker) although he was at the time of the incident assisting with the functions of a higher position. It was also not disputed that he merely on request of the Applicant assisted to carry the files/boxes to the Applicant’s office, where he left the files/boxes. It was common cause that he did not know that removing the files/boxes were in fact wrong (in that Pholosi was charged and suspended and that the documents pertained to her case).

[21.14] Again the circumstances and conduct of Ncekani is completely different to that of the Applicant. He was on a lower level than the Applicant and on request or instruction of the Applicant merely assisted to carry the files/boxes to the Applicant’s office. I honestly fail to understand what Ncekani did wrong and with what misconduct he should have been charged. He did not have any company property in his possession without permission /authorization (except maybe for the brief period that he helped carry the files) and it would have been an exercise in futility to simply charge him for the same misconduct just to be consistent or because the Chairperson (in another hearing) made such a recommendation.

[21.15] The Applicant’s representative hinted on the fact that the Respondent might have also been historically inconsistent as Pholosi was charged with theft (which was almost similar to unauthorized possession) but only got a final written warning. I noted that Pholosi was only suspended on allegations of theft but was later charged with dishonesty, gross negligence, insubordination and breaching the company policies and procedures. She was however ultimately found guilty of gross negligence. The circumstances and charges are therefore clearly different and warrants a different sanction. As such I also find that there are no grounds for a claim of historical inconsistency.’

Review application

[21] The Applicant’s review application initially raised numerous grounds of review many of which were totally disconnected from the arbitration where the dispute had been limited to the dispute of inconsistency. Quite rightly at the hearing of the matter, the Applicant only persisted with its arguments relating to a challenge that the Commissioner’s findings in relation to inconsistency were unreasonable. In summary, the Applicant argued that:

1. Ncekani should at least have been charged with misconduct given the statement of the investigator and recommendation of the Chairperson of Mafatshe’s hearing set out above. The Applicant contended that Ncekani must have known Pholosi was on suspension, the documents were required for her disciplinary enquiry and their removal was unauthorized.

2. Pholosi should have been charged for the same misconduct as Mafatshe as she had been the one, through her request, to initiate the removal of the evidence. She did not have to physically remove the files to be guilty of similar misconduct.

[22] At the hearing of the matter, Advocate Ngwenya argued on behalf of the Third Respondent that the misconduct of which Mafatshe had been found guilty was materially different because he had been the person responsible for tampering with the evidence. The high-water mark of this contention was the evidence of Masinga who when asked “who do you believe was in a position to remove this document or take it to be altered”, identified Mafatshe. This question itself did not however identify Mafatshe as the person who had tampered with the evidence. The Third Respondent’s representative had pertinently at the outset of the matter recorded that evidence had been tampered with, but this was not necessarily by Mafatshe. As Advocate Cook, who represented the Applicant, further pointed out that the finding relating to Mafatshe’s disciplinary enquiry identified that he was found guilty of unauthorized possession but made no express findings relating to the tampering of evidence. I accordingly cannot accept that Mafatshe was shown to have tampered with the evidence and that this was any basis to differentiate between the three employees.

[23] I, however, like the Commissioner, have difficulty understanding, in light of the evidence led before the CCMA, why Ncekani should have been charged. The overwhelming evidence, including that from Ncekani himself, was that he was at a lower level than Mafatshe and had simply acceded to a request/instruction to assist in locating and moving the files/boxes on the day. Mafatshe did not testify that Ncekani knew that the files were being moved so that they could be made available to Pholosi.

[24] As set out above, the Applicant’s case as presented to the CCMA was that Pholosi had been charged with theft but not dismissed while Mafatshe had been dismissed for unauthorized possession of company property. There was no merit in this challenge as the charges for which those two people had been found guilty were substantially different.

[25] On review, the Applicant attempted to argue a variation to this contention as set out above. While the Commissioner briefly dealt with inconsistency pertaining to Pholosi not having been charged for the removal of company property in the award, I don’t believe the Commissioner can be criticized for not having dealt with that aspect in detail – because it was not the challenge presented at the CCMA. I have set out above how the issue of inconsistency relating to Pholosi at the CCMA was narrowed to a specific contention. It was not open to the Applicant in those circumstances on review to argue that all aspects of inconsistency had to be considered by the Commissioner.

[26] In any event, I do not think the Commissioner was unreasonable in finding that it was not unfair for the Third Respondent not to charge Pholosi. She was not part of the physical unauthorized removal. Furthermore, the only evidence the Third Respondent had of what Pholosi had requested from Mafatshe was Mafatshe’s say-so. His say-so was that Pholosi advised having been granted access to the documentation and requested that it be moved to his office. There was no evidence that Pholosi’s request required the files to be removed without authorization. Mafatshe had admitted he was supposed to obtain authorization. Had he done this, in all probability the illegitimate removal would have been prevented or Pholosi’s supervised access would have been accommodated. Pholosi could not be said to be responsible for that without more evidence. A suspicion that Pholosi and Mafatshe may have been complicit in removing the files so that the evidence could be tampered with could not form the basis to charge her, particularly as that was not Mafatshe’s version. The Third Respondent could not have charged Pholosi simply on such suspicion. The Labour Appeal Court has held that: “An employer is also not obliged to investigate the identity of each and every employee who may have participated in a wrongful activity and then proceed to take disciplinary measures against all the wrongdoers. An employer need only proceed against those it has evidence against”.[1]

[27] The Applicant’s challenge based on inconsistency should also be measured against the appropriate test of when inconsistency is considered to be unfair as set out by the Labour Appeal Court in SA Commercial Catering & Allied Workers Union and others v Irvin & Johnson Ltd[2]:

‘In my view too great an emphasis is quite frequently sought to be placed on the ‘principle’ of disciplinary consistency, also called ‘parity principle’… There is really no separate ‘principle’ involved. Consistency is simply an element of disciplinary fairness… Every employee must be measured by the same standards…. 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 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. … 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 … necessarily mean that the other miscreants should escape. Fairness is a value judgment.’[3]

[28] Having regard to the flexibility attached to considerations of inconsistency, and those factors that do differentiate the circumstances of Ncekani and Pholosi from Mafatshe, I cannot find that the award is unreasonable. To the contrary, I am inclined to agree with the Commissioner’s conclusion that there was no unfairness in the Third Respondent not having charged Ncekani or dismissed Pholosi. Consequently, the review application cannot succeed.

Conclusion

[29] At the hearing of the matter, neither party sought costs and given the ongoing relationship between the parties, an order of cost would not be appropriate.

[30] In the premises, I make the following order:

Order

1. The application is dismissed.

2. There is no order as to costs.

C Beckenstrater

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate Cook Instructed by: LDA Attorneys For the Third Respondent: Advocate Ngwenya Instructed by: Solomon Holmes Attorneys

[1] Chemical Energy Paper Printing Wood & Allied Workers Union v National Bargaining Council for the Chemical Industry and Others [2010] ZALAC 18; (2010) 31 ILJ 2836 (LAC) at para 21.

[2] (1999) 20 ILJ 2302 (LAC) at para 29.

[3] It is recognized that this quotation related to the specific facts before the court in that matter and has to be read in that context but it emphasizes that not all difference in treatment can be said to be unfair, see: Grogan; Dismissal; Juta Third Edition; P224.