Bidvest Magnum (Pty) Ltd v Mbona and Others (D 1152/11) [2014] ZALCJHB 472 (1 December 2014)

REPUBLIC OF SOUTH AFRICA

The Labour Court of South Africa,

in JOHHANESBURG

Case no: D 1152/11

DATE: 01 DECEMBER 2014

Not reportable

In the matter between:

Bidvest Magnum (Pty) Ltd...................................................................................................First Applicant

And

Sbelo Mbona..................................................................................................................First Respondent

South African Transport And Allied Workers Union (‘satawu’)...................................Second Respondent

commission for conciliation, mediation and arbitration.................................................Third Respondent

Phumla Nondal (N.o.)...................................................................................................Fourth Respondent

Date of Judgment:01 December 2014

Summary: (Review – parties agreeing only issue in dispute is consistency – power of commissioner to make a finding of substantively unfair dismissal – reasonableness of finding on consistency).

Judgment

LAGRANGE, J

Introduction

[1] This is an application to review and set aside an arbitration award in which the arbitrator found that the dismissal of the first respondent by the applicant was substantively unfair and awarded consequential relief.

[2] A preliminary point was raised by the first and second respondents concerning the delay in finalising the review application, in particular, the filing of a record and the applicant’s supplementary affidavit. I have considered the delays in question which are considerable. I have also considered that the delay in filing the record and in filing the supplementary affidavit was at least to a significant extent attributable to delays caused by the third respondent in producing the record of the proceedings. The supplementary affidavit was only filed 20 days after the record was served and filed. However, in view of the merits of this matter as set out below, I believe it is appropriate to condone these delays in this instance.

Background

[3] The first respondent in this matter, Mr S Mabona (‘Mabona’), was dismissed for substandard performance in the course of his duties as a security guard for failing to make an hourly report in terms of the applicable site procedures where he was working. He was dismissed because the company was satisfied that it had attempted on numerous occasions to discipline him, but the disciplinary action had no effect on his substandard performance.

[4] He challenged the fairness of his dismissal and before evidence was led at the arbitration hearing, the parties agreed to investigate whether the rule which Mabona allegedly breached had been inconsistently applied in his case. When the arbitration reconvened, the parties by agreement submitted a table summarising the disciplinary records of seven security officers, including Mabona. The arbitrator then stated:

“COMMISSIONER … I just want to place on record,..., That the parties asked yesterday the matter be stood down until this morning because they wanted to some kind of investigation to establish whether the rule that the applicant is alleged to have breach has been inconsistently applied in relation to him. And just before we started with the process today and before we went on record, Mister Egan handed me a copy of the outcome of that investigation, which a copy was also given to-copy of which investigation was also given to Ms Makhanya.

I just want to know that this copy that was given to me marked Annexure B, and is it common cause document, Mister Egan?

MISTER EGAN Yes, as far as I am concerned it is common cause document.

COMMISSIONER Do you confirm that, Ms Makhanya?

MS Makhanya Yes, I do.”

[5] Both parties’ representatives at the arbitration agreed that the only issue in dispute was whether or not the company was inconsistent in the application of discipline to Mabona. In his opening address, the employer representative characterised the issue thus:

“The applicant, Mr Mbona, was given warnings, a first written warning for substandard performance and during the same period of that being a valid warning, he was then counselled and given a final written warning for substandard performance, which is consistent with the disciplinary code of the company. During the time of that final written warning he was further counselled on his substandard

performance and then some eight days later he was dismissed for substandard performance, following a disciplinary hearing.

We will show that this is consistent with the same charged at others employees have been charged with and that in terms of the disciplinary code substandard performance is a written warning, a final written warning, followed by dismissal.

We will show that the only inconsistency as regards the applicant is that between his final written warning and his dismissal there was a further attempt by the company to rectify his ways through counselling. As the only challenge on this arbitration is the

inconsistency of the application of discipline, I will only be calling one witness.”

[6] Ms Makhanya (‘Makhanya’), the union representative at the arbitration, explained in her opening statement that it was a rule that if an employee failed to submit an hourly report he would be reminded twice by the site manager. Only if the employee still failed to submit a report after the second reminder would he be issued with a written warning. In this instance on 14 July 2011, Mabona only failed to submit the first hourly report, but then was charged and dismissed without the second reminder. In answer to a direct question from the Commissioner Makhanya confirmed that the issue in dispute was only the alleged inconsistency in the application of discipline.

[7] During the course of the arbitration, Makhanya repeatedly strayed from the agreed issue and sought to introduce other complaints about the dismissal. Nevertheless, the arbitrator repeatedly corrected her attempt to widen the scope of the hearing. After the employer’s representative had led one witness he reiterated that because the dispute dealt purely with “the consistency of the sanction”, he did not feel it was necessary to call further witnesses unless the case was allowed to move beyond the realms of consistency in which case he would make an application to reopen the employer’s case. Makhanya did not dispute the

nature of the case at that juncture.

[8] The disciplinary code of the applicant provides for the same sequence of progressive disciplinary steps in the form of a written warning, followed by a final written warning and then dismissal for various forms of the non-compliance with duties and functions, including amongst others:

8.1 failing to follow standing orders or procedures (including but not limited to the Mabona);

8.2 substandard performance including loafing, inefficiency, carelessness or negligence;

8.3 failure to follow roster, and

8.4 reporting late for duty.

[9] The employer’s witness, Mr N Rambharran (‘Rambharran’), was the contract manager on the site where Mabonawas working. He testified that substandard performance could relate to a very wide range of behaviour such as carelessness, negligence, failing to give a situation report or hourly reports and the like. The specific act of substandard performance Mabona allegedly committed which led to the enquiry was failing to submit an hourly report which was part of his duties which was important to ensure that the officer at that post was alert and in control. In respect of hourly reports, disciplinary processes were normally followed if an employee, who is given a reminder for not completing one report during a shift,does it again on the same shift. Rambharran’s evidence on this process he repeated twice. A second reminder was only issued if the employee defaulted in a subsequent shift. On 11 April 2011,

[10] Mabona was issued with a final written warning for substandard performance arising from his failure to discover a security patrol board whilst on a patrol. Although the warning bears a written inscription “FINAL”, the term “2nd” appears just below that. Rambharran explained that the supervisor had initially thought it was a second warning, but on verifying Mabona’s disciplinary record found that it ought to be a final warning and accordingly altered the designation of the warning before the warning was issued to him. Prior to that warning been issued that day, Rambharran held a counselling session with Mabona in which he was counselled for substandard performance and was told that if he continued disciplinary action would be taken against him which could lead to his dismissal.

[11] About two months later, on 20 June 2011, Rambharran held a further counselling session on Mabona’s substandard performance and was again advised that future substandard performance could result in disciplinary action leading to his dismissal. That counselling related to Mabona’s substandard performance in failing to submit an hourly report at 00:00 despite a reminder and then again at 03:00 failed to submit an hourly report.

[12] After considering a couple of examples where Rambharran had not dismissed two officers who had been found guilty of sleeping on duty even though the code designates that as a dismissible offence, he testified about the sequence of disciplinary steps leading to Mabona’s dismissal. These were:

12.1 On 30 March 2011 Mabona was issued with a written warning for substandard performance which would have expired on 30 June 2011.

12.2 On 11 April 2011 he was issued with the final written warning for substandard performance mentioned above, which would have expired on 11 October 2011.

12.3 On 20 June 2011 he committed the misconduct of failing to fill in hourly reports as set out in paragraph [8] above. However, he was not dismissed on that occasion as the code prescribed, but instead was counselled.

12.4 Finally he had to attend a disciplinary enquiry in July 2011 for substandard performance which resulted in his dismissal.

[13] In explaining why Mabona had been counselled on 11 April 2011 rather than being subjected to a disciplinary enquiry that could have led to his dismissal, Rambharran explained that it was not cast in stone that the next step after a final written warning was dismissal.

[14] Under cross-examination Makhanya challenged Rambharran about the case of another employee who was given a final written warning without being counselled like Mabona. She suggested to him that this was an instance of inconsistent treatment, even though what it showed, if anything, was that Mabona was treated more favourably than the other employee. She raised another example of an employee who was given a verbal warning followed by a written warning, a further written warning and then a verbal warning, but the Commissioner appreciated that cycle of warnings restarted if the previous written warnings had expired. Makhanya then questioned why the applicant was not dismissed when he was on a final warning rather than being counselled and once it was explained that Rambharran had

chosen to Council Mabona rather than dismiss him, Makhanya proceeded to move to the question of the reminders to provide situation

reports. It is apparent from the several examples that Makhanya put to Rambharran based on the record of the disciplinary history of the seven employees which the parties had agreed on, that Makhanya viewed any variation on the recommended pattern of disciplinary progression as potentially unfair, even if the variation entailed giving an employee another chance rather than invoking the next step in terms of the code.

[15] After a rambling attempt to identify what was unfair about the pattern of disciplinary steps taken against Mabona, Makhanya seized on the fact that after the final counselling on 20 June 2011, there was no second counselling session before the next occasion when he was subjected to a disciplinary enquiry. Makhanya then changed tack and argued that there had been no other offence committed by Mabona between the last counselling session and the disciplinary enquiry despite the agreement that the only question relating to the sanction concerned the consistent application of discipline, Makhanya sought to contest whether or not Mabona had in fact committed any fresh misconduct between the counselling and his disciplinary hearing. Makhanya was also averse to putting Mabona’s

version to nr despite being called upon to do so by the Commissioner.

[16] When Makhanya did testify the complaint which he articulated was that he had been subjected to a disciplinary enquiry for failing to submit an hourly report by 03:00 on 14 July 2011, even though he had only been given one reminder that night to do so and without being given a warning on the second occasion a report was not submitted on the same night. He acknowledged that he was aware from the previous counselling that if he committed the same misconduct again he would be subjected to a disciplinary enquiry. Clearly, in his view the fact that he did commit the same substandard performance despite the counselling and the existence of a final written warning, he still ought not to have been subjected to the disciplinary enquiry unless he had failed twice that night to make the hourly reports. He had only failed once that night and had been issued with a reminder. In Mabona’s mind, he did not regard one failure to submit an hourly report as an act of substandard performance: it was only when two hourly reports were not submitted

in a single shift and where a reminder had been issued after the first failure that this would constitute substandard performance

warranting disciplinary action. The Commissioner pointedly alerted Makhanya to the fact that this version had never been put to

Rambharran under cross-examination.

[17] There was additional evidence by two other employees who both alleged that Mabona had been dismissed for not filing an hourly report and one suggested that he was on a final written warning already and failed to submit an hourly report but was not dismissed.

The arbitration award

[18] I do not intend to summarise the award but simply to focus on the central pillars of the arbitrator’s reasoning and findings.

[19] The arbitrator found that the previous disciplinary action against Mabona which is set out above in paragraph [12] did not all relate to a failure to submit hourly reports and suggested that Rambharran had tried to create the impression that, that was the reason for issuing all of them.

[20] The employer treated different types of substandard performance differently in the sense that substandard performance for a failure to submit an hourly report is treated differently from a failure to discover a patrol board. The arbitrator also analysed the disciplinary record of Mabona and found that he was on a final written warning for failing to submit an hourly report on 18 June 2011 but was not disciplined for his subsequent failure to submit an hourly report on 3 July 2011 and 10 July 2011.

[21] It was the practice not to take a disciplinary step for failing to make only one hourly report in a shift, which only warranted a reminder. As such, the applicant had acted in breach of its own established practice by dismissing Mabona for failing to submit only one hourly report without the benefit of a second reminder.

[22] She held that the employer had to be scrupulous in the application of its standards because of the expectations they generate and the employee could only be judged against the standards which prevailed when he perpetrated the act complained of. Accordingly, she found that the employer had failed to prove that the applicant’s dismissal was substantively fair and awarded Mabona reinstatement with retrospective effect.

[23] Before moving on to consider the grounds of review it necessary to consider a curious and potentially misleading paragraph in the award which reads:

“[43] on the basis of the findings of the parties joint exercise and the respondents undisputed evidence, I am satisfied the challenge around the inconsistent application of the rule allegedly breached by the applicant was a non-issue in this matter.

[44] Ms Makhanya’s contention in her opening remarks that the rule which the applicant was alleged to have breached was not contained in the respondent’s code of conduct has been stripped of any validity by none other than her own witnesses, including the applicant himself. They all testified in unison that security officers at the respondent are required to submit situation reports

at hourly intervals throughout the shifts.”

As will be seen below, the applicant interpreted this to mean that the arbitrator had made a finding that it had not acted inconsistently in dismissing Mabona but not other employees.

Grounds of review and evaluation

First Ground of Review

[24] The first ground of review is that the Commissioner was not entitled to determine the fairness of the dismissal because that issue was not before her. The only issue for her to determine was whether the applicant had acted inconsistently in the application of discipline in respect of Mabona. An issue which immediately springs to mind in this regard is precisely what jurisdiction the arbitrator was exercising if that was the only issue she had to determine. The Labour Relations Act 66 of 1995 (‘the LRA’) provides that certain disputes may be referred to conciliation and arbitration under the auspices of the CCMA. The powers of a Commissioner to make any ruling or award are limited to rulings or awards which are determinative of or incidental to the disputes over which the Commissioner has jurisdiction. In the present instance, no Commissioner has a jurisdiction to determine a purely factual question such as whether there was consistent or inconsistent treatment in the application of disciplinary action except in the course of exercising jurisdiction to determine an unfair labour practice or an unfair dismissal. It is disingenuous of the applicant to suggest that no consequences flowed from the arbitrator’s determination of this question, when the only basis for the arbitrator entertaining the dispute at all was that it was within her part to decide in the course of determining an unfair dismissal dispute.

[25] It is also quite implausible in the light of the record of the arbitration that the union and Mabona had agreed that the arbitrator would simply determine this factual question, without then moving on to determine whether the dismissal was unfair if the arbitrator found that the employer had acted inconsistently in the application of discipline towards Mabona. As mentioned above, the union representative Makhanya repeatedly tried to bring in other issues into the hearing such as whether or not Mabona had received certain of the written warnings. The employer’s representative objected strenuously to the inclusion of these issues as additional

to the issue of consistency on the basis that the only issue was inconsistency. But that was clearly in the context of an assumption

that both parties were referring to issues which had a bearing on the fairness of the dismissal whether substantively or procedurally.

[26] In ordinary parlance, when parties agree that consistency is the only issue in the course of an unfair dismissal enquiry, the only reasonable inference to draw is that they intended that the substantive fairness of the dismissal depended solely on determining whether or not the employer had acted consistently. Accordingly, I believe this first ground of review is ill founded and must fail.

Second Ground of Review

[27] The second ground of review relates to the construction placed by the applicant on paragraphs [43] and [44] of the arbitrator’s award quoted above. There are in fact two issues under this ground of review. The first is whether the arbitrator irrationally decided that the applicant had acted inconsistently in the imposition of disciplinary action notwithstanding an earlier conclusion that inconsistency did not arise in the case. The second is that the arbitrator failed to determine the dispute on the basis of the comparison of the disciplinary records of Mabona and six other employees, which was the foundation of the claim of inconsistency.

[28] In relation to the first ground of review, the applicant interprets those paragraphs to mean that the arbitrator in fact made a finding that it had not acted inconsistently in dismissing Mabona while not dismissing the other six employees whose disciplinary records were jointly retrieved by the parties prior to the hearing of evidence. I believe this seriously misconstrues the real thrust of what the arbitrator was saying in those passages, and it is clearly not the ratio of her decision on the question of whether there was inconsistent treatment, which she deals with over two pages before her concluding

her award.

[29] What the arbitrator was clearly addressing in the two paragraphs mentioned was not whether the issue of inconsistent treatment as such was a non-issue but whether it was a non-issue in relation to whether or not Mabona had been sanctioned with dismissal for breaching a rule that did not exist. Read in the context of what follows in the rest of the award where the arbitrator turned her attention to the issue of the practice of issuing a sanction for non-completion of an hourly report only after two failures to do so in a shift and after a reminder has been issued for the first omission, it is clear that the issue of consistency was very much alive in the arbitrator’s mind and had not been resolved simply because one claim of inconsistency had been resolved.

[30] Nonetheless, the other issue raised by this ground of review is whether the arbitrator effectively determined the dispute of inconsistent treatment on issues that were not the basis of the claim of inconsistency. It is apparent from the arbitrator’s reasoning that she ultimately adopted the reasoning of Mabona that the employer ought not to have subjected him to disciplinary action because of a practice that a disciplinary step for failing to make hourly reports during a shift was normally only imposed once the employee had failed twice during that shift to make such reports and had already been reminded about his first failure to do so.

[31] The Commissioner decided that she could determine the dispute on this basis because of evidence led by the employer’s witness about this practice, even though she was fully aware that it had never been clearly put to the employer ought to Rambharran that it was the alleged inconsistent application of this practice that was the basis of Mabona’s claim. What is even more remarkable is that the arbitrator pointedly alerted Makhanya to her failure to put this contention to Rambharran. It is readily apparent on a reading of the cross examination of Rambharran and in the exchanges between Makhanya and the employer’s representative, that Makhanya never articulated this ground of inconsistency. Moreover, the comparison of disciplinary records contained no information about the issue on which the arbitrator finally decided the question of inconsistency. Had the rule about the two-stage process before imposing a sanction for non-completion of hourly reports been the basis of the claim of inconsistency and been the factual basis of the dispute the arbitrator was required to decide, then those records would not have assisted the arbitrator at all, which begs the question why the parties would have gone to the trouble of jointly extracting those records if they were not to be the basis of the comparison.

[32] It is clear that what happened was that the arbitrator decided that the dispute over inconsistent treatment on factual grounds of inconsistency had not been properly identified as the basis of the dispute, and which ought not to have been considered because the contention that those factual grounds were the basis of the claim of inconsistent treatment was never put to the employer’s

witness. It does not matter that Rambharran may have incidentally given evidence on the practice: the issue is whether it was put to him that the failure to apply the two-stage practice in the case of Mabona meant that the employer was guilty of the inconsistent

application of discipline when it decided to dismiss him, notwithstanding his considerable disciplinary record of repeated substandard performance of various kinds.

[33] I agree with the applicant that having regard to the evidence of the disciplinary records jointly extracted, the object of the comparison was to consider whether the employer had acted consistently in the application of its disciplinary code and procedure, given the comparative history of the disciplinary records of the employees and having regard to the recommended sequence of progress of discipline in the disciplinary code.

[34] In deciding the question of inconsistent treatment on the factual basis she did, the arbitrator had in fact misconstrued the nature of the dispute about inconsistency she was required to determine and had decided it on a different basis. It is understandable perhaps that the arbitrator might have been tempted to do this because of the complete incoherence of the basis of the claim of inconsistency that was put to the employer and its witness. It was only belatedly, when Mabona testified, that an alternative and

perhaps clearer basis for making such a claim emerged.

[35] However, the arbitrator was not entitled to determine the issue on this basis, in the absence of it being squarely placed before Rambharran as the claim of inconsistency he had to rebut. The only way in which the arbitrator could reach the conclusion she did, was to determine the claim of inconsistency without regard to the fact that the employer could not have known that this was the claim it had to rebut. There was no reason for the employer to believe prior to Mabona testifying that it had to do more than answer a challenge based on the disciplinary records of Mabona and the six other employees seen in the context of the disciplinary code. In the absence of those inconsistencies being identified during Makhanya’s cross-examination of Rambharran, the basis for a finding that Mabona’s dismissal was unfair on account of the inconsistent application of disciplinary sanctions was not

established on the evidence and no rational arbitrator could have concluded otherwise.

Conclusion

[36] In the circumstances, the review application must succeed on the basis of the discussion above. It is also apparent from that discussion that the failure to properly articulate the basis of the claim of inconsistency which the employer had to answer and a failure to put that contention to the employer’s witness to answer, before the employer closed its case meant that the basis for a claim of inconsistent treatment had not been properly laid and the only reasonable outcome would have been to dismiss the claim.

Order

[37] The applicant’s delay in filing a record of the arbitration proceedings and of filing its supplementary affidavit is condoned.

[38] The arbitration award issued under case number KNDB10134-11 is reviewed and set aside. The arbitrator’s findings that the first respondent’s dismissal was substantively unfair on account of inconsistency is substituted with a finding that the first respondent’s dismissal was not substantively unfair on the basis of the inconsistent application of disciplinary sanctions, which was the sole basis of the first respondent’s claim of unfair dismissal.

[39] No order is made as to costs.

R LAGRANGE, J

Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: S Bosi of Norton Rose Attorneys

For the First Respondent: NP Voyi of Voyi Attorneys