Chetty v Tanker Services Fuel and Gas (PTY) Ltd and Others (D1978/2018) [2022] ZALCD 43 (6 September 2022)

IN THE LABOUR COURT OF SOUTH AFRICA

DURBAN

Case no: D1978/2018

Not Reportable

In the matter between

LOGANATHAN CHETTY

Applicant

And

TANKER SERVICES FUEL

AND GAS (PTY) LTD

First Respondent

NATIONAL BARGAINING COUNCIL FOR THE

ROAD FREIGHT AND LOGISTICS INDUSTRY Second Respondent

COMMISSIONER VAN ZYL N.O Third Respondent

Heard: 28 July 2022

Delivered: 6 September 2022

JUDGMENT

ALLEN-YAMAN AJ

Introduction

[1] The applicant seeks to review and set aside the award issued by the third respondent in terms of which he found that the applicant's dismissal by the first respondent on 19 October 2017 was substantively fair.

Background

[2] The applicant had been employed by the first respondent a truck driver on 20 March 2000.

[3] His dismissal ensued as a result of an event which occurred on 22 September 2017. It was common cause between parties that on that day, whilst driving a truck reticulated with an LPG gas unit in the course of his employment by the first respondent, he had failed to stop sign at a stop sign at a T-junction and, instead, turned left into the intersection whilst travelling at a speed of approximately 23 kilometers an hour. It was also common cause that another vehicle had been present in the vicinity of the applicants vehicle, although the applicant and the first respondent disagreed as to whether the driver of the other vehicle had been required to take evasive action to avoid a collision, or not.

[4] The turning manoeuvre executed by the applicant caused the drive-cam installed on the truck then driven by the applicant to activate and the incident was thereby recorded.

[5] The precise charges which led to the applicant's dismissal are unknown at this stage of proceedings, for the reason that the documents which were presented in evidence to the third respondent do not form part of the record which has been delivered by the applicant. By all accounts, the applicant was charged with gross negligence, in the form of reckless and negligent driving.

[6] It was common cause that the offence of gross negligence was categorised as being serious in terms of the first respondent's Disciplinary Code, and which was identified in the Disciplinary Code as warranting summary dismissal for a first offense.

[7] The applicant pleaded guilty at the disciplinary enquiry, however, testified that at the time of the incident he had been suffering from stress: he.had recently been given a written warning, his daughter had been hospitalised for anxiety, and on the day of the incident he had witnessed an attempted hijacking. It was common cause that he had not reported the fact of his mental burdens to the first respondent prior to driving the first respondent's vehicle that day, which would have resulted in him not having been permitted to drive. It was also common cause that he had not substantiated his assertions regarding any of the mental stressors relied upon by him with any form of documentary proof thereof.

[8] Upon the conclusion of the disciplinary enquiry the first respondent determined that the appropriate sanction for the misconduct in question had been summary dismissal.

[9] The applicant challenged the fairness of his dismissal by referring a dispute to the second respondent, which led to the award which is the subject matter of theses proceedings

[10] At the arbitration proceedings, the applicant argued that the first respondent had departed from its disciplinary code in having dismissed him and acted inconsistently by having done so. As regards the issue of inconsistency, he expressly referred to a prior incident pertaining to a fellow employee, Mr Vusi Gama, who had committed a similar offense but who had not been dismissed in the result.

[11] The applicant's first ground of review is articulated in as follows in his founding affidavit:

1. The third respondent erred in finding that, as he was the party who had raised the defence of inconsistency, he was to provide detailed evidence of such inconsistency.

2. The third respondent incorrectly held that he had failed to prove inconsistency, in light of the fact that no evidence was led by the first respondent to rebut the issue of inconsistency which had been raised by him.

3. By so doing, the third respondent shifted the onus which rested on the first respondent to him, which was not correct.

[12] The applicant contends that the award is also reviewable for the reason that the third respondent failed to comply with Clause 7 of The Code of Good Practice: Dismissals, Schedule 8 to the LRA ('the Code'), by having failed to consider whether the first respondent had consistently applied the rule or standard, and whether dismissal was an appropriate sanction for the contravention of the rule or standard.

Analysis

[13] The principles relevant to the issue of inconsistency will briefly be summarised before considering the first of the applicant's grounds of review.

[14] In terms of Clause 7 of The Code, Guidelines in cases of dismissal for misconduct requires that any person who is determining whether a dismissal for misconduct is unfair should consider-

’(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) if a rule or standard was contravened, whether or not -

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.'

[15] The issue of inconsistency relates to the enquiry which is required to be undertaken under clause 7(b)(iii) of the Code. This concept was explained in Southern Sun Hotels Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR243/05) [2009] ZALC 68 as 'the parity principle, a basic tenet of fairness that requires like cases to be treated alike. '[1] Consistency, in the historical sense, requires that the penalty of dismissal be applied consistently with the way in which the penalty has been applied to other employees in the past.

[16] The issue of onus in cases of alleged inconsistency was considered by Tlhotlhalemaje AJ (as he then was) in African Bank v Magashima and Others (JR2419/12) [2014] ZALCJHB 298. Having examined the various cases which had dealt with the issue he stated the position thus,

‘ As can be gleaned from the authorities and principles enunciated therein, it is not sufficient for an employee facing allegations of misconduct to simply shout; ‘Inconsistency!, and automatically be absolved from the consequences of his or her acts of misconduct. Where an employee claims inconsistency, firstly, the onus is on that employee to demonstrate in what material respects employee X was treated differently from him or her, when both have committed the same or similar form of misconduct, and why that was unfair. Secondly, it is for the employer to justify the differentiation in the treatment of the two employees. In the absence of evidence to demonstrate that the employer had acted capriciously or was motivated by some irrelevant considerations in instituting disciplinary measures or handing out sanction between the two employees, it should be concluded that the employers decision to differentiate between the two is fair.[2]

[17] The third respondent's findings in relation to the applicant's complaint that there had been inconsistency in respect of the sanction imposed on him, and that which had been imposed on Mr Gama, were as follows,

'Mr Gaffoor, on behalf of the applicant, submitted that the onus was on the employer to prove that the applicant's dismissal was fair. It was further submitted that the respondent was obliged to provide evidence of the serious departure from its disciplinary code and to provide reasons for the inconsistency. I do not necessarily agree with that submission. It was the applicant who raised the defence of inconsistency and it [was] therefore for the applicant to provide evidence of that alleged inconsistency. It was common cause that the drive cam footage of Gama's alleged offence was not available. The applicant did not provide any evidence of that incident and the only evidence available was the actual final warning issued to Gama and the notes made on that warning. It is impossible for me to determine any alleged inconsistency in the absence of evidence relating to Gama's alleged offence. The mere fact that it was recorded that Gama had immediately reported his failure to stop in time may well be a reason to differentiate between the two cases.[3]

[18] Albeit that the third respondent's reasoning is not articulated in the clearest of terms, I understand his assessment of the matter to have been that the applicant (as the party who had raised inconsistency) was obliged to demonstrate that the first respondent had been inconsistent in its application of discipline by providing evidence of the alleged inconsistency and the unfairness thereof and failed to do so. In this, it does appear that the third respondent overlooked the fact that it had been common cause between the parties that Mr Gama, too, had failed to stop at a stop sign, but had not been dismissed. It does not appear, however, that by so doing the third respondent misconstrued the onus, which at all times remained on the first respondent to prove the fairness of the applicant's dismissal.

[19] In casu,·the first respondent was given timeous notice of the applicant's intention to rely on the issue of alleged inconsistency in that the applicant had identified

another employee who had previously committed the self-same infraction as was committed by him, but who had not been dismissed. The first respondent introduced the documentation that was available concerning the infraction, in the form of the written warning which had been issued to Mr Gama. As the applicant has not delivered the record of the documentary evidence which served before the third respondent, I am not in a position to determine with any precision what was written on Mr Gama's warning. From the portions of the warning referred to by the witnesses who testified at the arbitration, and the finding of the third respondent

as set out above, it appears that Mr Gama himself reported the incident to the first respondent, pleaded guilty and, at the time of the infraction, had a clean disciplinary record.

[20] The further determination which was then required to have been made was whether the first respondent had discharged its evidentiary burden of establishing the reason for the differentiation in substantiation of the fairness of the applicant's dismissal.

[21] In the first respondent's representative opening address, he referred to the warning itself within the documents and read its content into the record. In addition to the factors mentioned previously, what was also noted therein was that Mr Gama’s positive attitude was taken into account before the sanction of a written warning had been imposed.

[22] The first respondents first witness, Mr Virendra Annilraj, likewise read the warning into the record although had not himself been involved in Mr Gama’s disciplinary enquiry. He accordingly had no personal knowledge of the reason or reasons why the disciplinary code had been departed from by imposing a written warning on Mr Gama as a sanction, rather than that of summary dismissal.

[23] The cross examination of this witness by the applicant’s attorney, however, did not evince any challenge to the reasoning evinced within the document as to why the written warning had been imposed. It was limited to questions challenging the failure on the part of the first respondent to have provided Mr Gama’s drive-cam, and Mr Annilraj’s lack of knowledge concerning whether any other vehicles had been in the vicinity of Mr Gama's vehicle at the time of that incident.

[24] Again, in the absence of the documentary portion of the record, which would have included the pre-arbitration minute, I am left to speculate as to what agreement, if any, was reached between the applicant and the first respondent regarding the status of the documents which were introduced by the parties, including the copy of Mr Gama's written warning. Given the limited nature of the cross-examination of the first respondent's only witness who testified concerning this document, and the further fact that the applicant has not challenged, in these proceedings, the third respondent's reliance on hearsay evidence .I must accept that the third respondent was entitled to rely on its contents.

[25] This being the case, the result is that there was evidence before the third respondent which demonstrated the reasons why the first respondent had departed from its Disciplinary Code and imposed a written warning for Mr Gama's infraction but had not done so in the case of the applicant. Whilst both employees pleaded guilty at their respective disciplinary enquiries, Mr Gama had reported the incident to the first respondent, whereas the applicant had not. In addition, Mr Gama had a clean disciplinary record at the time of the infraction, whereas the applicant had a current written warning for an unrelated incident in place at the time of the his infraction.

[26] Regarding the. applicants second ground of review, the applicant has alleged that the third respondent failed to undertake the enquiry which he was required to undertake in having to consider whether the first respondent had consistently applied the rule or standard, and whether dismissal was an appropriate sanction for the contravention of the rule or standard. The third respondent, having considered and dealt with the issue of the alleged inconsistency in the sanction which had been imposed clearly considered this issue.

[27] Although not expressly stated in his founding affidavit, in amplification of the final consideration as to whether dismissal was in fact the appropriate sanction Ms Ploos van Amstel, for the applicant, argued at the hearing of the matter that nowhere in his award did the third respondent deal with either the length of the applicant's service or his previous record.

[28] The third respondent's ultimate conclusion was stated as follows,

'Under the circumstances I find that the applicant was guilty of gross negligence in that he failed to stop at a mandatory stop sign and his dismissal was accordingly substantively fair.[4]

[29] In consideration of this statement, it is tempting to conclude that the third respondent did, in fact, fail in his duty as an arbitrator as it is trite that a finding that an employee is guilty of an infraction in the workplace does not, in most cases, inevitably lead to the conclusion that dismissal is the appropriate sanction. In the ordinary course, mitigating and aggravating factors play an important role in the determination of what would constitute an appropriate sanction.

[30] That having been said, however, it appears from the record made available in these proceedings that the only issue which the third respondent was required to determine was that pertaining to inconsistency. The minutes of the pre-arbitration conference would have definitively disposed of the issues which the parties had identified as having been those which were required to have been determined by the third respondent. However, in the absence thereof the applicant’s attorney nevertheless comprehensively articulated the applicant’s challenges to the fairness of his dismissal in his opening address, concluding,

So if the commission finds that there was inconsistency in the application of the rule by the employer, then the forum must find that such dismissal was unfair.'

[31] Nowhere in the applicant's opening address, nor in the applicant's evidence itself, was any suggestion made by the applicant that in the event that the third respondent did not find that there had been inconsistent application of discipline, certain mitigating factors nevertheless served to negate the appropriateness of the sanction of dismissal. The only issue which the third respondent appears to have been required to determine was that relating to inconsistency, which he did.

[32] On the available evidence, there were compelling reasons why the first respondent was entitled not to depart from its Disciplinary Code in relation to the applicant, and these reasons related to the applicant's complete failure to have appreciated the seriousness of the infraction in question.

[33] In the first instance, the applicant disputed that any possible collision with the vehicle which had been travelling perpendicularly to his vehicle could have ensued. The third respondent, having viewed the footage from the drive-cam installed in the vehicle then being driven by the applicant, found otherwise,

'The drive cam clip clearly shows that a "bakkie" was approaching from the right hand side and had to go over the barrier line into the other lane to avoid a collision with the applicant's tanker.'[5]

[34] The applicant did not challenge the third respondents finding in this regard.

[35] The applicant, moreover, appears to have failed to have appreciated the seriousness of the infraction itself, and the importance of adherence to the laws which govern the use of vehicles on public roads. This, in circumstances in which his job entailed that he be entrusted by the first respondent to drive vehicles with potentially dangerous loads. The following exchange between the applicant and the first respondents representative

revealed a somewhat alarming perception on the part of the applicant concerning the obligation on him to stop at stop signs,

'

‘Mr Mohapi: Okay, that's fine. Mr Chetty, you are a driver of 17 years, you know the road and you know the mandatory rules and you know all that. Now tell us that it is not important to stop at a stop sign.

Applicant: Yes, it is important.

Mr Mohapi: It is important?

Applicant: Also you use your discretion also.

Mr Mohapi: Please explain that. How do you use your discretion?

Applicant: From my instance there was no vehicle beside the vehicle that went past. So there was no way for me to collide with any other vehicles.'

[36] The third respondent's finding, arising out of this evidence, was also not challenged in these proceedings,

'... and in fact on his own version he made a judgment call whether to stop or not. He had no right to make such a judgment call. The stop sign is a compulsory stop and it is not a yield sign where he could have made a judgment call.'[6]

[37] The first respondent's Disciplinary Code classified the offense for which the applicant was dismissed as one for which the recommended sanction was that of dismissal. As has been dealt with before, the evidence before the third respondent demonstrated that there had been reasons for the first respondent’s decision to depart from the ordinary consequences of the infraction in the case of Mr Gama, which reasons were not present in the case of the applicant.

[38] In the circumstances, I find that the third respondent’s award was one which a reasonable decision maker could have arrived at on the evidence before him, on the evidence before him, and accordingly does not fall to be reviewed and set aside.

Costs

[39] Although the first respondent has asked that the applicant be ordered to pay its costs I do not intend to make such an order. Whilst the applicant has not succeeded in his review application, the application does not appear to have been either frivolously or vexatiously made.

Order

1. The application is dismissed.

2. There is no order as to costs.

Kelsey Allen-Yaman

Acting Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT: Ms Z Ploos van Amstel, briefed by Abdool Gaffoor Parasram & Associates

FIRST RESPONDENT: Mr D Farrell of Farrell Incorporated Attorneys

[1] At paragraph 10

[2] At paragraph 22

[3] At paragraph 25

[4] At paragraph 26

[5] Paragraph 23

[6] At paragraph 25