Cleveland Crane Hire Close Corporation v NUMSA, obo Rosbert and Others (JR 2292/18) [2023] ZALCJHB 267 (14 February 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2292/18

In the matter between:

CLEVELAND CRANE HIRE CLOSE CORPORATION Applicant

And

NUMSA, obo MANAMELA, ROSBERT First Respondent

MOKOENA, AUBREY MOTEBANG

NOMINE OFFICII Second Respondent

COMMISSION FO CONCILIATION

MEDIATION AND ARBITRATION Third Respondent

Heard: 09 November 2022

Delivered: 14 February 2023

JUDGMENT

BALOYI, AJ

Introduction

The review and set aside of the arbitration award issued by the second respondent is the relief sought by the applicant. The second

respondent found the dismissal of the first respondent (Rosbert Manamela) to be substantively unfair. This matter mainly turns on whether the applicant applied discipline consistently amongst its employees. The second respondent’s finding that the dismissal of the first applicant was unfair solely rested on this aspect. Two considerations played a major role in the second respondent’s determination of the dispute. Firstly, that the only reason that led to the dismissal of the first respondent was his failure to approach the Managing Director (MD) of the applicant immediately after his disciplinary hearing to ask for forgiveness. Secondly, the first respondent’s remorse was demonstrated right from the disciplinary hearing.

The first respondent pleaded guilty to a charge of falsifying his time sheets to reflect that he worked more hours whilst it was in fact not the case. As a result, he earned more than he was supposed to. He pleaded not guilty on the second charge of dishonesty and deceit. This charge is founded on his denial of falsifying the time sheets when confronted about the conduct. He was asked about this on three separate occasions and responded with consistent denials. It was only in the disciplinary hearing when admitted to the falsification of time records and asked for forgiveness. He was found guilty on both charges and a sanction of dismissal was imposed.

The inconsistency which plagued this matter is centred around the steps taken against three of the first respondent’s fellow employees. Employee 1 was not charged at all. Employees 2 and 3 were charged, found guilty and dismissed. They were reinstated after they approached the MD of the applicant to ask for forgiveness. The first respondent’s dismissal stood hence it ended up before the second respondent for determination of its fairness.

The relevant issues

The applicant discovered that four employees, Mr Mokoena (employee 1), Mr Mkhachwa (Employee 2), Mr Mkobedi (Employee 3), and the first respondent tempered with their time sheets to the detriment of the applicant. The applicant elected to first take a modest approach by engaging these employees. Mr Hopgan (MD), the owner of the applicant started by posting a telephone call to employee 1 and asking about his knowledge of the scam. Employee 1 instantly admitted the transgression and offered to repay the monies he benefited by way of deduction from his remuneration. He was directed to make an offer in writing, and he accordingly obliged.

Similar calls were posted to Employees 2 and 3 and they responded with denials. They were once again asked in the office, they persisted in their denial. With the evidence at the applicant’s disposal, they were suspended and disciplinary proceedings were instituted

against them. They pleaded guilty to the charge, the disciplinary hearing Chairperson passed the guilty verdict and imposed the

sanction of dismissal. The pair approached the MD separately in his office. They apologized and pleaded with him not to implement the decision of the disciplinary hearing Chairperson. The MD accepted their pleas and reinstated them after consulting with the HR department.

The first respondent was called and had three separate discussions with the MD in his office over the falsified time sheets. He denied the acts in all three interactions with the MD. He was suspended and summoned to appear in the disciplinary hearing. There was an additional charge for him. The applicant held a view that he was dishonest and deceitful for not coming clean despite being shown overwhelming evidence on three occasions. He pleaded guilty to the first charge and not guilty to the second charge and apologized. He was found guilty on both charges and the disciplinary hearing Chairperson imposed a sanction of dismissal. According to the

applicant, he did not go to the MD’s office to plead for his job.

It emerged from the arbitration proceedings, in particular during his testimony that he attempted to meet with the MD but he did not find him in his office. He only had a brief discussion with the HR official. The applicant cried foul about this as it was not put to its witnesses. He came back on the other day and collected some paperwork from HR including the UIF card.

The second respondent found the dismissal to be substantively unfair and ordered his reinstatement. He found the applicant to have applied discipline inconsistently as the circumstances around the first respondent’s case were the same as that of Employees 2 and 3. The only difference is that he did not go to the MD to apologize after the hearing. He took into account that the applicant apologized during the disciplinary hearing in the presence of the MD.

Before this Court, the applicant is attacking the second respondent’s decision on grounds that he committed gross irregularity on two fronts. Firstly, he misconstrued the principle of inconsistency as it was upon the third respondent to prove that the applicant applied discipline inconsistently. Employees 2 and 3 were similarly dismissed but their circumstances differed from those of the first respondent. His alleged attempt to see the MD could not be backed by evidence. He even failed to call the HR official he alleged to have found in the office during his unsuccessful attempt to see the MD.

The second attack on the second respondent’s decision is rested on the remedy of reinstatement awarded to the first respondent. The applicant finds the remedy to be inappropriate in view of evidence that revealed the breakdown of the trust relationship. In the absence of a capricious motive, the first respondent is not entitled to benefit from a claim of inconsistency.

In opposition, the first respondent contends that the second respondent determined the real disputes between the parties and came to a conclusion which a reasonable decision-maker could have reached after considering the material placed before him. The second respondent dealt with the differentiation applied by the applicant and had correctly found that it resulted in inconsistent application of discipline. It was not necessary for the employee to discharge an onus on the inconsistent application of discipline as it was an established common cause fact.

Evaluation

The test for review is well established, it is therefore imperative for this Court to look at whether the decision of the second respondent is the one which a reasonable decision-maker could have reached. In doing so, a two-stage inquiry as held in Herholdt v Nedbank Ltd[1] has to be undertaken. The Supreme Court of appeal has specifically provided a guideline in this respect at paragraph 12 as follows:

[12] That test involves the reviewing court examining the merits of the case ‘in the round’ by determining whether, in the light of the issue raised by the dispute under arbitration, the outcome reached by the arbitrator was not one that could reasonably be reached on the evidence and other material properly before the arbitrator. On this approach the reasoning of the arbitrator assumes less importance than it does on the SCA test, where a flaw in the reasons results in the award being set aside. The reasons are still considered in order to see how the arbitrator reached the result. That assists the court to determine whether that result can reasonably be reached by that route. If not, however, the court must still consider whether, apart from those reasons, the result is one a reasonable decision-maker could reach in the light of the issues and the evidence.”

With this said, the Court also has to bear in mind that the determination of the fairness of the dismissal falls squarely in the hands of the Commissioner. The Labour Appeal Court in Fidelity Cash Management Service v CCMA & Others[2] gave clarity on this aspect as follows:

“[98] It will often happen that, in assessing the reasonableness or otherwise of an arbitration award or other decision of a CCMA

commissioner, the Court feels that it would have arrived at a different decision or finding to that reached by the commissioner.

When that happens, the Court will need to remind itself that the task of determining the fairness or otherwise of such a dismissal is in terms of the Act primarily given to the commissioner and that the system would never work if the Court would interfere with every decision or arbitration award of the CCMA simply because it, that is the Court, would have dealt with the matter differently. Obviously, this does not in any way mean that decisions or arbitration awards of the CCMA are shielded from the legitimate scrutiny of the Labour Court on review.”

Reasonableness may be inferred from the totality of factors placed before the Commissioner. These factors surely give rise to the reasons that render the award sustainable. The reasons that are not brilliantly articulated do not necessarily render the award reviewable. The reviewing Court has to look at whether the overall decision in the arbitration award has brought about an outcome that is unreasonable. The Labour Appeal Court has also emphasized this in Goldfields Mining South Africa for Conciliation Mediation & arbitration[3] that a defect in the arbitration award does not translate to an award being reviewable. This was summed up in paragraph 17 as followed:

“[17] The fact that an arbitrator committed a process-related irregularity is not in itself a sufficient ground for interference by the reviewing court. The fact that an arbitrator commits a process-related irregularity does not mean that the decision reached is necessarily one that a reasonable commissioner in the place of the arbitrator could not reach.”

As pointed out above, the principal issue that the second respondent was faced with is the determination of the fairness of the first respondent’s dismissal with the inconsistent application of discipline being an underlying factor. It is of paramount importance to visit the principal finding in his arbitration award in paragraph 14 where the following is said:

“I accept the version of the Respondent that the Applicant was called three times to the MD’s office and on all occasions denied the allegation. The Applicant merely rejected this version but did not show me any evidence to the contrary. The MD testified as one who was present on all three occasions. I find his testimony to be reliable in this regard as he was a direct witness on all three occasions. He is the one who called the Applicant to his office and the denials to the allegations were made directly to him. I have no reason to doubt the MD’s testimony in this regard. I therefore find that the Applicant was dishonest in so far as denying the allegations when he was confronted about them.”

Having established that the first applicant was guilty of misconduct, the next issue is whether there was an inconsistent application of discipline relating to the sanction. The second respondent conducted a comparing exercise of the treatment meted to Employees 2 and 3 against that of the first respondent. In arriving at his decision, he made the following conclusion in paragraph 19 of the arbitration award:

“The Applicant did not go to the MD’s office like the other two did after their hearing. This is the only difference between them and the Applicant. He did however go to the HR Officer the day after his hearing and asked to see the MD, who was not available at the time. The Applicant showed remorse during the hearing and also made a genuine attempt to see the MD the day after his hearing. Employees 2 and 3 were reinstated as a result of their remorse which was shown after their hearings. The Applicant should not have been dismissed in the first place, since his remorse was shown during the hearing, in the presence of the MD. The different treatment that the Applicant received from the Respondent in comparison to the other two employees was not justified. The Respondent should have treated the three employees exactly the same since their circumstances were similar. In the light of the above I find that the Respondent inconsistently applied the rule.”

The issue of inconsistent application of discipline has over the years received different reactions in our Courts. This is without doubt influenced by the factors placed before a particular Court as each case is treated on its own merit. The decision made in SACCAWU & Others v Irvin (Pty) Ltd[4] is undoubtedly long standing and intact in so far as disciplinary consistency is concerned. The Labour Appeal had this to say in this regard at paragraph 29:

“29 In my view too great an emphasis is quite frequently sought to be placed on to the ‘principle’ of disciplinary consistency,

also called the ‘parity principle’. (as to which see e.g. Grogan, Workplace Law, fourth ed. p.145 and Le Roux & Van Niekerk, The South African Law of Unfair Dismissal, p.110). There is really no separate ‘principle’ involved. Consistency is simply an element of disciplinary fairness (The Dismissal of Strikers, MSM Brassey (1990) 11 ILJ 213 at 229). Every employee must be measured by the same standards (Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers’ Industrial Union & Others (1991) 12 ILJ 806 (LAC) at 813 H-I). 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. (As was the case in Henred Fruehauf Trailers v National Union of Metalworkers of SA & Others, (1992) 13 ILJ 593 (LAC) at 599 H - 601B; National Union of Mineworkers v Henred Fruehauf Trailers (Pty) Ltd, 1994 15 ILJ 1257 (A) at 1264). 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, in my view, necessarily mean that the other miscreants should escape. Fairness is a value judgment. It might or might not in the circumstances be fair to reinstate the other offenders. The point is that consistency is

not a rule unto itself.”

The test applied by the Courts is still based on the same foundation. In Burton & Others v Member of Executive Council, Department of Health Eastern Cape Province & Others[5]. The Labour Appeal Court unpacked the principle in paragraph 72 as follows:

“[72] A disciplinary sanction imposed must be fair, and neither selective nor capricious. Historical consistency contemplates that a penalty will be applied consistently with how it has been applied to other employees in the past. Contemporaneous consistency contemplates that a penalty will be applied consistently as between two or more employees who commit the same misconduct. The parity principle

is not an immutable rule, since the fairness of each dismissal is to be considered on its own facts. The fact that an employee has previously not been dismissed for a specific instance of serious misconduct does not in itself grant a licence to employees to commit such serious misconduct or warrant a finding that the dismissal of an employee for such misconduct is unfair. Similarly, where there has been an oversight by a disciplinary officer, or different disciplinary officers hold different views on the appropriate

penalty, this in itself does not necessarily warrant a finding of unfairness.”

It is clear just like in any case placed before an arbitrator that the totality of factors has to be taken into account. In this matter, the second respondent took into account that Employees 2 and 3 were found guilty and dismissed for falsifying the time sheets just like the first respondent. Disciplinary action was taken against the two employees together with the first respondent after they failed to come clean when confronted about their conduct. That the first respondent denied on three occasions prior to the disciplinary action when confronted, is according to the second respondent immaterial as Employees 2 and 3 had also posted two denials.

The catalyst for the second respondent’s decision that the applicant applied discipline inconsistently rests on the first

respondent’s failure to approach the MD after the handing down of a dismissal sanction to apologize and plead for his job. In other words, the first respondent’s remorse was known to the applicant as he had apologized during the disciplinary hearing. His failure to see the MD should not have prejudiced him.

The applicant did not supplement its grounds despite an averment in the founding that it would do so upon receipt of the record. This Court is not attempting to hold the applicant to its undertaking. The reading of the record, most particularly the evidence of the MD, reveals that the first respondent would have been forgiven had he approached the MD for forgiveness. This is indicative of the fact that the trust relationship was still there. This concession is critical and it is not dealt with in the applicant’s founding papers. The first ground raised in the founding papers is at odds with what was placed before the second respondent. The first respondent has in deed raised an unsuccessful attempt to see the MD only during his testimony and was definitely not put to the applicant’s witnesses. This, however, does not eradicate the fact that the MD’s willingness to forgive the first respondent was on the table.

The second respondent cannot be faulted for the findings he made about the unfairness of the dismissal. The only difficulty I have with the second respondent’s decision is the relief of reinstatement awarded to the first respondent. This was done amid his own guilty finding that the first respondent was dishonest. The fact that the sanction of dismissal is not appropriate does not mean that no other sanction short of dismissal should be imposed. To a certain extent, there is credence to the applicant’s second ground in which an award of reinstatement is attacked. He awarded the first respondent reinstatement as if he was cleared of the misconduct. It cannot be fair that the first respondent should be rewarded by way of retrospective reinstatement in circumstances that he created and caused the applicant to suffer financial losses. Based on Herholdt and Gold Fields’ decision, I must be quick to caution that this flaw cannot by any account render the result in the arbitration award unreasonable.

Under these circumstances, a sanction of a final written warning should have been imposed. There is no record of what happened to Employees 2 and 3 after they were voluntarily reinstated by the applicant. Since the first respondent’s case was ventilated in the external dispute resolution forum and his guilt was confirmed, it would have been highly necessary for the second respondent to impose a sanction. The first respondent failed to prove his attempt to see the MD immediately after the dismissal. He missed the opportunity out of his own doing. It cannot be claimed that he should benefit the same way as those who took advantage of the opportunity. The Court will thus interfere with the second respondent’s decision in so far as the relief is concerned. The relief of reinstatement without backpay is under these circumstances appropriate coupled with a final written warning valid for the period recognized in the applicant’s disciplinary code or practice.

Costs

This is a matter in which its finalization brings about the restoration of an employment relationship. It is therefore not within the interests of law and fairness to make a cost order.

Order

In the premises, the following order is made:

1. The arbitration award issued by the second respondent under case number GAEK6934-18 is reviewed and set aside and is substituted with an order that:

1.1 The dismissal of the first respondent is found to be substantively unfair;

1.2 The applicant is ordered to reinstate the first respondent without back pay;

1.3 The first respondent be issued with a final written warning;

1.4 The first respondent must report for duty within 14 days of receipt of this order;

1.5 There is no order as to costs.

M Baloyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Adv.

AJ Nel

Instructed by Lee & Mc Adam Attorneys

For the first respondent: Mr T Manasoe of Letsholo Manasoe

Inc Attorneys

[1] (2013) 11 BLLR 1074 (SCA)

[2] (2008) 3 BLLR 197 (LAC) at par 98

[3] (2014) 3 BLLR 20 LAC at paragraph 21

[4] (1991) 8 BLLR 741 (LAC)

[5] (2022) 43 ILJ 2284 (LAC)