Exxaro Coal (Pty) Ltd Grootegeluk Mine v NUM obo Azwianewi and Others (JR2028/18) [2021] ZALCJHB 120 (11 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no. JR 2028/18

In the matter between:

EXXARO COAL (PTY) LTD GROOTEGELUK MINE Applicant

and

NUM obo NEMATATANI AZWIANEWI First Respondent

M N MASETLA Second Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION(“CCMA”) Third Respondent

Heard: 27 May 2021

Delivered: This judgment was handed down electronically by circulation to the parties representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 11 June 2021

Summary: Review application- Historical inconsistency principle to be applied with caution considering that each case to be treated on its facts and circumstances-

MABASO, AJ

Introduction

[1] The Applicant seeks to review and set aside an arbitration award issued by the Second Respondent (the Arbitrator), who had ruled that the dismissal of Mr Nematatani Azwianewi (the Employee) by the Applicant was substantively unfair then ordered reinstatement coupled with compensation. The basis of the Arbitrator's finding is the alleged inconsistent application of discipline by the Applicant. The Applicant filed both founding and supplementary affidavits, the latter being more detailed restate uncontested testimony before the Arbitrator. In contrast, the Employee delivered an answering affidavit wherein he does not respond to the averments in the Applicant's supplementary affidavit save for a bare denial. Consequently, the supplementary affidavit is unchallenged. See Mohapi v De Beers Pension Fund and Another (64/2015) [2016] ZASCA 14 (11 March 2016) at para 29. Both the CCMA and Arbitrator are not opposing this application.

Relevant background and the arbitration

[2] In January 2018, the Employee was summoned before a disciplinary hearing to answer allegations of contravention of the Applicant's disciplinary Code 7.1 (Code 7.1 misconduct). These allegations emanate from accusations that he failed to communicate and maintain Rigging Standard Procedure Instruction (SPI) as required by the Applicant's policy.

[3] Consequently, the Employee was found guilty and dismissed from his employment. Following the dismissal, he declared an unfair dismissal dispute with the Commission for Conciliation Mediation and Arbitration (CCMA), which appointed the Arbitrator to arbitrate the dispute. At the commencement of the arbitration, it was confirmed that it was common cause: that the Employee was a supervisor who had joined the Applicant on 18 April 2006 and that the issue to be decided was what in labour law parlance called historical inconsistency.[1]

[4] As called upon to decide the fairness of the dismissal, the Arbitrator had to use the following basic guideline, schedule 8 of the Code of Good Practice on Dismissal (the Code):

"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."

[5] According to the transcripts, issues (a), and (b) (i) and (ii) of the Code seemed were not in dispute, as the Arbitrator indicated that he had to decide the inconsistency part of the inquiry. By default, the appropriateness of sanction becomes an issue once the inconsistency issue has to be decided.

[6] The Employee used one Ms Mphephu (Ms Mphephu) as his comparator. So, the Employee had a burden to show similarities between his and that of Ms Mphephu.

[7] The Applicant presented uncontested evidence of Mr Homan, which is summarised thus: one of the Employee's responsibilities was to safeguard all employees' safety in his department. So was required to keep all the files intact and ensure that all employees sign all the necessary documentation relating to safety in the department. Therefore, it was his duty to ensure that all his staff were made aware of safety regulations. In May 2017, one of the employees supervised by the Employee was injured and spent months in hospital. This incident is associated with the Employee's non-compliance with the standing policies. As a result, an investigation was done, which subsequently established that the Employee was not adhering to safety policies, as required. In terms of the policy, the offences that the Employee was found guilty of are dismissible ones unless convincing mitigating circumstances are presented.

[8] Mr Homan further testified that he was the initiator in the respective disciplinary hearings of Ms Mphephu and the Employee's; that Ms Mphephu was found guilty on "different charges", which resulted in the Applicant demoting her. Furthermore, he indicated that at that time, Ms Mphephu was still new at her post, required further training, and immediately rectified her shortcomings. In the Employee's matter, dismissal was warranted because the Employee presented no mitigation justifying unorthodox approach as the Applicant's policy calls for dismissal. On the contrary, many aggravating circumstances to the Employees disadvantage supported the dismissal; for example, he cited the casualty mentioned above. Even after months from the latter incident, the Employee failed to mend his shortcomings.[2]

The grounds and applicable principles

[9] There are several attacks against the arbitration award. For example, the Applicant reiterates that the arbitration award is one that a reasonable decision- maker could not have made, considering the evidence before him, primarily uncontested evidence summarised in the supplementary affidavit, which deals with evidence of both Messrs Homan and (Deeron) Meyer. The latter being the chairperson in the disciplinary hearing of the Employee.

[10] It is also contended that the Arbitrator committed a reviewable irregularity in concluding that allegations against Ms Mphephu were more serious than those against the Employee, and the evidence does not support this finding.

[11] The Labour Appeal Court (LAC), in Absa Bank Limited v Naidu and Others,[3] in deciding on inconsistency principle and deliberating on the role that this principle plays in determining the fairness of a dismissal, held as follows:

"[36] However, it ought to be realised, in my view, that the parity principle may not just be applied willy-nilly without any measure of caution. In this regard, I am inclined to agree with Professor Grogan when he remarks as follows:

'[T]he parity principle should be applied with caution. It may well be that employees who thoroughly deserved to be dismissed profit from the fact that other employees happened not to have been dismissed for a similar offence in the past or because another employee involved in the same misconduct was not dismissed through some oversight by a disciplinary officer, or because different disciplinary officers had different views on the appropriate penalty.' (Own emphasis)

"[42] 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 that 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 on the belief that they would not be dismissed. It 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. As stated earlier, I reiterate, there are varying degrees of dishonesty and, therefore, each case will be treated on the basis of its own facts and circumstances."

[12] It is trite that inconsistency challenge will fail in circumstances whereby an employer successfully shows that an employee and his comparator personal circumstances and severity of misconduct in question are different. As this Court in Southern Sun Hotel Interests (Pty) Ltd v CCMA and others,[4] referred with approval, what the LAC said in Early Bird Farms (Pty) Ltd v Mlambo Early Bird Farms (Pty) Ltd v Mlambo[5] as follows,

"An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors"

[13] Firstly, I need to indicate that the Arbitrator's conclusion that the allegations against Ms Mphephu were more serious than the Employee faced are not supported by evidence in the transcribed records Employee in these proceedings has not presented opposing submissions thereof. In the circumstances, I accepted that no such evidence presented; therefore, the Arbitrator committed an error of facts that affects the arbitration award because it influenced his findings.

[14] In this matter, it was uncontested evidence that the circumstances of the Employee and that of Ms Mphephu were not the same, as highlighted above. As indicated in the preceding paragraph that the Arbitrator made an error in introducing something that was not before him, which as a result affected the outcome as now he ruled against the Applicant instead of using probabilities in assessing as to whether the uncontested evidence supports the Applicant's case that the comparator circumstances cannot be compared with those of the Employee. Therefore, I conclude that the error regarding not considering the uncontested evidence makes the award being reviewable.

[15] Considering the totality of the circumstances herein, it is clear that the Applicant in applying discipline against the Employee did not act inconsistently.

Substitute the award or remit the matter to CCMA?

[16] Based on the above, I confirm that the Employee committed the offence charged with as it is clear that when parties approach the CCMA were only concerned about inconsistency, which by default the appropriateness of sanction. In the notice of motion, the Applicant asked that the Court substitute the award with the order that the dismissal was substantively fair alternatively refer the dispute to the CCMA for a hearing de novo. I can only move with the former, only if I am satisfied that the parties before the Arbitrator had full opportunity to ventilate issues that the Arbitrator was called upon to decide.

[17] I am not satisfied that this Court will be in a position to decide the appropriateness of sanction. My reasons are as set out hereinafter.

[18] CCMA hearings are hearings de novo, as the LAC in County Fair Foods (Pty) Ltd v CCMA & others[6] held thus,

"... Indeed the Arbitrator held, correctly in my view, that the issue to be decided by him was whether the dismissal of the third respondent was unfair. It remains our law that it lies in the first place within the province of the employer to set the standard of conduct to be observed by its employees and determine the sanction with which non-compliance with the standard will be visited, interference therewith is only justified in the case of unreasonableness and unfairness. However, the decision of the Arbitrator as to the fairness or unfairness of the employer's decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the Arbitrator. To that extent the proceedings are a hearing de novo. (Own emphasis)

[19] A significant part of the records indicates that the Employee's representative, a union official, delved on the issue of whether or not the Employee committed the misconduct, this continued until the Arbitrator warned him that the issue was not about that but was about inconsistency-seemingly based on the agreement before the arbitration. Moreover, it is not clear as to whether the Arbitrator explained to the parties the process that had to be followed, as indicated in the preceding paragraph, moreover that an employee, when challenging the fairness of a dismissal, has a right to place before a Commissioner evidence that was not before the employer at the time of dismissal especially mitigating factors-if this is one of the contested issues as in casu.

[20] Based on the above, it is my considered view that I would not be in the interest of justice to pronounce as to whether the dismissal was an appropriate sanction or not. I am of the view that it would be in the interest of justice that parties be allowed to indicate before a Commissioner as to whether they wish to stick with what is contained in the disciplinary chairperson's report and /or to make further representations in respect of this issue. I say this because even during cross- examination of Mr Homan, the Employee's representative did not deal with this issue but focus on the irrelevant issue (whether the Employee committed the offence or not).

[21] In the result, the following order is made:

1. The arbitration award issued by the Second Respondent under case number LP779-18 and dated 28 August 2018 is reviewed and set aside, and replace with the following order:

"The Employer in dismissing the Employee applied the rule consistently;

2. The matter is remitted to the Third Respondent to be decided de novo, before any Commissioner on the following terms:

(a) the only issue to be decided is whether or not the dismissal was an appropriate sanction, and if not, substitute it with an appropriate sanction,

(b) both parties be allowed, if they wish, to lead evidence only in respect of the issue of the appropriateness of sanction.

(c) The transcribed records and supporting documents used during the review application may be used at the CCMA for purposes of this inquiry."

3. Should the First Respondent decides not to partake in the inquiry mentioned in order 2 above, then dismissal as a sanction is confirmed.

4. No costs order is made.

S. Mabaso

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Mr Maeso

Instructed by: Shepstone & Wylie Attorneys.

For the first Respondent: Adv F Baloyi

Instructed by: Mohale Incorporated

[1] cf. Gcwensha v CCMA & others [2006] 3 BLLR 234 (LAC) paras 37 and 38

[2] Cf. Samancor Limited (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration Limpopo and Others [2020] 9 BLLR 908 (LAC) at para 25 where it was held: “[25] In his award, the second respondent recorded that ‘the employees were aware of the rules that the rules were valid and reasonable and that the dismissal is an appropriate sanction for the contravention of the rules’. This was a concession wisely made in the light of 3 (4) of the Code of Good Practice – Dismissal. While generally it is not appropriate to dismiss an employee for a first offence, this default position does not have to be followed if the misconduct is serious, which includes the wilful endangering of the safety of others. Where the conduct of employees carries a high risk of potential danger to the safety of others which is certainly the case when there is manifest disregard for safety regulations at a mine, dismissal based on the conduct of which the five employees have been found guilty is clearly justified.”

[2] Cf. Samancor Limited (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration Limpopo and Others [2020] 9 BLLR 908 (LAC) at para 25 where it was held:

“[25] In his award, the second respondent recorded that ‘the employees were aware of the rules that the rules were valid and reasonable and that the dismissal is an appropriate sanction for the contravention of the rules’. This was a concession wisely made in the light of 3 (4) of the Code of Good Practice – Dismissal. While generally it is not appropriate to dismiss an employee for a first offence, this default position does not have to be followed if the misconduct is serious, which includes the wilful endangering of the safety of others. Where the conduct of employees carries a high risk of potential danger to the safety of others which is certainly the case when there is manifest disregard for safety regulations at a mine, dismissal based on the conduct of which the five employees have been found guilty is clearly justified.”

[3] [2015] 1 BLLR 1 (LAC)

[4] (JR 243/05) [2009] ZALC

[5] [1997] 5 BLLR 541 (LAC)

[6] [1999] 11 BLLR 1117 (LAC)