Makatshaba v Department of Education - Gauteng and Others (JR1699/18) [2021] ZALCJHB 308 (25 September 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 1699/18

In the matter between:

SC MAKATSHABA Applicant

and

DEPARTMENT OF EDUCATION - GAUTENG First

Respondent

PANELIST MA HAWYES N.O Second Respondent

EDUCATION LABOUR RELATIONS COUNCIL Third

Respondent

Determined on the Papers

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for hand-down is deemed to be 25 September 2021 at 15:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] In this opposed application, the applicant seeks an order reviewing and setting aside the arbitration award dated 10 August 2018, issued by the second respondent (Arbitrator), acting under the auspices of the third respondent, the Education Labour Relations Council (ELRC).

[2] The applicant was an educator at Steve Tshwete Secondary School in the Tshwane South District of the Gauteng Department of Education (The Department) since 2001, and was also an elected office bearer (Site Steward) of SADTU. Allegations of acts of misconduct were made against the applicant related to;

a) Assaulting a member of the School Governing Body (a Mr Malatji), by slapping him in the face;

b) Conducting himself in an improper, disgraceful and unacceptable manner by pointing a finger at the School Principal.

[3] The incident in question that led to ultimate dismissal of the applicant took place on 23 September 2016. A pre-hearing meeting was held on 22 March 2017 to afford the parties an opportunity to exchange documents and agree on the future conduct of the disciplinary enquiry. At that meeting, the applicant had indicated that he would deny the allegations related to assault, but will plead guilty in regards to what he termed ‘an exchange of words’ with the Principal.

[4] Following the disciplinary enquiry, the chairperson in a ruling issued on 19 June 2017 found the applicant guilty on the two allegations, and issued him with a final written warning, a fine of R9000.00, and a referral to the EAP for anger management counselling. It is significant to note that in its closing argument on behalf of the applicant, SADTU had conceded that the applicant had pleaded guilty to the first charge relating to the pointing of fingers at the Principal[1].

[5] The HOD of the Department (SGD) was aggrieved by what he considered to be a lenient sanction meted out to the applicant, and instead sought that he be dismissed, or at the most, be issued with a final written warning and a suspension without pay for three months. Having considered the appeal and after affording the applicant an opportunity to make representations, the MEC for Education, who is also the Appeal Authority, had on 14 December 2017, set aside the disciplinary enquiry’s chairperson’s sanction, and substituted it with that of a dismissal.

[6] For reasons that are not clear, despite the final sanction, the applicant had continued with his normal duties until he was ultimately dismissed on 24 January 2018. Aggrieved by the dismissal, the applicant referred a dispute to the ELRC on 8 February 2018, contending that his dismissal by the Department was procedurally and substantively unfair. When attempts at conciliation failed on 5 March 2018, the matter came before the Arbitrator for determination.

[7] At the arbitration proceedings, four witnesses testified on behalf of the Department, viz, the School Principal, Mr AM Mthimunye; the Deputy Principal, Mr Stanley Dololo, the Chairperson of the School Governing Body, Mr Max Malatji, and a learner, Mr Nkululeko Buthelezi. The applicant testified in his case and also called upon one of the learners, Ms Elizabeth Mampya to testify on his behalf.

[8] It is not necessary to outline the details of what may have triggered the incident in question other than to point out that it was common cause that the School had received information around 19 September 2016 that one of its learners had passed away. The learners at the school had formed a Representative Council of Learners (RCL). Buthelezi as one of its members together with Mampya and another learner had on 23 September 2016, approached Gololo, who was other than being the Deputy Principal, also a member of the School’s Bereavement Committee, to discuss plans for commemoration of the deceased learner. They had suggested that as a result of the short notice of the bereavement, the learners would request that a prayer service be held on that day rather than a memorial service.

[9] Gololo then accompanied the learners to the Principal’s office to convey their request, where they also found Malatji, who was seated at another desk performing his SGB duties. As the applicant was also the class teacher of the deceased learner, he was then called to the Principal’s office to join the meeting and to be informed of the learners’ request. There was some disagreement between what the applicant had previously discussed with the Principal in regards to how the deceased should be honoured, and what the learners had requested. Buthelezi’s evidence was essentially that;

9.1 When the applicant arrived at the office, the Principal had informed him of the learners’ suggestion, and before the Principal could finish his explanation, the applicant started asking questions, and adopted an aggressive posture towards the Principal, shouting and also pointing a finger at him. At this turn of events, Mazibuko tried to intervene and to explain to the applicant what the learners suggestion was. The applicant would not listen to him, nor any such attempts made by Gololo.

9.2 As the shouting got louder, Malatji tried to intervene and requested that the learners should be spared the arguments and shouting. The applicant instead turned his attention to Malatji, angrily pointing a finger at him, telling him that he should keep quite as he was not a qualified teacher. At the point that the situation was becoming tense and when both the applicant and the Principal stood from their chairs as they were shouting louder, Gololo had intervened, and decided to escort the learners out of the Principal’s office.

9.3 Mazibuko testified that he did not see the alleged assault on Malatji by the applicant, as the learners were escorted out of the Principal’s office by Gololo. He further attributed the confusion and misunderstanding to the fact that the applicant had previously had a discussion with the Principal about how the commemoration should be arranged and what the learners’ request was. Buthelezi further testified that the misunderstanding that led to the shouting and finger pointing was attributed to the fact that the applicant did not let the Principal finish his explanation about the learners’ request and the final decision on the arrangements to be made. The applicant according to Mazibuko was of the view that the Principal was giving in to the learners’ demands and only sought to please them.

[10] The Principal’s evidence was to confirm Buthelezi’s version of events. The learners’ request was to have a prayer service rather than a memorial service given the short notice the bereaved family had informed the School. He had agreed with the learners that a 15 minute prayer service should be held in memory of the deceased learner, but had suggested that the applicant be called and informed since these arrangements had an impact on learning activities. The Principal confirmed that after the applicant was called to his office and was informed of the arrangement, he was upset about this idea not having been discussed before. The applicant then started shouting and insulting him, as he also pointed a finger at him. When Malatji tried

to intervene, the applicant turned his attention to him as already attested to by Mazibuko, and humiliated him in front of the learners, telling him that as a member of the SGB he had no right to interfere.

[11] When the situation was getting out of hand, Gololo decided to escort the learners out of the office after the applicant continued arguing with and shouting at him. As Gololo was escorting the learners out of the office, it was at that time that the applicant then slapped Malatji in his face.

[12] The Principal’s and Mazibuko’s version of events was corroborated by Gololo. He further added that as the principal was explaining the learners’ idea about the arrangements for the deceased, and before he could even finish, the applicant shouted and pointed a finger at the Principal, accusing him of being ‘hard headed’, as he listened to learners and gave in to their requests. Gololo confirmed that he, Mazibuko and Malatji tried to intervene without success as the applicant refused to listen to them and continued to shout and point a finger at the Principal. When Malatji tried to intervene, the applicant who was then seated stood up as if approaching him, and it is at that point that he had escorted the learners out of the office. As he did so, the applicant then slapped Malatji in the face. Gololo left the office at that point with the learners.

[13] Gololo’s cross-examination centred around the reason he had omitted the issue of the assault in his statement. He nonetheless insisted that the assault took place, and that the learners could not have seen it as he had already taken them out of the office, and he was following them out of the office when the assault took place.

[14] Malatji also corroborated the evidence of the previous witnesses. He confirmed having merely asked the Principal and the applicant not to shout at each other in front of the learners. It was at that point that the applicant told him as he pointed fingers at him, that he should not say anything as he was not a teacher, and thereafter slapped him in the face. Malatji testified that despite sustaining bruises on his face after the assault, he declined to pursue criminal charges against the applicant as advised, since he preferred to have the matter resolved internally.

[15] The applicant’s version of events was that after being informed of the passing of the learner, he reported the matter to the Principal around 19 September 2016, and had suggested that a memorial service be held for the learner and/or that the other learners should make some contribution to the bereaved family. The Principal was however against the idea as at the time of his passing, the deceased was no longer a learner at the school.

[16] He confirmed having been called to the Principal’s office on the day of the incident by one of the learners, Ms Mampya where he found the other learners, Malatji and Gololo. Upon arriving at the office, the Principal informed him that the learners wanted a memorial service, something which he had previously suggested and which was rejected by the Principal. When he questioned the Principal about the idea since he was initially against it, the former started banging on the table, and accusing him of not wanting to ‘listen’. It was at a stage when he was trying to explain something to the Principal that Malatji had something to the effect that, ‘not in front of the learners’. Gololo had then escorted him and the learners out of the office, and he thereafter went back to his class. The applicant denied having assaulted Malatji and contended that whilst at the office, he had only addressed himself to the Principal.

[17] Amongst other issues raised by the applicant in his defence was that discipline was inconsistently applied as two other educators were not disciplined for assaulting learners. Since those educators had a fine imposed on them, he would have expected the same sanction. The applicant further contended that it could not be said that there was a breakdown of a trust relationship in circumstances where he was allowed to perform his duties for two years after the incident until his dismissal.

[18] Mampya corroborated the applicant’s evidence that it was in fact the Principal who was aggressive towards him. She conceded that the applicant had also raised his voice towards the Principal, but only in reaction to the latter. She also denied that the applicant had responded when Malatji intervened during the shouting. She confirmed that she did not see the assault on Malatji as Gololo took them out when the applicant was arguing with the Principal.

[19] The Arbitrator concluded that;

19.1 On the evidence of the three witnesses called by the Department, viz, Malatji, Gololo and Mthimunye, the applicant had clearly assaulted Malatji. Since the two learners who had testified were escorted out of the office, they could not have witnessed the assault by the applicant on Malatji;

19.2 The Department’s witnesses had also confirmed and corroborated each other that the applicant had repeatedly pointed his finger at the Principal, and the applicant’s testimony to the contrary must be rejected as being improbable, more particularly since he was loud, argumentative and evasive when answering questions;

19.3 The applicant’s arguments in regards to inconsistent application of discipline were to be rejected as the facts of this case were distinguishable from the examples he had cited.

19.4 In regards to the question of a breakdown of the trust relationship, the incident of the assault in question was a serious breach of educator policies and procedures, especially in a professional environment. The applicant failed to show respect to the Principal and management of the school, especially in front of the learners. The applicant was observed to have ‘anger issues and could not control his unbridled rage’, which seriously impacted on the trust relationship.

19.5 The mere fact that the disciplinary process had taken long to be finalised did not imply that the seriousness of the misconduct in question was diminished. The relationship of trust between the applicant and the Department as the employer had broken down, making the dismissal appropriate in the circumstances.

[20] The applicant seeks that the award be reviewed on the grounds that the Arbitrator reached a decision that is not reasonable, and that he had committed misconduct in relation to his duties in the conduct of proceedings. The complaints in this regard are that the Arbitrator failed to consider certain material evidence in relation to the conclusions he had reached; misconstrued evidence in relation to the inconsistency argument and breakdown of a trust relationship; and relied on ‘side comments’ which were not properly before him.

[21] The test on review is fairly settled. The enquiry is whether the decision reached by the Arbitrator is one that a reasonable decision-maker could not reach, more specifically in the sense that the award is supported by reasons[2]. Furthermore, it is expected of the arbitrator to apply his/her mind to all the evidence, and a failure to do so may constitute an irregularity if it shows a misconception of the true enquiry, or results in an unreasonable outcome[3]

[22] The standard of proof remains that of a balance of probabilities, and the question that should be answered ultimately is whether the probabilities favoured a conclusion that the Department had not discharged its onus in proving the fairness of the dismissal of the applicant. To the extent that the Arbitrator was confronted with disputed facts, the applicable test when assessing such evidence is trite as set out in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and Others[4].

[23] It is not necessary to set out all the submissions made on behalf of the Department in opposition to the review application, other than to emphasise that its principal submissions are that at all the grounds of review advanced by and on behalf of the applicant lacked merit, and that the Arbitrator’s award fell within a band of reasonableness.

[24] The starting point in applying the above legal principles to the facts of this case is that it ought to be reiterated that the review Court should not follow a piecemeal approach in determining whether an award is susceptible to a review, but should consider whether the arbitrator dealt with the substantial merits of the case, and whether holistically viewed, the decision was reasonable based on the evidence that was adduced[5]. Unfortunately the applicant’s grounds of review demonstrates this piecemeal approach frowned upon, and which in effect amounts to nick-picking.

[25] The grounds of review are replete with allegations that the Arbitrator ignored this or that piece of evidence, of failed to apply his mind to that evidence. The allegations related to applicant having conducted himself in an improper, disgraceful and unacceptable manner by pointing a finger at the Principal in my view ought to be disposed of firstly on the applicant’s own concessions as submitted on his behalf by SADTU in its closing argument prior to the initial sanction being imposed. The mere fact that in these proceedings it was the applicant’s case that he had merely pleaded guilty to ‘an exchange of words’ is neither here nor there. The ‘exchange of words’ was not a charge that he was required to answer to.

[26] Further dispositive of the submissions made on behalf of the applicant in regards to this allegation is that despite his denials, four witnesses, viz. the Principal, Gololo, Malatji and the learner, Mazibuko, all confirmed that upon the applicant being called to the Principal’s office, the mood had suddenly changed when he came in. On these witnesses’ version, the applicant was the aggressor as soon as he came into the office, had shouted and pointed a finger at the Principal, and had refused to even let him finish what he was trying to explain. The mere fact that Mazibuko as a learner even tried to calm down the applicant as a teacher in my view speaks volumes about his conduct at the time.

[27] The suggestion by the applicant and Mampya that it was in fact the Principal who was the aggressor as he had started the argument and banged on his desk does not in my view take the matter any further. Even if it were accepted from Malatji’s evidence that both the applicant and the Principal were guilty of shouting at each other, hence he told them not to behave in that manner in front of the learners, the question remains whether the applicant’s response was appropriate in the circumstances, necessitating the intervention of Mazibuko, Gololo and Malatji.

[28] It has long been held that in deciding the real dispute between the parties, arbitrators or the Court must ignore unnecessary counterclaims, and reach the desired outcome based on the evidence that was properly placed before him[6]. In this case, to the extent that the applicant had in any event pleaded guilty to the charge in question, and had at the arbitration

proceedings denied having made such a concession and instead sought to sugar-coat his concession, this in my view clearly goes to his credibility.

[29] On the whole however, and based on the evidence led before the Arbitrator, the most probable conclusions to be reached as the Arbitrator had done, was that there was no reason to believe why four witnesses in the same room would have sought to connive to falsely implicate the applicant. It follows that the Arbitrator had reached a reasonable and unassailable conclusion that indeed the offence of the applicant having conducted himself in an improper, disgraceful and unacceptable manner by pointing a finger at the Principal had been established by the Department.

[30] The applicant was also alleged to have assaulted Malatji, by slapping him in the face. Under Item 3 of the Code of Good Practice: Dismissal[7], an assault by its very nature is deemed to be a serious form of misconduct at the workplace. This is so in that it involves the

intentional application of unlawful force to the person of another.

[31] There is no doubt that in this case, the Arbitrator as required of him in terms of the test laid out in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and Others[8], had dealt with the issues surrounding the credibility of the various factual witnesses; their reliability; and the probabilities, and that based on this approach, he had correctly accepted the evidence led by the Principal, Gololo and Malatji that indeed there was an assault on Malatji. The reasons given by the Arbitrator are sound as he had properly considered all of the evidence before him and reached conclusions based on a proper construction of that evidence as a whole. There is no basis to attack his findings as a trier of facts and observer of proceedings, that the applicant was argumentative and evasive under cross-examination.

[32] The evidence of the Principal, Mazibuko, and Gololo, which the Arbitrator had no reason to doubt, was that during the heated arguments and finger pointing by the applicant, the latter had at some point when Malatji tried to intervene, told him in an angry manner that he should keep quite as he was not a qualified teacher. Mazibuko had testified that the situation became tense after Malatji also tried to intervene, with both the applicant and the Principal stood up from their chairs. It was at that point that Gololo intervened and escorted the learners out of the Principal’s office. Mazibuko did not notice the assault, as it took place at the time that he, Mampya and the other learner were being escorted out by Gololo. Clearly the applicant’s main witness, Ms Mampya, could also not have witnesses the assault as she was part of the learners’ delegation that was escorted out by Gololo. Her evidence was that she did not see the assault, and not that it did not take place.

[33] Malatji, Gololo and the Principal all testified that they saw the assault on Malatji by the applicant. On the other hand, all that the applicant could come up with was a bare denial without more. In my view, the Arbitrator correctly concluded upon a consideration of the probabilities and the evidence before him, that the assault on Malatji did take place. This is by all accounts supported by the chain of events after the applicant was called to the Principal’s office. It appears that he was indeed in a foul mood as evident from his finger pointing and aggression towards the Principal. Malatji, who was trying to calm things down when he was then subjected to forms of humiliation and abuse by the applicant as he essentially told him to shut up as he was not a teacher. It follows from the aggression, disrespect and animosity that the applicant had shown towards the Principal and Malatji, that the probabilities are indeed overwhelming, that from his aggressive posture throughout, he had indeed slapped Malatji in the face as described by all the three witnesses.

[34] Too much time was dedicated in cross-examination of Malatji to the fact that he did not lay a criminal charge against the applicant or go to a doctor to examine his bruises. His explanation however was that despite being advised to open a criminal case, he had indeed gone to the police station but decided against it, since the school has a code of conduct and rules which could be utilised to deal with the matter, rather than have the matter blown out of proportion[9]. In my view, Malatji’s explanation for not pursuing a criminal charge against the applicant is plausible. Nothing can be read into these omissions, since in Malatji’s view, that was not the best route to deal with the incident. It follows that the allegations of an assault on Malatji by the applicant were proven.

[35] The allegations of inconsistent application as the Arbitrator had correctly found, could not assist the applicant’s case in any manner. It has been repeatedly stated that 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, but that it is not the only factor to take into account in that process. That factor is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss[10].

[36] Davis JA in Nyathikazi v Public Health and Social Development Sectoral Bargaining Council and Others[11] aptly summed up the legal position in regards to the parity principle as follows;

‘In short, the parity principle may well mean that in the previous case which is invoked in support of the application of an argument concerning discriminatory discipline, then the gravity of the initial disciplinary offence had not been properly appreciated. In such circumstances, it may be unjustified to invoke the parity principle, where an employee has committed a serious offence against the employer and the only defence raised is that in a previous case a wrong decision had been arrived and so that the employee’s

misconduct in the subsequent case can be overlooked…’

[37] In rejecting the arguments surrounding inconsistency, the Arbitrator correctly concluded that the facts of the case before him were distinguishable from the two examples that the applicant had cited. These included two teachers who were found guilty of assaulting learners. By all accounts, an assault of a learner by a teacher cannot be comparable to an assault by a teacher on a parent, let alone the Chairperson of the SGB. Even if it were to be accepted that in all instances an assault was a key factor, the circumstances point to the applicant having been the aggressor throughout, having shouted and pointed fingers at both the principal and Malatji, and having conducted himself in the most appalling manner in front of learners. What initially was a solemn request by learners to honour their colleague was turned into a farce by the applicant for reasons best known to him. The mere fact that in the other incidents of assault of learners by educators the latter ended up with lesser sanctions cannot other than the fact that the cases are distinguishable, make the applicant insulated from his egregious conduct.

[38] A final consideration in this case was the issue of a breakdown of a trust relationship between the applicant and the Department. The contention that there was no breakdown of the trust relationship because the Department had not demonstrated evidence in that regard does not take the applicant’s case any further either. It is now trite that a breakdown in a trust relationship between an employer and an employee can be established without the necessity of evidence being led in that regard, particularly in circumstances

where such a breakdown can be inferred from the nature and gravity of the proven misconduct[12]. It has already been stated that the conduct of shouting and pointing fingers at both the Principal and Malatji in front of the learners was appalling, as it had the effect of undermining the authority of the Principal. It is made worse by the fact that even a learner had to intervene and appeal to adults to calm down. To cap it all, the assault on Malatji had the obvious effect of not only degrading him as both a parent and Chairperson of the SGB, but also affected the interpersonal relations between the applicant, the Principal and general harmonious relations at the school for which the SGB is part of. Clearly the example that the applicant, an educator, set for the learners through his conduct was poor in the extreme.

[39] Nothing further can be read from the Department’s failures to timeously implement the final decision of the MEC. The mere fact that the applicant had continued to perform his duties for some time after the final decision or the fact that the disciplinary process took longer than necessary does not as properly stated by the Arbitrator, diminish the seriousness of the applicant’s conduct and its impact at the school. One cannot comment further on the Department’s own monumental failures in implementing its own disciplinary decisions.

[40] On the whole, I am satisfied that in line with what was stated in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine)[13], the Arbitrator employed a process that gave the parties a full opportunity to have their say in respect of the dispute; identified

the dispute he was required to arbitrate; understood the nature of the dispute he was required to arbitrate; dealt with the substantial

merits of the dispute, and arrived at a decision that another decision-maker could reasonably have arrived at based on the evidence.

[41] I have further had regard to the requirements of law and fairness in relation to an order of costs, and I am satisfied that such an order is not appropriate given the circumstances of this case.

[42] Accordingly, the following order is made;

Order:

1. The Applicant’s application to review and set aside the arbitration award issued by the Second Respondent under case number PSES790-17/19 GP is dismissed

2. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Representation:

For the Applicant: Isaac Teke Mothibe Attorneys.

Heads of Argument prepared by Adv. CP Naude

For the Third Respondent: The State Attorney.

Heads of Argument prepared by Adv. T Molokomme

[1] Page 75 of the Index to the Arbitration Proceedings

[2] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007) 28 ILJ 2405 (CC) at para 110; Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at para 43. See also Herholdt v Nedbank Ltd and Another (2013) 34 ILJ 2795 (SCA) at para 25

[3] Sol Plaatje Municipality v South African Local Government Bargaining Council and Others (PA12/19) [2021] ZALAC 24 at para 29

[4] 2003 (1) SA 11 (SCA) at para 14I–15E, where it was held that; 'To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about

the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court's credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.’

[4] 2003 (1) SA 11 (SCA) at para 14I–15E, where it was held that;

'To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about

the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court's credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.’

[5] See Madzunye v Maila N.O. and Others (JR762/15) [2017] ZALCJHB 334 at para 41

[6] CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 (CC); (2008) 29 ILJ 2461 (CC).

[7] Schedule 8 of the LRA

[8] Supra

[9] See Transcribed Record at pages 240 - 241

[10] Gcwensha v CCMA & Others [2006] 3 BLLR 234 (LAC) at para 42; Assmang (Pty) Ltd t/a Khumani Mine v Commission for Mediation, Arbitration and Conciliation and Others (JR2416/15) [2018] ZALCJHB 193 (24 May 2018); Bidserv Industrial Products ( Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2017] ZALAC 4; (2017) 38 ILJ 860 (LAC) at para 31, where it was held; ‘This Court sounded a warning on approaching the question of inconsistency in the application of discipline willy-nilly without any measure of caution. Inconsistency is a factor to be taken into account in the determination of the fairness of the dismissal but by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. A

generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated

differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made must be set out clearly.’ (Citations omitted)

[10] Gcwensha v CCMA & Others [2006] 3 BLLR 234 (LAC) at para 42; Assmang (Pty) Ltd t/a Khumani Mine v Commission for Mediation, Arbitration and Conciliation and Others (JR2416/15) [2018] ZALCJHB 193 (24 May 2018); Bidserv Industrial Products ( Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2017] ZALAC 4; (2017) 38 ILJ 860 (LAC) at para 31, where it was held;

‘This Court sounded a warning on approaching the question of inconsistency in the application of discipline willy-nilly without any measure of caution. Inconsistency is a factor to be taken into account in the determination of the fairness of the dismissal but by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. A

generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated

differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made must be set out clearly.’ (Citations omitted)

[11] [2021] ZALAC 11; [2021] 8 BLLR 778 (LAC); (2021) 42 ILJ 1686 (GJ) at para 26; See also Samancor Limited (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration Limpopo and Others (JA140/2018) [2020] ZALAC 17; [2020] 9 BLLR 908 (LAC); (2020) 41 ILJ 2135 (LAC), where it was held; ‘[23] The basis for the second respondent’s finding of inconsistency of discipline was not based on an error conducted at the disciplinary hearing of Ms Maseko. But, in any event, that she was acquitted cannot form the basis by which the finding of inconsistency of discipline can come to the aid of the other employees. This court made this point clear in SACCAWU & others v Irvin Johnson Limited [2008] BLLR 869 (LAC): ‘If a chairperson conscientiously and honestly, but incorrectly, exercise his or her discretion in a particular case in a particular way, it would 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 employee’s profit from that kind of wrong decision. In a case of plurality dismissal, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy.’’

[11] [2021] ZALAC 11; [2021] 8 BLLR 778 (LAC); (2021) 42 ILJ 1686 (GJ) at para 26; See also Samancor Limited (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration Limpopo and Others (JA140/2018) [2020] ZALAC 17; [2020] 9 BLLR 908 (LAC); (2020) 41 ILJ 2135 (LAC), where it was held;

‘[23] The basis for the second respondent’s finding of inconsistency of discipline was not based on an error conducted at the disciplinary hearing of Ms Maseko. But, in any event, that she was acquitted cannot form the basis by which the finding of inconsistency of discipline can come to the aid of the other employees. This court made this point clear in SACCAWU & others v Irvin Johnson Limited [2008] BLLR 869 (LAC):

‘If a chairperson conscientiously and honestly, but incorrectly, exercise his or her discretion in a particular case in a particular way, it would 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 employee’s profit from that kind of wrong decision. In a case of plurality dismissal, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy.’’

[12] See Impala Platinum Ltd v Jansen [2017] 4 BLLR 325; (2017) ILJ 896 (LAC). See also Woolworths (Pty) Ltd v Mabija and Others [2016] 5 BLLR 454 (LAC) at 458 para 21, where it was held that; ‘The fact that the employer did not lead evidence as to the breakdown of the trust relationship does not necessarily mean that the conduct of the employee, regardless of its obvious gross seriousness or dishonesty, cannot be visited with a dismissal without any evidence as to the impact of the misconduct. In some cases, the more outstandingly bad conduct of an employee would warrant an inference that trust relationship has been destroyed. It is, however, always better if such evidence is led by people who are in a position to testify to such break down. Even if the relationship of trust is breached, it would be but one of the factors that should be weighed with others in order to determine whether the sanction of dismissal was fair..’

[12] See Impala Platinum Ltd v Jansen [2017] 4 BLLR 325; (2017) ILJ 896 (LAC). See also Woolworths (Pty) Ltd v Mabija and Others [2016] 5 BLLR 454 (LAC) at 458 para 21, where it was held that;

‘The fact that the employer did not lead evidence as to the breakdown of the trust relationship does not necessarily mean that the conduct of the employee, regardless of its obvious gross seriousness or dishonesty, cannot be visited with a dismissal without any evidence as to the impact of the misconduct. In some cases, the more outstandingly bad conduct of an employee would warrant an inference that trust relationship has been destroyed. It is, however, always better if such evidence is led by people who are in a position to testify to such break down. Even if the relationship of trust is breached, it would be but one of the factors that should be weighed with others in order to determine whether the sanction of dismissal was fair..’

[13] (JA 2/2012) [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at paras 14 and 20