NUFBWSAW obo Mhlambi v Coca-Cola Beverages South Africa (Pty) Ltd and Others (JR 1610/20) [2023] ZALCJHB 327 (23 November 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JR 1610 / 20

In the matter between: NUFBWSAW obo SIPHELELE MHLAMBI Applicant And COCA-COLA BEVERAGES SOUTH AFRICA (PTY) LTD First Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent BONGE MASOTE N.O. (AS COMMISSIONER) Third Respondent

Heard: 22 August 2023

Delivered: 23 November 2023

Summary: CCMA arbitration proceedings – review of proceedings, decisions and award of arbitrator – s 145 of LRA 1995 – review test considered – entails determination of conduct of arbitrator, gross irregularities and reasonable outcome

Evidence – evaluation and determination thereof – proper assessment of evidence by arbitrator – no basis to interfere with arbitrator’s conclusions on the evidence

Dismissal – dishonesty – principles and evidence considered – conduct of employee dishonest – not necessary for employer to establish intention to be dishonest – no justification for conduct of employee – constitutes serious misconduct – dismissal justified

Inconsistency – principles considered – no case of inconsistency established by applicant – finding of arbitrator that no inconsistency proven reasonable and justifiable

Review of award – conclusion of arbitrator reasonable – arbitration award upheld

JUDGMENT

SNYMAN, AJ

Introduction

[1] The applicant has brought an application to review and set aside an arbitration award of an arbitrator appointed by the Commission for Conciliation, Mediation and Arbitration (CCMA) to arbitrate an unfair dismissal dispute between the applicant and the first respondent. In terms of this award, the third respondent, as the duly appointed CCMA arbitrator, determined that the dismissal of the individual applicant by the first respondent was substantively and procedurally fair. The application has been brought by the applicant in terms of section 145 of the Labour Relations Act (LRA)[1].

[2] The arbitration award of the third respondent, dated 1 October 2020, was received by the applicant on 2 October 2020. In terms of section 145(1) of the LRA, any review application must be brought within six weeks from date the party seeking to challenge the award on review, having become aware of the award. The applicant’s review application was brought on 4 November 2020, which is thus well within this time limit. The applicant’s review application is therefore properly before this Court for determination. The application has been opposed by the first respondent.

[3] I will now proceed to decide the applicant’s review application by first setting out the relevant background facts in this matter. For ease of reference, I will refer to the individual applicant in this judgement as ‘Mhlambi’, whenever specific reference is required to be made to the individual applicant.

The relevant background

[4] The first respondent is a well-known multinational soft drink manufacturer and wholesaler. The current matter arose at the Heidelberg plant of the first respondent, at which the first respondent manufactures Valpre products. Mhlambi was stationed at the Heidelberg plant.

[5] Mhlambi commenced employment with the first respondent in December 2011, and at the time of her termination of employment, she was employed in the position of maintenance planner. Mhlambi reported directly to the plant engineer, which in this case was firstly Stanley Makuma (Makuma), and then, as from 30 June 2019, Ntokozo Maseko (Maseko).

[6] Mhlambi was from the outset fully trained. The training records of Mhlambi were produced, and this indicated that Mhlambi underwent MDRM training on 7 and 8 March 2018, followed by PM training on the SAP system on 12 to 16 March 2018.

[7] At the time when the issues giving rise to this case arose, Mhlambi had been seconded to look after the stores, as the engineering storeman had been dismissed for reasons unrelated to the current case. This position was in fact at a lower level than her ordinary position, making her in essence overqualified for the job. Her MDRM and SAP PM training fully equipped her for this seconded position. In particular, the specific tasks associated with the seconded position were, in a nutshell, the placing of orders for parts needed in the plant, the managing and control at the movement of such parts, and then to do the data capturing relating to those parts. Mhlambi was fully trained and equipped to fulfil these tasks.

[8] The first respondent’s parts control and ordering process is strictly regulated. All these regulatory measures were in the end undisputed evidence. All movement of parts is regulated and captured on the SAP system in place at the first respondent. The SAP system would track when parts stock is taken out and where it went to. The system also tracks if stock was taken out following the proper and correct stock procedures. It is therefore critical that the prescripts of the SAP system at all times be adhered to.

[9] The evidence relating to how parts were ordered was also in the end undisputed. This involved obtaining firstly a quotation, then completing an order form signed off by the plant engineer, conducting an ABC analysis (this involves an evaluation of how critical the part is and how often it would be required to be ordered), and once all of this is approved, an SAP item is allocated on the system for the part with a specific part number associated with that part. The SAP item also records the part description, costs, last purchase and reason for the purchase of the part. Of importance in casu, part numbers are specific and unique to an individual and specific part, and one part number can never be used to order / purchase

another part.

[10] On 24 October 2019, an internal audit was conducted on the part stores, which included a physical stock count. Numerous discrepancies were found. In particular, it was found that Mhlambi had deliberately used part numbers not associated with parts she had ordered. Or, in other words, she ordered parts by using part numbers that had nothing to do with the parts she ordered. That undermined the entire stock control system. In addition, the parts ordered would as a result of this conduct not be captured on the system under the right part numbers, which basically compromised the integrity of the entire system.[2] This led to a stock loss, in the end, of some R742 000.00, at the time Mhlambi was charged.

[11] When Mhlambi was initially asked about her ordering of these parts, she explained that to get new part numbers took too long, so she then decided to use other store item part numbers to order parts needed for the maintenance shutdown, which was behind schedule and delayed. These part numbers were also referred to as ‘E numbers’. She also contended, at the time, that she was not trained on the ordering of parts, which contention was false, considering the

training records produced by the first respondent.

[12] However, and in the end, Mhlambi was compelled to concede that she was well aware that it was not permitted to order parts using the part number of other parts and then capturing the purchases under those wrong part numbers. She however then offered another explanation for her conduct. This explanation was that Makuma had instructed her to order and capture the parts in this manner using other E numbers, and she simply followed this instruction, which she believed she was obliged and entitled to do. Whether or not such an instruction was given, and if it was given whether she should have followed it, was one of the central issues in dispute in this case, and will be dealt with later in this judgment.

[13] On 15 November 2019, Mhlambi was suspended. The suspension was accompanied by a notice to attend a disciplinary hearing to be held on 26 November 2019 where she would face two charges of misconduct. The first charge as one of gross negligence, being that the inventory taken from the engineering stores was not posted nor issued on SAP, resulting in stock variances. The second charge was gross dishonesty, relating to the ordering of parts using part numbers and part descriptions that were altered, in order to purchase other parts, to the value of R740 000.00. The disciplinary hearing commenced on 26 November 2019 and ultimately concluded on 3 December 2019,

[14] Following the conclusion of the disciplinary hearing on 3 December 2019, Mhlambi was dismissed on the same day. She then pursued her dismissal as an unfair dismissal dispute to the CCMA on 22 December 2019. This dispute was unsuccessfully conciliated on 29 January 2020, whereafter the dispute ultimately came before the third respondent for arbitration on 22 June, 3 and 4 August, and 16 and 17 September 2020.

[15] In her award dated 1 October 2020, the third respondent found against Mhlambi, finding that her dismissal was both substantively and procedurally fair. The applicant was not satisfied with this outcome, leading to the review application now before me, which I will now turn to deciding by first setting out the applicable test for review.

The test for review

[16] The test for review is trite. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[3] the Court held that ‘the reasonableness standard should now suffuse s 145 of the LRA’, and that the threshold test for the reasonableness of an award was: ‘… Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...’[4]. This means that the award in question is tested against the facts before the arbitrator to ascertain if it meets the requirement of reasonableness.[5] In conducting this test it is necessary for the Court to enquire into and consider the merits of the matter and the entire evidence on record in deciding what is reasonable.[6] In Herholdt v Nedbank Ltd and Another[7] the Court said:

A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable …

[17] In sum, applying the correct review test has a logical chronology. First, it is ascertained whether there is a failure or error on the part of the arbitrator. Second, and only where there is such a failure or error, it must be shown that the outcome arrived at by the arbitrator was unreasonable, based on all the evidence and issues before the arbitrator, even if it may be for different reasons or on different grounds as those referred to by the arbitrator.[8] It would only be if the consideration of the evidence and issues before the arbitrator shows that the outcome arrived at by the

arbitrator cannot be sustained on any grounds, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[9]

Grounds of review

[18] An applicant for review is required to identify and articulate the grounds for review in the founding affidavit, and the review

application is then decided only on the review grounds as so pleaded. It is not for this Court to make out a case for review for an applicant. As was said in Northam Platinum Ltd v Fganyago NO and Others[10]:

‘… The basic principle is that a litigant is required to set out all the material facts on which he or she relies in challenging the

reasonableness or otherwise of the commissioner's award in his or her founding affidavit …’

[19] Because the record of the proceedings before the arbitrator is essential to deciding a review application, and this record only comes to hand after the review application has been filed, a review applicant is afforded the opportunity, after the record has been discovered, to supplement the grounds of review in a supplementary affidavit.[11] In this case, the applicant filed a supplementary affidavit on 19 March 2021.

[20] In the founding affidavit and supplementary affidavit, the applicant in essence raised four main grounds of review. The first ground of review was that the third respondent failed to consider that Mhlambi was given an instruction by Makuma to use the part numbers concerned, and she was not aware that what she was doing was unlawful and considered herself obligated to carry out the instruction. The second ground of review was that she was given insufficient training for her tasks to manage the store. The third ground of review raised was that the first respondent had inconsistently applied discipline, as other employees who also transgressed in this regard were not disciplined. And finally, the applicant attacks the credibility and probability findings made by the third respondent.

[21] What is clear from the above review grounds is that the applicant does not challenge the findings of the third respondent that Mhlambi had in fact transgressed the first respondent’s rules and systems by ordering and capturing the parts in the manner that she did, for the simple reason that this was never in dispute. The applicant also does not challenge the findings of the third respondent relating to procedural fairness, on review, so this issue will not be considered further. What in essence remains in issue in this application on the review grounds as pleaded is only whether Mhlambi could be excused for her undeniable misconduct,

because of the alleged instruction given to her, the lack of sufficient training, and the inconsistent application of discipline.

Analysis

[22] It must be reiterated that it was never disputed in the arbitration that Mhlambi had indeed transgressed (committed the misconduct) as contemplated by the two charges against her. At the outset of the arbitration, the third respondent enquired from the representative of Mhlambi if she disputed having committed the offences, and the representative answered that she did not. The third respondent then enquired from Mhlambi’s representative on what basis she was challenging the substantive fairness of her dismissal, and the answer was that she was given an instruction by the plant engineer to act as she did, and there was inconsistent application of discipline in that other employees also transgressed but were not disciplined. The fairness of the sanction of dismissal was not disputed. The third respondent as arbitrator was bound to only determine these issues in dispute as identified above.[12] In ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others[13] the Court held:

‘… Having regard to the facts set out above, it is clear that both parties were entirely at idem as to what the disputes between them were and in fact defined such disputes in their respective opening addresses. The applicant then sought specifically to present its case based on such defined disputes. In my view, the first respondent was bound by this, and could only determine the dispute on this basis. …’

[23] I will firstly dispose of the applicant’s general ground of review relating to the credibility and probability findings of the third respondent. There can be no substance in this ground of review. It is an important part of the duties of an arbitrator to assess the credibility of the witnesses that may testify before him or her in an arbitration.[14] As a general proposition, it must be said that this Court should be loath to interfere with credibility findings of arbitrators. The fact is than an arbitrator has the benefit of having the witnesses testify before him or her, and can then observe much more than just the verbal testimony given. The fact is that determining credibility is far more than just the obvious task of listening to testimony.[15] A review Court, only seized with a record, does not have this important benefit. As held in Standerton Mills (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others:[16]

‘… Credibility issues are indeed difficult to determine in motion proceedings such as these. The commissioner is undoubtedly in a better position to make a finding on this issue. …’

[24] It is my view that this Court should only interfere with credibility findings made by CCMA arbitrators, if the evidence on the record

before the Court shows that the credibility findings of the arbitrator are entirely at odds with or completely out of kilter with

the probabilities and all the evidence actually on the record, considered as a whole.[17] A proper conspectus of the record in casu simply does not establish a basis for interference on these grounds. The testimony presented by the first respondent’s witnesses

appeared credible and concise, and they corroborated one another, where needed, in all material respects. They were willing to make concessions where needed. Their testimony was also corroborated by the undisputed documentary evidence. The first respondent’s

witnesses also emerged largely unscathed from what was often long winded and irrelevant cross examination.

[25] Where it came to the credibility of the testimony of Mhlambi, a consideration of the record leaves me convinced that she fared poorly. She was often evasive and argumentative, and was not even willing to concede the basic uncontested proposition that to use the wrong part number, per se, would be wrong. The manner in which she attempted to avoid the obvious concession that an e-mail of 30 April 2019 was not an instruction to use incorrect E numbers, is lamentable. It also took considerable effort to get her to even concede that she used

incorrect E numbers to order parts, despite this in reality never having been placed in issue at the outset of the arbitration. She attempted to raise complaints relating to procedural unfairness never placed in issue when the arbitration started. Several aspects of her testimony were never put to the first respondent’s witnesses under cross examination to answer. I have little hesitation in concluding that Mhlambi was a witness completely lacking in credibility.

[26] Overall considered, and to prefer the testimony of Maseko and Makuma over the testimony of Mhlambi would not be open to legitimate criticism. Therefore, little fault can be found in the third respondent, as a general proposition, preferring the evidence of the first respondent’s witnesses. As such, the applicant’s review ground in this respect is devoid of substance, and must fail.

[27] This brings me to the next ground of review raised by the applicant, being the issue of the alleged instruction. There was an obvious dispute of fact whether Makuma instructed Mhlambi to use the incorrect E numbers to order parts. The first respondent called Makuma to testify. He disputed that he ever gave any such instruction to Mhlambi. As stated above, there was no reason to reject this evidence, and it certainly resorted well within the bands of what may be considered to be reasonable for the third respondent to have accepted it.

[28] More importantly however, it should be considered how Mhlambi herself chose to prove the existence of such an instruction. First, she relied on an e-mail dated 30 April 2019 written by Makuma, as constituting the instruction to her by Makuma to use the incorrect E numbers to order parts. It was put to Maseko by the applicant’s representative under cross examination that this e-mail was the instruction for her to use the E numbers, and Maseko answered that as far as he was concerned, having had proper regard to the content of the e-mail, nothing in this e-mail constituted such an instruction. But interestingly, this same proposition was never put to Makuma under cross examination, which is perplexing, considering he was the author of it. Instead, it was put to Makuma that the instruction he gave Mhlambi was a verbal instruction. In giving her own evidence in chief, Mhlambi relied both

on an alleged verbal instruction by Makuma, as well as the e-mail of 30 April 2019. All the aforesaid certainly renders Mhlambi’s

version questionable.

[29] Further, and when simply considering the content of the e-mail of 30 April 2019 as it stands, it just cannot be said that it constituted any kind of instruction for Mhlambi to use the incorrect E numbers to order parts> the e-mail only relates to the writing off of spares, and indicating how this was to be done. Makuma in fact testified about this e-mail, explaining that where it comes to writing off spares, a stock count must first be done and finance must also approve such write off, and all he was doing in the e-mail

was providing direction on how parts were to be written off, once the process was completed. He stated specifically that: ‘…

So these spares has nothing to do with her changing the material numbers to whatever she wanted to do …’ (sic). This testimony was never challenged under cross examination. In sum, this e-mail by no stretch of the imagination could be seen to be an instruction to Mhlambi to use the part number of one part to order another part. Mhlambi had to ultimately concede under cross-examination that this was not an e-mail instruction to use the incorrect E numbers. All the aforesaid considerations would, in my view, play havoc with Mhlambi’s version that she was instructed to use incorrect E numbers to order parts, and would most certainly damage her credibility to the extent that the clear and uncontradicted testimony of Makuma that no such instruction was ever given to her must prevail.

[30] It in any event makes little sense, on the probabilities, that a plant engineer would instruct a subordinate to act in a manner that completely undermines the first respondent’s entire stock control system. There is a critical operational reason why part numbers must always be matched to parts orders. The facts in casu illustrate this reason, being that what is nothing else but a deliberate circumvention of the system resulted in a stock loss or stock discrepancy in the sum of R740 000.00. It is unlikely that Mhlambi would ever receive any instruction that would result in this state of affairs.

[31] I am convinced, as was the third respondent, that Mhlambi clearly knew what she was doing was wrong. Initially, and before the matter

progressed into her being disciplined, she offered the explanation that the process of getting part numbers for new parts to be ordered takes too long, she was overworked, and considering she needed to order maintenance parts with haste, she decided to manipulate the system. The version of an instruction being given to her only came out later. It was in the end conceded that Mhlambi knew that each individual part must have its own part number, as this is clearly common sense and obvious. So, it had to follow that ordering a part using another part number must have been known by Mhlambi to be wrong. She therefore cannot rely on any instruction from the plant engineer (Makuma), accepting for the purposes of argument it was given, as a defence for her misconduct, as she could simply refuse to carry it out.[18] As held in SA Commercial Catering and Allied Workers Union and Others v Mahawane Country Club[19]:

‘Although an employee is obliged to obey an instruction from his employer failing which he may be disciplined, this does not apply to a situation where the employee's refusal does not constitute a breach of the employee's contract of employment or where the employee's conduct cannot be said to be unlawful. …’

[32] Because reliance on an instruction was an indefensible proposition, the defence of Mhlambi shifted to one of justification for her conduct on the basis that she was not adequately trained. But initially, and in the disciplinary proceedings, she contended she was not trained at all. This is in itself a contradiction. As the third respondent in my view rationally and reasonably appreciated, ‘… the Applicant presented contradictory evidence on the issue of training …’. What Mhlambi did, in a nutshell, was to deny she was trained at all, when she was confronted with being disciplined. But in the disciplinary hearing, her training records were produced, which indicated the contrary. She then does a volte face and admits she was trained, but states she was not trained enough. When it is then established that she was actually trained in the processes relating to part ordering, she states that she needed further practice on this. This entire state of affairs in presenting an explanation to exonerate her is unsatisfactory, and must have a material detrimental impact on her credibility. In the end, and as the third respondent in my view actually correctly found: ‘… It is evident that the Applicant tried to use the issue of not being trained to justify why she falsified the description of the parts. However, in this attempt, she found herself between a rock and a hard place. If she says she was not trained, there is proof that she was. If she says she was trained, then she knew how to do the job and deliberately falsified the description of parts …’.

[33] Maseko testified that Mhlambi was fully trained to carry out the tasks bestowed on her relating to the ordering and capturing of parts. There was no reason to reject his testimony in this regard, especially considering the training Mhlambi at least on the undisputed facts did receive. Ironically, and when giving her evidence in chief, Mhlambi gave no evidence about being inadequately

trained, and certainly did not contradict most of the testimony by the third respondent’s witnesses in this regard. Under cross examination, she conceded that she received MDRM training with does involve part ordering.

[34] In my view, the issue of insufficient training of Mhlambi was nothing but a red herring. It was a contrived explanation designed to cover for the eventuality of Mhlambi’s primary defence of simply carrying out an instruction not carrying the day. It was not even raised as a specific issue when the issues in dispute were limited at the commencement of the arbitration, and in reality

should not even have played a part in deciding this case. When giving her evidence, Mhlambi did not even testify about it. But the third respondent did consider it, and found it to be without substance. There is simply no legitimate cause or reason to upset this conclusion of the third respondent.

[35] Mhlambi suggested that she was not dishonest as she never knew the instruction allegedly given by Makuma was unlawful, and therefore she had no intention to mislead the first respondent. This suggestion is devoid of substance. Overall, Mhlambi principally tried to justify what she had done on the basis of a contrived and even false defence. That must put paid to any contention that she had no intention of being dishonest. In Nedcor Bank Ltd v Frank and Others[20], the Court held that: ‘Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently.

…’.[21] The Court went further and referred with approval to the Canadian case of Lynch & Co v United States Fidelity & Guaranty Co [1971] 1 OR 28 (Ont SC) where it was held that: ‘… "Dishonest" is normally used to describe an act where there has been some intent to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage or the dictionary meaning.' The Court in SA Society of Bank Officials and Another v Standard Bank of SA and Others[22] considered the aforesaid ratio in Nedcor Bank and came to the following conclusion:

‘Deceitfulness can manifest itself in various forms, which include providing false information, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the employment relationship, thereby justifying summary dismissal.’

[36] The existence of deception of the kind that establishes dishonesty as misconduct can be established by considering firstly whether the employee provided false information to the employer, and secondly whether the conduct of the employee, considered as a whole, deceived his or her employer as to the true state of affairs.[23] It not necessary to specifically prove intention. For example, in SA Society of Bank Officials supra, the charge brought by the employer against the employee was that she recorded information on the teller’s cash balance specification, which she knew was false, in that she recorded takeover figures which misrepresented the true nature of the position regarding the cash in her safe and thus falsified the bank’s

records. The comparisons to the case in casu are apparent. According to the Court, the question was whether the employee’s actions were ‘intrinsically dishonest’,[24] which the Court accepted to be the case.

[37] Another applicable example is the judgment in Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others.[25] In that case, the employer had a policy prohibiting employees from accepting gifts, favours and hospitality from clients and suppliers of the employer, unless it was disclosed on a gift register. It was alleged that the employee, being aware of the terms of this policy, went on a hunting trip with a friend, which friend represented a supplier of the employer. The friend then also transported an item of game hunted by the employee home for him. The employee did not disclose any of this in the gift register. The employee was charged with dishonesty in that he accepted and failed to declare this hospitality from a supplier in terms of the company policy. In concluding that the employee was indeed guilty of dishonesty, the Court held:[26]

‘Turning then to the Labour Court's findings regarding dishonesty, I consider it to have erred in finding that there was no deception on the first respondent's part because he cooperated fully with the investigation and that there was no reason for him to have considered a favour from a friend as falling within the ambit of the prohibition. The appellant had, in this regard, succeeded in proving that the first respondent knew full well that the favour in question fell within the ambit of the brief — its being for this reason that he was anxious to establish, at the arbitration hearing, that he had not received the brief before the hunting trip — when it was clear, on the objective facts, that he had received the brief on 1 July 2005 and, accordingly, had full knowledge of the total prohibition against accepting gifts, hospitality and favours from suppliers before the hunting trip. Although the only plausible inference to be drawn from these proved facts is that the first respondent was dishonest, the Labour Court simply failed to comprehend this.’

[38] In the end, it has been regularly held that dishonesty where it comes to falsification of documents by recording false information thereon or therein, is the kind of gross dishonesty that constitutes misconduct of a sufficiently serious magnitude so as to justify dismissal.[27] Mhlambi has thus earned her dismissal for what she did.

[39] This only leaves the issue of inconsistency. It is an element forming part of the whole enquiry in deciding whether the employer, in deciding to dismiss the employee for misconduct, acted fairly, and ultimately boils down to a case by case value judgment.[28] In Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[29] the Court held as follows:

‘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. …’

[40] Inconsistency arises in two possible contexts.[30] The first context is where other employees committed the same misconduct in the past, however those employees were not dismissed at that time. The second context is where more than one employee currently committed the same misconduct, however only one or some of all the transgressing employees were dismissed (disciplined), but not others. It is the latter scenario raised by the applicant in casu.

[41] The well-known judgment of SA Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd,[31] aptly determined the principles applicable to deciding inconsistency, as being: (1) Employees must be measured against the same standards (like for like comparison); (2) Did the chairperson of the disciplinary enquiry conscientiously and honestly determine the misconduct; (3) The decision by the employer not to dismiss other employees involved in the same misconduct must not be capricious, or induced by improper motives or by a discriminating management policy (in other words this conduct must be bona fide); and (4) A value judgment must always be exercised[32].

[42] In general, inconsistency as a consideration is intended to protect employees against arbitrary conduct by the employer. Objective

difference in circumstances is thus an important consideration. In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[33] it was said:

‘… 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 …’

[43] Inconsistency must be properly raised and dealt with in the arbitration proceedings, in such a manner so as to identify the other employee(s) who may have been treated differently, as well as the basis for the contention that the dismissed employee should not have been treated differently. As described by the Court in Bidserv supra[34]:

‘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 …’

[44] The employee party has the evidentiary burden to establish this inconsistency. In Comed Health CC v National Bargaining Council for the Chemical Industry and Others[35] the Court said:

‘It is trite that the employee who seeks to rely on the parity principle as an aspect of challenging the fairness of his or her dismissal has the duty to put sufficient information before the employer to afford it (the employer) the opportunity to respond effectively to the allegation that it applied discipline in an inconsistent manner. …’

[45] Returning to the case in casu, the third respondent found no substance in the applicant’s case of inconsistency. She reasoned that there was a lack of evidence to support such a case. In particular, she considered that Mhlambi was the only one who falsified the description of the parts. She also found that even if the involvement of the other employees Mhlambi referred to was considered, they performed different functions to that of Mhlambi. And finally, the third respondent had regard the evidence of Maseko that there was simply no evidence to substantiate charging anyone else. The question now is whether these conclusions of the third respondent are sustainable on review, considering the facts in this case and the above legal principles.

[46] In my view, the third respondent’s findings on inconsistency are not only reasonable, but actually quite correct. First, and as the third respondent properly appreciated, there is no like for like comparison in this case. The tasks fulfilled by Mhlambi

was entirely different from the tasks fulfilled by any of the other employees that Mhlambi contended should have been disciplined. This was confirmed by Maseko in his testimony in some detail, and he was hardly challenged on this under cross examination Further, some of these other employees purportedly conducted an audit in September 2019 and found nothing wrong, which was clearly a failure considering what was actually found to be the case in the comprehensive audit and stock take in October 2019. But even if these employees failed, it is difficult to understand how this can be compared to what Mhlambi did. As the third respondent correctly appreciated, Mhlambi, who had the onus to do so, never presented evidence to establish in what respects these other employees had failed, and how this could be comparable to her conduct.

[47] Certainly, there is no evidence that any one of these other employees falsified records, as Mhlambi did. On Mhlambi’s own version, it was only the plant engineer and herself that could have used the E numbers. She was also, on the undeniable evidence,

the only one that used the incorrect E numbers. Once it is true that Makuma never gave Mhlambi any instructions as she contended to be the case, then there would be no basis to discipline him. Why Maseko should have been disciplined is unclear, as on the undisputed facts he was not aware of what Mhlambi was doing, only came into the plant after the fact, and only started approving purchase orders in September 2019, which is after the events giving rise to this case. Finally, and even if it may be said that the first respondent should have disciplined other employees as well, this cannot exonerate Mhlambi, when applying a value judgment which properly considers what she had done and how she falsely tried to justify her conduct, and there being no evidence nor case made out by her that the applicant capriciously, or induced by improper motives or by applying a discriminating management policy, decided not to discipline other employees. And finally, itt appears from the disciplinary hearing records that Mhlambi did not even raise inconsistency in the disciplinary hearing.

[48] All the aforesaid considerations leave little doubt that the third respondent’s conclusions relating to the applicant’s inconsistency challenge being unproven and simply having no substance, constituted a reasonable outcome, based on the facts before her and by virtue of the application of the relevant legal principles relating to inconsistency.

Conclusion

[49] Therefore, based on all the reasons set out above, I conclude that the third respondent’s arbitration award is simply not reviewable. I am satisfied that the third respondent’s findings of facts are properly supported by the evidence before her.

Her views concerning Mhlambi and her conduct are justified, and her conclusion that no case of inconsistency had been made out is unassailable. Insofar as the issue of the outcome arrived at by the third respondent may be considered on the basis of it being

reasonable or unreasonable, there is in my view no doubt that it would comfortably resort within the bands of reasonableness as

required, in order to be sustainable on review. The applicant’s review application thus falls to be dismissed.

Costs

[50] This then leaves only the issue of costs. In terms of the provisions of section 162(1) of the LRA, I have a wide discretion where it comes to the issue of costs. I consider what the Court said with regard to costs in employment disputes in Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[36], being that when making a costs order in a labour matter, a Judge is required to consider that costs are not ordinarily awarded, the principle of fairness must be considered, and due regard must be had to the conduct of the parties. In casu, I do not believe any of the parties acted unreasonably in bringing this application, or in opposing the same. I finally consider that the applicant lost her job and is an individual involved in litigation with a large company.[37] I can see no reason why the ordinary principle as set out above that costs do not follow the result should carry the day. Therefore, I am satisfied in this case that no order as to costs is appropriate and fair.

[51] In the premises, the following order is made:

Order

1. The applicant’s review application is dismissed.

2. There is no order as to costs.

S. Snyman

Acting Judge of the Labour Court of South Africa

Appearances: For the Applicant: Ms P Govender of PG Attorneys Instructed by: Sikunyana Inc Attorneys For the Third Respondent: Advocate V Mndebele Instructed by: Moeletsi Attorneys

[1] Act 66 of 1995 (as amended).

[2] Maseko, in his testimony, gave a pertinent example. He explained that if a part number of a pen is used to purchase three sanitizers, the system would show three pens being in stock, but this stock would not exist. In addition, there would be no sanitizers reflected as being in stock, when there should be three. The difficulties this would cause is quite obvious.

[3] (2007) 28 ILJ 2405 (CC).

[4] Id at para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 96.

[5] See Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at paras 43.

[6] Id at para 41.

[7] (2013) 34 ILJ 2795 (SCA) at para 25. See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at para 14; Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC) at paras 15 – 17; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16.

[8] Fidelity Cash Management Service (supra) at para 102.

[9] See Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.

[10] (2010) 31 ILJ 713 (LC) at para 27.

[11] See Rule 7A(8) of the Labour Court Rules; Brodie v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 608 (LC) at para 33; Sonqoba Security Services MP (Pty) Ltd v Motor Transport Workers Union (2011) 32 ILJ 730 (LC) at para 9; De Beer v Minister of Safety and Security and Another (2011) 32 ILJ 2506 (LC) at para 27.

[12] As specifically said in Filta-Matix (Pty) Ltd v Freudenberg and Others [1997] ZASCA 110; 1998 (1) SA 606 (SCA) at 614B-D: 'If a party elects to limit the ambit of his case, the election is usually binding …'.

[13] (2013) 34 ILJ 2347 (LC) at paras 61 – 62. See also Fidelity Cash Management Service (supra) at para 24; Tiger Brands Field Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others [2013] ZALCJHB 216 (13 August 2013) at para 71.

[14] As was said in Sasol Mining (Pty) Ltd v Ngqeleni NO and others (2011) 32 ILJ 723 (LC) at para 7: ‘… One of the commissioner's prime functions was to ascertain the truth as to the conflicting versions before him. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party's version. …’. See also Solidarity on behalf of Van Zyl v KPMG Services (Pty) Ltd and Others (2014) 35 ILJ 1656 (LC) at paras 7 – 8; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 945 (LC) at para 30; Coega Development Corporation (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2016) 37 ILJ 923 (LC) at para 63.

[15] In SFW Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) at para 5 the Court said: ‘…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…, (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. … a witness' reliability will depend, apart from the other 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. …’.

[16] (2012) 33 ILJ 485 (LC) at para 18.

[17] See National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 945 (LC) at para 31; Truworths Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2009) 30 ILJ 677 (LC) at para 25; Moodley v Illovo Gledhow and Others (2004) 25 ILJ 1462 (LC) at para 22; Kgoadi v Commission for Conciliation, Mediation and Arbitration and Others [2014] JOL 31908 (LC) at paras 51 – 52.

[18] In Maripane v Glencore Operations SA (Pty) Ltd (Lion Ferrochrome) (2019) 40 ILJ 1999 (LAC) at para 29, it was said: ‘… The reasonableness of any instruction also depends on its lawfulness and enforceability. It seems axiomatic that any instruction to do what is unlawful or in breach of a contractual term is not reasonable …’. See also Association of Mineworkers and Construction Union on Behalf of Mkhonto and Others v Commission for Conciliation, Mediation and Arbitration and Others (2023) 44 ILJ 1046 (LC) at para 14; Majatladi v Metropolitan Health Risk Management and Others (2013) 34 ILJ 3282 (LC) at paras 35 – 36.

[19] (2002) 23 ILJ 902 (LAC) at para 7.

[20] (2002) 23 ILJ 1243 (LAC).

[21] Id at para 15.

[22] (2022) 43 ILJ 1794 (LAC) at para 17.

[23] Compare Malapalane v Glencore Operations SA (Pty) Ltd (Goedgevonden Colliery) and Others (2018) 39 ILJ 2467 (LAC) at para 18.

[24] Id at para 19.

[25] (2015) 36 ILJ 1453 (LAC).

[26] Id at para 19.

[27] See Department of Home Affairs and Another v Ndlovu and Others (2014) 35 ILJ 3340 (LAC) at para 16; SA Society of Bank Officials (supra) at para 29; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (supra) at paras 42 – 44; Rainbow Farms (Pty) Ltd v Dorasamy NO and Others (2014) 35 ILJ 3462 (LC) at paras 14 – 17.

[28] SA Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd (1999) 20 ILJ 2302 (LAC) at para 29; Absa Bank Ltd v Naidu and Others (2015) 36 ILJ 602 (LAC) at paras 36 – 37; Consani Engineering (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 1707 (LC) at para 19.

[29] (2017) 38 ILJ 860 (LAC) at para 31.

[30] See Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 452 (LC) at para 10.

[31] (1999) 20 ILJ 2302 (LAC) at para 29.

[32] See SRV Mill Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 135 (LC) at para 23.

[33] (2010) 31 ILJ 452 (LC) at para 10.

[34] Id at para 31. See also Grindrod Logistics (Pty) Ltd v SA Transport and Allied Workers Union on behalf of Kgwele and Others (2018) 39 ILJ 144 (LAC) at para 47; Botsane v Anglo Platinum Mine (Rustenburg Section) (2014) 35 ILJ 2406 (LAC) at para 39.

[35] (2012) 33 ILJ 623 (LC) at para 10. See also Botsane (supra) at para 39; Banda v General Public Service Sectoral Bargaining Council and Others [2014] JOL 31486 (LC) at para 49; SA Municipal Workers Union on behalf of Abrahams and Others v City of Cape Town and Others (2011) 32 ILJ 3018 (LC) para 50.

[36] (2021) 42 ILJ 2371 (CC) at para 35. See also Zungu v Premier of the Province of Kwa-Zulu Natal and Others (2018) 39 ILJ 523 (CC) at para 25.

[37] Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2022) 43 ILJ 839 (LAC) at para 17.