Employment law update – Departing from a codified sanction

December 1st, 2019
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In Mushi v Exxaro Coal (Pty) Ltd Grootegeluk Coal Mine [2019] 10 BLLR 1134 (LAC), the employee, while driving an oversized coal haul truck, reported to his foreman that the shovel operator was loading the truck in an unsafe manner. His foreman nevertheless instructed him to continue loading and undertook to observe the loading process and informed the employee that he would board the truck at the loading area. The employee refused to obey his foreman’s instructions and as the foreman walked towards the loading area to board the truck, the employee maneuvered the truck towards his foreman, causing him to move out of the way.

At a disciplinary hearing, the employee admitted that he behaved improperly, but denied that he threatened the life of his foreman. The employer’s disciplinary code, which was stated to be a guideline only, provided for a final written warning for this type of misconduct. Notwithstanding this, the employer dismissed the employee for –

  • refusing to obey an instruction from his foreman;
  • committing unsafe acts while driving the truck; and
  • improper behaviour in operating the truck after his foreman was moving towards it. Aggrieved with his dismissal, the employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

At the CCMA, the parties agreed that the misconduct committed by the employee was common cause. Accordingly, the issues the arbitrator was required to determine was whether the sanction of dismissal was appropriate and whether the employee had been inconsistently treated because his foreman had also not been disciplined. While the arbitrator held that there had been no inconsistency, it found that the three charges levelled against the employee were ‘mutated’ of one another to make the misconduct appear more serious. There was also no dispute of fact that the misconduct in question was not a dismissible offence in terms of the employer’s disciplinary code. In the circumstances, and taking into account that the employee had been employed by the employer for a period of 24 years, the arbitrator found the sanction of dismissal to be inappropriate and awarded that the employee be reinstated retrospectively with a final written warning.

On review, the Labour Court took the view that the dismissal was fair and set aside the award on the basis that the employer had not been provided with an opportunity to address the issue raised by the arbitrator relating to the duplication of charges.

On appeal, the Labour Appeal Court noted that the parties had elected to approach the arbitration on the basis of two issues only, namely –

  • the appropriateness of sanction; and
  • whether there had been a consistent application of discipline. No oral evidence was led for the purpose of determining these issues and, as a result, the parties were limited to the documentary evidence placed before the arbitrator. The documentary evidence demonstrated that the employee had admitted to having behaved improperly in the manner he had operated the truck, but not to the other charges or that his conduct threatened the life of his foreman.

Having regard to the employer’s disciplinary code, which code was expressly stated to be a guideline only, the court noted that the appropriate sanction in cases of insubordination, misuse of property or improper behaviour was a final written warning. The court held that disciplinary rules are intended to create a degree of certainty and consistency in the application of discipline in the workplace. It follows that departures from a disciplinary code should be justified. Even where the disciplinary code is expressed to be a guideline only, there must be a plausible and reasonable justification for the sanction imposed, having regard to the gravity of the misconduct and the relevant aggravating or mitigating factors.

In the present matter, for the employer to have imposed a more severe sanction than that provided for in its disciplinary code, it was required to prove that it was justified and fair. There was no evidence to demonstrate this. The arbitrator had correctly found that the three charges all arose from the same incident and had taken all relevant circumstances into account before determining that the sanction of dismissal was too harsh. The court held that the arbitrator could not be faulted for finding that reinstatement with a final warning was appropriate when there was no evidence that the misconduct was so serious that it made a continued employment relationship intolerable.

The appeal was upheld with costs.

‘Wielding’ weapons during a strike

In Pailprint (Pty) Ltd v Lyster NO and Others [2019] 10 BLLR 1139 (LAC), employees employed by Pailprint at its factory in KwaZulu-Natal took part in a national strike called for by the National Union of Metalworkers of South Africa (NUMSA). In response to the impending strike, Pailprint displayed its picketing policy on company notice boards, which policy was agreed to by NUMSA, and stated, among other things, that ‘no weapons of any kind are to be carried or wielded by the picketers’.

Notwithstanding the picketing policy, certain employees were found to be carrying sticks, a PVC pipe and a sjambok while picketing with a group of strikers outside Pailprint’s premises. The employees concerned were charged with ‘brandishing or wielding dangerous weapons during [the] strike’ and, following a disciplinary hearing, were dismissed. NUMSA referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) on behalf of the employees.

At the CCMA, photographs of the injuries sustained by two individuals during the course of the strike were admitted into evidence. While the arbitrator agreed that the objects carried by the employees were dangerous, he found that the employees had not been shown to have ‘brandished’ or ‘wielded’ the weapons as alleged in the charges, but rather that they had merely been carrying them. They were accordingly only in partial breach of a rule. Moreover, the policy did not indicate the consequences of a breach of the policy. Having regard to Pailprint’s disciplinary code, which provided for a sanction of a final written warning in respect of assault but dismissal for the brandishing or wielding of weapons, the arbitrator found the dismissals to be inappropriate and reinstated the employees with final written warnings.

Dissatisfied with the award, Pailprint took it on review. The Labour Court (LC) found no reason, however, to interfere with the award as it was of the view that it was not unreasonable.

On appeal, the Labour Appeal Court held that the main issue was whether the arbitrator had committed an irregularity that led him to a decision, which a reasonable decision-maker could not reach. It was common cause that the employees carried weapons in the forms of sticks, a PVC pipe and a sjambok while striking. This conduct was in contravention of an express rule, which barred weapons of any kind from being ‘carried or wielded’ by picketers. The purpose of the rule was clear, given the evidence of violent attacks carried out against other employees during the strike. Consequently, the court held that it was difficult to understand how the arbitrator could have concluded that the rule had only been partially breached when it expressly prohibited the conduct.

In assessing the sanction, the arbitrator was required to approach the dispute impartially with due regard to all the circumstances, including the reason for the imposition of the sanction and the basis of the employees’ challenge thereto. Having regard to the reasons advanced by the arbitrator, the court found that appropriate regard was not given to the importance of the rule breached or the reason Pailprint imposed the sanction of dismissal.

The court held that an unduly technical approach to the framing of charges of misconduct should be avoided. In finding that the employees were not ‘brandishing or wielding’ dangerous weapons as they had been charged but were carrying weapons in their hands, the arbitrator adopted precisely such an approach. The decision to have a sjmabok, a PVC Pipe and sticks at a protest was not only a clear breach of the rule but was aimed at sending a threatening message to others. Within the context of the nature of the strike violence committed, the court found that the seriousness of the breach was overlooked by the arbitrator.

Pailprint was entitled to prohibit weapons from the strike in order to preserve the safety of its employees and premises. Nothing put forward by the employees concerned justified a finding to the contrary. The constitutional right to strike does not encompass a right to carry dangerous weapons during a strike which, by their nature, not only exposes others to the risk of injury, but also serve to threaten and intimidate.

Consequently, the arbitrator had committed a reviewable irregularity and the LC erred in finding that the decision of the arbitrator fell within the bounds of reasonableness.

The appeal was upheld with costs.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2019 (Dec) DR 33.