Employment law update – Can historical inconsistency be invoked for serious criminal conduct?

December 1st, 2022

In National Education Health and Allied Workers Union on Behalf of Buqa v Department of Health (Western Cape) and Others (2022) 43 ILJ 2363 (LC), the employee was employed by the Department of Health (the employer) at the New Somerset Hospital. While on duty, the employee stole a backpack belonging to a patient while the patient attended the hospital for a surgery. Having been charged with misconduct, the employee pleaded guilty and was subsequently dismissed.

The employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration. During the arbitration proceedings, the employee submitted that he had stolen the backpack from the kit room at emergency care while the patient was in surgery because his son needed a backpack for school. His shift had ended when the patient’s husband arrived to collect the backpack. When he returned to work the following morning and found out that everyone was looking for the backpack, he sought to return the backpack to the patient.

Having admitted guilt, the crux of the employee’s argument before the arbitrator was that in dismissing him for misconduct the employer had acted in an inconsistent manner in relation to other employees who were found guilty of similar acts of misconduct. The arbitrator did not agree with the employee’s argument and found that the dismissal was fair.

The employee took the arbitrator’s award on review and alleged, among other things, that the arbitrator had disregarded evidence that the employer had previously condoned incidents of theft in the workplace and failed to appreciate the leniency that the employer had previously afforded employees who had committed similar acts of misconduct. Ultimately, the employee contended that the arbitrator arrived at a decision that no reasonable decision maker could have arrived at.

The Labour Court found that the employee had been brazen about his misconduct, which was criminal in nature. It appeared that the employee was comfortable being frank about his criminality as he believed, or had been advised, that because his colleagues were not dismissed for similar misconduct, a precedent had been created by the employer from which he too should benefit. In this regard, the employee’s representative argued that when the principle of inconsistency is raised, the employer was required to show that there was no bias and to justify why the employee was treated differently, which the employer had failed to do.

The court referred to the judgment of Capitec Bank v CCMA and Others (LAC) (unreported case DA5/2019, 30-9-2022) in which the Labour Appeal Court reiterated the principles relating to inconsistency. In this regard, it was held that historical inconsistency requires an employer to apply a penalty consistently with the way it has been applied to other similarly situated employees in the past. However, where an employer can demonstrate a legitimate basis on which to differentiate between employees, whether due to the seniority, the severity of the misconduct or other material factors, inconsistency will not have been proved.

The court held that a material factor would include cases where the underlying misconduct amounts to a serious criminal offence, such as theft. It cannot be that employees can engage in blatant criminal conduct and then argue that they should not be dismissed because others who had committed similar conduct were not dismissed. To make matters worse, the employer in this case was a state hospital and is required to provide services to the most vulnerable in our society. The patient visited the hospital to access these services.

The court also noted that there was no requirement to warn employees that dishonest practices may lead to dismissal as this would suggest that employees need to be reminded of the core values of honesty and integrity. In this case, the employer was not prepared to tolerate the theft by the employee, and it should not be obliged to do so because of the lenient approach which it and other hospitals may have previously adopted.

In summary, the court held that historical inconsistency cannot be invoked by an employee when the underlying misconduct involves serious criminal conduct. Moreover, it is irrelevant whether the employer informed its employees that the conduct will no longer be tolerated and may lead to dismissal.

The review application was dismissed with no order as to costs.

Is a trade union entitled to represent employees employed in an industry falling outside the scope of its constitution?

In National Union of Metalworkers of South Africa and Others v Afgri Animal Feeds (Pty) Ltd [2022] 10 BLLR 902 (LAC), approximately 137 employees embarked on an unprotected strike after Afgri Animal Feeds (the employer) who refused to grant the National Union of Metalworkers of South Africa (NUMSA) organisational rights. Consequently, most of the striking employees were dismissed, while others received final written warnings for their conduct.

Thereafter, NUMSA referred a dispute to the Labour Court (LC) seeking an order that the dismissals of the employees be declared unfair. The employer opposed the dispute and raised two preliminary points. First, that the referral was late and had not been condoned and second, that both NUMSA and its legal representative lacked locus standi to represent the employees because there was no proof that the dismissed employees were NUMSA members as they were employed in a sector, which fell outside the scope of NUMSA’s constitution.

While the LC granted condonation for the late referral, it held that membership of a trade union by an employee who is employed in a sector which falls outside of the scope of the trade union’s constitution is invalid and void ab initio. A voluntary association, such as NUMSA, is bound by its constitution and since the employees were employed in a sector, which fell outside the scope of the constitution, NUMSA lacked the requisite locus standi to refer the matter and to represent the employees in their unfair dismissal claim before the LC. The employer’s second preliminary point was thus upheld. As a result, NUMSA took the LC’s judgment on appeal.

The Labour Appeal Court (the LAC) noted that the employees were entitled to refer the dispute to the LC because the reason for their dismissal was alleged to be their participation in an unprotected strike. NUMSA had been cited as the first applicant based on s 200 of the Labour Relations Act 66 of 1995 (the LRA), which provides, inter alia, that registered trade unions may act in their own interests or in the interests of their members. Further, NUMSA’s legal representative was permitted to represent both NUMSA and the employees by virtue of s 161 of the LRA. The issue in this case was thus whether NUMSA could do so when the employees were employed in an industry falling outside the scope of NUMSA’s constitution.

The LAC held that it is not the business of an employer to concern itself with the relationship between individual employees and their trade union. Save for matters involving collective bargaining, the relationship between a trade union and its members is a private matter. In the context of arbitration proceedings, it is for employees to decide whether they want a particular trade union to represent them.

With reference to the Constitutional Court judgment of Lufil Packaging (Isithebe) (A division of Bidvest Paperplus (Pty) Ltd) v Commission for Conciliation, Mediation and Arbitration and Others [2019] 11 BLLR 1212 (LAC), the LAC held that the exercise of organisational rights by a trade union, with which that judgment was concerned, and unfair dismissal disputes were clearly distinguishable. Where a trade union operates within a constitutional scope in bargaining collectively on behalf of its members, the trade union relies on its knowledge of the industry and employees may seek membership of the trade union for this reason. However, where an employee elects to be represented by a trade union in an unfair dismissal dispute, different considerations apply, such as fairness and the right of the employee to representation.

The LAC found that the relationship between a trade union, as a voluntary association, and its members is consensual in nature. If a trade union accepts an employee as a member outside of the scope of its constitution, it does so only for purposes of representing that employee in a particular dispute. Unlike organisational rights disputes, the employer has no interest in holding the trade union to the terms of its constitution. This is because the trade union’s scope of operation relates to the industries in which the union is entitled to organise and bargain collectively. That scope does not bar the representation of a trade union member in an individual dispute and to find otherwise would be manifestly unfair.

In the circumstances, the LAC held that the LC had erred in finding that the employees’ membership and NUMSA’s referral was invalid and that NUMSA lacked locus standi to represent the employees.

The appeal was upheld with no order as to 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 2022 (Dec) DR 40.