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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT PORT ELIZABETH

Case Number: P235/98

In the matter between

Sappi Fine Papers (Pty) Ltd t/a Adamas Mill Applicant

and

Z Lallie 1^st Respondent

A Madinga 2^nd Respondent

Paper Printing Wood and Allied

Workers Union 3^rd Respondent

The Director of the Commission for

Conciliation, Mediation and Arbitration 4^th Respondent

JUDGMENT

LANDMAN J

[1] Sappi Fine Papers (Pty) Ltd, trading as Adamas Mill (“Sappi”) has launched an application to review a decision of a commissioner of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”), Ms Lallie. Sappi also cites its former employee, Mr Madinga, as the second respondent, the Paper Printing Wood and Allied Workers Union as the third respondent and the director of the CCMA as the fourth respondent.

[2] According to the heads of argument which were submitted on behalf of the applicant, the following was common cause between the employer and Mr Madinga:

1. Mr Madinga was found in unlawful possession of property of the employer on 24 November 1997. This was the reason for his dismissal. The property which was found in his possession was a roll of industrial toilet paper (valued at R2,00) used in the production of the employer's paper products.

2. A disciplinary inquiry was held prior to the dismissal of Mr Madinga and the procedural fairness of his dismissal was not put in dispute and is not in issue.

3. Mr Madinga was dismissed from applicant's employment on 27 November 1997.

[3] The present application is one brought in terms of s145 of the Labour Relations Act 66 of 1995, to review the decision of the commissioner. It is submitted on behalf of the employer that, in the light of the findings of the commissioner, the conclusion to which she came establishes a clear basis for the review of her award. In making her award she said the following:

In terms of schedule 8 of the [the Labour Relations Act 66 of 1995] employers have a duty to apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past. I agree with the employer that the misconduct which led to the employee's dismissal is serious and warrants dismissal. I further agree that each case is decided on its merits and that there is a possibility that there were reasons which justified penalties short of dismissal in the cases of the two employees who were not dismissed for committing the same act of misconduct. The reasons were not disclosed by the employer and I am therefore not in a position to decide whether the employer was justified in treating the employee differently from the other two employees. The evidence before me shows that the employee in this case was dismissed for committing an act of misconduct for which other employees were not punished with dismissal. For this reason I find that the employer acted inconsistently by dismissing the employee. His dismissal was therefore substantively unfair.

[4] On behalf of the employer it was submitted that the conclusion to which the commissioner came is not one which is justifiable in the light of the test for justifiability set out in Carephone (Pty) Ltd v Marcus NO & Others [1998] 10 BCLR 1326 (LAC). The further submission was made that if the commissioner was correct then the applicant would be precluded in future from dismissing any employee found guilty of misconduct which was serious and which warranted dismissal if there had been any case in the past which came to another conclusion. It was said that this, in any event, defies the principle that each case must be decided on its own merits. The further submission was made that the commissioner did not have adequate or proper evidence before her to make any finding that the employer had acted inconsistently in applying a different sanction in the present case than had been applied in other cases to which reference was made at the hearing of this matter.

[5] This is a case involving a dismissal for alleged misconduct. In this particular instance the misconduct was proved. The question arises, was inconsistency an issue in this matter and if so, was there an onus on the employer to deal with it and to rebut it? In my opinion it is quite clear that the union, on behalf of Mr Madinga, placed this in issue. As regards the onus, the onus of proving that the dismissal was fair, and thus of rebutting the allegation of inconsistency, is one which rests squarely on the employer

[6] Inconsistency was raised in an appeal which followed on the disciplinary inquiry. Further, the issue of inconsistency was pertinently raised in form LR 7.11, the referral to the CCMA. In that form it was said: "The company is inconsistent in applying its policies". At the commencement of the arbitration the commissioner very carefully and very properly explained to the parties precisely how the arbitration proceedings would run and pointed out that evidence should be led in respect of every issue in dispute. When Mr Diyane of the union gave his evidence he provided, as far as he could, details of two cases involving other employees for more or less the same misconduct which did not result in them being dismissed. In my opinion, the issue of inconsistency was one that had to be dealt with. It had to be dealt with by the employer in order for it to acquit its onus. It did not do so. There are references in the papers to the fact that it was not entirely prepared to deal with the issues raised at the arbitration hearing. I find therefore that the commissioner was justified in finding that the substantive fairness of the dismissal had not been proven. Her findings are justifiable in the light of the Carephone decision to which I have referred above. In the premises this application for review is dismissed with costs.

A A LANDMAN

Judge of the Labour Court

DATE OF HEARING: 20 November 1998

DATE OF JUDGMENT: 24 November 1998

For the Applicant: Brian Bleazard Attorneys

For the 2^nd Respondent: Adv RB Wade

Instructed by: Gray & Moodliar

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