This matter is a review application brought by Eskom (“the Applicant”), to review the conduct of Norman Mbelengwa (“the Second Respondent”), who sat as a Commissioner in the CCMA arbitration hearing of Sylvester Leiee (“the Third Respondent”), following the latter’s dismissal by the Applicant.
The Applicant alleges that the Second Respondent committed gross misconduct in failing to apply his mind to the issue of sanction during the above hearing, because he failed to take into account the reasons why the Applicant had dismissed the Third Respondent.
The reasons for the dismissal of the Third Applicant were that he did not plead guilty or show remorse at the disciplinary hearing that was held prior to his dismissal. The Applicant alleges, therefore, that the Second Respondent’s failure to consider these factors renders his final finding/award unreasonable and not one that a reasonable Commissioner faced with the same task would arrive at.
The Second Respondent found that the Applicant had failed to justify the difference in the sanction imposed on the
Third Respondent when compared to the sanction imposed on two other employees who were not dismissed by the Applicant for similar misdemeanours.
The Third Respondent was dismissed for failing to follow standard operating procedures which resulted in him omitting to earth a transformer and electrocuting himself leading to the loss of his arm.
The salient features of the two other cases of similar misconduct in issue in the arbitration, which the Third Respondent claimed were evidence of inconsistent treatment on the part of the Applicant were that the first colleague, “Madubaduba”, testified and expressed remorse and was found guilty. He was then issued with a sanction in the form of an unpaid suspension for 14 days. The other employee’s case, “Moloko”, who had worked on a live line without following the operating instructions (the same offence that Leiee was charged for) and allowed one of his team to work without a safety vest was concluded with the issuance of a 14 day suspension as a penalty albeit that there were no injuries or fatalities experienced as a result of his conduct.
It was held in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (701/2012)  ZASCA 97 that for a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by sec 145(2)(a)(ii) of the Labour Relations Act, the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. The existence of material errors of fact, as well as the weight and relevance to be attached to particular facts, cannot in and of themselves be sufficient for an award to be set aside.
It was also held in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & Others (JR 2006/08)  ZALC 66 that for a Commissioner’s failure to attach significance to certain evidence, the effect must be one that makes the conclusion untenable. A broad-based evaluation of the totality of evidence as opposed to a fragmented or piecemeal analysis (which defeats the review process) should instead be used.
It was held in this Court that the Second Respondent clearly did consider the Applicant’s reliance on the Third Respondent leaving his enquiry (which he did based on advice given to him by his representative when the chair refused a postponement) as a factor which played a role in its decision to dismiss him. He also considered the fact that the contrition shown by the other two employees at their enquiries had played a role in the decision. However, what was most concerning to the Second Respondent was that this consideration could not justify the gulf between the relatively light sanction imposed on them and the contrastingly heavy sanction imposed on the Third Respondent given the justifiable importance attached to compliance with standard operating procedures as a fundamental safety rule. Thus, the Second Respondent imposed what he believed was an appropriate sanction in the circumstances taking into account the fact that he could not accept the justification for the relatively lenient treatment meted out to the Third Respondent’s colleagues for similarly serious misconduct.
It was concluded that the Applicant had not demonstrated that the Second Respondent’s finding could be faulted on the basis that the finding was irrational for failing to attach significance to the factors which the Applicant attached overriding importance to, which werethat the Third Respondent did not plead guilty or show remorse at the disciplinary hearing.
This case shows that unless exceptional circumstances exist, sanctioning of misconduct by employees in the workplace must be meted out fairly, consistently and evenly.