|The Appellant (“Mushi”) had been employed by the Respondent, Exxaro Coal (Pty) Ltd, (“Exxaro”) at Grootegeluk Coal Mine for 24 years. On 10 March 2015, Mushi was on duty driving an oversized coal haul truck. Mushi reported to his foreman that a shovel operator was loading his truck in an unsafe manner and the foreman undertook to observe the loading process. The foreman informed Mushi that he would get on the truck in a loading area – to which Mushi refused. As the foreman walked towards the loading area, Mushi moved the truck forward, causing the foreman to move out of the way.
|At the subsequent disciplinary hearing arising from Mushi’s conduct, he admitted he behaved improperly but denied threatening the life of the foreman and denied that he undermined the authority of the foreman. Exxaro’s disciplinary guidelines provided for a final written warning for misconduct of the nature committed. Nevertheless, on 29 April 2015, Mushi was dismissed for (a) refusing to obey the foreman; (b) unsafe acts committed on duty; and (c) improper behaviour.|
|Arbitration and review Aggrieved with his dismissal, Mushi referred the dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”). At the arbitration of the matter the parties agreed that the issues for determination were the appropriateness of Mushi’s sanction and the issue of consistency in the implementation of Exxaro’s disciplinary guidelines since the foreman was not disciplined after the incident. The Arbitrator found that the lack of disciplinary action against the foreman did not infer inconsistency by Exxaro. In relation to Mushi’s sanction for his action, he further stated that,:|
|“The three charges are mutated of one another. The number of the charges by mutating them does not make the act to be more severe than it would ordinarily be. In any event, there is no dispute about the fact that it is not a dismissible offence at first instance. The respondent is not correct when it argues that it has a zero tolerance attitude towards an offence of this nature.”|
|The Arbitrator found Mushi’s dismissal to be unfair as there were no aggravating circumstances to prove that progressive discipline would be inappropriate, he had a long and clean service history and had shown remorse for his actions. The arbitration award provided that Mushi be reinstated retrospectively and a final warning was instead imposed. Exxaro applied to have the arbitration award reviewed and the Labour Court found same reviewable on the basis that Exxaro was prejudiced by not having been given an opportunity to address the issue raised by the Arbitrator relation to the “mutation” of the charges and that Mushi’s admittance relating to his conduct meant that his dismissal was fair. Thus, the Labour Court ordered that the award of the Arbitrator was to be set aside and substituted with an order that Mushi’s dismissal was fair. Mushi then appealed this order to the Labour Appeal Court.
|Submissions on Appeal
Mushi argued that the Labour Court erred in considering all three charges when the Arbitrator had not found him guilty on all three of the charges. Mushi explained that he pleaded guilty to not carrying out the foreman’s instructions as he was required to, but he did not accept that he acted unsafely or endangered the foreman’s life.
Exxaro opposed the appeal on the grounds that in finding that the three charges were “mutated”, the Arbitrator had exceeded his mandate when the only issue before him was whether the sanction of dismissal imposed was appropriate. This issue was only raised in the award, without affording the parties an opportunity to address the issue, thus Exxaro argued the arbitrator committed a reviewable irregularity and the appeal should be dismissed with costs. They also submitted that upon consideration of their statutory obligations, rules and procedures, dismissal was an appropriate sanction.
The Labour Appeal Court, in consideration of the above, held that the Arbitrator was approached to deal with two issues – the appropriateness of Mushi’s sanction and whether Exxaro exercised disciplinary action consistently. The documentary evidence before the arbitrator indicated that Mushi admitted at the disciplinary hearing that he behaved improperly in the manner he operated the truck. He did not admit to other misconduct and did not accept that he had endangered the foreman’s life.
The Labour Appeal Court also pointed out that Exxaro’s disciplinary code clearly stated the appropriate sanction for misconduct of this nature committed, was that of a final warning. Citing the case of SAMWU obo Abrahams v City of Cape Town  7 BLLR 700 (LC), 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 code should not be arbitrary or for no valid reason.”
|The Labour Appeal Court held that there must be a “plausible and reasonable justification” for the sanction imposed, having regard to the gravity of the misconduct and relevant aggravating or mitigating factors.|
The Labour Appeal Court held that the Arbitrator’s finding that the three charges related to the same misconduct, did not amount to an irregularity. The Arbitrator had regard to the nature of the misconduct committed, which the parties had agreed to be common cause. The Arbitrator had regard to the material before him in the manner he was required. This included that the Mushi had a clean disciplinary record, long service and that the disciplinary code recommended a final written warning for the type of misconduct committed. The Arbitrator thus arrived at the conclusion that the imposition of the sanction of dismissal was too severe and unforgiving.
The Labour Appeal Court found that Mushi should be reinstated with a final written warning, as there was no evidence that the misconduct committed by him was of such severity that it made a continued employment relationship intolerable, the Arbitrator’s award can therefore not be faulted. The Labour Appeal Court further held that no reviewable error or irregularity was committed by the Arbitrator and the decision arrived at was not one which ‘a reasonable decision-maker could not reach on the material before him’ (Sec 145(2) of the Labour Relations Act 66 of 1995, Herholdt v Nedbank 2013 (6) SA 224 (SCA)). The appeal was therefore upheld with costs, likewise, the review application was dismissed with costs.
Disciplinary codes, including guidelines, provide an element of certainty for employees. They also assist in ensuring that discipline is consistently applied. While employers may depart from such guidelines, they may only do so in appropriate circumstances. An arbitrary decision to do so may render a stricter sanction (such as dismissal) unfair.
Written by Danmari Bouwer and Jeannique Booysen