The charge against the employee was that she had driven through the intersection against a red traffic light. The arbitrator found that the footage showed that it was the employee who drove through a red traffic light and collided with the taxi, “which also happened to go through a red traffic light on his side”. The arbitrator concluded that the fact that the taxi went through a red traffic light did not exonerate the employee – she ought to have slowed down when the light turned amber. Had she had done so, the accident would not have occurred. As the arbitrator put it:
‘This dispute is not about what the taxi did, it centers on the actions of the bus driver who hit another vehicle. In fact, one can conclude that both drivers acted irresponsibly. But it is the conduct of the applicant that I am dealing with and not the conduct of the taxi.’
The arbitrator noted further that according to the video footage, there was ample distance to the intersection from the moment the traffic light turned amber for the employee to bring the bus to a stop. The footage revealed that far from attempting to do so, the employee accelerated from that distance to where the accident occurred.
In so far as the employee challenged the consistency of the appellant’s application of discipline, the arbitrator noted that the appellant’s disciplinary code provided for a final written warning for the offence of driving through a red traffic light, unless there were consequences, in which case the prescribed penalty was dismissal. The comparator employees to whom the employee referred had received final written warnings for driving through red traffic lights, but none had caused an accident. The employee’s reliance on the inconsistency that she alleged was thus dismissed.
The arbitrator came to the following conclusion:
“Drivers were independently responsible for the business of the respondent on the road. The applicant was a professional driver and ought to have known that her conduct was not correct. The evidence led at this arbitration suitably persuaded me that the applicant was correctly found guilty at her hearing.
The applicant was not remorseful about her behavior but continued to conjure up elaborate reasons for her actions. Her insistence that she did not do anything wrong despite overwhelming evidence to the contrary, gives an impression that she would most likely repeat this behavior.
My inescapable conclusion is that the employee was involved in gross misconduct and that a sanction of dismissal is appropriate for the above offences and in line with company policies and the code – I agree with the evidence that the employee’s actions have undermined the trust on which the employment relationship was built, and thus justifies her dismissal. In doing so, I have considered all factors and the arguments.”
The Labour Court did not agree and found, “In my view, the commissioner’s findings on the fairness of the [employee’s] dismissal fall outside the bounds of reasonableness based on the evidence that was placed before him.” In the result, the employee was reinstated into the appellant’s employ, with effect from the date of her dismissal.
The Labour Appeal court, did not agree with the Labour Court and found that, “In my view, the Labour Court erred in upholding the review. The Labour Court misconceived the nature of the enquiry to be made in the determination of the appropriateness of dismissal as a sanction and incorrectly decided that the award should be set aside on account of the appellant’s failure to adduce evidence at the arbitration hearing concerning the suitability of dismissal as a sanction.”
The reasons provided by the Labour Appeal Court were:
- Ms Mpengesi, who testified for the appellant, stated that the incident was serious, and that the prevailing conditions were such that the road was clear with nothing obstructing the driver. Further, the employee had accelerated rather than applied her brakes to bring the bus to a stop, as she was obliged to do. The potential consequences of the driver’s conduct are also serious, if not fatal. The arbitrator considered the facts before him in a holistic fashion (as he was obliged to do), and came to the conclusion that, having regard to all the relevant factors, dismissal was an appropriate sanction. In the course of his consideration of an appropriate sanction, he clearly had regard to the seriousness of the employee’s misconduct, the actual and potential consequences and importantly, the employee’s mendacious denial of any misconduct. As this Court has previously stated, the acknowledgement of wrongdoing is the first step towards rehabilitation – see De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration & others [2000] ZALAC 10; (2000) 21 ILJ 1051 at para 25. In the present instance, the employee refused to take even that first step. In short: the arbitrator’s assessment of the evidence regarding the appropriateness of dismissal as a sanction cannot be faulted.
- The determination of the fairness or otherwise of a dismissal involves a moral or value judgment, to be made by the presiding arbitrator, after considering all of the relevant factors and circumstances. Sidumo & another v Rustenburg Platinum Mines & others specifically enjoins arbitrators to “consider all relevant circumstances”. The absence of any specific evidence adduced in an arbitration hearing regarding a breakdown or deterioration in the employment relationship is thus not a basis to set aside an arbitrator’s decision to uphold a decision to dismiss. As this Court has observed – see Woolworths (Pty) Ltd v Mabija & others [2016] ZALAC 5; (2016) 37 ILJ 1380 (LAC) – the existence of serious misconduct can in itself lead to a finding that a dismissal should be upheld, without evidence of any breakdown in trust.
- In order to succeed on review, the applicant “must demonstrate that no reasonable commissioner could have opted for the sanction (or lack thereof) in question”. The threshold for review when an arbitrator’s decision on sanction is sought to be set aside is deliberately set high – whether the arbitrator considered the sanction of dismissal to be too harsh (as in Sidumo), or as in the present case, where the arbitrator considered the penalty of dismissal to be fair. Either way, a review court cannot intervene simply because it thinks that the arbitrator was wrong, or because it would have rendered a different decision on the same evidence. In the present instance, there can be no question that the arbitrator’s decision is one to which a reasonable decision-maker could come. On the evidence placed before the arbitrator, there is no basis to conclude that his decision to uphold the employee’s dismissal fails to meet the reasonableness threshold.
- The employee’s intransigence suggests that corrective discipline was unlikely to cure her behaviour. As the arbitrator put it: “Her insistence that she did not do anything wrong despite overwhelming evidence to the contrary gives an impression that she would most likely repeat this behaviour”. It is difficult to imagine evidence more damning of the employee’s conduct and its damaging effect on the employment relationship between her and the appellant.
The arbitrator did precisely what he was required to do – he made a moral or value judgment based on the totality of the evidence before him. All of the evidence that served before the arbitrator spoke to the magnitude of the employee’s misconduct – she breached a workplace rule, and the rules of the road, with calamitous consequences.
The facts that served before the arbitrator (and confirmed by the Labour Court) include a deliberate decision by the employee to accelerate prior to reaching the intersection, even though the traffic light had turned amber, in circumstances where she ought to have braked to bring the bus to a timeous halt. Instead, the employee failed to have regard to the amber traffic light and bring the bus to a timeous halt.
In sum: contrary to what the Labour Court held, there is no obligation in law on an employer to adduce evidence on the appropriateness or suitability of dismissal as a sanction for misconduct, as a necessary condition for any finding of unfair dismissal. An arbitrator making a decision on the appropriateness of dismissal as a sanction for misconduct must make a value judgment, taking into account all relevant facts and circumstances. A breakdown in trust or deterioration in the employment relationship may be inferred from the evidence regarding these facts and circumstances. Finally, there is nothing in the record to indicate that the arbitrator’s decision to uphold the employee’s dismissal is a decision to which a reasonable decision-maker could not come. That being so, it was not open to the Labour Court to interfere with the award. The appeal thus stands to be upheld.
The Labour Appeal Court upheld the appeal with no order as to cost.
