The issue of inconsistency in sanction is one that has had serious ramifications for many employers. CCMA Commissioners have often reinstated errant employees where employers have been inconsistent in the application of discipline.
In the Samancor matter the employees were part of a crew working in an area of the mine which was affected by a vertical fault. This made the area unsafe and dangerous to work in. The mine shift boss visited the area and instructed the crew not to drill or blast in the area until temporary support and safety net had been installed. This was required in terms of the mine’s basic security and safety standards.
Shortly thereafter, the mine overseer visited the area and found the crew drilling without any temporary support or and safety net having been installed. He issued a verbal instruction to the crew to cease drilling and to install the temporary support and safety net before they could proceed to drill.
When the mine overseer later returned to the area, he found that the crew had ignored his instruction and continued working without taking the requisite safety measures. He then issued the crew with a written instruction to comply with the safety measures. This instruction was also disobeyed. This led to disciplinary proceedings against the employees, and ultimately to their dismissals.
The employees referred a dispute to the CCMA. The Commissioner who heard the dispute found that the employees had been guilty of working without installing temporary support and safety net. However, he found that one employee, allegedly the girlfriend of the mine overseer, who had been part of the crew had not been dismissed. Accordingly, he found that the dismissal of the employees was substantively unfair and ordered that they be reinstated.
Samancor, dissatisfied with the outcome, took the award on review. The Labour Court dismissed the application, finding that the evidence did not show that the crew had continued to work in defiance of the instructions issued by the mine overseer and that Samancor had failed to “prove on a balance of probabilities that the employees had defied the written instruction issued to them”.
Samancor took the decision of the Labour Court on appeal. The LAC found that there was no rational basis for the Labour Court’s finding that the employees had not continued to work in defiance of the instruction. The court highlighted the issue of safety, especially in the mining sector which has been under tremendous scrutiny regarding safety measures due to the dangerous nature of the work. The LAC found that where the conduct of employees carries a high risk of potential danger to the safety of others (which was the case in this matter) and there is manifest disregard for safety regulations, dismissal is clearly justified.
The LAC also addressed the issue of inconsistency in disciplinary proceedings. It found that there was no inconsistency as the employee who had not been dismissed had not been present when the initial instructions were given, since she had been instructed to fetch explosives. Notwithstanding, the LAC found that the finding of inconsistency of discipline could not come to the aid of the other employees. The Court referred to the case of SACCAWU and others v Irvin and Johnson Limited where the LAC had previously found that:
“if a chairperson conscientiously and honestly, but incorrectly, exercise his or her discretion in a particular case in a particular way, it would mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employee’s profit from that kind of wrong decision. In a case of plurality dismissal, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy.”
This judgment clarifies that mere inconsistency in sanction is not enough to allow other employees to profit from it. The inconsistency must be capricious, or induced by improper motives to be unfair. Employers must however be vigilant and avoid inconsistency in sanction. As demonstrated in this case many commissioners do not properly apply the law when it comes to inconsistency challenges in the CCMA.