THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case no: JR 2007 /2020
In the matter between:
MASSTORES (PTY) LTD						 Applicant

And

COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION			            First Respondent

THOKOZANI XULU N.O 						Second Respondent

THOMAS MMETHI                                                                   Third Respondent

Heard: 	23 August 2023

Delivered: 	18 September 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 18 September 2023.

JUDGMENT

PRINSLOO, J

Introduction
[1]	The Applicant seeks to review and set aside an arbitration award dated 23 October 2020 and issued under case number GAVL1506-20 wherein the Second Respondent (arbitrator) found that the Third Respondent’s dismissal was substantively and procedurally unfair.

[2]	The Third Respondent (Respondent) opposed the application for review.

Material background facts:
[3]	The Respondent commenced employment with the Applicant in March 2013 as a sales manager at the Game store in Evaton.

[4]	The Respondent was issued with a notice to attend a disciplinary hearing in December 2019. The charge levelled against the Respondent was:

‘Unacceptable conduct in that during the period January 2019 to August 2019 you assaulted various customers who attempted to remove unpaid company merchandise.’

[5]	The Applicant was found guilty on the charge of misconduct and he was dismissed on 17 December 2019. He subsequently referred an unfair dismissal dispute to the First Respondent and he challenged the substantive and procedural fairness of his dismissal. 

The evidence adduced
[6]	The issue to be decided by the arbitrator was whether the Respondent’s dismissal was substantively and procedurally fair. He found the Respondent’s dismissal was unfair in all respects.  

[7]	In order to assess the arbitrator’s findings and the grounds for review raised by the Applicant, it is necessary to consider the evidence adduced at the arbitration proceedings, insofar as it may be relevant to the issues raised in this application.

The Applicant’s case
[8]	The Applicant’s first witness was Mr van Wyk, a store manager at the Game store in Johannesburg. He testified that the human resources department brought it to his attention that there was an ethics call logged with regard to an incident at the Evaton store. It related to an allegation that the Respondent assaulted shoplifters. He was requested to investigate the ethics call at the Evaton store to determine if the allegations were true. 

[9]	During his investigation, he questioned the Respondent about the allegations and everybody else whose name was mentioned in the ethics call, including the store manager, Ms Nkosi. Mr van Wyk found that they witnessed the Respondent assaulting shoplifters. The Respondent’s version was that his conduct did not constitute assault, because he only used minimum force. Mr van Wyk testified that it was against the Applicant’s policy to touch shoplifters in any way, apart from arresting them as a civil arrest, as it is the duty of the police to do what is required in terms of the law. He explained that no matter whether it was a ‘light’ or ‘heavy’ assault, it was against the Applicant’s policy. 

[10]	Mr van Wyk testified that the Respondent did not dispute that he had assaulted shoplifters. Assault is taken very seriously by the Applicant as it impacts the image of the business and can result in claims against the Applicant. If found guilty of assault, it will result in summary dismissal. He explained that the Applicant has a duty to protect customers who enter the business premises and the staff too has a responsibility to protect customers and they cannot be allowed to assault customers. Mr van Wyk explained that there are prescribed channels to deal with problems relating to people entering the business premises. 

[11]	Mr van Wyk referred to the Applicant’s code of conduct wherein it was recorded that: “We believe in maintaining a working environment free of inappropriate conduct such as obscene, profane, gross, violent, discriminatory, bullying or similarly offensive languages, gesture or conduct. Massmart will not tolerate such conduct which violates our believe [sic] of respect for the individual”. He confirmed that for assault, summary dismissal is the first step.

[12]	In cross-examination, the Respondent disputed that Mr van Wyk spoke to him during his investigation of the ethics call. 

[13]	The Respondent put it to Mr van Wyk that: “I am not assaulting, me I am not assaulting, I was applying minimum force, yes”. To which Mr van Wyk responded that it remained assault.

[14]	The Applicant’s second witness, Mr Chauke, testified that he is the store manager at Game, Trade Route Mall and he was the chairperson of the Respondent’s disciplinary hearing.

[15]	He explained that he used a checklist during the disciplinary hearing, which has all the steps to follow to ensure that there is fairness and that a proper procedure is followed. When he chaired the Respondent’s disciplinary hearing, he used the said checklist. He read the Respondent’s rights to him and he testified that the Applicant was fully aware of his rights to have a representative, to have time to prepare for his case, to have an interpreter and to call witnesses. The Respondent indicated that he was aware of his rights and the hearing proceeded, he even signed the form confirming this. If there was any objection, he would have adjourned the hearing to address the problem, but as there was no objection, the hearing proceeded. The Respondent never indicated that he was not aware of his rights. Mr Chauke testified that the Respondent was a senior manager who has chaired disciplinary hearings himself and as such, he was also aware of his rights in a disciplinary hearing. 

[16]	Mr Chauke found the Respondent guilty and dismissed him based on the evidence presented during the disciplinary hearing. He explained that the offence of assault was a serious offence, considering the Applicant’s policy, it destroyed the Applicant’s image and damaged the trust relationship. The Respondent was a senior employee, a custodian who needed to protect the values of the business and therefore dismissal was an appropriate sanction.

[17]	Mr Chauke testified that the Respondent never said that the shoplifters carried knives. His defence was that the police did not want to arrest the shoplifters and that they kept on coming back to the store. He was concerned about the business and the fact that the shoplifters continuously came back to the store to steal again and that is why he assaulted the shoplifters. Mr Chauke testified that if the police did not assist, the issue had to be escalated, but taking the law into one’s own hands, is unacceptable and sets a “very bad precedent”. 

[18]	The Respondent’s version, that he had used minimal force and therefore it was not assault, was put to Mr Chauke and he testified that even the use of minimal force was still assault. He explained that the Respondent did not dispute the version of the Applicant’s witnesses during the disciplinary hearing when they testified that they had seen the Respondent hitting and kicking persons he suspected to be shoplifters.

[19]	In cross-examination, Mr Chauke confirmed that it was his duty to go through the checklist on the day of the disciplinary hearing and the Respondent agreed with him that he did not raise any objection prior to the commencement of the hearing and that his rights were read to him on the day of the hearing.

[20]	The Respondent’s case was that when he received the charge sheet on 4 December 2019, his rights were not reflected on the charge sheet, but were only read to him during the disciplinary enquiry.

[21]	It was put to Mr Chauke that the charge was for the period January 2019 until August 2019, whereas one of the witnesses testified that it happened during 2018 and the other one testified that it happened during early 2019. It was put to Mr Chauke that the incidents that happened during 2018 were dealt with by the store manager when the Respondent was told that his conduct would put them in trouble and that it must stop, whereafter it stopped and as such he had decided an incorrect allegation by considering the charge. Mr Chauke responded that the store manager testified that the assault happened in 2018 and that the Respondent was told to stop, yet the other witnesses testified that the assault happened in 2018 and continued in 2019. Even if the store manager told the Respondent to stop, there was evidence that the assault continued during 2019 and that is why it escalated to a disciplinary hearing.

[22]	Mr Mafu, the security supervisor at the Evaton Game store, testified that a shoplifter would be arrested by a security officer at the front of the store, whereafter he/she would be taken to the ‘jail’ facility at the back of the store. Management would be informed about the arrest and would go to the jail facility to check the stolen items. It is normally the store manager or the sales manager who would come and question the shoplifters. It was at this point where he had witnessed the Respondent slapping the shoplifters. He was against it and he told the Respondent that it was not a good thing to do. 

[23]	Mr Mafu testified that the Respondent started to slap the shoplifters in 2018 and the assault stopped at around February 2019. He testified that the Respondent would slap them or hit them with a nearby object and some of the shoplifters would cry as they were in pain. He disagreed with the Respondent’s version that he used “minimal force” and that it was not assault and he insisted that the Respondent had assaulted the shoplifters. 

[24]	In cross-examination, he testified that he had a very good relationship with the Respondent and that they had worked very well together. He had no problem with the Respondent. 

[25]	The Respondent put it to Mr Mafu that “[w]ith the shoplifters at the business, I am still saying that it was minimum force that I was applying…” and he was asked whether the shoplifters were violent. Mr Mafu testified that he never witnessed a violent shoplifter, he recalled one incident at the liquor store where the people were drunk and threw bottles at them.

[26]	Mr Mafu conceded that one Kamo and Nkomo also assaulted shoplifters but they were still employed by the Applicant. It was put to Mr Mafu that the store manager was also assaulting shoplifters by hitting them with a stick, but Mr Mafu denied that he ever witnessed such conduct by the store manager. In re-examination, Mr Mafu explained that the Applicant was not previously aware of the conduct of Kamo and Nkomo, as it was only raised during the Respondent’s disciplinary hearing. 

[27]	The Applicant’s last witness was Ms Nkosi, the Evaton store manager. Ms Nkosi disputed the Respondent’s version that she as the store manager was also assaulting shoplifters. She testified that she witnessed the Respondent slapping a shoplifter and she told him to stop that as it would land him in trouble as it was not allowed. 

[28]	Ms Nkosi testified that at the time she saw the Respondent slapping a shoplifter, she told him to stop and it was the procedure to first reprimand and try to fix the issue, but if an employee does not stop the conduct, it would be referred for a disciplinary hearing. She saw the Respondent slapping a customer late in 2018. She did not report the matter to the human resources department as it was not assault according to her, it was “just a clap”. She testified that the shoplifter who was slapped by the Respondent (which she witnessed) was not violent but was resisting arrest, and in general, the shoplifters were not a threat to them.

[29]	Ms Nkosi conceded that the police did not assist them in apprehending the shoplifters as they claimed not to have cells at Evaton. She testified that the Respondent informed her that the police had recommended that they take the law into their own hands and make the shoplifters pay double for the items they took. 

[30]	Ms Nkosi testified in cross-examination that she was aware of an incident where a regional manager, Mr Theuns Geldenhuys, kicked a sales manager, Jozi, and was still working for the Applicant. Ms Nkosi explained that information about the incident was hearsay and was something everybody spoke about.

The Respondent’s case
[31]	The Respondent testified that he “explained to the HR that this thing that they call assault which I say it was a minimum force that I applied, I did not use excessive deadly force to any customer. My action was to protect a criminal trespass and it was reasonable response to the circumstances...” 

[32]	It is evident from his testimony that the Respondent was of the view that there was a difference between a customer and a shoplifter. He testified that “...a shoplifter, I do not know if I can call them a customer or a shoplifter, but I never touched the customer. The people that I was touching, it was the shoplifter. So the charge says a customer which I differ with, because now it is a shoplifter that I touched. Someone who stole something from our store… When the security stops that shoplifter, because now it is no longer a customer, that person has changed to be a criminal”. The Respondent explained that “[i]t was not customers that I assaulted. Customers are people who are coming to buy our merchandise and go home”. He explained further that shoplifters came to the store to steal and some were coming back every day to try and steal, mostly drug addicts. 

[33]	He testified that as a sales manager, he was responsible for the stock and he was held accountable if there were stock losses and all he did was to protect the stock. Once a shoplifter was caught, the police were called, but it was of no assistance. The police apprehended the shoplifter from the store, but a bit later the same shoplifter was back at the store to steal again.

[34]	The Respondent testified that there was no proof of the fact that he had assaulted anyone, as per the charge. Not a single person or customer ever laid a charge against him and the allegations levelled against him were part of the revengeful tendencies of someone, namely Pumsile Ukwanasi, who was found in possession of stolen merchandise and of which he was instrumental in exposing. She was subsequently dismissed and vowed to discredit all senior managers and she was the person who logged the call with the Respondent’s ethics line. The Respondent testified that Pumsile Ukwanasi wanted to take revenge and as a result of the complaint she lodged, he was eventually dismissed. 

[35]	The Respondent maintained that what he did was not assault and stated that even the store manager “said it was not an assault, it was a few claps”. He demonstrated to the arbitrator what he did and explained that he was holding the shoplifter on the floor and he was doing something he demonstrated, probably clapping as he described it, whilst saying “sit still, do not move, sit still”. 

[36]	The Respondent testified that the charge, alleging that he assaulted customers between January and August 2019, was incorrect as the incident happened in 2018 and was resolved by Ms Nkosi, the store manager. Ms Nkosi testified that the conduct stopped after 2018 and there was no evidence to support the charge for the period in 2019. It is double jeopardy as he is punished again for the same issue that was resolved by the store manager in 2018 when she had issued the Respondent with a verbal warning and an instruction to stop ‘touching’ the shoplifters. He insisted that it never happened again in 2019 after he was reprimanded in 2018 and told not to apply minimum force to the shoplifters. The Respondent explained that the stealing and shoplifting did not stop in 2019, in fact, they were caught stealing on many occasions in 2019 but he never touched the shoplifters, but handed them over to security.

[37]	He agreed that the ‘touching’ of customers happened on several occasions when the shoplifters were uncooperative, hostile and arrogant. The police apprehended them but released them the same day and they were back again in the store the following day. It was a daily thing for the shoplifters to steal in the store and the police had informed them that “they will not be responding to calls which involved shoplifters identified as ‘nyope’ users.” They had to do something at the store to stop the shoplifters. The police failed to arrest anyone for shoplifting and did not provide any support to the Applicant to deal with the issue. The Respondent insisted that those he applied ‘minimum force’ to were not customers but shoplifters who came to the store not to buy but to steal. He explained that he applied minimum force to those who were violent and who resisted arrest by fighting and kicking.

[38]	The Respondent conceded that ‘assault’ was serious misconduct, but insisted that he had not assaulted anyone.

[39]	In cross-examination, the Respondent explained that his understanding of assault was when you would hit or punch someone, even slapping, if such was not provoked or done in self-defence. 

[40]	On the issue of inconsistency, it was the Respondent’s case that he was treated differently to Mr Geldenhuys, who kicked a co-worker, but who was not dismissed. In cross-examination, he conceded that he did not know what the charge against Mr Geldenhuys was and he was unaware of whether he was counselled. He could not testify as to what the charges were faced by Kamo and Nkomo and he conceded that the issue of inconsistency was not raised during the internal proceedings. He conceded that the Applicant was not aware of the issues around Kamo and Nkomo and in cross-examination said to the Applicant’s representative, when posing questions about them that “..it has been brought to your attention today…”  

[41]	On procedural unfairness, the Respondent testified that the matter was not properly investigated and that his rights were only read to him at the disciplinary hearing.

[42]	The transcribed record containing the cross-examination of the Respondent is lengthy and it is evident that he was questioned on several issues that were not relevant to the issues to be decided and that unfortunately, coupled with the manner in which the Respondent answered the questions posed to him, resulted in an unnecessary lengthy record.

The test on review
[43]	I have to deal with the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The test has been set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (Sidumo) as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make. 

[44]	The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration, affirmed the test to be applied in review proceedings and held that:

‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’

[45]	The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with it is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing Court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make.

[46]	It is within the context of this test that I have to decide this application for review.

Analysis of the arbitrator’s findings and the grounds for review
The arbitrator’s findings on procedural fairness 
[47]	In the analysis of the evidence, the arbitrator considered the Respondent’s challenges with respect to procedure, namely that the matter was not properly investigated and that his rights were not explained to him prior to the disciplinary hearing and after accepting that there were merits in the Respondent’s challenges, held that “in light of the above, I therefore find that the dismissal of the applicant was procedurally unfair”.

[48]	The Applicant took issue with the arbitrator’s findings on procedural fairness and submitted that the arbitrator applied the incorrect test to decide the issue of procedural fairness.

[49]	In my view, there is merit in this ground for review.  

[50]	In Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and others, the Court considered the issue of procedural fairness and held that:

‘To some extent, Chapter VIII of the Labour Relations Act represents a codification of the jurisprudence that preceded it. The Act itself is silent on the content of any right to procedural fairness, it simply requires that an employer establish that a dismissal was effected in accordance with a fair procedure. The nature and extent of a right to fair procedure preceding a dismissal for misconduct is spelt out in specific terms in the Code of Good Practice: Dismissal in Schedule 8 to the LRA.

Item 4 of the Code provides:

“(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. (My emphasis) The employer should notify the employee of the allegations using a form and a language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.”

It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.’

[51]	The Labour Relations Act (LRA) grants an employee accused of misconduct the right to state his or her case before any decision is made as to whether the employee committed the misconduct and if necessary, what the appropriate sanction should be. A disciplinary hearing is not a criminal trial, and ordinarily, this court will hold an employer to no more than the statutory Code of Good Practice or, if they are more generous, the terms of the employer’s disciplinary code and procedure. The test for procedural fairness is not that which applies in a civil or criminal court.

[52]	On the issue of the investigation, the arbitrator recorded that he ‘agreed’ with the Respondent and that “…if the matter were investigated properly, the company would not call shoplifters its customers. I wonder why after a thorough investigation, shoplifters are still called customers.   It emerged from the evidence of the employer that the investigation was done. Subsequently the applicant was charged incorrectly because there is nothing took place [sic] in 2019 January to August. Even if something happened if any [sic], the Applicant never assaulted any customer during that period”.

[53]	In casu, the arbitrator accepted, based on the evidence adduced, that an investigation was done. He thereafter strayed by finding that the Respondent was charged incorrectly and by questioning why shoplifters are called customers. In essence, the arbitrator found that an investigation was done, which is in compliance with the requirement of procedural fairness.

[54]	The arbitrator further found that “..his rights were only explained at the hearing, the Respondent was required to formally charged [sic] the applicant as it happened on 4 December 2019. On the charges the applicant should have been advised of his rights, for instance to be represented, to call witnesses and the interpreter. That would enable him to prepare thoroughly to respond to the allegations. The evidence before me does not prove that this was done”.

[55]	The arbitrator misconceived the test he had to apply to determine procedural fairness. The standard for a disciplinary charge sheet is not the same as for one in a criminal case. The information in the charge sheet must be sufficient to inform the employee as to the nature of the allegations against him/her, for him/her to know what is the case to meet and to prepare for that. Neither the LRA nor the Code of Good Practice imposes formal procedural requirements and it is evident from the authorities that what is required is for the employee to know what the charge(s) is and to be afforded an opportunity to prepare a defence.

[56]	The Respondent was afforded a right to a hearing before an independent chairperson, his rights were read to him and he never raised any objection or indicated that his rights would be compromised because they were not set out in the charge sheet. The Respondent’s rights were read to him and he confirmed during the disciplinary hearing that he was aware of his rights. The arbitrator’s finding that the Respondent should have been advised of his rights “for instance to be represented, to call witnesses and the interpreter” as that would have enabled him to prepare thoroughly to respond to the allegations, is disconnected from the evidence. It was never the Respondent’s case that because he was not informed, prior to the disciplinary hearing, of his right to be represented, to call witnesses and to have an interpreter, he was unable to prepare his case and to respond to the allegations. The evidence was that the Respondent was notified of the charge and the hearing on 4 December 2019 and when the hearing was held on 10 December 2019, he had sufficient time to prepare. It is further evident that the Respondent was able to present a case.

[57]	There was no case made out that the Respondent was denied the right to call witnesses, to have an interpreter or to present his case and to cross-examine the Applicant’s witnesses. His only complaint was that he was not informed about his rights when he was given the charge sheet. The Respondent did not adduce any evidence to show that he was prejudiced by the fact that his rights were read to him at the commencement of the disciplinary hearing.

[58]	The arbitrator’s finding on procedural unfairness is not connected to the evidence that was before him and is unreasonable. 

Inconsistency
[59]	The arbitrator found that the Respondent was not the only one who was applying minimum force to the shoplifters. A regional manager assaulted a sales manager but they are still working for the Applicant. As a result, the arbitrator found that the Respondent’s dismissal was substantively unfair.

[60]	The Applicant took issue with the arbitrator’s finding on inconsistency in that he elevated the parity principle to an immutable rule of substantive fairness.

[61]	In support of this ground for review, the Applicant submitted that the arbitrator failed to apply the relevant principles and failed to consider the evidence adduced when he made the finding on inconsistency. The evidence was that the Applicant was unaware of the alleged transgressions by other employees and there was no evidence to show that the Respondent was treated differently from other employees who committed the same offence.

[62]	In my view, there is merit in this ground for review. 

[63]	As there are no pleadings filed in unfair dismissal disputes that proceed to arbitration, the employer party is not always beforehand aware of the case it has to meet and is not always in a position to know or to anticipate which witnesses to call in defending a claim for unfair dismissal. That is the unfortunate reality facing parties, which sometimes results in unnecessary witnesses being called or necessary witnesses being left out.

[64]	However, insofar as a challenge to the consistency of the application of discipline is concerned, the courts made it clear that such an allegation must be concrete and should be made early in the proceedings. The courts have confirmed on numerous occasions that consistency is but an element of fairness and not decisive of the outcome on the determination of the fairness of a dismissal.

[65]	The Labour Appeal Court (LAC) in Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others held that:

‘This court sounded a warning on approaching the question of inconsistency in the application of discipline willy-nilly without any measure of caution. Inconsistency is a factor to be taken into account in the determination of the fairness of the dismissal but by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. A generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made must be set out clearly.’

[66]	In National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine (Rustenburg Section), the LAC addressed the issue of consistency and held as follows:

‘Moreover, as a matter of practice, a party, usually the aggrieved employee, who believes that a case for inconsistency can be argued, ought, at the outset of proceedings, to aver such an issue openly and unequivocally so that the employer is put on proper and fair terms to address it. A generalised allegation is never good enough. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly. Introducing such an issue in an ambush-like fashion, or as an afterthought, does not serve to produce a fair adjudication process. (See SACCAWU & others v Irvin & Johnson Ltd 2002 (3) SA 250 (LAC); (1999) 20 ILJ 2302 (LAC) at para 29; also see Masubelele v Public Health & Social Development Bargaining Council & others [2013] ZALCJHB JR2008/1151 which contains an extensive survey of the case law about the idea of inconsistency in employee discipline.)’

[67]	In Comed Health CC v National Bargaining Council for the Chemical Industry and Others the Court held that:

‘It is trite that the employee who seeks to rely on the parity principle as an aspect of challenging the fairness of his or her dismissal has the duty to put sufficient information before the employer to afford it (the employer) the opportunity to respond effectively to the allegation that it applied discipline in an inconsistent manner. One of the essential pieces of information which the employee who alleges inconsistency has to put forward concerns the details of the employees who he or she alleges have received preferential treatment in relation to the discipline that the employer may have meted out.’

[68]	The position is this: an applicant who seeks to raise consistency has to raise the issue of inconsistency at the outset of the proceedings and in a concrete fashion to afford the respondent employer party an opportunity to deal with it. 

[69]	The Respondent’s case was that he was treated differently to Mr Geldenhuys, who allegedly kicked a co-worker, but who was not dismissed. In cross-examination, he conceded that he did not know what the charge against Mr Geldenhuys was and he was unaware of whether he was counselled, in fact, the Respondent was not in a position to put any facts forward in respect of his allegations regarding inconsistency, at best, he stated what he had heard. The Respondent could not establish that Mr Geldenhuys committed the same misconduct as the misconduct he was dismissed for and he was unable to place sufficient evidence before the arbitrator to show the basis upon which they ought not to have been treated differently or that no distinction should have been made.

[70]	The Respondent could not testify as to what the charges were faced by Kamo and Nkomo and he conceded that the Applicant was not aware of the issues around Kamo and Nkomo and in cross-examination he said to the Applicant’s representative, when posing questions about them that “..it has been brought to your attention today…”  

[71]	I re-iterate what the LAC said in cases where inconsistency is raised: A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly. The arbitrator found inconsistency, notwithstanding the fact that the Respondent was unable to show inconsistency, or where the Applicant was unaware of the alleged cases of Nkomo and Kamo. 

[72]	In Absa Bank Ltd v Naidu and others, the LAC held that the parity principle may not just be applied willy-nilly without any measure of caution. In this regard, the LAC held that: 

‘Indeed, in accordance with the parity principle, the element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal. However, as I say, it is only a factor to take into account in that process. It is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. In my view, the fact that another employee committed a similar transgression in the past and was not dismissed cannot, and should not, be taken to grant a licence to every other employee, willy-nilly, to commit serious misdemeanours, especially of a dishonest nature, towards their employer in the belief that they would not be dismissed. It is well accepted in civilised society that two wrongs can never make a right. The parity principle was never intended to promote or encourage anarchy in the workplace.’

[73]	Consistency is but an element of fairness and not decisive of the outcome on the determination of the fairness of a dismissal. In casu, the arbitrator indeed elevated the consistency requirement to be a determinative factor for substantive fairness when he found that due to inconsistency, the Respondent’s dismissal was substantively unfair. 

[74]	The Respondent had to show inconsistency by concrete allegations, identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently. He was not able to discharge his duty to put sufficient details of the employees who he alleged have received preferential treatment in relation to the discipline that the employer has meted out and the arbitrator’s finding in regard to inconsistency is unreasonable.

The arbitrator’s findings on substantive fairness 
[75]	The arbitrator considered that the Respondent was charged with assaulting customers between January and August 2019 and found that there was no evidence to prove that the Respondent assaulted anyone during this period. Ms Nkosi testified that she was aware that the Respondent was assaulting customers and she caught him in action in 2018. The Respondent was not charged, notwithstanding the fact that the Applicant’s disciplinary code prescribes that assault is dismissible as a first offence. If the Applicant regarded this conduct as serious, the Respondent should have been dismissed a long time ago.

[76]	The arbitrator further found that there was no tangible evidence that the Respondent assaulted a customer during January to August 2019. Mr Mafu testified that the assault stopped at the beginning of 2019 and it begs the question of why the Respondent was charged with assaulting various customers during January to February 2019.

[77]	The arbitrator did not accept that the Respondent assaulted customers. He found that the Respondent treated customers with respect and had he assaulted customers, he would have been sued or arrested. The Respondent held the shoplifters who were caught and resisted arrest, tightly and he applied minimum force, which was not an assault. Even if the application of minimum force was prohibited, how should one deal with the arrogant shoplifters who were prepared to throw bottles, kicking and punching to escape arrest? 

[78]	The arbitrator found that there was frustration around the issue of shoplifting and how to deal with it, as they were arrested, released and returned to the store. The Respondent should not lose his job because of criminals who were uncontrollable. 

[79]	The Applicant’s ground for review is that the arbitrator conducted the arbitration proceedings in a technical manner akin to a criminal trial, while he disregarded labour law principles. The complaint is twofold: firstly, the arbitrator limited the enquiry to the dates in the charge sheet as a reason to find substantive unfairness. The arbitrator found that because the charge sheet referred to incidents in 2019, previous incidents of assault, which occurred in 2018, could not be taken into account. The Applicant submitted that even if the dates on the charge sheet were incorrect, it did not detract from the fact that the Respondent in fact assaulted customers, even if it was a few months earlier. The date in the charge sheet is of no moment because the nature of the misconduct, namely assault, was clear and fully ventilated and according to the Applicant, the arbitrator should not have found that the dismissal was substantively unfair because the dates on the charge sheet do not cover the entire period during which the assaults to place. Secondly, the arbitrator sought to artificially distinguish between ‘customers’ and ‘shoplifters’ to support the finding that no offence was committed against ‘customers’, as per the language used in the charge sheet.

[80]	In my view, there is merit in this ground for review.

[81]	When formulating charge sheets, employers must advise the accused employee of the charge he or she is required to answer to in the disciplinary hearing. In EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others (EOH Abantu), the LAC stated that it is best for the charges to be precisely formulated and be specific enough for the employee to answer to them. The LAC went on to say that is it normally sufficient if the employee has adequate notice and information to ascertain what act of misconduct he or she is alleged to have committed. It was held that:

‘Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unauthorised possession or use of company property. The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of applicable rules or standards.’

[82]	In the event that an employee is dismissed for reasons related to misconduct, the employer is bound by the election it has made, as was confirmed in Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others, where the LAC held that:

‘It is an elementary principle of not only our labour law in this country but also of labour law in many other countries that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the employer gave at the time of the dismissal.’

[83]	In casu, the Respondent was found guilty of and dismissed for unacceptable conduct in that he assaulted customers who attempted to remove unpaid company merchandise. The arbitrator’s distinction between ‘customers’ and ‘shoplifters’ to support his finding that no offence was committed against ‘customers’, as per the language used in the charge sheet, is indeed over technical and artificial.

[84]	As per EOH Abantu, it is possible that the Applicant, in formulating the charge sheet, restricted the alleged misconduct too narrowly or incorrectly by referring to the period January to August 2019. The arbitrator restricted his consideration of the misconduct to 2019 and ignored the evidence in respect of incidents of assault which took place in 2018. Mr Chauke testified that during the disciplinary hearing, the store manager testified that the assault happened in 2018 and that the Respondent was told to stop, yet the other witnesses testified that the assault happened in 2018 and continued in 2019. Even if the store manager told the Respondent to stop, there was evidence that the assault continued during 2019. The arbitrator adopted a too narrow and technical approach when he ignored relevant and material evidence, based on the date as reflected in the charge sheet.

[85]	Even if the date reflected in the charge sheet was incorrect, it did not detract from the fact that there was evidence that the Respondent assaulted customers. It further did not detract from the fact that the nature of the misconduct the Respondent was dismissed for, was made clear by the Applicant and the Applicant stood by the reason for his dismissal, namely unacceptable conduct in that he assaulted customers who attempted to remove merchandise without paying for it. 

[86]	Ms Nkosi and Mr Mafu testified that they have observed that the Respondent assaulted the alleged shoplifters. The Respondent testified that the charge, alleging that he assaulted customers between January and August 2019, was incorrect as the incident happened in 2018. On the Respondent’s own version it happened, but he maintained, based on his incorrect understanding of what would constitute assault in the workplace, that what he did was not assault. He explained that even the store manager “said it was not an assault, it was a few claps”. 

[87]	It was unreasonable for the arbitrator to conclude that there was no tangible evidence that the Respondent assaulted a customer, because he limited himself only to the dates in the charge sheet and he ignored the evidence that the assaulting of customers continued in 2019. 

[88]	It is evident from the Respondent’s testimony as well as the arbitrator’s award that they have a very different understanding of what constitutes ‘assault.’ The arbitrator found that holding of shoplifters tightly and applying minimum force, does not constitute assault. If he indeed assaulted customers, he would have been sued or arrested.

[89]	The legal requirements for the offence ‘assault’ in the workplace are the intentional and unlawful application of physical force, however slight, to the body of the complainant, or the threat that such force will be applied. Assault does not require the actual use of force.

[90]	In Abrahams v Pick n Pay Supermarkets OFS (Pty) Ltd, a store manager who locked workers in a cold room as a disciplinary measure, was found guilty of assault and was dismissed. His dismissal for assault was found justified, even though he had not laid a hand on his victims. 

[91]	In Bombela Operating Company (Pty) Ltd v Mthukwane N.O and others the Court held that:

‘For an assault to have taken place, it need not have been accompanied with an ‘upper cut’, or a slap. An assault by definition can take a variety of forms, and the legal requirements are the intentional and unlawful application of physical force, however slight, to the body of the complainant, or the threat that such force will be applied...’

[92]	The strength of force applied is irrelevant in an alleged case of assault, even a threat is sufficient. The arbitrator’s finding that there was no assault because the Respondent held the shoplifters tightly and only applied minimum force, is wrong and not in accordance with the legal definition of assault and the position as set out in the authorities. The Respondent never disputed the version that his conduct was “a few claps” or slapping, which falls squarely within the definition of assault. The arbitrator’s ultimate finding that the Respondent’s application of minimum force was not assault, is unreasonable.

[93]	The Respondent’s defence that he applied minimum force to shoplifters because they were violent or resisted arrest, cannot stand. An employee accused of assault can raise the defence of provocation or self-defence, which would negate the unlawfulness of the assault. The said defences are however only available to an employee who admits to assault but seeks to put up a defence. In casu, the Respondent denied that he had assaulted anyone and persisted with his version that he merely applied minimum force, which did not constitute assault, as the version accepted by the arbitrator. Where no assault is found, as in casu, there can be no defence to justify the assault or to negate the unlawfulness thereof.

[94]	In the award, the arbitrator concurred with the notion that even the minimum force is prohibited. He then made the unreasonable finding that it cannot be accepted that the Respondent would lose his job because of ‘criminals who were not controllable.’

[95]	The arbitrator’s findings, on the whole, are all over the place and unreasonable. On the one hand, he finds that the application of ‘minimum force’ does not constitute assault and on the other hand, he finds that the application of minimum force is prohibited, but that the Respondent should not be dismissed for that due to question as to “how one should be expected to deal with arrogant shoplifters”.

Conclusion
[96]	The review test to be applied in casu is a stringent and conservative test.

[97]	In Bestel v Astral Operations Ltd and others, the LAC considered the limited scope possessed by this Court to review an arbitration award and accepted that an arbitrator’s finding will be unreasonable if the finding is unsupported by any evidence, if it is based on speculation by the arbitrator, if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted. The LAC held that: 

‘….the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.’

[98]	The Applicant has to show that the arbitrator arrived at an unreasonable result. 

[99]	I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The ultimate question is whether holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before her. 

[100]	I have considered this question after perusal of the transcribed record, the arbitration award and the grounds for review raised by the Applicant. In my view, the arbitrator’s findings do not fall within a band of reasonableness based on the evidence that was placed before him and those findings are to be interfered with on review. 

[101]	This Court has a wide discretion in respect of costs. Ms Tolmay for the Applicant indicated that the Applicant was not seeking a cost order and in my view, this is a case where the interest of justice will be best served by making no order as to costs. 

[102]	In the premises, I make the following order:

Order
1.	The arbitration award dated 23 October 2020 and issued under case number GAVL1506-20is reviewed and set aside;

2.	The arbitration award is substituted as follows: 

‘i.	The Applicant’s (Third Respondent) dismissal is substantively and procedurally fair;

ii.	The Applicant’s case is dismissed.’

3.	There is no order as to costs. 

Connie Prinsloo
Judge of the Labour Court of South Africa

Representatives:
For the Applicant:			Advocate E Tolmay
Instructed by:			Webber Wentzel Attorneys
For the Third Respondent:		Advocate L de Haan
Instructed by:			Mphatlalalazana Attorneys