Case: Nyathikazi v Public Health & Social Development Sectoral Bargaining Council & Others (2021) 42 ILJ 1686 (LAC)

In this matter, the appellant employee, prior to her dismissal, held the position of Senior General Manager: Academic and Tertiary Department with the third respondent; the Department of Health, Limpopo.

In January 2015, she was dismissed after a disciplinary enquiry into two allegations of misconduct pertaining to a contravention of supply chain processes in respect of the procurement of two-way radios, which resulted in an irregular expenditure.

She referred an unfair dismissal dispute to the afore-cited Bargaining Council. At arbitration, the Department contended that the employee had approved a substantial amount of an irregular expenditure. The arbitrator found that the procurement of the two-way radios constituted irregular expenditure and that the procurement of the software also constituted an irregular expenditure.

Notwithstanding this finding, the arbitrator found the dismissal unfair on account of the employer’s inconsistent application of discipline due to no action having been taken against other heads of department who had been equally guilty of authorising irregular expenditure.

The arbitrator further found that the decision to proceed with the disciplinary hearing, notwithstanding the employee’s absence after those conducting the hearing had initially been in default, was grossly unreasonable and thus procedurally unfair. The arbitrator found that it was nonetheless not possible to reinstate the employee because of the irregular expenditure and the fact that she had shown no remorse, nor had she acknowledged any wrongdoing on her part. The arbitrator awarded the employee compensation of two months’ remuneration.

The Labour Court found that the arbitrator’s decision had been supported by the evidence tendered at the arbitration and dismissed the employee’s review application.

On appeal, the Labour Appeal Court (LAC) was seized with an application to condone non-compliance with certain rules relating to the appeal procedure. The LAC ruled that, as the question of prospects of success invariably weighed heavily in such an application, it would dispose of the entire dispute based only on the merits of the appeal. The court found that there was nothing in the evidence as contained in the record to suggest that an unreasonable award in respect of the misconduct perpetrated by the employee was made, let alone that the outcome was unreasonable. The court accordingly dismissed the appeal with costs.

In summary

Consistency has its place in our labour laws. It is essential to apply discipline in a fair, reliable and consistent fashion. This however does not mean that a particular form of misconduct will always attract the same sanction. While employers should strive for consistency, each case needs to be decided on its own merits.

Source: | By: Amos Tshabalala