The respondent operates a public transport business in Port Elizabeth and the applicant was employed as a driver for 8 years. He was dismissed for “disloyalty/acting in conflict with the interest of the company”. This charge emanated from the applicant’s actions to encourage drivers to go on an illegal work stoppage and blocking the N2 highway between Port Elizabeth and Motherwell. The applicant denied this charge. In addition he challenged the consistent application of discipline. No blockade took place eventually.

Substantive fairness was challenged on the basis that there was no justifiable reason for the applicant’s dismissal. Consistency was also disputed. Procedural fairness was disputed on the grounds that the presiding officer at the initial hearing had prior knowledge of the matter, and that he was too active during the hearing.

The applicant denied that there was a meeting with other drivers and that he told them to block the N2. His representative at the hearing “raised the attitude of the chairman” (sic) but not a recusal. The applicant contended that the company witnesses fabricated charges against him and called another driver who related to an incident in 2008 when a SATAWU shop steward had delayed buses but he was not disciplined.

The commissioner held as follows:

The thrust of his case was that it was a conspiracy against him. He, furthermore, denied arranging a blockade of the highway. I was not persuaded by the conspiracy theory – there was no supporting evidence. And such allegation was on shaky grounds.

Two of the respondent’s witness gave corroborating and first hand evidence that the applicant had told them to block the N2.

I was suitably persuaded that the applicant did make some effort to arrange an illegal work stoppage which appeared unsuccessful.

The applicant had a second string to his bow i.e. the alleged inconsistent application of discipline. He called two witnesses but I was not suitably persuaded that they knew exactly what the merits of the case in 2008 were. But even if I were to conclude that the employer did act inconsistently, it is not to say that inconsistently is automatically regarded as unfair. An employer may be able to justify such inconsistency or differentiated action. Generally, grounds such as the employee's disciplinary record, the seriousness of the convention, or changed circumstances, which made it necessary to take a different view, may justify inconsistent enforcement of a rule.

Procedural fairness was disputed on the grounds that the presiding officer at the initial hearing had prior knowledge of the matter, and, that he was too active during the hearing. There was no evidence that the chairman had prior knowledge – the only evidence was from the applicant that he was to recuse himself because of the personal comments he had made towards the applicant on a previous occasion.  

I am of the view that a chairperson should play an inquisitorial role in such an investigation.

If I take all the above into account, my inescapable conclusion is that the employee was involved in misconduct and that he indeed made an effort to set up an illegal work stoppage. He made an attempt to act in conflict with the interest of the company, but he did not succeed according to the evidence.

Regarding the appropriatenss of the sanction:

That attempt (to block the N2) in my view does not call for a dismissal. Furthermore, and even if I am wrong in my conclusion above, I have to consider whether the respondent had proven that the trust relationship was broken. Put differently, the respondent had to prove on a balance of probabilities that it was fair to dismiss the applicant. The Supreme Court of Appeal found that dismissal was unfair in the absence of evidence that the trust relationship was damaged – see Edcon Ltd v Pillemer No and others (191/08) [2009] ZASCA 135 delivered on 5 October 2009 [reported at [2010] 1 BLLR 1 (SCA) – Ed]. Pillay came to the same conclusion in the matter of South African Revenue Services v CCMA and others (unreported) case number JR984/08 (delivered on 23 October 2009) [reported at [2010] 3 BLLR 332(LC) – Ed] where the SCA held that in the absence of evidence showing damage in the trust relationship, the decision to dismiss was unfair.

There was no evidence that the trusting relationship was severed. The respondent argued in closing that the trust was broken down. This was not adequate considering the above court rulings.

In the face of this, my conclusion must be that the sanction of dismissal was not appropriate and too harsh. Had the respondent presented evidence around the trusting relationship, my decision might have been different. In addition to this, there was no convincing evidence that the applicant’s efforts to call out a work stoppage succeeded and did in fact cause a loss to the company. Therefore, the charge of alleged disloyalty cannot succeed.

The Algoa Bus Company, was ordered to reinstate the applicant retrospectively as from the date of his dismissal.

Written by Jan du Toit

First published on SA Labour Guide