Anglo Operations Ltd (Kriel Colliery) v CCMA & Others (JR 1869/2011)  ZALCJHB 321; (2014) 35 ILJ 1520 (LC);  7 BLLR 719 (LC) (10 December 2013)
- Once the union has laid a clear basis for a challenge of inconsistency, this calls for rebuttal evidence by the employer.
- The LAC has sounded a cautionary note about too readily imputing a duty on arbitrator's to intervene and assist parties in the manner in which they present their case. A large corporation is expected to equip its representatives with enough resources to enable them to conduct its arbitrations properly and to ensure they are sufficiently competent to do so.
The judgment considered the extent to which an arbitrator has a duty to assist or not assist a party in presenting their case. The judgment also revisits the effect of inconsistency by the employer in treating similar cases in the past, and emphasises the need to lead evidence to counter allegations of inconsistency.
An employee was dismissed for failing to comply with safe working procedures, which caused an accident and injured the employee. The arbitrator agreed that the employee was guilty as charged but found that the sanction of dismissal was inconsistent with the employer sanctions for similar misconduct in the past. He replaced the sanction of dismissal with a final written warning and reinstated the employee retrospectively. It was only on the issue of the employer's inconsistent application of discipline that the arbitrator found that the dismissal was substantively unfair.
Whilst the employer apparently had a 'golden rule' relating to safety issues, evidence was led on behalf of the employee to substantiate that other employees who had committed similar offences were still working for the employer. This was in fact not disputed by the employer, and little or no evidence appears to have been led on the employer's behalf to prove that it had acted fairly in distinguishing this case from other cases in which employees had not been dismissed.
The employer took the arbitrator's decision on review on 2 grounds:
- Firstly, that the arbitrator arrived at an unreasonable conclusion in finding that the employer had inconsistently applied discipline in dismissing the employee.
- Secondly, that the arbitrator committed a gross irregularity by not advising the employer representative that he needed to rebut the employee's allegation of inconsistent discipline.
The employer argued in the LC review proceedings that it had dismissed a supervisor for a similar offence, that the employee had during the arbitration shown no appreciation of his wrongdoing or remorse for his actions, and that his breach of the rules had been more serious than in other cases in which employees had not been dismissed. The LC found however that whilst these allegations may be true, the employer had led no evidence at the arbitration to substantiate these views. On the other hand, it was apparent from the employee's version that at least 3 people who were found to have contravened the so-called golden rules relating to safety were still working for the employer. Furthermore, the supervisor dismissed for a similar offence had subsequently been reinstated, and no evidence was led to distinguish that case from the present one.
On this basis the LC found that the arbitrator was justified in finding the dismissal to be unfair on the basis of inconsistency.
The employer submitted that its representative at the arbitration had no legal qualifications and limited experience of CCMA proceedings, and argued that the arbitrator should have warned him of the need to lead evidence to rebut the employee's inconsistency claims.
The Court referred to various judgments in which the arbitrator's obligation to advise parties of their rights during the arbitration process had been considered. Drawing from these judgments, the Court found that the arbitrator had not committed an irregularity by not advising the employer representative of the need to lead evidence to rebut the employee's allegation of inconsistent discipline. The Court took into account that -
- the representative never complained of not being familiar with the process;
- he represented a major corporation with ample resources to train him;
- consistency is a fundamental principle that he should have been aware of;
- the issue of consistency was raised at the start of proceedings and later;
- he should have realised the need to lead such evidence;
- there was no reason for the arbitrator to have realised that the representative needed reminding of the need to lead such evidence;
- had the arbitrator done so, he might well have been perceived as partial.
 The applicant raises two grounds of review. Firstly, it claims that the Commissioner committed a reviewable irregularity and arrived at an unreasonable conclusion in finding that it had inconsistently applied discipline in dismissing Ntsele. Secondly, it claims the arbitrator committed a gross irregularity by not advising its representative that he needed to rebut the allegation of inconsistent discipline.
First ground of review
 In arriving at the conclusion that the applicant had acted inconsistently, the applicant claims that the arbitrator ignored the following evidence:
5.1. That it had dismissed a supervisor, J Gapula, for the same misconduct; The applicant submits that these failures on the part of the arbitrator led him to reach conclusions that no reasonable arbitrator could have reached.
5.2. Statement by the union representative at the start of the arbitration proceedings that the CCMA had reinstated another employee whom it had dismissed for a similar offence;
5.3. Ntsele's failure to show any appreciation of his wrongdoing or any regret during the arbitration proceedings,and
5.4. the seriousness of the breach of the rule which had resulted in Ntsele's own hospitalisation.
 If one has regard to the cross-examination of Ntsele, it is not unreasonable to infer from his evidence that at least three people who were found to have contravened so-called golden rules relating to safety were still working for the applicant. Under cross-examination, Mr Nkosi conceded in addition that its section manager and a mine captain who had been found guilty of breaching one of the golden rules had also returned to work. Consequently, the union laid a clear basis for a challenge of inconsistent treatment, which called for rebuttal evidence by the employer. It might be true that Ntsele's breach of a golden rule may have been a more serious infraction, or that the employees who were back at work had expressed some contrition or regret for breaking the rule, which might have distinguished those examples from Ntsele's case, but it was for the employer to lead such evidence to distinguish those cases, which it did not do.
 Also, it is by no means clear that because the employer dismissed Gapula for a similar offence, that this offered unequivocal evidence of the employer's consistent practice, if that employee was subsequently reinstated. It is difficult to see how a dismissal which was essentially revoked can be held up as an example of the consistent application of discipline, without evidence being led to explain why that revocation did not detract from the principle of consistent application of discipline. This is tantamount to arguing that a dismissal which should not have occurred may still be relied upon as a precedent to demonstrate consistency on the part of the employer.
 In the circumstances, I cannot agree that the arbitrator reached a conclusion which no reasonable arbitrator could have reached, taking account of the evidence highlighted by the applicant in support of this ground of review.
Second ground of review
 The applicant argues that since it was apparent from the opening address of the union representative and from his cross-examination of the witness Magqabi that the union was advancing a claim of inconsistency, the Commissioner should have warned the applicant's representative in the arbitration hearing that he was required to lead evidence to rebut the prima facie allegations of inconsistent disciplinary treatment, and that his failure to do so was a gross irregularity. The applicant points out that Mr F Shabangu who represented it in the arbitration hearing was an employee relations officer with no legal qualifications and limited experience in CCMA arbitration proceedings.
 The LAC has sounded a cautionary note about too readily imputing a duty on arbitrator's to intervene. In the Bafokeng Rasimone Platinum Mine case, the LAC pointed out the facts which distinguished the Dimbaza case:
" In Dimbaza Foundries ... Gon AJ remarked ... that a human resources manager who regularly represents his/her company in arbitration proceedings would normally be aware of the procedures and the logical steps to be taken in the process. However, in that case, unlike in the instant case, the human resources manager was appearing for the first time and clearly needed guidance. One must also bear in mind that, unlike the employee, the applicant was a large corporation and it is expected to be able to equip its representatives with enough resources to enable them to conduct its arbitrations properly or to ensure that it is represented by people who are sufficiently competent to do so." The LAC decided that, in the matter before it, the arbitrator had not committed a reviewable irregularity by failing to advise the employer's representative of the need to call additional witnesses, and held that the question of deciding when an arbitrator was under a duty to intervene was a matter to be determined on the circumstances of each case:
" In conclusion, it needs to be stated that whereas there is a duty on arbitrators to provide guidance and assistance to lay litigants, the question of whether such duty arose and whether failure to carry it out is an irregularity rendering an award reviewable is a matter to be decided with reference to the particular circumstances of each case. Care should be taken not to straddle the fine line between legitimate intervention by an arbitrator and assistance amounting to advancing one party's case at the expense of the other. Otherwise we would be opening the floodgates allowing every lay representative who has bungled his/her case to seek its reopening by shifting the blame to the arbitrator. At the end of the day, the cardinal question is whether the merits of the dispute have been adequately dealt with and fairly so in compliance with the provisions of s 138 of the Labour Relations Act. That question can best be answered by considering the conduct of the arbitration proceedings as a whole rather than 'nitpicking through every shrapnel of evidence that was considered or not considered', as was stated in Coin Security Group (Pty) Ltd v Machago(2000) 5 LLD 283 (LC)." Turning to the facts in this matter, the following considerations are pertinent:
18.1. The employer's representative complained that he was not familiar with the arbitration process; In the circumstances, I do not think that the arbitrator ought to have assisted the applicant's representative, by pointing out to him that he might wish to lead additional evidence on the issue of consistency before closing the applicant's case. Consequently, the arbitrator did not commit a reviewable irregularity in the conduct of proceedings by failing to advise the applicant's representative of the need to lead evidence to rebut the claim of inconsistent disciplinary action.
18.2. He represented a major corporation which ought to have ample resources to ensure it sent adequately trained representatives to arbitration proceedings;
18.3. The issue of consistency in disciplinary action is one of the fundamental factors that an arbitrator is required to consider if it arises , and one that any person who deals with unfair dismissals as part of their work ought to be aware of;
18.4. The matter was raised at the commencement of proceedings as an issue the union intended to rely on in arguing that the dismissal was unfair. Moreover, it was not simply a single reference to the issue that was made, but it came up more than once even before the process of leading evidence commenced.
18.5. Any representative reasonably familiar with the test of substantive fairness in dismissal for misconduct would have realised the need to lead additional evidence on the consistency of disciplinary action, particularly once it had been raised with the employer's witnesses in cross-examination. Moreover, this was not a case where the case of inconsistency was only given an evidentiary foundation when the employee's witnesses testified.
18.6. Further, when the employer's representative objected to the relevance of certain evidence, he was reminded that it was relevant to the issue of consistency.
18.7. The failure to present more evidence to defend itself against the charge of inconsistency lay principally with the applicant and there was no reason for the arbitrator to have realised that it's representative needed reminding of the necessity to defend the applicant on this issue.
18.8. Had the arbitrator invited the applicant's representative to bolster his evidence on consistency, he might well have been perceived as partial.
- At 1502-3.
- At 1505.
- See s 188(2) read with item 7(b)(iii) of the Code of Good Practice on Dismissals, Schedule 8 to the LRA.