Mushi v EXXARO Coal (Pty) Ltd Grootegeluk Coal Mine (JA62/2018)  ZALAC 44 (13 June 2019)
Even where a disciplinary code is expressed as a guideline there must be a plausible and reasonable justification for the sanction imposed, having regard to the gravity of the misconduct and relevant aggravating or mitigating factors. An employer is required to prove that a sanction of dismissal which exceeds the recommended sanction provided in the disciplinary code, is fair.
Prior to his dismissal the employee had been employed by a coal mine for 24 years. Whilst on duty driving an oversized coal haul truck (the wheel size of which exceeded the height of two adults) he reported to his foreman that the shovel operator was loading the truck in an unsafe manner. The foreman instructed the employee to continue loading and undertook to observe the loading process. Shortly thereafter the foreman informed the employee via radio that he would board the truck at the loading area. The employee refused to let the foreman board the truck at this area. As the foreman walked towards the loading area the employee moved the truck forward causing the foreman to have to move out of the way.
At the ensuing disciplinary hearing, the employee admitted that he had behaved improperly, but not that he had undermined the authority or threatened the life of the supervisor. The disciplinary code, which was stated to be a guideline, provided for a final written warning for this type of misconduct. The employee was nevertheless dismissed from his employment for having refused to obey an instruction of a foreman, unsafe acts committed while driving the truck and improper behaviour in operating the truck after the foreman was proceeding towards it.
Aggrieved with his dismissal the employee referred a dispute to the CCMA. At arbitration, the parties agreed that the misconduct committed was not in dispute and that the issues for determination by the arbitrator were the appropriateness of the sanction and the issue of consistency, since the foreman had not been disciplined. No oral evidence was presented by either party at arbitration. The arbitrator found that in not also taking disciplinary action against the foreman there had been no inconsistency by the employer in the application of discipline. However the commissioner found that there had been a splitting / mutating of charges, and said that the number of the charges does not make the act to be more severe than it would ordinarily be, and in any event, there was no dispute about the fact that it was not a dismissible offence at first instance.
In finding the sanction of dismissal imposed to be inappropriate, the arbitrator had regard to the fact that the employee had not been charged with gross insubordination, there were no aggravating circumstances present to prove that progressive discipline was inappropriate, the employee had a long period of service, a clean service record and had shown remorse for his conduct. The dismissal was found to be unfair and the employee was reinstated retrospectively into his employment, with no loss of remuneration and back pay of R77 398.72 awarded. The employee was also given a final written warning.
The employer sought the review of the arbitration award by the Labour Court. In its judgment the Labour Court found the award reviewable on the basis that the employer had been prejudiced by not having been given an opportunity to address the issue raised by the arbitrator relating to the duplication or "mutation" of charges. The Court took the view that it did not matter that the misconduct had not been termed "gross" insubordination and that since the employee had admitted endangering the life of the foreman, it was inconceivable that dismissal was not a fair sanction. The award was set aside and the dismissal was found to be fair.
On appeal the Labour Appeal Court held that even where a disciplinary code is expressed as a guideline there must be a plausible and reasonable justification for the sanction imposed, having regard to the gravity of the misconduct and relevant aggravating or mitigating factors. An employer is required to prove that a sanction of dismissal which exceeds the recommended sanction provided in the disciplinary code, is fair. This the employer had not done. The appeal was upheld with costs, with the Labour Court's order being set aside.
What this means on a practical level is that if a more serious sanction is given than the recommended sanction, the employer will have to lead evidence at the arbitration that sufficiently motivates the reasons for that harsher sanction.
Extract from the judgment:
 The parties elected to approach the arbitration on the basis that only two issues required determination - the appropriateness of the sanction and whether there had been a consistent application of discipline by the respondent. No statement of case nor any oral evidence was presented to the arbitrator for the purpose of determining these issues. The result was that the parties were limited to the documentary evidence placed before the arbitrator which indicated that the appellant had admitted at the disciplinary hearing to having behaved improperly in the manner he had operated the truck. The appellant had not admitted misconduct in relation to the other charges and did not accept that he had by his conduct threatened the life of the foreman, nor was there evidence that he had done so.
 The respondent's disciplinary code, which was expressly stated to be a guideline, provided that the appropriate sanction in cases of insubordination, refusal to obey instructions, misuse of property or improper behaviour was that of a final warning. Disciplinary rules are intended to create a degree of certainty and consistency in the application of discipline in the workplace. It follows that departures from a code should not be arbitrary or for no valid reason. Even where the code is expressed as a guideline there must be a "plausible and reasonable justification" for the sanction imposed, having regard to the gravity of the misconduct and relevant aggravating or mitigating factors. It follows that in this matter for dismissal to be appropriate the respondent was required to prove that the imposition of the most severe of sanctions, on which exceeded that provided in the disciplinary code, was fair.
 While health and safety issues, particularly in the mining industry, is of paramount concern, no evidence was put up to show that the foreman's life was endangered as a result of the appellant's conduct. The appellant admitted that he had erred in his conduct and showed remorse for it. The arbitrator's finding that the three charges related to the same misconduct did not amount to an irregularity in the conduct of proceedings when regard is had to nature of the misconduct, which the parties had agreed to be common cause. In addition, the failure to charge the appellant with "gross" misconduct did not alter the nature or degree of the misconduct committed on the facts of this matter. Nevertheless, the arbitrator had regard to the material before him in the manner he was required. This included that the respondent had a clean disciplinary record, long service and the disciplinary code recommended a final written warning for the type of misconduct committed. Endorsing the concept of corrective or progressive discipline, the arbitrator arrived at the conclusion that the imposition of the sanction of dismissal was too harsh.
 In finding that reinstatement with a final written warning was appropriate when there was no evidence that the misconduct committed was so serious and of such gravity that it made a continued employment relationship intolerable, the arbitrator cannot be faulted. No reviewable error or irregularity was committed by him and the decision arrived at was not one which a reasonable decision-maker could not reach on the material before him.
 Turning to the issue of costs, the parties agreed that if successful costs should follow the result. Having regard to considerations of law and fairness there is no reason as to why this should not be so.
 For these reasons the following order is made:
- The appeal is upheld with costs.
The order of the Labour Court is set aside and substituted as follows:
'The review application is dismissed with costs.'