Once again the LAC was prepared to support an award that it regarded as not unreasonable despite the labour court reviewing and setting the award aside.
The LAC allowed the appeal and overturned the judgment of the LC.
Discussion by GilesFiles
Dismissal of an employee on account of perpetration of fraudulent activities. The CCMA – finding that the employee was not coerced into committing fraud and concluding that his dismissal was substantively fair.
On review to the Labour Court – The Court finding that the CCMA misconstrued the nature of the enquiry it was enjoined to undertake. Finding – that the employee had acted under economic duress when committing the acts of misconduct. The Court – reviewing and setting aside the award.
On Appeal to the Labour Appeal Court- finding no evidence to support a conclusion that the employee had acted under economic duress – further finding no merit in the contention that the employer was not consistent in the application of discipline- The award of the CCMA fell within the purview of reasonable decision makers- The Labour Court materially misdirected itself in upsetting the award on review.
The appeal upheld with no order as to costs. The Judgment of the Labour Court substituted with an order dismissing the review application.
Quotations from judgment
The question of inconstancy in the application of discipline Our law requires that employees who have committed similar misconduct should not be treated differentially. However, the parity principle may not be applied willy-nilly without any measure of caution. In Absa Bank Ltd v Naidu & others this Court pronounced:
‘(T)he 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 will 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. As stated earlier, I reiterate, there are varying degrees of dishonesty and, therefore, each case will be treated on the basis of its own facts and circumstances.
 The undisputed evidence before the CCMA was that disciplinary proceedings had been instituted against the other employees of Workforce Group. For example, Ms Fuhri had already been disciplined and dismissed. Mr Maharaj had received notice to attend his disciplinary hearing on the eve of the arbitration. It was also shown that his disciplinary hearing was delayed because he was assisting with the investigation. With regard to Messrs Diamond and Katz, there is no evidence which support the conclusion that they gave any unlawful instructions to Mr McLintock, Ms Fuhri or Mr Maharaj or that they were complicit in the fraudulent activities. As found by the Court a quo, Mr Maharaj may have “initiated the whole false accounting of work done by feeding the head office with false information and was accordingly the main architect of the misconduct”. However, what bears scrutiny in this case is the role Mr McLintock played after ‘the wheel was set in motion’. The fact the Mr McLintock may or may not have participated in the fraudulent activities from the outset does not excuse or mitigate his later involvement. There is simply no merit in the argument that Workforce Group was inconsistent in the application of discipline.
Conclusion In Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others this Court quoted with approval the earlier dictum of the Labour Court in Standard Bank of SA Ltd v CCMA and Others to the effect that:
‘It is one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.’ Mr McLintock occupied a very senior position at Workforce Group which demanded a lot of integrity and trust. He breached that trust. I am satisfied that the commissioner did not misconceive the nature of the enquiry he was enjoined to undertake and neither was the outcome of the arbitration unreasonable on the available evidential material. The commissioner correctly concluded that the dismissal of Mr McLintock was an appropriate sanction. His award falls within the band of reasonable decision makers. Insofar as the Court a quo concluded otherwise it erred. The arbitration award ought not to have been upset on review. The material misdirection by the Court a quo justifies the setting aside of its order. The Corollary of this is that the appeal should succeed.