REPUBLIC OF SOUTH AFRICA THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT. GOVERNMENT PRINTING WORKS and

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1 REPUBLIC OF SOUTH AFRICA THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT Reportable In the matter between: GOVERNMENT PRINTING WORKS and COMMISSIONER D MATHALA N.O. GENERAL PUBLIC SERVICES SECTORAL BARGAINING COUNCIL SINGH, LEEDHUR Case no: JR583/14 Applicant First Respondent Second Respondent Third Respondent Heard: 17 December 2015 Delivered: 31 August 2016 Summary: Consistency - The arbitrator determining the fairness of a dismissal where the employee claims inconsistency must have regard to evidence of all the circumstances and details of the comparator in order to reasonably determine similarities between the dismissed employee and the comparator;

2 Consistency - the parity principle requires that there must be flexibility - various cases explored. In consistency matters, it must be expected that there will (i) always be some inherent variances that (ii) are random, (iii) affecting different employees, and (iv) will determine different assessment and outcomes. It is certain though, that the gravity of the offence is the grandest factor causing the variances, and must always be scrutinised with greater care. JUDGEMENT MOSIME, AJ Introduction [1] This is an application in terms of Section 158(1)(g) read with Section 145 of the Labour Relations Act, 1 in which the applicant seeks to review and/or set aside an arbitration award issued by the first respondent ( arbitrator ) in the General Public Services Sectoral Bargaining Council under case number GPBC1230/2013. The basis of the application is that arbitrator committed a gross irregularity, alternatively committed misconduct in relation to his duties as an arbitrator and made a decision that cannot be said to be one which a reasonable decision maker could have reached in similar circumstances. The third respondent opposes this application. 2 [2] The third respondent ( Singh ) was dismissed on the 10 May 2013 following a disciplinary hearing in which he faced the following charges of misconduct: 3 1 Act No 66 of 1995 (as amended). 2 Court s bundle, Court s bundle, 90.

3 Main Charge Intentional misrepresentation, in that on the 18 November 2010 when employed by Government Printings Works, you submitted a fraudulent Senior Certificate with illegally altered passing symbols, with an intention to deceive your employer into believing that you passed your Senior Examination with an above average rating. Alternative Charge Forgery, in that on the 18 November 2010 when employed by Government Printing Works, you deliberately and intentionally submitted a forged and/or fake Senior Certificate with the aim of deceiving your employer. [3] At the internal disciplinary hearing, Singh was found guilty of intentional misrepresentation and was subsequently dismissed on 28 February He thereafter lodged an appeal on the 15 March 2013 whereat both the finding of guilty and the sanction of dismissal were upheld 4. As a result of the foregoing, Singh referred a dispute concerning unfair dismissal dispute to the second respondent ( Bargaining Council ) and the matter was heard at arbitration by the first respondent who rendered an award 5 in that regard, on the 17 December In terms of the said award (at paragraph 18), the arbitrator ruled that the dismissal of Singh was procedurally fair but substantively unfair and ordered the applicant to reinstate Singh with back pay dating from the day of dismissal (10 May 2013). 6 Grounds for Review 4 Court s bundle, Court s bundle, Court s bundle, 22.

4 [4] In its founding affidavit the applicant relies on the following grounds for the submission that arbitrator committed a gross irregularity, as well as misconduct in the execution of his duties: a) The arbitrator made the determination that Singh has Matric and that the manner in which Singh passed Matric is irrelevant. However, in as much as the manner may be irrelevant in as far as minimum requirements for the post are concerned but the instant Singh submitted fraudulent qualifications that had a direct bearing to the trust relationship ; b) The arbitrator misconceived the nature of the misconduct for which Singh was dismissed in that the issue is not whether the Singh possesses the required qualification (Matric), but dishonesty by defrauding the Applicant to believe that higher symbols were obtained during Matric. And accordingly the determination that Applicant was not misled is not what a reasonable decision maker would have made ; c) The arbitrator did not apply the principle of consistency correctly and failed to consider the evidence of the applicant s witness (J Rossouw) with regards the issue of Moeketsi in that there is material difference between the cases of third respondent and those of Moeketsi and Brits. Background Facts [5] On the 16 November 2011, the applicant appointed the third respondent as Sectional Planner (Scheduling) from the date of assumption of duty. 7 The appointment was subject to a condition that Singh would be placed on probation for a period of twelve months thereafter. Four months after Sigh s appointment, and during the qualifications verification process undergone by the applicant over numerous employees, applicant discovered that there were certain discrepancies in the documents submitted by Singh in his personnel files. These concerned his 7 Court s bundle,

5 matric qualification and a query regarding his real name. The position of Sectional Planner required matric as prerequisite. [6] The evidence before the commissioner revealed that Singh had, together with his application form 8 for employment on the 22 November 2011, submitted a certified copy of a Senior Certificate (Matric) 9 indicating that he had obtained the qualification after successfully passing six matric subjects, all on higher grade (HG). It records that he passed the English (First Language), Physical Science and Biology, all with a B grade; and Accounting with an A grade and Afrikaans with a C grade. But when these results were verified with the South African Qualifications Authority (SAQA) on the 20 June 2011, the Department of Basic Education provided the official matric results 10 of a student known as LEEDHUR PREMDUT SINGH as follows: English First Language (SG) D ; Afrikaans Second Language (SG) D ; Mathematics (SG) A ; Physical Science (SG) E ; Biology (LG) FF and Accounting (HG) B. It immediately becomes clear that the initial certificate provided by Singh was fraudulent. The applicant naturally requests Singh to provide an explanation 11. This, Singh provides through an 12 sent around the 05 March 2012, in which he states that he had lost his original matric certificate when he was relocating from Durban to Gauteng about 15 years ago. He states in the that he had then contacted a colleague to assist him in re-applying for an official certificate. He was thereafter re-issued the certificate with a change in name and symbols but with the same ID number. He did not, however, submit the original document he was re-issued, but a copy of a certified copy that was, on the face, administered on oath by the South African Police during Court s bundle, The Z83 Form. 9 Court s bundle, 134. It is also crucial to note that the name of the student (No ) on the face of the certificate is LEEDHUR SINGH. 10 Court s bundle, Court s bundle, Court s bundle, 135.

6 [7] It cannot be far from the mind that the purpose for which Singh sought to have the document certified during 2008, was use of this document in future for, among others, application for employment, as he did when he applied for employment at the applicant. Singh was thereafter brought a before a disciplinary tribunal, found guilty of misconduct as charged and dismissed. He challenged his dismissal at the GPSSBC (second respondent). The Arbitration Hearing [8] For the purposes of my conclusions and order in this matter, I must provide a summary of the evidence the proceedings of the arbitration hearing that was conducted before the first respondent on the 6 November The record was submitted under Indexed Bundle, Record of Proceedings. [9] There was no dispute regarding the procedural aspect of the dismissal, and the only substantive issues that the arbitrator had decide 13 were around unreasonable delay, inconsistency and the harshness of the sanction (dismissal). The arbitrator quickly dispensed with the first issue regarding delay, and held that, whilst there was delay, it was however justified. The applicant called two witnesses, Mr Jan Johannes Rossouw, and Mr William Masemola. The third respondent testified in his case, and also called, in his defence, one Mr John Mojanaga. [10] Mr Rossouw s testimony confirmed the common cause facts summarised above, namely that Singh submitted two certificates with different symbols and varied names on each; he admitted that the first certificate was falsified but blamed it on his friend ; and that he was subsequently charged and found guilty of intentional misrepresentation and dismissed. Sing was also examined on consistency, with specific reference Messrs Moeketsi ( Moeketsi ) and Brits, who were presented as Singh s comparators in the treatment meted out to him. 13 Indexed bundle, Record of Proceedings, 6.

7 [11] The facts that are common cause around Moeketsi are that he was appointed on the 15 January 1996 at the level of Administration Clerk, as a Storekeeper 14. His position also required the candidate to be in possession of a Std 10 qualification. 15 Moeketsi submitted together with his Z83 Application Form for employment, a statement issued in November 1993, 16 in which it appears that result obtained after sitting for Standard 10 examinations was that he FAILED the examination; and another statement issued in December 1995, recording that he PASSED two subjects in a Senior Certificate examination. 17 According to Rossouw, there was nothing altered or forged in the documents that were submitted by Moeketsi in support of his application for employment by the applicant. 18 Furthermore, Moeketsi entered the symbols that he achieved truthfully, in his own handwriting, in the space required in Z83, and also signed the declaration that the information he provided was correct. 19 In his view, there was a difference between Moeketsi and Singh in that the latter did not provide correct information, but forged and fraudulent documents, and still signed a declaration that the information was correct, while being aware that it was not. He states categorically: 20 JAN ROSSOUW: No, as I stated earlier, [Moeketsi] he didn t submit any false information on his application form. [12] When questioned under cross why the employer did not regard a statement that Moeketsi completed in the form that he had a Standard 10 (Grade 12) certificate as misrepresentation, Rossouw testified that the applicant accepted, reasonably so, that Moeketsi may have believed that a subsequent pass on the other two subjects qualified as matric. But there was nothing in the documents submitted that was falsified or defrauded, as in the case of Singh. When the employer 14 Court s bundle, Court s bundle, Court s bundle, Court s bundle, Indexed bundle, Record of Proceedings, 17, 18; and Court s bundle, Indexed bundle, Record of Proceedings, 21.

8 concluded that Moeketsi did not have a matric qualification, he was demoted to a level suitable for persons with a Standard 8 (Grade 10) qualification. I am wholly satisfied with the summary of Rossouw s and Masemola s evidence in the award. 21 [13] Singh s testimony was wholly unsatisfactory, as it was fraught with untruths, contradictions and numerous inconsistencies. He denied that in 2011, he was requested to provide his matric certificate, stating that he was only asked for it twice in 2012, and the later twice or thrice in 2012 and then later, when shown a letter that was sent to him on 20 May 2011, 22 in which he was hereby requested to submit the necessary documentary proof that your senior certificate is a valid qualification not later than 31 May 2011, conceded that he was requested to do so prior to It is notable that the arbitrator had himself made a remark to Singh regarding the doubt cast on his evidence as a result of these inconsistencies. 23 Singh responded to the letter of the 10 May 2011 only around the 5 March It appeared that his earlier attempt to impress a fact that he received the request in 2012, was to bring it closer to his response. [14] Singh also denied that his birth certificate was requested from him. He stated that he voluntarily submitted a copy of his birth certificate to the applicant randomly. But after some prolonged questioning in cross examination, he conceded that the document was requested from him to verify the correct names that differed between the ID document, the certificate and the application form. [15] The witness that testified in Singh s defence, Mr John Mojanaga ( Mojanaga ) is a shop steward of a union whose name is not mentioned in the record. He testified mainly on the issue of inconsistency and supplied the following evidence: 21 Award, Paragraph 5; Notice of Motion ( NOM ), Court s bundle, Indexed bundle, Record of Proceedings, Court s bundle, 135.

9 (1) that Moeketsi had submitted a fraudulent diploma and qualification; and that after it was detected, he was reprimanded verbally and no action was taken (2) that Moeketsi, while working with government stationery, stole a book of doctors certificates and booked himself on a regular basis with forged certificates, and it was detected that his certificates were fraudulent, he was only reprimanded verbally (3) that a senior certificate document was stolen by a certain Mr Brits and his sister was arrested using the document; that Mr Brits was arrested, appeared in court in Bloemfontein, but nothing happened to him, he is still working at the applicant and was only shifted from one section to the factory where he is still working to date. [16] The versions in (2) and (3) scenarios above were never tested with any of the applicant s witness. No shred of evidence, documentary or in any form was placed before the arbitrator to prove any of these allegations, and there was no explanation whatsoever proffered, for failure by the third respondent to subpoena any document or any witness to be placed or appear to prove any of the bald allegations placed before the arbitrator. Furthermore, there is no apparent reason given to the arbitrator to accept those without their support through proper evidence. As such, these versions, so far as they were inconsistent with the material that was before the arbitrator, stood to be jettisoned and altogether disregarded. This court has previously directed, as in Frans Masubelele v Public Health and Social Development Sectoral Bargaining Council land others 25 that the employee had to at least have provided a prima facie evidentiary platform to support his contentions of inconsistency. The court in Frans Masubele further referred to a previous decision of this court, in SA Municipal Workers Union on behalf of Abrahams and Others v City Of Cape Town and Others, 26 where was held: 25 JR 1151/ (2011) 32 ILJ 3018 (LC) para 50.

10 This situation is, in my view, akin to the question where an employee alleges inconsistency. The employee must show the basis thereof, for example he must reveal the name of the concerned employee and also the circumstances of the case. This is necessary for the employer to respond properly to the allegation. Failure to do so may lead to a finding that no inconsistency exists or was committed by the employer. This situation never shifts the onus from the employer to the employee to prove that there is no consistency. [17] In Comed Health CC v National Bargaining Council for the Chemical Industry and Others 27 the Court said the following: It is trite that the employee who seeks to rely on the parity principle as an aspect of challenging the fairness of his or her dismissal has the duty to put sufficient information before the employer to afford it (the employer) the opportunity to respond effectively to the allegation that it applied discipline in an inconsistent manner. One of the essential pieces of information which the employee who alleges inconsistency has to put forward concerns the details of the employees who he or she alleges have received preferential treatment in relation to the discipline that the employer may have meted out. (My Emphasis) [18] With regard to the statement in (1) above, it was also plain to the third respondent at that moment that there was no evidence tendered proving or just alleging that Moeketsi had committed any fraud, nor that he had submitted a certificate for a diploma qualification. It was never put to the applicant s witnesses that this version would be tendered. It must have not only surprised the applicant, but the commissioner as well, that there was an allegation such as this in support of submissions that the applicant had acted in inconsistently. Without any details supporting the allegations of fraud or misrepresentation by Moeketsi, the arbitrator ought to have rejected as incredible, all evidence regarding them. The Legal Tests for Review 27 (2012) 33 ILJ 623 (LC) at para 10.

11 [19] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 28 the Constitutional Court restated the principle that it is the constitutional requirement (in s 33 (1) of the Constitution) that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Following that statement, it is confirmed that the reasonableness standard now suffuse s145 of the LRA. The majority of the Constitutional Court set the threshold test for the reasonableness of an award or ruling as the following: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach in the circumstances? 29 [20] This test has now been clearly stonewalled in interpretation and application. 30 The principles enunciated in these cases apply correctly in those cases where the commissioner s misconduct and irregularities are found present. It was stated further by the SCA in Herholdt 31 that: That test involves the reviewing court examining the merits of the case in the round by determining whether, in the light of the issues raised by the dispute under arbitration, the outcome reached by the arbitrator was not one that could reasonably be reached on the evidence and other material properly before the arbitrator. The reasons are still considered in order to see how the arbitrator reached the result. That assists the court to determine whether that result can reasonably be reached by that route. If not, however, the court must still consider whether apart from those reasons, the result is one that a reasonable decisionmaker could reach in the light of the issues and the evidence. 28 (2007) 28 ILJ 2405 (CC). 29 (2007) 28 ILJ 2405 (CC) paras 106 and See in this regard the following judgement of the SCA and LAC: Herhold Herholdt v Nedbank Ltd (COSATU as amicus curiae) (2013) 34 ILJ 2795 (SCA) (per Cachalia JA and Wallis JA); Goldfields Mining SA (PTY) Ltd (Kloof Gold mine) v CCMA and Others 2014 [BLLR] 20 (LAC) per Waglay JP and Hlophe AJA and Zondi AJA concurring); and Quest Flexible Staffing Solutions (PTY) Ltd (a division of Adcorp Fulfilment Services (PTY) Ltd v Abram Legobate [2015] (LAC) (per Kathree-Sitiloane AJA). 31 Herhold Herholdt v Nedbank Ltd (COSATU as amicus curiae) (2013) 34 ILJ 2795 (SCA) paragraph 12.

12 [21] And, in the Gold Fields 32 case, Waglay JP posited the position like this: ] In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable. [22] The Judge president also laid down the following approach in the review of the arbitrator s award as directed by the Constitutional Court (at para [21]): Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome (see Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC)). But again, this is considered on the totality of the evidence not on a fragmented, piecemeal analysis. As soon as it is done in a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented analysis rather than a broad-based evaluation of the totality of the evidence defeats review as a process. It follows that the argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and reasonable - there is no room for conjecture and guesswork. [23] In Herholdt v Nedbank Ltd, the Court concluded: 33 Where a commissioner fails to have regard to material facts, this will constitute a gross irregularity in the conduct of the arbitration proceedings because the commissioner would have unreasonably failed to perform his or her mandate and thereby have prevented the aggrieved party from having its case fully and fairly determined. Proper consideration of all the relevant and material facts and issues is indispensable to a reasonable decision and if a decision maker fails to take 32 Goldfields Mining SA (PTY) Ltd (Kloof Gold mine) v CCMA and Others 2014 [BLLR] 20 (LAC) paragraph Ibid, para 36 and 39.

13 account of a relevant factor which he or she is bound to consider, the resulting decision will not be reasonable in a dialectical sense. Likewise, where a commissioner does not apply his or her mind to the issues in a case the decision will not be reasonable. Whether or not an arbitration award or decision or finding of a commissioner is reasonable must be determined objectively with due regard to all the evidence that was before him or her and what the issues were. There is no requirement that the commissioner must have deprived the aggrieved party of a fair trial by misconceiving the whole nature of enquiry. The threshold for interference is lower than that; it being sufficient that the commissioner has failed to apply his mind to certain of the material facts or issues before him, with such having potential for prejudice and the possibility that the result may have been different. This standard recognizes that dialectical and substantive reasonableness are intrinsically interlinked and that latent process irregularities carry the inherent risk of causing an unreasonable substantive outcome. [24] And In CUSA v Tao Ying Metal Industries and Others, it was held that that a commissioner is obliged to apply his or her mind to the issues in a case. Commissioners who do not do so are not acting lawfully and/or reasonably and their decisions will constitute a breach of the right to administrative justice. [25] The decision of the arbitrator in the present case shall be viewed in the light of these principles. The Analysis of the Evidence and the Award [26] The arbitrator ignored the material hub of evidence in Rossouw s testimony, in which the applicant contended that even though Moeketsi applied for a position which required an incumbent to be in possession of a Matric certificate and that Moeketsi declared in his application that he was in possession thereof, which he did not possess, that was not falsification of information but rather an incorrect assumption by the applicant that Moeketsi was in possession of the required

14 hoogste opvoedkundige kwalifikasies. Moeketsi was demoted to a lesser position that only required a standard 8 [Grade 10] qualification. This testimony was aptly summarised by Mr Joseph Mashigo, 34 when cross-examining Rossouw, as follows: JOSEPH MASHIGO: So are you saying to us, in other words Mr Rossouw are you saying that Mr Moeketsi [inaudible] but it was just the misunderstanding by the employer that know because of the two results, or whatever, that have been provided documents that were provided, therefore we know the employer made a conclusion that you know this doesn t equal to a matric, but then later on they realised that maybe they are not, we need something to confirm that, so in other words what you are saying is that from the side of Mr Moeketsi he never made any claims that I have passed matric, is that what you are saying? JAN ROSSOUW: It was not that I was aware of, the reason I said [inaudible] he does admit the results are standard ten certificates [inaudible] speculating in terms of that [27] The arbitrator did not record this portion of evidence in his hand writer notes and so it is not clear what the exact words that were inaudible were. But it appears to me that the gist of this evidence is that Moeketsi submitted 2 sets of results showing that he sat over 2 examination sessions for a matric certificate. He failed most of the subjects, passed some, but was not certain whether the subjects that he passed confers him with a matric qualification. Rossouw testifies that the applicant itself was not certain, and assumed from the two sets that Moeketsi indeed had matric. He was then requested to submit the matric certificate once it is confirmed that he had matric. The certificate did not emerge. The applicant then decided to appoint him against a post requiring only a standard eight qualification. 34 Indexed bundle, Record of Proceedings,

15 [28] It is therefore clear from this record that even if Moeketsi had inserted Std 10 in the Z83 form, which was not correct, that did not amount to intentional misrepresentation. There was a common uncertainty between him and the applicant, according to Rossouw, as to whether or not the sets of results that he submitted amounted to a matric pass. The results that Moeketsi submitted were verified and proven to have been truthful. Singh, on the other hand, was dismissed for intentional misrepresentation and fraud (in that he submitted a certificate that contained forged information). [29] Notwithstanding Rossouw s testimony, the arbitrator found it uncontested that Moeketsi was deceptive. It is also not clear therefore where the arbitrators is coming from with the conclusion that when Moeketsi had applied and made a declaration that he was in possession of a standard ten, the said declaration was intended to mislead the applicant. This finding in the award is styled as follows: 35 I find Moeketsi s conduct as deceptive in these circumstances. It is my view that he knew he did not have Matric but wanted the employer to bite the bullet. It is the applicant responsibilities to ensure that he meet the job requirements and not the employer s. Despite this, Moeketsi was given a demotion instead of dismissal. I fail to understand why the Respondent sees Moeketsi s conduct not as misrepresentation. He misled the employer into thinking that he possesses the correct qualifications, did not volunteer to have his subjects checked if they would qualify him but was only exposed by qualification verification process. I cannot see his innocence. What makes it more serious in his case is that Matric was a requirement for an appointment. [30] There are a number of statements that are not supported by the evidence on record, and that are in fact downright incorrect in the passage from the award above. Firstly, it is not correct that Moeketsi stated that he had a matric qualification. He wrote in the form that he has a Standard 10, which statement is not incorrect. In my view, the fact that he did not state Matric in the space, but 35 Para 13, p21.

16 Standard 10, indicates that he knew that he had not matriculated but has written and passed some subjects in standard 10. Rossouw testified that even the applicant was not certain about what the results submitted meant. Once it was found that they did not amount to a matric, corrective action was taken. There is therefore no justification for holding that Moeketsi was deceptive in that regard, and certainly no basis for holding that his statement amounts to intentional misrepresentation. It is also incorrect on the evidence that Moeketsi did not volunteer to have his subjects checked but was only exposed by the verification exercise. The evidence show that Moeketsi, unlike Singh, supplied a correct statement of results to the applicant. There is no requirement that an applicant for employment must volunteer to have their qualifications verified. They are obliged, however, to provide correct details to the employer, but it is the employer who must do the verification. It is also incorrect that Moeketsi was exposed through the verification exercise, as there was nothing he was hiding. There is no evidence showing that there was any variance between the statement of results supplied by Moeketsi and that which was obtained through the verification process, as happened in Singh s case. The Commissioner states further as follows 36 : [Singh on the other hand had Matric and the post required Matric. How one passed Matric was irrelevant in the recruitment process. It has become clear that the symbols were amended way before that [Singh] could be appointed by the respondent, which does not make it right though. I cannot however see how the Respondent was misled in this case as the symbols were not the requirement for appointment purposes but Matric, which the Applicant did possess [31] It is correct from the record that the symbols achieved in Matric were not specified as important. It is however perplexing how the arbitrator seemingly found that an act of dishonesty arising out of fraud and forgery will not be relevant in founding the charges of misconduct against an employee if they happened way before the employer discovered them. Dishonesty is not a 36 Para 14, 21.

17 biodegradable product that will wither away with time. Thus the employer cannot be found to have waived the right to take action simply because there is a lengthy period that spans between the time of commission and awareness of the act. The facts in this case do not even support that proposition. In this case, Singh continued to conceal the facts through omission and evasion, and even during the arbitration hearing itself, he continued to be mendacious. He made contradictory and inconsistent statements, presented facts that were not truly correct and denied others until he was confronted with evidence exposing him as untruthful. [32] Equally perplexing is the statement by the arbitrator is the statement that I cannot however see how the Respondent was misled in this case as the symbols were not the requirement for appointment purposes but Matric, which the Applicant did possess. This view also points at a misconstruction of the facts before him. The arbitrator has himself found 37 that these types of conduct affect the trust relationship between the employer and the employee, since they are acts of dishonesty. Singh submitted a forged and a defrauding certificate. He had created that certificate, certified it before the SAPS in 2008, and had intentions to use it as legitimate, valid document that proves his qualification in future transactions. This dishonesty goes to his character and credibility and it is unrealistic for any arbitrator to expect that the employer can surgically cut around the purpose of the use of that forged certificate each time it is used, in order to separate the current purpose for use from others, and then be content when at other times it is used for some purposes than those for which it was required in each case. It is equal to saying that it is correct to possess and use an illegal, unlicensed firearm, if it used to shoot at the hostage takers, and the hostages in the room. That process of logic would be irrational and would lead to an unreasonable outcome, as in this case. The arbitrators has made also the following finding: 37 Ibid, para 15.

18 [Mojanaga s] uncontested testimony regarding the offences committed by one Moeketsi and Brits requires some serious consideration. In the case of Moeketsi, evidence was that a medical certificate was altered but the perpetrator was left of the hook. Brits on the other hand committed theft (of certificates) but was only shifted from one section to the other, with no warning issued. These two offences are of serious nature and normally carry the dismissal as a sanction. 38 [33] There was no such evidence of a medical certificate before the arbitrator, forged or not. The testimony of Mojanaga in this regard stood to be rejected in its entirety for numerous reasons including it being a version that was never proven through a shred of evidence, and that it was never put to the applicant s witnesses when they testified. It is trite law 39 that the arbitrator is bound to provide reasons for their findings, especially in circumstances where the arbitrator is found compelled to consider and accept a version that is prejudicial to one party when that version was never put out to that party for a response before it was presented. The arbitrator had neither a witness nor a copy of the medical certificate that was forged by Moeketsi; nor the certificate allegedly stolen by Brits, nor a testimony by any credible witness who could attest to the allegations made nor to corroborate the evidence by Mojanaga. As a result, it is not clear why and how he came to accept that evidence as true. He also found as follows: Although the circumstances are different to the offence committed by the Applicant, they should have been visited with similar wrath and failure by the Respondent to do that goes straight in the face of Consistency as required by the LRA. 40 [34] The arbitrator puts it out there that different circumstances should be visited with similar outcomes and that failure to do that goes straight in the face of Consistency as required by the LRA. This, again, is an incorrect proposition and 38 Ibid. 39 Sidumo (CC). 40 Ibid.

19 misconstruction of a legal principle that was bound to lead the arbitrator to a wrong conclusion. Although the principle of consistency in our labour law regulation does not require sameness in treatment, but equity, it does, however demand that cases that are wholly parallel be treated similarly, bearing in mind that in the common cause, there will be variables that may justify deviation. The accepted maxim is that each case must be treated in accordance with its own circumstances. The demand for a similar wrath is based on a misconception and misinterpretation of the evidence that was before him. In so doing, the commissioner was acting irregularly. [35] In as far as harm is concerned, the arbitrator has relied, in my view, with a misreading of these judgements, on the cases of Fidelity Cash Management Services v CCMA and others, 41 Nedcor Bank Ltd v Frank and others. 42 and Edcon v Pillemer and another. 43 In the Fidelity case, the LAC posited that among others, the arbitrator must consider harm caused by the employee s conduct. There is no limit (minimum or maximum) as to the range of what harm may be caused. But of importance in the employment arena such could include harm on the employment relationship, by breaking it down irretrievably. I find the dishonesty of the employee in this case so unstoppable that there appear great prospects that he is wont to continue in the tendency to be dishonest for some foreseeable future. The lowliness of his credibility during the arbitration hearing, which the arbitrator himself has noted at times, indicates probable recidivism. As the LAC has noted in the Nedcor 44 case, a willingness by the employee to lie or act fraudulently will found the basis on which the employer can claim that there has been a breakdown in the employment relationship. There is sufficient evidence in this case to form that basis. 41 [2008] 3 BLLR 197 (LAC). 42 (2002) 23 ILJ 1243 (LAC). 43 (2008) 29 ILJ 614 (LAC). 44 (2002) 23 ILJ 1243 (LAC).

20 [36] The arbitrator has in fact accepted that Sigh s conduct was of a serious nature. He states as follows in the award: 45 It is beyond dispute that the applicant committed the said offence, which is viewed as serious by the Respondent. The Legal Principles applicable to cases involving inconsistency [37] From the conspectus of judgements in the labour courts 46 on the subject of Inconsistency, can be gleaned that the reasonable principle in the consideration of fairness require that inconsistency in the treatment of employees exists in truly parallel circumstances', which suggests that it will not be reasonable to dismiss one of the employees and not the other, after all those circumstances in the merits of each were found similar. Furthermore, what augurs for this principle is that there will always be an inherent variation in the conduct of different people, which is random, always present and will affect the outcome of subsequent assessments of it. Sameness therefore cannot be equated to an element of fairness in the requirement for consistency in the treatment of even kindred behaviours, as not two cases can present circumstances exactly the same. [38] All the cases mentioned in footnote 42, as well as a whole lot others, underline that within the principle of consistency, lies an equally important principle requiring flexibility in its application. They hold that consistency requires a value judgement in each case. [39] Thus, in Early Bird Farms, 47 the LAC held that: like cases should be treated alike. In appropriate cases an Employer may be justified in differentiating 45 Para 16, Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC); Cape Town City Council v Masitho & others (2000) 21 ILJ 1957 (LAC); Greater Letaba Local Municipality v Mankgabe NO and others [2008] 3 BLLR 220 (LC); CEPPWAWU v NBCCI and Others [2011] 2 BLLR 137 (LAC); SACCAWU and Others v Irvin & Johnson (1999) 20 ILJ 1957(LAC); NUM and another v Amcoal Colliery t/a Arnot Colliery and another [2000] 8 BLLR 869(LAC) and Southern Sun Hotel Interests (Pty) Ltd v CCMA & others [2009] 11 BLLR 1128 (LC). 47 [1997] 5 BLLR 541 (LAC);

21 between two employees guilty of the same transgression on the basis of their personal circumstances or on merits. This court has also found in Greater Letaba, that (emphasis are mine) where there is nothing else to distinguish the one from the other, it is of vital importance that consistent sanctions are constantly imposed on Employees found guilty of the same misconduct. This is the general rule of the principle of consistency. The same thread followed by the LAC in Gcwentsha v CCMA & Others 48 where flexibility was supported in in this way: Disciplinary consistency is the hallmark of progressive labour relations that every employee must be measured by the same standards when comparing employees care should be taken to ensure that the gravity of the misconduct is carefully evaluated The court has also stated categorically in Southern Sun Hotel Interests (Pty) Ltd v CCMA & others 49 that an inconsistency claim will fail where Employer is able to differentiate between Employees who committed similar transgressions on the basis of, inter alia, differences in personal circumstances, the severity of the misconduct or on the basis of other material factors. 50 [40] In NUM and another v Amcoal Colliery t/a Arnot Colliery and another, 51 the court said the following: The parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike. It was not intended to force an employer to mete out the same punishment to employees with different personal circumstances just because they are guilty of the same offence. [41] This above is to say that even in cases that are similar, it must be expected that there will (i) always be some inherent variances that (ii) are random, (iii) affecting different employees, and (iv) will determine different assessment and outcomes. It is certain though, that the gravity of the offence is the grandest factor causing the variances, and must always be scrutinised with greater care. 48 (2006) 3 BLLR 234 (LAC). 49 [2009] 11 BLLR 1128 (LC). 50 See also in this regard Clarke v Madau NO & Others (2007) 28 ILJ 2584 (LC). 51 [2000] 8 BLLR 869(LAC), at para 19.

22 [42] The offences committed by Singh in this case can thus not be said to be similar to allegations levelled against Moeketsi. There was fraud and deception, on the one hand, and there was none on the other. Both employees were given opportunity to explain their submissions in the Z83, and Singh, unlike Moeketsi, continued to be ambiguous and dexterous and dodgy. There is nothing forged or deceptive in Moeketsi s case, unlike in Singh s. The applicant acted, in my view, conscientiously and honestly, but incorrectly, by assuming that Moeketsi had passed Standard 10, but properly corrected their error by re-appointing him on a lower position, which he accepted. They did so because they believed there was no dishonesty or deception on his part. On the other hand, Singh had been found deceptive and dishonest. Conclusions [43] A test for review is premised on the important determination of whether an evaluation of evidence which was before the arbitrator as well as the as the issues that the arbitrator was required to determine, and the outcome he arrived at, was reasonable or not. In Herholdt, it is directed that this court must first find that the arbitrator has misconceived the nature of the inquiry or arrived at unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material error of a fact, as well as the weight and relevance to be attached to the particular facts are not in and of themselves sufficient for an award to be set aside, but are only of consequences if their effect is to render the outcome unreasonable. [44] In Goldfields Mining SA (Pty) Ltd (T/a Kloof Gold Mine) v CCMA and others 52, the LAC concludes as follows 52 (2014) 35 ILJ 943 (LAC) At par 21.

23 Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome (See Minister of Health and another NO v New Clicks SA (Pty) Ltd & others 2006 (2) SA 311 (CC)). But again, this is considered on the totality of the evidence not on a fragmented piecemeal analysis. As soon as it is done in a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal, a fragmented analysis rather a broad evaluation of the totality of the evidence defeats the review as a process. It follows that the argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and reasonable there is no room for conjecture and guesswork. [45] It is patent from the examination of the court documents that the arbitrator took notes but quite casually, without sufficient detail, and thus abridged his personal record so much that he missed out the assessment of pertinent oral evidence regarding material facts that was before him when he wrote the award. This is clear when one considers the disconnect between the record, the reasoning and the award. He was therefore unable to give sufficient attention to pertinent details and facts that could have led to a reasonable decision. It is also not clear why the arbitrator accepted some evidence of allegations against Brits and Moeketsi s alleged theft of documents, with nothing before him to corroborate those except the say so of Mojanaga only. It is accepted norm that arbitrators cannot take into account the evidence that they are legally precluded from considering, and that if they do so, their action would be regarded an irregularity for the purposes of the LRA. 53 [46] The reasoning of the arbitrator as reflected in his award indicates that he did not consider the evidence wholly and therefore incorrectly applied principles of law, as shown in the evaluation above. Accordingly the determination by the Arbitrator 53 Sasol Mining (Pty) ltd v Ngqeleni N.O &Others 2011 (32)ILJ 723 (LC)

24 that Respondent has failed to prove that he was consistent in applying the rules which saw the Applicant s dismissal and that the Respondent further failed to prove that the dismissal was an appropriate sanction is found to be unreasonable and it is therefore reviewed. It is my view is that any other reasonable decision-maker could have reached different conclusions to the one the arbitrator reached given that there are patently stark differences between Singh and the comparator s circumstances. The employee had the evidentiary burden to prove the existence of inconsistency but has not succeeded to discharge it in this case. [47] The applicant was entitled to dismiss the third respondent and I find therefore that his dismissal was substantively fair. The court has no reason to return the matter to the second respondent for a new hearing. [48] In dealing with the issue of costs, both parties in their heads of argument ask for an award of costs and no submissions were made to the contrary in Court. I can therefore see no reason why costs should not follow the result in this matter. Order [49] In the premises, I make the following order: 50.1 The third respondent s award, issued under the auspices of second respondent in case number GPBC 1230/2013 on the 17 December 2013, is hereby reviewed and set aside The dismissal of the third respondent was substantively fair, and is upheld The third respondent is ordered to pay the costs of this application.

25 Mosime, AJ Acting Judge of the Labour Court of South Africa APPEARANCES: For the Applicant: Instructed by: For the Third Respondent: Instructed by: Adv P. Kirstein VDT Attorneys Mr K.A Tema Mafa Attorneys, Pretoria.