DON’T LIGHTLY DEPART FROM THE DISCIPLINARY CODE

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Introduction

Most companies state quite categorically that the disciplinary code is a guideline. It is usually also recorded that it is not exhaustive, meaning that there are instances of misconduct which were not included in the code. It is understood that even these so-called unlisted acts of misconduct may attract a number of different sanctions, depending on the facts.

In the matter of Mushi v EXXARO Coal (Pty) Ltd Grootegeluk Coal Mine (JA62/2018) [2019] the Labour Appeal Court was recently required to determine whether an employer could deviate from the recommended sanctions which are stated quite clearly in the disciplinary code next to the different acts of misconduct.

Facts

The employee, Hosea Mushi, was employed by the employer, Exxaro Coal (Pty) Ltd at the Grootgeluk Coal Mine, for 24 years when he was dismissed following a disciplinary hearing.

On 10 March 2015 at around 22h50, the employee was 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 appellant to continue loading and undertook to observe the loading process. Shortly thereafter the foreman informed the appellant 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 denied that he had undermined the authority or threatened the life of the supervisor.

Although the disciplinary code was only a guideline, it stated that such an act of misconduct should attract a final written warning.

The chairperson disregarded the recommended sanction and dismissed him for having refused to obey the foreman’s instruction, for having committed ‘unsafe acts’ while driving the truck, and for improper behaviour in operating the truck after the foreman was proceeding towards it.

At arbitration, the employee was retrospectively reinstated with a final written. The employer took the Award on review.

The Labour Court disagreed with the arbitrator and confirmed the dismissal.  This prompted the employee to take the matter on appeal to the Labour Appeal Court (the “LAC”).

 

The LAC judgment

One of the main issues dealt with by the LAC was the question of what the purpose and function of a disciplinary code is.  In this regard the LAC held as follows:

[11]       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 (Emphasis added).

The LAC further commented on the fact that the arbitrator was aware that the employee had a clean disciplinary record, long service and that the disciplinary code recommended a final written warning for the type of misconduct committed. The arbitrator correctly concluded that the imposition of the sanction of dismissal was too harsh. He had accordingly endorsed the concept of corrective or progressive discipline when he retrospectively reinstated the employee with a sanction of a final written warning.  The LAC continued to say the following:

[13]       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.

The importance of this Judgment

The importance of this judgment is summarised in paragraph 11 thereof where the LAC held that:

  • Disciplinary rules are intended to create a degree of certainty and consistency in the application of discipline in the workplace
  • Even if the disciplinary code is styled as a guideline, a departure therefrom should not be arbitrary or without a valid reason.
  • Regard must be had to recommended sanctions.
  • An appropriate sanction is one for which there is both “plausible and reasonable justification” after the finder of fact has had “regard to the gravity of the misconduct and relevant aggravating or mitigating factors.”