A recent decision by the Labour Appeal Court (LAC) in Algoa Bus Company (Pty) Ltd v Tirisano Transport and Services Workers Union (TASWU) obo Mzawi and Others considers an employer’s onus in proving the fairness of a dismissal for misconduct, particularly when it comes to the appropriateness of dismissal as a sanction. In its judgment, the LAC confirms that there is no obligation in law on an employer to adduce evidence on the appropriateness or suitability of dismissal as a necessary condition to proving fairness.

The facts

In this case, the employee, Ms Xoliswa Mzawi (Ms Mzawi), was employed by Algoa Bus Company Pty (Ltd) (Algoa) as a bus driver until her dismissal, after being found guilty of reckless and negligent driving that resulted in an accident.

Aggrieved by the dismissal, she referred an unfair dismissal dispute to the South African Road Passenger Bargaining Council. The Commissioner upheld Ms Mzawi’s dismissal as fair.

Dissatisfied with the arbitration outcome, Ms Mzawi, represented by Tirisano Transport and Services Workers Union, instituted review proceedings at the Labour Court. The Labour Court reviewed and set aside the arbitration award and reinstated Ms Mzawi.

This led to Algoa’s appeal against the Labour Court decision.

The arbitration proceedings

It transpired during the arbitration proceedings that Ms Mzawi, who had been in the employ of Algoa for approximately six years, was involved in a serious collision with a minibus taxi in an area she was familiar with and on a route that she frequently travelled. The collision took place after Ms Mzawi drove through a red traffic light.

The conduct was captured on video footage recorded by a camera mounted in the bus she drove, which also showed Ms Mzawi accelerating when the traffic light was amber. Ms Mzawi, who maintained that she had driven through the intersection while the lights were still amber and that it was the minibus taxi who had caused the collision, contended that the accident was not serious, since there were no injuries sustained. She also argued that the appropriate sanction ought to have been a final written warning, which is the prescribed penalty in Algoa’s Disciplinary Code and Procedure (Code) for driving through a red traffic light. This is notwithstanding the Code stating that the prescribed sanction for driving through a red traffic light, where there are consequences, would be a dismissal.

The Commissioner found that Ms Mzawi, who was employed as a professional driver, had contravened the road traffic rules and had shown no remorse for her conduct. The Commissioner found that the sanction of dismissal for the misconduct was appropriate and in line with Algoa’s Code, and that Ms Mzawi’s conduct had undermined the trust relationship on which the employment relationship was built. Ms Mzawi’s dismissal was accordingly upheld by the Commissioner.

The Labour Court proceedings

While the Labour Court accepted the Commissioner’s factual findings in respect of the misconduct committed and that, on the evidence, Ms Mzawi had been correctly found guilty of the misconduct for which she was dismissed, it found the Commissioner’s award wanting in relation to the second leg of the fairness enquiry (ie the appropriateness of the sanction of dismissal).

In this regard, the Court found that Algoa was obliged to adduce evidence to sustain the contention that dismissal was appropriate. This, the Court held, required evidence, for example, that the trust relationship between the employer and employee had broken down.

In the Labour Court’s view, this evidence had not been presented at the arbitration and the Commissioner’s finding that the dismissal was fair in the circumstances was based on speculation.

Further, the Labour Court was not convinced that Ms Mzawi’s misconduct fell within the category of serious misconduct that is antithetical to any employment and in respect of which a breakdown in the trust relationship can be assumed, such as would be the case in instances of gross dishonesty, assault, etc.

On this basis, the Labour Court found that the Commissioner had misconducted himself in arriving at the conclusion that the dismissal was fair, which conclusion fell outside of the bounds of reasonableness.

The Labour Court accordingly set aside the arbitration award and ordered that Ms Mzawi be reinstated into Algoa’s employ, with effect from the date of her dismissal.

The Labour Appeal Court proceedings

On appeal, the LAC found that the Labour Court had erred in upholding the review, as it had misconceived the nature of the enquiry to be made in the determination of the appropriateness of dismissal as a sanction.

The LAC highlighted the Constitutional Court’s judgment in Sidumo & another v Rustenburg Platinum Mines & Others, which specifically enjoined arbitrators to consider all the relevant circumstances. The CCMA Guidelines on Misconduct Arbitration repeat this injunction to make a value judgment as to the fairness of the employer’s decision to dismiss, considering all the relevant circumstances.

In this respect, the LAC held that the absence of any specific evidence regarding a breakdown or deterioration in the employment relationship is not a basis to set aside an arbitration award upholding a dismissal.

The LAC reiterated that the existence of serious misconduct can lead to a finding that a dismissal should be upheld, without evidence of any breakdown in trust. The Court added that, while a deterioration in the trust relationship may be a relevant or even significant factor in determining the fairness of a dismissal, more often than not, the evidence of the nature and extent of the employee’s misconduct will be sufficient for an arbitrator to exercise the required value judgment on the fairness of dismissal as a sanction.

The LAC further held that the threshold for review when an arbitrator’s decision on sanction is sought to be set aside is deliberately set high, and that a review court cannot intervene simply because it thinks that the arbitrator was wrong, or because it would have rendered a different decision on the same evidence.

Finally, the LAC found that, in line with Algoa’s Code, evidence had been presented regarding the seriousness and nature of the misconduct and the actual or potential consequences. While this evidence may not have been led in a mechanistic fashion, this was not what was required.

The Court found that the Commissioner had holistically considered all the facts before him, including that Ms Mzawi saw the amber traffic light as the road was clear with no obstructions, had accelerated rather than applied her brakes to bring the bus to a stop, and drove through a red traffic light, which led to serious consequences in that there was a collision with another vehicle.

He also considered Ms Mzawi’s denial of any misconduct and lack of remorse, which suggested that corrective discipline was unlikely to cure her behaviour.

Based on this, the Commissioner’s assessment of the evidence regarding the appropriateness of dismissal as a sanction could not be faulted, and there could be no question that the decision was one which a reasonable decision-maker could have reached.

The LAC accordingly upheld the appeal and set aside the decision of the Labour Court.

Key takeaways

This case confirms that there is no general obligation on an employer to lead specific and discreet evidence as to the appropriateness of dismissal as a sanction for misconduct to show that the dismissal was fair.

However, it also emphasises how important it is for an employer to present sufficient evidence, including in relation to the nature and seriousness of the misconduct and its consequences, so that the fairness of the dismissal can be assessed from the totality of the evidence before the arbitrator.

Written by Amandla Makhongwana, Senior Associate and Chloë Loubser, Knowledge and Learning Lawyer at Bowmans Law South Africa