In National Education Health and Allied Workers Union on Behalf of Buqa v Department of Health (Western Cape) and Others (2022) 43 ILJ 2363 (LC), the employee was employed by the Department of Health (the employer) at the New Somerset Hospital. While on duty, the employee stole a backpack belonging to a patient while the patient attended the hospital for a surgery. Having been charged with misconduct, the employee pleaded guilty and was subsequently dismissed.
The employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration. During the arbitration proceedings, the employee submitted that he had stolen the backpack from the kit room at emergency care while the patient was in surgery because his son needed a backpack for school. His shift had ended when the patient’s husband arrived to collect the backpack. When he returned to work the following morning and found out that everyone was looking for the backpack, he sought to return the backpack to the patient.
Having admitted guilt, the crux of the employee’s argument before the arbitrator was that in dismissing him for misconduct the employer had acted in an inconsistent manner in relation to other employees who were found guilty of similar acts of misconduct. The arbitrator did not agree with the employee’s argument and found that the dismissal was fair.
The employee took the arbitrator’s award on review and alleged, among other things, that the arbitrator had disregarded evidence that the employer had previously condoned incidents of theft in the workplace and failed to appreciate the leniency that the employer had previously afforded employees who had committed similar acts of misconduct. Ultimately, the employee contended that the arbitrator arrived at a decision that no reasonable decision maker could have arrived at.
The Labour Court found that the employee had been brazen about his misconduct, which was criminal in nature. It appeared that the employee was comfortable being frank about his criminality as he believed, or had been advised, that because his colleagues were not dismissed for similar misconduct, a precedent had been created by the employer from which he too should benefit. In this regard, the employee’s representative argued that when the principle of inconsistency is raised, the employer was required to show that there was no bias and to justify why the employee was treated differently, which the employer had failed to do.
The court referred to the judgment of Capitec Bank v CCMA and Others (LAC) (unreported case DA5/2019, 30-9-2022) in which the Labour Appeal Court reiterated the principles relating to inconsistency. In this regard, it was held that historical inconsistency requires an employer to apply a penalty consistently with the way it has been applied to other similarly situated employees in the past. However, where an employer can demonstrate a legitimate basis on which to differentiate between employees, whether due to the seniority, the severity of the misconduct or other material factors, inconsistency will not have been proved.
The court held that a material factor would include cases where the underlying misconduct amounts to a serious criminal offence, such as theft. It cannot be that employees can engage in blatant criminal conduct and then argue that they should not be dismissed because others who had committed similar conduct were not dismissed. To make matters worse, the employer in this case was a state hospital and is required to provide services to the most vulnerable in our society. The patient visited the hospital to access these services.
The court also noted that there was no requirement to warn employees that dishonest practices may lead to dismissal as this would suggest that employees need to be reminded of the core values of honesty and integrity. In this case, the employer was not prepared to tolerate the theft by the employee, and it should not be obliged to do so because of the lenient approach which it and other hospitals may have previously adopted.
In summary, the court held that historical inconsistency cannot be invoked by an employee when the underlying misconduct involves serious criminal conduct. Moreover, it is irrelevant whether the employer informed its employees that the conduct will no longer be tolerated and may lead to dismissal.
The review application was dismissed with no order as to costs.
Nadine Mather
