SSC Infrasek (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others

The third respondent, Mr A Moses, was dismissed for gross dishonesty after being found guilty of removing a second-hand cutter from the logistics store's second-hand tool shelf and presenting it to the logistics manager, Mr Spence, as his own in order to receive a new cutter. CCTV footage showed Moses first taking a new cutter and then seconds later taking an old one from another shelf. Moses claimed he had left his own cutters at home and needed a pair for the day. The managing director, Mr Venter, gave Moses a pre-hearing opportunity to explain, but Moses did not admit wrongdoing. In contrast, other employees who had committed similar acts of dishonesty but admitted guilt and showed contrition before disciplinary inquiries were issued final written warnings instead of being dismissed. Moses was dismissed after a disciplinary inquiry. The arbitrator found Moses guilty of dishonesty and that the dismissal was procedurally fair, but ruled it was substantively unfair due to inconsistent treatment compared to other employees. The employer applied to review this finding of substantive unfairness.

• Whether the arbitrator committed a reviewable irregularity in finding the dismissal substantively unfair on grounds of inconsistency
• Whether an admission of guilt and expression of contrition by other employees was a legitimate distinguishing factor justifying different sanctions for similar misconduct
• Whether the arbitrator erred in law by treating remorse and admission of guilt as irrelevant factors in determining appropriate sanctions for dishonesty

The arbitrator's finding that the employer acted inconsistently in dismissing Moses and his consequent finding that the dismissal was substantively unfair, together with the relief ordered (reinstatement), were reviewed and set aside. These findings were substituted with a finding that the dismissal of Moses was substantively fair. No order was made as to costs.

An admission of guilt, apology, and expression of contrition by an employee prior to or during disciplinary proceedings constitute legitimate and material distinguishing factors that justify imposing different sanctions for similar misconduct. An arbitrator commits a reviewable irregularity when he or she fails to consider or treats as irrelevant the presence or absence of remorse, admission of guilt, and contrition when determining whether an employer has acted inconsistently in imposing different sanctions for similar misconduct. Such factors are recognized in CCMA guidelines and established jurisprudence as circumstances that may justify differential treatment. An employer does not act inconsistently when it imposes a lesser sanction on employees who admit wrongdoing and show contrition compared to an employee who denies guilt despite overwhelming evidence of dishonesty.

The court noted, in passing, that the arbitrator's failure to impose even a final written warning when ordering reinstatement was itself inconsistent with the outcomes in the comparator cases where employees who admitted dishonesty received final written warnings. The court also observed that the employer's use of random lie detector tests for all employees provided an additional safeguard when retaining employees who had been given final warnings for dishonesty, supporting the employer's decision to give second chances to those who showed remorse.

This case is significant in South African labour law as it reinforces the principle that an employee's admission of guilt, apology, and contrition are legitimate and material factors that employers may consider when deciding on appropriate sanctions for misconduct. It clarifies that differential treatment based on such factors does not constitute inconsistency and confirms that arbitrators commit reviewable irregularities when they treat remorse and admission of guilt as irrelevant factors in determining sanction. The judgment upholds the CCMA's own guidelines on misconduct arbitrations which recognize remorse as a justifying circumstance for different sanctions. It also affirms that employers may adopt a consistent approach of giving employees opportunities to admit wrongdoing before disciplinary proceedings and may legitimately impose lesser sanctions on those who take accountability for their actions compared to those who deny wrongdoing despite evidence to the contrary.