About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 109
|
|
DSV Healthcare (Pty) Ltd v Maduna N.O and Others (JR1074/20) [2024] ZALCJHB 109 (6 March 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR1074/20
In
the matter between:
DSV
HEALTHCARE (PTY) LTD
Applicant
and
PULENG
JOYCE MADUNA N.O
First Respondent
NATIONAL
BC FOR ROAD FREIGHT AND
LOGISTICS
INDUSTRY
Second Respondent
LANGUTA
VICTOR CHAUKE
Third Respondent
Heard:
10 January 2024
Delivered:
06 March 2024
(This
judgment was handed down electronically by circulation to the
parties’ legal representatives, by email, publication
on the
Labour Court’s website and released to SAFLI. The date on which
the judgment is delivered is deemed to be 06 March
2024.)
JUDGMENT
BUIRSKI,
AJ
Introduction
[1]
At the outset of this hearing, both parties
agreed to condone each other’s respective procedural failings
in presenting their
respective cases to the Court. Hence in the case
of the Applicant (DSV Healthcare), this meant that the 3
rd
Respondent (Chauke) agreed to condone the late filing of the review
application and in the case of Chauke, DSV Healthcare agreed
to
condone the late filing of the latter’s answering affidavit. In
my view, questions of condonation will not alter the outcome
of this
matter, this matter is decided on the merits only and on the basis
that condonation to all parties is granted.
Material facts and
evidence
[2]
Chauke was dismissed on 27 March 2019 after
having been found guilty of a number of offences, including gross
negligence and dereliction
of duty in that on 13 December 2018, pin
IHD00065372128 went missing and that Chauke did not follow standard
operating procedure
and the parcel was only located on 23 January
2019. It was cold chain stock and due to the delay, it was out of
validation and
therefore had to be written off. This resulted in a
loss of R263 848.50 to the company.
[3]
Chauke thereafter referred his dismissal to
the CCMA and secured an award in his favour from Commissioner Puleng
Joyce Maduna (Commissioner)
who on 14 February 2020 found the
dismissal of Chauke to be substantively unfair and ordered his full
and retrospective reinstatement.
[4]
This is the award which I am asked by DSV
Healthcare to review and set aside.
[5]
Any
Commissioner called on to arbitrate and determine disputes involving
acts of negligence or gross negligence, should always in
assessing
the validity of the charge, attempt to place him/herself in the
position of that somewhat gormless figure, the
diligens
paterfamilias
,
and then attempt to understand what steps, if any, he or she would
take so as to guard against his or her conduct causing injury
to
another and causing it patrimonial loss were he/she so placed and
having done so, then to measure those notional steps with
the steps
actually taken by the defendant. For negligence the question of
whether or not a particular person has acted negligently
is always a
very fact specific question. Nowhere is this test better stated and
set out than in the famous
dictum
of Holmes JA in
Kruger
v Coetzee
[1]
where the Court held that:
‘
For
the purposes of liability
culpa
arises
if-
(a)
a
diligens
paterfamilias
in the position of the
defendant-
(i)
would foresee the reasonable possibility of his conduct injuring
another in
his person or property and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.
This
has been constantly stated by this Court for some 50 years.
Requirement (
a
)
(ii) is sometimes overlooked. Whether a
diligens
paterfamilias
in the position
of the person concerned would take any guarding steps at all and, if
so, what steps would be reasonable, must always
depend upon the
particular circumstances of each case. No hard and fast basis can be
laid down. Hence the futility, in general,
of seeking guidance from
the facts and results of other cases.
(own emphasis)
[6]
It is a test that the Commissioner in this
matter manifestly failed to apply.
[7]
The facts of this matter are well recorded
in the award.
Analysis
[8]
The company DSV Healthcare conducts
business in the pharmaceutical industry where it administers stock on
behalf of its clients
by managing the sale and delivery of products
for its clients. The company deals with pharmaceutical goods and
lifesaving medicine
which when received is supposed to be stored in a
special condition failing which it will lose its viability.
[9]
Once the goods are received, they have to
be packed and delivered to the client within the validation period. A
box is validated
in under 72 hours and a large parcel known as
Kryoton must be validated within 144 hours (6 days), which period, if
exceeded, will
result in damage to, and the writing off of, its
perishable contents. If a parcel is misplaced it has to be reported
and must be
kept in a fridge if it cannot be delivered immediately.
[10]
Chauke was a Zone Leader and was employed
by DSV Healthcare as such.
[11]
On 13 December 2018, three parcels were
received by DSV Healthcare at the workplace where Chauke operated.
One went missing immediately.
It was a Kryoton (that is a large
parcel) valued at R278 000.00 and looks like a freezer and is easy to
locate. The fact that this
parcel went missing came to Chauke’s
attention who on 14 December 2018 sent an email that the order was
not received in full.
The validation period would have expired on 20
December 2018.
[12]
Yet Chauke, having reported the matter on
14th December, thereafter did nothing more about the matter, until he
returned from leave
in January the next year. According to the
uncontradicted evidence of Chauke’s direct superior Rayno Sass,
Chauke only escalated
this matter to him when he came back from leave
in January 2019.
[13]
Chauke testified before the Commissioner.
He said he was a Zone Controller rather than a Zone Leader. He
admitted that on 14 December
2018, a Kryoton was missing and that he
had sent an email to Longmeadow in this regard. He said he was
wrongly dismissed and placed
the blame on others. Whereas he did
everything he had to do and took the initiative by reporting the
matter on 14 December 2018,
that did not mean he was responsible. The
correct procedure was not followed by the night shift when they
received the fridge stock.
The people responsible were not charged.
[14]
The Commissioner in her award devotes the
first portion of her analysis to the question of whether Chauke was a
Zone Leader or a
Zone Controller. The question was clearly irrelevant
as all employees, irrespective of status and seniority, owe their
employer
a duty of loyalty and good faith, and Chauke’s duty to
follow up on the whereabouts of the missing parcel would have been
no
different had he been Zone Leader or Zone Controller.
[15]
The Commissioner found next that “
it
is not disputed that the Applicant [Chauke] failed to look for the
parcel”
. Save for considering the
implications of this failure with respect to the charges for which
Chauke was found guilty, including
that of gross negligence, this
finding should have ended her enquiry.
[16]
The Commissioner, however, proceeded to
accept Chauke’s contentions that it was the night shift who was
actually to blame.
As the night shift had actually received the
parcel, the Commissioner found that DSV Healthcare was inconsistent
in failing to
dismiss the night shift Zone Leader as well it was this
person who had failed, so she found, she had to scan the parcel as
per
the company policy.
[17]
In the above regard, the Commissioner erred
and reviewably so.
[18]
Firstly,
the Commissioner was in no position to make this adverse finding
against the unnamed night shift Zone Leader, as this person
was not a
witness in the arbitration proceedings before her. Secondly, and
perhaps more importantly because this/these people /s
were never
identified – a failure that continued into these review
proceedings - any finding of inconsistency was always
going to be
incompetent in that the jurisdictional facts necessary for such a
finding were not present. There is no evidence that
DSV Healthcare
knew that there were other persons who were potentially guilty of
this misconduct, apart from Chauke, and who were
similarly placed to
him, both in their knowledge of the missing item and in failing to
follow up on its disappearance. It is trite
that an inconsistency
challenge will fail when the employer does not know of the misconduct
allegedly committed by the employee
used as a comparator (
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[2]
).
[19]
The Commissioner accordingly erred in
finding inconsistency as she did.
[20]
More importantly, and because she allowed
herself to be side-tracked down the blind alley of inconsistency, she
erred in failing
to apply her mind to the facts of Chauke’s
misconduct and in failing to find Chauke guilty of the gross
negligence of which
he was indeed guilty.
[21]
She erred in failing to determine that a
reasonable employee in Chauke’s position was required to do
much more than he did.
Such an employee who on 14 December 2018
discovered that this particular Kryoton worth R278 000 had gone
missing and who at all
times was aware that its validation period was
6 days and that thereafter this product would expire, would not have
contented himself
with a single email written on 14 December. Such an
employee would have followed up with further emails and actions well
knowing
that by neglecting to do anything further, there was a
reasonable possibility that this conduct would cause his employer DSV
Healthcare
to suffer loss. Unlike Chauke, the reasonable employee
would have taken reasonable steps to guard against such an
occurrence. Such
an employee would, for example, have escalated the
matter to his superior within the validation period. It is common
cause that
Chauke never took these steps. The arbitration record
indeed contains a very interesting admission made by Chauke under
cross-examination
being, “
the only
thing I did not do was escalate”
.
It was precisely however, this type of non-action on his part that
served to render him guilty of the misconduct for which he
was
dismissed.
Conclusion
[22]
The Commissioner erred in finding
otherwise. Her award accordingly is not one that a reasonable
decision-maker could have reached
on the material which was served
before her. It falls to be reviewed and set aside. DSV Healthcare has
asked that I substitute
this award with an order declaring that
Chauke’s dismissal was fair.
[23]
In the premises, I make the following
order:
Order
1.
The award of the Commissioner is
accordingly so substituted with a finding that the dismissal of the
3
rd
respondent was fair.
2.
No order is made as to costs.
____________________
P. Buirski
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr Francois van der Merwe
Instructed
by:
Darren Ledden Inc.
For
the 3
rd
& 4
th
Respondent: Ms Mmasello
Madiwana
Instructed
by:
Legal Aid
[1]
[1966]
2 All SA 490
(A).
[2]
[2009] ZALC 68
;
[2009] 11 BLLR 1128
(LC).