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[2024] ZALCJHB 129
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Sphinx Acrylic Bathroom Ware (Pty) Ltd v Conciliation Mediation and Arbitration and Others (JR865/21) [2024] ZALCJHB 129 (6 March 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR865/21
In the matter between:
SPHINX ACRYLIC
BATHROOM WARE (PTY) LTD
Applicant
And
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First
Respondent
REFILOE NONYANE
N.O.
Second
Respondent
ADZIAMBEI VICTOR
NGOBELI
Third Respondent
Heard:
6 March 2024
Delivered: 12 March
2024
T
his
judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time
for hand-down
is deemed to be 12 March 2024
JUDGMENT
MAKHURA, J
Introduction
[1]
On
21 April 2021, the second respondent (commissioner) issued an award
declaring that the dismissal of the third respondent (employee)
by
the applicant (company) was substantively unfair and ordered
retrospective reinstatement from the date of the employee’s
dismissal. Aggrieved by the commissioner’s decision, the
company launched these proceedings in terms of section 145 of the
Labour Relations Act
[1]
(LRA),
to review and set aside the award and substitute it with an order
that the dismissal was substantively fair. The employee
opposes the
application.
Material facts
[2] The
company produces sanitaryware such as toilets, cisterns and basins.
It operates 24-hour shifts, 7
days a week. The employee was employed
as a Sanwright in the Clay Preparations department and was
responsible for, inter
alia
maintaining machinery and ensuring
that the area underneath the mills was clean. He supervises about
four employees, who are employed
as Process Controllers. The Process
Controllers are responsible for inter
alia
carrying out the
actual work of cleaning around and underneath the mills and general
housekeeping functions.
[3] On
17 February 2020, the company issued the employee with a written
warning, in accordance with its disciplinary
code. The employee was
alleged to have failed to obey a fair and reasonable request to clean
underneath mills 1 to 4. The written
warning specified that a second
or further transgression will attract a sanction of final written
warning or dismissal. The disciplinary
code provides that a second
transgression would attract a sanction of a final written warning.
The disciplinary code does not set
out the period of validity of the
written warning. The written warning issued against the employee did
not stipulate the period
of validity. However, the company said that
the written warning was valid for 12 months.
[4] On
Friday, 6 November 2020, the employee reported for duty and knocked
off at 14h00.
[5] On
Saturday, 7 November 2020, the company’s Senior Factory
Manager, Gerard Maartens (Maartens),
reported at the company at
approximately 7h30. He took photographs of the area and instructed
Siphamandla Ngubane (Ngubane), the
employee’s line manager, to
investigate the incident. There is no evidence to suggest that the
investigation was conducted.
[6] On
Monday, 9 November 2020, the employee was issued with a charge sheet
and called to a disciplinary
hearing on 11 November 2020. He faced
the following allegation of misconduct:
‘
F1 Creating /
contributing to poor safety / health / housekeeping or loss control
conditions.’
[7] The
nature of the incident giving rise to the above charge was set out as
follows:
‘
On the 07/11/2020
at 07h37 Housekeeping underneath the mills was not up to standard as
Mr Ngobeli has agreed from his last warning
to keep the place clean
at all times.’
[8] The
disciplinary hearing was scheduled for 11 November 2020. During the
disciplinary hearing, the employee
stated that he ensures that he
cleans when he performs maintenance on the mills. The employee also
invited the chairperson and/or
company to call one of the Process
Controllers to ask about the housekeeping rules. The employee
informed the disciplinary hearing
that when he knocked off at 14h00
on 6 November 2020, the area was clean.
[9] The
company dismissed the employee on 12 November 2020. The employee
declared an unfair dismissal dispute
and referred it to the
Commission for Conciliation, Mediation and Arbitration (CCMA).
The arbitration
proceedings and award
[10] At
the CCMA, the company called Maartens and Ngubane. The company’s
case was that it was impossible
for the area to have deteriorated to
the state in which Maartens found it at 7h37 on 7 November 2020 in
the preceding 17 hours
(from 14h00 on Friday to 7h00 on Saturday). In
essence, the company’s argument was that based on the condition
Maartens found
the area in on 7 November 2020, it could not have
deteriorated to that level if the area had been cleaned before the
employee knocked
off the previous day. The company contended that it
could have taken over a week for the area to deteriorate to that
condition.
[11] The
employee maintained his evidence from the disciplinary hearing that
when he left at 14h00 on Friday,
the area was clean. The employee
also relied on the company’s disciplinary code that he should
not have been dismissed as
this was his second offence. He argued
that the company should have instead sanctioned him with a final
written warning, in accordance
with the disciplinary code.
[12] The
commissioner found the version of the employee that he left the area
clean to be probable. She proceeded:
‘
When the applicant
knocked off, he would have handed over to someone on a daily basis,
which could have been noticed on a spot that
the handover was not in
accordance with the expectation of the company. The applicant’s
manager could have noticed on the
spot if the environment was not in
proper condition. The respondent’s witnesses testified that it
could have taken over a
week for the environment to be that dirty,
the question would be why the company failed to address it at that
stage and waited
for the applicant to be off to notice it. The
applicant submitted that, he would not be released if the conditions
of the environment
were not in proper condition and that managers
were in when he knocked off.’
[13] The
commissioner continued to find that the sanction of dismissal was
inappropriate and harsh. She found
that the appropriate sanction
would be a final written warning and that dismissal was not in
accordance with the disciplinary code.
She concluded:
‘
The Code of
Conduct was there as a guideline to ensure that there was consistency
in dealing with the employees. The applicant was
issued with the
second written warning for his first offence. Therefore, the next
sanction could have been a final written warning
and not a
dismissal.’
Grounds for review
[14] The
company advances three grounds for review.
[15]
First,
the company contends that the commissioner was confronted with two
conflicting versions and has failed to engage in a credibility
enquiry as set out in
Stellenbosch
Farmers’ Winery Group Ltd and another v Martell et Cie and
others.
[2]
[16] Second,
the company contends that the commissioner’s reasons for
preferring the employee’s
version were unreasonable. It states
that the reasons were not rationally connected to the evidence and
were procedurally unfair.
[17]
Third, the company attacked the conclusion that dismissal was not
appropriate.
Analysis
[18]
The
test to review an award is set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
[3]
The commissioner’s award is reviewable if it is “
one
that a reasonable decision maker could not reach”
.
[4]
The Labour Appeal Court (LAC) held that this is a stringent test that
will ensure that arbitration awards are not lightly interfered
with.
[5]
[19]
Numerous
judgments subsequently expanded on this test.
[6]
In
Head
of the Department of Education v Mofokeng and Others (Mofokeng)
,
[7]
the LAC held that:
‘
[32] However,
sight may not be lost of the intention of the legislature to restrict
the scope of review when
it enacted s 145 of the LRA, confining
review to “defects” as defined in s 145(2) being
misconduct, gross irregularity,
exceeding powers and improperly
obtaining the award. Review is not permissible on the same grounds
that apply under PAJA. Mere
errors of fact or law may not be enough
to vitiate the award. Something more is required. To repeat: flaws in
the reasoning of
the arbitrator, evidenced in the failure to apply
the mind, reliance on irrelevant considerations or the ignoring of
material factors
etc. must be assessed with the purpose of
establishing whether the arbitrator has undertaken the wrong enquiry,
undertaken the
enquiry in the wrong manner or arrived at an
unreasonable result. Lapses in lawfulness, latent or patent
irregularities and instances
of dialectical unreasonableness should
be of such an order (singularly or cumulatively) as to result in a
misconceived enquiry
or a decision which no reasonable decision-maker
could reach on all the material that was before him or her.
[33]
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the enquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the enquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will ex
hypothesi be material to the determination of the dispute. A material
error of this order would
point to at least a prima facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision
in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted upon the decision;
and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question
was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity
or error material to the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead
to no fair trial of the issues,
with the result that the award may be set aside on that ground alone.
The arbitrator however must
be shown to have diverted from the
correct path in the conduct of the arbitration and as a result failed
to address the question
raised for determination.’
[8]
[20]
Most
recently, in
Makuleni
v Standard Bank of South Africa Ltd and Others
,
[9]
the LAC, reaffirming the
Mofokeng
decision above, also reminded the reviewing court not to act as a
court sitting on appeal:
‘
[4] …
The court asked to review a decision of commissioner must not yield
to the seductive power of
a lucid argument that the result could be
different. The luxury of indulging in that temptation is reserved for
the court of appeal.
At the heart of the exercise is a fair reading
of the award, in the context of the body of evidence adduced and an
even-handed
assessment of whether such conclusions are untenable.
Only if the conclusion is untenable is a review and setting aside
warranted.’
[21] These
judgments remind us that errors of law or fact are insufficient for
the court to review and set
aside an award. The error must be
material and for it to be considered material, it must result in the
commissioner reaching a
decision which she otherwise would not have
reached had she not committed that error. Therefore, where a review
applicant seeks
an award to be set aside on the basis of errors or
irregularities, he must, in addition, establish the materiality of
the error
and/or irregularity and how the error and/or irregularity
resulted in a decision reached by the commissioner.
[22] The
company’s argument regarding the alleged two contradictory
versions is that its evidence established,
at least by inference,
that the area was not cleaned over a period of time. The argument
continues that the company, through Maartens’
evidence,
testified extensively and proved that the area could not have
deteriorated to the condition Maartens found it in the
preceding 17
hours. This, so the company continued to argue, was disputed by the
employee who only testified that when he left
at 14h00 on 6 November
2020 the area was clean. The company concludes that by accepting the
employee’s version as more probable
and without findings on the
credibility of the witnesses, the commissioner failed to apply her
mind to the evidence and her decision
is unreasonable.
[23] The
company sought to prove the allegation of misconduct by inference
and/or opinion. There is no evidence
that it investigated the
incident. Had it done so, it would have interviewed the Process
Controllers on duty until 14h00 or any
other employee/s who works in
and around the mills or who observed the area. These employees and
Process Controllers would have,
in all probabilities, been able to
provide direct evidence of the condition of the area prior to 14h00
on 6 November 2020.
[24] Ms
Lewis, appearing for the respondent, submitted that the evidence of
the Process Controllers was not
necessary. This is consistent with
the company’s election and its approach.
[25] Ultimately,
the commissioner was only faced with the evidence of Maartens, who
arrived at the scene
17 hours after the employee knocked off, and the
direct evidence of the employee that the area, 17 hours prior to
Maartens’
, was clean. The employee did not dispute that when
Maartens arrived at the company, the area was dirty as depicted in
the photographs.
He could not have seriously disputed that because he
was not at the company premises. Equally, the company could not
seriously
dispute the employee’s direct evidence that the area
was clean when he knocked off, other than expressing what it thought
the area would have looked like on 6 November 2020. There are no
conflicting versions here. There was no need for the commissioner
to
make an assessment of the credibility of witnesses where there were
no conflicting versions. That the commissioner found the
version of
the company improbable is a different way of saying that the company
failed to prove the allegation of misconduct and
that she accepted
that the area was clean when the employee knocked off. The company
failed to discharge its onus to prove that
the area was not clean
prior to the employee knocking off at 14h00 on 6 November 2020.
[26] The
company further argued that there is an inherent contradiction in the
employee’s evidence.
It is alleged in the founding papers that
because the employee suggested that he should be issued with a final
written warning,
this inherently contradicts his version that he was
not guilty of the misconduct. This argument was not seriously pursued
in the
company’s heads of argument and during the hearing. The
argument falls to be rejected outright. The employee always
maintained
that his innocence. His argument that he should be issued
a final written warning can only be understood to be advanced in the
event that he was found guilty of the misconduct.
[27] The
second review ground is directed at paragraph 50 of the award, where
the commissioner provides reasons
for rejecting the company’s
case or version. There is no doubt that the commissioner is dealing
with the version of whether
the area was clean at the time the
employee knocked off at 14h00 on 6 November 2020. The commissioner
provided various reasons
why she could not accept the company’s
version that the area was not clean and that it was not cleaned in a
period of about
a week.
[28] These
reasons are - (1) when the employee knocked off, he would have handed
over to someone on a daily
basis, which could have been noticed on
the spot that the area was not in proper condition, (2) the
employee’s manager could
have noticed on the spot if the area
was not in proper condition, (3) the company should have addressed
the issue earlier and not
wait until the employee was off, and (4)
the employee said that he would not have been allowed to knock off if
the area was not
in proper condition. The company contends, firstly,
that the four reasons mentioned by the commissioner are not
rationally connected
to the evidence. Secondly, the company contends
that the propositions that formed the basis of these reasons were not
put to the
company’s witnesses and the reasons are therefore
“procedurally unfair” and “unreasonable”.
[29] I
have already decided that the case did not call for a credibility
assessment of the witnesses. Therefore,
these reasons are not
material and do not have any distorting effect on the ultimate
decision reached by the commissioner. Indeed,
the company did not
show the materiality of these alleged errors and/or irregularities
and how they led the commissioner to misconceive
the enquiry and
reach an outcome that is unreasonable. Therefore, the second ground
for review fails.
[30]
Properly
conceived, the third ground is a complaint against an award of
reinstatement. In light of the finding that the employee
is not
guilty of misconduct, this ground is irrelevant. In any event, even
if the employee is guilty of the charge, I find that
the
commissioner’s decision that the dismissal was substantively
unfair falls within the bands of reasonableness for the
reasons that
follow, some of which have been captured by the commissioner in her
award. First, the company did not comply with
its own disciplinary
code in dismissing the employee. Second, it failed to adduce
exceptional circumstances for deviating from
its own disciplinary
policy. Third, it led no evidence at all regarding the continued
employment relationship - why it was intolerable
to continue with the
employment relationship and/or why it was not reasonably
practicable.
[10]
In
South
African Commercial, Catering and Allied Workers Union and Others v
Woolworths (Pty) Limited
[11]
,
the Constitutional Court reaffirmed the principle that reinstatement
is the primary remedy that follows a finding of substantively
unfair
dismissal.
[12]
[31] Ms
Lewis made the following submission in her heads of argument:
‘
[The employee’s]
evidence during the disciplinary enquiry, that the area was clean
when he went off duty on 6 November 2020,
was untrue. [The
employee’s] evidence in the CCMA, that Mr Maartens had
conspired (and attempted to bribe an employee) to
have him dismissed
was untrue.
The relationship of trust
between the [company] and [the employee] is therefore broken.’
[32]
This
submission was pursued during the hearing. Ms Lewis contended that if
the employee is found to have been untruthful about the
area being
clean on 6 November 2020 when he knocked off, then that meant that he
was dishonest and he should be dismissed on that
basis. This
submission is inconsistent with the established legal principle that
the
fairness or otherwise of the dismissal must be determined on the
basis of the reasons for dismissal given by the employer at
the time
of the dismissal.
[13]
The
employee was dismissed for an allegation of negligence, not
dishonesty.
[33]
The
following paragraph of the Constitutional Court in
Booi
v Amathole District Municipality and others
[14]
is apposite:
‘
There are good
reasons that reinstatement is lauded as the primary and commonplace
remedy that accompanies findings of substantively
unfair dismissals.
It would be wholly unpalatable to our Constitution’s commitment
to the right to fair labour practices
if employers were permitted to
unfairly dismiss their employees, exonerated of allegations of
misconduct, via the back door of
disingenuous and last-minute
allegations pertaining to an intolerability of a continued employment
relationship. It is incumbent
on employers to follow proper
procedures and respect the labour rights of their employees…’
[15]
[34] Accordingly,
the third ground for review fails because the employee is not guilty
of misconduct and
must be reinstated. Alternatively, even if he is
guilty, the disciplinary code provides for a final written warning
for the misconduct,
further alternatively, the company failed to lead
evidence on the factors that make a continued relationship
intolerable or reasonably
impracticable as a result of the misconduct
allegedly committed.
[35] None
of the contentions advanced by the company are capable of assailing
the commissioner’s decision.
It is accordingly my view that the
award is unassailable and the review application therefore stands to
fail.
[36]
In
the premises, the following order is made:
Order
1. The
review application is dismissed.
2. There
is no order as to costs.
M. Makhura
Judge of the Labour
Court of South Africa
Appearances:
For the Applicant: Adv.
N. Lewis
Instructed by : Brian
Bleazard Attorneys
For the Third Respondent
: Mr. G. Leshaba of MM Mitti Attorneys
[1]
Act
66 of 1995, as amended.
[2]
[2002]
ZASCA 98
;
2003 (1) SA 11
(SCA) at para 34.
[3]
[2007] ZACC 22
; (2007) 28 ILJ 2405 (CC).
[4]
Ibid
at para 110.
[5]
Fidelity
Cash Management Services v Commission for Conciliation, Mediation
and Arbitration and Others
[2007] ZALAC 12
; (2008) 29 ILJ 964 (LAC) at para 100.
[6]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013)
34 ILJ 2795 (SCA);
[2013] ZASCA 97
at para 25;
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[2013] ZALAC 28
; (2014) 35 ILJ 943 (LAC) at paras 16 – 20;
Head of
the Department of Education v Mofokeng and Others
[2014] ZALAC 50
; (2015) 36 ILJ 2802 (LAC) at paras 31 – 33;
South
African Rugby Union v Watson and Others
[2018] ZALAC 57
; (2019) 40 ILJ 1052 (LAC).
[7]
(2015)
36 ILJ 2802 (LAC).
[8]
Mofokeng
at
paras 32 – 33.
[9]
[2023] ZALAC 4
; (2023) 44 ILJ 1005 (LAC).
[10]
Section
193(2) of the LRA.
[11]
[2018] ZACC 44
;
(2019)
40 ILJ 87 (CC).
[12]
Ibid
at para 46.
[13]
Fidelity
Cash Management Services v Commission for Conciliation, Mediation
and Arbitration and Others
(supra);
Samancor
Chrome Ltd (Eastern Chrome Mines) v Commission for Conciliation,
Mediation and Arbitration and others
[202]
ZALAC 17; (2020) 41 ILJ 2129 (LAC);
Pioneer
Foods (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and others
[2023] ZALCCT 39;
(2023) 44 ILJ 2281
(LC).
[14]
[2021]
ZACC 36
; (2022) 43 ILJ 91 (CC).
[15]
Ibid
at para 62.