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[2024] ZALCJHB 140
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SBX t-a DB Thermal(A Division of DBT(Pty) Ltd) v Nhlapo and Others (JR1383/19) [2024] ZALCJHB 140 (22 March 2024)
FLYNOTES:
LABOUR – Dismissal – Misconduct –
Arbitrator
found dismissal was too harsh and awarded reinstatement –
Cardinal rules breach – Zero tolerance approach
–
Employees were prohibited from handling their mobile phones –
Employee was observed handling his phone whilst
operating a
vehicle – Demonstrated complete disregard for rule with full
knowledge of consequences thereof –
Findings of the
arbitrator fails reasonableness test – Dismissal was
substantively fair.
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR 1383/19
In
the matter between:
SBX
t/a DB THERMAL (A DIVISION OF DBT (PTY) LTD)
Applicant
and
SIMISO
NHLAPO
First
Respondent
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
Second
Respondent
ELIAS
LEKGWATHI
N.O.
Third Respondent
Heard:
30 August
2023
Delivered:
This judgment was handed down electronically by circulation to the
parties'
legal representatives by email and publication on the Labour
Court’s website. The date and time for hand-down is deemed to
be 22 March 2024
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
:
[1]
Three
applications are before the Court. In the first application, the
applicant (‘DBT”) seeks
an order reviewing and setting
aside the arbitration award issued by the third respondent
(Arbitrator).
In the
second application, the first respondent (Mr Nhlapo) seeks an order
in terms of Rule 11 of the Rules of this Court to have
the review
application dismissed on account of lack of timeous prosecution. In
the third application, DBT seeks an order reviving
and reinstating
the review application.
[2]
To
the extent that the merits of that application were fundamental to
the determination of the two other interlocutory applications,
the
parties had agreed to set out their respective arguments in the
review application as well as the other applications in one
composite
set of arguments, and that all the matters be heard simultaneously.
The
background to the applications:
[3]
Nhlapo
was employed by DBT in November 2014 as a Quality Controller and was
based at Eskom’s Kusile Power Station. His services
were
terminated on 28 November 2018 following a disciplinary enquiry into
two allegations of misconduct.
[4]
Nhlapo
referred an alleged unfair dismissal dispute to
the second respondent, the MEIBC
.
The matter came before the Arbitrator who issued an award on 13 May
2019. In the award, the Arbitrator concluded that the dismissal
of
Nhlapo was too harsh, hence an award of reinstatement together with
one months’ salary as backpay.
(i)
The
Rule 11 application and evaluation:
[5]
DBT
launched an application to review and set aside the Arbitrator’s
award on 26 June 2019. On 22 October 2019, DBT delivered
its Rule
7A(6) Notice. This was followed by DBT’s supplementary
affidavit on 24 October 2019.
[6]
In
view of no further steps having been taken in the matter since 24
October 2019, Nhlapo through his attorneys of record addressed
correspondence to DBT on 13 January 2022, notifying it of his
intention to launch a Rule 11 application since the review
application
had lapsed (from 26 June 2020), and thus archived. Such
an application was launched on 14 January 2022. In it, Nhlapo also
sought
an order in terms of section 158(1)(
c
)
of the Labour Relations Act
[1]
(LRA) to make the arbitration award an order of this Court, and
further ordering DBT to release the bond of security in possession
of
its attorneys of record.
[7]
On
28 January 2022, DBT filed its Notice to oppose the Rule 11
application together with its answering affidavit. Nhlapo filed a
replying affidavit on 22 February 2022. The Rule 11 application is
premised on paragraph 11.2.7 of the Practice Manual of this
Court
which provides;
“
A
review application is by its nature an urgent application. An
applicant in a review application is therefore required to ensure
that all the necessary papers in the application are filed within
twelve (12) months of the date of the launch of the application
(excluding Heads of Argument) and the registrar is informed in
writing that the application is ready for allocation for hearing.
Where this time limit is not complied with, the application will be
archived and be regarded as lapsed unless good cause is shown
why the
application should not be archived or be removed from the archive.”
[8]
Nhlapo’s
contentions were that a period of about two years and seven months
had lapsed since any steps were taken by DBT in
prosecuting its
review application, and that by virtue of the above provisions, that
application had since lapsed and thus archived.
[9]
The
import of the Practice Manual and its clause 11.2.7 as held in
Macsteel
Trading Wadeville v Van der Merwe NO & others
[2]
,
and as further reiterated in
E
Tradex (PTY) Ltd t/a Global Trade Solution v Finch and Others
[3]
,
is;
“…
the
promotion of the statutory imperative of expeditious dispute
resolution. It enforces and gives effect to the Rules of the Labour
Court and the provisions of the LRA. It is binding on the parties and
the Labour Court. The Labour Court does, however, have a
residual
discretion to apply and interpret the provisions of the Practice
Manual, depending on the facts and circumstances of a
particular case
before the court.”
[4]
And,
“
...Clause
11.2.7 imposes an obligation on the applicant to ensure that all the
necessary papers in the application are filed within
12 months of the
date of the launch of the application (excluding heads of argument),
and the registrar is informed in writing
that the application is
ready to be set down for hearing. Where this time-limit is not
complied with, the application will be archived
and be regarded as
lapsed unless good cause is shown why the application should not be
archived or be removed from the archive”
[10]
Arising
from above, it is apparent that in circumstances such as these, where
on the facts there was inaction for over two years
on the part of DBT
in prosecuting the review application, that application is archived
and regarded as lapsed. If DBT seeks to
retrieve the review
application from the archives, it is required to bring a substantive
application showing good cause why the
review should be ‘unarchived’.
DBT has filed an application in this regard.
[11]
This
therefore implies that to the extent that Nhlapo seeks that the
review application be dismissed and that the arbitration award
be
made an order of court together with other ancillary orders, the
effect of such an order if granted, would be to bring the matter
to a
finality since such an order would not be reviewable. As observed in
Greater
Taung Local Municipality v South African Local Government Bargaining
Council and Others
[5]
,
such an order as sought in the Rule 11 application will effectively
deny DBT an opportunity to bring an application to reinstate
the
review application, which in any event is before the Court.
[12]
The
upshot of these conclusions is that in circumstances where an
applicant party has not complied with
the provisions of the Practice
Manual read with the Rules of this Court in timeously prosecuting a
review application, but where
a substantial application in which
‘good cause’ is sought to be demonstrated, it is my view
that it would be non-suited
for the Court to determine a Rule 11
application prior to determining the application to reinstate.
[13]
If
after considering the application to revive, it is found that DBT did
not demonstrate good cause, it
follows that the review application
will remain archived, which in accordance with the provisions of
clause
16.3 of the
Practice Manual, shall have the same consequences as to the further
conduct by any respondent party as to the matter
having been
dismissed. This in my view would ordinarily entitle Nhlapo the orders
he seeks in the Rule 11 application. Where however
the review
application is reinstated on the basis that good cause was shown for
the delays and non-compliance with the time frames,
and further where
it is found that the arbitration award is reviewable, it follows that
the Rule 11 application ought to be dismissed.
(ii) The
application to reinstate the review application:
[14] DBT
had not acted on the review application since
24
October 2019 when it filed the supplementary affidavit. It
was
jolted into action by Nhlapo’s attorneys of record’s
correspondence on
13
January 2022, followed by the Rule 11 application on 14 January 2022.
DBT not only opposed the Rule 11 application, but also
filed the
application to reinstate the review application on 28 January 2022.
[15] It
took DBT over two years to act on the review since its last step. In
accordance with Clause 11.2.7,
DBT ought to have delivered all its
papers inclusive of a notice informing the Registrar that the review
application was ready
for enrolment. At the most, this ought to have
been done by October 2020.
[16]
DBT
cannot dispute that the extent of the delay is excessive, even though
it attempted to downplay this delay in the founding affidavit.
At the
very least, it was conceded in the heads of argument that the delay
is indeed excessive. In
South
African Police Services v Coericius and others
[6]
it was reiterated that an applicant seeking a reinstatement of a
review application that was archived, must essentially demonstrate
good
cause
.
In
Melane
v Santam Insurance Co. Ltd
[7]
it
was held that when deciding whether
good
cause
has
been demonstrated, the court must judicially exercise a discretion
upon the consideration of all the relevant factors, which
are
interrelated and ought not be individually decisive. These factors
includes
inter
alia
the
degree of lateness; the explanation therefor, the prospects of
success in the main, and the importance of the case. More pertinent
to applications under the Practice Manual, the LAC in
Samuels
v Old Mutual Bank
[8]
(
Samuels
)
added that
the
reinstatement application should (i) be made
bona
fide
;
(ii) should set out a reasonable explanation which covers the entire
period of the delay; (iii) the applicant must have reasonable
prospects of success in the main review application; and (iv) that it
would be in the interests of justice to grant condonation.
[17] As
correctly pointed out on behalf of Nhlapo, where a party seeks
condonation for non-compliance with
statutory rules, it is obliged to
provide a reasonable and adequate explanation for non-compliance. DBT
contends that it was not
dilatory in pursuing the review application,
and that its failure to comply with the timeframes was not wilful.
[18] In
the founding affidavit deposed to by DBT’s Managing Director
and General Manager (Mr Shavhani
Mutshutshu), it is averred that the
Rule 7A(8)(
a
)
Notice was filed on 23 October 2019 and served on Nhlapo’s then
legal representative, (Adv. Lukhele), together with the
supplementary
affidavit. Lukhele subsequently withdrew from the matter, and the
Rule 7A(8)(
a
)
Notice was then served on Nhlapo’s trade union, MEWUSA, which
appeared to be his new representatives at the time.
[19] Mutshutshu
contends that between 24 October 2019 and 21 January 2020,
correspondence was sent to MEWUSA
in regards to the filing of the
answering affidavit. The last time any correspondence was sent to
MEWUSA without any response was
on 21 January 2020. Mutshuntshu
averred that DBT’s attorneys did not follow up on the matter,
and conceded that the Registrar
was not informed that the matter was
ready for allocation of a date. Equally so, indexing, pagination and
a Notice in terms of
Rule 22B was not attended to. This was however
only done by 27 January 2022.
[20] The
substance of DBT’s explanation is to blame Nhlapo for his
change of representatives. It is
not clear how this explanation is of
assistance to DBT when it had on its own version, served all the
pleadings and documentation
on Nhlapo at his residential address, or
at most, on MEWUSA.
[21] DBT
contends that it was its intention to provide Nhlapo with an extended
opportunity to respond to
the review application. This was inclusive
of putting Nhlapo on terms on 21 January 2020. DBT’s
benevolence does not in my
view assist in providing a reasonable
explanation. This is particularly so in view of the fact that Nhlapo
or his legal representative
had not requested any such indulgence.
The Rule 7A(8)(
a
)
Notice had been filed by 23 October 2019. As at January 2020, the
dies
for the filing of the answering affidavit had passed.
[22] The
running of the time limits either in the Court Rules or the Practice
Manual is for the benefit and
compliance by an applicant party. This
is further based on the provisions of Clause
11.4
of the Practice Manual
, which
entitles an applicant party to approach the Registrar in the absence
of an answering affidavit
,
to enrol the application on the opposed motion roll. It was therefore
not necessary to indulge or beg Nhlapo to file an answering
affidavit, especially where no such indulgence was requested. Clearly
this explanation is not reasonable.
[23]
Further
explanations were that since January 2020, DBT had not followed up on
the matter with its attorneys of record until Nhlapo’s
correspondence of January. The delays were further attributed to
internal changes in DBT; or the Covid-19 pandemic which led to
closure of offices.
[24]
DBT’s
attorneys of record also deposed to a confirmatory affidavit in which
the delay is attributed to the Covid-19 lockdown;
inability to access
the firm’s office until July 2020; and inability to access the
Court. It is further averred that there
was an oversight or
administrative error on their part for failing to manage the
hand-over of the review application pursuant to
the termination of
one of their candidate attorney’s employment in January 2020,
who it is alleged had handled the matter
from inception.
[25]
DBT’s
attorneys’ explanation in my view boils to one issue, which is
that from January 2020 the matter was not attended
to because of the
departure of the candidate attorney. All the other explanations
attributable to Covid-19 and the lockdown or
inability to access
their offices or the Court are mere red herrings. This is so in that
even if on their version they could only
access their office in July
2020, nothing is said about why it took them until
Nhlapo’s
attorneys of record’s correspondence of
13
January 2022 to act. It is further not correct that the Court was
only accessible to the public from July 2020. The Court and
the
Registrar’s office were open to litigants after the lock-down
restrictions were eased before July 2020. The Registrar’s
office was also receiving service of documents and attending to them
before then. Be that as it may, it is apparent that the explanation
proffered by DBT’s attorneys for inaction for the period July
2020 and January 2022 amounts to no explanation at all.
[26]
Recently
in
Krishaveni
Govender & 20 others v CCMA & Others
[9]
(Govender)
,
t
he
Labour Appeal Court was equally confronted with instances where a
litigant had failed to follow up on matters with attorneys.
Mutshutshu
conceded that DBT did not follow up with its attorneys of record. It
is trite that litigants cannot simply instruct attorneys
and then
wash their hands off their matters. There is an obligation on clients
to follow up matters with their attorneys. In
Govender
,
it was also reiterated that
there
is a limit to which a litigant can escape the result of his
attorney's lack of diligence, but however that the facts of a
matter
will dictate whether the actions (or inactions) of a litigant’s
representative can be imputed to the litigant.
[27] In
Govender
,
it was further held that it was not simply sufficient for a candidate
attorney to be blamed for non-compliance with the time frames.
The
LAC emphasized that there was a duty on attorneys
to
exercise supervision and control over candidate attorneys who are
tasked with the responsibility of attending to matters allocated
to
them. The LAC further re-affirmed the principle that “…
an
attorney must take full responsibility for the conduct of his member
of staff
”.
[28] In
this case, and from the confirmatory affidavit deposed to by Ms
Willem, a senior associate at the
time, it was further averred that
the candidate attorney that left in January 2020 (Ms Kimberley
Ashmore), was under the supervision
of both Willem and another
partner, Paul Fouche. As to how any of the two senior members of the
firm could not have even sought
a handover from Ashmore when she left
the firm is unexplained. Fouche was the partner responsible for the
matter. In his confirmatory
affidavit, he also confirmed lack of
diligence on his part. His contention was that no follow ups were
made after January 2020
when Ashmore left, because he did not regard
the matter as urgent or requiring his attention. I need not say more
on this flippant
approach in the light of the urgency of review
applications as stated in Clause 11.2.7 of the Practice Manual of
this Court.
[29] Against
the clear lack of diligence on the part of DBT and its attorneys of
record, and further in the
light of the excessive delay, and an
explanation that is less than satisfactory, the issue is whether this
should be an end to
DBT’s case. It has been said that in
considering applications of this nature, the Court should consider
all the related factors,
inclusive of the parties’ prospects of
success, and their
bona fides
or overall conduct.
[30]
In
Coericius
[10]
,
it
was held that in an instance where procedural blunders are committed
by the attorneys of a litigant, there was a need for a fair-minded
examination of all the circumstances, and that the
penalty
for
procedural blunders that have no substantive implications lie in
costs orders, not in a dismissal of the matter. This was so
based on
the policy objectives of the Practice Manual, that did not require a
mechanical application of its provisions.
[31] In
this case, it can be accepted from the common cause facts that but
for the failure to attend to indexing
and pagination, and the failure
to file a Rule 22B Notice, DBT had timeously taken steps to impugn
the Arbitrator’s award.
Against these factors, Nhlapo disputed
that Lukhele was ever instructed by him, and that in fact the latter
was on a frolic of
his own. He had however conceded that MEWUSA acted
on his behalf and that it was served with the transcribed record and
the supplementary
affidavit. As to whether any steps were taken by
him or MEWUSA is not explained.
[32] Against
the above considerations, it cannot be said that the application to
reinstate the review was
brought in bad faith. The Court has taken
account of the prejudice caused to Nhlapo as a result of the
inordinate delays already
alluded to and it is my view that this can
only be remedied through a costs order. The Court also takes into
account the parties’
prospects of success on the merits as
shall further be dealt with below. Against these factors, it is my
view that a consideration
of
the interests of justice dictates that condonation ought to be
granted for the delays and the review is therefore ‘unarchived’
and its merits should be dealt with.
Of course in the light of the procedural lapses already alluded to,
the requirements of law and fairness further dictate that DBT
be held
liable for Nhlapo’s costs of the application to reinstate and
those of the Rule 11 application. This is particularly
so since the
latter application was brought as a result of DBT’s inordinate
inaction.
(iii) The
review application:
The
evidence and conclusions by the Arbitrator:
[33]
Nhlapo
was dismissed by DBT following upon a disciplinary enquiry into
allegations of misconduct. The charges
[11]
were that on 7 November 2018, he breached Eskom’s Cardinal Rule
by handling or using his cell phone whilst driving a vehicle
on site.
He was further charged with having signed off work that was done or
completed by another employee.
[34] It
is common cause that the chairperson of the disciplinary had found
Nhlapo guilty on both charges.
In respect of the first charge, the
chairperson imposed a sanction of dismissal, whilst for the second, a
final written warning
was issued. DBT contends that it did not accept
the sanction of final written warning in respect of the second
charge, and had
instead imposed its own sanction of dismissal.
[35]
It
is my view that in approaching this review application, if it is
found that the conclusions and findings of the Arbitrator in
respect
of the first charge that led to a dismissal fails the reasonableness
test as espoused in
Sidumo
[12]
,
and that the sanction of dismissal ought not have been disturbed, it
would be unnecessary to deal with the reviewability of the
findings
on the second charge, unless of course other factors compel the Court
to do otherwise. This is so in that the sanction
of a dismissal on
the first charge would ordinarily have put an end to the matter.
[36] At
the arbitration proceedings, DBT led the evidence of Mr Donovan van
Eeden, its Project Quality Manager,
Mr Schoeman, its Quality Lead,
and Mr Sinclair Paul, its EHS Lead. Nhlapo was the sole witness in
his case.
[37] In
respect of the first charge, it could not be disputed that one of
Eskom’s cardinal rules at
Kusile and related to safety on site
was that all employees were prohibited from handling their mobile
phones, calling or texting
whilst operating a vehicle on site. Paul,
who is responsible for Environmental Health and Safety testified in
regards to induction
of employees on safety issues, and aspects
covered in that induction including use of cell phones whilst driving
on site. He testified
that the cardinal rules were implemented by
Eskom on all its sites. These rules were also displayed on board
signs visible to anyone
entering the Kusile site. Nhlapo did not
dispute that he went through induction where these rules were
emphasised. Paul had testified
that a breach of the cardinal rule
resulted in a dismissal in accordance with Eskom’s zero
tolerance policy.
[38] The
evidence against Nhlapo was that on 17 October 2019, he was observed
by a Mr Henery Ronald, an Eskom
employee, handling his phone whilst
operating a vehicle. After Nhlapo had stopped the vehicle, Ronald
approached him and retrieved
his access card for breach of the rule.
This implied that Nhlapo could no longer have access to the site to
perform his duties.
The said Ronald had testified at the internal
disciplinary enquiry but did not do so at the arbitration
proceedings. The Arbitrator
had however accepted that nothing turned
on Ronald’s failure to testify before him in the light of
Nhlapo’s concessions
as shall further be dealt with below.
[39]
Nhlapo’s
evidence
[13]
in chief as
indicated by the Transcribers in the record was hard to follow. This
was because he had during the proceedings, continuously
testified
inter-changeably in English and his own language, and also spoke over
the interpreter. This made it difficult for the
transcribers to
transcribe his evidence in a coherent manner.
[40] As
a side issue, there is a duty on Arbitrators/Commissioners, to ensure
that there is consistency in
the use of any language when witnesses
testify at arbitration proceedings, and the services of an
interpreter are made available.
Furthermore, there is a need for
control of proceedings by Commissioners when witnesses testify to
ensure that they do not talk
over and/or interrupt interpreters, and
further to ensure that evidence is properly translated and recorded.
Interpreters are there
to assist Commissioners and the parties in
following proceedings and the testimony presented. This will also not
only assist transcribers
when transcribing the record, but also the
Court in its review function of assessing the overall evidence that
was presented at
the proceedings.
[41]
The
essence of Nhlapo’s testimony to the extent that one can
understand from the record, was to initially deny that he broke
any
cardinal rule as such a rule did not exist
[14]
.
He however testified that as he was driving a vehicle on site towards
the Tabular office, he had his phone between his legs. It
is not
known why anyone would want to operate a vehicle whilst a mobile
phone is wedged between one’s legs. Be that as it
may, as he
was driving, the phone fell and landed under the foot pedals. This
caused him to stop on the side of the road as the
phone would have
interfered with his driving.
[42] Nhlapo’s
further version was that he had stopped the vehicle not only to pick
up the phone from
the pedals, but also because there were other
vehicles in front of him, and further since he was already at his
destination at
the time. As he picked up the phone, he then realised
that there was a text message from someone called ‘Pretty’,
which
he had responded to. As the other vehicles in front of him
moved, he had also moved closer towards a parking space, still with
the phone in his hand. After alighting from the vehicle and as he was
walking towards the office, Ronald saw him with his phone
still in
his hand, called him and asked why he had a phone in his hand whilst
operating a vehicle. As he attempted to explain,
Ronald was not
interested and had asked to see his phone. Ronald then saw the text
messages and accused him of having text whilst
operating the vehicle.
Nhlapo contended that despite his attempts to explain why he had his
phone in his hand, and further apologising,
Ronald retrieved his
access card from him, which effectively barred him from accessing the
site.
[43] Nhlapo’s
evidence under cross examination was confusing. What can however be
deduced from it is
that he conceded he had operated the vehicle
whilst he had his phone in his hand. He conceded that he was aware of
the cardinal
rules when on site having attended inductions and safety
awareness sessions. Despite having earlier contended that he had no
knowledge
of the rules or that he had breached them, he proceeded to
confirm that if an employee broke the rule, a dismissal would follow.
[44] Amidst
the concessions, Nhlapo’s complaint was that DBT had applied
discipline in regards to the
cardinal rule inconsistently as he knew
of other employees that were previously disciplined for the
transgression, but were not
dismissed. An example was given in
regards to his colleague, Owen Isaacs, who Nhlapo contended broke a
cardinal rule but was not
dismissed.
The
Arbitrator’s findings on the first charge:
[45] In
regards to the first offence, the Arbitrator accepted that Nhlapo did
not dispute the breach of the
rule, which was valid and reasonable.
The Arbitrator reasoned that Nhlapo owned up for his misdemeanour and
had apologised. In
regards to the appropriateness of the sanction,
the Arbitrator took into account that Nhlapo had stopped off the road
whilst handling
his phone. In essence, the Arbitrator’s view
was that Nhlapo had acted reasonably by stopping the vehicle and
continuing
to handle the phone including texting. He concluded that
Nhlapo had shown remorse and had admitted the misconduct hence a
dismissal
was harsh. He further concluded that discipline was
inconsistently applied because other employees were not dismissed for
similar
breaches, a fact which according to the Arbitrator was not
disputed by DBT. Despite DBT’s contentions that Nhlapo’s
conduct had irretrievably broken down the trust relationship, the
Arbitrator held that even though he had committed the offence,
he
ought to be given a second chance in the light of having been
remorseful and since he had not denied the charge.
The
grounds of review and evaluation:
[46] DBT
contends that the Commissioner’s findings on substantive
fairness was not a decision that
a reasonable decision maker would
make based on the evidence before him. It was submitted that the
Arbitrator misconstrued the
issues he was asked to determine;
committed gross irregularities in the conduct of proceedings in
various ways, including disregarding
or failing to properly consider
relevant evidence, placing undue weight on certain evidence,
misdirected himself in regard to the
evidence presented, and made
mistakes of law.
[47]
The
principles applicable in respect of review applications are fairly
settled. The test is whether the Arbitrator’s decision
is one
that no reasonable decision maker could reach based on the available
evidence
[15]
In
Head
of the Department of Education v Mofokeng and Others
[16]
it
was held that a review on grounds of unreasonableness involves the
consideration of whether, apart from the commissioner’s
flawed
reasoning or any irregularity demonstrated, the ultimate outcome
could have nevertheless been arrived at taking into account
the
issues and the evidence. However, it is not only the reasonableness
of the outcome which is the subject of consideration. In
addition,
the court must consider whether or not the commissioner misconceived
the nature of the inquiry or undertaken the inquiry
in a misconceived
manner. This is to ensure that there was a fair trial of the issues.
[48] In
regards to the Arbitrator’s findings in respect of the first
charge, the only issue is whether
having found that the cardinal rule
was breached, his analysis on the appropriateness of the sanction of
dismissal was reasonable.
To the extent that the rule was breached,
the court accepts the reasons why the rule was put in place by Eskom
and why there was
a requirement that everyone on site should obey it.
Its primary objective was the safety of all 10 000 personnel on the
site, and
specifically prohibited all persons from handling or doing
anything with a mobile phone whilst operating a vehicle or even
whilst
walking on the road on site.
[49] There
were designated areas where cell phones could be used on site, The
rule was enforced also in view
of evidence by Paul that there was
constant flow of heavy duty trucks and vehicles on the road, and
there had been numerous vehicle
accidents and injuries resulting from
drivers using phones whilst operating vehicles, or from employees
walking on the roads and
not paying attention to moving vehicles.
[50] As
a result of the accidents, Eskom had implemented a zero tolerance
approach, and any employee in breach
of the rule was removed from the
site. This implies that an employee of DBT which is a service
provider/sub-contractor on site,
would be prevented from entering the
site once the rule was breached. Added according to Paul was that DBT
had its own campaigns
on safety, which were accompanied by what is
referred to as a Toolbox Talk on cell phone technology and road
safety, and which
Nhlapo was well aware of. Paul had further added
that DBT as a sub-contractor had to apply and adhere to the principal
contractor’s
(Eskom) as well as clients’ rules.
[51] The
Court fails to appreciate how the Arbitrator could have accepted
Nhlapo’s explanation as to
why he had handled the phone whilst
operating the vehicle. In the first instance, one does not appreciate
how any driver with the
knowledge of the strict cardinal rules would
want to operate a vehicle with a mobile phone wedged between his
legs, instead of
storing it in a safe place where it would not create
a hindrance whilst operating a vehicle. It was submitted on behalf of
Nhlapo
that a proper interpretation of the rule was that it merely
prohibited employees from texting or making calls whilst driving.
This
distinction however is of no assistance in that handling could
not have been limited to whether texting or making calls. A proper
understanding of the rule as attested to by Paul was that an employee
should not handle a phone for whatever reason whilst operating
a
vehicle, and this made sense as the idea with the cardinal rule is
for employees driving vehicles to do so without any distractions.
As
already indicated elsewhere, the Arbitrator had accepted on Nhlapo’s
own version, and in the absence of Ronald’s
evidence, that the
former had indeed handled the phone whilst operating the vehicle.
[52] A
second consideration is that the Arbitrator’s finding that
Nhlapo had not denied breach of the
rule is not supported by the
evidence. In his evidence in chief, Nhalpo had on no less than two
occasions denied the existence
of the rule of breach. This was until
under cross-examination that he had conceded that he knew of the
rules and the consequences
of a failure to adhere to them. He had
conceded that he had indeed attended inductions in that regard.
[53] A
third consideration is that whether Nhlapo had stopped off the road
to pick up the phone is of no
consequence because the phone ought not
to have been in his possession in the first place. Any reasonable
employee in his position
with knowledge of the rules and the
consequences thereof, ought to have stored the phone in a safe place
in the vehicle. He had
to stop the vehicle due to conditions he had
created himself by having the phone between his legs as he was
driving, and in clear
breach of the rules.
[54] A
further aggravating factor is that upon stopping the vehicle, he had
continued to respond to a text
from ‘Pretty’, whilst on
his version there were other vehicles in front of him. This in my
view demonstrated a complete
disregard for the rule with full
knowledge of the consequences thereof. A finding by the Arbitrator
that Nhlapo had acted reasonably
by stopping off the road whilst he
handled the phone is not sustainable, and there is nothing reasonable
about his conduct in relation
to the conditions he had created
himself.
[55] Furthermore,
it is not clear on what basis the Arbitrator could have concluded
that Nhlapo showed remorse,
other than at the time that he was caught
out by Ronald. A person cannot be said to have shown remorse or owned
up to misdemeanours
in circumstances where he/she had initially
denied any wrong- doing, and only conceded thereafter.
[56] Nhlapo
had denied knowledge of the rule, sought to deny that he had handled
the phone, and only apologised
when he appreciated the consequences
of what he had done. Added to these considerations is that upon
stopping the vehicle and picking
up the phone, he had continued to
respond to the text when the rules were clear and known to him.
[57] The
Arbitrator had to also consider whether discipline was consistently
applied, and whether the sanction
of a dismissal was appropriate in
the circumstances. The issue of inconsistent application of
discipline was raised with Paul under
cross-examination, despite the
Arbitrator’s finding that it was not. In this regard Paul was
asked about an incident involving
Owen Isaacs who was still in the
employ of DBT. It was put to Paul that he broke the cardinal rule but
was not dismissed. Paul
indicated that it depended on what cardinal
rule was breached and when this took place. He had testified that
Isaacs was disciplined
for a different charge related to
non-compliance with safety rules.
[58]
Inasmuch
as it is appreciated that the parity principle remains part of our
law, it needs however to be reiterated that where inconsistent
application of a rule or discipline is alleged, it is not sufficient
for an employee to simply make the allegation without placing
pertinent, if not comparable facts before an arbitrator. Equally so,
sufficient
information must be placed before the employer in order to afford it
the
opportunity
to respond effectively to the allegation that it applied discipline
in
an
inconsistent manner
[17]
.
In this case, it was alleged that Isaacs was not dismissed when the
facts and circumstances in that regard were not placed before
the
arbitrator. All that was put to him under cross-examination was that
it did not matter when the infraction took place or the
circumstances
under which it took place. Sadly the Arbitrator in this case failed
to consider that not much was put to Paul beyond
a mere allegation,
and concluded that Nhlapo’s contentions in this regard were not
rebutted. This was not correct, and moreso,
since not sufficient
information was placed before DBT to rebut anything other than the
mere allegations about Isaacs.
[59]
It
has long been held that employers are required by considerations of
fairness to act consistently in the application and enforcement
of
its disciplinary rules and management policies designed to instil
discipline
[18]
. Equally so, it
was further held that even though like cases should be treated alike,
there are instances where an employer may
be justified in
differentiating between two employees guilty of the same
transgression on the basis of their personal circumstances
or on
their merits
[19]
.
[60]
In
the end, the prerogative remains that of an employer to mete out
discipline. One of the considerations in determining fairness
in such
instances is whether the employer’s decision was not
capricious, induced by improper motives, or based on some
discriminatory
practice or policy
[20]
.
The implications therefore are that mere allegations of inconsistency
in sanction is not sufficient to allow other employees to
profit from
it irrespective of their own circumstances under which the infraction
took place. Thus, where an employer shows a legitimate
basis to
differentiate between employees, whether due to their seniority,
personal circumstances, the severity of the misconduct
or other
material factors, no inconsistency will have been proved
[21]
.
[61] Against
the above principles, even though Nhlapo could not demonstrate in
what manner Isaacs had breached
the cardinal rule and what the
circumstances of that case were, an explanation was proffered by DBT
in regards to the facts of
Isaacs’ case, who is said to have
breached a safety rule, and that the offence took place at the time
when Eskom had not
adopted its zero tolerance policy. Of course Paul
was correct in pointing out that each case had to be dealt with on
its own merits,
and I did not understand Nhlapo’s case to be
that DBT was capricious or induced by any other improper motives for
dismissing
him, or that there was nothing distinguishable between the
circumstances of his case, and those of Isaacs. His contention
throughout
his evidence was that DBT sought to get back at him
because he was previously successful in a dispute he had brought
against it.
However, this contention in my view amounts to
unsustainable conspiracy theories.
[62]
Aligned
to the above question is whether the decision to dismiss was
appropriate, and whether Arbitrator’s conclusions to
the
contrary were reasonable. It was reiterated in
Govender
[22]
that
in determining the appropriateness of a sanction, an arbitrator is
required to
consider
the nature, magnitude, and impact of the misconduct on the employment
relationship.
[63]
Given
the facts of this case and the conclusions reached in this judgment
in respect of the first charge, the Arbitrator clearly
failed to
consider the issues raised by DBT as to why the dismissal for breach
of the cardinal rule was appropriate. It is correct
that the
Arbitrator had regard to
Sidumo
regarding
factors to be considered when determining the appropriateness of a
sanction
[23]
The Arbitrator’s
reliance however on the evidence that purportedly demonstrated
contrition or reasonable conduct on the part
of Nhlapo did not
support his conclusions on that evidence. It is accepted that a
dismissal ought to be a measure of the last resort
unless the
circumstances of a case demonstrates otherwise. Where however the
conduct in question involves matters of safety at
the workplace, and
where there is zero tolerance of breaches in that regard, it has been
said that
the
code of good practice enjoins, arbitrators to accept a zero
-tolerance
approach
if the circumstances of the case warrant the employer
adopting
such an approach
[24]
. In this
case, the zero tolerance to the use of phones whilst operating a
vehicle on site was enforced by Eskom, which in turn
was expected to
be enforced by contractors, sub-contractors, and any other service
provider and their employees on site. This therefore
implied that DBT
had
a
proper operational
objective
relating to risk management that it was compelled to achieve in
enforcing and adopting a zero-tolerance approach as it
did.
T
he
nature and impact of Nhlapo’s misconduct clearly was to destroy
the employment relationship as he had denied knowledge
of the rules
or their breach, when in fact he had shown disregard of those rules
which he was well aware of, and knowing the implications
of such
breach.
[64]
In
summary, and against what has been said above, it is concluded that
the Arbitrator’s determination in his award that the
dismissal
of Nhlapo was substantively unfair is unsustainable, as it cannot be
said to fall within a band of a reasonable outcome.
The Arbitrator
clearly ignored or downplayed pertinent evidence and failed to apply
requisite legal principles in the consideration
of appropriateness of
sanction or the parity question before him. This in the end led him
to conclusions that are not reasonable.
[65]
Furthermore,
all the evidence to determine a fair sanction is before the Court. A
Commissioner acting reasonably, based on the evidence
presented,
would have confirmed Nhlapo’s dismissal and no purpose would be
served by remitting the matter to the MEIBC for
re-determination.
Accordingly, the Court is in a position
to
therefore substitute the award of the Arbitrator which has been found
to have failed the
Sidumo
test.
[66] Further
against all the above, the Court does not deem it necessary to deal
with the second charge in
the light of the conclusions reached on the
first charge, which on their own are dispositive of the matter. Even
if the Court were
to have regard this charge, there is no basis for a
conclusion to be reached as alleged by DBT, that the Arbitrator
failed to consider
that charge.
[67]
From
paragraphs 17 – 18 of the award
[25]
,
it is apparent that the Arbitrator did consider the charge, albeit it
is correct that he did not in his analysis, properly
consider
its merits, and which in my view it was not necessary based on his
conclusions in that regard. The Arbitrator had regard
to the internal
chairperson’s findings and the fact that a final written
warning was issued in that regard. The fact that
DBT did not confirm
the sanction of a final written warning is neither here nor there,
since the Arbitrator could only accept the
outcome of a disciplinary
enquiry as it was for reasons that will further be pointed out below.
[68] The
Arbitrator further found that DBT did not re-charge Nhlapo with the
same charge after the findings
of the chairperson. Against these
factors, the Arbitrator had concluded that a finding of the
chairperson served as a recommendation,
but that it could not be
ignored without reconvening a hearing, or at best, providing reasons
why the recommendation was not accepted.
Of course even if this might
not appear to DBT to be a finding, there is no doubt that it is
indeed.
[69]
DBT
contends that the Arbitrator’s conclusions as above are
incorrect in both law and fact. Yet DBT did not refer to any
authority for the proposition that it was entitled without more, to
simply reject a chairperson’s outcome and substitute it
with
its own sanction. It is irrelevant whether the decision of the
chairperson is regarded as an ‘outcome’ or a
‘recommendation’.
The Arbitrator was correct in stating
that there must be at least a basis for altering the sanction. This
is so in that it can
no longer be debated that the chairperson of an
enquiry is clothed with the
persona
of
the employer, and it would be impermissible for an employer to
arbitrarily alter its own decision; or alternatively, without
demonstrating exceptional circumstances entitling it to alter the
sanction. An exposition of these principles and authorities is
set
out by my sister Mahosi J in
National
Union of Mineworkers obo Members and Others v Arcelormittal South
Africa Limited and Others
[26]
.
[70] DBT’s
posture that it could accept or reject the chairperson’s
recommendations as it wished
and without giving reasons is a classic
case of ‘self-help’, which has no place in our modern
labour law and employment
relations. This is because it was common
cause that DBT could not produce its own disciplinary code and
procedure at the arbitration
proceedings, or any other basis for
rejecting the outcome, other than the fact that it could simply
exercise an election. Even
if DBT could rely on some exceptional
circumstances, it would clearly be unfair to simply raise these at
arbitration when an employee
was not initially confronted with them.
This posture cannot be countenanced, and any contention to the
contrary gives rise to a
question as to why would an employer go
through a disciplinary enquiry and then not accept the outcome,
unless of course the outcome
was pre-determined, which in effect
turns the disciplinary enquiry into a charade.
[71] It
follows from the above that the Court will accept that the sanction
of a final written warning in
respect of the second charge stood
irrespective of DBT’s contentions. Further to the extent that
nothing turned on that sanction
in the light of the fairness to
dismiss based on the first charge, no more needs to be said on this
issue in the light of the overall
conclusions reached in this
judgment.
Costs:
[72] I
have already indicated that DBT should be burdened with the costs of
the Rule 11 application. This
is so in that but for inordinate delays
and prejudice it caused in prosecuting the matter, it would not have
been necessary for
Nhlapo to bring that application. Furthermore, DBT
should be burdened with the costs of the application to reinstate the
review
application for reasons already set out under the topic of
that application in this judgment.
[73] Insofar
as the costs of the review application, it is my view that a
consideration of the requirements
of law and fairness dictates that
no award as to costs be made.
[74] In
the premises, the following order is made:
Order:
1. The
applicant’s failure to file all the necessary papers in the
review application within 12 months
of the date of the application as
contemplated in clause 11.2.7 of the Practice Manual is condoned .
2. The
applicant’s review application is retrieved from the archives
and reinstated on the roll.
3. The
Rule 11 application is dismissed.
4. The
arbitration award issued by the third respondent under the auspices
of the second respondent under
case number MP10272-18 dated 13 May
2019 is reviewed, set aside and substituted with an order that;
‘
The
dismissal of Mr Simiso Nhlapo was substantively fair’.
5. The
applicant is ordered to pay to the first respondent, the costs of the
Rule 11 application.
6. The
applicant is further ordered to pay to the first respondent, the
costs of the application to reinstate
the review application.
7. There
is no order of costs in respect of the review application.
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCE:
For
the Applicant:
L Frahm-Arp of Fasken (incorporated in SA as Bell Dewar Inc.). (Heads
of argument prepared by Paul Fouche)
For
the First Respondent:
MW Dlamini SC, instructed by Ngengebule Attorneys Inc.
[1]
Act 66 of 1995, as amended.
[2]
(2019) 40 ILJ 798 (LAC) at paras [20] – [26].
[3]
[2022] ZALAC 106
; (2022) 43 ILJ 2727 (LAC) at para 15.
[4]
At
paras 22 – 23.
[5]
[2023] ZALAC 1
; (2023) 44 ILJ 761 (LAC) at para 17.
[6]
[2023] 1 BLLR 28
(LAC) at para 10; See also
Zono
v Minister of Justice and Correctional Services; In Re: Minister of
Justice and Correctional Services v Zono and Others
[2020]
11 BLLR 1160
(LC) at paras 17 – 21.
[7]
1962
(4) SA 531
(A) at 532B – E.
[8]
[2017]
7 BLLR 681 (LAC).
[9]
Case no:
DA2/2022
(Unreported and Delivered on
26
February 2024) at paras 68 - 69.
[10]
At
paras 12 – 13.
[11]
‘
Gross
Negligence:
1.
In that on 7 November 2018 at approximately 15.14
you breached a (sic) Eskom Cardinal Rule by handling your cellphone
handset
whilst driving to Kusile Power Station Construction Site.
2.
In that you on 16/08/20018 (sic), you signed off
work done or completed on K4 Intervention Point 3.01-Do Hydro Test
on system
- is signed off by Mr Simiso whilst TCP is still in
progress getting ready for the Hydro, walk downs review of Data book
etc.’(sic)
[12]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC)
at para 110.
[13]
See
page of the transcribed record, especially the Transcribers’
NOTES.
[14]
See
Pages 284 line 19; page 288 line 14.
[15]
See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC)
at para 110.
[16]
[2015] 1 BLLR 50
(LAC) at paras 31 – 33.
[17]
Comed
Health CC v National Bargaining Council for the Chemical Industry
and Others
(2012)
33 ILJ 623 (LC) at para 10.
[18]
Cape
Town City Council v Masitho & others
(2000)
21 ILJ 1957 (LAC).
[19]
Early
Bird Farms (Pty) Ltd v Mlambo
[1997]
5 BLLR 541 (LAC).
[20]
SACCAWU
and Others v Irvin & Johnson
(1999)
20 ILJ 1957(LAC);
Samancor
Ltd v CCMA and others
(2020)
9 BLLR 908 (LAC).
[21]
Capitec
Bank v CCMA & Others
(DA5/2019)
[2020] (LAC).
[22]
At para 83.
[23]
At
para 27 of the Award
[24]
Shoprite
Checkers
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
(2015)
36 ILJ 2273 (LAC) at para 17.
[25]
Page
25 of Annexure ‘FA1’ to the Founding affidavit
[26]
(JR 802/18) [2020] ZALCJHB 167 (2 September 2020) at paras 16 - 31
South African
Revenue Services v Commission for Conciliation Mediation and
Arbitration and Others
(DA 7/11)
[2013] ZALAC 26
;
[2014] 1 BLLR 44
(LAC); (2014) 35 ILJ 656
(LAC)