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[2024] ZALCJHB 157
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General Industries Workers Union and Another v Hambridge and Another (JR1151/2018) [2024] ZALCJHB 157 (11 April 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
JR1151/2018
In
the matter between:
GENERAL
INDUSTRIES WORKERS UNION
OF
SA
First Applicant
JOHANNES
THABO
LAKAJE
Second Applicant
And
ELEANOR
HAMBRIDGE
N.O.
First Respondent
NAMPAK
GLASS (PTY)
LIMITED
Second Respondent
Heard:
15 August 2022
Delivered:
11 April 2024
JUDGMENT
RAMOLEFE,
AJ
Introduction
[1]
This
is an application in terms of section 145 of the Labour Relations
Act
[1]
. The applicant prays for
the review and setting aside of an arbitration award issued by the
first respondent on 21 May 2018 (award).
The first respondent does
not oppose the application.
[2]
Central
to the award is the finding that:
‘
Based
on the evidence and argument before me, I find that the Applicant was
grossly negligent in his conduct. It was common cause
that the
Employee was appointed as a Palletiser Operator at the time of the
incident. It therefore follows that it was within his
job description
to ensure that the pallets are correctly labelled. This aspect the
Applicant had conceded to during his disciplinary
enquiry, as well as
at the arbitration. Based on the evidence before me, I find that the
Applicant had failed in his duty of care
and as a result, the pallets
were incorrectly labelled.’
Background
facts
[3]
The
applicant was appointed by the second respondent to the position of
Palletiser Operator responsible for operating a beer bottle
labelling
machine.
[4]
At
the heart of this matter lies a work shift at the premises of the
second respondent (employer). The shift commenced on the night
of 7
January through to 8 January 2013. Reporting for this shift on 7
January 2013, the applicant alleges that he found printed
labels
placed on a computer and ready for use in marking bottles of
specified beer bottles. The bottle marking process is mechanical.
[5]
At
the disciplinary hearing that forms the subject matter of this
application, the employer had called a Mr Corrie Erasmus (Mr
Erasmus), the Business Continuous Improvement Manager to give
evidence, while the applicant testified on his behalf.
[6]
Mr
Erasmus testified that he knew the applicant from the time when he
chaired a disciplinary hearing of the applicant, found him
guilty,
and imposed a sanction of dismissal. This was, so proceeded Mr
Erasmus’ evidence, because “
there
was a valid final written warning already for the same offence
”.
Mr Erasmus was asked if the applicant, already the bearer of a final
written warning, disputed the validity of the final
written warning.
His answer was in the negative.
[7]
Under
cross-examination, Mr Erasmus said that whether or not the applicant
ever challenged the final written warning issued to him,
there was
certainly no challenge at the time of the disciplinary hearing. He
then continued a rather long and unstructured cross-examination
which
does not seem to have achieved much. Re-examination covered the final
written warning and established that both the applicant
and the union
representative had signed the warning.
[8]
In
his evidence-in-chief, the applicant was led on the final written
warning and the reasons for it. Some dramatic evidence was
led
relating to one employee, a manager, resigning, and another, a fellow
employee, passing away. At any rate, the applicant gave
evidence that
the issue relating to the final written warning did not arise at his
disciplinary hearing. Nothing of significance
appears to have
developed from this aspect, except the suggestion, by the applicant,
that he signed the final written warning because
“
[i]f
you are looking for a job to work and then you are given a pen and
said you must sign here there is nothing you can do
”.
[9]
On
the aspect of the labels, the applicant testified that the label
“
comes from the computer and
when it comes from the computer, you check the machine number and you
check the label and the machine
whether they correspond and you then
put the label on the pallet. You cannot put a label on a machine that
does not correspond
”.
[10]
Under
cross-examination, the applicant was asked why the first applicant,
his representative union, did not refer a dispute to the
CCMA, or the
Bargaining Council about the final written warning. His response was
that “
we were still fighting it
inside the company’s premises
”.
[11]
In
argument before the Court, critical to the change of shift was a
notice board used to communicate job changes and any special
instructions. As I understood the case, the change of shift did not
entail a re-manning of the operation or a mere change of guard,
in
which case one set of consequences would result. This was also not
like running a relay and simply having one team member hand
a bat
over to the next, in which case, still, it would have been vital not
to drop anything. The change of shift was, again as
I understood
matters, a fresh phase in the production line with a different set of
consequences.
[12]
Much
of the evidence is largely common cause. Of what remains, there is
contestation relating to an interplay between the following:
the
incorrectly generated labels, and whether this was a continuing
feature from one shift to the next, in which case there might
well be
room to exonerate the applicant; the role played by the previous
shift in the handover period, and whether the blame lay
properly with
that shift; and finally, the applicant’s own role and whether
he was himself duty-bound to check the notice
board.
[13]
From
the evidence, the applicant appears not to have checked the notice
board, instead he proceeded with the labelling from where
the
previous shift and machine operator left. This resulted in an
incorrect labelling of the bottles relating to his shift and
continued until the error was discovered in the early hours of the
morning. At this point, the incorrectly labelled bottles had
to be
re-labelled, and the pallets repacked. Happily for the second
respondent, the mistake was contained and there was no supply,
or
delivery of incorrectly labelled beer bottles.
Analysis
[14]
The
crisp issue is therefore whether the applicant’s conduct fell
below standard, and whether he was, as a result, negligent.
Also to
be considered is whether the award was meet, and in particular,
whether the dismissal of the applicant, already served
a final
warning, was justified.
[15]
From
the award, the applicant’s case is that, having found printed
samples of the labels from the previous shift, he continued
to use
the works number he already found to print labels for the batch of
bottles labelled during his shift. It was at this point
that the
conduct complained of against the applicant arose.
[16]
If
I am wrong regarding the origin of the mistake, and it is contended
that it arose before the applicant’s shift, the answer
is that
checking the notice board would have certainly limited the mistake,
and possibly spared the applicant from being held responsible.
[17]
When
asked under cross-examination whether the first respondent was
entitled to accept that it was his responsibility to ensure
that the
correct label was put on the pallets, the applicant conceded that
“
that is correct
”.
Of course, the applicant attempted to explain this away by seeking to
place the blame on other employees.
[18]
In
the applicant’s evidence, much is made of incorrect labels
having been produced prior to his shift, and this being the
reason,
and justification, offered for the labelling mistake under the
applicant’s watch. The incorrect labels aside, the
nub of the
matter, it seems to me, is really this: the duty upon the applicant
himself to check that his shift commenced with the
correct labels. In
considering this issue, I do not suppose the applicant thought that
he could adopt the attitude that it was
permissible for him to act
mechanically. This was something to be left to the machine, and for
him, the human element, to avert
the situation.
[19]
Indeed,
precisely because of a range of mistakes that can happen, and the
fact that a notice board was installed for the very purpose
of
communicating vital information to staff, it was plainly incumbent
upon the applicant to have regard to this and to make proper
checks.
His failure to do both, and instead to point elsewhere, constituted
negligence. I accordingly find no basis for setting
aside the award.
[20]
In
the premises, I make the following order:
Order
1.
The
application is dismissed.
2.
There
is no order as to costs.
K.
D. Ramolefe
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
M. Bayi, of Bayi Attorneys.
For
the Respondent:
M. van As, instructed by Cliffe Dekker Hofmeyr Incorporated.
[1]
Act
66
of 1995, as amended.