Somyo v Ross Poultry Breeders (Pty) Ltd (JA9/97) [1997] ZALAC 3 (26 June 1997)

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[1997] ZALAC 3
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Somyo v Ross Poultry Breeders (Pty) Ltd (JA9/97) [1997] ZALAC 3 (26 June 1997)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
(HELD AT
JOHANNESBURG)
Case no:
JA9/97
In
the matter between:
SOMYO
P.
Appellant
and
ROSS POULTRY
BREEDERS (PTY) LTD
Respondent
------------------------------------------------------------------------------------------------------------------
JUDGEMENT
------------------------------------------------------------------------------------------------------------------
The
appellant, Ross Poultry Breeders (Pty) Ltd, breeds boiler chickens.
It imports chicks from Scotland, selects the most genetically
suitable chicks for breeding, breeds with them, and supplies chickens
to about 60% of the companies in South Africa which produce
chickens
for consumption. The appellant carries on business on four farms:
Rainchick, Welverdiend, Schickfontein and Klipvail.
The
respondent, Mr P Somyo, commenced employment with a predecessor of
the appellant as a farm labourer in 1974. Over a period of
time he
was promoted to supervisor and then in 1990, to be the manager of
Rainchick Farm. In January 1995 he was transferred as a
manager to
Schickfontein Farm. The respondent was responsible for the management
of houses 21/21, 27/28 and 29/30. The senior manager,
Mr BTC
Browning, was responsible for houses 23/24 and 25/26, and for the
general administration of the farm as a whole.
On
26 October 1995 a disciplinary enquiry was held before Mr IJ
Breytenbach, the production director, in which the respondent faced
four charges:
- failing to
vaccinate chicks in time;
-
failing to order feed;
-
failing to adhere to the feeding schedule;
-
failing to be present when day-old chicks were delivered.
Breytenbach
found that all four charges were proved and he dismissed the
respondent.
The
respondent appealed against that finding to Mr CF Saunders, the
chairman of the appellant, on 21 November, 1995. The appeal was
dismissed.
The
respondent thereafter instituted proceedings in the industrial court
in terms of s46(9) of the Labour Relations Act, act 28 of
1956. He
sought a determination declaring that his dismissal was an unfair
labour practice, directing the appellant to reinstate
him, and an
order that the reinstatement operate retrospectively to date of
dismissal.
The
respondent gave evidence on his behalf. Breytenbach and Browning
testified for the appellant.
The
industrial court accepted the evidence of Breytenbach and Browning
and rejected the evidence of the respondent where it conflicted
with
that of the appellant’s witnesses. The court found that the
dismissal was not procedurally unfair. The court held that all
four
charges were proved against the respondent. The court nevertheless
held that the sanction of dismissal was too severe. The relief
granted by the court was that the dismissal was declared to be an
unfair labour practice; an order of reinstatement was granted;
the
respondent was given a final warning; and the appellant was directed
to pay the respondent his wages from date of dismissal to
date of
order.
A
reading of the record reveals that the industrial court’s findings
- that the
dismissal was not procedurally unfair;
-
that the evidence of the appellant should be accepted in preference
to that of the respondent;
-
and that the four charges against the respondent were proved, are
unassailable.
The sole
enquiry, therefore, is whether the respondent should have been
dismissed or not.
On
7 August 1995 Browning fell ill. He returned to work on 2 October
1995. During the period of his absence the respondent assumed
responsibility for Schickfontein Farm, including the management of
houses 23/24 and 25/26. At the time he fell ill, Browning informed
the respondent, that he, Browning, was a week late with the Newcastle
Reo Oil vaccination.
Each
manager had a management program which gave the particulars of the
vaccination and the due date. A lee-way of a week was allowed,
ie a
vaccination could be done up to a week later than the due date.
The
vaccinations at houses 23/24 and 25/26 were not done on time during
the period the respondent was responsible for those houses:
House 23
Vaccination
Due
date Date done
Fowl
Cholera 16/8/95 6/10/95
Fowl
Pox 30/8/95 12/10/95
Epidemic
Tremor 11/9/95 27/10/95
House 24
Vaccination Due
date Date done
NCD-Oil-Reo 17/8/95 20/9/95
IB 25/8/95 17/10/95
Fowl
Cholera 8/9/95 10/11/95
Fowl
Pox 20/9/95 7/11/95.
The
vaccinations were done between 5 and 12 weeks late.
The
respondent gave a number of explanations for his failure to ensure
that the vaccinations were timeously done: that Browning had
not told
him in good time when the vaccinations were to be done; that
vaccination guns were not available; and that he was too busy.
The
first explanation is unacceptable: at the time Browning fell ill he
was told that he was to take over all Browning’s responsibilities
and it is common cause that Browning specifically told him that he,
Browning, was a week late with the one vaccination. The other
explanations are equally unacceptable because it is common cause that
the respondent did not raise any problems at the monthly
“bio-security”
meetings which he attended or at the meetings
which Breytenbach held with the respondent every Monday morning or at
the meetings
Saunders held with the “farm managers” every
Wednesday.
The
potential prejudice to the appellant and its customers as a
consequence of the failure to vaccinate timeously was enormous. The
following opinions of an expert, Prof L Coetzee, were common cause
between the parties:
“
SUB
STANDARD IMMUNITY AS A POULTRY HEALTH RISK
INFECTIOUS
BRONCHITIS
Reduced egg
production by up to 60% losses and reduced egg quality that can lead
to additional hatchability losses of up to 15% can
be expected.
NEWCASTLE
DISEASE
Mortality of up
to 70% in sub standard protected flocks and reduced egg quality
leading to reduced hatchability of 30%.
REO VIRUS
Sub standard
levels of antibodies in breeding fowls can lead to unprotected
offspring to runting and stunting disease that can devastate
the
early life of the offspring.
AVIAN
ENCEPHALOMYELITIS
Susceptible
breeding stock can become readily infected - in 1994 this happened at
RPB - reduced egg production by 15-20% and losses
in the offspring
due to egg transmission of the virus leading to mortalities of up to
30%.
CHOLERA
Sub standard
protection can lead to mortalities of 5 to 10% in young breeding
stock.
SALMONELLOSIS
Unprotected
breeding flock can pass the Salmonella to the offspring resulting in
mortalities, and a carrier state in recovered birds,
that can
eventually lead to food poisoning and even death in susceptible human
consumers of boiler products.”
It
was the responsibility of the respondent to order feed for day old
chicks approximately two days before 12 October 1995, when it
was
required for humigation, but he failed to do so. When Browning asked
the respondent why he had not ordered the feed, the respondent
said
that he had forgotten to order the feed and that he had not been sure
how to order bagged feed.
The
respondent said in the industrial court that the feed had to be
ordered only on 9 October 1995, a day that he had been on
leave.
That had not been the respondent’s version when Browning called for
an explanation at the time.
Chicks
are fed with feed with different levels of coccidiostat; Grower 1,
Grower 2 and Grower 3. During Browning’s absence, the
respondent
skipped feeding Grower 2.
In
the industrial court, the respondent admitted that he had not fed
Grower 2 to the chicks, said that there was sufficient Grower
1 left
for the chicks and that he did not know how to dispose of the excess
Grower 1 feed. Once again the respondent did not seek
assistance from
his superiors.
On
24 October 1995 day old chicks arrived at Schickfontein. The
respondent was obliged to be present. It is common cause that he was
absent. In the past, when he was unable to be present at the delivery
of chicks, he had phoned Browning, who had assumed his
responsibilities.
On the day in question, the respondent did not
telephone Browning. Luckily for the respondent, Browning was
available to receive
the day old chicks on his behalf.
The
industrial court came to the conclusion that, from the appellant’s
point of view, the primary reason for dismissal was the respondent’s
failure to ensure that the vaccination program was carried out in
time and that the other three charges were of secondary concern.
The
assessment of the industrial court is probably correct. What was an
aggravating factor, however, in regard to the three lesser
charges,
was that on 24 July 1995 Browning called for a meeting with the
respondent. The meeting was attended by Mr Mamabolo, the
human
resources manager. The purpose of the meeting was to discuss the
respondent’s performance. After the meeting, Browning addressed
a
memorandum to the appellant in which he stated: “Thank you for
joining Mr Mamabolo and myself to discuss certain worrying points
of
your performance. We identified the following points:
1. To
be more pro-active.
2. To
be more reliable and responsible in your actions.
3. Not
to allow your personal commitments to interfere with your work.
4. Instructions
to your staff to be followed up.”
The
respondent did not take that advice to heart. His failure to ensure
that the chicks were timeously fed and that the feeding schedule
was
adhered to, are examples of unreliability and irresponsibility. The
respondent’s failure to be present when the day old chicks
arrived
was an example of an occasion where the respondent’s personal
commitments (to fetch his children from school) interfered
with his
work.
The
focus of the inquiry, nevertheless, must be on the vaccinations which
were performed late.
An employer who
is concerned about the poor performance of an employee is normally
required to appraise the employee’s work performance;
to warn the
employee that if his work performance does not improve, he might be
dismissed; and to allow the employee a reasonable
opportunity to
improve his performance:
Craig v Rubdec (Pty) Ltd t/a Guys and
Girls
(1992) 1 LCD 29 (IC);
James v Waltham Holy Cross UDC
[1973] IRLR 202.
Those requirements may not apply in two cases which
are relevant to this matter. The first is the manager or senior
employee whose
knowledge and experience qualify him to judge for
himself whether he is meeting the standards set by the employer:
Stevenson v Sterns Jewellers (Pty) Ltd
(1986) 7 ILJ 318 (IC)
at 324F-G;
Blue Circle Materials Ltd v Haskins
(1992) 1 LCD 6
(LAC). The second is where “... the degree of professional skill
which must be required is so high, and the potential
consequences of
the smallest departure from that high standard are so serious, that
one failure to perform in accordance with those
standards is enough
to justify dismissal.” :
Taylor v Alidair Ltd
[1978] IRLR 82.
Examples given in Taylor’s case are the passenger carrying airline
pilot, the scientist operating the nuclear reactor, the driver
of an
articulated lorry full of sulphuric acid and the chemist in charge of
research of the possible effects of, for example, thalidomide.
The
appellant did not satisfy the requirements of the appraisal, warning
and opportunity to improve, which would apply in the case
of an
ordinary employee. But the respondent was not an ordinary employee.
He had occupied a managerial position since 1990. He had
managed
Rainchick Farm for some years and occupied a similar position there
as Browning did at Shickfontein. Respondent knew how
important it was
to adhere to the vaccination program. The vaccination program at
houses 23/24 and 25/26 was between five and twelve
weeks late, not
just a week or two. What is particularly damning is that the
respondent did not inform his superiors that he was
behind in the
vaccination program and ask for assistance despite the opportunities
he had to do so at the meetings held twice a week.
And as has already
been stressed, the potential consequences for the appellant and its
customers were very serious.
The
respondent deserves one’s sympathy. He had advanced from being a
farm labourer to a farm manager. He had over twenty years’
service
with the appellant. He had a clean disciplinary record. The appellant
had not complained previously of late vaccinations.
The respondent
was faced with a crisis in that he was suddenly called upon to assume
additional obligations when Browning fell ill
and it is only in
respect of the houses for which Browning had been responsible, that
the vaccinations were late.
At
the end of the day, one’s sympathy for the respondent must give way
to the cumulative effect of the circumstances outlined in
above, in
particular that the respondent occupied a responsible position; he
was aware of the potential consequences to the appellant
and its
customers if the vaccination program was not adhered to; he kept his
superiors in the dark about his failure to adhere to
the vaccination
program; and he did not provide acceptable explanations for his poor
work performance.
The
appellant had a valid reason for dismissing the respondent.
The
appeal succeeds. The determination of the industrial court is altered
to read: “the application is dismissed.”
----------------------
Myburgh
JP
I
concur I concur
--------------------- ---------------------
Froneman
DJP Nicholson JA
Date
of hearing :
Date
of judgement :
26
June 1997
On
behalf of the appellant :
On
behalf of the respondent :