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1998
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[1998] ZALAC 24
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Nampak Corrugated Wadeville v Khoza (JA14/98) [1998] ZALAC 24; [1999] 2 BLLR 108 (LAC); (1999) 20 ILJ 578 (LAC) (12 November 1998)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
Number: JA14/98
In
the matter between
Nampak
Corrugated Wadeville
Appellant
and
Khoza
Respondent
JUDGMENT
NGCOBO
JA
This Appeal concerns the fairness or otherwise of the dismissal of
Mr. Khoza, the respondent herein, by Nampak Corrugated Wadeville
(
'
Nampak
'
),
appellant herein, for gross negligence arising from damage to a
boiler operated by Khoza.
In view of the
fact that the respondent
'
s
heads of argument were filed late, a preliminary matter to decide
is whether the late filing should be condoned.
On 9 April
1998 the registrar of this court advised the respondent
'
s
attorney, Mr Magunda, that the respondent
'
s
heads of argument had to be served and filed on or before 14
September 1998. When the respondent
'
s
heads of argument had not been filed by 5 October 1998, this court
enquired from Mr Magunda whether the respondent intended
to oppose
the appeal, and indicated that if the respondent intended to oppose
the appeal heads of argument had to be filed. On
the same day, Mr
Magunda confirmed that the respondent intended to oppose the appeal
and indicated that heads of argument, together
with an application
for condonation, would
'
follow
shortly
'
.
The respondent
'
s heads of
argument were only filed on 4 November 1998, that is, the day
before the appeal was due to be argued. Attached to the
heads of
argument was an
'
affidavit
in support of an application for condonation
'
.
There was no notice of application for condonation, as required by
the rules of the court.
In an attempt
to explain the delay in filing the heads of argument, Mr Magunda
said that he does not have telefax transmission
facilities. He has
to rely on a colleague whose offices are close to his. Normally, a
member of his staff would go to pick up
the fax from his
colleague
'
s office. He
says that this is probably what happened to the notice of 9 April
1998. However, that member of staff did not bring
the notice to his
attention. The result was that he never became aware of the
contents of that notice until he received the further
enquiry from
this court dated 5 October 1998. I should mention here that, on
their face, the appellant
'
s
heads of argument were served upon Magunda
'
s
office by telefax on 18 August 1998. Whether he received them and
whether he made enquiries about the date when the respondent
'
s
heads of argument had to be filed, does not appear from his
affidavit. In all probability, he made no enquiries. He then says
counsel was instructed immediately thereafter to prepare heads of
argument. Mr Mpama, who appeared on behalf of the respondent,
informed us that he did not prepare the heads of argument, having
been briefed only on 2 November 1998.
The heads of
argument themselves do not comply with the rules of this court. An
amount is in blank. They contain a
'
list
of authorities
'
which is
not referred to in the heads of argument. Some of the authorities
are not properly cited; nor does one know what proposition
the
authorities are being cited in support of.
In this
country of ours, it is not unlikely that a firm of attorneys could,
even in this day and age, not have telefax transmission
facilities.
No blame attaches to Mr Magunda in this regard. While it is
understandable that a member of his staff may have
failed to bring
the notice to his attention, as an attorney he must take full
responsibility for the conduct of his member of
staff. However, Mr
Magunda offers no explanation, nothing at all, for the delay from 5
October 1998 to 4 November 1998 when
respondent
'
s
heads of argument were filed.
Failure by practitioners to file their heads of argument timeously
is becoming a problem in this court. In this term alone,
out of 15
appeals heads of argument in 5 appeals
were not filed on time. This is so notwithstanding that the
parties were given between four and five months within which to
file their heads of argument. This court has in the past made it
clear that in the absence of an acceptable explanation for
the
failure to file heads of argument in time, condonation will not be
granted (See
Allround
Tooling (Pty) Ltd v NUMSA
[1998]
8 BLLR 847
(LAC) at 850 C-E (and the cases cited therein)). Here,
no acceptable explanation for not timeously filing the heads of
argument
has been provided. In the result, the application for
condonation is refused.
Then to the
merits of the appeal.
Khoza had been
employed by Nampak as a boiler attendant for some 15 years. He had
received proper training as a boiler attendant.
He was described
in evidence as
'
a very
experienced boiler attendant.
'
On the night
of 12/13 May 1996 he was on duty. He was responsible for the
operation of a coal burning steam boiler. The boiler
had to be
fully operational to supply steam by 07h00 on Monday 13 May 1996.
It takes about 4 hours for the boiler to reach the
operational
pressure of 1500 kPa. Once the required pressure was reached,
Khoza had to regulate the fire to ensure that the
fire did not get
too hot nor the heat too intensive.
This is how
the boiler operates.
The coal for
the fire is fed from a bunker on to a stoker consisting of a
chaingrate (
'
the grate
'
).
The grate acts as a conveyor belt. It moves horizontally from the
rear, that is, where coal is fed into the boiler, to the
front,
where burnt-out ash is tipped onto an ash pit. From the rear to the
front, the grate moves over and around a roller shaft
(
'
the
front roller
'
) and back
to the rear, where it comes up and around a rear roller. It takes
approximately one hour to move from the rear to the
front. The coal
fed in burns to ash by the time the grate reaches the front. As the
grate moves over the front roller, ash is
tipped onto the ash pit.
If the burning coal remains in contact with the grate for too long
a period the grate will be damaged. To prevent this, the burning
coal must be raked onto cold coal which is fed in. This process is
called banking. If the grate is obstructed in its movement
the
shear pin will break off and the grate will stop moving. To get the
grate moving again, the shear pin must be replaced. If
the shear
pins keep on breaking, this may be indicative of a major problem.
In that event, the motor must be switched off. The
burning coal
must be pushed off the grate into the ash pit to prevent damage to
the grate.
In the early
hours of the morning of 13 May 1996, the boiler stopped moving.
Khoza reported the matter to Mr van Heerden. The
latter sent Mr
Combrinck, an electrician, to attend to the problem. He found that
a shear pin had broken. The shear pin was replaced.
The grate moved
for approximately 20 minutes before jamming again. Khoza called
Combrinck
back. Once again the shear pin had broken. It was replaced. The
grate moved for approximately 35 minutes before jamming once
again.
The shear pin had broken once again. It was replaced once more.
This was the last shear pin that Khoza had, as each attendant
is
issued with three pins. The grate ran for approximately 20 - 30
minutes before jamming again. Khoza went to the workshop to
call
Combrinck. As the pins had been finished, Combrinck contacted van
Heerden and explained the problem. Khoza was instructed
to start
another boiler. Khoza then switched off the motor of the first
boiler. The grate was stationary at the time. There was
burning
coal on the grate. He did not push the burning coal into the ash
pit nor did he remove it from the boiler. He proceeded
to start the
second boiler as instructed. He left work at approximately 07h30
that morning. He did not return to the first boiler
to remove the
burning coal that had been left on the grate.
A subsequent
inspection of the boiler revealed that a hole measuring 900 mm by
200 mm had been burnt into the grate and that the
links around it
had been melted into a solid plate. The damage was found at the end
of the grate where ash should have been discharged.
It cost R12
392.94 to repair the damage.
Dultro
Engineering CC, a firm which inspected the damage and prepared a
report, found that the damage had been caused by overheating.
As to
what caused the overheating, the firm gave four possible
explanations: either the banking procedures were not followed;
or
banking was done incorrectly; or back ash was not removed, causing
a build-up on the back-roller; or the boiler was left unattended.
Khoza was
subsequently charged with gross negligence and appeared at a
disciplinary hearing. At the enquiry, Khoza testified,
inter
alia
, that he had followed the correct procedures. He
essentially told the enquiry what had happened and how he was
instructed to
start a second boiler.
At the conclusion of the enquiry, the chairperson found that the
damage had been caused by the exposure of the grate to too high
temperature for a prolonged period. He further found that had the
correct procedure been followed, the damage would not have
been
caused. Khoza was accordingly found guilty of
'
gross
negligence of the highest degree
'
.
Having found
'
no
mitigating circumstances
'
,
the chairperson recommended a dismissal.
His internal
appeal to the managing director was unsuccessful. His dismissal was
upheld.
Khoza challenged his dismissal, and referred the dispute to the
industrial court for a determination in terms of section 46(9)
of
the Labour Relations Act, No. 28 of 1956, as amended. Before that
court, Khoza put in issue the substantive fairness of his
dismissal. The industrial court found that Khoza had failed to
remove the burning coal from the grate as required by the emergency
drill instructions. As a consequence, burning coal remained in
contact with the grate for a substantial period and caused a hole
in the grate. It concluded that Khoza was, therefore, negligent.
However, it could not find that he was grossly negligent
'
[d]ue
to the circumstantial nature of the evidence
'
as to the cause of Khoza
'
s
negligence.
The court
found that, having regard to the facts and circumstances of the
case, the sanction of dismissal was too harsh and constituted
an
unfair labour practice. It ordered that Khoza be reinstated in his
employment with effect from 28 February 1998. The court,
however,
refused to order compensation in addition.
The present
appeal is against the determination and order made by the
industrial court.
The essential
facts which are either common cause or not in dispute are that: the
grate jammed three times during the course of
the morning; the
shear pin was replaced three times; the grate moved for a short
time each time the shear pin was replaced; the
damage to the boiler
was caused by a hole having been burnt into the grate; the hole was
caused by burning coal having been left
on the grate for a long
period; when Khoza went to start the second boiler, he left burning
coal on the grate which was then
stationary; Khoza never returned
to the first boiler before he finished work at 07h30 on the morning
of Monday 13 May 1996.
On appeal, as in the court below, Nampak contended that the damage
to the grate had been caused prior to the grate jamming. They
argued that the hole caused the grate to jam, as the grate became
unable to travel around the sprocket. If Nampak
'
s
contention is upheld, it would mean that at some point prior to the
grate jamming, Khoza had abandoned the boiler and failed
to carry
out banking procedures.
By contrast,
Khoza contended that the grate was only damaged after he had gone
to start the second boiler.
In my view, on
any contention, Khoza was negligent. It is, therefore, not
necessary to decide which of the two contentions is
more plausible.
The appeal can be disposed of on Khoza
'
s
version.
On his own version, after he was instructed to start the second
boiler, Khoza left the burning coal on the grate. The grate was
stationary at the time. He did not remove the burning coal from the
grate into the ash pit as required by the emergency drill
instructions. As a result, burning coal remained in contact with
the grate for a prolonged period. This caused the damage to
the
grate. Mr Koetsier, the maintenance manager, admitted when
questioned by the court below that the only way that a hole would
have been burnt into the grate was for the grate to be stationary
with burning coal on it for
'
quite
a long period
'
. Indeed,
the report by Dultro Engineering is consistent with burning coal
having been left on the grate for a prolonged period.
Khoza knew
that leaving burning coal on the grate for a prolonged period could
damage the grate. A reasonable boiler attendant
would, in the light
of this knowledge, have removed burning coal from the grate into
the ash pit. Apart from this, the emergency
drill instructions
required Khoza to push the burning coal from the grate into the ash
pit once the motor was switched off. He
did not do this.
When Khoza was
asked by the court below why he had not removed the burning coals
from the grate knowing what the consequences
might be, his response
was that he had been
'
instructed
to leave this boiler to start the other boiler and the time was
already gone that time in the morning (sic)".
He added that in
the past burning coal had been left on the grate without any damage
to the grate. This occurred during the period
February to March
when there were production problems and two boilers were used.
His explanation suggests that he was anxious to get the second
boiler going in time for production. However, to remove the burning
coal from the grate and push it into the ash pit would not have
taken too long. He had ample time to do this and still get the
second boiler started. Khoza, therefore, had no justifiable reason
for not removing the burning coal from the grate. The most
revealing fact about his attitude towards his duties is the fact
that once he had started the second boiler, he did not bother
to
return to the first boiler to clear the grate of the burning coal.
He simply abandoned the first boiler. This, in my view,
was a gross
dereliction of duty.
The next
question that arises is whether, having regard to the facts and the
circumstances of the case, dismissal was a fair sanction.
The determination of an appropriate sanction is a matter which is
largely within the discretion of the employer. However, this
discretion must be exercised fairly. A court should, therefore, not
lightly interfere with the sanction imposed by the employer
unless
the employer acted unfairly in imposing the sanction. The question
is not whether the court would have imposed the sanction
imposed by
the employer, but whether in the circumstances of the case the
sanction was reasonable. In judging the reasonableness
of the
sanction imposed, courts must remember that:
There
is a band of reasonableness within which one employer may reasonably
take one view: another quite reasonably take a different
view. One
would quite reasonably dismiss the man. The other would quite
reasonably keep him on. Both views may be quite reasonable.
If it
was quite reasonable to dismiss him, then the dismissal must be
upheld as fair: even though some other employers may not
have
dismissed him.
(
British
Leyland UK Limited v Swift
[1981] IRLR 91
at 93, para 11)
It seems to me
that the correct test to apply in determining whether a dismissal
was fair is that enunciated by Lord Denning MR
in
British UK
Limitedv Swift
,
supra
, at p.93 para 11, which is:
Was
it reasonable for the employer to dismiss him? If no reasonable
employer would have dismissed him, then the dismissal was unfair.
But if a reasonable employer might have reasonably dismissed him,
then the dismissal was fair.
Applying the above test, I cannot hold that it was not reasonable
for Nampak to dismiss Khoza. He was engaged as a boiler attendant.
He had to make sure not only that the boiler was functioning
properly but also that no damage was caused to it. He was a very
experienced boiler attendant. He knew he had to remove burning coal
from the grate once the motor was switched off. He knew that
failure to do this might cause not only damage to the boiler but
endanger lives as well. The fact that he had to start the second
boiler was no excuse for him not to remove burning coal from the
grate. He had ample time to carry out the emergency instructions
and then get the second boiler started. If the reason for his
failure to carry out those instructions had been his anxiety to
get
the second boiler started immediately, one would have expected him
at least to return to the first boiler once he had started
the
second one in order to check on the status of the coal on the
grate. His failure to do so suggests that the reason advanced
by
him for not carrying out those instructions was a mere pretext. The
probable explanation for his conduct, in these circumstances,
is
simply that he deliberately neglected to perform his duties.
Consequently, I do not share the view of the industrial court
that
the evidence against Khoza was so circumstantial that it could not
be used to explain his conduct. It was Khoza who had
to furnish
that explanation. In the absence of any credible explanation, the
inference that he deliberately neglected to perform
his duty is
irresistible. This finding by the employer cannot be faulted.
In these circumstances, could Nampak still trust that in future
Khoza would perform his duties as a boiler attendant diligently?
I
think not. The trust which is fundamental in an employer/employee
relationship was broken.
I am not
prepared to say that no reasonable employer would have dismissed
Khoza in the circumstances. On the contrary, it seems
to me that
many a reasonable employer in the circumstances would have thought
that it was right to dismiss him.
In the event,
the appeal is upheld with costs. The determination and order made
by the industrial court is altered to read:
'(a) The dismissal of the applicant did not constitute an unfair
labour practice.
(b) The application is dismissed.
'
NGCOBO
JA
I agree,
MYBURGH
JP
I agree,
FRONEMAN
DJP
DATE OF HEARING: 5 November 1998
DATE OF JUDGMENT: 12
November 1998
For the
appellants: Adv PR Jammy
Instructed by: Edward
Nathan & Friedland Inc.
For the
respondents: Adv G Mpama
Instructed
by: Magunda Attorneys