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[2016] ZALAC 26
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Marthinussen v Metal And Engineering Industries Bargaining Council and Others (JA41/2014) [2016] ZALAC 26; (2016) 37 ILJ 2292 (LAC) (14 June 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case
no: JA41/2014
DATE:
14 JUNE 2016
Reportable/Not
Reportable
In
the matter between
LH
MARTHINUSSEN
..............................................................................................................
Appellant
And
METAL
AND ENGINEERING
INDUSTRIES
.........................................................
First
Respondent
BARGAINING
COUNCIL
AHMED
CACHALIA
N
O
.......................................................................................
Second
Respondent
VUSI
DANIEL
KUBEKA
..........................................................................................
Third
Respondent
JEFFREY
NKOSENHLE
NDLOVU
......................................................................
Fourth
Respondent
MSELEKI
WILBERFORCE
MAZULA
...................................................................
Fifth
Respondent
MASTER
BHEKI
DLUDLU
......................................................................................
Sixth
Respondent
Heard:
12 May 2016
Delivered:
14 June 2016
Summary:
Review of arbitration award – arbitrator finding that
employee’s dismissal substantive unfair on the basis
that
sanction of dismissal too harsh – arbitrator taking into
account all relevant factors in arriving at his decision –
award falling within the band of reasonableness – Labour
Court’s judgment upheld – appeal dismissed with costs.
Coram:
Davis, Musi JJA
et
Murphy AJA
JUDGMENT
MURPHY
AJA
[1]
The appellant appeals against the judgment of the Labour Court (Le
Roux AJ), dismissing its application for review of the award
of the
second respondent (‘the arbitrator”). The appeal is with
the leave of the court
a quo
.
[2]
The third to sixth respondents (“the respondents”) were
employed by the appellant as machine operators for periods
ranging
between 28 and 3 years. They were charged with dishonesty in respect
of false time keeping for the night shifts of 26 April
2010 and 28
April 2010. The appellant had been experiencing low
productivity levels during nightshift and decided to investigate to
establish
the reasons. It installed closed circuit video equipment
and obtained video footage which showed the respondents switching off
their machines before the end of the shift and some of them sleeping
on duty. It is not disputed that the appellant experienced
a low
level of productivity during nightshifts in April 2010. The video
footage showed that at various times during one or both
of these
night shifts all four of the individual respondents had turned off
their machines prior to the end of their shifts. The
appellant had to
run an extra shift on 27 April 2010 to make up for the low level of
productivity on the nightshift of 26
April 2010.
[3]
The respondents were charged with dishonesty in accordance with the
disciplinary code of the appellant. The code provides for
dismissal
both for a first occurrence of dishonesty of any nature and refusal
to obey a legitimate instruction.
[4]
The respondents were found guilty by the disciplinary enquiry and
were all dismissed on 5 May 2010. The respondents referred
the matter
to the bargaining council, the first respondent. The arbitration took
place on 19 September 2011. The arbitrator handed
down his award on
12 October 2011. He held that the sanction of dismissal was not
appropriate and hence that the dismissal
was substantively unfair. He
ordered the appellant to reinstate the respondents on the same terms
and conditions as at the date
of dismissal, but with effect from 17
October 2011, thus not including retrospective payment of any
remuneration, and that the
respondents be given a final written
warning valid for 12 months. In effect he substituted the sanction of
dismissal with a lengthy
suspension without pay and a final written
warning.
[5]
During the arbitration, the respondents put forward unconvincing
explanations justifying their conduct. They claimed variously
to be
unwell and fatigued. The arbitrator rightly rejected the explanations
as not “valid”. He accordingly found all
the respondents
guilty of switching the machines off before the close of shift
without valid reason and of not working for the
full period for which
they were to be paid. Despite the appellant initially deducting
amounts, the respondents were ultimately
paid for the entire shift,
even though they had not worked the full hours for which they were
remunerated. The arbitrator identified
the issue he had to determine
as being “whether this amounted to dishonesty as a result of
false time keeping”.
[6] The arbitrator’s
reasoning in relation to this question is set out in the award as
follows:
‘
The
Applicants were essentially “dishonest” by not working
the hours they were expected to. By clocking out at the correct
time,
they gave the impression that they were working. According to the
Respondent this is dishonesty…..Strictly speaking,
when
employees do not work, they are being dishonest. This in my opinion
would be true if an employee is found sleeping on duty
or having an
extended lunch hour or taking too many smoking breaks etc. the same
principle of not working and being paid for it
applies…..Dishonesty
is an extremely strong term for this type of behaviour….In my
view the Applicants were truant
and did not work as expected of
them….At most, the Applicants are guilty of not performing
their work (not to be confused
with poor quality of work) as expected
and not meeting the expected production as a result of them switching
the machines off and
not working.’
[7]
Having defined the misconduct of the respondents thus, the arbitrator
turned to the question of sanction. All of the respondents
except Mr
Ndlovu, the fourth respondent, had more than 10 years’ service.
The third respondent had 28 years’ service.
The arbitrator then
returned to the nature of the offence. He continued:
‘
The
Respondent dismissed them for dishonesty as a result of false
timekeeping in that they did not work their full hours as expected
and switched their machines off. In my view by wording the charge as
dishonesty the Respondent would easier be able to dismiss.
Dishonesty
is an offence for which employers can fairly dismiss employees in
most instances. However, I believe the true essence
of the charge is
not dishonesty in the normal understanding of the word but rather the
failure of employees to diligently fulfil
their work functions as
expected of them in respect of them working their full hours. I do
not think the Applicants would have
been charged let alone dismissed
had they met their production targets. I also don’t believe the
Applicants would have been
dismissed had they had their machines on
but did not meet the expected production.’
[8]
Taking account of the employees’ length of service, the nature
of the offence and the policy of progressive discipline,
the
arbitrator concluded that dismissal was too harsh and substituted it
with the sanction of suspension and a final warning.
[9]
The appellant on review in the court
a quo
and in the appeal
before us argued that the award was reviewable on various grounds
which can be summarised as follows. It submitted
that the arbitrator
erred in holding that the conduct of the respondents did not
constitute dishonesty and was instead akin to
failure to work
diligently; and that the sanction of dismissal was too harsh. The
arbitrator furthermore, according to the appellant,
failed to attach
sufficient weight to the facts that the respondents deliberately
switched off the machines without permission;
claimed full salaries
when they did not work the hours claimed; and did not show remorse
for their conduct at the disciplinary
enquiry. These factors, in the
appellant’s view, outweighed the long service period and past
disciplinary record of the respondents
and strongly indicated that
the trust relationship had broken down. In addition, it submitted
that the arbitrator erred by not
properly considering the
circumstances that led to the decision to install the surveillance
cameras at the work stations of the
respondents and the financial
loss suffered through low productivity in the nightshifts over a
sustained period.
[10] The court
a
quo
was brief and to the point in its conclusion. It held:
‘
[23]
I have considered the award. Whilst a court on review may differ in
its view as to whether or not dismissal was an appropriate
sanction
in this regard, this is not the test to be applied. I must decide
whether the award is one that could reasonably be reached
on the
evidence and other material properly before the second respondent. In
my view this question must be answered in the affirmative.
[24]
The second respondent’s finding that the individual
respondent’s conduct did not amount to dishonesty in the strict
sense of the word and that this amounted to something akin (to)
failure to work diligently is, in my view, a reasonable finding.
The
second respondent considered the length of service of the individual
respondent’s and their disciplinary record and came
to the
conclusion that the trust relationship had not been broken down. He
came to the conclusion that dismissal was too harsh
a sanction and
that a lesser sanction would serve a corrective purpose. I should
also observe that the lesser sanction is in fact
a fairly severe one
in that, apart from the imposition of a final written warning, the
fact that the individual respondents were
not retrospectively
reinstated meant, in effect, that they were suspended without pay for
a lengthy period of time.”
It
accordingly dismissed the review application and made no order as to
costs.
[11]
It is trite that decision-makers acting reasonably may reach
different conclusions on the issue of sanction. Provided the sanction
falls within a reasonable range of options the court should be loath
to interfere where the arbitrator has considered all relevant
factors
and not been influenced by capricious or irrelevant considerations
distorting the outcome. The record reveals that the
arbitrator
considered all the relevant evidence. Much of the appellant’s
argument before us complained about the failure
of the arbitrator to
accept its interpretation on dishonesty and show deference to the
employer’s prerogative on sanction.
As the court
a
quo
pointed out, the notion advanced by the appellant that an arbitrator
must accord deference to the employer’s decision as
to sanction
was rejected by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
[1]
However, the appellant also intimated that the arbitrator
irrationally contradicted himself in finding initially that the
conduct
was dishonesty but then holding later that it was not. The
submission misrepresents the arbitrator’s reasoning. His
finding
was essentially that the dishonesty in this case was not of
the egregious kind, where, for instance, the perpetrator deliberately
steals from or blatantly defrauds the employer. Truancy is a lesser
form of dishonesty. There is no incongruity in that reasoning.
The
arbitrator did not contradict himself or unreasonably substitute the
offence. He merely engaged in a rational gradation of
the offence to
reveal its less serious nature, which taken with the lengthy periods
of service and clean disciplinary records of
the respondents,
supported his conclusion that the trust relationship had not been
damaged to the extent of making the continuation
of the employment
relationship objectively intolerable. The severe sanction he chose to
impose, 18 months suspension, implicitly
took account of the harm
caused to the employer and its need to enforce discipline. The
arbitrator thus evinced an understanding
of the rule breached and the
importance of that rule. He took account of the employer’s
reason for imposing the sanction
of dismissal and the prejudice to
the employer caused by the conduct. But he disagreed with the
employer’s approach and reasonably
refused to defer to it. He
rationally held that the potential effect of a dismissal and the
long-service record of the employees
justified a sanction less than
dismissal. He then imposed the suspension without pay and a final
warning valid for 12 months. There
was nothing improper or
unreasonable about the manner in which the arbitrator exercised his
discretion; nor did he misconceive
the nature of the enquiry.
[12]
The court
a quo
was accordingly correct to dismiss the
application and the appeal must fail. There is no reason why costs
should not follow the
result.
[13]
In the premises, the appeal is dismissed with costs.
JR
Murphy AJA
I
agree
Davis
JA
I
agree
Musi
JA
APPEARANCES:
FOR THE
APPELLANT: Mr N Mkhize Attorney
FOR
THE RESPONDENTS: Mr A Goldberg Attorney
[1]
(2007)
ILJ 2405 (CC).