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[2016] ZALAC 40
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Bridgestone SA (Pty) Ltd v National Union of Metalworkers Union of South Africa and Others (JA28/15) [2016] ZALAC 40; (2016) 37 ILJ 2277 (LAC) (15 June 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not reportable
Case no: JA28/15
In the matter between:
BRIDGESTONE SA (PTY)
LTD
Appellant
and
NATIONAL UNION OF
METALWORKERS
UNION OF SOUTH AFRICA
First Respondent
MODISE, ALBEN
Second Respondent
WILLEM KOEKEMOER
N.O
Third Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Fourth Respondent
Heard:
19 February 2016
Delivered:
15 June 2016
Summary:
Review of arbitration award – Appropriateness of sanction –
commissioner finding that
employee’s dismissal not a fair
sanction – Role of commissioner regarding sanction restated-
commissioner taking into
account relevant mitigating factors –
award falling within the band of reasonable outcome – Appeal
dismissed with costs.
Coram: Tlaletsi DJP,
Musi
et S
utherland JJA
JUDGMENT
TLALETSI DJP
[1]
This
appeal, which is with leave of the court
a
quo
,
is against the whole judgment and order of Cele J, in terms of which,
the appellant’s application to review and set aside
an
arbitration award issued by the third respondent, an arbitrator
appointed by the fourth respondent, the Commission for Conciliation
Mediation and Arbitration (the CCMA) was dismissed with no order as
to costs.
[2]
The
dispute, which was the subject of arbitration, emanates from the
dismissal of the second respondent (the employee) for allegedly
contravening a Health and Safety rule of his employer, the appellant.
It was alleged that the employee was driving a forklift with
cell-phone headsets on his ears connected to his cell-phone.
[3]
At
the disciplinary enquiry, the employee pleaded guilty in relation to
the alleged misconduct and gave a reason that he was waiting
for a
telephone call as his mother was ill. He was found guilty on his plea
and a sanction of summary dismissal was imposed. Aggrieved
by his
dismissal, a dispute of unfair dismissal was referred by his union
(the first respondent) to the CCMA and was arbitrated
after
unsuccessful conciliation.
[4]
The
arbitrator was required to determine the substantive fairness of the
dismissal and if the dismissal was found to be unfair,
to determine
the appropriate relief for the employee.
[5]
The
appellant tendered the evidence of two witnesses, namely, Morake who
was the production foreman to whom the employee reported,
as well as
Van Wyk the departmental manager who presided over the disciplinary
inquiry of the employee.
[6]
Morake
testified that the utilisation of a cell-phone by an employee was
strictly forbidden because it created potential danger
not only to
himself but also to co-workers on site. An exception to the rule was
that managers were allowed to use cell-phones
but only in certain
designated areas where risk was not a factor. Morake testified that
the staff was regularly made aware of the
importance of the rule and
the serious light with which the appellant viewed a contravention of
the rule. On the day of the incident,
he noticed the employee driving
a forklift having his headsets on his ears and confronted him. The
employee apologised and gave
an explanation that he was awaiting a
call from his mother who was sick. He disputed that the employee told
him that he confused
his headsets for his safety earplugs. He
explained that there was no need for the employee to put on his
earplugs because the area
in which he was working was less noisy.
[7]
Van
Wyk testified that in tendering his plea of guilty at the
disciplinary enquiry, the employee mentioned that his mother was sick
and that he was aware of the rule he admitted violating. Although he
considered other sanctions short of dismissal, such a sanction
would
have sent out a wrong message.
[8]
The
employee testified that he indeed had his cell-phone headset on his
ears. He was in a state of confusion because of his sick
mother and
mistook his headset for his earplugs. He was well aware of the
rule that prohibited the use of cell-phones in
the plant. He only
pleaded guilty at the disciplinary inquiry for having his headset
plugged onto his ears but not for using a
cell-phone is it plugged
onto the ears. His cell-phone was not in his possession, at the
time, as he kept it in his locker.
[9]
In
the evaluation of the evidence, the arbitrator found no reason to
reject the evidence presented on behalf of the appellant since
the
witnesses were credible, withstood stringent cross-examination and
presented their evidence without hesitation. She found the
employee’s
version that he only pleaded guilty to having his headset on his ears
as mere fabrication and rejected it. She
found the version that the
employee operated a forklift whilst having his headset on his ears
and connected to a cell-phone more
probable and accepted same. She
further found that the employee was aware of what was expected of him
because there had been constant
reminders to the staff of the
importance of the safety rule, and he failed to comply.
[10]
In
considering the sanction, the arbitrator took into account the fact
that the employee pleaded guilty at the disciplinary inquiry;
he had
a clean disciplinary record and that there was no evidence that the
appellant suffered any harm as a result of the employee’s
conduct. She further found no reason why “
a
corrective measure of some sorts could not have been applied
”,
that he “
could
not conclude that the element of trust in the employment relationship
was severed beyond repair by the isolated contravention
by the
employee. ‘The limited nature of my award, however, emphasises
that the safety regulation is there to be adhered to
and remains a
rule to be respected and adhered to at all times
”.
[11]
The
arbitrator in conclusion made the following award:
‘
Award
1.
In
finding that the respondent did not prove that the dismissal of the
applicant was substantively fair.
2.
After
considering the evidence at these proceedings and the totality of the
circumstances, I believe it would be fair to order as
follows:
a)
The
respondent, BRIDGESTONE SA (PTY) LTD, must re-instate the applicant,
MR ALBEN MODISE.
b)
The
re-instatement must be effected as from 19 August 2013, and not from
the date of his dismissal, on the same terms and conditions
of
employment that applied to him prior to his dismissal.
c)
The
period from date of dismissal until date of reinstatement must be
regarded as unpaid leave.
d)
I
give no order as to back-pay.
e)
The
applicant must report for duty at the respondent at its Brits branch
on 19 August 2013.
f)
A
final written warning is to be issued pertaining to the applicant’s
contravention of the safety regulation.
g)
I
give no order as to costs.”
[12]
Aggrieved
by the award, the appellant sought to review the award on the basis
that the arbitrator;
‘
Committed
gross misconduct and failed in his duty to consider the evidence
before her and to have due regard to the applicable legal
principles;
failed to apply his mind to the material/facts/evidence presented by
the appellant in relation to the issue of sanction;
not considering
the employee’s final written warning for unrelated misconduct;
finding that there was no evidence of the
trust relationship being
broken on the face of the evidence presented by the appellant;
failed to take into account how the
employee conducted himself
in the arbitration by departing from his previous plea of guilty at
the disciplinary inquiry.’
[13]
In
dismissing the application for review, the labour court evaluated the
award with regard to the arbitrator’s findings and
concluded
that the decision reached by the arbitrator is not one that a
reasonable decision-maker could, in the circumstances of
the case,
not reach. It recorded that the appellant had persisted in submitting
that the rule had been applied consistently without
any evidence
placed on record that there had been previous cases of employees
using cell-phones at the workplace who were treated
the same way as
the employee.
[14]
The
appellant raised several grounds in its notice of appeal upon which
the judgment of the Labour Court is challenged. These are,
inter
alia, that the Labour Court erred:
14.1 In its
approach to the issue of consistency particularly in attaching undue
weight to the issue as a factor having
a bearing on the
appropriateness of the dismissal.
14.2 In
its approach to the issue of progressive discipline by disregarding
the employee’s adverse disciplinary
issue of sanction and that
the absence of a disciplinary record militated against the sanction
of dismissal where the misconduct
pertains to violation of a safety
rule.
14.3 In
disregarding the absence of remorse on the part of the employee.
14.4 In
its assessment of the evidence regarding the earphones worn by the
employee, by expressing misgivings
regarding whether the earphones
were connected to a cell-phone and by concluding that the decision
reached by the commissioner
was not one that a reasonable decision
maker could not come to.
[15]
Mr
Itzkin who appeared on behalf of the appellant in this Court
contended that the court
a
quo
erred in dismissing the review application because the decision
reached by the commissioner to the effect that dismissal was not
an
appropriate sanction, was manifestly a decision that a reasonable
decision-maker could not reach on the application of the review
test
espoused in various judgments of this Court and other courts. Counsel
referred to the grounds of appeal referred to in the
preceding
paragraph in support of his contention that the court
a
quo
erred. He emphasised two issues, namely: that the seriousness of the
transgression as well as the dishonesty of the employee by
fabricating a defence at the arbitration which is indicative of lack
of remorse. Counsel concluded, with reference to the decision
of this
Court
in
Head of the Department of Education v Mofokeng and Others
[1]
that what he referred to as errors and defects in the award of the
commissioner are such that they led to the commissioner arriving
at
an unreasonable result.
[16]
On
behalf of the respondents, Mr Van der Riet SC, submitted that the
facts in this case are in all respects similar to the facts
in
Sidumo
and Another v Rustenburg Platinum Mines and Others (Sidumo)
[2]
and that it cannot be said that the decision in this matter is a
decision that a reasonable commissioner could not reach. He submitted
that the court
a
quo
was alive to the review test and applied it correctly.
[17]
As
shown by counsel’s submissions, the real issue is whether on
the facts of this case, the court
a
quo
applied the review test as espoused by the Constitutional Court in
Sidumo
as well as subsequent judgments of this Court and the Supreme Court
of Appeal. It is not necessary therefore to go through all
the
judgments on the test as both counsel are aware of the test. However,
the following extract from
Sidumo
would suffice:
‘
To sum up.
In terms of the LRA, a commissioner has to determine whether a
dismissal is fair or not. A commissioner is not given
the power to
consider afresh what he or she would do, but simply to decide whether
what the employer did was fair. In arriving
at a decision a
commissioner is not required to defer to the decision of the
employer. What is required is that he or she must
consider all
relevant circumstances.’
[3]
It is the commissioner’s
sense of fairness and not that of the employer that matters..
Therefore it is the award of the commissioner
which is the subject of
review.
[18] In
Sidumo
,
the Court expressed itself as follows regarding what is expected of
the commissioner when considering the fairness or otherwise
of the
sanction:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee's conduct,
whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on
the employee and
his or her long-service record. This is not an exhaustive list.’
[4]
[19]
Section
138(6) of the Labour Relation Act 66 of 1995 (LRA) enjoins Commission
for Conciliation, Mediation and Arbitration’s
(CCMA)
commissioners to take into account any code of good practice issued
by National Economic Development and Labour Council
(NEDLAC) or
guidelines published by the CCMA in accordance with the provisions of
the LRA that is relevant to the matter being
arbitrated. In the same
vein, section 188(2) of the LRA decrees that any person considering
whether the reason for dismissal is
a fair reason or whether the
dismissal was effected in accordance with a fair procedure must take
into account any relevant code
of good practice issued in terms of
the LRA. The section makes specific reference to Schedule 8, the Code
of Good Practice: Dismissal
(‘the Code”).
[20] Item 3(3) of the
Code provides
inter alia
, that:
‘
Repeated
misconduct will warrant warnings, which themselves may be graded
according to degrees of severity. More serious infringements
or
repeated misconduct may call for a final warning or other action
short of dismissal. Dismissal should be reserved for cases
of serious
misconduct or repeated offences’.
[21] Item 3(4) of the
Code provides that dismissal is not appropriate for a first offence,
except in cases of serious misconduct
that renders a continued
employment relationship intolerable. Serious misconducts that the
Code considers to be of such a nature
to attract dismissal include,
gross dishonesty, wilful damage to the property of the employer,
wilful endangering of the safety
of others, physical assault on the
employer, a fellow employee, client or customer and gross
insubordination. Each case however,
should be considered on its
unique circumstances.
[22] When deciding
whether dismissal is the appropriate sanction, item 3(5) of the Code
states that:
‘
When
deciding whether or not to impose the penalty of dismissal, the
employer should in addition to the gravity of the misconduct
consider
factors such as the employee’s circumstances (including length
of service, previous disciplinary record and personal
circumstances),
the nature of the job and the circumstances of the infringement
itself.”
[22] Finally, item 3(6)
stipulates that the employer should apply the penalty of dismissal
consistently with the way in which it
has been applied to the same
and other employees in the past, and consistently as between two or
more employees who participate
in the misconduct under consideration.
[23] In
casu
, the
commissioner moved from the correct premise as to what was expected
of him. He was spot on as regards the question to be asked
namely,
whether the dismissal of the employee was fair, taking into
consideration the totality of the circumstances. He concluded
that
despite the employee being guilty of the transgression of which
he was reasonably expected to be aware , having rejected
his new
defence at the arbitration as a fabrication, the sanction of
dismissal was nevertheless substantively unfair and cited
among
others, the following reasons;
a)
the employee had pleaded guilty from the beginning;
b)
he had a clean record of not having transgressed a safety rule;
c)
no evidence of the appellant having suffered actual harm;
d)
no indication that the trust relationship was severed beyond as a
result of this isolated
incident;
e)
no reason why a corrective measure of some sort could not be imposed.
[23] The commissioner was
further alive to the seriousness of the transgression and emphasised
that the rule had to be adhered to
at all times. To punish the
employee for the transgression, the commissioner not only imposed a
final written warning, but also
deprived the employee of back pay he
would ordinarily be entitled to for reinstatement for the period from
29 April to 19 August
2013.
[24] The commissioner has
in my view applied his mind to all relevant factors and to the
determination of an appropriate sanction.
He gave reasons why he
arrived at his conclusion. A decision based on his reasons and the
circumstances of the case cannot be said
to be a decision that a
reasonable decision-maker could not reach. It has been held in
Sidumo
that it needs be recognised that different commissioners may arrive
at different conclusions on the same facts. His decision falls
within
a band of reasonable decisions in the circumstances of the case.
[25] In
Sidumo
where a security guard at a mine was dismissed for failing to apply
search procedures properly on persons leaving the mine premises
and
employed for specifically for that function, the Constitutional Court
reasoned as follows:
‘
[116] In
respect of the absence of dishonesty, the Labour Appeal Court found
the Commissioner’s statement in this regard “baffling”.
In my view, the Commissioner cannot be faulted for considering the
absence of dishonesty a relevant factor in relation to the
misconduct. However, the Commissioner was wrong to conclude that the
relationship of trust may have not been breached. Mr Sidumo
was
employed to protect the Mine’s valuable property which he did
not do. However this is not the end of the inquiry. It
is still
necessary to weigh all the relevant factors together in light of the
seriousness of the breach.
[117] The absence of dishonesty is a
significant factor in favour of the application of progressive
discipline rather than dismissal.
So too, is the fact that no losses
were suffered. That Mr Sidumo did not own up to his misconduct and
his denial that he received
training are factors that count against
him. His years of clean and lengthy service were certainly a
significant factor. There
is no indication that the principle of
progressive discipline will not assist to adjust Mr Sidumo’s
attitude and efficiency.
In my view, the Commissioner carefully and
thoroughly considered the different elements of the Code and properly
applied his mind
to the question of the appropriateness of the
sanction.’
[26] In the result, I
find that whatever errors and or misdirections are to be found in the
judgment of the court
a quo
, same are immaterial as regards
the real question that had to be answered which is whether on the
material that served before the
commissioner, can it be said that the
decision he reached is one that a reasonable decision-maker could not
reach. The answer is
simply ‘NO’.
[27] What remains is the
question of costs. Both counsel submitted that costs should follow
the result. I am satisfied that in the
circumstances of this case it
would be in accordance with the requirements of the law and fairness
that costs should follow the
result.
[28] In the result, I
make the following order:
The
appeal is dismissed with costs.
_______________
Tlaletsi DJP
C J Musi
et
Sutherland JJA concur in the judgment of Tlaletsi DJP.
APPEARNCES:
FOR THE APPELLANT:
Mr. R
Itzikin
Instructed by Mervyn
Taback Incorporated.
FOR THE
RESPONDENT:
Mr J G Van der Riet SC
Instructed by Cheadle
Thompson & Haysom Inc.
[1]
[2015] 1
BLLR 50
(LAC).
[2]
[2007] 12
BLLR 1097 (CC).
[3]
Sidumo
supra at para 79.
[4]
At para 78.