About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2017
>>
[2017] ZALAC 22
|

|

Sasol Nitro v National Bargaining Council for the Chemical Industry and Others (DA6/2015) [2017] ZALAC 22; [2017] 9 BLLR 883 (LAC); (2017) 38 ILJ 2322 (LAC) (3 May 2017)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: DA6/2015
In
the Matter between:
SASOL
NITRO

Appellant
and
NATIONAL
BARGAINING COUNCIL
FOR
THE CHEMICAL
INDUSTRY

First Respondent
and
MOKGERE
MASIPA N.O.

Second Respondent
CLEMENT
REDDY

Third Respondent
Heard:
23 February 2016
Delivered:
03 May 2017
Summary:
Review of arbitration award- appropriateness of sanction –
commissioner reinstating employee without back pay –
such
finding consonant with the
Sidumo
test –
Held:
the determination of fairness, including the fairness of a sanction
is
always fact-specific, and because
generalities do not dominate the task at hand, the sanction must be
individualised - commissioner
taking into account the employee’s
seniority and unblemished record in assessing the fairness of the
sanction – no
case advanced why  continued employment
intolerable, reinstatement the primary remedy – Labour Court’s
judgment
upheld and appeal dismissed with costs.
Coram:
Ndlovu, Musi and Sutherland JJJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
The appeal is against
the dismissal of a review of an arbitrator’s award. The
arbitrator found that the decision by applicant
employer (Nitro) to
dismiss its employee, the third respondent (Reddy), was unfair and
that the misconduct of which he was guilty
did not warrant dismissal.
The award reinstated Reddy without back-pay. The effect of that meant
that Reddy was without pay between
the date of his dismissal on 20
December 2010 until the date of his reinstatement on 25 August 2011;
ie. for 10 months, a
de
facto
fine.
[2]
Accordingly, the
critical issue on appeal is whether a reasonable arbitrator could not
have reached such a conclusion. (
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC)).
[3]
An internal Appeal
Tribunal pared down the extent of the misconduct of which Reddy had
been found guilty, and it is the Appeal Tribunal’s
findings
that constitute the employer’s decision to dismiss, rather than
the decision of the chair of the initial disciplinary
enquiry.
[4]
A comment on the
approach to the presentation of Nitro’s case in formulating its
complaints on review and in formulating the
notice of appeal and
heads of argument is warranted. It is unhelpful to attack a decision
by assaulting the reader with a fusillade
consisting of every
nit-picking point that the drafter’s imagination can conjure up
and moreover duplicating the points by
phrasing the same complaint
slightly differently over and over again. A court requires a coherent
focused articulation of the real
issues; ie matters of substance that
can support a plausible argument. Drowning the reader in detail with
a multitude of petty
points, artificially divided up into numerous
separate paragraphs which inevitably overlap achieves two outcomes;
to obfuscate
the true issues and irritate the Court. If such an
approach serves to impress litigants, then litigants must be
disabused by legal
practitioners of their appetite for rambling,
repetitive waffle. The watchwords in formulating all documents to be
presented to
a court ought to be brevity, lucidity and cogency.
The
misconduct of which the appeal tribunal found Reddy guilty
[5]
The charges were
formulated thus:
‘‘
1.
Dishonest Conduct
5(e)
Incorrect application of company assets or property for reasons of
personal gain or any improper purpose, in that you used
the store
room for storing ‘
personal staff
’
viz. shin guards in boxes for sale in the Sasol
premises without authorisation.
You
also acted outside your responsibility, by appointing a temporary
employee (Xavin Dayal) without following an appropriate procedure
and
securing the employee contract [sic] with WLS without the knowledge
of your superiors.
2.
Gross Negligence
You
deliberately disregarded the Procurement Supply Management policy
(PSM), where you procured services and items outside the system.
Allowed
contractors to provide services without purchase orders viz. Ponen
Construction cc, invoice dated 12 October 2010; Q14 WLS-repairs
and
install work done on Ranco etc.
3.
Disorderly conduct
6.5
(c) Improper / disgraceful conduct which are in conflict with the
accepted norms of behaviour
vesting in the Sasol Values, the Sasol
Code of Ethics and the Guidelines to the Code of Ethics, and/or the
commission of criminal
offences, either within or external to the
work situation, which can blemish the company’s image or bring
the Company into
disrepute, where you used the company laptop for
pornographic material.’
[6]
Reddy admitted that he
stored shin guards on company property, that he had secured the
utilisation of a temporary employee, Dayal,
and that he had stored,
on his company computer, pornographic material. These admissions were
offered up by Reddy as pleas of guilty
to the charges. I doubt that
he appreciated the distinction between an admission and a plea of
guilty. What he did not intend to
do is concede more than the facts.
The unstated implications about the nature of the culpability, which
supposedly flowed from
the charges could not have been his intention
to admit. Reliance on the formality of his pleas of guilt would have
been inappropriate.
Thus, proof of all the elements save the facts
admitted, had to be adduced.
[7]
Reddy was convicted of
all three charges by the disciplinary enquiry chair. These findings
went on appeal and were varied.
[8]
The appeal findings
were sloppily formulated. The text of the letter declaring the
outcome does not trouble to set out the charges
and the critical
findings of fact. Instead, it states this:
‘…
.
I have arrived at a decision to uphold the sanction of a dismissal.
Please note that two of the three charges addressed in the
initial
disciplinary hearing were not in dispute at the appeal hearing.
As
far as the third charge is concerned, Mr Reddy was found guilty on
some of the allegations pertaining to the charge but also
cleared on
others.
The
nature of his transgressions, particularly when considered as a
collective, has informed my decision to uphold the sanction
of a
dismissal. This decision was further informed by Mr. Reddy’s
level of responsibility in the organisation when the transgressions

took place.’
[9]
The two charges
supposedly not in dispute were charges 1 and 3 where a plea of guilty
had been tendered, a misconception already
addressed. The “third”
charge is a reference to charge no 2. The phrase taken “as a
collective”; must presumably
be understood to mean “taken
cumulatively” to determine an appropriate sanction. As a result
of the vagueness and ambiguities
in this text, the first exercise is
to unravel what
conduct
(regardless of its
labels) was relied upon to conclude culpability.
[10]
It is convenient to
dispose of charge no 2 first. The review court found that the
unrebutted evidence of Reddy that the appeal chair
had cleared him of
culpability in respect of the Ponen and Ranco affairs eliminated
those issues. That finding is not challenged.
Moreover, the wholly
improper “etc” in the charge had been relied on by Nitro
in the disciplinary proceedings to introduce
evidence of matters not
properly identified in the charges, but the evidence of the
disciplinary enquiry chair in the arbitration
had been that he had
ignored the matters covered by “etc”. Accordingly, the
substance of charge two is stripped out.
The introductory sentence
plainly cannot stand as a self-standing charge. Thus, charge 2 is to
be left out of account in its entirety.
[11]
In respect of Charge no
1 part (i), the review court understood that the gravamen of the
complaint about the unauthorised storage
of shin pads, his personal
property, was regarded by Nitro as an example of dishonesty. An
attempt to establish that Reddy was
offering the shin pads for sale
to co-workers failed. The thrust of the conviction was thus the
storage
per se
and, by implication, the unauthorised use of a company facility. The
question was thus whether this behaviour could, objectively,
amount
to dishonesty or was merely an abuse of a company asset.
[12]
In respect of Charge no
1 part (ii), the charge seems to have four legs.ie, that Reddy
exceeded his authority, that he failed to
use an “appropriate
procedure”, that he acted without senior management being aware
he was so acting, and that the
temporary employment of Dayal was
secured with WLS (a contractor who habitually did business with Nitro
by supplying temporary
staff). Clarity on the true focus of the
complaints revealed that the point to be made was that there was a
standard procedure,
accessible on Nitro’s intranet system,
which Reddy was expected to follow, and he did not do so; wasa common
cause fact.
Reddy’s defence was that he was ignorant of the
procedure, and though conceding it would be accessible on the
intranet, claimed
that there was so much data on the intranet, it was
not easy to find it, and moreover, he was authorised to secure WLS’s
services for which precedent existed in this regard. An important
contextual factor was that there was a desire from senior management

to tighten up on adherence to prescribed procedures shortly prior to
the events giving rise to the disciplining of Reddy; ie a
tightening
up in policy that disturbed hitherto the established relaxed
practices in this regard. The review court understood the
complaint
to be that Reddy’s conduct was somehow dishonest. The question
was thus whether the omission to follow the prescribed
procedure was
an act of dishonesty or merely a failure to comply with the
procedure; ie an example of negligence.
[13]
In respect of charge no
3, the review court described the complaint about the pornography
found stored on the company computer as
"disorderly”
conduct, the omnibus term used in the disciplinary code to cover
several examples of misconduct. The defence
of Reddy was that he
received lewd e-mails and stored them, did not view them during
working hours, and did not forward them to
anyone. That version
remained unrebutted.
[14]
Ultimately, the review
court summed up what Reddy was guilty of at [32] - [33] of the
judgment:
‘…
.there
is no problem with applying the cumulative effect of a number of
disciplinary charges to increase a recommended sanction,
even to the
point of dismissal, but one must of necessity, consider what is being
accumulated.
In
this case, it turns out to have been the unauthorized storage of shin
guards, without evidence that they were being sold on the
employers
property; the possession on his laptop of pornographic  material
of a nature that would attract a serious warning;
and, even if one
allowed the applicant [ie Nitro] the benefit of the doubt in this
regard, the securing of a temporary employment
contract with a
temporary employment service in respect of services that the company
required, for which there was a clear precedent
and which the third
respondent[ie Reddy] believed had been authorized by his seniors,
albeit that all of this happened without
compliance with specific
company procedure.’
[15]
Why is the award not
one to which a reasonable arbitrator could not have come?
[16]
In my view, the
misconduct described is not even remotely such that, in the context
of employment discipline, it can be described
as acts of
“dishonesty”’ and the review court was correct to
find that it did not constitute dishonesty. The
three examples
evidence (1) an abuse of a company storage facility without any costs
implications to Nitro, (2) at best, a failure
to adhere to a
prescribed procedure in obtaining a sub contractor’s services,
and (3) unauthorised use of the company laptop
to store dirty
pictures. As to the last-mentioned, in the absence of dissemination,
no risks to reputation or threat of corporate
embarrassment arose.
[17]
Against that misconduct
it was necessary to weigh 18 years of unblemished service and the
assignment to Reddy of a responsible role
as manager of the plant,
signifying his abilities and service to Nitro. Why would the heavy
financial sanction, imposed by implication,
by the arbitrator, not be
an appropriate sanction? The question is not that an arbitrator
could
have taken a more serious view of the matter but rather, could a
reasonable arbitrator be
incapable
of imposing the
lesser sanction. The Review court upheld the arbitrator. In our view
that was a correct application of the
Sidumo
test.
[18]
The argument of Nitro
seeks to lay emphasis on a number of aspects of the relationship
between Nitro and Reddy. In the main, the
themes are universally
pertinent factors. The flaw in the argument is that the factors
cannot trump the obligation of an arbitrator
to assess in context,
ad
hoc,
the
circumstances of the parties and fit an appropriate sanction
accordingly. What is fair or unfair is always fact-specific, and

generalities do not dominate the task at hand to individualise the
sanction; that is precisely what an “appropriate sanction”

means. I address the main complaints articulated in argument.
[19]
First, the seniority of
Reddy was emphasised in his managerial role, a generically important
factor. It is not correct that this
was not appropriately weighed,
and is, in my view, the critical justification why no back pay was
awarded.
[20]
Second, the question of
the extent to which Reddy was aware of all procedures and practice
and had been trained in them was indeed
relevant. However, his
culpability in this regard was not, in my view, left out of account
in the value judgment made by the arbitrator.
[21]
Third, a not
unimportant factor was that the misconduct of which Reddy was indeed
found guilty did not result in any harm or damage
or loss of any kind
to Nitro. The several acts were all breaches of governance matters,
which are capable of being addressed in
a continued employment
relationship. The gravamen of the misconduct was not of the kind that
makes a resumed relationship intolerable.
[22]
Fourth, the argument
that Reddy pleaded guilty to charges 1 and 3 is an exaggeration bound
to misdirect the assessment of the reach
of his admissions. The
persistence with submissions relying on aspects of charge no 2 was
pointless and inappropriate for the reasons
given above.
The
complaints about the arbitrator’s conduct
[23]
The plethora of
arguments advanced strove to leech a great deal from very little.
Distilled, it seems what is advanced, consists
of the following:
[24]
The seniority issue and
the awareness of the rules have been addressed already. It suffices,
in this context, to observe that these
issues were not ignored by the
arbitrator.
[25]
The “pornography”
count looms large. Yet the charge, which draws on the text of the
disciplinary code paragraph 6.5(c),
in my view, despite the way it
was relied upon in the proceedings, seems not obviously to be an
injunction that covers the keeping
of pornography on the laptop.
Paragraph 6.5 (l) of the code deals with “indecency” and
“accepted community
norms” and might have been a closer
match, but Reddy was not charged with that. Still less was he charged
under paragraph
6.5 (n) of the code, which concerns itself with the
reputation of Nitro being tarnished. Viewing pornography
per
se
is not a
criminal act, unless, of course, it is child pornography, an
accusation not made in this case. deplorable as it may be,
and
moreover, no evidence exists to prove he viewed it instead of doing
his job. What was left of the charge, was in, truth, as
alluded to
above, no more than abusing the laptop for private purposes.
[26]
Some contradictions and
apparent contradictions in the factual findings of the arbitrator are
highlighted. Taking that criticism
as read for present purposes, it
needs to be appreciated that getting the facts wrong is not a
procedural “irregularity”.
It is one of several factors
that justify setting a result aside if, and when, the errors make a
difference. In this case, the
alleged confusions and errors do not
have an effect on the outcome. A similar assessment applies to the
absence of a justification
for the findings a procedural mishap in
the internal enquiry; ie, it does not affect the outcome.
(See:
Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v
CCMA and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at
[15]
).
The
Review Court’s Judgment
[27]
The plethora of
complaints in respect of the review court’s judgment is a
regurgitation of the complaints about the arbitrator’s
decision
and takes the controversy no further.
Conclusions
[28]
The
true heart of the controversy is the dissatisfaction of Nitro that
Reddy should be reinstated. However, that is the primary
remedy.
[1]
No
argument is advanced by Nitro why that would not be feasible.
[2]
Once
the sanction of dismissal was held to be inappropriate, that
consequence had to follow in the absence of a case to show an

intolerability.
[29]
In summary, Reddy, the
plant manager, misbehaved by using a spare storage room to hoard his
own stuff, he neglected to inform himself
of standard procedures
regarding hiring temporary staff, and he kept pornographic material
on the company laptop for his personal
gratification. The arbitrator
thought he had done wrong, but that having regard to his personal
circumstances, of which the most
signal factor was 18 years of
service, held that he should keep his job and be fined 10 months’
pay. It was not a light sanction
and is not unreasonable.
[30]
The appeal should be
dismissed and the orders confirmed.  Back-pay in terms of that
order shall have to be calculated from
25 August 2011, the date fixed
in the award. As no evidence has been adduced about the employment
experience of Reddy over the
past six years, if necessary, a
computation shall have to be made of any earnings from other
employment that may have occurred
be made, to set off such income
from the back pay that has become due and payable.
[31]
The review court
granted costs, and the costs of appeal should also be borne by Nitro,
given that an individual has had to finance
his own litigation.
The
Delay in delivering this judgment
[32]
This case was heard on
23 February 2016 and judgment has been delayed for over a year. This
delay is regretted and has been occasioned
by the ill-health of
Ndlovu JA who regrettably passed away on 18 April 2017.  We
offer our apologies to the litigants for
the delay.
The
Order
(1)
The appeal is dismissed
with costs.
(2)
The order of the Review
Court is confirmed.
(3)
The Third respondent
shall tender his services within thirty days of the date of this
judgment.
___________________
Sutherland
JA
Musi JA
concur in the judgment of Sutherland JA
APPEARANCES:
FOR THE
APPELLANT:

Attorney D O Pretorius of Fluxmans Attorneys.
FOR THE
THIRD RESPONDENT:
Adv D Sridutt,
Instructed by T Giyapersad Inc.
[1]
Section193
(1) and (2) of the
Labour Relations Act 66 of 1995
provides:
Remedies
for unfair dismissal and unfair labour practice
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the arbitrator
may-
(a)
order the employer to reinstate the employee from any date not
earlier than the
date of dismissal;
(b)
order the employer to re-employ the employee, either in the work in
which the employee
was employed before the dismissal or in other
reasonably suitable work on any terms and from any date not earlier
than the date
of dismissal; or
(c)
order the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless-
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a
continued employment
relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the
employee; or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.
[2]
See:
Edcon
Ltd v Pillemer N.O
.
(2009) 30 ILJ 2642 (SCA).