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[2006] ZALCJHB 31
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Matjiu v National Bargaining Council for Chemical Industries and Others (JR134/04) [2006] ZALCJHB 31 (2 June 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NUMBER: JR134/04
IN
THE MATTER BETWEEN:
EDDIE
MATJIU
APPLICANT
AND
NATIONAL
BARGAINING COUNCIL
FOR
CHEMICAL INDUSTRIES
FIRST
RESPONDENT
E.
A POTGITER N.O
SECOND
RESPONDENT
AFRICAN
EXPLOSIVE LIMITED
THIRD
RESPONDENT
JUDGMENT
CELE
AJ
INTRODUCTION
[1]
This is an application in terms of section 145 of the Labour
Relations Act 66 of 1995 (“The Act”) to review and
set
aside an arbitration award dated 5 December 2003 issued by the second
respondent while acting under the auspices of the first
respondent.
The third respondent in whose favour the award was issued opposed the
application.
BACKGROUND
FACTS
[2]
The applicant commenced employment with the third respondent on 18
January 1995 as an operator. He received training at number
9
Pressure Oxidation Plant (POP), qualified and then passed out as a
Process Controller in 1995. He was then moved to number 11
POP where
he received further training, qualified and similarly passed out. He
then continued to work as a Process Controller and
was based at
number 11 POP.
[3]
The work of an operator, as well as that of a Process Controller
included the monitoring of the nitric acid plant. Such monitoring
was
done through a computer system which itself monitored certain
parameters on the plant. The operators were able to see on the
computer system as to what would be going on in the plant. There is a
drawing of the plant on the computer screen with indicators
for
pressure, temperature, flow rates, etc. The system also has built in
components used to operate things such as level control.
The system
also has trouble shooting and textual type functions or interlocker,
the interlocking system counteracts a wrong command
and up to a
point, is able to assist the controller. That system could be used to
shut the plant down when there appears to be
an operational problem.
The system would be referred to as DCS.
[4]
In April 2003 one Mr Carel Oosthuizen was an operator trainee in
plant number 9. The production manager issued a directive that
Mr
Oosthuizen was to work under the supervision of Mr Kelvin Pillay’s
shift for one shift circle. After that he would be
assessed and if
found qualified would pass out. Mr Pillay was the supervisor of the
applicant. The applicant heard about the directive
and requested to
be supplied with a copy thereof. It was furnished to him through an
E-mail letter dated 8 April 2003. The directive
effectively placed Mr
Oosthuizen under the supervision of the most senior personnel in Mr
Pillay’s shift section.
[5]
On 12 May 2003 the applicant reported for duty at plant number 11
while Mr Oosthuizen was on duty at plant number 9. The applicant
was
the most senior personnel in his section. Plant number 9 experienced
an operational problem and consequently tripped. The plant
was then
put on a blow out, with the apparent aim of establishing the cause of
the trip on the compressor vibrator system, but
tripped on surge. The
applicant attended to the problem. It was later established that
water was coming out of the drain system,
when under normal
circumstances, it would not.
[6]
On 17 June 2003 Mr Oosthuizen was issued with a notice to attend an
internal disciplinary hearing for gross negligence which
resulted in
plant number 9 being damaged on 12 May 2003. He was found guilty but
was suspended for three days without pay and received
a final written
warning.
[7]
On 1 August 2003 the applicant was similarly served with a notice to
attend a disciplinary enquiry to face a charge described
as:
“
alleged
gross negligence in that on the 12
th
May 2003 after the No 9 nitric acid plant had tripped, that he did
not exercise due care in advising C Oosthuizen on what to do
and that
resulted in the plant being put on blow out when the conditions were
unsuitable for doing so”
[8]
The internal disciplinary hearing was held on 5 August 2003. He was
found to have committed the act of misconduct with which
he had been
charged and was dismissed on 8 August 2003. His attempt at appealing
against his dismissal was in vain. On 15 August
2003 he referred a
dispute about an unfair dismissal to the first respondent for
conciliation. A con/arb hearing was set down for
30 September 2003
but failed to resolve the dispute which the applicant thereafter
referred to arbitration. The second respondent
was the arbitrator and
he found that the dismissal of the applicant was fair. It is that
finding which the applicant now seeks
to have reviewed and set aside.
THE
ARBITRATION PROCEEDINGS
[9]
The applicant challenged only the substantive fairness of his
dismissal. This dismissal was not placed in dispute by the third
respondent. Three witnesses were called at the instance of the third
respondent whereas two were called by the applicant.
[10]
The evidence of Mr Greger, the Production Manager, was mainly around
the
modus operandum
of the computer system of the plant.
According to him, a computer screen was equipped with alarm signs
which could very easily
be seen in the control room on the display.
He said that the advice given to Mr Oosthuizen by the applicant, as
reported to him,
was not, in the circumstances suitable as it was bad
advice.
[11]
In his evidence Mr Fourie said that he was tasked with the
investigations of the incident of 12 May 2003. He conceded that
the
problem with plant number 9 had started with the previous shift and
damage was caused to the plant. He testified that according
to his
investigations, had the applicant and Mr Oosthuizen reacted to the
warning sings on the computer screen and had they followed
the
operating instructions, damage to the plant would be minimal.
[12]
Mr Oosthuizen testified and said that he was supposed to work under
supervision of plant 11 controller, on the day in question.
According
to him one working with the plant could either be in or out of the
control room. He said that, at the crucial time to
the incident, he
was outside of the control room while the applicant was inside. He
testified that he had discussed the operational
problem with the
applicant and the applicant said that the plant was to be put on a
blow out, to solve the tripping. He said that
the applicant did not
inform him that the computer screen in the control room showed high
levels. He testified that while he was
still outside, the applicant
said that the plant was to be put on a blow out again. He said he had
not had such experience before
and accepted advice given by the
applicant.
[13]
Mr Pillay testified for the applicant. He testified that there was an
arrangement made between him and Mr Greger to place Mr
Oosthuizen
under supervision of his (Mr Pillay’s) team but that the
details of it were not traversed. He said that he informed
the
applicant of the arrangement and that he was then to assist Mr
Oosthuizen if there were any problems. He testified that the
number 9
and number 11 plants were not problematic as they were low risk
plants with their own control systems that could monitor
temperature,
pressure, etc.
[14]
The applicant testified that he was aware of a company rule that, for
the operation of the machinery which ran for 24 Hours,
a person with
a pass out in a shift, supervised the one who had not passed out. He
said that on 12 May 2003, he came to relieve
the operator for plant
11. By then the operator for plant 9 was not present. He said that he
saw Mr Oosthuizen in the DCS and asked,
what he was doing there, Mr
Oosthuizen told him that he had been called out for a plant which had
tripped. He said that Mr Oosthuizen
told him that it was his first
time to find the plant in a tripped state and did not know if he had
to leave it as it is or to
do something. He said that he asked Mr
Oosthuizen questions and they deliberated on the issue, finally
agreeing that they had to
put a plant on a blow out so as to find out
if the vibrations were the cause of the tripping. As they did so, he
had not himself
gone to the plant and could not tell whether there
was already water in the compressor parts. He said that according to
the DCS
there was something wrong with the HP system.
[15]
The applicant testified that the only time he went out to the plant
was when he had to re-set what he referred to as the EAE
system. He
said that it was then that he realised that the plant had not re-set.
According to him in addition to the EAE system
there was the UIC
system and that the plant ran with both systems and that when
re-setting, one had to consider both systems. He
said that he was
with Mr Oosthuizen when resetting the plant because he had to show
him how to re-set the EAE system and the UIC
system. From there, they
proceeded to the drains only to realise then that there was steam and
water coming out of the drains.
He said that he did not make the
plant safe since he did not know its condition as he had not been
running the plant during the
previous shift. He said that when
resetting the plant he did so upon the request by Mr Oosthuizen who
was in the plant and should
have been able to see its condition as he
himself was in the control room. They used a radio to communicate.
[16]
According to the applicant, he was not in charge of Mr Oosthuizen, as
his supervisor. He appeared not to accept that Mr Oosthuizen
was on
training and suggested that Mr Oosthuizen had taken over the shift
from the previous team of one Mr Skillano, which worked
at plant 9.
[17]
That in brief is the evidence relevant to the application which the
parties led.
THE
ARBITRATION AWARD
[18]
The second respondent found it unnecessary to decide whether the
applicant was the supervisor of Mr Oosthuizen on 12 May 2003.
He
noted that the applicant had admitted that he and Mr Oosthuizen both
decided to put the plant number 9 on blow out. He found
that the
applicant had not, by his own admission, considered the clear warning
sings on a computer screen, in the circumstances
when it was expected
of him to exercise more care. He considered the sanction imposed and
found that it was appropriate in the
circumstances. He considered the
question of the alleged inconsistent application of the sanction and
found that there was no evidence
to support the claim. He
consequently found the dismissal of the applicant to have been fair.
GROUNDS
FOR REVIEW
[19]
The submission by the applicant is that the second respondent:
1.
committed a gross irregularity in the conduct of the proceedings;
2.
reached a decision which was unjustifiable and
3.
failed to apply his mind to the relevant issues.
ANALYSIS
GROSS
IRREGULARITY
[20]
An irregularity will inevitably relate to the procedure adopted in
the course of proceedings either of a tribunal, a court
or in the
arbitration proceedings. It will therefore not mean or relate to an
incorrect judgment. It refers not to the result but
rather to the
method of a trial. The consequence attendant to there being a gross
irregularity is that the aggrieved party will
have been prevented
from having his or her case fully and fairly determined. See
Ellis
v Morgan; Ellis v Desai
1909 TS 576
at 581
and
Goldfields
Investment Ltd and another v City Council of Johannesburg and another
1938 TPD 551
at 560
.
JUSTIFIABILITY
[21]
The test whether an award is justifiable or not, as set out in the
case,
Carephone (Pty) Ltd v Marcus N.O
and others (1998) 19 ILJ 1425 (LAC),
“…
is
there a rational objective basis justifying the connection made by
the administrative decision maker between the material properly
available to him and the conclusion he or she eventually arrived at”
FAILURE
TO APPLY THE MIND
[22]
Where a commissioner has misconceived him or her functions, it can be
said that the unsuccessful party has not been afforded
a hearing and
that therefore a gross irregularity has been committed justifying the
reviewing and setting aside of the Commissioner’s
award –
See the decision in
Toyota South Africa Motors (Pty) Ltd v Radebe
and others
(2000) BLLR 243
(LAC).
[23]
With these considerations in mind, I now turn to the facts and
submissions before me. The applicant submitted that the finding
that
the dismissal was fair, without considering that the applicant was
not Mr Oosthuizen’s supervisor or was never instructed
to
occupy that role, was unjustifiable, amounted to the commission
of a gross irregularity and evidenced a failure of the
commissioner
to apply his mind to the relevant issues. The argument by the
applicant was that, the case of the third respondent
depended on
whether or not the applicant was a supervisor or mentor of Mr
Oosthuizen.
[24]
The third respondent submitted correctly, in my view, that the
applicant confirmed in his own evidence that, not only was he
a more
senior employee than Mr Oosthuizen, but that by virtue of his
position, he was supposed to supervise Mr Oosthuizen during
that
shift. The applicant’s own witness, Mr Pillay, confirmed that
his shift was to supervise Mr Oosthuizen. He further said
that he
discussed the issue with the applicant. It is indeed so, as Mr Pillay
also stated, that the nitty gritty of how that would
be done had not
been dealt with by Mr Pillay and Mr Greger. Even though the second
respondent avoided making a finding, there was
sufficient evidence
for finding that the applicant was, at least, a mentor of Mr
Oosthuizen.
[25]
The charge alleged, among others, that
“…
.
that he did not exercise due care in advising C. Oosthuizen on what
to do…” In his own evidence the applicant testified
that
Mr Oosthuizen told him that he did not know what to do when he was
confronted by a plant that had tripped. In the form of
questions and
answers which they engaged in, the applicant clearly advised Mr
Oosthuizen on what to do. He took an active participation
in blowing
the plant out. When he was crossed examined, he made a number of
attempts to avoid answering the question whether the
computer screen
was not alarming or giving a warning on the state of the plant. His
attempt at hiding behind, just clicking the
computer mouse, to blow
out the plant was very transparent. A reasonable Process Controller,
placed in his shoes would have seen
the computer warnings and would
have followed the prescribed procedure in resolving the operational
challenge confronting him.
On the 12 May 2003, the applicant by his
own conduct and by his verbal expressions to Mr Oosthuizen acted with
negligence in attending
to the tripping plant number 9. In my view,
the second respondent, indeed applied his mind seriously to the
issues at hand and
reasoned his way to the conclusion which I find to
be justifiable – See the decision in
Crown
Chickens Ltd t/a Rocklands Poultry v Kapp & others
(2002) 6 BLLR
493
(LAC) at para 58
. In resolving this
issue, it was accordingly not necessary that a finding be made
whether the applicant was a supervisor of Mr
Oosthuizen.
[26]
The second submission by the applicant was that the second respondent
committed a gross irregularity in relation to the duties
of a
arbitrator or by failing to properly construe and make a proper
analysis of evidence adduced before him. It was submitted
that the
gross negligence of the applicant was based on him and Mr Oosthuizen
having decided to blow out the plant without ensuring
that the level
in the absorption column was at a reasonable level. His defence, it
was submitted, was that he said that he did
not know what to do in
the face of the plant having tripped. He was faced with two options,
namely either to leave the plant as
it was or to do something. My
reading of this part of the record is that he was narrating that
which Mr Oosthuizen had told him
but he put it in the first person.
It must be remembered that, at that stage, he was receiving a report.
He was alive to the fact
that he was based at plant 11 and not number
9. He could not have said that he, himself was faced with the
problem. That is why
his evidence continued in this manner:
“
and
then I asked him a question, what do you think needs to be done, in
correlation to what the instrument guy says. And then we
reached an
agreement that look, because it is a vibration, the only way to find
out if it is a vibration, is to put the plant on
blow out. Okay, and,
yes…”
[27]
The person who did not know what to do therefore would have been Mr
Oosthuizen, who was presenting a problem to the controller.
[28]
In the further submissions, it is said that there were more people
who were negligent in relation to the number 9 plant. I
can only
agree with the negligence of Mr Oosthuizen and then possibly that of
Mr Skillano who worked in the previous shift. The
first tripping took
place during the previous shift. However this does not in any way
exonerate the applicant.
[29]
In my view, the second respondent did consider the version of the
applicant and how it was presented. He continued to look
at the
appropriateness of the measure imposed and the seriousness of the
charge. Indeed as the applicant suggests, the second respondent
did
not go through each and every mitigating and aggravating
circumstance. It is clear in the award that he reflected on these
factors. The third respondent has drawn my attention to the decision
in
Shoprite Checkers (Pty) Ltd v Ramdaw NO and others (2001) 22
ILJ 1603 (LAC)
at paragraph 101 where Zondo JP had this to say:
“
In
my view it is within the contemplation of the dispute-resolution
system prescribed by the Act that there will be arbitration
awards
which are unsatisfactory in many respects but which nevertheless must
be allowed to stand because they are not so unsatisfactory
as to fall
foul of the applicable grounds of review. Without such contemplation,
the Act’s objective of the expeditious resolution
of disputes
would have no hope of being achieved.”
[30]
Evidence which was properly made available to the second respondent
is enough for me to find that the dismissal was an appropriate
sanction. The sanction imposed is not one that is so egregious that
it shocks and alarms this Court, as suggested by the applicant
–
see also the decision in
Toyota
South Africa Motors (Pty) Ltd v Radebe and others (2000) 21 ILJ 340
(LAC) at 355 C-D.
It was in the
applicant’s own evidence that they tried twice to blow out the
plant. In doing so, he had not yet established
the reason why it
tripped, in the first place. It was in his evidence that he took Mr
Oosthuizen outside to the plant to show him
how to re-set the plant.
It was during that occasion that they went to look at the pipes and
only then realised that water was
coming out. By then damage had been
caused. The contradiction on whether or not the plant could be
repaired does not avail the
applicant, who had received proper
training in the plant number 9 and had even passed out.
[31]
A proper conspectus of all the evidence which was properly available
before the second respondent, in my view, points towards
the second
respondent having applied his mind seriously to the issues at hand
and having reasoned his way to the conclusion. I
am however, not of
the view that this is a case where the applicant was vexatious or
frivolous.
[32]
Accordingly the following order will issue:
1.
The application is dismissed.
2.
No costs order is made.
CELE
AJ
__________________
DATE
OF HEARING :
08 MARCH 2006
DATE
OF JUDGMENT :
02
JUNE 2006
APPEARANCES
FOR
THE APPLICANT
:
MS
P NKUTHA (ATTORNEY)
INSTRUCTED
BY
:
LEBEA & ASSOCIATES
FOR
THE RESPONDENT
: MR
X
MOTJOLO (ATTORNEY)
INSTRUCTED
BY :
PERROT VAN NIEKERK & WOODHOUSE INC