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[2009] ZALCD 10
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National Union of Metal Workers of South Africa and Another v Toyota SA (Pty) Ltd and Others (D163/08) [2009] ZALCD 10 (9 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO: D 163/08
NOT
REPORTABLE
In
the matter between:
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA
FIRST APPLICANT
POOBALAN
DANNY CHETTY
SECOND
APPLICANT
And
TOYOTA
SA (PTY)
LTD
FIRST
RESPONDENT
NHLANHLA
MATHE N.O.
SECOND
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
THIRD
RESPONDENT
JUDGMENT
Conradie AJ
1. In
this matter the Applicant seeks to review and set aside the award of
the Second Respondent under case number
KNDB 7686 – 07 in terms
of which the second Respondent upheld the dismissal of the Applicant.
2. The
Applicant seeks to review the award on numerous grounds as set out in
paragraphs 33 -35 of his founding
affidavit as follows:
“
33. For reasons
stated herein below, the Second Respondent-
(i)
Committed misconduct in relation to the duties of the Second
Respondent as an arbitrator;
(ii)
Committed a gross irregularity in the conduct of the
arbitration proceedings; and or
(iii)
Exceeded the Second Respondent’s powers.
34. I submit that the
second Respondent, when deciding my matter, failed to apply his mind
to the issues before him. The basis for
this submission is that:
35.1. There is no
indication from the award that the conclusion of the Second
Respondent is logically connected with overall assessment
and impact
of evidence. A copy of the award is attached hereto marked “
PDC
4”.
35.2. The Second
Respondent took into account irrelevant considerations and/or ignored
relevant ones.
35.3. That there was
no evidence led to indicate that the work relationship between me and
the First Respondent has irretrievably
broken down to warrant the
failure to reinstate me.
35.4. The Second
Respondent unreasonably and inequitably curtailed the First Applicant
to cross question the First Respondent.
35.5. The Second
Respondent was very biased and harsh to the First Applicant.
35.6. That the Second
Respondent was very lenient and accommodative to the First
Respondent; the number of postponements at the
instance of the First
respondent clearly indicates that.
35.7. The Second
Respondent erred in deciding that the Second Applicant blatantly
refused an instruction was not disproved. The
Second Applicant
indicated that he did not refuse to execute the instructions of the
First respondent. The Second Applicant also
indicated that he was
completing his medical paperwork, and that the Second Applicant would
off load the truck after tea time as
it was almost tea time.
35.8 The supervisor of
the Second Applicant knows that the Second Applicant uses tea time to
take medication for high blood pressure.
35.9 The Second
Respondent failed to take into cognizance the fact that it was common
cause between the parties that the Second
Applicant had a medical
problem, high blood pressure, and that the Second Applicant was
attending treatment. The completion of
the paper work concerned the
treatment thereof.
35.10 The Second
Respondent erred in deciding that the Second Applicant indicated that
he (Second Applicant) can not off load a
truck as it is not part of
his job description. The Second Applicant off loaded trucks in the
past without any complaints, and
it is therefore highly improbable
that the Second Applicant can state that off loading trucks is not
part of his job description.
35.11 The Second
Respondent failed to address the question of selective justice as by
the admission of the First Respondent’s
witnesses, the first
company witness, Ishmael Nhlengethwa was always undermined by the
First Respondent’s employees. There
was no disciplinary action
lodged against the said employees by the First Respondent. This is a
complete distate to the parity
rule.
35.12 The Second
Respondent failed to take into cognizance the fact that the testimony
of the first company witness is not corroborated
by the second and
third company witnesses. The second and third company witnesses
stated that they did not witness the incident.
35.13 The Second
Respondent failed to apply the cautionary rule to the testimony of
the First Respondent in light of the fact that
the First Respondent’s
testimony can not be corroborated.
35.14 The testimony of
the Second Applicant was corroborated by two witnesses, Bruce Dimba
and Keith Govender, and the Second Respondent
failed to take that
into cognizance.
35.15 The Second
Respondent also failed to take into cognizance the clean disciplinary
record of the Second Applicant.
35.16 The Second
Respondent also failed to take into cognizance the length of service
of the Second Applicant.” (sic)
3.
Notwithstanding these grounds, which are largely repeated in the
Applicant’s heads of argument, the Applicant’s
representative
has been unable to show me where and how these alleged
irregularities came about.
4.
The focus of the Applicant’s argument appears to be that the
Second Respondent’s true mistake was in not appreciating
or
considering the evidence before him. In particular that the
Applicant’s evidence was that he refused to off-load
the truck
due to his medical condition and that this was explained to the First
Respondent’s witnesses who were involved
in the matter.
5.
Miss Naidoo for the First Respondent countered this by referring to
the agreed record which clearly shows that the “medical
condition” issue was not part of the Applicant's case before
the Second Respondent nor at the disciplinary hearing.
Rather,
the response appeared to be a mix of a refusal to off load the van
because it was not part of his job to do so and/or he
would do so
once he was done with his paperwork. The latter reference is
probably on the basis that as it was not his job
he would be doing
the First Respondent a favour by assisting and as such the Third
Respondent could wait until the Applicant was
ready to assist.
6.
In my view the Second Respondent correctly concludes that Applicant
refused to comply with the reasonable instruction in circumstances
where he had no reason to do so. I am further of the view that
the Second Respondent came to the correct conclusion insofar
as
dismissal being the appropriate sanction is concerned. It is
clear that the misconduct in this case was blatant and without
justification. The Applicant had sufficient opportunity to
consider his refusal but failed to do so and rather persisted
with
his intransigent stance. Given the Applicant’s approach
to this matter that he did not refuse to offload the truck
but simply
wanted to first take his medicine, which evidence I have rejected, he
denied himself the opportunity to deal constructively
with the
appropriate sanction and in fact did not offer the Second Respondent
any reason why dismissal was inappropriate.
7.
In light of the above I am of the view that the review must fail.
In the circumstances I
order as follows
1. The application for
the review and setting aside of the Second Respondent’s award
under case number KNDB 7686 – 07
is dismissed.
2. No order as to costs.
__________
Conradie
AJ
Date:
9 December 2009
Appearances:
For
the Applicant:
Eugene Muteleni - NUMSA
For
the Respondent: M Maeso –
Shepstone and Wylie