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[2010] ZALCJHB 71
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Ampaglas Holdings (Pty) Ltd v Metal And Engineering Industries Bargaining Council and Others (JR150/09) [2010] ZALCJHB 71 (19 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO: JR150/09
In
the matter
between:
AMPAGLAS
HOLDINGS (PTY)
LIMITED
Applicant
and
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
First
Respondent
DG
LEVY
N.O.
Second
Respondent
SOLOMON
DWAYIDWAYI
Third
Respondent
NATIONAL
UNION OF METALWORKERS
OF
SOUTH
AFRICA
Fourth
Respondent
JUDGMENT
TIP AJ:
[1]
The third respondent (“Dwayidwayi”)
was employed in January 2002 by the applicant as a machine
operator.
On 15 February 2008 he was issued with a final
written warning valid for twelve months in respect of the following
transgressions:
“
1.
Failure to report damaged equipment, i.e.
centre roller;
2.
Negligent damage to equipment.”
[2]
On 16 February 2008 Dwayidwayi allegedly
committed essentially the same offence and was charged as follows:
“
1.
Negligent damage to equipment, i.e. scratching
roller right round;
2.
Doing same offence in four days’
time whereby he damaged the
roller and putting on other person.”
[3]
He was found guilty of the latter charge
and dismissed. The damage to the roller amounted to
approximately R44 000.00
and also caused an interruption of
production, with the result that the completion of certain orders
were delayed.
[4]
Dwayidwayi was dissatisfied with his
dismissal and referred a dispute to the first respondent. After
an unsuccessful conciliation,
the matter was set down for arbitration
before the second respondent (“the arbitrator”).
The arbitration hearing
ran over three days on 7 July 2008,
3 November 2008 and 9 December 2008. On the last day, an
inspection
in loco
was held at the applicant’s premises. The award was
delivered on 17 December 2008 and determined that Dwayidwayi had
been
unfairly dismissed. It was ordered that he should be reinstated
and paid the equivalent of eight months’ salary.
[5]
The applicant is in turn dissatisfied with
the conclusion reached by the arbitrator and has accordingly brought
the present review
proceedings. Although there were certain
deficiencies with the record of the arbitration hearing, the decisive
issues in
this matter emerge with sufficient clarity from it and I am
satisfied that I am indeed in a position to make properly informed
findings.
[6]
In his capacity as operator, Dwayidwayi was
in charge of a large machine which heated, compressed and extruded
plastic onto a series
of large rollers which formed the plastic into
continuous sheeting. This sheeting was transported to another
section where,
at the end of the process, it was cut to size.
It is important that the rollers should not be exposed to any damage
because,
if they are, that can result in continuous marking on the
plastic sheeting which results in such sheeting being scrapped and,
consequentially,
a need that the damaged roller should be replaced.
[7]
Precisely that took place on 13 February
2008. That event came before the arbitrator on the basis that,
by agreement, he should
determine it in lieu of an appeal hearing.
Dwayidwayi’s attitude to the damage on that day was that it was
not his
fault. He maintained that the damage had resulted on
the afternoon shift after he had stopped operating the machine.
[8]
The arbitrator did not accept that version
and found on a balance of probabilities that the damage to the roller
on that day had
been caused by Dwayidwayi and that he should have
advised his supervisor accordingly. The final written warning
was therefore
upheld as valid. The arbitrator remarked further
that Dwayidwayi’s credibility had been detrimentally affected
by the
manner in which he had sought to defend himself in relation to
the damage on that day.
[9]
On 16 February 2008 at approximately 12h30
Dwayidwayi called his supervisor and superintendent to look at a
damaged roller on his
machine. It was apparent that this damage
had been caused by the roller stack having moved too close to the
extruder element,
with the result that a part of the extruder die had
scratched the rotating roller. It is the roller which can move
backwards
and forwards, whereas the extruder is stationary. The
movement of the stack of rollers is electrically controlled by the
operator through the means of a switch. Dwayidwayi had been
thoroughly trained in the use of the machine and was fully informed
about the operation of these components.
[10]
The response by Dwayidwayi to this was that
it could not have been he who caused the damage because he had at the
time gone to the
laboratory in order to check the colour. He
also denied that he had moved the rollers towards the die.
[11]
This description of the operation of the
machine and the related events were fully dealt with in the evidence
before the arbitrator.
In particular, evidence was presented on
behalf of the company that the only way in which the roller could
have been damaged was
if the roller stack had been moved closer to
the die. This evidence was not challenged or disputed at the
time that it was
given. What was put on his behalf during the
hearing of this evidence was that Dwayidwayi would testify that what
had happened
was not his fault, but the fault of the machine.
In the course of his evidence, Dwayidwayi came up with the further
explanation
to the effect that there was a defect in the roller,
being that the roller was not straight. There is no evidence to
support
this version and it was not put to the company witnesses.
[12]
The pertinent portions of the award, where
the arbitrator stated the essence of his reasoning, were condensed in
the following passages
in the award:
“
As
regards the damage to the roller on Saturday, 16
th
February
2008, [Dwayidwayi] was not present at the machine when the damage
occurred. The supervisor agreed that the
two of them had been
busy correcting the ‘off-square’ after which the
applicant took the first cut sheet to the Quality
Control Department
for checking. His packer called him to tell him that the
machine was producing lines. It was suggested
by the [company]
that the roller might have been damaged before the ‘off-square’
was made and that, because the process
was slow, it took a long time
for the damaged sheet to reach the end of the line where it was cut
into sections. This suggestion
was not proved however and seems
somewhat improbable. It was also suggested that [Dwayidwayi]
should not have left his machine
unattended but he was not charged
for this and it is apparent that a supervisor was aware of the fact
that he had taken a sheet
to the Quality Control Department and did
not comment on this fact.
“
According
to the notice of the disciplinary enquiry, [Dwayidwayi] was charged
for scratching the roller. It is quite clear
that he could not
have done this as he was not there. I therefore find that he
was not guilty as charged.”
[13]
The arbitrator then went on to conclude as
follows:
“
In
conclusion there is no evidence that [Dwayidwayi] was directly or
indirectly responsible for the damage to the roller as he was
not
present when it was damaged. The [company] has not provided any
firm evidence of any act or omission on the part of [Dwayidwayi]
that
might have indirectly resulted in the damage to the roller. It
is apparent that the damage occurred after the ‘off-square’
adjustment but precisely why the roller assembly moved against the
extruder die is not known. I therefore find that there
were
insufficient grounds to find [Dwayidwayi] guilty as charged and thus
his dismissal was accordingly unfair.”
[14]
Various defects in the award made by the
second respondent have been set out in the review papers. In
the course of the argument
before me Mr Hutchinson, who appeared for
the applicant, relied on three principal irregularities, which I deal
with below:
[14.1]
The first finding that is assailed in this
way is the arbitrator’s conclusion that the damage to the
roller occurred at a
time when Dwayidwayi was not operating the
machine. According to the arbitrator, there was no evidence to
support the applicant’s
contention that the plastic sheeting
took a considerable time to move from the machine which Dwayidwayi
was operating to the packer
where it was cut and further processed.
The arbitrator on this basis held that there was nothing to connect
Dwayidwayi with
the damage.
[14.2]
It is of course so that the issue of damage
to the roller arose after the packer had identified that there were
problems with the
plastic sheeting which was coming through from the
machine in question. It was only at this stage that Dwayidwayi
further
reported that there was a problem to his supervisor, as well
as the superintendent.
[14.3]
At the same time it is clear on the record
that, on his own version, Dwayidwayi had gone to the packer in order
to check the colour
on the sheeting that he was producing.
There is no suggestion in his evidence that this had taken a
significant period of
time. Conversely, there was evidence
before the arbitrator from Mr Burger, who was the company’s
mechanical maintenance
manager, to the effect that the extrusion
process was a slow one and that some products take more than an hour
to move from the
machine to the packer, whilst others take a shorter
time depending on the speed that they are running. Although he
did not
attempt to give an estimate of the time applicable to the
particular process upon which Dwayidwayi was engaged on that day, the
arbitrator should not simply have concluded that the fact that
Dwayidwayi was not at the machine when the report of the fault was
made by the packer meant that he could not have caused the damage.
Moreover, Mr Burger made it clear that the operator is
responsible
for the functioning of the machine.
[14.4]
In his argument on behalf of Dwayidwayi, Mr
Motau contended that there was an additional ground upon which
Dwayidwayi should be
cleared, being that there was no evidence before
the arbitrator as to when the damage had occurred in relation to
shift times.
That submission is not borne out by the evidence.
Mr Qibi gave undisputed evidence that there was a two shift system,
comprising
a day shift and a night shift, with the day shift running
from 06h00 to 18h00. As has already been noted, the incident
took
place at about 12h30, some 6½ hours into Dwayidwayi’s
shift. In my view, the suggestion that this damage could
have
been caused by somebody operating the machine during the night shift
has to be entirely excluded from the reckoning of these
events.
[14.5]
In addition, the arbitrator was obliged to
give proper weight to the evidence concerning how damage of this sort
could have resulted.
As dealt with more fully below, this is to
the effect that it can occur only if the electrical switch is
engaged, which would result
in movement of the roller stack.
That is a function that the operator would control.
[14.6]
Weighing these matters on the
probabilities, I am satisfied that the arbitrator misdirected himself
by holding that, because the
report of a fault had come at a time
when Dwayidwayi was not at his machine, it followed that he could not
have caused the damage.
[14.7]
The second irregularity addressed by Mr
Hutchinson conerns the arbitrator’s finding that the reason why
the roller assembly
had moved against the extruder die was “
not
known”
. That is a most
material finding and it is one which, in my view, runs contrary to
the relevant evidence which had been clearly
placed before the
arbitrator. This evidence was straightforward, namely that the
roller assembly could not move by itself.
[14.8]
Moreover, the damage to the roller had
clearly resulted from the roller being brought into contact with the
extruder die.
That mechanism and the causal connection between
the contact and the damage were testified to in unmistakably clear
terms.
This went coupled with the evidence that the roller
assembly can move only if the electrical switch is engaged. In
the course
of the case for Dwayidwayi suggestions were made that
there were problems with the machine and that it had moved by itself
in the
past. The arbitrator himself noted that these
contentions had not been put to the company witnesses. He
should accordingly
have disregarded them.
[14.9]
A third and related feature of the evidence
and the arbitrator’s reasoning which was highlighted by
Mr Hutchinson related
to the inspection
in
loco
which had been conducted on the
last day of the hearing. The record clearly suggests that this
was motivated by the arbitrator
himself at a stage when evidence was
being presented on behalf of Dwayidwayi concerning the possibility
that the roller stack could
move by itself.
[14.10]
There is no dispute between the parties as
to the result of this inspection, which objectively established that
the roller could
not move by itself. This was reconfirmed,
fairly so, by Mr Motau in his argument before me on behalf of
Dwayidwayi where
he clearly stated that it was not in dispute that
the machine could not move on its own.[
[14.11]
Remarkably, the arbitrator did not place
anything on record in respect of the result of the inspection
in
loco
and he also had no regard at all
to it in his reasoning and the conclusion that he reached that the
case against Dwayidwayi had
not been established. He should
have done the contrary, namely to have full regard to the support
that the inspection
in loco
had given to the evidence for the company and its destructive effect
upon the attempts of the defence’s case to contend that
the
damage to the roller could have taken place because it had gone into
motion by itself, without any intervention on the part
of Dwayidwayi.
[15]
I agree with the submission made by Mr
Hutchinson that these are material irregularities and that they went
to the heart of the
reasoning and conclusion reached by the second
respondent. The review is accordingly found by me to be sound
and the award
must therefore by set aside.
[16]
There is a supplementary consideration,
being that the nature of the defence mounted in respect of the
incident of 16 February 2008
is materially similar to that raised by
Dwayidwayi in respect of the damage caused on 13 February 2008.
As to the earlier
incident, as I have set out above, the arbitrator
had no difficulty in concluding that Dwayidwayi had not put up a
credible version.
That he reached the opposite result in
respect of the damage caused on 16 February 2008 is
surprising, given that there
was clear evidence before him to show
that a similar conclusion should have been reached in respect of the
culpability of Dwayidwayi.
[17]
Given the clear content of the pertinent
evidence, it is my view that this is an appropriate case for me to
exercise my discretion
in favour of substituting my own adjudication
for the determination made by the arbitrator. Mr Hutchinson
submitted that
I should do so and I agree that I should. From
the perspective of justice and fairness, there seems to me to be
little reason
to believe that any advantage should be expected from
this matter being remitted for a fresh hearing, taking into account
the further
delay and costs that this would inevitably entail.
[18]
Accordingly I hold that the award made by
the second respondent should be reviewed and set aside and that I
should substitute a
finding upholding the initial disciplinary
outcome. There is no reason why costs should not follow this
result.
[19]
I accordingly make the following order:
[1] the arbitration award
dated 17 December 2008 under case number MEGA19913 is hereby reviewed
and set aside;
[2] it is declared that
the dismissal of the third respondent by the applicant on 25 February
2008 was fair and it is upheld;
[3]
the third and fourth respondents jointly and severally are ordered to
pay the applicant’s costs in respect of the review
application.
______________________________
KS TIP
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
5 February 2010
DATE
OF JUDGMENT:
19 March 2010
FOR
APPLICANT:
Adv E Hutchinson
instructed
by Kirchmanns Inc
FOR
THIRD AND
FOURTH
RESPONDENTS:
Mr
J Motau
of
NUMSA