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[2010] ZALCJHB 63
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PPC Jupiter (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR169/08) [2010] ZALCJHB 63 (11 May 2010)
CASE
NO JR169/08
In
the matter between:
DATE
HEARD AND
DELIVERED 11
MAY 2010
EDITED 10
JUNE 2010
NOT
REPORTABLE
PPC
JUPITER (PTY)
LTD APPLICANT
And
THE
COMMISSIONER FOR CONCILIATION
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
COMMISSIONER
BUTI ZWANE N.O SECOND
RESPONDENT
NUMSA
obo LESIBA
LAMOLA THIRD
RESPONDENT
JUDGMENT
PILLAY
D J
In
this review the applicant was charged for misconduct as follows:
“
Refusal
to carry out a reasonable instruction, in that you left your area of
work without permission on 9 February 2007 and that
you walked out
during a meeting on 9 February 2007 after being instructed to return
to the meeting;
Gross
negligence, in that you failed to do your hourly sample (9h00 sample)
on 9 February 2007.”
The
material evidence was that the employee had raised a grievance about
Mr Herman Vermeulen, the head of the department, with his
immediate
supervisor, Mr Hlongwane. Mr Hlongwane tried to persuade the
employee to be tolerant of Mr Vermeulen’s aggressive
style; he
also referred the employee to Mr Vermeulen to discuss his problem.
On
8 February 2007 the employee completed a grievance form against Mr
Vermeulen. On 9 February 2007 Mr Vermeulen saw the employee
with a
colleague, who was on the telephone. He summoned the employee
to his office to reprimand him for not working.
The employee
attended the meeting and handed Mr Vermeulen his grievance. Mr
Vermeulen read out the grievance, mimicking the
employee as he did
so. A shop steward entered the office. Mr Vermeulen did not
know that he was a shop steward. A commotion
ensued. Mr
Vermeulen told the shop steward to leave the room. The shop steward
left the room. The employee followed. Mr Vermeulen
instructed
the employee to return to the meeting. The employee ignored the
instruction.
The
employee prepared a letter requesting permission to be relieved of
his duties pending finalisation of his grievance. He
took his
letter to the Human Resources Department. He was therefore not at his
work station at 9:00 a.m. when he had to test samples.
He did
not know who did his job in his absence. However, his evidence that
he had asked his colleague, Tsietse, to cover for him
was not
challenged under cross-examination at the arbitration.
There,
the employee explained that he was too upset to work after the
meeting with Mr Vermeulen. Mr Vermeulen had accused
him of
incompetence and had said that he did not want to work with the
employee. Hence, the employee decided to lodge his grievance,
soon
after the altercation with Mr Vermeulen. As a result he was not at
his workplace to test the samples. These facts gave
rise to the
charges.
The
arbitrator found as follows:
“
5.1)
It is evident from the entire evidence and submissions that on the
9
th
at
around 08h00 the applicant was called to the meeting by Mr Herman.
It is further evident that the issue discussed
at the meeting was
triggered by Mr Herman’s aggressive, negative attitude
that even Mr Hlongwane conceded was unacceptable,
but had to adapt
with it. The walking out of the applicant taken into context
within the deep-rooted conflict of unresolved
issues between the
applicant and Mr Herman, in my view, could not be construed as
insubordination.” (Sic)
The
arbitrator accepted the employee’s explanation for being away
from his workstation in order to meet Mr Vermeulen and proceed
thereafter to the Human Resources Department because Mr Vermeulen had
upset him.
The
arbitrator found as follows on the charge of being absent from his
workplace and not testing the samples:
“
5.5)
It would appear from the charge that the applicant was found guilty
of leaving his area of work without permission as could
be gleaned
from the notice of disciplinary hearing on page 47 of Bundle “A”.
However it is common cause
that the reason for the applicant to leave
his area of work was that he was called to attend a meeting, thus he
had permission
to leave the work area. When he left the Human
Resource Department he was from the office not the area of work,
therefore
there is no rationale to find the applicant guilty of the
charge as set out on page 47;
5.6)
In the circumstances, it is my view that the respondent has failed to
discharge the onus proving that the final written warning
against the
applicant is fair. The applicant is therefore entitled to the
relief sought.”
By
preferring the employee’s version in these circumstances does
not mean that the arbitrator did not apply his mind to the
facts
supporting the employer’s case. The facts that he found
favouring the employee were, in his opinion, decisive,
as they might
well be, having regard to Mr Vermeulen’s conduct. In
preferring the employee’s version, the arbitrator
placed no
greater onus on the employer, notwithstanding his comment that the
employer bore the onus of proving the fairness of
the disciplinary
action.
In
the circumstances, the application for review must fail.
Furthermore, in the light of the judgment in
Sidumo
v Rustenburg Platinum Mines Ltd & Others
[1]
and
decisions of the Labour Appeal Court, the arbitrator’s decision
in this case falls within the range of reasonable responses
on the
facts before him.
From
the perspective of appropriate dispute resolution, disciplining the
employee in those circumstances served no better purpose
than to
aggravate the conflict. The more effective course of action
would have been to redress the tensions between Mr Vermeulen
and the
employee and to take steps to correct both parties’ conduct,
not only the employee’s.
In
the circumstances, the application for review is dismissed with
costs.
_______________
Pillay
D, J
Appearances
For
the Applicant: W Hitchinson
Instructed
by: Fluxmans
Inc
For
the Respondent: G.I Hulley
Instructed
by
: K D Maimane Inc
[1]
Sidumo
& Another v Rustenburg Platinum Mines LTD & Others
[2007] 12
BLLR 1097
(CC)