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[2013] ZALCJHB 44
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Resins v National Bargaining Council for Chemical Industry and Others (JR2322/10) [2013] ZALCJHB 44 (12 March 2013)
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO: JR2322/10
In the
matter between
ROLFES
RESINS
........................................................................................................
Applicant
And
NATIONAL BARGAINING COUNCIL FOR
CHEMICAL INDUSTRY
..................................................................................
First
Respondent
FAIZEL
MOOI
NO
......................................................................................
Second
Respondent
SACAWU
obo BETHUEL MBELE
...............................................................
Third
Respondent
Date heard: 7 December 2012
Date of ex tempore judgment: 7 December 2012
Date edited: 12 March 2013
_____________________________________________________________
EX-TEMPORE J U D G M E N T
_____________________________________________________________
VAN
NIEKERK J
[1] This is matter number JR2322/10, it is an opposed review argued
yesterday. The application is brought to review and set aside
an
arbitration award made by the second respondent, to whom I shall
refer as the Commissioner, on 30 August 2010.
[2] The factual circumstances are recorded in the arbitration award
and do not warrant repetition save to note that the employee,
on
whose behalf the third respondent acts in this matter, was dismissed
on a charge of misconduct. The employee originally faced
three
charges of misconduct. He was given final written warnings on two of
those charges, and dismissed ultimately for refusal
to obey an
instruction.
[3] The Commissioner found that the employee had been given an
instruction which he refused, and came to the conclusion that for
a
number of reasons the instruction was reasonable and that the
employee had committed an act of misconduct.
[4] The Commissioner then turned to the question of sanction, and
that is really the issue on which this case turns. In paragraph
19 of
the award the Commissioner says the following:
Firstly the preamble to the section states:
"Should you commit any of
the following offences and the severity of the breach warrants
dismissal, you will be dismissed."
From the part that I have highlighted it is clear that while the
offence attracts a sanction of dismissal, the sanction is only
warranted if the offence is severe enough.
[5] The Commissioner then records the view that the offence concerned
was not severe enough to attract the sanction of dismissal.
He
provides two grounds for this conclusion. The first is that while the
applicant had a severe hand injury in the past, this did
not justify
his failure to carry out the instruction. It was relevant however in
relation to sanction on the basis that the employee
had what the
arbitrator called a ‘subjective fear’ about his ability
to carry out the instruction.
[6] On that basis the Commissioner held that the refusal did not
amount to gross insubordination and should have attracted a lesser
sanction such as a final written warning as suggested by the portion
of the disciplinary code to which he referred.
[7] Secondly, the Commissioner found that there was a degree of
inconsistency in relation to sanction in that on the two charges
for
which the applicant received a final written warning, the one being
insubordination, and that there was an insufficient distinction
between insubordination on the one hand and the refusal to comply
with an instruction on the other in these circumstances.
[8] On that basis the Commissioner found that if the applicant in
these proceedings was of the view that one charge of insubordination
or refusal to follow an instruction was not so severe as to warrant
dismissal then clearly the other similar charge where the applicant
had a subjective medical concern, was also deserving of a final
written warning.
[9] Further the Commissioner noted that the employee had eight years'
service with the company, which he considered to be a strong
mitigating factor. For those reasons, the Commissioner came to the
conclusion that dismissal was too harsh a sanction for the proven
misconduct and he ordered that the employee be reinstated, not from
the date of dismissal but from the date of the arbitration
award,
namely 16 August 2010.
[10] Given that the employee was dismissed on 19 April 2010, this is
not an insignificant period during which the applicant was
effectively suspended without pay.
[11] The legal principle to be applied is well-established. The
Constitutional Court in
Sidumo and Another v Rustenburg Platinum
Mines and Others
[2007] 12 BLLR 1097
(CC) fixed the threshold as
one of reasonableness. This Court is entitled to intervene and set
aside a Commissioner's award if,
and only if the award represents a
decision to which no reasonable decision-maker could come on the
available evidence.
[12]
Sidumo
, that case too concerns the appropriateness of
sanction and the Court was careful to point out that Commissioners
should not defer
to employers in regard to the question of sanction.
It is for the Commissioner applying the test of fairness that is
established
by the Labour Relations Act, to determine whether, having
regard to the facts of each case, it can be said that dismissal is an
appropriate sanction.
[13] It is evident from the test or the threshold applied by the
Constitutional Court that Commissioners have significant leeway
in
determining the fairness of sanction, and that this Court's powers
are limited in relation to interference with the exercise
of the
discretion afforded Commissioners. As I have indicated, provided the
Commissioner's decision falls within a band of reasonableness,
it is
not for this Court to interfere even if it would have come to a
different conclusion in relation to sanction on the same
facts.
[14] Insofar as the applicant has contended that the factors to which
the Commissioner had regard are irrelevant, I cannot agree
with that
submission. First, as I have indicated the Constitutional Court
required Commissioners to have regard to all of the relevant
factors.
In my view that is what the Commissioner did in the present instance.
There is no inherent contradiction in a finding
that while a past
medical incapacity was no reason to refuse to do an instruction it
was not relevant in relation to the question
of sanction,
particularly when viewed subjectively from the position of the
employee.
[15] Further in my view there is no inherent illogicality in relation
to the Commissioner's view on the issue of consistency, nor
was it
unreasonable for the Commissioner to assume that the employer was
prepared to tolerate an instance of what it labelled as
insubordination, but that it considered in the same circumstances,
the refusal to obey an instruction which is after all a form
of
insubordination as warranting dismissal.
[16] In particular the Commissioner had regard, as he was obliged to
do, to the employee's length of service, which was not insignificant,
some eight years.
[17] In these circumstances I am not satisfied that the applicant has
established a basis on which this court is entitled to interfere
with
the Commissioner's award either in relation to the reasonableness of
outcome or in relation to the conduct or process related
conduct by
the Commissioner in coming to the decision he did.
[18] In relation to costs there is no reason why costs should not
follow the result.
For those
reasons I make the following order:
1. The
application is dismissed with costs.
André
van Niekerk
Judge of the Labour Court