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[2014] ZALCJHB 521
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Pride Milling Company (Pty) Ltd v Kgatla and Others (JR 342/12) [2014] ZALCJHB 521 (17 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN
JOHANNESBURG
JUDGMENT
CASE
NO: JR 342/12
DATE:
17 MARCH 2014
Not
Reportable
In
the matter between:
PRIDE
MILLING COMPANY (PTY)
LTD
..........................................................................
Applicant
And
CAIPHUS
NAKEDI
KGATLA
.................................................................................
First
Respondent
COMMISSIONER
STEPHENS SHEMA MOLAPO (N.O.)
...................................
Second
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION & ARBITRATION
...............
Third
Respondent
Heard:
13 March 2014
Delivered:
17 March 2014
REASONS
FOR JUDGMENT
LAGRANGE,
J
[1]
The application was dismissed with costs.
My brief reasons for the judgment are set out below. The first
respondent had been late
in filing his opposing affidavit and sought
condonation therefor. At the hearing of the matter the applicant did
not pursue its
opposition to granting condonation. Although the
period of delay was significant, it does not appear to have been
owing to the
first respondent’s own dilatoriness. While that
does not mean the delay should be excused, in view of the strength of
the
merits, the late filing of an answering affidavit is condoned.
[2]
The first respondent, Mr C N Kgatla, was
dismissed after pleading guilty to gross negligence and failing to
adhere to safety standards
and procedures. He did not dispute the
charges which arose out of him reversing a vehicle into a customer’s
car. As an alternative
to dismissal, the applicant was willing to
allow him to continue working provided he paid the cost of the lowest
quotation to fix
the customer’s car, which was R 11,400-00.
However, it required the applicant to pay off the amount by accepting
a deduction
of R 950-00 per month from his salary, which was R
3,300-00 per month. Kgatla was willing to pay for the damage but
could not agree
to this arrangement. Accordingly, having not accepted
the alternative offered by the employer he was dismissed.
[3]
The arbitrator found that the deduction was
too high relative to Kgatla’s salary and was of the view that
the applicant should
have negotiated with him to arrive at a more
reasonable deduction. He found the decision to dismiss Kgatla was
unreasonable in
the circumstances. Moreover, he found that dismissal
was not an appropriate sanction because Kgatla had acknowledged
responsibility
for the damage and was willing to pay for it showing
that he was remorseful. In his view, a progressive disciplinary
approach
would have been more appropriate and the employment
relationship was still possible.
[4]
The
applicant sought to set aside the award on review. The central theme
of the grounds of review was that the arbitrator’s
decision was
unreasonable for failing to take account of various material
evidence. The test for review on grounds of the reasonableness
of an
arbitrator’s evaluation of the evidence was formulated in the
following way in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[1]
characterised the central question in the following way:
“…
the
award was one that a reasonable decision maker could not reach.
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be
reached on the
evidence and other material properly before the arbitrator. On this
approach the reasoning of the arbitrator assumes
less importance than
it does on the SCA test, where a flaw in the reasons results in the
award being set aside
.
The reasons are still considered in order to see how the arbitrator
reached the result.
That
assists the court to determine whether that result can reasonably be
reached by that route. If not, however, the court must
still consider
whether, apart from those reasons, the result is one a reasonable
decision maker could reach in the light of the
issues and the
evidence
.”
[2]
[5]
In evaluating the review application
therefore, the issue is not whether or not the arbitrator did not
mention or appear to consider
certain evidence, but whether his
findings were nonetheless competent in the sense that a reasonable
arbitrator could have arrived
at the same findings on the available
evidence, even if other reasonable arbitrators might have concluded
otherwise on the same
evidence.
[6]
It was common cause that at the
disciplinary enquiry, Kgatla admitted his misconduct and said he was
‘not refusing to pay
but the quotation was too high’.
Initially he had offered to fix the vehicle himself because he could
not afford it as he
was no longer earning overtime on long distance
trips. At the end of the disciplinary enquiry Kgatla was given the
option of paying
R 950, 00 per month to pay for the repairs over 12
months, as an alternative to dismissal. He said he would take the
dismissal.
[7]
Seven days after his dismissal in the form
of an appeal against the decision Kgatla offered to pay an amount of
R 250,00 per month
to pay for the lowest quoted price of a
professional panel beater. The appeal was a few days late in terms of
the procedure Although
Kgatla was dismissed for his negligence and
failing to follow company procedures, it is clear that if he had
agreed to the level
of deduction stipulated by the applicant he would
have been retained. He acknowledged liability and was willing to fix
the damage,
but his failure to agree to the payment schedule
determined by the employer that decided his fate.
[8]
What the arbitrator was faced with was an
employer that was willing to retain an employee if he agreed to repay
a debt caused by
his negligence but only if he agreed to specific
terms of payment. Although Kgatla initially tried to argue that he
could fix the
vehicle and that the lowest quote of R11,400 was too
high, his closing submissions in mitigation was that he agreed he was
wrong
and was ‘not refusing to pay’ but the quotation was
too high and his salary had dropped. He was asking for the company
to
give him a chance. Although there was a suggestion that Kgatla could
have earned incentives, his evidence that his salary had
dropped to R
3,050 was not challenged in cross-examination.
[9]
What the arbitrator had to assess was
whether dismissal was an appropriate sanction in those circumstances
or whether progressive
discipline would have been more appropriate.
In relation to the level of deductions the applicant wished to
impose, the arbitrator
found the employer should have negotiated
further with Kgatla on this because the amount was high relative to
his earnings. The
only evidence advanced at the arbitration hearing
for the irreparable state of the employment relationship between
Kgatla and the
applicant was that Mr Van der Merwe said Kgatla’s
failure to take responsibility for his action to repay the money made
matters
difficult between the customer and the applicant.
[10]
It
may be that the applicant was having difficulty getting Kgatla to
agree to a specific rate of deduction but it was not unreasonable
of
the arbitrator to find that it was unduly onerous and Kgatla’s
unwillingness to accept that rate was not a justification
for
dismissal in circumstances where he admitted his wrong and was
willing to pay for it. In any event, the rate the employer sought
to
impose appears to have exceeded what is a permissible rate of
deduction even if the rate is agreed to.
[3]
[11]
In the circumstances, I do not think the
arbitrator’s findings were unreasonable in the circumstances.
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the applicant: L Pillay instructed by Yusuf Nagdee Attorneys
For
the First Respondent: A Goldberg of Goldberg Attorneys
[1]
(2013) 34
ILJ
2795
(SCA) at 2801, para [11]
[2]
At 2802, para [12].(emphasis added)
[3]
S 34(1) of the Basic Conditions of Employment Act, 75 of 1997 (‘the
BCEA’) prohibits an agreement to deduct more
than one quarter
of an employee’s wage for a debt.