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[2014] ZALCJHB 193
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Cinqplast Plastop, a member of Astrapak Group v Commission for Conciliation, Mediation and Arbitration and Others (JR1603/2012) [2014] ZALCJHB 193 (29 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR 1603/2012
In
the matter between:
CINQPLAST
PLASTOP A MEMBER OF
THE
ASTRAPAK
GROUP
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
FAIZEL MOOI
Second
Respondent
ICAWU
obo MAGAU
Third
Respondent
Heard
:
17 April 2014
Delivered:
29 May 2014
Summary:
Review.
JUDGMENT
GUSH
J
[1]
In this matter, the applicant applies to review and set aside the
second respondent’s award reinstating the third respondent
alternatively that the award be set aside and the matter be referred
back to the first respondent for it to be arbitrated
de
novo
.
[2]
The third respondent was employed by the applicant as a production
foreman and had commenced his employment on 1 November 2008.
The
third respondent had previously been employed by the applicant but
had been dismissed during 2003 and re-employed in 2008.
[3]
The third respondent was dismissed on 24 July 2012 and at the time of
his dismissal, he was earning R31,199.47 per month. The
applicant
dismissed the third respondent following a disciplinary enquiry which
enquiry the third respondent was accused of:
‘
Gross
insubordination and/or seriousness disrespect in that:
You failed to start-up
machine PE 8 after it was handed over to you at 11H00 15 June 2011
You failed to start-up
machine PE 13 after being instructed to do so which came to the
attention of management on or about 15 June
2011’
[1]
[4]
The notification to attend the disciplinary enquiry also referred to
"COMPLAINANT’S STATEMENT ATTACHED”. The
statement
read as follows:
‘
Vivian Magau
failed to start-up machine PE 8 after the machine was handed over by
maintenance at 11 AM on 15 June 2011.
An instruction was also
issued to start-up machine PE 13 but this was also not done.
In addition
Vivian referred to me as
a "cunt". He followed one of our ... Managers after being
suspended and he said that he will
bring me down.’
[2]
[5]
It is unclear from the record whether the purpose of this attachment
was to provide the third respondent with some background
to the
charges of misconduct or to supplement/add to the charges of
misconduct.
[6]
The third respondent dissatisfied with his dismissal referred a
dispute to the first respondent who in turn appointed the second
respondent to arbitrate the dispute.
[7]
The applicant called a number of witnesses during the arbitration:
a.
The
applicant’s first witness was Carlton Khoza the chair of the
disciplinary enquiry. He explained that he had imposed the
sanction
of dismissal as he had found the third respondent guilty of gross
insubordination and "because it was clear the [third
respondent]
had no intention to cooperate with the company because eight machines
had to stop for a shift. I couldn't find a reason
why the [the third
respondent] elected to act in that manner."
[3]
b.
The second witness was François Roberts: His evidence
was that
he is the applicant operations manager and the third respondent is a
section foreman. “In June 2011 a machine was
standing”
due to a mechanical problem. A mechanic had been instructed to fix
the machine and hand it over to the third respondent.
He believed
that machine had been handed over at 10H00 and he had asked the third
respondent the start the machine. When he returned
at 12H00 machine
was "still standing" and he approached the third respondent
and asked him why.
The third respondent had
shrugged his shoulders and Roberts said that he, the third
respondent, as the foreman should know why machine
was not running.
He gave evidence that the third respondent had put his hand on his
shoulders and had said “Luister my maat”.
Roberts said he
then told the third respondent to “pack his stuff", took
him HR where he was suspended.
When Roberts returned the
plant a foreman by the name of Danie had reported to him that the
third respondent had said "that
cunt want to know why it takes
so long to start the machine".
[4]
As far as Roberts
evidence was concerned, with regard to the allegations of misconduct
the record reflects that the charge relating
to the use of the word
"cunt" was introduced to the disciplinary enquiry "to
show arrogance" presumably on
the part of the third
respondent.
[5]
What is abundantly clear
is that Roberts was told that the third respondent had used this
phrase but had not heard it himself. As
far as the insubordination
was concerned, Roberts explained that he regarded the third
respondent actions as having been insubordinate
in that he had
delayed complying with the instruction. During re-examination,
Roberts sought to qualify this by averring that he
regarded the third
respondent as having disobeyed an instruction which he thought
constituted insubordination.
[6]
c.
The third
witness was Stefan Rautenbach. Rautenbach gave evidence that machine
number eight under achieved the relation to its target
on 13 June
2011 and that he thought the third respondent was responsible for
operating the machine on that day. On 14 June 2011,
the same machine
again under achieved and the foreman was the third respondent; on 14
June 2011 machine number 13 did not start
up on the day shift and
production Foreman who was responsible for starting the machine was
the third respondent.
[7]
During
re-examination it transpired that Rautenbach was not the production
manager at the time of the incident.
d.
The second
respondent’s fourth witness was Danie Van Schalkwyk. The record
filed by the applicant, however, reflects that
this evidence was
given by Stefan Rautenbach. This is clearly an error. Van Schalkwyk’s
evidence was that on 15 June 2011,
it was assisting Russell Stephens
in starting up a machine. He was approached by the third respondent
who asked for “sponge
tape”. He proceeded to look for
tape in his toolbox and whilst looking for the tape, the third
respondent had said to him
"did you hear what that cunt says I'm
taking too long with the machine”. Because Roberts had "was
up-and-down the
whole day on the floor I know he gave instruction to
start with machines number eight, they were both busy on it, he was
talking
to Vivian on that machine so he gave an instruction so I
think he referred to as Francois”. This, Van Schalkwyk, said
took
place “early in the morning between 10 and 11”.
[8]
e.
The fifth
witness was Jannie Huysamen. Huysamen’s
[9]
evidence was confined to a description of the machine number 13 but
was unable to explain what had happened to that machine on
the day in
question.
f.
The
sixth witness was Shepherd Chifamba. Chifamba was the residence
further who had effected repairs on machine number PE
8 of 15 June
2011. He had completed the repairs and had approached the third
respondent "some time past 10 quarter past 10.
I am not sure
exactly of the minutes but it was past 10”.
[10]
g.
The applicant’s seventh witness was Russell Stephens.
Stevens
employed by the applicant as a machine setter. On 15 June 2011, he
was in the process of repairing machine number 20 when
the third
respondent approached him and asked for "sponge tape".
Although his evidence was that he had heard the word
"cunt"
he was unable to explain in what context it had been used.
h.
The applicant’s last witness was Eric Mukhocho. The extent
of
Mukhocho’s evidence was that on the day in question machines PE
8 and PE 6 were not working and that he had encountered
the third
respondent on his way to machine PE 12 before 12H00.
[8]
Conspicuous by its absence is any reference whatsoever in the
evidence adduced by the applicant during the arbitration regarding
the seriousness of the alleged misconduct or any justification for
the applicant having concluded that the employment relationship
had
been irretrievably broken down. Likewise there was no evidence that
the use of the word "cunt" in the manner that
the applicant
suggested it was used constituted dismissible misconduct. Having
regard to the evidence of Roberts, it is clear that
the reason he
caused the third respondent to be suspended was that the third
respondent had the temerity to put his hand on his
shoulder and say
“Luister my maat”. Despite this, however, it must be
emphasised that this issue did not constitute
an element of the
misconduct of which the third respondent was accused, either in the
formal "notification to attend a disciplinary
hearing" or
in the "complainant’s statement".
[9]
This being the evidence and material placed before the second
respondent, the second respondent in his award, after having
summarised and analysed the evidence of the witnesses, proceeded to
deal with the issue of substantive fairness, and in particular
insubordination and/or serious disrespect.
[10]
Dealing with the aspect of the charge relating to the alleged
"serious disrespect", the second respondent found that
the
applicant had firstly not proved that the third respondent had
referred to Roberts when using the phrase “cunt”,
and in
any event the applicant had not been charged with this misconduct.
This latter conclusion is supported by the Robert’s
evidence in
particular where he confirmed this.
[11]
As far as the issue of insubordination was concerned, the second
respondent, unsurprisingly, concluded that:
‘
Insubordination,
gross or otherwise, has not been demonstrated in respect to machine
PE eight on the 15 June 2011 for a number of
reasons.’
[11]
[12]
The second respondent sets out those reasons in some detail in his
award. His reasons are directly and logically connected
to the
evidence the applicant elected to adduce at the arbitration.
[13]
Is
important to apply to the second respondent’s award the test on
review as recently dealt with in
Herholdt
v Nedbank Ltd
[12]
a decision of the Supreme Court of Appeal and by the Labour Appeal
Court in
Goldfields
Mining SA (Pty) Ltd v CCMA and Others
.
[13]
[14]
In the
Herholdt
matter, the SCA said the following:
‘
...
the [SCA] enunciated an unreasonableness test ... namely, whether 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. ... the
reasoning of the arbitrator assumes less importance
... 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.’
[14]
[15]
In the
Goldfields Mining
case, the Labour Appeal Court in
considering the application of the
Sidumo
test in applying the
provisions of section 145 of the Labour Relations Act held the
following:
‘
... The
constitutional standard of reasonableness is "suffused" in
the application of section 145 of the LRA. This implies
an
application for review sought on the grounds of misconduct, gross
irregularity in the conduct of the arbitration proceedings,
and/or
excessive powers will not lead automatically to a setting aside of
the award of any of the above grounds are found to be
present. In
other words, in a case such as the present, where a gross
irregularity in the proceedings is alleged, the enquiry is
not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends to whether the result was unreasonable,
or
put another way, whether the decision that the arbitrator arrived at
is one that falls in a band of decisions to which a reasonable
decision maker could come on the available material.’
[15]
[16]
In this matter, it cannot be said that the applicant has established
in any way whatsoever that the second respondent’s
award falls
foul of the provisions of section 145 of the Labour Relations Act.
Likewise it is abundantly clear from the evidence
adduced and
material placed before the second respondent that his decision is
without doubt one that a reasonable decision-maker
could come to.
[17]
The second respondent concluded that the applicant’s dismissal
of the third respondent was substantively unfair. The
applicant bore
the
onus
of establishing not only that the third respondent
was guilty of misconduct but guilty of the misconduct with which he
was charged.
The evidence adduced by the applicant falls short of
discharging this
onus
. In addition to the
onus
of
establishing that the third respondent was guilty of misconduct, it
was incumbent upon the applicant to establish that the misconduct
warranted dismissal. In the absence of any evidence to this effect
the applicant’s decision to dismiss has not been proved
to be
fair.
[18]
As far as costs are concerned, there is no reason in law or fairness
why costs should not follow the result.
[19]
In the circumstances and for the reasons set out above, I make the
following order:
The applicant’s
application is dismissed with costs.
________________________________
D H Gush
Judge
of the labour Court of South Africa
APPEARANCES
FOR THE APPLICANT:
J du Randt DPP Attorneys.
FOR
THE FIRST RESPONDENT: M
Letoka CHSM Inc. Attorneys
[1]
Record page 18.
[2]
Record page 19.
[3]
Record page 106.
[4]
Record pages 108-110.
[5]
Record page 117.
[6]
Record pages 117-118.
[7]
Record pages 122-1130.
[8]
Record page138.
[9]
Record pages 164-171.
[10]
Record page 193.
[11]
Award record page 102.
[12]
[2013] 11 BLLR 1074 (SCA).
[13]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).
[14]
At paragraph 12.
[15]
At paragraph [14] pages 24 – 25.