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[2015] ZALCJHB 27
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Marthinussen v Metal and Engineering Industries Bargaining Council (MEIBC) and Others (JR2862/2011) [2015] ZALCJHB 27 (27 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No: JR
2862/2011
DATE: 27 JANUARY
2015
Not Reportable
In the matter
between:
L H
MARTHINUSSEN
........................................................................
Applicant
And
METAL AND
ENGINEERING INDUSTRIES
BARGAINING
COUNCIL (MEIBC)
.......................................
First
Respondent
AHMED CACHALIA
N.O
..................................................
Second
Respondent
VUSI DANIEL
KUBEKA
......................................................
Third
Respondent
JEFFREY NKOSENHLE
NDLOVU
....................................
Fourth
Respondent
MASTER BHEKI
DLUDLU
..................................................
Fifth
Respondent
MSELEKI
WILBERFORCE MAZULA
.................................
Sixth
Respondent
Heard: 18
December 2014
Delivered: 27
January 2015
JUDGMENT
LE ROUX, AJ
[1]
Two applications are before me in this matter. In the first, under
case number JR 2862/ 2011, the applicant (“LH
Marthinussen”) seeks to have an arbitration award issued by the
second respondent under case numbers MEGA 29996, MEGA 29658,
and MEGA
29494 reviewed and set aside. In this award the second respondent
found that four employees, namely, VD Kubeka, JN Ndlovu,
MB Dludlu
and MW Mazula, had been unfairly dismissed by the applicant.
[2]
The second application, under case number J 391/2012, seeks to have
the same arbitration award made an order of court in terms
of section
158(1) (c) of the Labour Relations Act, 66 of 1995 (“the LRA”)
I should add that although all the pleadings
cite the applicant as
“LH Marthinussen” thus creating the impression that the
employer is an individual, the applicant
is, according to the
founding affidavit, Savcio Holdings (Pty) Ltd. This is also reflected
in a resolution of the board of directors
of this company attached as
annexure “VS1”. Nevertheless, in the interests of
consistency, the heading in this judgment
will also simply refer to
LH Marthinussen.
[3]
The section 158 (1)(c) application came before Bhoola J on 5 February
2013 and was postponed
sine die
pending the outcome of the
review application. The court order also records that the parties
agreed that the handwritten notes
of the second respondent would
constitute the record of the arbitration proceedings.
[4]
Argument proceeded on the agreed basis that if the review application
succeeds the section 158(1)(c) application will fall away.
If the
review application fails, the award will be made an order of court.
[5]
I therefore proceed to deal with the review application. As indicated
above, the applicant in this matter is LH Marthinussen,
a division of
Savcio Holdings (Pty) Ltd, the entity that employed the four
respondent employees who were dismissed by it. (These
persons will be
referred to as the “individual respondents”.)
[6]
The facts in this matter are largely common cause. During April 2010,
the department where the individual respondents worked
experienced
low productivity levels. As a result management reviewed video
footage of the activities of the night shift on 26 and
28 April 2010.
The video footage showed that at various times during one or both of
these night shifts all four of the individual
respondents had turned
off their machines that they were operating, his was done prior to
the end of the shifts. All four of them
were then subjected to
disciplinary proceedings.
[7]
They faced a charge that read as follows –
‘
Dishonesty
related to false timekeeping resulting in financial and production
loss to the Company’
.
[8]
The allegation of dishonesty arises from the applicant’s view
that the individual respondents, who were hourly paid employees,
accepted their wages for the full night shift or shifts when in fact
they did not work a full shift or shifts.
[9]
They were found guilty of this offence and dismissed. They challenged
the fairness of their dismissal. It appears that three
separate
disputes under the case numbers referred to above were referred to
the first respondent but that these were consolidated
for the
purposes of arbitration.
[10]
The second respondent presided over the arbitration and issued an
award on 12 October 2011. In this award the second respondent
rejected the various defences raised by the individual respondents
and found that they were guilty of turning off their machines
as
alleged. He then turned to the issue of whether dismissal was
justified for these acts of misconduct. The relevant part of the
award reads as follows -
‘
The
Respondent dismissed them for dishonesty as a result of false
timekeeping
in that they did not work
their full hours as expected and switched their machines of
.(sic)
(my emphasis)
.
In my view by wording the charge as dishonesty the Respondent would
easier be able to dismiss. Dishonesty is an offence for which
employers can fairly dismiss employees in most instances. However, I
believe the true essence of the charge is not dishonesty in
the
normal understanding of the word but rather the failure of employees
to diligently fulfil their work functions as expected
of them in
respect of them working their full hours. I do not think the
Applicants would have been charged let alone dismissed
had they met
their production targets. I also don’t believe the Applicants
would have been dismissed had they had their machines
on but did not
meet the expected production.
The
length of service of the Applicants must work as a strong mitigating
factor and not an aggravating factor as suggested by Mr
Abbott. In my
view, dismissal was too harsh in the circumstances. Dismissal is the
death knell of an employment relationship and
an employer should only
resort to it when the trust relationship has been irretrievably
broken down. In my view a sanction short
of dismissal would have had
the desired effect on employees who have such lengthy years of
service. This would also serve as a
means of correcting their
behaviour. The trust relationship in my view had not irretrievably
broken down as a result of the Applicants
misconduct.’
[11]
In essence, the second respondent found that the individual
respondents were not guilty of dishonesty in the true sense of
the
word and that this, together with their length of service, meant that
dismissal was too harsh a sanction. The trust relationship
had not
broken down. The second respondent reinstated the individual
employees but not with retrospective effect. He also ordered
that the
individual respondents be given a final written warning. This was
seen as a corrective measure.
[12]
The applicant seeks to review and set aside this award.
[13]
The grounds for review as set out in the founding affidavit all
attack the finding that dismissal was not an appropriate sanction.
These grounds are wide-ranging and the applicant has taken a “shot
gun approach”.
[14]
The most consistent theme running through the affidavit is that the
second respondent misconstrued the evidence, and failed
to consider
or to consider properly, relevant evidence. The founding affidavit
does not clearly state what this evidence was. However,
the affidavit
does specifically refer to other “additional” factors
that should have been considered. These were –
1.1.
the individual respondents were the only
employees in the relevant department on duty that evening and that
their conduct therefore
affected the productivity of the department;
1.2.
the negative effect that their conduct had
on the applicant’s business;
1.3.
the applicant’s business would be
harmed if such dishonest conduct was not “rooted out”;
1.4.
the importance of abiding by the principles
of a disciplinary code in order to ensure consistency;
1.5.
the fact that the individual respondents
did not deny their conduct;
1.6.
the threat which the reinstatement of the
employees would have on the maintenance of discipline; and
1.7.
the obligation of loyalty that the
individual respondents owed their employer.
[15]
In addition, it is argued that the second respondent failed to place
sufficient importance on the breakdown of the trust relationship
between the individual respondents and the applicant and that the
second respondent should have accorded due deference to the
employer’s finding as to sanction.
[16]
The founding affidavit argues for a process related review and argues
that the Court should not enquire whether the award was
capable of
being sustained on other grounds that may emerge from the award.
[17]
In his heads of argument, and during oral argument, the applicant’s
legal representative raises certain additional points.
He argued that
there are certain inconsistencies in the award and seemed to imply
that the second respondent was biased and “entered
into the
arena”. These grounds are not contained in the founding
affidavit and can therefore not be raised in argument. In
any event,
they are not supported by anything in the record.
[18]
The approach adopted by the individual respondents in their answering
affidavit and in argument was that the award was reasonable
and based
on the facts placed before the second respondent.
Analysis
[19]
This is not a case where the applicant accepts that an arbitrator
understood and considered all relevant evidence but nevertheless
came
to a decision relating to sanction that was unreasonable.
[20]
The applicant argues that the second respondent’s finding with
regard to sanction is reviewable because he misconstrued
or failed to
properly consider evidence relevant to determining whether
dismissal was an appropriate sanction or not.
[21]
In
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae
)
[1]
,
the SCA referred to the decision of the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
and formulated the test to be applied in this regard as follows -
‘
[12]
… 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.’
[22]
The importance of the unreasonableness of the outcome was also
emphasised in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[3]
where
the following is stated –
‘
[14]
… This implies that an application for review sought on the
grounds of misconduct, gross irregularity in the conduct
of the
arbitration proceedings, and / or excess of powers will not lead
automatically to a setting aside of the award if 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.’
[23]
I have considered the award. Whilst a court on review may differ in
its view as to whether or not dismissal was an appropriate
sanction
in this regard, this is not the test to be applied. I must decide
whether the award is one that could reasonably be reached
on the
evidence and other material properly before the second respondent. In
my view this question must be answered in the affirmative.
[24]
The second respondent’s finding that the individual
respondent’s conduct did not amount to dishonesty in the strict
sense of the word and that this amounted to something akin failure to
work diligently is, in my view, a reasonable finding. The
second
respondent considered the length of service of the individual
respondent’s and their disciplinary record and came
to the
conclusion that the trust relationship had not been broken down. He
came to the conclusion that dismissal was too harsh
a sanction and
that a lesser sanction would serve a corrective purpose. I should
also observe that the lesser sanction is in fact
a fairly severe one
in that, apart from the imposition of a final written warning, the
fact that the individual respondents were
not retrospectively
reinstated meant, in effect, that they were suspended without pay for
a lengthy period of time.
[25]
The notion advanced by the applicant’s legal representative
that a commissioner must accord deference to the employer’s
decision as to sanction was rejected by the Constitutional Court in
the
Sidumo
decision.
[26]
With the exception of that mentioned in paragraphs 12.1 and 12.2, the
considerations mentioned in paragraph 12 of the founding
affidavit
are either irrelevant or not supported by any evidence in the scant
record that was agreed upon by the parties. In any
event these
factors do not, in my view, impact significantly on the
reasonableness of the award.
[27]
In the light of the above it is my view that the application to
review should be dismissed. In my view this is a case, given
the
continuing relationship, where costs should not be awarded.
[28]
My order relating to the application to have the award made an order
of court is dealt with separately under case number J391/2012.
ORDER
I
make the following order:
1
The application is dismissed.
2
No order as to costs is made.
Le
Roux, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Mr M Mkhize
For
the Respondent: Mr A Goldberg
[1]
(2013)
34
ILJ
2795 (SCA)
[2]
[2007]
12 BLLR 1097
(CC)
[3]
(2014)
35 ILJ 943 (LAC)