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[2015] ZALCJHB 35
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Sylvania Metals (Pty) Ltd v Mello NO and Others (JR3246/11) [2015] ZALCJHB 35 (12 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 3246/11
DATE:
12 FEBRUARY 2015
Not
Reportable
In the matter
between:
SYLVANIA METALS
(PTY)
LTD
.........................................................................
Applicant
And
MOHLOMELELE
CHRISTOPHER MELLO
N.O
...............................
First
Respondent
THE COMMISSION
FOR CONCILIATION,
MEDIATION AND
ARBITRATION
.....................................................
Second
Respondent
ESWUSA obo
MOSEHLE,
MOFFAT
......................................................
Third
Respondent
Heard: 29 May
2014
Delivered: 12
February 2015
Summary: Review
application. The employee dismissed for doing work without the
relevant work permit. The Commissioner finding the
employee guilty of
insolence which he says is different from insubordination and
therefore the final written warning for insubordination
not applicant
for that reason.
JUDGMENT
MOLAHLEHI, J
Introduction
[1]
This is an application to review and
set aside the arbitration award issued by the first respondent (the
Commissioner), under case
number MEGA 31647, under the auspices the
third respondent, the CCMA dated
24 November 2011. In
terms of the arbitration award, the Commissioner found the dismissal
of the individual third respondent, Moffat
Mosehle to be
substantively unfair and ordered that he be reinstated with a
back-pay of R336 432, 00.
The background
facts
[2]
The background facts in this matter are generally common
cause. The individual third respondent, (the employee) who was prior
to
his dismissal employed as a mechanical fitter was charged and
dismissed for misconduct relating to an alleged breach of the
workplace
rule and insubordination. The charge of the breach of the
rule relates to the allegation that he worked on the blower machine
without
a work permit. The second charge concerned the alleged gross
insubordination and insolence in that he walked out of the meeting
during the discussion regarding his breach the rule governing the
work permit.
[3]
The employee and his union were unhappy about the decision to
dismiss him and accordingly referred a dispute to the CCMA concerning
an alleged unfair dismissal. The dispute after failure of the
conciliation was arbitrated, by the Commissioner who as indicated
above found in favour of the employee and ordered that he be
reinstated.
Case of the
applicant during the arbitration hearing
[4]
In support of its case that the dismissal of the employee was
for a fair reason the applicant presented its version through the
testimony of two witnesses. The first witness was Mr Tshepo Malema,
the plant manager. He testified that the applicant has a rule
which
requires employees to obtain a work permit before performing any
task. The rule according to him covers even situations where
the
members of the engineering team come across any malfunctioning
equipment as was the case in the present instance. In such a
situation the member of the engineering team would report to the
process people who will then issue a work permit. In the
case
of the employee, he was supposed to report to the shift foreman. The
shift foreman is responsible for issuing a work permit
and also
providing leadership in addressing the problem that may have arisen
in relation to the equipment.
[5]
In the present instance the person who the employee ought to
have contacted about the adjustment of the valve on the blower was Mr
Lesenya, the engineering foreman, and in his absence it would have
been Mr Wessels, the production manager.
[6]
Mr Malema further testified that the employee knew about the
need of obtaining a work permit whenever work was to be done on any
equipment. He also stated that not so long before the incident
involving the employee he (Mr Malema) had reminded the employees
about the importance of risk assessment and the work permit. This was
following the near fatality incident that occurred not so
long before
the incident in question.
[7]
Mr Lesenya was also charged regarding the incident of working
without a work permit but was however not found guilty because
according
to him he was a bystander whilst the employee was adjusting
the valves.
[8]
The incident which led to the charges against the employee was
reported to Mr Malema by Mr Wessels. On receipt of that report he
convened a meeting in his office with a number of the management team
including the employee. Initially there was no response to
his
enquiry as to what happened. He then reminded the team about the
recent near fatality incident. At that point the employee
enquired
from him as to what standard he was using. According to him the
employee raised his voice, told him that he was not going
to work
according to his standard and walked out of the meeting.
[9]
In response to a question of clarity by the Commissioner as to
whether the main problem related to the employee walking out of the
meeting, Mr. Malema respondent as follows:
“
Yes
because one of my views when I called him in that meeting it was not
to say I nail anybody, it was to say I want to go to the
root of, of
the action so that I come with corrective measures.”
[10]
In clarifying further the issue of both
the changes to the Commissioner, Mr. Malema, stated that the main
charge was about the task
of adjusting the valve without a work
permit. The charge of insubordination related to the employee waking
out for the meeting
and saying that he will not work according to the
rules of the company according to Mr Malema.
[11]
In relation to the exchange between him
and the employee during the meeting, Mr Malema did not dispute having
cut the employee short
during the meeting whilst he was trying to
explain what had happened. His explanation for doing that was that he
wanted to make
his point or needed to be listened to.
[12]
In the context of assessing the
conclusion reached by the Commissioner it seems apposite to quote
what Mr. Malema said during the
arbitration hearing. In responding to
a question of clarity from the Commissioner Mr. Malema said:
“
I
cut him short because I wanted to explain my views because that was
my chance to talk because when I gave him the chance to explain
what
has happened he never explained.”
[13]
The second witness for the applicant was
Mr. Wessels, who testified about the near fatal incident which took
place 2 to 3 weeks
before the one that gave rise to the dismissal of
the employee. According to him the near fatal incident occurred
because some
work was performed without the work permits and risk
assessment. Following that accident SAMANCO issue to communiqué
regarding
the need to ensure that work permit was issued before any
task could be performed.
[14]
Mr. Wessels further testified that the
communication made it very clear that there is a zero tolerance
concerning work done without
the work permit.
[15]
In relation to the incident in question,
Mr. Wessels testified that he was walking from his office to the
workshop when he noticed
"guys working on the Blower or in the
vicinity" thereof. He then proceeded to the plant where he
discovered that the
process used to sift platinum minerals from other
things was operating at a lower level. He was then informed by Mr.
Lesenya that
the employee had performed a task without the wok
permit. He then checked on the relevant documentation and indeed
found that the
work permit for the work done by the employee had not
been issued.
[16]
Regarding what transpired in the meeting
which was convened by Mr. Malema, Mr. Wessels testified that the
employee amongst other
things said that he would not work according
to Mr. Malema's standard and thereafter stood up and left the
meeting.
[17]
During cross-examination Mr. Wessels
could not say what kind of work the employee had performed on the
blower machine. According
to him, he assumed that he was changing the
v-belts because one of them had the belt in his hand.
[18]
In relation to the adjustment of the
valve Mr. Wessels testified that he had previously attended to such a
task which is not done
on a regular basis. He also testified that the
valve adjustment had to be reported to Mr Malema if it was done on
the basis of
a "call out".
[19]
It was apparent during cross examination
that the version presented during the arbitration hearing was
different to that presented
at the disciplinary hearing. In this
respect, Mr Wessels testified at the arbitration hearing that they
always obtained a work
permit whenever they had to adjust the valve.
This was contrary to what he had stated during the disciplinary
hearing. He later
stated that the reason for saying that there was no
need for a work permit when adjusting a valve during the disciplinary
hearing
was because he did not understand the question.
[20]
Mr. Wessels later produced various books
used by the applicant to record the work permits. He however could
not produce any showing
that a work permit was issued previously for
adjusting the valve.
The case of the
employee
[21]
The employee does not deny that he attended the valve on the
blower without a work permit. He contended that as a qualified and
competent person he was entitled to adjust the valve without having
to obtain a work permit.
[22]
As concerning what transpired at the meeting he confirmed the
version of the applicant except for stating that he left the meeting
because Mr. Malema interrupted him when he tried to explain what
happened and that was the reason he decided to leave the meeting.
The grounds of
review
[23]
The applicant’s grounds of
review can be summarised in the following respects:
23.1 The first
respondent failed to properly apply his mind and failed to have
proper consideration of the facts and the law; thus
exceeding his
powers in this regard.
23.2 the first
respondent failed to properly, justifiably and reasonably determine
and assess the evidence properly before him.
23.3 the first
respondent failed to have any regard to the principle in relation to
previous disciplinary history of the third respondent;
23.4 the first
respondent misconstrued the issue that he was required to determine
at the arbitration proceedings;
23.5 the first
respondent did not properly apply his mind to the facts or the law in
reaching his conclusion;
24.6
the award reached by the first respondent is not a determination that
a reasonable decision-maker could have arrived at under
the
circumstances of this matter.
In the heads of argument the
applicant focused the challenge on the relief granted by the
Commissioner and failure to take into
account the previous final
written warning that had been given to the employee.
The
arbitration award
[24]
In his analysis of the evidence which was presented before him
the Commissioner found that the reason for the dismissal of the
employee
was because he worked on the blower machine without a permit
and also for insubordination in that he walked out of the meeting
whilst his superior was still talking to him.
[25]
In relation to the charge of operating the blower machine
without a work permit the Commissioner found that there was no need
for
a permit to adjust the blower valve in the blower machine. The
Commissioner made this finding on the basis that the applicant had
failed to proof that there was a policy requiring a permit before
adjusting the blower valve. The other reason for that finding
is that
if there was a need for a permit before adjusting the valves the
employee's immediate supervisor who observed him as he
was working on
the machine would have stopped him or would have given him such a
permit. In other words the employee's supervisor
found nothing wrong
with him adjusting the valves without the permit.
[26]
As concerning the charge of insubordination the Commissioner
found that the employee had committed misconduct in that he was
disrespectful
to his manager. He however found that the misconduct
was not serious enough to warrant a dismissal. The appropriate
sanction according
to the Commissioner in relation to this charge was
a warning. In finding that the sanction of dismissal was not
appropriate for
the employee walking out of the meeting whilst his
superior was still talking to him, the Commissioner took into account
that the
applicant was previously issued with a final written
warning. He however distinguished the offence for which the employee
had received
the final written warning and the charge of
insubordination relating to him walking out of the meeting. The
distinction is based
on the finding that the written warning was for
insubordination whereas the walking out of the meeting was not
insubordination
but rather insolence.
Principles
governing review
[27]
The
test to apply when considering an application for review is now well
known. The test to apply is that of a reasonable decision
maker which
incorporates the grounds set out in section 145 of the LRA. The broad
principles governing this test is summarized
in the often cited case
of
Fidelity
Cash Management Service v CCMA and Other,
[1]
in the following terms:
“
The
test enunciates by the Constitutional Court in
Sidumo
for determining whether a decision or arbitration award of a CCMA
Commissioner is reasonable is a stringent test that will ensure
that
such awards are not lightly interfered with. It will ensure
that, more than before, and in line with the objectives
of the Act
and particularly the primary objective of the effective of the
effective resolution of disputes, awards of the CCMA
will be final
and binding as long as it cannot be said that such a decision or
award is one that a reasonable decision-maker could
not have made in
the circumstance of the case.”
[28]
The Court further held that the test
excludes the consideration that the reviewing Court may have arrived
at a decision different
to that of the Commissioner. The other
principle enunciated by the Court is that the task of determining the
fairness or otherwise
of a dismissal is in terms of the LRA is given
to the Commissioner.
[29]
It
is also now well established that the reasonableness or otherwise of
the arbitration award must be determined objectively taking
into
account the issues raised during the arbitration hearing including
all the relevant evidence properly presented before the
Commissioner.
In this regard the Labour Appeal Court per Waglay JP in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others,
[2]
held that in determining the reasonableness or otherwise of an
arbitration award the reviewing court must consider the totality
of
the evidence as was presented before the Commissioner and then decide
whether the decision made by the arbitrator is reasonable.
Evaluation
[30]
In my view, considering the totality of the evidence
which was before the Commissioner in this matter, except for the
issue of the
relief, there is no basis to interfere with arbitration
award. Put in another way the decision reached by the Commissioner is
reasonable
when regard is had to the evidence as appears on the
transcript of the arbitration proceedings. However, the finding made
concerning
the relief of reinstatement is, with due respect
unreasonable when regard is had to the record. The reasons for these
findings
are set out below.
[31]
I deal first with the issue of the alleged breach of the rule
concerning the alledged performance of the task of adjusting a valve
without a work permit. It has not been disputed that the employee
sought to fix the problem of valve because he noticed that it
had a
leak. It was also not disputed that he was qualified and competent to
fix the valve.
[32]
The version of the employee that he had previously worked on
the valve without a work permit that was not challenged. Mr Wessels
conceded that work had previously been done on the valve. He
initially sought to project the view that such work was done only
after obtaining the work permit. He indicated that he could proof
that fact by producing books where the record of such work permit
could be found. The various books which he contended contained
evidence of work done on the valve with a work permit failed to
support his version.
[33]
The applicant has also failed, in my view, to produce proof as
to when were employees including the employee informed that the rule
regarding work permit would apply to even work performed
on equipments including on the blower. And more importantly
there is
insufficient evidence to show that the applicant regarded failure to
obtain a work permit before working on the blower
a serious offence
that could result in the sanction of dismissal. The testimony of Mr
Malema is far from supporting the proposition
made by Mr Wessels that
there was zero tolerance to performing any task including that of
working on the blower without a work
permit. It should be noted that
Mr. Malema did not dispute that work was previously done on the
blower without a work permit.
[34]
The proposition that the applicant regarded failure to obtain
a work permit before attending to the blower was a serious offence
has to also be assed in the context where the employee’s
immediate supervisor was present during the course of the performance
of the task by the employee. The supervisor was charged regarding the
incident but was found not guilty.
[35]
Turning to the second charge against the employee, it is
common cause that Mr. Malema convened a meeting with the management
team
including the employee after being informed by Mr. Wessels of
the incident of work being done on the blower without a work permit.
It is common cause that the employee attended the meeting as per the
instruction. The charge against him concerns his failure to
stay in
attendance of the meeting. The Commissioner as indicated above found
the employee guilty of misconduct. It is apparent
from the reading of
the arbitration award that he found the dismissal to be inappropriate
sanction.
[36]
The finding that the dismissal was unfair despite the employee
being guilty of misconduct is reasonable in my view, when regard is
had to the facts and the circumstances surrounding the departure of
the employee from the meeting. It is in this respect common
cause
that although the applicant was accused of wrong doing, he was not
given an opportunity to explain what happened. Mr Malema
testified as
indicated earlier that,
"I cut him short
because I wanted to explain my views because that was my chance to
talk.”
[37]
The Commissioner cannot be faulted in concluding that the
dismissal was unfair despite the finding that the employee was guilty
of insolence when regard is had to the above including the following:
a.
There is no evidence that the employee was instructed to remain in
the meeting as soon as he stood up and was walking out of
the
meeting.
b.
There is no evidence that he was warned of the consequences that
would follow his departure out of the meeting without permission
particularly when regard is had to the environment that prevailed
prior to his departure.
c.
There is no evidence that the trust relationship had broken down
because of the conduct of the employee.
[38]
As concerning the charge of insubordination the applicant
contends that the decision of the Commissioner is unreasonable
because
he failed to take into account the fact that the employee was
previously issued with a final written warning concerning
insubordination.
[39]
The validity of the final written warning, which was made by
agreement between the parties at conciliation, for insubordination
has not been challenged. It is however not the rule of our law that a
dismissal would follow automatically where there is a valid
final
written for the similar offence for which an employee has been found
guilty of. It has of course been accepted in our labour
relations
that previous record of disciplinary offence by an employee being
part of progressive discipline would carry considerable
weight in
support of the reason for dismissal. In other words previous records
of misconduct do not on their own constitute the
reason for dismissal
but rather is a factor to be taken into account in weighing whether
dismissal would, having regard to the
totality of the facts and the
circumstances of the case, be an appropriate sanction.
[40]
The other ground of review upon which the applicant relies on
in challenging the arbitration award concerns the relief made by the
Commissioner. The approach to adopt when dealing with the issue of
relief where the dismissal of the employee has been found to
be
unfair is dealt with under the provisions of section 193 of the LRA.
The relevant provision of section 193 of the LRA for the
purpose of
this judgment reads as follows:
“
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless–
(a) the employee
does not wish to be reinstated or re-employed;
(b) the
circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
(c) it is not
reasonably practicable for the employer to reinstate or re-employ the
employee; or
(d) the dismissal is
unfair only because the employer did not follow a fair procedure.”
[41]
In
interpreting the provisions of section 193 of the LRA the
Constitutional Court in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
,
held that:
“
It
is trite law that the power to grant a remedy in section 193 is by
its nature discretionary and that the discretion must be exercised
judicially by a court that enjoys that unfettered discretion.”
[42]
In
Dunwell
Property Services CC v Sibande and Others
[3]
,
Labour Appeal Court in dealing with the issue of the dismissal of the
employee which was found to have been unfair held that this
Court
erred in ordering the reinstatement of the employee in circumstances
where the employee send a letter to the Department of
Home Affairs
after his dismissal castigating the conduct of certain members of
management.. Although the LAC found that the dismissal
of the
employee to have been unfair it also found that the contents of the
letter addressed to the Department of Home Affairs evinced
an
irretrievable breakdown in the employment relationship. The principle
to apply in considering whether reinstatement is an appropriate
remedy according to the LAC and per Ndlovu JA is the following:
“
In
order to determine whether or not an unfairly dismissed employee
should be reinstated, as contemplated in section 193(2) of the
LRA,
the overriding consideration in the enquiry should be the underlying
notion of fairness between the parties, rather than the
legal onus,
and that “[f]airness ought to be assessed objectively on the
facts of each case bearing in mind that the core
value of the LRA is
security of employment.”
[43]
In the present instance whilst the Commissioner has noted the
existence of final written warning but did not regard the offence of
walking out of the meeting by the employee as gross insubordination.
The Commissioner found the employee “guilty” of
insolence
which is not serious enough to render continued employment
intolerable. The question to answer in terms of the principles
discussed earlier in this judgment is not whether the Commissioner’s
finding was wrong or incorrect but rather whether it
was reasonable.
In my view having regard to the totality of the facts and the
circumstances of this case the Commissioner cannot
be faulted for
finding that the employee was not guilty of gross insubordination. It
is also apparent from the reading of the record
that the applicant
did not lead any evidence showing that the relationship between the
parties has as a result of the offence irretrievably
broken down.
[44]
The applicant in contending that the relationship has broken
down relies mainly on the answers given by the employee during cross
examination. The applicant interprets the answer given by the
employee to be saying he would not in future take instructions from
Mr Molema. The proper analysis of the answers given by the employee
in relation to taking instructions from Mr Malema, indicates
that he
regarded the question to relate to formal and policy related
instructions. The employees answer was that he would only
perform any
such instructions from Mr Malema if it is writing. This may be
interpreted to mean that in order to avoid the conflict
that has
arisen in relation to the work permit he will require instructions to
be in writing. There seems to be nothing unreasonable
about that.
[45]
The
proper analysis of the answers given by the employee in relation to
taking instruction from Mr Malema, indicates that he regarded
the
question to relate to formal and policy related instructions. The
employees answer was that he would only perform any such
instructions
from Mr Molema if it is in writing. This may be interpreted to mean
that in order to avoid the conflict that has arisen
in relation to
the work permit he will require instructions to be in writing. There
seems to be nothing unreasonable about that.
[46]
In
my view applying the reasonable decision maker test, I found no basis
to interfere with the decision of the Commissioner. I also
do not see
any reason why the costs should not follow the result.
Order
[47]
In
the premises, the applicant’s application to review the
arbitration award made under case number MEGA 31647 dated 24 November
2011 is dismissed with costs.
Molahlehi,
J
Judge
of the Labour Court of South Africa
Appearances
:
For the
Applicant: Hardus Lee of Snyman Attorneys
For
the Third Respondent: Andrew Goldberg of Goldberg Attorneys
[1]
[2008]
3 BLLR 197
(LAC) at para 97.
[2]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 18.
[3]
(2012)
2 B;;R 131
(LAC)
The
same approach was adopted in
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
[3]
,
2010(5) BCLR 422 at para 42 where the Constitutional Court held
that: ‘The remedies awarded in terms of the provisions
of
section 193(2) of the LRA must be made in accordance with the
approach set out in
Equity
Aviation
(
supra
).
That approach is based on underlying fairness to both employee and
employer. It would introduce unwanted and unnecessary rigidity
to
saddle an inquiry into fairness with notions of a legal onus.’