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[2015] ZALCJHB 333
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Arcelormittal South Africa Limited v NUMSA obo Shongwe and Others (JR1060/13) [2015] ZALCJHB 333 (29 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: JR 1060/13
In
the matter between:
ARCELORMITTAL SOUTH
AFRICA LIMITED
Applicant
and
NUMSA obo W H
SHONGWE
DAVID LEVY
NO
METAL AND
ENGINEERING INDUSTRIES BARGAINING COUNCIL
First Respondent
Second Respondent
Third Respondent
Delivered:
29 September 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This
matter came before this court in terms of section 145 of the Labour
Relations Act
[1]
(the LRA). The
Applicant seeks an order reviewing and setting aside the arbitration
award issued by the Second Respondent (“the
Arbitrator”)
under case number MEKN6306 on 26 April 2013. The application is
opposed.
Background:
[2]
Shongwe,
the dismissed employee was employed by the Applicant as a Fitter on 1
July 2006. He was dismissed on 7 July 2012 following
upon a
disciplinary enquiry into allegations of misconduct pertaining to
‘“Negligence or indifference in execution
of duties. as
per safety job card no 922893144”
[2]
.
He had thereafter on 7 November 2012 referred an alleged unfair
dismissal dispute to the Third Respondent (MEIBC). When conciliation
attempts failed on 21 February 2013, the dispute came before the
Arbitrator on 16 March 2013.
The
arbitration proceedings:
[3]
Shongwe
and other employees were issued with daily instructions through job
cards each morning when their shifts commenced. On 2
July 2012,
Shongwe’s job card required of him to check the jacks and
hydraulic pumps in the stores. The following day, Mr
Bruin, the
Applicant’s Superintendent, discovered from the job card that
Shongwe had allocated 5 hours to performing the
tasks allocated, and
had thereafter reflected “DONE” on the job card. No other
comments were made on the job card.
[4]
Bruin
had testified that five hours was a relatively long period to spend
on the tasks allocated on that day to Shongwe, and that
neither he
nor the Storeman had seen Shongwe on 2 July 2012 working in the
stores testing the equipment. Bruin had also enquired
from the
Artisans on the shop-floor as to how long they thought the job
allocated to Shongwe would have taken to complete, and
he was
informed that at most it would have taken him three hours.
[5]
According
Bruin, the tasks allocated to Shongwe included the inspection of
between 12 and 14 jacks, 2 to 3 hand pumps and 3 to 4
hydraulic
pumps. Bruin’s testimony was further that the work allocated to
Shongwe involved checking for cracks and leaks
on the jacks and
hydraulic pumps, and the neglect of duties could have resulted in
injury to persons operating the equipment in
question. Shongwe
according to Bruin was supposed to have made comments on the job card
concerning the state of the equipment he
had tested. Bruin’s
conclusions from discussions with the Storeman and the Artisans were
that Shongwe had not done the job.
He had arrived at those
conclusions without interviewing Shongwe, as he was of the view that
he could give his input at the enquiry
once he was charged.
[6]
During
cross-examination, Bruin confirmed that at the time of dismissal,
Shongwe had a final written warning for misconduct and
had a history
of receiving warnings since 5 May 2008. Bruin’s further
testimony in this regard was that he had initiated
disciplinary
proceedings against Shongwe and was not aware at the time that he had
a valid final written warning in his record.
On his version, had he
been aware of this fact, he would not have charged Shongwe, and would
have instead had a discussion with
him.
[7]
Bruin
had further confirmed that there had not been any equipment failure
on the jacks since Shongwe had worked on them. The jacks
and the
pumps were also not re-inspected after he had established that
Shongwe had performed his tasks in accordance with the job
card.
[8]
Mr
Muir, the Storeman had also testified that he had not seen Shongwe in
the stores on 2 July 2012 and he could not have worked
on the jacks
without being seen as the test block was some 2 to 3 metres from his
workstation. Furthermore, Muir had not been aware
of what tasks were
allocated to Shongwe on that day.
[9]
Shongwe’s
testimony was that having been issued with his job card, he had
performed his tasks by checking the hydraulics and
had ascertained
that he need not complete the log books. He was familiar with his
tasks and knew what to do. He had started with
the assigned tasks at
about 09h10, and did the tests on 14 jacks. He could not recall the
time he had completed the tasks and had
signed off the job card when
he was done, and had then proceeded to perform other tasks.
The award:
[10]
The
Arbitrator found that Shongwe’s dismissal was substantively
unfair, and had ordered his reinstatement with retrospective
effect.
The Arbitrator had also ordered that Shongwe must be issued with a
final written warning, valid for a period of 12 months
from the date
of the award, and be paid an amount of one month’s salary.
[11]
The
Arbitrator reasoned that on the evidence the Applicant (employer) had
discharged the onus of proving that Shongwe could not
have been in
the stores checking the jacks during the absence of the Storeman. The
Arbitrator also established that Shongwe had
not followed the
instructions on the job card and had instead performed tests that he
presumed were adequate based on his experience
and training. He had
nevertheless checked the jacks instead of testing them, and to that
end, had not complied with the instructions
given to him.
[12]
In
regards to sanction, the Arbitrator concluded that Shongwe, given his
experience and qualifications, had displayed a lack of
professionalism in carrying out his duties. He further found that
there was insufficient evidence to persuade him that the failure
of
Shongwe to test the equipment in accordance with the job card was a
critical safety breach.
[13]
The
Arbitrator further took into account Bruin’s testimony to the
effect that had he known that Shongwe was on a final written
warning
he would not have charged him. In the Arbitrator’s view,
Shongwe’s direct supervisors had no reservations about
his
abilities, reliability or work performance. There also did not appear
to be any problems with a working relationship between
Shongwe and
his supervisors.
[14]
The
Arbitrator took into account that Shongwe was indeed negligent or
indifferent in the performance of his duties, but however
found that
the Applicant had failed to discharge the onus of proving that the
dismissal was the appropriate sanction. He nevertheless
stated that a
sanction of dismissal was not to be applied as a punitive measure,
but as a measure of the last resort, and in his
view, the Applicant
had adopted a mechanical approach to the issue of sanction as a
dismissal was not warranted.
Grounds for review:
[15]
The
Applicant did not find fault with summation of the evidence by the
Arbitrator in the award. The award however is attacked on
every
conceivable ground including that the Arbitrator’s findings
were not supported by any evidence; are based on speculation;
are
entirely disconnected from the evidence; are supported by evidence
that is insufficient to reasonably justify the decision;
and were
further made in ignorance of evidence that is insufficient to
reasonably justify the decision.
[16]
It
was further contended that the Arbitrator and committed a gross
irregularity; exceeded his powers; took into account irrelevant
evidence and ignored relevant evidence; failed to apply his mind to
the issues before him; failed to consider all the material
facts
presented to him; failed to examine the versions of the witnesses;
and rendered an award which another Arbitrator sitting
in his
position could not have arrived at.
[17]
It
was further argued that the decision that the Arbitrator came to was
not one that a reasonable decision maker could have come
to
especially in light of uncontested evidence that Shongwe was already
on a final written warning for similar conduct, with a
history of
disciplinary action having been taken against him in the past, and
that his failure to properly conduct the checks posed
a risk to the
safety of other employees.
[18]
The
Applicant further contended that the award was manifestly
unreasonable as a result of Shongwe already being on a final written
warning at the time of the incident and accordingly, the imposition
of another final written warning on the instruction of the
Arbitrator
had no real effect on Shongwe thereby undermining discipline.
[19]
In
opposing the application, it was submitted on behalf of Shongwe that
the decision of the Arbitrator was one that reasonably could
have
been made having considered the evidence led during the arbitration
proceedings. The crux of the submission is that the charges
were
incorrect leading to a substantively unfair dismissal. The
credibility of the Applicant’s witnesses at the arbitration
proceedings was also challenged, and it was argued that they had
contradicted one another. A further contention was that the review
application be dismissed as it had no merit, and that the award
should be made an order of Court. In regards to the last issue
raised
on behalf of Shongwe, the Court took notice that no substantive
application was launched to make the award an order of court.
Evaluation
[20]
In
determining whether an arbitrator’s award is reviewable, this
Court is required to ask whether the decision reached by
the
arbitrator is one that a reasonable decision-maker could not reach on
the material placed before him or her.
[3]
In
Goldfields
[4]
,
Waglay JP summarised the test as follows;
“
In short: A
review court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated the facts
presented at the
hearing and came to a conclusion which was reasonable to justify the
decisions he or she arrived at.”
[5]
[21]
In the light of the multitude of grounds upon which the review is
based in this case, we should
also be reminded of what was stated in
Goldfields,
that;
‘
In a review
conducted under s145 (2) (a) (c) (ii) of the LRA, the review court is
not required to take into account every factor
individually, consider
how the arbitrator treated and dealt with each of those factors and
then determine whether a failure by
the arbitrator to deal with one
or some of the factors amounts to process-related irregularity
sufficient to set aside the award.
This piecemeal approach of dealing
with the arbitrator’s award is improper as the review court
must necessarily consider
the totality of the evidence and then
decide whether the decision made by the arbitrator is one that a
reasonable decision-maker
could make.”
[6]
[22]
Where the grounds of review as also in this case are based on the
Arbitrator’s alleged
failure to consider facts, the enquiry in
this regard is whether the facts ignored were material, which will be
the case if a consideration
of them would (on the probabilities) have
caused the arbitrator to come to a different result. Once it is
established that the
facts were indeed ignored, and that they were
material, the award will be reviewable if the distorting effect of
this misdirection
was to render the result of the award
unreasonable.
[7]
The
allegations against Shongwe:
[23]
It is trite that when determining the fairness of a dismissal, the
Arbitrator in accordance with
the provisions of section 188 (2) of
the LRA must consider whether or not the
reason
for a
dismissal is a fair reason or whether or not the dismissal was
effected in accordance with a fair procedure, taking into
account the
guidelines set out Schedule 8 of the LRA. In this case, the charges
that Shongwe was faced with at the internal disciplinary
enquiry and
that led to the dismissal pertained to negligence or indifference in
execution of his duties.
[24]
Given the fact that Shongwe was not charged with either a failure to
obey instructions or outright
insubordination, I fail to appreciate
the Applicant’s contentions that the Arbitrator’s
findings that Shongwe had in
fact performed the work is a finding
that no reasonable arbitrator would have come to in the circumstances
. The issue of the two
different forms of misconduct was canvassed at
length with Bruin during his cross-examination
[8]
,
and it is apparent from that cross-examination that Bruin was
uncertain as to what to charge Shongwe with from the beginning,
and
had finally settled for those charges that led to the dismissal after
consulting the Applicant’s disciplinary code and
procedures. It
is therefore not for the Applicant after the fact to suggest that the
Arbitrator should have found that Shongwe
was correctly found guilty
on a charge he did not have to answer to at the internal disciplinary
enquiry.
[25]
It is trite that employers cannot justify a dismissal on grounds
other than those which formed
part of the initial decision to dismiss
an employee
[9]
. In this case,
Shongwe was not dismissed for failing to perform his tasks, and as is
evident from the chairperson’s findings,
the allegations that
led to the dismissal were framed as ‘negligence or indifference
in execution of duties...’
[10]
.
It thus cannot be said in the same breath that an employee was
negligent or indifferent in the performance of his duties, and
yet it
should have been found that he had not performed the tasks in
question. It is either the employee had performed those tasks
or not
and in this case, the Arbitrator’s findings that he had indeed
completed the tasks cannot be faulted. This finding
is not even
material in the light of the real charges that led to the dismissal,
and it cannot be correct that it goes to the appropriateness
of the
sanction of dismissal.
The
issue of sanction:
[26]
In the light of the specific charges against Shongwe, central to the
dispute was whether he had
performed the tasks in accordance with the
standards required by the Applicant. In this regard, the Applicant
was content with
the findings made by the Arbitrator that Shongwe had
not followed instructions on the job card. Having found that Shongwe
had not
performed the tasks in accordance with the accepted
standards, the next issue for the Arbitrator was to determine whether
the sanction
of dismissal given the facts of the case was
appropriate.
[27]
It was correctly pointed out on behalf of the Applicant that in order
for negligence to warrant
a dismissal, it must have been gross.
Negligence denotes a failure to comply with the standard of care that
would be exercised
in the circumstances by a reasonable person
[11]
.
The test for negligence is whether the
diligens
paterfamilias
in the position of the employee would have foreseen the reasonable
possibility of his conduct causing harm, and would have taken
reasonable steps to guard against such harm
[12]
.
[28]
Gross negligence is to be distinguished from ordinary negligence
which is a mere failure to exercise
reasonable care. Gross negligence
on the other hand denotes serious carelessness which is sometimes
accompanied by persistence
and inexcusable inattention. It can be
said to constitute a conscious and voluntary disregard of the need to
use reasonable care,
which is likely to cause foreseeable serious
harm to persons, property, or both.
[29]
Whether gross negligence if proven will result in a dismissal is
dependent on the factors of
each case. In
Solid
Doors (Pty) Ltd v Hanekom N.O and Others
[13]
the LAC held that any gross negligence
per
se
does not automatically translate to dismissal as sanction.
Accordingly, it remained the duty of the Commissioner after taking
all relevant factors into consideration to decide on a fair sanction.
The
decision of whether a dismissal as a sanction is fair or unfair
should be decided by the Commissioner in accordance with his
or her
own sense of fairness
[14]
.
[30]
In this case, it was common cause that Shongwe was not charged with
gross negligence, which is
completely different from ordinary
negligence or indifference. The Arbitrator concluded that Shongwe had
not followed the instructions
per the job card and had instead
performed the tests that he presumed were adequate based on his
experience and training. The Arbitrator
nevertheless concluded that
Shongwe had in the performance of his duties displayed a lack of
professionalism.
[31]
The Arbitrator in considering the appropriateness of the sanction
took into account that Bruin
had not allocated anyone to perform the
required tests after he had established that Shongwe had not complied
with the instructions
on the job card. This observation in my view
cannot be faulted in that it cannot simply be alleged that there was
gross negligence
when nothing further was done to establish what the
actual or potential consequences of Shongwe’s failure to
complete his
tasks in accordance with the instructions on the job
card were. It is not sufficient for a mere allegation or statement to
be made
that a particular act or omission could have had certain
consequences. A basis for that allegation must be laid.
[32]
The Arbitrator had further concluded that there was not sufficient
evidence before him that the
conduct in question was a critical
safety breach. These conclusions cannot be faulted in the light of
Bruin’s further evidence
that other than further investigations
not having been conducted after Shongwe had done the job, there had
subsequently been no
equipment failure on the jacks and further that
the jack and the pumps had not been re-inspected after Shongwe had
worked on them.
It therefore follows that any submissions to the
effect that the negligence in question was gross is not substantiated
by evidence,
and to the extent that the conduct in question was
characterised as lack of professionalism, it can only be inferred
that the negligence
in question was ordinary, and not serious as made
out to be by the Applicant.
[33]
In determining the appropriateness of a sanction, an Arbitrator is
guided by the factors set
out in
Sidumo
. These were stated as
follows;
“
In deciding
how commissioners should approach the task of determining the
fairness of a dismissal, it is important to bear in mind
that
security of employment is a core value of the Constitution which has
been given effect to by the LRA. This is a protection
afforded to
employees who are vulnerable. Their vulnerability flows from the
inequality that characterises employment in modern
developing
economies…”
[15]
And
“
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record. This is not an exhaustive list”
[16]
.
And
“
To sum up.
In terms of the LRA, a commissioner has to determine whether a
dismissal is fair or not. A commissioner is not given
the power to
consider afresh what he or she would do, but simply to decide whether
what the employer did was fair. In arriving
at a decision a
commissioner is not required to defer to the decision of the
employer. What is required is that he or she must
consider all
relevant circumstances”
[17]
.
[34]
In arriving at a conclusion that the dismissal was not an appropriate
sanction, the Arbitrator
had regard to the principle that a sanction
of dismissal was not to be applied as a punitive measure. This
approach cannot be faulted
as this is what has been stated in item
3(2) of Schedule 8 - Code of Good Practice, i.e. that discipline
should be viewed as a
corrective measure and not as punitive.
Furthermore, when considering the appropriate sanction, we are
reminded of what was stated
in
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[18]
,
to the effect that;
‘
Dismissal
is not an expression of moral outrage; much less is it an act of
vengeance. It is, or should be, a sensible operational
response to
risk management in the particular enterprise. That is why supermarket
shelf packers who steal small items are routinely
dismissed. Their
dismissal has little to do with society’s moral opprobrium of a
minor theft; it has everything to do with
the operational
requirements of the employer’s enterprise.’
[35]
In my view, I am satisfied that in arriving at the finding in regards
to the appropriateness
of the sanction, the Arbitrator had properly
taken all the factors into account, applied his mind to them and came
to a reasonable
decision. He had accepted that Shongwe had not
performed his tasks in accordance with accepted standards, and to
that end, had
appreciated the importance of the rule that had been
breached. He had nevertheless concluded that the insufficient
evidence was
placed before him in regards to the effect of the
transgression on the safety at the plant. It is accepted that proof
in this regard
is on a balance of probabilities. Be that as it may,
as it has already been stated elsewhere in this judgment, it is not
sufficient
for an allegation to be made that a particular
transgression had resulted in particular consequences which are not
substantiated.
As already indicated before, I did not understand it
to be the Applicant’s case that material was placed before the
Arbitrator
in regard to how the job was not completed or what the
level of negligence was. If any real threat or effect was
consequential
upon the negligent completion of the tasks, such
evidence should have been placed before the Arbitrator, rather than
an assumption
of what the effect may have been. A dismissal cannot be
said to be in response to the employer’s response to
operational
risks, when those risks are not identified or
substantiated. It is easy to allege that certain potential
consequences could have
occurred. Nevertheless, a basis must be laid
for that allegation.
[36]
The Applicant’s contention was that the fact that Shongwe was
on a final written warning
meant that a dismissal was the appropriate
sanction. In
National
Union of Mine workers and Another v Amcoal Colliery and Another
[19]
,
the LAC had accepted that a dismissal of an employee on a final
warning who committed the same offence would be justified. The
rationale behind this principle is that such an employee is
irredeemable
[20]
. The emphasis
nevertheless should be placed on whether ‘the same offence’
was committed, and it does not imply that
upon any further
transgression, an employee should automatically face a dismissal.
Each case has to be looked at in accordance
with the factors already
alluded to as above, and
it
is trite law that a disciplinary code is a guideline and each case
has to be determined based on its own merits.
[37]
It is accepted in this case that Shongwe was on a valid final written
warning at the time that
the transgression was committed. The charges
that led to the final written warning on 25 January 2012 pertained to
‘Improper
feedback regarding spares on job cards’. It is
not for this court to determine whether there is a distinction
between the
charges that led to the final written warning and those
that led to the dismissal. Ultimately, it was for the Arbitrator’s
sense of fairness to prevail.
[38]
As already indicated elsewhere in this judgment, concerns had been
raised with the nature of
the charges that were laid against Shongwe,
the manner with which they were formulated, and the case that the
Applicant sought
to pursue with this application notwithstanding the
fact that Shongwe was dismissed for a different reason. Doubts have
also been
expressed about the seriousness of the charges in the light
of Bruin’s hesitation and indecision as to whether Shongwe
should
be charged or not and if so, what charges to pursue against
him. In the light of these and other factors already alluded to in
this judgment, there is no basis for a conclusion to be reached that
the Arbitrator had failed to properly consider the facts surrounding
the appropriateness of the sanction, and in my view, his sense of
fairness had prevailed.
[39]
The Applicant had also contended that the award should be reviewed in
the light of the Arbitrator’s
decision to order reinstatement
in circumstances where Shongwe was a repeat offender, was also on a
final written warning, and
the Arbitrator has based his decision on
Bruin’s comments. It was further submitted that reinstatement
of Shongwe with a
written final warning was inconsistent with
progressive discipline in the light of his final warning.
[40]
Flowing from the provisions of section 1
Section
193(2) of the LRA
[21]
, it has
been said that reinstatement is the primary statutory remedy in
unfair dismissal disputes, as it is aimed at placing an
employee in
the position he or she would have been but for the unfair
dismissal
[22]
. In my view, and
from the facts as dealt with above by the Arbitrator, I am satisfied
that he took all the relevant facts into
account in deciding on a
remedy of reinstatement. This is even more apposite in circumstances
where the Applicant had not established
that the misconduct in
question was gross enough to impact on the trust relationship.
[41]
On the whole, I am satisfied that the Arbitrator considered the
principal issue before him; evaluated
the facts presented at the
hearing and came to a conclusion which was reasonable to justify the
decisions he arrived at. Even if
there may be cause to believe that
the Arbitrator had ignored some material, ultimately it has not been
shown in what respect this
omission had a distorting effect on the
outcome reached. To that end, there is no basis to interfere with his
award. Furthermore,
I can find no basis either in law or fairness to
make a cost order.
Order:
i.
The
applicant to review and set aside the award issued by the Second
Respondent under case number MEKN6306 dated 26 April 2013 is
dismissed.
ii.
There
is no order as to costs.
_________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Mr A Patel of Cliffe Dekker Hofmeyr Inc
On
behalf of the First Respondent: Mr T Manasoe of NUMSA
[1]
Act 66 of 1995
[2]
At page 125 of the record of
proceedings bundle
[3]
Sidumo &
another v Rustenburg Platinum Mines Ltd & others
[2007] ZACC 22; [2007] 12 BLLR 1097 (CC)
[4]
Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
[2014] 1 BLLR 20 (LAC).
[5]
At para [16]
[6]
At para
at paras [18]
[7]
See
Head
of the Department of Education v Mofokeng and Others
[2015] 1 BLLR 50
(LAC). See also
Shoprite
Checkers v Commission for Conciliation, Mediation And Arbitration
and Others
(JR2471/13) [2015] ZALCJHB 229 (31 July 2015) at para [9] to [10]
[8]
Pp 19 -26 of the
record of proceedings
[9]
Fidelity Cash
Management Services v CCMA & Others
2008 (2) BLLR 197
(LAC) at para 32
[10]
Page 123- Index to
record of proceedings. Vol 2
[11]
Grogan Dismissal
at page 200
[12]
Kruger v
Coetzee
1966 (2) SA 428
(AD) at 430 E – H:
[13]
(CA19/2012)
[2014]
ZALAC 19
(30 April 2014)
[14]
See
Sidumo
at paras [75] to [76] and also
Engen Petroleum Ltd
v CCMA & others
(2007) 28 ILJ 1507 (LAC) at para [117] to [119]
[15]
At para 72
[16]
At para 78
[17]
At para 79
[18]
(2000) 21 ILJ 1051
(LAC) at para [2}
[19]
(2000) 5 LLD 226
(LAC)
[20]
Grogan. Dismissal
at pp 100-101
[21]
Which provides:
‘
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.
[22]
Equity Aviation
Services (Pty) Ltd v CCMA and Others
[2008] ZACC 16
;
2009 (1) SA 390
(CC).