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[2015] ZALCPE 8
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Nohoyeka v Motor Industry Bargaining Council and Others (P467/12) [2015] ZALCPE 8 (13 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
no: P467/12
DATE:
13 FEBRUARY 2015
Not
Reportable
In
the matter between:
LUNGELWA
CLEOPATRA
NOHOYEKA
..................................................
Applicant
And
MOTOR
INDUSTRY BARGAINING COUNCIL
.........................
First
Respondent
COMMISSIONER
BULELANI BUSAKWE
..............................
Second
Respondent
GRUPO
ANTOLIN
..........................................................................
Third
Respondent
Heard:
30 January 2014
Delivered:
13 February 2015
Summary:
A piecemeal approach in determining the reasonableness of an award is
impermissible. The correct approach is to determine
the evidence
before the commissioner in its totality.
JUDGMENT
LALLIE
J:
[1]
In this application, the applicant seeks an order reviewing and
setting aside or correcting an arbitration of the second respondent
(the arbitrator) in which he found the applicant’s dismissal
substantively fair. It is opposed by the third respondent.
Factual
background
[2]
The applicant was employed by the third respondent in 2004. In 2011,
she was a Quality Inspector at the headliners department
where her
main duty was to ensure that headliners had been manufactured
properly by affixing her stamp. In addition, she had to
ensure that
the correct number of headliners was packed in containers which she
had to seal with a green sticker bearing his signature.
The
respondent received a complaint from the VW, one of its clients, that
one of the containers it received from the third respondent
contained
defective headliners. Having investigated the matter, the third
respondent preferred the following charge against the
applicant:
‘
Gross
negligence in that on 26 November 2011 you signed off a metro hatch
headliner container with more 30 parts without frames
this after you
were issued with a final written warning for the same or similar
offence.’
A
disciplinary enquiry was instituted against the applicant. It found
her guilty of the charge and dismissed her. She referred an
unfair
dismissal dispute to the first respondent where the arbitrator issued
the arbitration award which the applicant seeks this
court to review,
correct or set aside.
The arbitration
award
[3]
The arbitrator observed that the applicant was the last port of call
in that her duty involved ensuring that parts forwarded
to the third
respondent’s customers were of the required standard. The
container found at VW with defective parts bore the
applicant’s
quality label. He noted that the applicant’s explanation for
the presence of defective parts in a container
sealed with her
quality label was threefold. Firstly, there was a possibility that
Desmond, a fork lift driver, had affixed her
quality label on the
incorrect container which had defective parts. Secondly, there is no
proper system of sending and receiving
parts at Schnellecke, where
the defective headliners were discovered. When parts are checked at
VW they are sorted and put in any
container and not necessarily in
the containers they were received in. Thirdly, the defective parts
could not have been from her
container as they were not stamped. The
commissioner considered each explanation. He made a finding that the
evidence pertaining
to the first explanation was not disputed. He,
however, rejected it and found the applicant guilty of negligence
because at the
time of the incident, the applicant and other
inspectors had been informed that quality labels were for their
exclusive use. Her
conduct of giving the quality label to Desmond to
affix to the container amounted to carelessness and serious
negligence for which
she had been given warnings, including a final
written warning. The arbitrator rejected the second explanation on
the grounds that
it was not the most probable version. The arbitrator
rejected the third explanation as well on the grounds that the
applicant had
not verified that a quality label had been attached to
the correct container with parts the quality of which she had
verified.
He concluded that the applicant’s dismissal was fair
as her conduct warranted dismissal, particularly, because at the time
of the commission of the misconduct, she was on a valid final written
warning.
Grounds for
review
[4]
The applicant submitted that the arbitration award stands to be
reviewed and set aside on the grounds that the arbitrator committed
gross irregularities, gross misconduct or acted unreasonably and
unjustifiably in that he failed to attach due weight to the relevant
and material aspects of the evidence before him. He failed to resolve
factual disputes and misconstrued evidence. Having found
the
applicant guilty of negligence and not guilty as charged, he
disregarded his finding when deciding sanction. He contradicted
himself by finding that a “mix up” at Schnellecke was not
impossible but concluded that it was not the most probable
version
when there was no evidence to support his finding. The applicant
further submitted that the arbitrator misconstrued evidence
in
finding that the applicant gave Desmond her quality label when
evidence before him was that Desmond took the quality label from
the
applicant. The award is attacked also on the basis that the
arbitrator failed to apply his mind to the issue of sanction. A
further criticism levelled against the award is that the arbitrator
committed a gross irregularity for his failure to apply his
mind to
material and relevant aspects of the evidence which served before
him. Those aspects include his failure to play an inquisitorial
role
in determining the reasons for the third respondent’s failure
to call Desmond to the disciplinary enquiry or dismiss
him as his
conduct constituted gross misconduct. The omission constituted an
inconsistent application of discipline. The Commissioner’s
failure to determine whether the employment relationship had been
irreparably damaged and to consider that the third respondent
did not
suffer any potential or actual financial loss constituted, according
to the applicant, further gross misconduct. The applicant
attacked
the arbitrator for not making credibility findings in respect of
witness and failure to take into account evidence which
favoured her.
[5]
In her supplementary affidavit, the applicant added further grounds
for review in which she elaborated on some of her initial
grounds.
They include the arbitrator’s gross irregularity of accepting
evidence of the instruction issued to quality inspectors
and the
final written warning in the absence of the evidence of the authors
of those documents.
[6]
The third respondent opposed the application mainly on the grounds
that the applicant was aware of the procedures which she
should have
followed to avoid the misconduct which led to her dismissal but
elected not to follow them. As she abdicated responsibility
for the
delivery of the defective parts and imputed the fault on Desmond, she
failed to call Desmond to corroborate her version.
The applicant
conceded that the handing of bins at Schellecke which could have
created the impression that she was responsible
for the delivery of
defective parts did not involve her bins. With regard to the final
written warning, the third respondent submitted
that the arbitration
which dealt with the applicant’s dismissal was not the correct
forum for challenging the final written
warning. In addition, Du
Preez, who participated in the disciplinary enquiry in which the
final written warning was issued, testified
about how it got issued.
The third respondent denied that the sanction of dismissal was
inappropriate because the applicant committed
the misconduct which
led her dismissal only 3 days after being issued with the final
written warning. The third respondent further
submitted that the
arbitrator’s decision to reject the explanation adduced by the
applicant and the reasons thereof were
unassailable. The third
respondent denied having applied discipline inconsistently by not
taking disciplinary action against Desmond
in that the two employees
performed different functions and therefore the degree of their
accountability differed. Contrary to
the applicant’s assertion,
the arbitrator considered the evidence before him and reached a
reasonable decision.
[7]
The approach to be adopted by review court is expressed thus in
Gold
Fields Mining SA (Pty) Ltd v CCMA and Others
.
[1]
‘
A
reviewing 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 that is reasonable’.
[8]
The applicant adopted a piecemeal approach in that in her elaborate
grounds for review, she sought to rely on every actual and
perceive
mistake the arbitrator made. This approach was discouraged as being
wrong in
Bestel
v Astral Operations Ltd and Others
.
[2]
The Labour Appeal Court further criticised it in
Gold
Fields (supra)
[3]
when
it held thus:
‘
In
a review conducted under section 145 (2)(a)(c)(ii) of the LRA, the
reviewing 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 reviewing 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.’
[8]
When the evidence which served before the arbitrator is considered in
its totality, it reflects that he dealt with the principal
issue
before him, evaluated the facts presented and came to a reasonable
decision. He gave reasons for rejecting the explanation
given by the
applicant in her defence. His findings and reasons thereof were
reasonable. The applicant sought to rely on the use
of the words
“negligence” and “carelessness” in explaining
the applicant’s misconduct as opposed
to gross negligence and
submitted that they implied a diminution of the gravity of her
misconduct. A reading of the entire award
paints a different picture.
It reflects that the arbitrator did not reduce the gravity of the
misconduct which led to the applicant’s
dismissal. In
expressing the seriousness of allowing Desmond to affix the
applicant’s quality lable the arbitrator could
not understand
how the third respondent ever allowed an employee other than the
quality inspector to affix the quality label on
bins. The arbitrator
cannot be criticised for finding the dismissal appropriate when the
applicant decided to repeat the misconduct
only three days after she
had been issued with a final written warning for similar misconduct.
The applicant did not prove that
the arbitrator committed an error
which led him to reach an unreasonable decision.
[9]
The test for review is whether the decision taken by the arbitrator
is one which a reasonable decision-maker could not reach.
It is a
stringent test that will ensure that awards are not lightly
interfered with
Fidelity
Cash Management Services v Commission for Conciliation Mediation and
Arbitration and others.
[4]
I am convinced that the award the applicant seeks this court to
review falls within the band of reasonableness. This application
can,
therefore, not succeed.
[10]
In the premises, the following order is made:
10.1
The application for review is dismissed.
Lallie J
Judge of the
Labour Court of South Africa
Appearances
For
the Applicant: Mrs Van Staden of the Justice Centre
For
the Third Respondent: Ms Kok of Van Zyl Incorporate
[1]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 16.
[2]
[2011] 12 BLLR 129 (LAC).
[3]
Gold
Fields (supra)
at
para 18.
[4]
(2008)
29 ILJ 964 (LAC)