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[2015] ZALCPE 34
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PE Golf Club v Commissioner for Conciliation, Mediation and Arbitration and Others (PR98/2013) [2015] ZALCPE 34 (14 May 2015)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Judgment
Case
No: PR 98/2013
DATE:
14 MAY 2015
Of
interest to other judges
In the matter
between:
PE GOLF
CLUB
.................................................................................................................
APPLICANT
And
THE COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
...........................................................................
First
respondent
KLAAS TITUS
NO
.......................................................................................
SECOND
RESPONDENT
VUYISILE
KIBI
...............................................................................................
THIRD
RESPONDENT
FRED SAULS
NO
.........................................................................................
FOURTH
RESPONDENT
Heard
:
7 MAY 2015
Delivered
:
14 MAY 2015
Summary:
(Review – Reasonableness –
arbitrator ignoring gravamen of the charge and basing decision on
narrowest interpretation
of charge – unreasonable in the
circumstances – Irregularity in not postponing the proceedings
not affecting the outcome
of the arbitration – Award set aside)
JUDGMENT
R
LAGRANGE, J
[1] This is an
application to review and set aside an arbitration award, in which
the arbitrator held that the third respondent’s
dismissal was
unfair.
[2] The third
respondent in this matter, Mr V Kibi, was employed as a machine
operator
by the applicant, a golf club. He
commenced working with the club in July 1989 and was dismissed on 8
March 2013 for failing to
comply with a lawful instruction “…
in
that on or about 22 February 2013, you were instructed to check the
radiator for cleanliness, which you failed to do”.
Kibi’s
responsibility was cutting the grass and he was also responsible for
cleaning the grass cutter machine and the radiator
after using it
daily. Cleaning the radiator was one of the tasks contained in a
check sheet which employees had to tick to signify
that they had
washed the machine and clean the radiator. The check sheet was
explained twice to employees in the year preceding
the Kibi’s
dismissal, using an interpreter.
[3] On 21
February 2013 a random check was conducted of the grass cutting
machines and it was discovered that Kibi’s machine
had not been
cleaned, despite him ticking the relevant box on the tick sheet
indicating that this had been done. A photograph was
taken of the
machine by the workshop foreman Mr, W Wagner (‘Wagner’)
on the instruction of the Course Superintendent,
Mr P Moolman
(‘Moolman’) before it was used the next day. Wagner
testified that it still had not been cleaned
after it had been used
and returned to the parking bay the next day. Wagner asked Kibi if he
cleaned the radiator and he said he
had. When he was confronted with
the state of the machine on 22 February and the photograph of the
machine from the previous day,
Kibi did not respond according to
Wagner.
[4] The
workshop’s assistant mechanic, Mr V Mange (‘Mange’)
was more equivocal whether it had been cleaned when
Kibi was
confronted the next day. He said he could see that Kibi had ‘washed’
the machine because it was wet. Nevertheless,
he also testified that
when the cover was taken off the machine there was grass visible in
the radiator, though “not much.”
Mange also testified
that Kibi had brought his machine to the workshop from in front of
the workshop area which was a cleaning
area very close by. Between
that cleaning are and the workshop there was no grass, whereas the
other cleaning area known as ‘Graham’
was about 20 to 30
metres away from the workshop and separated by grass.
[5] According to
Wagner, it was the applicant’s case that the check sheet served
as a standing instruction for all employees
to comply with. In May
2012, Kibi had been issued with a final written warning for not
complying with a lawful instruction, which
was still valid at the
time of his dismissal. He had also been suspended for a week from 14
to 18 January 2013, as an alternative
to dismissal, for failing to
comply with a lawful instruction. Mange testified that the purpose of
the check sheet was to ensure
that it was followed to prevent damages
to the machines. Kibi’s explanation for the dirt being on the
radiator at the time
he was confronted was that it could have
accumulated when he took the machine after cleaning it from the
washing bay to the store,
a distance of approximately 30 m. Kibi
denied both that he had not followed the checklist and there was no
such lawful instruction
from the employer he had failed to comply
with.
[6] The
arbitrator’s interpretation of these events was essentially
that he appeared to accept, without making an unequivocal
finding,
that Kibi had not cleaned the radiator. However, he reasoned that
there was no evidence that it was discovered that the
radiator had
not been cleaned, Kibi had been issued with a direct instruction to
clean it. Consequently, the arbitrator was satisfied
that the
applicant had failed to prove that it had issued Kibi with a lawful
instruction in the first place. He found him guilty
of a lesser
charge of negligence in the performing of his duties. The arbitrator
summed up his reasoning thus:
“
The
check sheet is part of [Kibi’s] duties and a failure to
discharge his duties, amounts to negligence and not a refusal
to obey
a lawful instruction. There was no instruction given in this case.”
[7]
The language of the review application is
framed in terms of latent and patents irregularities allegedly
committed by the arbitrator.
[8]
The patent irregularity complained of is
that the matter had been set down for hearing from 09H00 to 13H00 on
the day in question.
The employer intended to call Moolman who was
not available on that date because he was on leave. The applicant
advised the arbitrator
after he had dismissed the application for
postponement that it had not closed its case. Mr Moolman was a
critical witness in the
view of the applicant because he had
witnessed the state of the applicant’s machine on the first
occasion and instructed
the foreman to take a photo of the machine.
He had also witnessed the checklist that Kibi had ticked indicating
that the machine
had been cleaned.
[9] At the
conclusion of the evidence of Mange, the applicant had applied for a
postponement on the basis that the allocated time
set down for the
arbitration process had expired. The application was opposed by Kibi
and the arbitrator made an
ex tempore
ruling refusing the
postponement. He noted in his award:
“
The
respondent did not provide any compelling reasons why they should
could not remain part of the process should the proceedings
continue.”
[10]
From the transcript it appears that the
applicant had unsuccessfully sought to have the hearing postponed
because of the unavailability
of Moolman on the date of set down.
This application was refused and is not the subject matter of this
review. In an effort to
revive the failed postponement application,
the applicant asked the arbitrator to postpone the matter, as it had
gone beyond the
time allocated by the CCMA on that day. Had the
matter been postponed, then the applicant could have led Moolman. The
only evidence
that Moolman might have given directly bearing on the
case would have been about the standing instructions and, perhaps
more importantly,
to confirm that he had seen the machine had not
been cleaned on 21 February and had instructed Wagner to take a photo
of the grass
in the radiator. It is not clear that this would have
added much to the testimony already before the arbitrator, though to
the
extent that Kibi tried to suggest the photo might have been taken
of another machine, he could have testified on that.
[11]
I agree that the Commissioner committed
misconduct in the course of his duties by not granting the applicant
a postponement to call
a material witness to corroborate Kibi’s
failure to clean his machine on the day prior to that on which he was
confronted
contrary to what he represented on the checklist. However,
in this instance, the arbitrator was satisfied that the machine had
not been cleaned on that occasion and his failure to permit the
applicant to call Moolman as a witness, ought not have altered his
findings on that issue. For that reason alone, there would be no
point in setting the arbitration award aside.
[12]
The essence of the applicant’s attack
on the arbitrator’s award firstly concerns the arbitrator’s
failure to consider:
its
modus operandi
relating to written instructions; the fact that the checklist was
explained to all employees in two sessions, and the previous
warnings
the employee had received for similar offences. Secondly, the
arbitrator adopted an artificially narrow approach in deciding
that
the standing written instructions encapsulated in the checklist as
explained in the sessions with employees, did not amount
to an
instruction issued to Kibi, because it was not a direct verbal
instruction. Lastly, in the light of Kibi’s disciplinary
record, the arbitrator could not reasonably have believed that
dismissal was inappropriate.
[13]
There
is a close connection between the first and second grounds of alleged
latent irregularity. Since the judgments in
Herholdt
[1]
and
Kloof
Mine
[2]
,
the central question is not how the arbitrator reasoned but whether
the arbitrator’s conclusions are ones that no reasonable
arbitrator could have arrived at on the evidence before her. It is by
this standard that the applicant’s claim of latent
irregularities must be evaluated. However, the arbitrator’s
reasoning may provide a clue to whether or not the outcome was
unreasonable. In other words this means the simple question is
whether the arbitrator unreasonably concluded that no instruction
had
been issued to Kibi. If that conclusion was unreasonable, it must be
set aside.
[14]
At the outset of the arbitration, Kibi’s
representative made it clear that his defence was that firstly no
instruction had
been issued to him on the 22 February 2013 and that
secondly there was no instruction he did not comply with. During the
course
of the evidence it became clear that the applicant’s
version was that it was not necessary to tell every machine operator
each day to clean the radiator. It was part of the instructions
contained in the check sheet which required the operator to confirm
that the machine had been cleaned. It is also clear from the
transcript that Kibi did not dispute that this was the standard
procedure,
and his representative confirmed during the hearing that
they were not challenging the existence of the standing instructions.
It is apparent that the main thrust of Kibi’s defence was
to deny that he had failed to clean his machine and to suggest
that
Wagner was trying to set him up for dismissal. In closing argument,
Kibi did not advance the defence that there was no instruction
to
clean the radiator, but focussed on arguing that the employer had not
proven he had failed to do so.
[15]
Instead of focussing on this defence, the
arbitrator adopted an approach which disregarded the standing
instructions, which were
common cause, and considered the matter from
the perspective of the narrowest reading of the charge, even though
this defence had
not been pressed by Kibi. By so doing, the
arbitrator essentially argued the case for Kibi on a different basis
from the defence
he had chosen himself, despite it being common cause
that he was expected to clean the machine as part of his duties and
despite
the uncontested evidence that the importance of completing
the tasks on the checklist had been impressed on the machine
operators.
The arbitrator nevertheless concluded that Kibi was guilty
of neglect in the performance of his duties, whereas it had never
been
part of his defence that he had forgotten to clean the radiator.
His defence was premised on a claim that he had ticked the checklist
because he had complied with it, including the task of cleaning the
radiator.
[16]
There was also undisputed evidence that the
last occasion when Kibi had been disciplined and suspended was for
failing to complete
the check sheet for three days in a row. That was
less than a month before he was charged with the misconduct that led
to his dismissal.
[17]
In these circumstances, the arbitrator
adopted an exceptionally narrow interpretation of whether the
applicant had failed to comply
with an instruction. The absence of a
further oral instruction issued on or about 22 February did not
logically mean that Kibi
was not already under clear instructions to
clean the radiator. The arbitrator correctly identified that he
needed to determine
if the applicant had breached a reasonable rule.
The substance of the rule broken on this occasion was a standing
order to clean
the machine and in particular the radiator, and not
only if an oral instruction was issued. Moreover, the
importance of compliance
with the tasks on the checklist was very
well known to Kibi and it was not part of his defence that he was
unaware of those requirements.
Although the ambit of the charge
referred to an instruction issued on the day in question, when the
nature of the standing instruction
was explained at the outset of the
arbitration as the basis for arguing that an instruction had been
issued, no objection was raised
in principle that the charge could
only refer to an instruction issued on the day on which it was not
complied with. Neither was
an objection raised that it was not
competent within the scope of the charge to consider the standing
instruction as the one that
was disobeyed, nor was this proposition
put to the applicant’s witnesses in cross-examination.
[18]
Consequently, I am satisfied that the
arbitrator’s conception of the charge and the misconduct was
artificially and unreasonably
narrow, which led him to misdirect
himself about the nature of the misconduct at hand. No reasonable
arbitrator could have held
that Kibi had failed to comply with
instructions about cleaning the machine. I note also, that although
he says so indirectly,
it is clear the arbitrator was satisfied that
Kibi had not cleaned the radiator. Otherwise the arbitrator could not
have found
he was guilty of neglecting his duties.
[19]
Because the arbitrator’s finding on
the charge must be set aside and reversed, the issue of an
appropriate sanction arises
for consideration. When considering the
gravity of the misconduct, it is difficult to ignore the fact that
barely a month before,
Kibi had agreed to unpaid suspension, as an
alternative to dismissal, for not completing the checklist to
indicate his compliance
with the standing instructions. His actions a
month later show that he did not attach any significance to
completing the tasks
of the checklist or whether he accurately
recorded what he had done. It is true that Kibi had considerable
service with the applicant,
which militates against severe
disciplinary action. On the other hand, it is difficult to see on
what basis, there was a prospect
that further progress of discipline
would have a corrective impact on Kibi’s behaviour in the light
of the fact that he was
already under a final written warning for
failing to comply with instructions from the previous year and
especially in the light
of the most severe warning that he was
placing his employment in jeopardy when he accepted suspension
without pay only as an alternative
to dismissal in respect of
misconduct intimately related to the reason he was ultimately
dismissed. In addition to this there was
the final written warning
for similar misconduct that was still valid at the time of his
dismissal. In the circumstances, the sanction
of dismissal was an
appropriate one.
[20]
It was suggested that Wagner might have had
something against Kibi. There was some evidence that relations
between them were not
good, but it was pointed out that Wagner could
have dismissed Kibi on the previous occasion when Kibi was suspended
if his aim
was to drive Kibi out. It appears that the
difficulties they had stemmed in no small degree from Kibi’s
feeling that
he did not need to be told how to do his job after such
long service.
Order
[21]
The finding of the second respondent in his
arbitration award dated 11 July 2013 issued under case number ECPE
1190-13 that the
third respondent was substantively unfair is
reviewed and set aside.
[22]
The finding of the second respondent is
substituted with a finding that the third respondent was guilty of
failing to comply with
an instruction to clean the radiator of his
mowing machine and that his dismissal was fair.
[23]
No order is made as to costs.
R
LAGRANGE, J
Judge
of the Labour Court
Appearances
For
the applicant: C Unwin of C Unwin Attorneys
For
the third respondent: M L Poni of SACCAWU
[1]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013) 34
ILJ
2795 (SCA)
[2]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
(2014) 35
ILJ
943 (LAC)