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[2017] ZALCJHB 62
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Civilcon (Pty) Ltd v Naidoo NO and Others (JR991/15) [2017] ZALCJHB 62 (6 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
Number: JR 991/15
In the
matter between:
CIVILCON
(PTY) LTD
Applicant
And
FRANK
NAIDOO N.O
First Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
MALEFANE
JACOB MOKATI
Third Respondent
Date
order: 24 May 2016
Date of
reasons: 6 February 2017
REASONS
FOR THE JUDGMENT
MOLAHLEHI
J
[1]
On 24 May 2016, this Court made
the order in terms of which the arbitration award issued by the first
respondent (‘the Commissioner’)
was reviewed, set aside
and substituted with the order to the effect that the dismissal of
the third respondent was substantively
fair. The reasons for the
order are set out in this judgment.
The
background facts
[2]
After his dismissal, the
employee referred the dispute concerning the alleged unfair dismissal
to the CCMA. The matter was, subsequent
to the failure of the
conciliation, referred to arbitration the outcome of which was that
the dismissal was unfair.
[3]
The employee who at the time of
his dismissal was a general worker was dismissed arising from the
following charges:
“
The
refusal to follow instruction given by:
Ø
Precast
Manager
Ø
Safety
Officer
Ø
Safety
Representative
Ø
Continuous
refusal to wear appropriate PPE (hardhat)
Ø
Absence
without permission and without proper communication.
Charges
as result of the above:
1)
Failure
to follow reasonable and lawful instructions.
2)
Gross
insubordination.”
The
grounds of review
[4]
The applicant contended that
the Commissioner failed to deal with the issue which was properly
before him. The key issue which the
Commissioner had to deal with
concerned the failure by the employee to wear the hard-hat at the
construction site.
[5]
The other complaint of the
applicant is that the Commissioner accepted a version of the employee
which was non-existent. The employee
did not have a version because
he closed his case without leading any evidence.
[6]
The applicant further contends
that the decision reached by the Commissioner is unreasonable because
there is no rational connection
between the undisputed evidence
properly placed before him and the decision he reached.
The
arbitration award
[7]
The Commissioner accepted that
the dismissal of the employee was procedurally fair. As concerning
substantive fairness, he found
that it was common cause that the
employee had breached the rule which he was aware of. He, however,
found the dismissal to have
been unfair.
[8]
The Commissioner then noted
that the version of the employee was that he was not dismissed for
refusing to wear the hard-hat but
for reporting the assault on him.
He also rejected the version of the applicant as, according to him,
the employee was given three
weeks leave.
[9]
In dealing with the aggravating
factors the Commissioner found that in dismissing the employee for
the previous written warnings
which had been given to him amounted to
double jeopardy and was accordingly unfair.
Evaluation
[10]
The test to apply in
considering whether to review a decision of a Commissioner is the
reasonable decision maker test enunciated
in
Sidumo
v Rustenburg Platinum Mines.
[1]
In determining whether or not the dismissal was fair the Commissioner
has to take into account the totality of the circumstances
of the
case. This entails a Commissioner taking into account the importance
of the rule which the employee is accused of contravening,
including
the reason why the employer dismissed the employee.
[2]
[11]
The other factors which the
Commissioner has to consider relate to the loss suffered as a result
of the conduct of the employee
and whether further training and
instruction could avoid a repeat of the misconduct.
[12]
It is apparent that the
employee in the present matter refused to obey the instruction
relating to compliance with a safety rule.
The rule concerned
everybody's safety including himself. He, in my view, provided no
satisfactory explanation as to why he would
not comply with the rule.
He continued to disobey the rule despite two warnings given against
him. It has also not been disputed
that the failure to comply with
the safety rule carried with it considerable risk related to the
possibility of hard objects hitting
the employee on the head. This
exposed the applicant to the risk of failing to comply with the
safety regulations.
[13]
In light of the above
discussion, I am of the view that the decision reached by the
Commissioner that the dismissal of the employee
was substantively
unfair does not comply with the reasonable decision maker test.
Accordingly, the applicant has made out the case
for the review of
the Commissioner's arbitration award. I do not, however, believe that
costs should in the circumstances of this
case be allowed to follow
the results.
Order
[14]
In the premises the following
order is made:
1.
The arbitration award made
under case number GATW 3484-15 dated 14 April 2015 is reviewed and
set aside.
2.
The arbitration award is
substituted with an order to the effect that the dismissal of the
third respondent was fair.
3.
There is no order as to costs.
____________________________
E.
Molahlehi
JUDGE
OF THE LABOUR COURT
Appearances:
For the
Applicant:
Snyman Attorneys
For the
Respondent:
No appearance
[1]
2008 (2) SA 24 (CC).
[2]
Sidumo
Paragraph 64 and 68