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[2017] ZALCJHB 111
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Nampak Products Limited t/a Nampak Glass v National Bargaining Council for the Chemical Industry and Others (JR2081/15) [2017] ZALCJHB 111 (31 March 2017)
IN
THE LABOUR COURT OF SOUTH, JOHANNESBURG
JUDGMENT
Not Reportable
Case No: JR 2081-15
In
the matter between:
NAMPAK
PRODUCTS LIMITED t/a
NAMPAK
GLASS
Applicant
and
NATIONAL
BARGAINING COUNCIL
FOR
THE CHEMICAL
INDUSTRY
First
Respondent
A
KRIEL
N.O.
Second
Respondent
THEMBA
MATHEBULA
Third
Respondent
CHEMICAL
ENERGY PAPER WOOD
AND
ALLIED WORKERS UNION
Fourth
Respondent
Heard
:
23
August 2016
Delivered:
31 March 2017
JUDGMENT
MAHOSI AJ
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act
[1]
(“LRA”)
to review and set aside the arbitration award (“the Award”)
dated 1 August 2014 issued by the second
respondent (“the
arbitrator”) under the auspices of the first respondent
(“bargaining council”), under
case number GPCHEM
185/13-14. The arbitrator found the dismissal of the third respondent
(“employee”) to be substantively
unfair. Procedural
fairness was not in dispute. The applicant further seeks an order to
stay the execution of the award pending
the finalisation of the
review application.
[2]
The applicant also seeks condonation of the late filing of its review
application. This application is unopposed.
Background
[3]
The employee was employed by the applicant from the 29
th
of March 1996. At the time of his dismissal, he was a Lehr Inspector.
A Lehr is typically a long kiln with a temperature gradient
from end
to end with which newly made glass objects are transported on a
conveyor belt. “Annealing” is typically a
heating process
whereby a compound is heated to a specific temperature and/or colour
and thereafter allowed to slowly cool down.
[4]
In terms of the employee’s job description, the role of a Lehr
Inspector is to detect bottle fault identification and
fracture
analysis to ensure that only the best quality product reaches the
customer.
Lehr
Inspector must monitor the glass products manufactured on each line
in
accordance with checklists and packaged according to instructions and
in accordance with South African Standards such as SABS
150 9001,
SABS 150 14001, SABS 2200 and HACCP.
[5] On 11 November, the
employee was notified to attend a disciplinary enquiry. The complaint
that the employee was required to
address was couched as follows:
‘
Alleged
misconduct/charges
1.
Negligence
in carrying out your duties as a Lehr Inspector (in) that on 29
October 2013, morning shift, on line 1/2, you failed
to investigate
and do follow ups as per your job description and ran the line from
06h30 to 09h25 with 5 moulds (4, 5, 22, 31 and
36) that had been
rejected on the MNR that resulted in a financial loss for the
business and loss of 23% of good ware’.
[6]
The disciplinary enquiry proceeded on the 13
th
of December
2013, and it resulted in the employee’s dismissal. The employee
did not appeal the outcome of his disciplinary
enquiry. Instead, on
18 December 2013, the union referred a dispute on behalf of the
employee concerning the alleged unfair dismissal
to the bargaining
council. The dispute was not resolved at the conciliation stage, and
a request was made for this dispute to be
arbitrated.
[7] The arbitration
hearing was conducted on 10 April 2014, followed by an inspection
in
loco
of the applicant’s factory on 18 June 2014 at the
request of the employee. Thereafter, the arbitration was held from 23
to
25 July 2014. The Second Respondent found the employee’s
dismissal to be substantively unfair and ordered the applicant to
reinstate the employee on a final written warning but with no back
pay.
Condonation
application
[8] The applicant
received a copy of the award on the 6
th
of August 2014.
The last day to launch the review application was the 17
th
of September 2014. However, it was only launched on the 27 October
2015, some 13 months late. The reason for the delay was essentially
attributed to a misunderstanding between the applicant’s former
human resource manager and the applicant’s attorney
of record
concerning a possible settlement of the matter. The applicant
submitted that it has always intended to pursue the review
application and that its failure to do so timeously was as a result
of a
bona fide
misunderstanding and not wilful default on its
part.
[9]
Although the extent of delay is substantial, the applicant’s
explanation thereof was reasonable and acceptable, and the
applicant
has good prospect of success. Therefore, I see no reason why
condonation should not be granted.
Arbitration award
[10] It was common cause
that on the morning shift of 29 October 2013, the applicant’s
Shift Manager, Mr Eugene Rossouw (“Rossouw”)
noticed that
the production line named “‘
1/2
” was losing
good quality glass product. On investigation, Rossouw discovered that
23% of the production on that line had
been lost during that shift.
Rossouw approached the employee to seek clarity on the matter, only
to discover that he was not aware
of the problem or its cause.
[11] On further
investigation, Mr Rossouw also discovered that five incorrect moulds
had been rejected by the MNR but remained running
for three hours
into that shift. This meant that the MNR was inadvertently rejecting
good glassware. The fact that this problem
occurred for three hours
during morning shift indicated that the employee was not carrying out
important checks on the Lehr and
on the IAFIS computer system that
monitors production and shows up error reports. These inspections
must be continuously done at
regular intervals on the shift. This
resulted in a loss of about five pellets of glassware, amounting to
9866 bottles that were
erroneously rejected the cost of which was R7
808.53. Mr Rossouw raised the complaint against the employee because
he had failed
to carry out the necessary regular inspections. Had he
done so, the problem could have been detected and rectified, and the
loss
would have also been averted.
[12] The employee’s
defence was that he was unable to conduct the required regular checks
because he had concentrated on bad
stacking of product and fall
overs. He claimed he had no time to check for anything else and did
not call for any additional assistance,
because “
none
”
was available. He further argued that he was surprised that no one
came to his aid, therefore implying that other personnel
were
unavailable.
[13] Under
cross-examination, the employee admitted that he knew the procedure
that he was required to follow and that he had recently
been trained
again on that procedure. He also admitted that he did not check the
IAFIS reports and that he was on a valid final
warning for the same
misconduct.
[14] In his analysis the
arbitrator found that the employee was guilty of negligence in
failing to carry out his duties as Lehr
which resulted in the
financial loss on 29 October 2013, because he had failed to carry out
the necessary regular checks. He found
that the applicant had good
and sufficient reason to discipline the employee. However, he found
the sanction of the dismissal to
be unfair because of the employee’s
lengthy service with the applicant and the applicant’s failure
to follow the concept
of corrective discipline before dismissing him.
It was for this reason that the applicant seeks to review the
arbitrator’s
award.
Grounds
for review
[15] The applicant
submits that, in arriving at his conclusion that the sanction was too
harsh and therefore unfair, the arbitrator
failed to take into
account the following relevant evidence:
(i)
The employee’s negligence in failing to perform his duties as a
Lehr Inspector
properly had resulted in the applicant suffering a
financial loss of R7 808.53;
(ii)
Rossouw had given refresher training to the employee on 24 October
2013 [some five
days before the incident on the 29 October 2013]
concerning his duties and responsibilities as a Lehr Inspector;
(iii)
The employee’s disciplinary record which included a valid final
written record for
the same offence;
(iv)
Employee’s failure to immediately report the production loss to
the shift manager,
Rossouw;
(v)
The employee’s failure to display remorse during arbitration
proceedings;
(vi)
The employee’s failure to appreciate or acknowledge his
wrongdoing during arbitration.
[16]
The applicant argued that in failing to apply his mind to the
evidence, the arbitrator arrived at a conclusion which no reasonable
decision-maker could have reached on the evidence and thereby
committed a reviewable irregularity.
Applicable Law and
Analysis
[17]
It is trite that arbitration awards are reviewable in terms of
section 145 of the LRA which provides that any party to a dispute
who
alleges a defect in any arbitration proceedings under the auspices of
the Commission may apply to the Labour Court for an order
setting
aside the arbitration award. The test for review which has been
authoritatively stated by the Constitutional Court in
Sidumo
and Another v Rusternburg Platinum Mines Ltd and Others
[2]
was reiterated in
Herholdt
v Nedbank Ltd and Congress of South African Trade Unions
[3]
as follows:
‘
[25]
In summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible
if the defect in the
proceedings falls in one of the grounds in s 145(2)(a) of the LRA.
For a defect in the conduct of the proceedings
to amount to gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must
have misconceived the nature of the enquiry
or arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
to particular fact, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable.’
[4]
[18] The applicant’s
contention is that, in finding that the sanction was too harsh and
ordering his reinstatement on a final
written warning, the arbitrator
committed gross irregularity in that he failed to apply his mind to
the evidence thereby misconceiving
the nature of the inquiry. Item 3
of the Code of good Practice: Dismissal provides guidance on how the
arbitrators should deal
with the determination of sanction and it
provides as follows:
‘
3.
Disciplinary measures short of dismissal
Disciplinary
procedures prior to dismissal
(1)
All employers should adopt disciplinary rules that establish the
standard of conduct
required of their employees. The form and content
of disciplinary rules will obviously vary according to the size and
nature of
the employer’s business. In general, a larger
business will require a more formal approach to discipline. An
employer’s
rules must create certainty and consistency in the
application of discipline. This requires that the standards of
conduct are clear
and made available to employees in a manner that is
easily understood. Some rules of standards may be so well established
and known
that it is not necessary to communicate them.
(2)
The courts have endorsed the concept of corrective or progressive
discipline. This
approach regards the purpose of discipline as a
means for employees to know and understand what standards are
required of them.
Efforts should be made to correct employees’
behaviour through a system of graduated disciplinary measures such as
counselling
and warnings.
(3)
Formal procedures do not have to be invoked every time a rule is
broken or a standard
is not met. Informal advice and correction is
the best and most effective way for an employer to deal with minor
violations of
work discipline. Repeated misconduct will warrant
warnings, which themselves may be graded according to degrees of
severity. More
serious infringements or repeated misconduct may call
for a final warning, or other action short of dismissal. Dismissal
should
be reserved for cases of serious misconduct or repeated
offences.
(4)
Generally, it is not appropriate to dismiss an employee for a first
offence, except
if the misconduct is serious and of such gravity that
it makes a continued employment relationship intolerable. Examples of
serious
misconduct, subject to the rule that each case should be
judged on its merits, are gross dishonesty or wilful damage to the
property
of the employer, wilful endangering of the safety of others,
physical assault on the employer, a fellow employee, client or
customer
and gross insubordination. Whatever the merits of the case
for dismissal might be, a dismissal will not be fair if it does not
meet the requirements of section 188.
(5)
When deciding whether or not to impose the penalty of dismissal, the
employer should
in addition to the gravity of the misconduct consider
factors such as the employee’s circumstances (including length
of service,
previous disciplinary record and personal circumstances,
the nature of the job and the circumstances of the infringement
itself.
(6)
The employer should apply the penalty of dismissal consistently with
the way in which
it has been applied to the same and other employees
in the past, and consistently as between two or more employees who
participate
in the misconduct under consideration.’
[19]
Thus, in determining the appropriateness of the sanction the
arbitrator must enquire into the gravity of the contravention
of the
disciplinary rule; the consistency of application of the disciplinary
rule and sanction; and the mitigating and aggravating
factors. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[5]
the Constitutional Court held that:
‘
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
.’
[6]
[20]
In this case, the basis of the arbitrator’s finding that the
sanction of dismissal was harsh was the incorrect factual
finding
that the applicant failed to apply progressive discipline.
Evidence
on record does not support this
finding
.
The employee’s disciplinary record was part of the bundle of
documents which was submitted to the arbitration by the applicant.
The employee further testified under cross-examination that he was
issued a final written warning. It was therefore not disputed
that
the employee was issued with two written warning and a final written
warning prior to his dismissal. The arbitrator failed
to take into
consideration the evidence of the employee disciplinary record and
that he was on a valid final warning prior to his
dismissal.
[21]
In determining whether the sanction imposed by the employer is fair,
the arbitrator is required to take into account the totality
of
circumstances.
[7]
The reading of
the award reveals that the arbitrator also put more emphasis on the
employee’s length of service. He failed
to appreciate the
nature and the importance of the rule breached, the consistency of
application of the disciplinary rule and sanction;
and the mitigating
and aggravating factors. The applicant led relevant evidence that the
employee’s negligent conduct resulted
in the applicant’s
financial loss; he was recently trained on his duties and
responsibilities as a Lehr; he failed to report
the incident
immediately; and he failed to display remorse, to appreciate or to
acknowledge his wrongdoing at the arbitration proceedings.
The
commissioner did not take these factors into consideration before
arriving at the finding that the sanction of the dismissal
was too
harsh.
[22]
For
the abovementioned reasons, I am of the view that the arbitrator’s
decision is not one that a reasonable decision-maker
could, on
material on record, arrive at. The arbitrator’s award falls to
be reviewed and set aside.
With regard to costs, I am of the
opinion that the requirements of law and fairness dictate that there
should be no order as to
costs.
[23] In the premises, I
make the following order:
a)
The arbitration award dated 1 August 2014 issued by the second
respondent under the
auspices of the first respondent under case
number GPCHEM 185/13-14 is
reviewed and set
aside
and replaced with the following order:
The
employee’s dismissal was substantively fair.
b)
There is no order as to costs.
_____________
Mahosi
AJ
APPEARANCES:
FOR THE APPLICANT:
Adv. Van As
Instructed
by Cliffe Dekker Hofmeyer Inc.
FOR
THE THIRD AND FOURTH RESPONDENTS:
[1]
Act 66 of 1995
[2]
2007 (28) ILJ 2405 (CC).
[3]
2013 (6) SA 224
(SCA);
2013 (11) BLLR
1074
(SCA); 2013(34) ILJ 2795(SCA).
[4]
At para 25.
[5]
[2007] 12 BLLR 1097 (CC).
[6]
At para 78.
[7]
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC).