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[2017] ZALCJHB 268
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Kellogg Company South Africa Proprietary Limited v Food and Allied Workers Union obo Khumalo and Others (JR1671/16) [2017] ZALCJHB 268 (6 July 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
CASE
No: JR 1671/16
In
the matter between:
KELLOGG
COMPANY SOUTH AFRICA
PROPRIETARY
LIMITED
Applicant
and
FOOD
AND ALLIED WORKERS UNION
obo
LUCKY
KHUMALO
First
Respondent
COMMISSIONER
LUCKY DERRICK MAHLANGU N.O
Second
Respondent
COMMISSION
FOR CONCILATION,
MEDIATION
AND
ARBITRATION
Third
Respondent
Heard:
06 June 2017
Delivered:
06 July 2017
Summary:
Review application – test for review restated – review
application
dismissed.
REASONS FOR THE ORDER
MABASO
AJ
[These
are the reasons for the order issued by this court on 06 June
2017.]
Introduction
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent, under the third respondent’s
case number GAEK 1584/16; and to substitute it with an order
that the dismissal of the employee was substantively fair;
alternatively,
to refer the dismissal dispute back to the third
respondent for the determination
de novo
before a different Commissioner.
None of the
respondents delivered opposing papers herein.
[2]
The applicant is Kellogg Company South Africa Proprietary Limited
(“the applicant), the first respondent is Food and Allied
Workers Union (the Union), a registered trade union which is cited in
these proceedings in terms of section 200 of the Labour Relations
Act,
[1]
acting on behalf of the
Lucky Khumalo (“the employee”), the second respondent is
Commissioner Lucky Derrick Mahlangu
(“the Commissioner”)
and the third respondent is the Commission for Conciliation,
Mediation and Arbitration (“the
CCMA”).
Relevant
Background
[3]
The employee worked for the applicant from 21 December 2004 until on
18 January 2016. He was dismissed after pleading
gulity to
a charge of misconduct, the rule breached reads as follows:
“
Any unsafe act where the
employee demonstrates a reckless disregard for themselves or their
co-workers Safety – Ex:, Any act
or action that recklessly or
intentionally puts another employee in danger of physical injury
”.
Despite,
the guilty plea the applicant proceeded to dismiss him. The
charge emanated from a horseplay performed by the
employee to one Ms Grace Sekiti (Ms Sekiti), an employee employed by
a temporal
employment services provider.
[4]
Following
the
dismissal, he declared an unfair dismissal dispute to the CCMA, which
appointed the Commissioner to arbitrate it after the unsuccessful
conciliation. Before the Commissioner, the employee did not challenge
the guilty finding. However, he was of the view that the
sanction
which was meted out against him was too harsh
.
[2]
This was stated by the employee’s representative during opening
statement. The Commissioner was only required to decide on
the
appropriateness of the sanction.
[3]
After hearing the evidence by both parties, as stated below, he made
an order that the dismissal of the employee was procedurally
fair but
substantively unfair, as according to him, the sanction of dismissal
was too harsh.
[5]
The Commissioner ordered the employer to reinstate the employee to
the same position that he held at the time of the dismissal,
on the
same terms and conditions that existed prior to the dismissal. There
were further two conditions to this order of reinstatement,
namely
that the employee should not be entitled to back pay and must also be
given a final written warning. The reinstatement was
to take place on
1 August 2016.
Grounds
of review
[6]
Aggrieved by this outcome, the employer launched this review
application. The grounds thereof have been summarised below.
6.1 That the Commissioner
committed gross irregularity in that he misconceived the nature of
the enquiry before him, by asking himself
the question as to “
whether
dismissal sanction was too harsh”
[4]
;
6.2 that he “
committed
misconduct in relation to his duties as an arbitrator
”
in that he misconstrued the evidence and that the finding was not
supported by evidence that was properly presented before
him, for
example, when he concluded that the employee suffered financial loss
since his dismissal, therefore, according to the
employer this is a
sign of misconstruing the evidence and relying on the factors that
were “
not
relevant at the time that the sanction of dismissal was imposed”
;
[5]
and
6.3 that the arbitrator
should have confirmed the dismissal as the evidence presented
justified the dismissal.
[6]
The
evidence before the arbitrator
[7]
In summary, during opening statements, the employee indicated that he
was challenging the fairness of a dismissal, as he and
Ms Sekiti were
involved in the horseplay. The required outcome was one of
reinstatement. The first witness for the employer was
Sipho Malombo
(Mr Malombo), who testified that he was the initiator of the
disciplinary hearing. He explained that the reason for
the employee
to be called before a disciplinary hearing, instead of counselling,
was that he had attended training where he was
skilled on safety, and
steps to be taken to avert a previous similar incident of safety
violation.
[8]
The second witness for the employer was Ms Sekiti who stated that: on
20 August 2015 she was on her way from the plant
to the
canteen, before reaching the canteen she met the employee who was
walking from the opposite direction. When she walked past
the
employee, the latter suddenly turned and grabbed her from behind and
moved her around, she asked the employee to stop what
he was doing
but the employee did not immediately heed to this call. She became
light-headed. She regained her consciousness when
she was in the
clinic and “
did not know what happened
when [she] stood up from the ground, [she] fell”
.
During cross examination, this witness confirmed that she was not
angry with the employee, and that both the employee and her
would
sometime play with each other.
[9]
The applicant did not dispute what happened, he added that he acted
the way he did because he was happy to see his colleage,
Ms Sekiti,
who had not been at work for two days due to “
having
a problem of a headache”
. In
mitigation, it was confirmed that he worked for the employer for the
period of 10 years and 6 months , and had no intention
to harm her.
[10]
In the circumstances, the arbitrator found that the dismissal of the
employee was substantively unfair, as the dismissal was
too harsh.
Principles
and Application thereof
[11]
For a Court to review and set aside an arbitration award, an
applicant has to show that a Commissioner committed reviewable
irregularity. Where he alleges an error of fact or law he has to show
that such error prevented a fair trial of issues. A wrong
conclusion
on law or facts, by an arbitrator, does not necessarily always lead
to a conclusion that there has not been a fair trial
of issues. The
reviewing Court has to look at “
all
the material”
properly
placed before such Commissioner.
[7]
[12]
In 1906, the then Eastern District Court was called upon to decide on
an error of law and its consequences, in the matter of
Rex
v Sidumo
and
others
[8]
held that:
“
now this is clearly in any
irregularity and may cause the setting aside of the conviction and
sentence… However, provides
a very sensible principle to the
effect that, where the court is satisfied no substantial wrong was
done to the prisoners by the
irregularity, the conviction shall not
be set aside.”
[9]
[13]
In respect of duties of Commissioners, once it has been found that an
employee, claiming unfair dismissal, has committed misconduct
that he
was dismissed for, Commissioners are duty-bound to decide the
appropriateness of the sanction thereof. Where a Commissioner
fails
to decide on this, whereby he had been called to decide, no doubt
such a Commissioner would have committed an error of law
which would
have prevented such an employee to have a fair trial of issues. The
Constitutional Court in the matter of
Sidumo
& another v Rustenburg Platinum Mines Ltd & Others
[10]
held as follows:
“
In the respect of the
absence of dishonesty, the Labour Appeal Court found that the
Commissioner’s statement in this regard
“baffling”.
In my view, the Commissioner cannot be faulted for considering the
absence of dishonesty a relevant fact
in relation to the misconduct.
However, the Commissioner was wrong to conclude that relationship of
trust may have not been breached.
Mr Sidumo was employed to protect
the mine valuable property which he did not do.
However,
this is not the end of the enquiry. It is still necessary to weigh
all the relevant factors together in light of the seriousness
of the
breach.
”
“
The absence of dishonesty
is a significant factor in favour of the application of progressive
discipline rather than dismissal
.
[11]
(Own emphasis)
[14]
In the matter of
Royal
Canin
[12]
this
Court, among other things, confirmed the test that Commissioners are
required to observe in deciding dismissal matters. It
held that “
it
was a duty of the [Commissioner] to determine whether punishment
imposed by the [employer] is harsh or not”
.
I, therefore, conclude that the Commissioner understood what he was
required to decide, when he held that the test is one of determining
the harshness of sanction, taking into account the principle above.
[15]
In applying this principle, in this matter, the fact that the
employee admitted that he was guilty, a reasonable decision maker
was
correct in taking into account that the employee had no intention to
cause the harm to Ms Sekiti, and the Commissioner’s
approach in
this regard was in line with the principle of “…
approaching
the dismissal dispute impartiality, the Commissioner will take into
account the totality of the circumstances,…
She must take into
account the basis of the employee's challenge to the dismissal. His
or her long service record
and
other related mitigating and aggravating factors
”,
[13]
presented before him.
[16]
If my conclusion is wrong, and the
Royal Canin
judgment was wrongly decided, I still believe that the Commissioner
did decide what he was required to decide, and this is also
confirmed
by the applicant in its affidavit as it states that— “
it
is clear from the contents of paragraph 19 of the award that the
Commissioner made the critical finding regarding the appropriateness
of the sanction that was imposed by the applicant”
– the applicant in paragraph 33.3 of the affidavit confirms
that the Commissioner did make a finding in respect of
the appropriateness of the sanction that was imposed on the employee,
and
further stated that the Commissioner decided that the trust
relationship between the applicant and the employee has not broken
down. Therefore, the Commissioner did apply her mind to the issues
before her.
[17]
The applicant is also challenging the Commissioner’s finding
that the conduct did not break the trust relationship and
it can be
corrected. One has to look at the totality of evidence that was
presented before the Commissioner, to determine as to
whether the
dismissal was an appropriate sanction or not. As I have stated above,
in paragraps 13 and 15 , the test is not only
about the trust
relationship as there are other factors that have to be looked at.
For example, the manner in which this misconduct
took place, and what
could justify corrective measures as compared to dismissal, in favour
of the employee. The employee worked
for employer for the period of
more than 10 years, the offence was not intentional. The employee was
happy to see his colleage
who had been off sick due to “having
a problem of a headache”.
[18]
The Commissioner, based on the circumstances and facts of this
matter, in making an order that the reinstatement should not
be with
back-pay, as the employee had suffered a financial loss since the
dismissal, alone cannot be a ground that one can conclude
that the
award is one that a reasonable decisison maker could not have made.
[19]
It is my view that the Commissioner did apply his mind to all the
evidence that was properly presented before him. Therefore,
I opine
that the Commissioner’s conclusion is in line with what the
Constitutional Court, inter alia, said in Sidumo supra,
in that—
“in deciding how commissioners should approach the task of
determining the fairness of the of dismissal, it
is important to bear
in mind that security of employment is a core value of the
Constitution which has been giving the effect by
the LRA”
.Under the circumstances, I conclude that the review application
should fail as the records justified the outcome
of the Commissioner,
meaning the arbitration award is one that a reasonable decision-maker
could have made. .
Order
[20]
In the circumstances, I make the following order:
1
The
review application is dismissed.
2
No
order as to costs.
_______________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicants: F Maleen
Instructed
by: Edward Nathan Sonnenbergs Inc.
For
the Respondent: No appearance
Instructed
by:
[1]
66 of 1995, as amended. (the Act)
[2]
Records: page 80, line 22-23.
[3]
Paginated index: page 27.
[4]
Paginated index: pages 15 ,16 and 19.
[5]
Paginated index: page17
[6]
Paginated index: page 17.
[7]
Herholdt v Nedbank Ltd (COSATU as amicus curiae)
[2013] 11 BLLR 1074
(SCA), at para 25.
[8]
(1906) 20 EDC 39.
[9]
Id at 40. See also
Metrotoy
(Pty) t/a John Graig v Ntsumale NO and others
[2010] ZALC 251(17 November 2010)
, at para 31: A mistake of fact or
law could also constitute an irregularity. It is however not every
mistake that would lead
to the conclusion that the complaining party
has been denied a fair hearing and accordingly justifying
interference by the court.
For
a mistake of fact or law to constitute gross irregularity, it has to
be shown that the mistake is so material as to amount
to the denial
of a fair hearing or failure to deal with the issues raised by the
dispute
.(Own
emphasis).
[10]
[2007] 12 BLLR 1097 (CC).
[11]
Id at paras 116. See also para 117.
[12]
Royal Canin SA (Pty) Ltd v
Mbileni NO & others
[2010] JOL 26100 (LC).
[13]
Sidumo supra
,
at para 78.