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[2018] ZALCJHB 66
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Nkunzi Pharmaceuticals (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others (JR818/17) [2018] ZALCJHB 66 (15 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
no: JR 818/17
In
the matter between:
NKUNZI
PHARMACEUTICALS (PTY) LTD
Applicant
And
THE
NATIONAL BARGAINING COUNCIL FOR THE CHEMICAL INDUSTRY
COMMISSIONER
DIALE NTSOANE N.O.
GIWUSA
obo BARBARA RAMASEDI
First
Respondent
Second
Respondent
Third
Respondent
Heard
: 06 February 2018
Delivered
: 15 February 2018
Summary:
Review of arbitration award in terms of s145 of
Labour Relations Act,
66 of 1995
– Whether decision that dismissal not appropriate as
sanction could not reasonably be reached on available evidence
decided
as main question - Whether evidence existed to justify award
of demotion in the place and stead of dismissal decided as ancillary
question – Both questions decided in the negative –
Non-existence of demotion post contemplated by award raised only
on
review – Award set aside and matter remitted for hearing
de
novo.
JUDGMENT
LEKALE,
AJ
BACKGROUND
& INTRODUCTION
[1]
Ms Barbara Ramasedi, a union member and the third respondent
in the instant matter, was employed by the applicant as a packer from
July 2006 until 20 September 2016 when she was dismissed following a
disciplinary enquiry into allegations of,
inter alia
, gross
misconduct relating to failure to check and ensure that information
on medication and expiry dates correspond levelled against
her.
[2]
The union member, who was represented by her trade union, felt
aggrieved by the dismissal and referred the dispute to the first
respondent for resolution. When the matter remained unresolved after
an unsuccessful attempt at conciliation the dispute was referred
to
arbitration at the request of the third respondent. The matter
eventually served before the second respondent in his capacity
as the
arbitrating panellist of the first respondent.
[3]
The second respondent eventually issued an award on 17 March 2017 in
terms of which he found that dismissal was not appropriate
as a
sanction and awarded the union member re-employment “
in a
position lower than the one she occupied prior to her dismissal
.”
[4]
The applicant employer takes issue with the award and now approaches
the court in terms of section 145 of the Labour Relations
Act No. 66
of 1995 (“the LRA”) for an order setting aside and
replacing the award in question.
[5]
The third respondent filed opposing papers outside the time limited
by the court rules for such a purpose and applied unsuccessfully
for
condonation of the delay involved. The matter, thus, effectively
proceeded before me on 6 February 2018 on an unopposed basis
in the
absence of the third respondent although the union was notified of
the date of the hearing by the office of the Registrar
of this court
on 23 January 2018.
ISSUE
FOR DETERMINATION
[6]
The parties are at variance on whether or not the impugned award is
reviewable on the grounds that the same could not reasonably
be
arrived at on the material properly before the second respondent with
specific reference to the finding that dismissal is not
appropriate
as a sanction and a demotion awarded in its place and stead.
[7]
In the event of the aforegoing question being decided in the
affirmative, I am requested by the applicant employer to set the
award aside and to substitute the same with an order declaring the
dismissal to be substantively fair. I am, further, requested
to
saddle the first and second respondents with costs on the basis that
the latter ignored the evidence properly before him and
assumed,
without any factual basis whatsoever, that it was possible to demote
the union member to a position lower than the one
she occupied before
dismissal.
DEPOSITIONS
AND CONTENTIONS FOR THE APPLICANT
[8]
The applicant’s chief executive officer (“the CEO”)
deposes,
inter alia
, to the effect that the union member
pleaded guilty to serious misconduct relating to mislabelling of
heart medication with potential
fatal consequences had the product
left the applicant’s premises.
[9]
He, further, points out that the costs of damages were around R
950 000.00 (nine hundred and fifty thousand rand). The
second
respondent found no fault with the conviction but failed to find that
the dismissal was an appropriate sanction. In his
view, the second
respondent misconducted himself and committed a gross irregularity in
that he,
inter alia
, did not properly apply his mind to the
evidence before him and exceeded his powers in making the relevant
award.
[10]
He, further, feels that the first and second respondents should be
saddled with costs because the latter deliberately ignored
relevant
evidence as well as the fact of the absence of evidence regarding
whether or not it would be possible to demote the union
member to
some unknown lesser position. The second respondent, in his opinion,
unjustifiably interfered with the internal workings
of the applicant
and without any authority sought to change the applicant’s
organisational structure.
[11]
In argument on papers and before the court Ms Duvenage submits for
and on behalf of the applicant,
inter alia
, to the effect that
it was impossible for the applicant to comply with section 145(7)
read with section 145(8) of the LRA by furnishing
security because no
position lower than the one the union member occupied at the relevant
time exists and, as such, the amount
of security could not be
determined.
[12]
In the view of the applicant’s attorney it is simply
incompetent and impossible to enforce and comply with the award
as no
position contemplated by the same exists. The second respondent,
further, based his finding of unfair dismissal on inconsistent
application of discipline and, therefore, ignores the evidence
properly before him clearly indicating that the applicant
was
not guilty of any contemporaneous inconsistency in that the union
member faced disciplinary charge which differed from that
which her
colleague, who also pleaded guilty, faced and was convicted on.
[13]
On costs Ms Duvenage painstakingly submits,
inter alia
, to the
effect that the second respondent was biased in favour of the union
member and acted maliciously to the unjustified detriment
of the
applicant. That the second respondent committed a gross dereliction
of duties vested in him by section 138 of the LRA. In
her view the
applicant suffered severe prejudice in having to bring the instance
application regard being had,
inter alia
, to the costs
associated therewith. The first and second respondents should,
therefore, carry the costs in line with case law
in pari materia
.
APPLICABLE
LEGAL POSITION
[14]
In the instant application the
test is whether or not the impugned decision was one that a
reasonable decision- maker in the position
of the second respondent
could not have reached on available evidence.
[1]
[15]
The parity principle is applied
with caution by the courts and does not apply rigidly and
unreasonably for sanction
purposes where there are sound reasons for
distinguishing between employees guilty of same or similar
infractions such as different
sets of personal circumstances. Each
case is decided on its own facts and circumstances regard being had
to the requirement for
individualisation of sanction and/or
punishment in our law.
[2]
[16]
It is possible to order
reinstatement or re-employment in a reasonably suitable work other
than the position in which the aggrieved
employee was employed prior
to dismissal on any terms.
[3]
[17]
Anyone considering the
substantive or procedural fairness of the dismissal is obliged to
take into account any relevant code of
good practice issued in terms
of the LRA.
[4]
[18]
Reinstatement or re-employment
is not a primary or compulsory relief on the part of the Labour Court
or the arbitrator where the
circumstances surrounding the dismissal
are such that continued employment relationship would be intolerable
to the parties.
[5]
[19]
As a general rule a costs order
is not competent and appropriate against a judicial officer
exercising his or her judicial or quasi-judicial
functions where
he/or she made a judgment that is wrong or incorrect on the facts
and/or in law unless such officer acted in bad
faith.
[6]
APPLICATION
OF LEGAL POSITON AND FINDINGS
[20]
A perusal of the impugned award reveals that the second respondent,
in fact, did not base his decision as to the appropriateness
or
otherwise of dismissal as a sanction on alleged inconsistency insofar
as he effectively and correctly found that “[
e]ach case must
be treated according to its own merits. If the merits dictate that
dismissal will be appropriate sanction, it should
just be imposed.
”
He, in fact, found that the applicant took disciplinary action
against the union member’s fellow co-employee but found
that
his personal circumstances called for a different sanction.
[21]
It appears, in my view, that in our jurisprudence parity principle as
expressed in the requirement for consistent application
of discipline
applies rigidly only to the taking of disciplinary action against all
employees suspected of breach of same or similar
disciplinary rules
and not to disciplinary sanctions regard being had to the requirement
for individualisation of sanctions.
[22]
In this regard, it should be recalled that once the presiding officer
has returned a guilty disciplinary verdict, fairness
dictates that he
takes both aggravating and mitigating circumstances into
consideration when determining an appropriate sanction.
If fairness
as expressed in the principle of parity demanded that all employees
convicted of the same or similar infractions be
dismissed regardless
of their differing personal circumstances the enquiry would end as
soon as the disciplinary guilty verdict
is returned.
[23]
The second respondent, further, found that the union member was
remorseful and that taking her back in another position would
reduce
and render the chances of her committing the same mistake remote. In
his view the loss incurred and the potential for harm
to human life
would be removed if she was demoted. The second respondent was
obviously and correctly alive to the concession made
by the union
member under cross-examination to the effect that she could no longer
be trusted to do her job as well as its implications
insofar as he
awarded her demotion. In this regard it is worth keeping in mind that
when an employee cannot be trusted by her employer,
continued
employment relationship would generally most probably be intolerable
to the parties.
[24]
The second respondent took the
view that if the union member was demoted to a lower position
requiring constant supervision the
risk of her committing the
relevant mistake would be reduced. In my view what he, however, lost
sight of was the fact that there
existed no evidence whatsoever
before him to suggest that such a position existed on the applicant’s
organogram. The possibility
of a demotion was only alluded to under
cross-examination of the union member when the applicant’s
representative asked her
whether she would continue to make the same
mistake if the applicant decided to demote her.
[7]
[25]
The existence, nature and job description of such a lower position
were not investigated before the second respondent.
It would,
in my view, have been reasonable and prudent to establish details
about such a position in order to avoid placing unreasonable
burden
on the applicant to go an extra mile to accommodate the employee it
no longer could trust to perform her duties in the position
she
occupied. A position requiring constant supervision
prima facie
requires the applicant to place someone over the union member’s
shoulders, with possible additional costs, to ensure that
she
performs her duties properly. The applicant’s capacity to do so
was simply not established.
[26]
The second respondent’s decision in this regard is, therefore,
not in line with the evidence properly before him and
is the one that
a reasonable decision- maker could not make on available evidence.
[27]
The applicant effectively asks for costs against the first and second
respondents as a punitive measure. The question in this
regard is
whether or not the second respondent acted maliciously in making the
impugned award.
[28]
I am not persuaded by the recorded evidence and the impugned award
that the second respondent acted in bad faith. In this regard
it
shall be noted, as pointed out above, that it was the applicant’s
representative who first mentioned demotion during the
arbitration
hearing. The personal circumstances of the union member and the facts
from which the second respondent drew the conclusion
that she was
remorseful where before the second respondent. There, thus, exists
not cause whatsoever to make such an extra ordinary
order as to costs
against an institution rendering valuable services to the public such
as the first respondent and its panellist.
[29]
I am, however, satisfied from the papers and oral submissions that
fairness cries out for a costs order against the third respondent
although it effectively did not oppose the matter. In this regard it
shall be recalled that the third respondent filed opposing
papers out
of time and its condonation application was dismissed with costs. The
applicant read and dealt with those opposing papers
before it could
oppose the condonation application successfully. It is, therefore,
entitled to its costs relative to such opposing
papers.
[30]
As to security in terms of section 145(7) read with section 145(8) of
the LRA I can only point out that such security clearly
serves to
suspend the operation of the impugned award pending the outcome of
the review process. At this stage of the proceedings
and in the light
of the view I have taken of the matter it is not necessary, for
practical purposes, to determine such a question
in the circumstances
of the instant matter.
[31]
In conclusion, the applicant prays for the setting aside and the
substitution of the impugned arbitration award. The applicant’s
gripe in this regard relates to the non- existence of the demotion
position. The issue as to the existence or otherwise of such
a
position did not feature before the second respondent and there is,
as such, nothing on record to assist in this regard. The
award of
demotion is competent in appropriate circumstances according to
section 193 of the LRA. I am, as such, not able to accede
to the
applicant’s request for replacement of the award at this stage
because the question as to the non-existence of such
a position is
only raised on review by the applicant. I do not have the third
respondent’s version on the issue before me.
The issue needs to
be ventilated properly. The appropriate course in the circumstances
is to remit the matter to the first respondent
for arbitration
de
novo
before another arbitrating panellist.
Order
[32]
In the circumstances, I make the following order:
1.
The second respondent’s arbitration award dated 17 March 2017
under case number GPCHEM30 -16/17 is reviewed and set aside.
2.
The dispute between the parties is remitted to the first respondent
for arbitration afresh before a panellist other than the
second
respondent.
3.
The third respondent shall pay the applicant’s costs.
____________________
LJ
Lekale
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Ms ME Duvenage (Duvenage Attorneys)
For
the Respondent: No appearance
[1]
See
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
28 ILJ 2045 (CC) at paragraph 110.
[2]
See
Absa
Ltd v Naidu
[2014] 35 ILJ 102 (LAC).
[3]
See section 193(1)(b) of the LRA.
[4]
See section 188(2) of the LRA.
[5]
See section 193(2) of the LRA.
[6]
See
Regional
Magistrate Du Preez v/s Walker
1976
(4) SA 361
(A) and
CCMA
& Another v/s
Inzuzu
IT Consulting (PTY) Ltd & Another
case number PA 9/10
an unreported Labour Appeal Court decision).
[7]
See page 98 lines 9 and 10 of the Transcriptions and Other Records
of Proceedings at the NBCCI.