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[2018] ZALCJHB 113
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Bridgestone SA (Proprietary) Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR1709/14) [2018] ZALCJHB 113 (15 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
C
ase
no: JR 1709/14
In the matter between:
BRIDGESTONE
SA (PROPRIETARY) LIMITED
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First Respondent
LERATO
SIKWANE
N.O
Second
Respondent
DIKOBE
ELIAS SHIME
Third
Respondent
Heard:
17 August 2017
Delivered:
15 March 2018
JUDGMENT
MAHOSI J
Introduction
[1]
This is an application
in
terms of section 145 of the Labour Relations
Act
[1]
(LRA)
in
which the applicant seeks an order to review and set aside the
arbitration award issued by the second respondent (the arbitrator)
under the auspices of the first respondent, the Commission for
Conciliation, Mediation and Arbitration (the CCMA), under case number
GATW 2188-14 dated 28 July 2014. In his award, the arbitrator found
the dismissal of the third respondent (the employee) to be
substantively unfair and
ordered
that the employee be reinstated by the applicant without back pay
with effect from 15 August 2014.
[2] The applicant seeks
that the arbitration award be substituted with a finding that the
dismissal of the employee was substantively
fair. Alternatively, that
the dispute be referred back to the CCMA for an arbitration
de
novo
before a different arbitrator.
[3]
The key question is whether the arbitrator’s decision is one
that a reasonable decision-maker could not reach.
Material background
facts
[4] The employee was
employed by the applicant as a classifier and he was dismissed on 2
February 2014 having been charged and found
guilty at the
disciplinary enquiry for the following charge:
‘
Gross
negligence, on 19 January 2014, you failed to stop and report defects
to curing. This resulted in 15 tyres scrap’.
[5]
The charge relate to the employee’s failure to detect and/or
report defects in respect of tyres that had been produced
resulting
in the production of 15 defective tyres that had to be scrapped. The
applicant suffered damages I the amount of R15 000.00
(fifteen
thousand rand). Dissatisfied with the outcome of the disciplinary
enquiry, the employee referred an unfair dismissal dispute
to the
CCMA. The dispute was conciliated unsuccessfully and as a result, it
proceeded to arbitration. As aforesaid, the arbitrator
found the
employee guilty of misconduct guilty of the offence but found the
sanction of dismissal to be unfair. It is this finding
that the
applicant seeks to review and set aside.
Arbitration award
[6] In his analysis, the
arbitrator noted that the employee’s position was very
sensitive and that it required a high degree
of care as his main
responsibility was to check the quality of tyres. The arbitrator
admitted the applicant’s evidence that
the employee failed to
produce a quick action report for all the 15 damaged tyres and
further that his conduct caused the applicant
financial loss
amounting to R15 000.00.
[7] The arbitrator
rejected the employee's submission that the damage on the tyres was
as the result of a backlog that occurred
during the previous shift on
the basis that there was no evidence to prove his submission. During
arbitration, the employee blamed
a curing foreman, Mr Thabo Ntseke
(Mr Ntseke), and submitted that he (Mr Ntseke) even acknowledged in a
meeting that he was responsible
for the said damage. The arbitrator
rejected this submission on the basis that Mr. Ntseke was not called
to confirm the employee’s
allegation. The employee's submission
that he was ignorant of the rules relevant to his area of operation
was found not to be convincing
by the arbitrator because at the time
of his dismissal, he was a senior inspector having other inspectors
reporting to him.
[8]
In essence, the arbitrator
found
the employee guilty of misconduct but concluded that the dismissal
was not an appropriate sanction. In arriving at his conclusion,
the
arbitrator took into consideration
the
fact that (1) the employee had 11 years and 5 months service with the
applicant; (2) the employee had no written warning between
10 October
2007 and February 2014; and (3) the employee was dismissed for gross
negligence and not dishonesty. The arbitrator’s
view was that
employer should adopt or follow progressive discipline on matters
pertaining to negligence. For this reason, the
arbitrator found the
employee’s dismissal substantively unfair and ordered his
reinstatement.
Grounds of Review
[9]
The
applicant contends that the arbitrator committed a gross
irregularity, alternatively, misconduct in the conduct of the
arbitration
proceedings by failing to apply his mind to the evidence
that was led and the applicable legal principles to be applied in
relation
to the imposition of sanction. The applicant further
contends that the arbitrator's failure to do so has resulted in him
coming
to a decision a reasonable decision-maker could not reach.
[10] In its supplementary
affidavit, the applicant contends that the arbitrator failed to take
into account that the employee produced
documents at the arbitration
proceedings that he had never relied upon or produced at the
disciplinary hearing and further that
the employee disingenuously
denied he had received training even accusing his immediate manager
of having lied in relation to his
training despite extensive evidence
by the applicant’s witnesses. The applicant contends that the
evidence was led to support
a complete breakdown of the relationship
and trust.
[11] The employee
contends that the award by the arbitrator was fair and reasonable and
was in line with the evidence that was adduced
at the arbitration
proceedings. He further contends that his misconduct does not amount
to dishonesty and therefore a dismissal
would under the
circumstances, have been unfair and a severe sanction. According to
the employee, the arbitrator was correct in
his findings.
[12] The employee
disputes that he failed to stop the machine and to follow the correct
procedure of reporting the fault that resulted
in the production of
15 scrap tyres. He submitted that he had not been in the position in
question for a long time, and that he
had not been found guilty of
any misconduct similar to the one he was dismissed for. In his
version, “the production of the
said scrap tyres was a result
of the backlog caused by the previous shift”.
Applicable law and
analysis
[13] The 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. Section 145(2) defines a defect as the commissioner’s
misconduct in relation to the duties of
the commissioner as an
arbitrator, gross irregularities in the conduct of the arbitration
proceedings, exceeding the commissioner's
powers or improperly
obtaining an award.
[14]
The test for review which has been authoritatively stated by the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
was reiterated in
Herholdt
v Nedbank Ltd and Congress of South African Trade Unions
[3]
as follows:
‘
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]
[15]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[5]
the Labour Appeal Court
(LAC) stated as follows:
‘
[17]
The fact that an arbitrator committed a process-related irregularity
is not in itself a sufficient
ground for interference by the
reviewing court.
The
fact that an arbitrator commits a process-related irregularity
does
not
mean that the decision reached is necessarily one that a reasonable
commissioner in the place of the arbitrator could not reach.
[18]
In a review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to
take into account every factor individually,
consider how the arbitrator treated and dealt with each of those
factors and then
determine whether a failure by the arbitrator to
deal with one or some of the factors amounts to process-related
irregularity sufficient
to set aside the award. This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must
necessarily consider the totality of the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable
decision-maker could make.’
[16]
In
Head
of the Department of Education v Mofokeng and Others
[6]
the LAC confirmed
Herholdt
and
Mofokeng
and held as follows:
‘
The failure
by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt
v Nedbank Ltd
and
this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome.
[17]
The LAC further held as follows:
‘
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry.
In
the final analysis, it will depend on the materiality of the error or
irregularity and its relation to the result. Whether the
irregularity
or error is material must be assessed and determined with reference
to the distorting effect it may or may not have
had upon the
arbitrator’s conception of the inquiry, the delimitation of the
issues to be determined and the ultimate outcome.
If but for an error
or irregularity a different outcome would have resulted, it will
ex
hypothesi
be
material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable
result. The reviewing judge must then have regard to the general
nature of the decision in issue; the range of
relevant factors
informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether
a reasonable
equilibrium has been struck in accordance with the objects of the
LRA.
Provided
the right question was asked and answered by the arbitrator, a wrong
answer will not necessarily be unreasonable. By the
same token, an
irregularity or error material to the determination of the dispute
may constitute a misconception of the nature
of the enquiry so as to
lead to no fair trial of the issues, with the result that the award
may be set aside on that ground alone.
The arbitrator however must be
shown to have diverted from the correct path in the conduct of the
arbitration and as a result failed
to address the question raised for
determination.
’
[7]
[Footnotes omitted]
[18] The applicant’s
contention is that, in finding that the sanction was too harsh and
ordering his reinstatement, 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 employers
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,
[8]
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
.’
[9]
[20]
In determining whether the sanction imposed by the employer is fair,
the arbitrator is required to take into account the totality
of
circumstances.
[10]
In this
case, the arbitrator only based his finding (i.e. that the sanction
of dismissal was harsh) on considering the employee’s
length of
service, disciplinary record and the nature of the misconduct he was
charged with.
[21]
On the nature of the misconduct the employee was charged with, the
arbitrator took the view that misconduct relating to gross
negligence
did not warrant dismissal and that the employer should adopt or
follow progressive discipline in matters pertaining
to negligence. In
essence, the arbitrator’s finding that the employee’s
sanction of dismissal was harsh was based on
the fact that he was
dismissed for gross negligence as opposed to dishonesty. There is no
basis for the arbitrator to trivialize
the seriousness of a
misconduct relating to gross negligence and in particular that which
was committed by the employee. The employee
was a classifier with
managerial responsibility for final inspection of the applicant’s
products, he failed to exercise the
standard of care and skill that
was reasonably expected of an employee with his degree of skill and
experience and his conduct
resulted in financial loss to the
applicant. In addition, it was not in dispute that his conduct and/or
omission was serious in
itself. The applicant was entitled to
discipline him because he owes a duty of care to it (the applicant),
its clients and his
own colleagues.
[22] The arbitrator put
more emphasis on the employee’s long-term service and the fact
that his previous warning was no longer
valid. He failed to
appreciate the nature and the importance of the rule breached; the
consistency of application of the disciplinary
rule and sanction; and
aggravating factors. The applicant led relevant evidence that the
employee was aware of the procedure to
be taken to prevent the damage
caused; his negligent conduct resulted in the applicant’s
financial loss; he failed to report
the incident immediately; and he
failed to display remorse, to appreciate or to acknowledge his
wrongdoing at the disciplinary
enquiry and at the arbitration
proceedings. Instead, he shifted the blame to the previous shift and
to Mr. Ntseke. It is apparent
that the arbitrator did not take the
above factors into consideration before arriving at the finding that
the sanction of dismissal
was too harsh.
[23]
Had the arbitrator considered
all
the material that was before him, he would
have arrived at a different conclusion.
The
arbitrator’s decision could, therefore, not be one that a
reasonable decision-maker could arrive at. As such, his
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.
[24] In the premises, I
make the following order:
Order
1.
The arbitration award issued by the second respondent (the
arbitrator) under
the auspices of the first respondent, the
Commission for Conciliation, Mediation and Arbitration (the CCMA),
under case number
GATW 2188-14 on 28 July 2014
is
reviewed
and set aside
and
replaced with the following order:
a)
The employee’s dismissal was substantively fair.
2.
There is no order as to costs.
_____________
D. Mahosi
Judge
of the Labour Court
APPEARANCES:
FOR
THE APPLICANT:
J
Moyo
Moyo
Incorporated Attorneys
FOR
THE THIRD RESPONDENT:
Pieter Moll
Edward
Nathan Sonnenbergs Inc. Attorneys
[1]
Act 66 of 1995 as amended.
[2]
2007 (28) ILJ 2405 (CC)
at
para 25.
[3]
2013 (6) SA 224
(SCA);
2013 (11) BLLR 1074
(SCA); 2013 (34) ILJ 2795
(SCA).
[4]
At para 25.
[5]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 17 and 18.
[6]
[2015]
1 BLLR 50
(LAC) at para 30.
[7]
At para 33.
[8]
[2007] 12 BLLR 1097 (CC).
[9]
At para 78.
[10]
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC).