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[2018] ZALCJHB 251
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Bell Equipment Sales SA Ltd v Mashiigo (NO) and Others (J2652/13; J1484/16) [2018] ZALCJHB 251 (31 July 2018)
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case Nos: J2652/13
J1484/16
In
the matter between:
BELL EQUIPMENT
SALES SA LTD
Applicant
and
TSHEPO MASHIIGO
(
N.O.
)
First
Respondent
METAL AND
ENGINEERING
INDUSTRIES
BARGAINING COUNCIL
Second
Respondent
NATIONAL UNION OF
METALWORKERS OF
SOUTH
AFRICA
Third
Respondent
ZACHARIA
RAPOO
Fourth
Respondent
Heard
:
26 October 2017
Delivered
:
31 July 2018
Summary:
(Review – misconstruing the misconduct for which the employee
was dismissed causing distortions in
arbitrator’s approach to
evidence – failing to consider material evidence -
misconstruction of evidence causing arbitrator
to arrive at
conclusions no reasonable arbitrator could have)
JUDGMENT
LAGRANGE
J
Background
[1]
There are two applications under consideration in this matter.
The first application by the employer party (‘Bell’)
is
to review and set aside an arbitration award of the first respondent,
Mr T Mashigo (‘the arbitrator’) in terms of
which he
found that the dismissal of the fourth respondent, Mr Z Rapoo
(‘Rapoo’), was substantively unfair and awarded
his
reinstatement. Pleadings in the review application were closed in
March 2015
[2]
The second application is brought by Rapoo and his union, NUMSA, to
make the award an order of court. In February 2017, the
two matters
were enrolled to be heard jointly.
The
award
[3]
Rapoo was appointed as an export controller in 2006, having worked
for the company since 2001. His dismissal arose from his
failure to
ship a large order from a client in the Democratic Republic of the
Congo (‘the DRC’) in circumstances where
it is common
cause that the order was urgent because the parts required were for a
unit which could not operate. Such an order
is known as a ‘unit
down order’ (‘UDO’).
[4]
It was common cause that the order was received on Wednesday 19
October 2011 and in the normal course of things ought to have
been
airfreighted within a couple of days. There was a delay in the
warehouse in picking and packing items for the order. Once
that is
done, the warehouse passes all the documents to a parts
administrator, who prepares the invoice and closes off the order
file
in preparation for shipment. The parts administrator then passes the
order file to the export controller.
[5]
According to the parts administrator, Ms E Van der Merwe (‘Van
der Merwe’), on Tuesday 25 October 2011, she placed
the file on
Rapoo’s computer keyboard on his desk. She worked at a desk
opposite Rapoo’s desk. The two desks were separated
by a
divider between them. However, he did not ship the order and
according to the shipping manager, Ms C Miog (‘Miog’),
the file was still on Rapoo’s desk on 1 November 2011, a week
after it was ready for him to ship it.
[6]
The crux of the arbitrator’s reasoning is set out in the
following paragraph:
It
is inconceivable why the applicant was singled out to be the
sacrificial lamb this whilst many hands were involved in the order.
The applicant could not do anything to hurt whilst it was in the
warehouse. Of significance to the whole transaction is the
applicant’s
uncontested evidence that if a shipment is urgent,
the stores should pick it up and they would call him when the
shipment is already
at the invoicing lady. That did not happen. Arno
and CJ are the people that usually called him. Again, it is my view
that if the
order was urgent enough and everybody working on it have
put their minds to it, Elmarie [v.d Merwe] should have given it to
the
applicant in his hand or on the phone to she could not find him
at his desk to sensitise him of the urgency of the order. It should
follow therefore that the dismissal of the applicant was unfair.
…
The
respondent has suffered a financial loss as a result of the order
being shipped late. I however, do not share in their sentiment
the
applicant was alone responsible for that, if he did play a role; he
was not alone in that. The other departments were also
responsible
and they should also have been hauled over the coals for their
inaction.
The
working relationship had not broken down and the applicant could
still be integrated into the employ of the respondent and continue
to
work.
[7]
The arbitrator ordered the reinstatement of Rapoo but without
back-pay because the delay in finalising the case could not be
attributed to Bell.
Grounds
of review and evaluation
Grounds
of review
[8]
In summary, the grounds of review set out in Bell’s founding
papers are:
8.1
The arbitrator misconceived the nature of the charges against Rapoo
which related to his failure
to expedite the matter after it reached
his desk on 25 October, because he focused unduly on the period
between 19 and 25 October.
The findings he made because of this
misdirection materially affected his final conclusions rendering them
unreasonable.
8.2
He also failed to appreciate that there was evidence providing good
reasons for the initial delay
between 19 and 25 October, some of
which was provided by Rapoo himself.
8.3
In failing to consider Rapoo’s own evidence that he was not
expected to go to the warehouse
to follow up orders, but to use his
phone and email, the arbitrator failed to appreciate that export
controllers ought to be at
their desks dealing with these kind of
urgent orders. Consequently, he failed to appreciate that once Van
der Merwe had placed
the file on his desk, he ought to have assumed
responsibility for it.
8.4
Further, the arbitrator misconstrued the evidence when he concluded
that the practice was that
the warehouse stores personnel would call
him when the shipment documentation had been handed over to the parts
administrator,
or in concluding that Van der Merwe ought to have made
sure she personally gave the shipment file to him or to have phoned
him
if he was not at his desk.
8.
The arbitrator also failed to take account of the fact that Rapoo was
already on a final written warning following a previous
disciplinary
enquiry.
Evaluation
[9]
I agree with the applicant that the arbitrator failed to appreciate
that the main complaint about Rapoo’s conduct was
his failure
to ship the order despite the passing of an entire week from the time
that Van der Merwe said she put the order file
on his desk. I also
agree that, there was evidence given both by Miog and Rapoo which
explained the initial delay between the 19
th
and 25th
October, partly because of a weekend during that period and the fact
that the items for the UDO order were in the same
area of the
warehouse, where staff were busy with a very large order valued at
R17 million for the same customer, which complicated
the picking
process.
[10]
In relation to the third ground of review, the applicant’s view
is that the arbitrator materially misconstrued the evidence
by not
inferring from Rapoo’s evidence that, because export
controllers were not expected to go into the warehouse to follow
up
orders, that the arbitrator ought to have realised he should have
been at his desk. I agree that would have been a possible
inference
that the arbitrator might have drawn, but it is not something which
was drawn to his attention through the cross examination
of Rapoo,
and I cannot say that his failure to consider this line of thinking
was unreasonable.
[11]
Having found that the others were to blame for the first week of
delay and were not punished, the arbitrator failed to consider
whether Rapoo’s failure to do anything about shipping the order
after 25 October was blameworthy at all. To the extent he
did
consider it, he implicitly accepted that Rapoo probably had no
knowledge the order was ready for shipping for the entire week
thereafter.
[12]
Indeed, Rapoo’s defence was that, he never received the order
documents from Van der Merwe, and when he cleared his desk
on being
suspended on 1 November 2011, there was nothing on the desk. Miog had
testified that when she went to Rapoo’s desk
after his
suspension on the same day she found the order file on it when she
went through the documents on his desk. Van der Merwe
also confirmed
that the file had been moved from his keyboard and was found by Van
der Merwe on the desk. During his own testimony
and the cross
examination of Miog, much was made of the email correspondence sent
by Rapoo to the warehouse personnel trying to
get them to speed up
the warehouse process so the order could be shipped. However, after
25 October there were only two other pieces
of email correspondence
from Rapoo to the warehouse, neither of which were obviously linked
to the urgent order. It is difficult
to see how the arbitrator could
reasonably have inferred that Rapoo was still diligently following up
on that order with the warehouse
staff after 25 October in the way
that he had between 19 and 25 October. In so far as Rapoo alleged
that Van der Merwe had fabricated
the document she claimed to have
placed on his desk on the 25 October, she was not challenged on her
statement that the order file
was finalised and the invoice issued on
25 October or that the invoice date could not be altered. Even if
Rapoo denied having received
the file on 25 October, he provided
little concrete evidence of the steps he took after that date to
expedite the matter which
ought to have become a greater concern with
every passing day.
[13]
Taking all these considerations into account, I agree that the focus
of the Commissioner on the earlier delay while the order
was being
picked caused him to completely neglect the evidence relating to
Rapoo’s conduct after 25 October in considering
whether his
conduct was blameworthy at all. Had he done so, and had he considered
the absence of any evidence suggesting why Van
der Merwe would have,
let alone could have, fabricated the order invoice after 25 October,
and given the paucity of evidence of
Rapoo’s continuing efforts
after that date to pester the warehouse staff if he genuinely
believed the order had not yet been
invoiced, the arbitrator could
not reasonably have come to the conclusion that he was not
responsible for the delay after 25 October.
[14]
It must also be mentioned in this regard, as pointed out by the
applicant in its fourth ground of review, that Rapoo’s
evidence
that he would be called by the warehouse staff to say that the order
had been given to Van der Merwe, was not put to either
Miog or Van
der Merwe and the arbitrator failed to consider the value of this
untested evidence in reaching his conclusion.
[15]
Lastly, the arbitrator failed to consider the final written warning
which had been imposed on 13 October arising from Rapoo’s
failure to finalise another urgent order for nearly a month.
Conclusion
[16]
Since the arbitrator’s conclusion that there was an initial
delay in finalising the urgent order for which nobody was
sanctioned
meant that it would be unfair to hold Rapoo accountable for the
subsequent delay, was only possible if evidence of the
explanation
for the initial delay was ignored, the arbitrator was obliged to
scrutinise whether there was a justification for Rapoo’s
subsequent delay. The evidence cannot reasonably support the
inference that he was not to blame. Given the serious consequence
of
the delay in the form of considerable losses suffered by the
applicant and Rapoo’s previous final written warning for
closely related misconduct, the arbitrator’s finding that his
dismissal was substantively unfair was not a finding a reasonable
arbitrator could have arrived at on the evidence before him.
[17]
In view of the above, the application to make the award an order of
court must fail.
[18]
In relation to costs, it is understandable the respondents would have
opposed the review, given that it was in Rapoo’s
favour and not
without any merit at all, so their opposition was not frivolous.
Under the circumstances it would not be appropriate
to award costs.
Order
[1]
The arbitration award of the first respondent dated 3 October 2013
issued under case no
MEGA35188, is reviewed and set aside and the
application to make the award an order of court is dismissed.
[2]
The finding of the first respondent that the fourth respondent’s
dismissal was substantively
unfair is substituted with a finding that
his dismissal was substantively fair.
[3]
No order is made as to costs.
_______________________
R
Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
G
M Kirby-Hirst of Macgregor Erasmus Attorneys
THIRD
and FOURTH
RESPONDENTS
B
Matsena of NUMSA