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[2018] ZALCJHB 302
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Supreme Poultry (Pty) Ltd v Brown and Others (JR850/16) [2018] ZALCJHB 302 (27 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 850/16
In
the matter between:
SUPREME
POULTRY (PTY)
LTD
APPLICANT
and
RICHARD
CHRISTO
BROWN
First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second
Respondent
COMMISSIONER
ANNELIE BEVAN
N.O.
Third
Respondent
Heard:
19 July 2018
Delivered:
27 September 2018
Summary
:
The arbitration award issued by the Third Respondent under the
auspices of Second Respondent under case reference number NWKD3381-15
dated 24 March 2016 be reviewed, set aside and corrected with an
order that First Respondent’s dismissal was substantively
fair.
JUDGMENT
SEDILE,
AJ
[1]
First Respondent was employed by Applicant as a Foreman:
Refrigeration from 29 November 2007 until the date of his dismissal.
[2]
On 07 September 2015 there was a breakdown at the Applicant’s
refrigeration plant. The general manager, Mr Juan
Ferreira
(Ferreira) went to check on the progress of restoring the breakdown
and noticed that the coupling guards were missing
on two ammonia
compressors (number 2 and 9) and that the oil pump on the compressor
number 3 was missing.
[3]
Mr Ferreira instructed First Respondent’s direct supervisor, Mr
S Modau (Modau) to ensure the coupling guards were replaced.
Mr Modau
instructed the First Respondent orally on 07 September 2015 to
replace the coupling guards, but due to a breakdown in
the plant they
could not be replaced.
[4]
The First Respondent explained to Mr Modau that the coupling guards
were not on the compressors as he was in the process of
checking the
mechanical seals of the compressors due to an ammonia leak.
[5]
On 11 September 2015, Mr Modau asked the First Respondent whether or
not the coupling guards were replaced and the First Respondent
indicated that it was not yet done, but that he would do it over the
weekend.
[6]
On 14 September 2015, when Mr Modau asked the First Respondent
whether the coupling guards were replaced, First Respondent indicated
that he was too busy over the weekend and that the coupling guards
would be replaced that night during night shift.
[7]
On 15 September 2015, Mr Modau was called by Mr Ferreira and the
maintenance manager and instructed to replace the coupling
guards
himself.
[8]
Mr Ferreira arranged that the plant could be stopped to enable Mr
Modau and Mr C Adams to replace the coupling guards.
[9]
The Applicant instituted disciplinary action against the First
Respondent, alleging gross negligence and insubordinate conduct.
A
disciplinary hearing was convened on 22 September 2015.
[10]
The First Respondent was found to have committed the misconduct in
both instances and dismissed.
[11]
The First Respondent referred an unfair dismissal dispute to Second
Respondent alleging that his dismissal was substantively
unfair.
The arbitration was conducted by the Third Respondent on 27 January
2016 and 22 March 2016.
Grounds
for review
[12]
The Applicant contends that the arbitration award is unreasonable as
it is one that a reasonable arbitrator could not reach
on all the
material that was before the Commissioner in that she:
12.1 Failed to assess the seriousness
of the Employee’s failure to comply with his duties as per his
appointment in terms
of the applicable legislation;
12.2 Failed to make a credibility
finding in respect of the evidence presented by the employee and
disregarded the evidence presented
by the Employer’s witnesses
in finding that the Employee took the right decision in weighing up
the risks posed to the plant
room in circumstances where there was no
basis for such a finding;
12.3 Incorrectly concluded that the
Employer failed to prove that the insubordination was serious,
persistent and deliberate.
Analysis
of the review
[13]
The First Respondent has been in the employment of the Applicant for
a quite considerate time of more than eight years and
such he was
fully aware of what has to be done in the fulfilment of his tasks in
the plant.
[14]
The Respondent has been an excellent employee and supervisor and
ensured that he maintained the plant room with standard of
care and
skills and has always been exemplary.
[15]
The Respondent was in the process of investigating an ammonia leak
after he initiated such an investigation by removing the
coupling
guards off the machines one at a time and that such couplings
remained off for a period of time and clearly during this
period
nothing which can be regarded as being of hazardous nature occurred
in the plant
[16]
The Applicant clearly accepted in the arbitration proceedings that
the Respondent made arrangements with Mr Modau, that he
will place
the coupling guards back onto the machines during his night shift on
15 September 2015 as he was very busy during the
past weekend.
[17]
The Respondent was later informed by Mr Danga that he was not to
place the coupling guards back onto the machines and further
informed
Respondent that he was suspended.
[18]
Respondent acted responsibly to remove coupling guards although it
might have been risky to do that, but Respondent was certainly
permitted to do so and he had placed adequate preventative measures
in place to ensure that there was little to no risk and nothing
of
risk or danger to health of other employees did occur. Therefore, the
removal of the coupling guards was a necessity in the
investigation
process of the ammonia leaks.
[19]
The Respondent has never persistently defied the lawful and
reasonable instructions of his immediate supervisors and as such
never disobeyed those instructions to perform his duties.
[20]
It is now clear from a number of judgments by the Labour Appeal Court
that it is not sufficient simply to plead one or more
irregularities
or misdirections on the part of an arbitrator. First, not all
irregularities in the conduct of arbitration
proceedings constitute
gross irregularities or misconduct for the purposes of section 145.
The irregularity or misdirection
relied upon must render the outcome
of the proceedings unreasonable, in the sense that a reasonable
decision-maker could not reach
the decision to which the arbitrator
came in the light of all the evidence before him or her. The
applicant in the present
instance has not pleaded any proper factual
basis on which it submits that Third Respondent committed any gross
irregularity in
the conduct of the proceedings under review; further,
there is no averment in the founding affidavit to the effect that the
outcome
of the proceedings failed to meet the reasonableness
threshold as described above. In the circumstances, the Applicant has
patently
failed to make out a proper case for review on the papers
and submissions made in court.
[21]
For the above reasons, I make the following order:
Order
1. The Applicant’s Review
Application is dismissed with costs.
P.T
Sedile
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: G. Cassells of Maserumule Incorporated
For
the Respondent: Mr A. Goldberg of Goldberg Attorneys