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[2018] ZALCJHB 368
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Adwill Plastics (Pty) Ltd v Mothibe NO and Others (JR2499/16) [2018] ZALCJHB 368 (9 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 2499/16
In
the matter between
:
ADWILL
PLASTICS (PTY)
LTD Applicant
and
ISAAC
TEKE MOTHIBE
N.O
First
Respondent
THE
COMMISSION FOR MEDIATION,
CONCILIATION
ARBITRATION
Second Respondent
NUMSA
OBO MOTOMA AND 1 OTHER
Third
Respondent
Heard:
16 October 2018
Delivered:
09 November 2018
Summary:
Review application – appropriateness of the sanction –
progressive discipline must be followed to its logical
conclusion.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
In this
application, the applicant, Adwill Plastics (Pty) Ltd (Adwill) seeks
an order reviewing and setting aside the arbitration
award issued by
the first respondent (commissioner) under case number GATW8947-16,
dated 19 October 2016. The third respondent,
National Union of
Metalworkers of South Africa (NUMSA), is defending the award. The
commissioner found that the dismissal of NUMSA’s
members,
Messrs Koos Motoma (Mr Motoma) and Phineas Namane (Mr Namane)
(respondent employees) was substantively unfair and reinstated
them
without back pay and subject to a written warning.
[2]
The
applicant’s main impugn is that the commissioner failed to
apply his mind to the facts that were before him and as such,
rendered an unreasonable award.
Background
[3]
The facts
in this matter are, to a great extent, common cause. The respondent
employees were employed by Adwill as general workers.
On 8 May 2016,
while Mr Motoma was operating his machine, he was asked to assist
with another machine that was running rejects.
He had to adjust the
machine using an allen key and forgot to take it back to the toolbox.
Mr Namane, unaware of the allen key,
placed a pack of bottles on top
of the machine. The allen key fell into the machine and it
immediately stopped working. The respondent
employees tried to fix it
but failed and reported the incident. Adwill spent R26 000 to
fix the damaged machine.
[4]
The
respondent employees where charged and dismissed for gross
negligence. The crisp issue that was before the commissioner was
the
appropriateness of the sanction. Adwill was adamant that dismissal
was an appropriate sanction. It asserts that the damaged
machine was
worth R1.2 million and has only two of them. Previously, there was an
incident where a knife fell into the machine
and Adwill suffered loss
of about R180 000.00 in production. All the employees were verbally
warned of the danger of leaving foreign
objects on the machine.
[5]
On the
other hand, the respondent employees pleaded for a more lenient
sanction. Mr Motoma testified that he was aware of the general
warning to all employees. However, on the day in question he was
working under pressure; hence the mistake of leaving the allen
key on
the machine. Mr Namane testified that he was not yet employed when
the first incident happened. He was not made aware of
the allen key
as it was a hectic day.
Review
test
[6]
The essence
of the review test is tersely stated in
Head
of the Department of Education v Mofokeng
[1]
and pertinently that:
‘
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.’
Evaluation
[7]
Adwill
submitted that the commissioner failed to attach the necessary weight
to the evidence that the respondent employees had been
previously
warned about the danger of leaving foreign objects on the machine.
However, Mr Posthuma, Adwill’s attorney, prudently
conceded
that previously all the employees were verbally warned, despite the
fact that the loss suffered was greater, and that,
in a sense,
initiated a progressive disciplinary process.
[8]
Therefore,
it was discordant of Adwill to jump to the sanction of dismissal
without affording the respondent employees the benefit
of a written
warning. In my view, once the employer choses a path of progressive
discipline, it must be followed to its logical
conclusion; unless
there are circumstances justifying immediate dismissal, none of which
exist in this instance.
[9]
The
respondent employees were remorseful and clearly exhibited attributes
of employees who are capable of rehabilitation. The commissioner
accepted that the respondent employees were guilty of negligence but
given the circumstances, the sanction of dismissal was too
harsh. As
such, their reinstatement was not retrospective and was subject to a
written warning.
Conclusion
[10]
In
all the circumstances, I am convinced that the award is reasonable
and therefore unassailable. The parties did not pursue costs.
[11]
In the
premises, I make the following order:
Order
1.
The
review application is dismissed.
2.
There
is no order as to costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Mr AJ Posthuma from Snyman Attorneys
For
the respondent:
Mr V Shezi, NUMSA’s Regional Legal Officer
[1]
[2015] 1 BLLR 50
(LAC) at paras 33;
see also
Herholdt v Nedbank
Ltd (Congress of South African Trade Unions as amicus curia)
[2013] 11 BLLR 1074
(SCA);
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at
para 14.