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[2018] ZALCPE 9
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Rhino Plastics (Pty) Ltd v Sesani NO and Others (PR207/16) [2018] ZALCPE 9 (25 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PR207/16
In
the matter between:
RHINO
PLASTICS (PTY) LTD
Applicant
and
NTOMBEKHAYA
SESANI
N.O.
THE
METAL AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
First
Respondent
Second Respondent
NUMSA
o b o M MAGADU
Third Respondent
Heard:
12 October 2017
Delivered:
25 January 2018
JUDGMENT
MAMOSEBO;
AJ
Introduction
[1]
This
is a review application in terms of s 145 and/or 158(1)(g) of the
Labour Relations Act
[1]
(the LRA). The applicant, Rhino Plastics (Pty) Ltd (employer) seeks
an order substantially in the following terms: Reviewing
and setting
aside the arbitration award by the first respondent, Ms Ntobekhaya
Sesani (arbitrator) under the auspices of the second
respondent, the
Metal and Engineering Industries Bargaining Council (MEIBC)
under Case Number MEPE2364 dated 13 September
2016; Substituting that
arbitration award with an order that the dismissal of the employee
was substantively fair; alternatively,
reviewing and setting aside
the arbitration award and referring the application to the MEIBC for
determination afresh by an arbitrator
other than Ms Sesani; and costs
of the application. The employee is opposing the relief sought by the
employer.
[2]
The
arbitrator was steeped in the atmosphere of the hearing. She heard
the evidence of two witnesses who testified on behalf of
the employer
and the evidence of the dismissed employee as the applicant in the
arbitration proceedings. A brief background to
those facts follows.
[3]
The
employee was employed by the applicant as a Driver Assistant since 03
March 2008. He denied being a regular forklift driver
and confirmed
being a driver’s assistant. Although he was only issued a
forklift driver’s licence he denied having
been formerly
trained to drive a forklift. He was, nevertheless, able to move
pallets from one place to the other when he occasionally
received
requests to perform the functions of a forklift driver. On 07
December 2015 he was requested to move a generator using
a forklift.
He had to drive over a ramp. It is common cause that he approached
the ramp facing forward and did not reverse into
the ramp and the
generator fell. The employer suffered damages of an estimated
R21 000. The employer dismissed him on 19 January
2016 for being
grossly negligent. The employer alleged that because he has used the
forklift before and therefore knew how to use
it; he was a qualified
forklift driver and must have known how to drive up and down the
ramp; he ought to have known that when
he had a load he should move
in reverse and his failure to do so deviated from the required
standard making him grossly negligent.
[4]
The
arbitrator heard the matter on 31 August 2016 to determine the
fairness of the dismissal. She found that the employee was negligent
in driving the “hyster” (forklift) forward which
constituted an act of misconduct. The question considered by
the arbitrator was whether the misconduct committed was sufficiently
gross to justify a dismissal. Having considered what is required
to
constitute gross negligence the arbitrator found that the conduct of
the employee did not qualify as such. The employer was
ordered to
reinstate the applicant to his previous position and to pay him an
amount of R26 499.60 before 30 September 2016.
The employee was
to return to work by 30 September 2016. The arbitrator did not make
any order in respect of costs.
[5]
The
employer raised two grounds of review, alleging firstly: that the
arbitrator failed to properly apply his mind and misconstrued
the
evidence hence arriving at a conclusion entirely disconnected from
the evidence. Secondly, the order of reinstatement is unreasonable
under the circumstances.
[6]
The
test laid down by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd
[2]
is
trite:
“…
..Section
145 is now suffused by the Constitutional standard of reasonableness.
That standard is the one explained in
Bato
Star
:
Is the decision reached by the Commissioner one that a reasonable
decision-maker could not reach?”
[7]
The
courts have always warned against consideration of cases by
adjudicators on a piecemeal basis. In
Goldfields
Mining South Africa v CCMA & Others
[3]
the
Labour Appeal Court pronounced:
“
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 by the
arbitrator is one that a reasonable decision-maker could make”.
[8]
Mr
Posthuma, appearing for the employer, sought to convince me that the
arbitrator’s decision was unreasonable and not one
that a
reasonable decision-maker could reach. A careful reading of the award
and the transcribed record of proceedings does not
support the
submission made. The following is stated in the founding affidavit by
the employer:
“
the
arbitrator concludes [at] para 24 that Mr Magadu was not an
inexperienced driver and that he was negligent in the execution
of
[his] duties but then concludes [at] para 28 of the award that there
was no evidence to suggest that the applicant failed to
act in a
manner in which a reasonable person would have acted.”
The
afore-mentioned is the basis on which the employer alleges that the
finding by the arbitrator is disjointed from the
objective
evidence. I disagree. If one reads paras 24, 25, 26, 27, 28 and 29 of
the award in sequence it becomes logical
that the phrase
“…..suggests that he might not have been an
inexperienced driver” was a typing error. A careful
reading
shows that the word “not” appearing before
“inexperienced” was an error. I say so informed by the
sentence at para 25 “despite his inexperience in driving the
hyster….” and at para 28 “because of his
inexperience.” As well as at para 29 “…caused by
inexperience…” demonstrates that the arbitrator
had
accepted that the employee lacked experience in driving the forklift.
[9]
Having considered the nature of the offence and finding it to have
been ordinary negligence and not gross negligence
as found by
the employer, coupled with the fact that the employee was a first
offender and his period of service the arbitrator
found that the
dismissal was not an appropriate sanction. The employer’s
submission is that this finding is unreasonable.
This Court has
already pronounced in numerous cases that in the absence of material
error of fact the findings of a commissioner
are to be respected by
the court even if the court was to find that the dispute may be
resolved one way rather than another.
[4]
The arbitrator has made factual findings in arriving at her
conclusion which I find to have been reasonable.
[10]
The arbitrator has, in my view, considered the matter before her
reasonably. I have not found any misconduct, gross-irregularity
or
abuse of power on her part. She has shown how she reached the outcome
in the light of all issues and evidence placed before
her.
[11]
I am satisfied that the arbitrator’s award constitutes a
decision which a reasonable decision maker could have reached,
on the
evidence presented before her. The review application must therefore
fail.
[12]
In the result, the following order is made:
Order
1.
The application is dismissed with costs.
_______________
MC Mamosebo
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant:
Mr A Posthuma
Instructed
by:
Snyman Attorneys
For
the respondents:
Advocate E van Staden
Instructed
by:
Justice Centre, Port Elizabeth
[1]
Act 66 of 1995 as amended.
[2]
(2007) 12 BLLR 1097
(CC) at para 110.
[3]
at para 18
[4]
see:
Prowalco (Pty) Ltd v CCMA &
Others
(2011) JOL 27209
(LC)
, Fidelity Cash Management Services
CCMA & Others (2008) 29 ILJ 964 (LAC).