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[2019] ZALCJHB 172
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Bidvest Steiner v Gosa NO and Others (JR1498/17) [2019] ZALCJHB 172 (12 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA,JOHANNESBURG
Not
reportable
Case
no: JR1498/17
In
the matter between:
BIDVEST STEINER
Applicant
and
COMMISSIONER
GCOBISA GOSA
N.O.
First Respondent
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
Second Respondent
MANTAKE
MAMOEPA
Third Respondent
Heard:
11
January 2019
Delivered: 12
July 2019
Summary:
Review of an award made in respect of an alleged unfair labour
practice in terms of
section 186(2)(b)
of the
Labour Relations Act 66
of 1995
. Commissioner failing to consider the evidence
adequately. Test on review restated. Review granted.
JUDGMENT
SNIDER
AJ
[1]
This is an
unopposed application for the review of an award in relation to an
unfair labour practice allegedly perpetrated by the
Applicant against
the Third Respondent. The award is dated 30 June 2017.
[1]
The unfair labour practice dispute was referred by the third
Respondent in terms of section 186(2)(b) of the Labour Relations
Act
[2]
(“the LRA”).
[2]
It was common cause between the parties that the Third Respondent was
issued with a written warning by the Applicant, valid for a period of
12 months, on 9 March 2017.
[3]
The relief afforded to the Third Respondent by the First Respondent
was
the setting aside of the written warning and ordering the
Applicant to pay the Third Respondent compensation in the amount
R78 000.
The Third Respondent’s salary at the time
was R13 000 per month thus the award represented 6 months of
salary.
Background
facts
[4]
Briefly, the facts behind this matter are that the Third Respondent
was
employed by the Applicant and one of his duties was,
inter
alia,
to install air fresheners at the Applicant’s clients
and in so doing, when necessary, to make use of stepladders.
The
Applicant has standing instructions in place in relation to the
use of stepladders in order to protect its employee’s safety
and comply with Health and Safety Regulations.
[5]
The rule,
relevant for the purposes hereof, is that the Third Respondent was
not allowed to use a stepladder unless it was secured
at the top and
/ or held by a second person. This appears to be common cause
if one has regard to the allegations made by
the Applicant
[3]
together with a conspectus of the award as a whole, particularly when
the First Respondent appears to use, as a point of departure
for his
reasoning, a rule that the Third Respondent could only use a
stepladder in the abovementioned circumstances. He never
makes
a finding to the contrary.
[6]
The First Respondent states as follows:
“
I therefore find
that the Applicant did not commit any misconduct by using a ladder
without a second person holding it as the Respondent
failed to
provide him with an assistant”
[7]
It can only
be assumed that had the First Respondent intended to say that there
was no rule to this affect he would have said so.
In addition,
although it is unclear, it appears that the Third Respondent also
concedes that there was such a rule but attempts
to exculpate himself
from his conduct in not following it.
[4]
[8]
The Third Respondent attended at a client of the Applicant, being a
Church
in Hillbrow. In order to do his work he utilised a stepladder
belonging to the client and was assisted by one Mr Dube, by all
accounts
an employee of the Applicant’s client.
[9]
At a point in time Mr Dube left the premises and left the Third
Respondent
to his own devices. At this point, contrary to the
work instruction in respect of the utilisation of stepladders, the
Third
Respondent continued using the stepladder and fell from it,
thereby harming himself.
[10]
As a result of the Third Respondent’s conduct in utilising the
ladder contrary to
the safety instruction referred to above, the
Applicant disciplined him and gave him a written warning valid for 12
months.
It must be noted that this was not a final written
warning and, in addition thereto, there were no negative financial
implications
for the Third Respondent at all.
[11]
As set out above the First Respondent found that the conduct of the
Applicant had been
unfair, set aside the warning, and awarded the
Third Respondent R78 000 in compensation.
Grounds
of review
[12]
The essence of the Applicant’s complaint is that the
Commissioner blatantly erred
in respect of the evidence, overlooked
certain evidence and made errors in relation to other evidence.
[13]
The Applicant also advances the case that the award which was made by
the First Respondent,
showed a lack of judicial exercise of
discretion.
Analysis
[14]
The award made by the First Respondent demonstrates a number of
defects which are difficult
to reconcile with the standard of
reasonableness which is required of a commissioner.
[15]
In the first instance because, as set out above, it was common cause
that there was a rule
in place that ought to have prevented the Third
Respondent from conducting himself as he did, there is no basis upon
which the
First Respondent could have found to the contrary. The
First Respondent’s statement that “
the Applicant did
not commit misconduct by using a ladder without a second person
holding it as the Respondent failed to provide
him with an assistant”
is, with respect, a
non sequitir
.
[16]
The Applicant’s failure to provide the Third Respondent with an
assistant, even if
this was in some way culpable, did not excuse the
Third Respondent’s conduct. At best for the Third
Respondent it may
have mitigated in his favour to be given a lesser
sanction than the 12 month written warning. The severity of the
sanction
is not an issue which was dealt with at all by the First
Respondent. He could have enquired into whether a lesser
sanction
would have been appropriate but did not, and continued to
the unwarranted conclusion that there was no misconduct on the part
of
the Third Respondent.
[17]
The clear truth of the matter is that had the Third Respondent not
taken it upon himself
to work on, what he himself states to be an
unusually long stepladder, he would not have experienced the
misfortune which he did.
Lack
of judicial exercise of discretion in relation to the compensation
award
[18]
It must be borne in mind that the Third Respondent was not dismissed,
he did not suffer
any loss of salary, his written warning was not a
final written warning and there was no suggestion that the trust
relationship
between him and the Applicant had broken down. The
written warning was purely for the purposes of maintaining discipline
and health and safety at the Applicant.
[19]
In these circumstances it is grossly unreasonable for the First
Respondent to order the
Applicant to pay an amount of six months
compensation, even if he had been correct in respect of the unfair
labour practice.
[20]
In respect
of both the manner in which he dealt with the evidence as set out
above and the award he made, I find, as set out in
Sidumo
and Another v Rustenburg Platinum Mine Limited and Others
[5]
and as more recently restated in
Goldfields
Mining SA (Pty) (Kloof Goldmine) v Commission for Conciliation,
Mediation and Others
[6]
that the decision that the Commissioner arrived at is one that falls
outside the band of decisions to which a reasonable
decision maker
could come on the available material.
[21]
Accordingly I make the following order:
Order
1.The award is reviewed
and set aside;
2.There was no unfair
labour practice perpetrated by the Applicant in this matter;
3.I make no order as to
costs.
___________________________
Snider,
A J
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate Beckenstrater
Instructed
by:
Moodie and Robertson Attorneys
[1]
Page 13 of the pleadings.
[2]
Act 66 of 1995, as amended.
[3]
Page 7 of the pleadings at para 12.
[4]
Page 7 of the transcript at line 19 onwards.
[5]
[2007] 12 BLLR 1097
CC.
[6]
(2014) 35 ILJ 943 (LAC) at para 14.