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[2020] ZALCJHB 72
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Cable Tapes Africa v Sehunane and Others (JR1731/19) [2020] ZALCJHB 72 (12 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: JR1731/19
In
the matter between:
CABLE
TAPES
AFRICA
Applicant
and
COMMISSIONER
MATOME VICTOR SEHUNANE
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION Second
Respondent
SIFISO
EMMANUEL BIYASE
Third
Respondent
Decided:
In Chambers
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives
by email, publication on the Labour
Court’s website and released to SAFLII. The date and time for
hand-down is deemed to
be 10h00 on 12 May 2020.
Review
application – employee charged and dismissed for gross
negligence – the commissioner failed to apply his mind
to the
evidence before him – the arbitration award falls short of the
threshold of reasonableness.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
This
is an unopposed review application in terms of Section 145 of the
Labour Relations Act
[1]
(LRA).
The applicant Cable Tapes Africa (CTA) seeks an order reviewing and
setting aside the arbitration award issued by the first
respondent
(commissioner) under the auspices of the second respondent, the
Commission for Conciliation Mediation and Arbitration
(CCMA) under
case number GAJB28748-18 dated 28 July 2019. The commissioner found
that the dismissal of the third respondent, Mr
Sifiso Emmanuel Biyase
(Mr Biyase), was substantively and procedurally unfair. He
accordingly ordered CTA to pay compensation of
R121 240.00,
which is equivalent to 10 months’ remuneration.
[2]
CTA’s main impugn is that the
commissioner issued an unreasonable award.
Background
[3]
Mr Biyase had been in the employ of CTA
since 1 February 2012, holding a position of a Lamination Machine
Operator. CTA runs a business
of supplying tapes, films, water
blocking and armouring materials used in the Cable Industry. The
applicant has huge machines which
run for 24 hours.
[4]
On 1 November 2018, Mr Biyase was on
nightshift duty operating a laminating machine. The pump in the
machine started making a funny
noise. Upon inspection, he realised
that it was malfunctioning. He immediately reported the problem to
the Operations Manager,
Mr Shanon Sevnarayn (Mr Sevnarayn), who was
the only witness for CTA. According to Mr Sevnarayn, Mr Biyase
informed him that the
extent of the defect on the tape was minimal
hence he advised him to continue to run the machine.
[5]
The next day, 2 November 2018, the dayshift
personnel discovered that the whole tape that Mr Biyase was working
on was defective
and had to be scrapped. As a result, the applicant
suffered financial loss in the amount of R35 000.00. According to Mr
Sevnarayn,
Mr Biyase could not provide any reason why he had failed
to stop the machine when he realized that the defect on the tape was
extensive.
[6]
On the other hand, Mr Biyase was adamant
that he was not responsible for the incident and the losses suffered
by CTA. According
to him, the problem was caused by the faulty pump
which was not serviced and calibrated. He did report the incident to
the dayshift
personnel and supervisor. The dayshift personnel took
the pump to the workshop and it was replaced. When he reported for
night
duty on 2 November 2018, the machine was working perfectly.
[7]
Also, Mr Biyase testified that the machine
that he was running could not be stopped in order to salvage the
tape. Instead
what
he did, given the circumstances, was to rerun the pump.
[8]
Mr Biyase was charged with two counts of
gross negligence. A disciplinary inquiry was held on 9 November 2018.
He was found guilty
as charged and dismissed on 4 December 2018.
Following his dismissal, Mr Biyase referred an unfair dismissal
dispute to the CCMA.
Consequent to unsuccessful conciliation, the
matter was arbitrated hence the impugned arbitration award.
Legal principles and
application
[9]
At
issue is whether the impugned arbitration award is in line with the
reasonableness test laid down by the Constitutional Court
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd
and
Others.
[2]
[10]
Mr Biyase was charged with two counts of
gross negligence. Firstly, in that, on 1 November 2018, he produced
defected material in
relation to DAPL200 Adhesive miss on Jumbo Roll
52873 which resulted in financial loss to CTA. Secondly, in that, he
produced defect
material resulting in financial loss to CTA.
[11]
On the first count, it is common cause that
Mr Biyase did report the problem with the machine to Mr Sevnarayn.
Even though it is
disputed whether or not he specifically mentioned
that the pump was malfunctioning, Mr Biyase did report the problem
with the pump
at the end of his shift and it was accordingly
replaced. Mr Sevnarayn’s main qualm in this regard is that had
Mr Biyase stopped
the machine, the damage could have been mitigated.
In fact, it was his evidence that he gave Mr Biyase two suggestions
on how to
deal with the problem; firstly, to stop the poly, pull it
back and recoat, and, secondly, to take out the roll and stop the
entire
poly from what he had already laminated. Notwithstanding, Mr
Biyase failed to give regard to his suggestions.
[12]
Mr Biyase’s response was that instead
of being charged with gross negligence, he should have been charged
with insubordination
for failing to follow Mr Sevnarayn’s
suggestions. There is no merit on this assertion. CTA relied on Mr
Biyase’s skills
and experience in operating the laminating
machine. In the end, he had to use his discretion while exercising
due diligence. It
is clear that he never tried to stop the machine or
implement the suggestions he had been given by Mr Sevnarayn. Mr
Sevnarayn testified
that it would have taken two seconds to stop the
machine and mitigate the damage. Even if the damage had already
occurred when
the pump stopped, clearly stopping the machine could
have salvaged some of the product.
[13]
The commissioner placed undue emphasis on
the faulty pump. The negligence in this instance emanated from Mr
Biyase’s failure
to apply measures that could have lessened the
extent of the damage.
[14]
Moving
on to the second count of gross negligence. Mr Biyase’s main
defence was that he had been instructed to use a damaged
roller
because the order was urgent. However, during cross-examination he
was confronted with a version he had mooted during the
disciplinary
hearing which is totally different. In those proceedings his version
of defence was that the problem was with the
coating and not the
damaged roller. A comparison was then made between Mr Biyase and a
junior Machine Operator who managed to find
the problem and dealt
with it. To that, his answer was that ‘I find it strange’.
[3]
[15]
Mr Biyase was not a stranger to
ill-discipline. At the time of his dismissal, he was on a final
written warning for a similar offence
which was due to expire on 1
January 2019. This evidence eloped the commissioner’s
attention.
[16]
The
above annotations warrant that I brood over what constitutes the
misconduct of gross negligence. Tritely, in labour law, as
suggested
by Grogan, ‘negligence bears the same meaning as it does in
other areas of the law namely the culpable failure
to exercise the
degree of care expected of a reasonable person. In the workplace
context, the ‘reasonable person’ would
be the reasonable
employee with experience, skill and qualifications comparable to the
accused employee. The learned author continues
and says: ‘Negligence
may manifest itself in acts or omissions. The test is whether a
reasonable employee in the position
of the accused employee would
have foreseen the possibility of harm and taken steps to avoid that
harm. Employees may be guilty
of negligence even if no harm results
from their acts or omissions; what matters is if they might have
caused harm. Negligence
is akin to carelessness; if the employee
actually foresaw the harm, the misconduct would be classified as
deliberate, not negligent,
and would self-evidently be more serious.
Negligence and poor work performance overlap to the extent that work
negligently performed
is poor. However, poor work performance
connotes consistent slipshod work. A single negligent act seldom
warrants dismissal at
first instance, unless it is of a kind so gross
as to amount to recklessness.’
[4]
[17]
In the matter at hand, it is my view that
Mr Biyase was grossly negligent as in both instances CTA suffered
huge financial losses.
In addition, it is clear that the progressive
disciplinary measures did not yield any fruit. Hence, dismissal was
an appropriate
sanction.
[18]
On procedural fairness, the commissioner
made inconsistent findings in that he approved the procedure that led
to the dismissal
of Mr Biyase, while on the other hand, found that
the dismissal was procedurally unfair. There is merit in CTA’s
submission
that had the commissioner applied his mind to the evidence
and the findings that he made in his arbitration award, he would not
have made an order to the effect that Mr Biyase’s dismissal was
procedurally unfair, a finding which is unreasonable.
Conclusion
[19]
It follows that the impugned arbitration
award to the effect that Mr Biyase’s dismissal was procedurally
and substantively
unfair is not one which a reasonable decision maker
would have arrived at. As such, it stands to be reviewed and set
aside.
[20]
I deem it expedient not to remit this
matter back to the CCMA in the interest of justice. The issues were
properly ventilated during
the arbitration proceedings and the record
of those proceedings is patently adequate. I am, accordingly, in a
position to determine
the matter to its finality.
[21]
In the light of the findings which I have
arrived at above, it is clear that the dismissal of Mr Biyase was
procedurally and substantively
fair.
[20]
Therefore, I make the following order:
Order.
1.
The arbitration award issued by the first
respondent under the auspices of the second respondent, under case
number GAJB28748-18,
dated 28 July 2019 is reviewed and set aside and
substituted with the following order:
1.1
The dismissal of Mr Biyase is procedurally
and substantively fair.
2.
There is no order as to costs.
__________________
P.
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
[1]
Act
66 of 1995 as amended.
[2]
[2007] 12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC); See also
Head
of the Department of Education v Mofokeng
[2015]
1 BLLR 50
(LAC);
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074 (SCA).
[3]
See:
CCMA Record, p 22.
[4]
Grogan
John: Workplace Law 10th Ed 20090, ch 13-p 226