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IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
Case No. C701/99
In the matter between:
Kohler Flexible Packaging (Pty) Ltd APPLICANT
and
Commissioner H Mofsowitz, N O FIRST RESPONDENT
Commission for Conciliation, Mediation
& Arbitration SECOND RESPONDENT
South African Typographical Union
(On behalf of A Leo ) THIRD RESPONDENT
JUDGEMENT
PIENAAR, A J
INTRODUCTION
1. This is a review in terms of section 145 of the Labour Relations Act No 66 of 1995, as amended
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13 August 2008]
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(“the Act”).
2. The Applicant, Kohler Flexible Packaging (Pty) Limited, seeks to review the award of the First
Respondent, given under the auspices of the Second Respondent, the Commission for Conciliation,
Mediation and Arbitration (“CCMA”).
3. The First Respondent found the dismissal of the member of the Third Respondent, A Leo (“the
Employee”) to have been substantively unfair and reinstated the Employee in a lower position. No
compensation was granted in respect of the period from date of dismissal till date of the award
insofar as the First Respondent felt that the Employee was not entirely blameless.
4. The First and Second Respondents did not oppose the application for review.
BACKGROUND
5. The Employee was employed by the Applicant for approximately 24 years – The first 22 years as
an Assistant Laminating Operator and the last 18 months as a Laminating Operator.
6. The Employee was dismissed for gross negligence and had a valid final warning on his file for the
same offence.
7. The Applicant instituted 3 charges of gross negligence against the Employee. The charges, in
particular, referred to faulty lamination done by the Employee for 3 customers of the Applicant, i.e.
Dairy Belle, Avondale and E W Kings.
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13 August 2008]
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8. According to the Applicant, the gross negligence of the Employee, resulted in losses of
approximately R100 000. It was not disputed that the Applicant had to dump all the material
laminated by the Employee for such customers.
9. The Applicant was furthermore at risk of losing some of its customers (some from overseas) and
had to take precautionary measures in that regard. No customers were, however, lost as a result
of the Employee’s alleged misconduct.
10.The Employee pleaded guilty to the charge of gross negligence at the disciplinary enquiry and was
dismissed. Two appeal hearings were held and in both appeals, the Employee did not dispute his
guilt, but in essence submitted that the punishment was too harsh.
11.At the arbitration, the Third Respondent, who acted on behalf of the Employee, submitted that the
dismissal was both procedurally and substantively unfair.
12.The First Respondent, inter alia, determined that the dismissal was not procedurally unfair and I do
not intend to deal with issues pertaining to the procedures.
13.During the arbitration proceedings, the Third Respondent argued that the Employee was not guilty
of the offence insofar as “he never came to work to wilfully cause gross negligence”. The
Applicant was furthermore blamed for difficult working circumstances and lack of trained
personnel.
14.Four Employees testified on behalf of the Applicant at the arbitration proceedings. Mr Collin
Geldenhuys, the Laminating Manager, testified that the operator (i.e. the Employee) is ultimately
responsible for the quality and quantity of work produced.
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15.He referred to the specific incidents of gross negligence and said that it was “due to bad operating
practices”. According to Mr Geldenhuys, the Employee could have rectified the errors, but failed
to do so. The material eventually had to be dumped and none could be re-used.
16.Mr Geldenhuys furthermore referred to the minutes of the disciplinary enquiry where it was
admitted that the Employee was, in fact, informed by the Quality Controller (“QC”) that the
material was substandard and that the Employee had to stop running it. This was in respect of the
Gouda contract for Dairy Bell.
17.According to Mr Geldenhuys, the Employee’s representative at the disciplinary enquiry specifically
stated at the end of the enquiry: “nothing I can say, the jobs messed up. Pure negligence. He had
a warning from QC and carried on. It’s difficult for me to defend him.”
18.Most of the above was disputed under cross examination at the arbitration proceedings and the
problem was, in particular, blamed on the assistant laminator, poor training of staff, lack of
supervision by the management of the Applicant, etc.
19.Mr J Jacobs, the Store Manager and Chairperson of the enquiry, was the second witness called to
testify on behalf of the Applicant. Mr Jacobs testified that the Employee pleaded guilty at the
enquiry and admitted that he had committed the acts of gross negligence.
20.Mr Jacobs took into consideration that the Employee was informed that his work on the particular
day was of a substandard nature, but continued with the lamination. Given the damage suffered
by the Applicant and the final written warning the Employee had on his record for the same
offence, Mr Jacobs decided to terminate the Employee’s services.
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21.Mr Jacobs furthermore referred to the damages suffered by the company and more in particular
with regard to one job where 750 kilograms of material had to be destroyed at a cost of R50.00
per kilogram. (This amounts to R37500.00).
22.Mr Q T Augustyn was the third witness to testify on behalf of the Applicant. He is the Technical
Director of the Applicant and presided over the appeal hearing. Augustyn confirmed that the
appeal was essentially based on the severity of the punishment and furthermore that the
Employee had a new assistant on the machine.
23.According to Mr Augustine, the Employee, however, only objected to the harshness of the
sentence at the appeal enquiry.
24.Mr Wessels was the last witness to be called on behalf of the Applicant. He presided over the
second appeal lodged by the Applicant. The appeal was based on the harshness of the penalty
and that the Machine Assistant was not fully trained. This witness again confirmed that the
company suffered well over R100000.00 damages due to the Employee’s negligence and dealt
with the potential loss of further customers - in particular, the risk of being delisted by
supermarkets. The factors listed above and considerations of the previous chairpersons, were also
considered by Mr Wessels, who upheld the dismissal.
25.Mr H S Makka, who represented the Applicant at the disciplinary enquiry, testified on behalf of the
Employee. Mr Makka testified that the Employee was a good worker, but that operators were
under pressure because the Applicant constantly employed new people. He also complained
about the Applicant’s structure that collapsed because of the flattening thereof.
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26.According to Mr Makka, the Employee also had a new assistant, which caused some of the
problems. Mr Makka disputed the fact that the Employee was advised by the QC to stop running
the machine when the material became faulty. He, however, confirmed that the operator is
ultimately responsible for the quality of work on the machine.
27.Mr S K Johnson, a Laminating Operator, was the second witness to be called on behalf of the
Employee and essentially testified about alleged inconsistency by the Applicant, which allegations
were not accepted by the First Respondent.
28.The Employee himself testified. According to the Employee, the QC never advised him to run the
machine slower or to stop the machine. He, however, admitted that the QC informed him that
there were blisters on the material.
29.The Employee denied the charge and, inter alia, stated, “I am not a person that is negligent or do
something on purpose.” He admitted that he had to take full responsibility as an operator for the
lamination of material on the machine. According to the Employee, he pleaded guilty at the
disciplinary enquiry because he was shocked and it was “so sudden”.
30.The Employee used the PTM sheets to corroborate his version that there was no instruction from
the QC to stop the machine. The PTM records were not placed before this Court.
31.In closing arguments, Mr D Fredericks, the representative of the Employee at the arbitration, inter
alia, argued that “Mr Leo hasn’t got the ability to express himself and that his innocence comes
through in that he has got more ability obviously with his hands, than to understand terminology,
etc.”
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AWARD
32.The First Respondent set the dismissal aside and ordered that the Employee be re-employed in the
capacity of an Assistant Operator. Insofar as the Employee was not entirely blameless, the First
Respondent did not award any compensation for the period of unemployment.
33.The First Respondent furthermore found that the Applicant mechanically followed the route
prescribed by the Disciplinary Code and Procedure without consideration of the merits of the case.
She then stated that if she had found the Employees guilty of gross negligence, she could not
easily interfere with the decision to dismiss. However, she did not find him guilty of gross
negligence. The Employee’s conduct according to the First Respondent was at worst negligence
or careless or at best as poor work performance arising from an inability to perform the work
satisfactorily. The First Respondent was furthermore not persuaded that the Employee fully
understood the Applicant’s interpretation of gross negligence, but rather pleaded guilty of
“messing up the work”.
34.The First Respondent surprisingly found that the Applicant did not present evidence at the
arbitration in respect of the damages it suffered “to tilt the balance of probabilities in their
favour”.
35.The First Respondent furthermore found that no details were provided by the Applicant in respect
of the material that was dumped and that same could also be caused by inadequate work
instructions and inaccurate master folders. According to the First Respondent, the Applicant failed
to provide sufficient evidence to convince her of the Employee’s contribution to waste in the
company, or the Employee’s contribution to the financial losses suffered by the Applicant.
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36.The First Respondent held that the Laboratory Technician, Mr Roy Collins, should have been called
as a witness in respect of the allegation that he instructed the Employee to stop the particular job.
The testimony of Mr Collins was important, insofar as this allegation was disputed at the
arbitration proceedings.
37.The First Respondent held that the dismissal was a “scapegoat” dismissal as the Applicant had to
make an example of someone.
GROUNDS FOR REVIEW
38.The Applicant’s specific grounds for review as argued related to:
38.1.The First Respondent’s finding that the Employee was not guilty of gross negligence.
38.2.The opportunity to allow the Employee and his representative to make a reference and submit
a PTM Report, without affording the Applicant an opportunity to respond thereto.
38.3.The First Respondent was wrong in finding that no evidence was led with regard to the
damages.
38.4.There was no basis for the First Respondent in deciding that the dismissal was a “scapegoat”
dismissal of the Employee.
TEST FOR REVIEW
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39.The test for review are set out in the decision of the Labour Appeal Court Carephone (Pty) Limited
v Marcus NO & others (1998) 19 ILJ 1425 (LAC ). According to the Labour Appeal Court the
reviewing court must ask itself, amongst other things, the following question:
“Is there a rational objective basis justifying the connection made by the administrative decision
maker between the material properly available to him/or her and the conclusion he or she
eventually arrived at?”
40.The essence of the enquiry is whether the First Respondent’s award can be supported by the facts
properly presented to her or not. If the award is so supported, it is impermissible for the review
court to interfere.
41.I am aware of the criticism raised by some of my brothers in this Court in respect of the test
applied in the Carephone case, but am obliged to follow this decision of the Labour Appeal Court.
FINDING
42.The First Respondent found that no evidence was led in respect of the financial loss caused by the
Employee. According to her award, such evidence could tilt the balance of probabilities in the
Applicant’s favour.
43.It is difficult to see on what basis the First Respondent made such findings, particularly given Mr
Geldenhuys and Mr Jacob’s evidence as set out above, which in fact, detailed how the losses in
one particular incident were made up.
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44.One must further bear in mind that section 138 of the Act requires the commissioner to determine
a dispute fairly and quickly and furthermore deal with substantial merits of the dispute with the
minimum of legal formalities. I do not think it was ever the intention of the legislator to require
from an employer, in a case such as this, to present further or additional evidence than what was
presented. One must also bear in mind the damage to the Applicant’s name and reputation. It
was clear from the evidence that the damages suffered by the Applicant, were substantial.
45.This finding is material to this matter given the First Respondent’s own view that this could have
tilted the balance of probabilities in the Applicant’s favour. The First Respondent’s finding that no
evidence was led in respect of the financial losses suffered cannot be justified. The First
Respondent’s award can furthermore not be supported by the facts properly presented to her and
constitutes a gross irregularity in terms of the Act. The award should be set-aside on this basis
alone.
46.Given my finding in respect of the above, I will briefly deal with the other grounds for review.
47.In determining the nature of the conduct of the Employee, the First Respondent found that the
Employee was not guilty of gross misconduct, but at worst that he was negligent or careless. It
was submitted on behalf of the Applicant that the First Respondent was not entitled to interfere in
such decision of the Applicant, more in particular given the Employee’s plea of guilty at the
enquiry, the submissions made by the Employee’s representative in this regard, the fact that the
Employee did not rely on same during both the appeal hearings and lastly, that the First
Respondent is bound by the standards, set by a particular industry with regard to negligence,
gross negligence or otherwise as long as it is fair.
gross negligence or otherwise as long as it is fair.
48.According to the Applicant, the Employee could not give a proper explanation during the
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arbitration proceedings why he pleaded guilty and his representative merely referred to the
Employee’s inability to express himself well.
49.I can find no basis for the First Respondent’s interference in the Applicant’s decision and finding
given the factors set out above. The First Respondent classified the conduct of the Employee as
“at most negligent” and stated that the Employee pleaded guilty of “messing up the work”. This
decision can simply not be justified on the evidence led at the enquiry as well as during the
arbitration proceedings. Although, the arbitration proceedings are of a de novo nature, the First
Respondent could not ignore the evidence led at the disciplinary enquiry, particularly where it was
not disputed.
50.Insofar as the PTM reports are not before this Court it is not possible to make a finding in that
regard. Given the evidence led at the enquiry, it was in any event up to the Applicant to call its
own witness to corroborate the QC’s versions. The PTM report is a document of the Applicant and
the particular witness could have been cross-examined on that, insofar as it was necessary to do
so.
51.Lastly, the First Respondent referred to the dismissal as a “scapegoat” dismissal. She relied on
the argument advanced by the Employee’s representative in making this assumption insofar as no
evidence was put before her to substantiate this finding. It is uncertain what value the First
Respondent attached to this inference. This finding can, however, also not be justified on the
evidence led.
APPROPRIATE RELIEF
52.The relief sought by the Applicant is that the award be set aside and be referred to the CCMA to be
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adjudicated before a new commissioner.
ORDER
53.It is ordered as follows:
53.1.The award dated 12 November 1999 under Case No WE22606 is hereby reviewed and set aside.
53.2.The matter is referred to the Second Respondent to be dealt with de novo before a different
commissioner in light of the Court’s findings.
53.3.There is no order as to costs.
CASE LAW REFERRED TO:
54.The following case was referred to in the above-mentioned judgement:
Carephone (Pty) Limited v Marcus NO & others (1998) 19 ILJ 1425 (LAC).
ACTING JUDGE PIENAAR
15 September 2000
PARTIES APPEARING BEFORE THE COURT:
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APPLICANT:
Adv P B J Farlan
(Instructed by Cliff Decker Fuller Moore Inc)
THIRD RESPONDENT:
Attorney J White
Chenells Albertyn
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