IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO: D577/2003
In the matter between:
SOUTH AFRICAN FIBRE YARN RUGS LIMITED Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER M M GOVENDER Second Respondent
PHILEMON JABULANI SHEZI Third Respondent
JUDGMENT
MURPHY, AJ
1. The Applicant has made application in terms of section 145 of the Labour
Relations Act to review the arbitration award handed down by the second
respondent (“the commissioner”) acting under the auspices of the first
respondent (“the CCMA”) in terms of which the commissioner found that
the dismissal of the third respondent (“the employee”) was substantively
unfair. The Commissioner awarded compensation to the employee in the
amount of R7000.00 (seven thousand rand) and reinstated him in his
employment with the applicant. The relevant factual background is largely
common cause, the only issue being the conclusions which follow and the
appropriate relief to be granted.
2. The employee was employed by the applicant in the position of a shift
manager with responsibility for the supervision of all production at the plant
during the course of a shift, including the supervision and maintenance of
safety for the entire plant during a shift. Normally, he would be the most
senior person on site for the duration of a particular shift.
3. Routinely the shift manager has responsibility for the “hand over process”
immediately prior to the termination of a shift. This involved meeting the
incoming shift managers to discuss production issues, machinery
performance and any general information that the outgoing shift manager
found necessary to pass onto the incoming shift manager. Production
sheets and other necessary information must be handed over to ensure
the efficient continuation of production.
4. At approximately 03H00 on the morning of 30 June 2003 and without
obtaining permission or advising any of the applicant’s supervisors, the
third respondent absented himself from the workplace. On that day his
shift cycle terminated at 07H00. However, production had ceased at 00h30
and the machines had been switched off. Although it was possible to
contact the manager of his department, Mr. Issoor, to make alternative
arrangements for the supervision of staff and the safety of the plant in his
absence, and despite senior operators being available, the employee
failed to hand over his responsibilities and simply absented himself without
advising anyone. Consequently, after he left there was no one at the plant
to take over his responsibilities and the employee was aware of this fact.
5. Management became aware of the employee’s conduct almost
immediately at the commencement of the next shift. It accordingly
immediately at the commencement of the next shift. It accordingly
convened a disciplinary enquiry, which ultimately led to the employee’s
dismissal. At the disciplinary enquiry, the employee justified his absence
on the grounds that he had experienced problems with his motorcar that
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was not roadworthy and was afraid to drive it home in daylight in case he
was apprehended by the police.
6. The employee referred his dismissal to the CCMA for conciliation and
arbitration. During the arbitration proceedings on 12 August 2003, his
explanation for his absence changed somewhat. On this occasion he
presented the justification that he had received a call from his wife at
approximately 03H20 advising him of the fact that his child was sick and
needed to dash home to attend to his child.
7. It is of particular importance to note that at both the disciplinary enquiry
and the arbitration the employee admitted his guilt to the charge of leaving
his workplace before time without permission. Accordingly I agree with Mr.
Buthelezi, who appeared on behalf of the employee at the review
proceedings, that since the employee had pleaded guilty to the charge in
question, albeit with an explanation, the real issue for determination by the
commissioner was whether the sanction of dismissal was fair in the
circumstances.
8. The commissioner made the following findings in his award. Regarding the
employee’s explanations for his desertion, he felt these were not
convincing, especially in the light of the two different explanations offered
at different times. He found reasonably that it was difficult to understand
why the employee would not have explained the matter of his child’s
illness to management in the first instance if that information were true.
Hence, he concluded that it was more likely that the employee had
manufactured the second reason when he realized that he needed to
produce a better reason for leaving than the one he had provided at the
disciplinary enquiry. If indeed his child had been unwell, he could simply
disciplinary enquiry. If indeed his child had been unwell, he could simply
have contacted Issoor who would then have delegated his responsibilities
to another employee.
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9. At both the disciplinary hearing and at the arbitration the applicant made
much of the fact that the nature of its production processes were such that
the potential for fire represents a real threat, by virtue of the fact that
certain material used in the manufacturing process is a natural fibre which
is flammable and capable of ignition by mere friction or spark. The
composition of the natural fibre is such that it is not necessary for the
production machinery to be functional in order to create a hazard in that
fluff arising from the process is around the machines at all times and an
electrical spark generated from the positive power supply could ignite the
product. The applicant was particularly concerned about fire by reason of
the fact that it had recently suffered an incidence of fire. In the light of this
submission by the applicant, the commissioner accepted that the
employee’s misconduct as a senior employee was serious.
10. The commissioner, however, contradicted himself on the extent of the
danger created by the employee’s actions. Firstly he found that the
employee’s suggestion that the risk of danger was mitigated or even
eliminated because the machines were off was not very convincing. He
accepted the respondent’s evidence that the fluff of the jute was capable
of igniting even when the machines were off, but more importantly
because an unsupervised employee could also have restarted the
machines. Later in the award he contradicts this by finding that the danger
created by the employer’s absence “was minimal at best”. During the shift
in question there had been only one machine in operation at the
commencement of the shift due to the lack of orders. As stated, the
commencement of the shift due to the lack of orders. As stated, the
machine was switched at about 00H30 and the production area was
thereafter cleaned up. In other words there was no production after that
time for the remainder of the shift.
11. Despite having received in evidence some indication that the employee
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had on two prior occasions absented himself without leave, without a full
discussion of the justifiability or otherwise of such absences, the
commissioner found that the misconduct of the employee was a first
offence and by virtue of that fact concluded that dismissal was not an
appropriate sanction. He accordingly reinstated the employee and
ordered the payment of back pay in the amount of R7000.
12. As I have already mentioned, since the employee had pleaded guilty to the
charge of unjustifiable absence, the real issue that the commissioner was
required to decide was whether the sanction of dismissal was fair in the
circumstances. In order to decide that issue it was necessary for him to
invite and hear evidence on the issues relevant to that determination. In
particular he needed to consider: the personal circumstance of the
employee; his length of service; the seriousness of the alleged
misconduct, in particular the exact nature and extent of the risks to which
the applicant was allegedly exposed as a result of the employee’s conduct;
whether the employee had received any particular instruction, training or
guidance regarding the necessity of securing the workplace from specified
risks at the workplace; whether the employee had any previous record of
misconduct, the exact nature of that misconduct and the disciplinary
sanction applied in respect of it; and any other evidence, including the
disciplinary code and the sanctions stipulated in it. All these factors were
relevant for the determination of the fairness or otherwise of the sanction
imposed in the circumstances.
13. It is clear from both the record and the award that the commissioner failed
to apply himself to these issues with the requisite degree of
professionalism and care.
professionalism and care.
14. Moreover from the record shows that the commissioner committed an
irregularity by depriving the parties an opportunity to submit closing
arguments on the question of sanction, despite a request to be allowed to
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do so. On this ground alone his award cannot stand.
15. Mr. Erasmus, who appeared on behalf of the applicant, made other valid
submissions in support of the applicant’s claim that the award is not
justifiable. However, seeing that Mr. Buthelezi is also of the view that the
award deserves to be set side by virtue of the failure of the commissioner
to properly address himself to the question of sanction, it is unnecessary to
canvass them. In the result the only issue is whether I should remit the
matter back to the CCMA for fresh consideration or substitute my decision
for that of the commissioner.
16. There is no evidence at all on record with regard to the personal
circumstances of the employee or his length of service. Nor is there any
evidence about his level of training or awareness of the safety issues at
hand, although in this latter regard one could safely assume a certain
degree of knowledge. Conceding this, Mr. Erasmus prevailed upon me to
have regard simply to the seriousness of the misconduct and in the light of
that to rank it more importantly than the other factors that normally would
come into play. Put in another way, he submitted that irrespective of the
lack of evidence concerning the employee’s length of service and his
personal circumstances, the gravity of the offence, in the light of his
previous misconduct, outweighs all other considerations, which in any
event would have been of little or no relevance or significance had there
been evidence regarding them.
17. I am inclined to agree rather with Mr. Buthelezi. He correctly, in my view,
submitted that there is also insufficient evidence as to the seriousness of
the alleged offence and few details of the previous incidence of fire:
whether it was small or big or how frequently fires occur at the applicant’s
whether it was small or big or how frequently fires occur at the applicant’s
premises. I also do not know whether the fire in question occurred during
production.
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18. Moreover, the applicant’s suggestion that the employee has evinced a
tendency towards dishonesty (adding to the seriousness of the alleged
misconduct) is also not borne out by the evidence. The two versions
advanced in justification of his actions are not mutually destructive
versions, of themselves necessarily justifying an inference of dishonesty.
Neither explanation is clearly elaborated on the record, both being
mentioned almost in passing. Moreover, some significance must be given
to the fact that the employee actually signed off before leaving the
premises. A dishonest employee would not sign off. Moreover, the
employee alleged at the arbitration that he had not been given an
adequate chance to tender a full explanation. This was not countered by
the applicant at the hearing, nor did the commissioner attach any
significance to it.
19. In addition the record shows that the employee tendered certain
explanations for his previous absences. It is not clear from the record or
the award whether these explanations were taken into account and hence
whether the previous discipline was indeed justified or not.
20. Section 145 of the LRA obliges this court to scrutinize the legality and
regularity of CCMA arbitration awards on review, and not to substitute a
decision by the Labour Court in place of the CCMA commissioner. The
section grants a power of review not appeal. As a general principle,
therefore, this court should be reluctant to substitute its own decision for
that of the CCMA. However, in exceptional circumstances and in the
interests of the speedy resolution of disputes, this principle may be
departed from. The court has a discretion, to be exercised judicially upon a
departed from. The court has a discretion, to be exercised judicially upon a
consideration of the facts of each case. Although a matter will normally be
sent back if there is no reason for not doing so, it is in essence a question
of fairness to both sides Livestock and Meat Industries Control Board v
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Garda 1961 (1) SA 342 (A) @ 349. In this regard the court will have regard
to: whether a fresh consideration would lead to a result which is a forgone
conclusion; the importance of time considerations; the willingness and
likelihood of the body being able to reapply its mind to the issues at stake;
any indications of bias or incompetence that cannot be remedied; and
whether the court is in as good a position as the functionary under review
to make the decision itself. In the present case it is this latter consideration
which to my mind is most important.
21. As I have said, the evidence on record regarding the personal
circumstances, length of service, previous misconduct and responsibilities
of the employee is simply not sufficient. More importantly, for the reasons
advanced by Mr. Buthelezi, I cannot make a clear determination of the
seriousness of the alleged misconduct, both because the evidence about
the risk of fire at the time when the machines are shut down is incomplete
and the evidence regarding prior misconduct is lacking in cogency. Hence,
even were I persuaded by Mr. Erasmus that the seriousness of the offence
would justify less weight being attached to the employee’s length of
service and personal circumstances, I would still not be in a position to
determine the fairness of sanction. Generally, it is not appropriate to
dismiss an employee for a first offence, except if the misconduct is serious
and of such gravity that it makes a continued employment relationship
intolerable. The Code of Good Practice in Schedule 8 to the LRA makes it
clear that when deciding whether or not to impose the penalty of dismissal,
the employer should in addition to the gravity of the misconduct consider
factors such as the employee’s circumstances (including length of service,
factors such as the employee’s circumstances (including length of service,
previous disciplinary record and personal circumstances), the nature of the
job and the circumstances of the infringement itself. To recap there is
absolutely no evidence at all on the employee’s length of service or his
personal circumstances. And the evidence on both previous misconduct
and the circumstances in which the infringement occurred was less than
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satisfactory. I am accordingly unable to substitute my decision for the
arbitrator’s.
20. In the premises, I make the following orders:
20.1The award of the second respondent under case KN14551/03 dated
21 August 2003 is hereby reviewed and set aside.
20.2The matter is remitted back to the first respondent for fresh
consideration by a Senior Commissioner other than the second
respondent within six (6) weeks of the date of this order.
20.3There is no order as to costs.
MURPHY, AJ
Date of hearing: 17 March 2005
Date of Judgment: 20 April 2005
For the Applicant: Mr. R.J. Erasmus
Deneys Reitz Attorneys
For the Respondent: Mr. Z.E. Buthelezi
Buthelezi Inc.
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