3Q Concrete (PTY) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 361/2020) [2022] ZALCJHB 134 (8 June 2022)

The Labour Court of South Africa, Johannesburg

Not Reportable

Case No: JR 361/2020

In the matter between:

3Q CONCRETE (PTY) LTD

Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

JOSEPH NGOBENI N.O.

Second Respondent

NUMSA obo SITHOLE DM

Third Respondent

Heard: 7 June 2022

Delivered: 8 June 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 8 June 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks to review and set aside an arbitration award issued by the second respondent (the arbitrator) on 5 February 2020. In his award, the arbitrator held that the dismissal of the third respondent (the employee) by the applicant was unfair and ordered the applicant to reinstate the third respondent with retrospective effect.

[2] The factual background as recorded in the award under review, and need not be repeated here. The applicant conducts a business concerned with the provision of ready mix concrete for the commercial, mining and construction sectors and employees truck drivers to transport and deliver ready mix concrete to its clients. The employee was dismissed for misconduct on 16 July 2019, after a disciplinary hearing into charges of gross misconduct, including interference with employees and the execution of their duties, insubordination and discourteous behaviour and failure to comply with an instruction issued by his supervisor. At paragraph 65 of his award, the arbitrator in effect records that the issue in dispute is whether or not the employee breached a workplace rule. At paragraph 69 of his award, the arbitrator came to a finding that the employee had committed an act of misconduct by interfering with production, in the form of him telling drivers that drilling their trucks was not their responsibility. (Drilling trucks refers to a process when concrete that is dried inside the trucks is removed.). At paragraph 76 of the award, the arbitrator finds that the employee did not commit an act of misconduct in his address to employees regarding the provision of food while working overtime; and at paragraph 84 of the award, he finds that the employee did not disrespect his supervisor. In short, in his analysis of the evidence,

the arbitrator appears to have found that the applicant had established that the employee had committed at least one act of misconduct. At paragraph 86 of the award, the arbitrator then, inexplicably, considers whether the rule that drivers ought to drill their trucks was reasonable. He finds, on grounds that are not entirely clear, that employees are entitled to refuse an unsafe instruction, and that the requirement that drivers be responsible for the drilling of trucks was unreasonable.

[3] In his consideration of the relief that ought to be granted, the arbitrator records that the employee had three years’ service, and that he had been financially prejudiced on account of his dismissal. The arbitrator further appears to have concluded that the applicant had taken the decision to ‘get rid of’ the employee.

[4] In essence, the applicant seeks to review the arbitrator’s award on the basis that having found that the employee had committed an act of misconduct, there was no reason for the arbitrator to conclude that his dismissal was substantively unfair, particularly given the fact that the employee had been found to have instructed its employees to ignore a lawful instruction and/or not to comply with the duties as required by the terms of their employment contracts. Insofar as the award suggests that it was unsafe for employees to drill trucks and that it was open to the applicant’s employees to refuse to comply with any such instructions on the basis of safety, the applicant contends that there was no evidence before the arbitrator to justify his coming to that conclusion.

[5] At the hearing of the review application, the employees’ representative did not take issue with the fact that the arbitrator had made a finding of a substantively unfair dismissal in the face of a finding that the employee had committed an act of misconduct. Ordinarily, given the fact that the award required the applicant to reinstate the employee retrospectively and unconditionally, the award should be set aside, since an award cannot be reasonable in circumstances where, as counsel for the applicant submitted, there is no consequence to a finding of misconduct.

[6] For the above reasons, in my view, the decision to which the arbitrator came is one that falls outside of the bands of reasonableness. The award thus stands to be reviewed and set aside.

[7] Insofar as remedy is concerned, the applicants sought to have the award substituted for one to the effect that the employee’s dismissal is found to be fair. The record is complete and the court is in as good a position as any other arbitrator would be to make a determination, and no purpose would be served in further delaying the matter by remitting the dispute for rehearing. The third respondent committed an act of serious misconduct which warranted his dismissal.

[8] For the purposes of section 162 of the LRA, the requirements of the law and fairness are best served by each party bearing its own costs

Order

1. The arbitration award issued by the second respondent on 5 February 2020 under case number MPEM 7079-19 is reviewed and set aside

2. The award is substituted by the following:

‘The third respondent’s dismissal was substantively and procedurally fair.’

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: X Mofokeng

Instructed by:

HM Chaane Attorneys Inc

For the third respondent: Union official