Aspen Pharmacare v National Bargaining Council for the Chemical Industry and Others (PR 196/20) [2023] ZALCPE 4 (29 March 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

CASE NO: PR 196/20

In the matter between:

ASPEN PHARMACARE Applicant and NATIONAL BARGAINING COUNCIL FOR THE CHEMICAL INDUSTRY First Respondent TERRY MALGAS-SENYE N.O. Second Respondent JULIUS GOEDA Third Respondent

Heard: 3 August 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant’s and the Third Respondent’s legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 14h00 on 29 March 2023.

JUDGMENT

LALLIE, J

[1] The employment relationship is based on trust and when that trust is destroyed the relationship cannot survive. Acts of dishonesty contribute to the breakdown of an employment relationship. The applicant conducts business in the pharmaceutical sector. It employed the third respondent as a maintenance foreman. In late March 2019, while the third respondent was an acting maintenance manager, the applicant secured the services of independent contractors to refurbish its wash bay area. The third respondent had to inspect and ensure that the work had been done properly. He, as a result, went to work on Sunday 31 March 2019 and on 27 April 2019 which was a public holiday. The applicant then claimed a call out payment for both days. Based on the information the third respondent provided in his claim documents the applicant conducted an investigation which led to disciplinary action being taken against him. The third respondent was then dismissed for the dishonesty of fraudulently claiming the call-out allowance in March and April 2019. He referred an unfair dismissal dispute to the first respondent. The second respondent hereinafter referred to as

the arbitrator, arbitrated the dispute and issue an award in which she found the dismissal substantively and procedurally unfair and reinstated the third respondent. In this application the applicant seeks an order reviewing and setting the award aside. The application is opposed by the third respondent.

[2] The applicant’s main grounds for review are that the arbitrator committed gross irregularities in the conduct of the arbitration and reached an unreasonable result which should be reviewed and set aside. It was the applicant’s case that it proved both the substantive and procedural fairness of the third respondent’s dismissal but the arbitrator decided, contrary to the evidence tendered, to reach the decision under review. The third respondent’s basis for opposing the application is that the decision is based on the evidence and is correct and reasonable.

[3] The factual background to this dispute is that Mr Cassie (Cassie), who is employed by the applicant as an engineering manager observed that the third respondent’s claim documents reflected that he was called out by production on 31 March 2019 and by Messrs Goosen and Knoetze on 27 April 2019. When he made enquiries from the individuals they denied having called the third respondent out to the applicant’s site to attend to emergency work. When Cassie confronted the third respondent about the information he told him that the call outs were initiated by his direct line manager Mr Sikhundla (Sikhudla). The arbitrator noted that Cassie expressed the view that the third respondent was dishonest as there was no need for him to be on site on the 2 dates in the absence of evidence proving that he had been called by an employee of the applicant to the site.

[4] The arbitrator accepted Cassie’s evidence that the applicant’s policies differentiate between call-out and overtime pay. An employee performs call out duties when the employee, having completed his or her shift and left the applicant’s premises is called to return to the site to attend to an emergency. If the employee spends more than 30 minutes attending to the emergency, he or she is entitled to claim a call out payment of four hours’ pay. Overtime is predetermined and an employee is told in advance that he or she will be required to work after completing his or her shift or to return to site over a weekend to complete a particular task. Overtime pay is calculated on the actual hours worked.

[5] The totality of the evidence which served at arbitration must be taken into account when the reasonableness of an arbitration award is determined[1]. As the applicant relied on gross irregularities made by the arbitrator in the conduct of the arbitration he had to establish that the errors resulted in the arbitrator reaching an unreasonable decision[2].

[6] The arbitrator conducted the correct enquiry in that she enquired into the fairness of the third respondent’s dismissal for fraudulently claiming the call out pay for 31 March and 27 April 2019. She, however, conducted it incorrectly. It is common cause that in determining the fairness of the dispute the arbitrator was required to establish whether the applicant had proved that the third respondent should have claimed overtime instead of the call out rate he claimed for the work he did on the 2 days in question. It was the third respondent’s evidence that the work he did falls under the definition of a call out and he did it in terms of Sikhundla’s instructions. In accepting this version the arbitrator took into account that both applicant’s witnesses were not physically involved when the applicant claimed for the call outs. She explained that the witnesses were not present when Sikhundla instructed the third respondent to do whatever needed to be done in order to finalise the wash bay refurbishment. The arbitrator further found that the witnesses agreed with the third respondent’s version in that Sikhundla was the third respondent’s line manager and signed and approved the third respondent’s claims.

[7] It was argued on behalf of the applicant that in preferring the third respondent’s version the arbitrator failed to take into account common cause evidence which disproved the version. The material evidence which the arbitrator overlooked was that when making the impugned claims, the third respondent recorded that he had been called out by the production department, Goosen and Knoetze who denied having called him. It is on being questioned on which employee of the applicant called him out that he altered his version and said he had been instructed by Sikhundla to do whatever needed to be done to ensure that the wash bay was ready before the audit. The arbitrator did not reject the evidence of Mr Theron (Theron) that the wash bay refurbishing project fell under him and that Sikhundla did not fit into the team. The arbitrator further overlooked the applicant’s evidence that there was no proof that Sikhundla had authorized the call outs. She failed to take into account that at the time Sikhundla was authorizing the third respondent’s call out payment he was not aware that the claim was based on the third respondent’s version that he had acted on his instructions. The claim documents reflected that the third respondent had been called out by the production department, Goosen and Knoetze. The totality of the evidence that was properly placed before the arbitrator proved that the applicant had proved the substantive fairness of the third respondent’s dismissal and that his defence of acting on Sikhundla’s instruction was a fabricated after thought. On the third respondent’s own version Sikhundla had given him the instructions at the Friday meetings preceding the dated on which the work was done. The work was therefore pre-determined and fell outside the definition of a call out.

[8] It was the applicant’s case that the arbitrator unreasonably found the third respondent’s dismissal procedurally unfair without giving a reason for the finding. In determining the validity of the applicant’s contention, I have taken into account the third respondent’s counter arguments to the effect that the reasons can be found ex facie the award. In Quest Flexible Staffing Solutions (Pty) Ltd (a division of ADCORP Fulfilment Services (Pty) ltd v Legobate[3] the following was held:

“…. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is nevertheless capable of justification for reasons other than those given by the arbitrator. The result will, however, be unreasonable if it is entirely disconnected with the evidence unsupported by any evidence and involves speculation by the arbitrator”.

[9] I accept the third respondent’s submissions that the arbitrator dealt with the issue of the procedural fairness of his dismissal and based her decision on the evidence presented at arbitration. The evidence consists of Cassie’s concession that it was unfair to expect the applicant to get a shop steward to represent him at his disciplinary enquiry within a period of 10 minutes. Although disciplinary enquiries are not required to be conducted like criminal trials, when an employer informs an employee that he or she has a right to be represented by a shop steward, that employer has an obligation to ensure that the employee is able to exercise the right. The arbitrator took into account that the shop steward who was supposed to represent the third respondent withdrew very late owing to his participation in a strike. The request for legal representation the third respondent made at the beginning of his disciplinary enquiry was interrupted by a member of the human resources personnel who informed him that legal representation was not allowed. The interruption denied the chairperson the opportunity of considering the request and the applicant was forced to read the applicant’s bundle he had just received and present his own case. The evidence and the concession support the third respondent’s version that the arbitrator’s decision on the procedural fairness of his dismissal is reasonable.

[10] As the finding on the procedural fairness of the third respondent’s dismissal was not vitiated, both parties were partially successful. Making a costs order will, in the circumstances not be appropriate.

[11] In the premises, the following order is made:

Order:

1. The second respondent’s decision that the third respondent’s dismissal was substantively unfair and the relief, she granted based on that decision in the arbitration award issued by the first respondent on 19 November 2020 under case number ECPC 5296 – 19 is reviewed and set aside and substituted with the following:

1.1 The third respondent’s dismissal was substantively fair.

2. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Adv. Grobler Instructed by: Kirchmanns Inc. For the First Respondent: Adv. Voultsos Instructed by: Joubert Galpin Searle

[1] Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others [2014] 1 BLLR 20 (LAC)

[2] Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC) para 32.

[3] (2015) 36 ILJ 968 (LAC) Para 12