Auto X (Pty) Ltd v Gruss obo DRC Motor Industry Bargaining Council and Others (PR 141/2021) [2023] ZALCPE 19 (10 August 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case No: PR 141/2021

In the matter between:

AUTO X (PTY) LTD Applicant and JONATHAN GRUSS (CITED IN HIS CAPACITY AS ARBITRATOR OF DRC: MOTOR INDUSTRY BARGAINING COUNCIL (DRC-MIBCO) First Respondent THE DRC: MOTOR INDUSTRY BARGAINING COUNCIL Second Respondent MARTHINUS JOACHIM VAN ZYL Third Respondent

Heard: 22 February 2023

Delivered: This judgment was handed down electronically by circulation to the applicant’s and the respondent’s legal representatives by email, publication on the Labour Court website and release to SAFLII. The date for handing down is deemed to be on 10 August 2023.

JUDGMENT

NONGOGO, AJ

[1] This is an application brought in terms of sections 145 and 158 (1)(g) of the Labour Relations Act[1], to review and set aside the arbitration award issued by the first respondent (the arbitrator) on 6 July 2021.

[2] The applicant (Auto X) also seeks an order that the dismissal of the third respondent (the employee) be declared substantively and procedurally fair and alternatively that the matter be remitted to the second respondent (the bargaining council) for arbitration before another arbitrator.

[3] The employee appeared before a disciplinary hearing on the following charge:

‘Gross negligence and/or breach of company policy and/or gross dereliction of duty in that: on 21 January 2020, you were called to a breakdown at BM line 1 Cos for the lead pump that was tripping the supply. You consequently failed to follow proper fault-finding procedures, and assumed that the pump was faulty, after which you instructed the operator to change the pump. When the pump was changed, the tripping persisted, and it became apparent that it was not the pump that caused the tripping, only then did you apply proper fault finding procedures, and it was discovered that the problem was due to a faulty circuit breaker, your action aforementioned caused a total of 115 minutes downtime, which could have been avoided had you applied proper fault-finding procedures from the start.’

[4] The employee was found guilty by the chairperson of the disciplinary hearing and a sanction of dismissal was imposed. The employee was employed as an electrician by Auto X for 20 years until his dismissal on 17 February 2020.

[5] Dissatisfied with the outcome of the disciplinary hearing the employee referred an unfair dismissal dispute to the bargaining council. The arbitrator in his award found that the employee’s dismissal was unfair and ordered Auto X to reinstate the employee with retrospective effect and pay him R190 899.96, equating to 6 months’ salary.

[6] In the arbitration hearing Auto X’s engineering manager, Mr North testified that the employee was instructed to attend to a breakdown of a lead pump which was tripping. The main thrust of his evidence was that the employee was responsible for attending to electrical faults as well as general maintenance of electrical equipment at Auto X.

[7] He testified that on the day in question, the employee failed to follow proper fault-finding procedures to establish the cause of the tripping. Consequently, there was a down time of 115 minutes and loss of production equating to R122 000.00.

[8] According to Mr North, the employee ought not to have instructed the operator to change the pump without starting at the source of the problem, that is checking the circuit breaker. He did not accept the employee’s explanation that 9/10 times it is the pump’s element that causes problems. According to Mr North, had the employee followed the proper fault-finding procedure he would have established that there was no need to change the pump as it was the circuit breaker which was faulty.

[9] Mr North stated that there were no formal or standard operating procedures to follow in checking faults. However, it was expected of the employee as a qualified electrician to follow fault-finding procedures based on his experience.

[10] Mr Mc Innes also testified on behalf of Auto X. He gave evidence that he has been employed as an engineering manager in various factories for 40 years. His evidence was that the employee ought to have asked the operator what the problem was and tested the circuit breaker. He would then test the voltage of the circuit breaker, conduct an investigation by moving to the back of the machine to unplug the

female plug, check the elements and test the cables. He would not remove the pump at the first instance but rather remove and replace the elements.

[11] The employee’s evidence is that based on his knowledge, expertise and experience he changed the pump 9/10 times, it is the pump that causes tripping.

[12] Mr Carelson testified and read his affidavit into the record which stated:

‘I hereby confirm that on 21st January 202 Mr M van Zyl was requested to attend to an electrical trip fault on the machine COS1 and after doing some testing including checking the cable, plug and evidence of pump 1 he concluded that the pump be replaced with another and I therefore did the change and replaced pump 1 with another. Mr van Zyl told me he will clean and inspect the elements and wiring of removed pump so that I can use it again, should I have the problems with second pump that I fitted, the replaced pump did not function properly mechanically and it was necessary to replace it again after which the original pump was then fitted again which Mr van Zyl fitted and tested. The original pump then operated for a few minutes after which it tripped again so Mr van Zyl then tested the circuit breaker amps and found that the circuit breaker was not correct and for the amps required and replaced a stronger circuit breaker and then machine operated okay after that.’

[13] Mr Carelsen would not confirm pumps were 9/10 times the cause of tripping but he did confirm that most of the time the problem was a pump. He confirmed that there would still be a need to do a fault-finding. He also stated that he was not an electrician and was unable to comment on what a correct fault-finding procedure is.

[14] Mr Nabian Smith also testified on behalf of the employee that they usually check the elements and if the elements are faulty, they normally replace the pump. He stated that it is not ideal to work on the pump on the spot, it takes less time to replace the pump. He testified that the common problem is the faulty elements when the power is tripping. He confirmed that there is no standard operating procedure (SOP) for fault-finding. He was adamant that each machine requires the SOP when it comes to fault. He said 9/10 times it is the elements that are faulty.

[15] Mr Martinus Snyman, a previous foreman at Auto X, testified on behalf of the employee. His evidence was that there were no written fault-finding procedures at Auto X. It was common procedure and norm that if there was a problem with a pump, a new pump would be fitted so as not to waste time ‘fiddling’ around the pump.

[16] He testified that Mr van Zyl eventually fixed the problem by changing a circuit breaker after the pump swop did not solve the problem. Under cross-examination, he maintained that you have to swop the pump around and as fast and safely as possible. He stated that the procedure is to swop the pump and check thereafter. According to him, the employee did nothing wrong.

[17] The arbitrator found that the employee was not guilty of the charge. The reasoning of the arbitrator was based on the fact ‘there is no standard operating procedure (SOP) in place that prescribes a specific fault-finding procedure’.

[18] The arbitrator also accepted the evidence of the employee and his witnesses that it was a norm for them to change the pumps and then clean elements after the pump had been removed. The proposition by Auto X that the employee should have followed fault-finding procedures in the absence of fault-finding procedures was rejected by the arbitrator.

[19] The arbitrator also considered the steps taken by the employee and the problems he encountered in attending to the tripping of the earth leakage switch. Firstly, the new pump had a mechanical problem. Secondly, the element of the old pump had to be cleaned due to lead spattering in its setting and thirdly the earth leakage was faulty.

[20] The issue the arbitrator had to determine is whether the employee’s conduct constituted gross misconduct. In Transnet Ltd t/a Portnet v The Owners of the MV “Stella Tingas” and another[2], the court held that for conduct to be gross negligence:

‘…the conduct in question, although falling short of dolus eventualis, must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious

risk-taking, a total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity.’

[21] At the heart of this matter is that each electrician is expected to use his/her experience and expertise when tackling the problem. It was argued on behalf of the employee that if the procedure used is not the correct procedure it does not necessarily equate to negligence. It was strongly argued that for negligence there must be a workplace rule, which in this case would have been a standard operating procedure (SOP). On the other hand, it was argued on behalf of Auto X that the absence of SOP was immaterial. It was a standard procedure for an electrician to do fault-finding.

[22] The test for review is settled. In Sidumo & Another v Rustenburg Platinum Mines (Pty) Ltd & Others[3] the Constitutional Court held that the test ‘…Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...’ The test implores the court not to consider a review as if it is an appeal.

[23] In Fidelity Cash Management Service v CCMA & Others[4] the court held that:

‘It will often happen that, in assessing the reasonableness or otherwise of an arbitration award or other decision of a CCMA commissioner, the Court feels that it would have arrived at a different decision or finding to that reached by the commissioner. When that happens, the Court will need to remind itself that the task of determining the fairness or otherwise of such a dismissal is in terms of the Act primarily given to the commissioner and that the system would never work if the Court would interfere with every decision or arbitration award of the CCMA simply because it, that is the Court, would have dealt with the matter differently. Obviously, this does not in any way mean that decisions or arbitration awards of the CCMA are shielded from the legitimate scrutiny of the Labour Court on review.’

[24] The evidence clearly establishes that the electricians would exchange pumps as a first port of call as in their experience that was almost always the reason for the tripping of power. The fact that the employee’s chosen procedure on this occasion did not solve the problem and led to downtime does not amount to dereliction of duty or negligence. In the employee’s opinion, which is reasonable in the circumstances, swopping the pump would have expeditiously solved the problem. It was unbeknown to him that the new pump had a mechanical problem. A relevant factor is that the evidence shows the employee also had to attend to another breakdown after he gave the instruction for the pump to be exchanged.

[25] On the evidence the employee’s judgment to swop the pump was intended to expeditiously resolve the problem based on his experience. In these circumstances, his choice of solution in the absence of a prescribed standard operating procedure cannot amount to negligence. Even though his chosen method to resolve the problem was post facto proven to be wrong, that is not negligent. To be wrong in the performance of duty does not always equate to negligence.

[26] In my view the arbitrator’s decision is not unreasonable. The evidence before the arbitrator supports the finding that the employee was not guilty of the offence of gross misconduct. Accordingly, there is no proper basis to interfere with the arbitration award.

[27] The following order is made:

27.1 The application for review is dismissed.

27.2 There is no order as to costs.

N Nongogo

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Ms. Moyo

Snyman Attorneys

For the third Respondent:

Mr Laubscher

Stuart Laubscher Incorporated

[1] Act 66 of 1995, as amended.

[2] [2003] 1 All SA 286 (SCA); [2002] ZASCA 145 at 291.

[3] 2008 (2) SA 24 (CC); [2007] ZACC 22 at para 110.

[4] (2008) 29 ILJ 964 (LAC); [2007] ZALAC 12 at para 98.