CEPPWAWU obo Thoka and Another v National Bargaining Council for the Chemical Industry and Others (JR2624/17) [2021] ZALCJHB 379 (19 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2624/17

In the matter between:

CEPPWAWU OBO THOKA, P & MBHELE, L Applicant

and

NATIONAL BARGAINING

COUNCIL

FOR THE CHEMICAL INDUSTRY First

Respondent

OLOTA, L N.O. Second

Respondent

AFROX LIMITED Third

Respondent

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives through email. The date for hand-down is deemed to be 19 October 2021.

JUDGMENT

MAHOSI. J

Introduction

[1] This is an application brought by CEPPWAWU on behalf of its members, Mr Thoka and Mr Mbhele (the employees), in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award dated 5 October 2017, issued by the second respondent (the arbitrator) under the auspices of the first respondent (the bargaining council), under case number GPCHEM196-16/17.

[2] The key question is whether the arbitrator’s decision is one that a reasonable decision-maker could not reach.

Background

[3] The employees were employed by the third respondent, Afrox Limited (Afrox) as cylinder fillers. Mr Thoka commenced employment with the third respondent, on 1 August 2008 and Mr Mbhele commenced employment on 1 September 2008.

[4] Afrox levelled the following charges against both employees

‘3.1 Gross negligence in that on the 11th of July 2016 you entered incorrect information on official company documents, namely, the industrial filling sheet where you entered the number of seals used to be 682 whereas there was only 533 scanned as per the ICC report, the effect of which was that there are 149 seals which cannot be accounted for by the company.

3.2 Alternatively, gross dishonesty in that you deliberately misrepresented the number of seals used on the 11th of July 2016 wherein you entered 682 seals used and whereas only 533 were scanned.

3.3 Gross negligence in that on the 11 July 2016 you failed to fill 13 oxygen cylinders which were destined for an Afrox customer.

3.4 Alternatively, failure to comply with company policies and procedures in that on the 11th of July 2016 you failed to fill 13 cylinders which were destined for an Afrox customer.

3.5 Breach of trust relationship between employer and employee in that as a result of having failed to fill 13 cylinders on the 11 July 2016, the company can no longer trust you.’

[5] Following a disciplinary enquiry, the chairperson found the employees guilty of the charges 3.1 and 3.3 and as a result he recommended a sanction of dismissal. The employees were then dismissed on 22 December 2016.

[6] Aggrieved by Afrox’s decision to dismiss them, CEPPWAWU referred a dismissal dispute to the bargaining council on behalf of the employees. The dispute was conciliated unsuccessful on 09 February 2017 and the certificate of non-resolution was issued.

[7] As a result, the dispute was referred to arbitration, which was held on 16 March 2017, 03 April, 03 May and on 16 August 2017. On 26 September 2017 an inspection in loco was conducted and 05 October 2017, the arbitrator issued an arbitration award in terms of which he found that the employees’ dismissal was fair. It is this award which is the subject of this application.

Submissions and analysis

[8] CEPPWAWU submitted that the award falls to be reviewed and set aside on the grounds that the arbitrator committed gross irregularities in the conduct of the proceedings, failed to apply her mind to the issues before her, was materially influenced by an error of law, failed to take into account relevant considerations, took into account irrelevant considerations in making an award that no reasonable decision-maker could have made.

[9] To support its submissions, CEPPWAWU argued that the arbitrator accepted the evidence of Afrox’s witnesses that the seal numbers on the cylinders that were found empty at its premises were issued by Thoka and Mbhele but failed to take into account that no evidence was led to establish that the cylinders were in fact delivered to the customer’s premises empty.

[10] Further that the arbitrator made an error in concluding that the employees did nothing to destruct Afrox’s evidence that the seals were empty. It is the CEPPWAWU’s submission that the evidence was challenged as the employees testified that they filled all cylinders that they handled on the day in question. Furthermore, CEPPWAWU submitted that the arbitrator accepted that the number of seals on the cylinders scanned and the ICC report do not match but failed to deal with the fact that a new system had been introduced subsequent to the incident in question to correct the failures to correspond.

[11] It is apparent from the reading of the award that the basis on which the arbitrator found that the employees issued the seal numbers found on the empty cylinders was that the seal numbers found in the customer’s premises were amongst those declared by them. To the extent that the employees presented a bare denial and failed to present a different version, the arbitrator accepted the unchallenged evidence led by Afrox’s witnesses, Mr Bester and Mr Nyokong.

[12] Regarding the allegation that 13 cylinders were sealed and scanned by the employees, the arbitrator was mindful of the fact that Afrox’s witnesses presented circumstantial evidence. In this regard, she stated that it was logical that empty cylinders would not be expected to have been sealed and that when the filler seals a cylinder it is confirmation that it is filled with oxygen. In this regard, the arbitrator found that Afrox succeeded in adducing prima facie evidence that the seals were reported empty, whilst the employees did nothing to destruct Afrox’s evidence. For that reason, the arbitrator found Afrox’s version more probable than that of the employees.

[13] It is further apparent from the reading of the award that the employees could not sway the arbitrator to fav our their version on the probabilities. It is therefore, not for this Court to interfere with the arbitrator’s reasoning for choosing one version over another when there were conflicting versions unless the decision is so implausible as to render it unreasonable. It follows that there is no merit to this ground.

[14] CEPPWAWU further challenged the award on the basis that the arbitrator failed to determine whether dismissal was a fair sanction in all the circumstances and that the arbitrator made an error by concluding that she accepts the Afrox’s submission that gross negligence is a dismissible offence in terms of the disciplinary code of the company. According to CEPPWAWU, there was no evidence led at the arbitration regarding the Afrox’s disciplinary code and there was no evidence led to show that a continuation of the employment relationship had been rendered intolerable.

[15] Afrox submitted that CEPPWAWU did not challenge the existence of the rules upon which the charges were levelled against the employees and that its disciplinary code forms part of and is also the source of the rules and the corresponding sanctions listed therein. Afrox further submitted that the sanction for the misconduct the employees were charged with was dismissal.

[16] On the issue whether evidence was led to show that the trust relationship was broken down, the third respondent referred the Court

to the judgment in Easi Access Rental (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration[2], where the Court stated as follows:

‘[25] To summarise the above, Edcon is not the authority for the often misconceived proposition that in order to sustain its decision to dismiss an employee, an employer must always and without failure adduce direct evidence to show a breakdown in the trust relationship. It is of course important for the employer to lead such evidence because it will assist the Commissioner in the assessment of the fairness of the dismissal. In a case where direct evidence of the breakdown in the relationship has not been led, the enquiry into the fairness of the dismissal by the Commissioner include a determination of whether the breakdown cannot be inferred from the nature of the offence.

[26] In Department of Home Affairs and Another v Ndlovu and Others, the LAC held that:

‘It is obligatory that an employer should produce such evidence (referring to evidence of the breakdown in the trust relationship) to justify a dismissal unless of course that conclusion of a broken employment relationship is apparent from the nature of the offence and/or the circumstances of the dismissal.’

[27] The same approach was adopted in Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others, where the LAC after finding that the Labour Court erred regarding the dishonesty of the employee had the following to say:

‘Although the only plausible inference to be drawn from these proved facts is that the first respondent was dishonest, the Labour Court simply failed to comprehend this. Regarding the findings by the Labour Court on sanction, it is implicit in the commissioner’s findings that in view of the nature of the offence, which involved deception and dishonesty and, in particular, the failure of the first respondent to demonstrate any acceptance of wrongdoing or remorse, he considered the employment relationship to be destroyed and dismissal an appropriate sanction. Indeed, the commissioner determined the sanction under the heading: “whether dismissal was an appropriate sanction”. The Labour Court accordingly erred in finding that the commissioner failed to consider whether dismissal was appropriate in the circumstances of this matter.’

[17] In the current matter, the employees were charged with gross negligence which, in terms of Afro’s policy is a dismissible offence. In addition, CEPPAWU did not challenge the existence and the reasonableness of the rule. Considering the totality of the evidence, it cannot be said that the arbitrator’s finding was unreasonable.

[18] In relation to procedurally fairness, it is apparent from the reading of the award that the arbitrator considered the employee’s postponement application and gave reasons for not granting it. In this regard, the arbitrator assessed the parties’ submissions and found that the allegation that the chairperson was biased was not substantiated. The arbitrator further found that the chairperson presented clear and convincing argument for having proceeded with the hearing in the absence of the employees’ representative. Furthermore, the arbitrator found that the principle of audi alteram patem rule was observed before a decision to proceed without their representative was taken. As a result, he did not find any procedural flaw in the manner in which the hearing was held. It is apparent from the above that CEPPWAWU’s submission that the arbitrator applied her mind to all the evidence in this regard and arrived at the conclusion that is reasonable.

[19] CEPPWAWU submitted that the arbitrator made an incorrect statement of the legal position by stating that Afrox had a duty to begin as it must prove that dismissal was fair. There is no merit to this ground. Section 192(2) of the LRA provides that if the existence of the dismissal is established, the employer must prove that the dismissal is fair.

[20] It is my view that the arbitrator was reasonable in her assessment of the evidence before her and reached a conclusion that any reasonable decision maker could have reached. CEPPWAWU has not established any basis upon which the Court could find that the arbitrator’s award was reviewable. As such, it failed to discharge the onus of establishing that the arbitrator committed misconduct in relation to his duties as an arbitrator, a gross irregularity in the conduct of the arbitration proceedings, or exceeded his powers. It follows that its application stands to be dismissed.

Costs

[21] With regard to costs, I am of the view that this is a case where the interests of justice and fairness will be best served by making no order as to costs.

[22] Accordingly, the following order is made:

Order

1. The application to review and set aside the arbitration award dated 5 October 2017, issued by the second respondent under the auspices of the first respondent, under case number GPCHEM196-16/17 is dismissed.

2. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Appearances

Attorney for the applicant: Mr Molatelo Makhura of Cheadle Thompson & Haysom Incorporated Attorneys

Attorney for the third respondent: Mr Jonas Baloyi of Baloyi Attorneys

[1] Act 66 of 1995 as amended.

[2] (2016) 37 ILJ 1419 (LC).