Consul Speciality Glass A Division of Consul Ltd v National Bargaining Council for the Cleaning Industry and Others (JR777/2006) [2007] ZALCJHB 30 (8 November 2007)

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

CASE NO: JR 777/2006

In the matter between:

CONSUL SPECIALITY GLASS Applicant

A DIVISION OF CONSUL LIMITED

And

NATIONAL BARGAINING COUNCIL

FOR THE CLEANING INDUSTRY First

Respondent

ARBITRATOR L DREYER Second

Respondent

CHEMICAL, ENERGY, PAPER

PRINTING AND ALLIED WORKERS

UNION Third

Respondent

JUDGMENT

CELE AJ

INTRODUCTION

[1] This application is in terms of section 158 (1) (g) of the Labour Relations Act 66 of 1995 for a review of the arbitration award dated 18 February 2006 issued by the second respondent as an Arbitrator of the first respondent. The fourth respondent in whose favour the award was issued opposed the application, duly assisted by the third respondent, the union, which he was a member of.

BACKGROUND FACTS

[2] The fourth respondent, Mr Makhaza, was employed by the applicant as a forklift driver. He worked under the supervision of Mr Steven Kganakga who in turn reported to the Logistics Manager and the head of that department, one Mr Peter Kruger. In June 2005 Mr Makhaza was also a senior shop steward. That position entitled him to attend the national executive committee meetings of the union. He also represented union members in conciliation and arbitration hearings.

[3] On 21 and 22 June 2005 Mr Makhaza took part in wage negotiations and on 23 June 2005, he attended a mini-business meeting. He went back to resume duties on Friday 24 June 2005 where upon he submitted leave forms for 21- 23 June 2005 to Mr Kganakga who then explained to him that there was a change in the procedure in terms of which leave forms had to be submitted before the employee went on such leave. On 23 June 2005, while Mr Makhaza was not at work, the union forwarded a request to the applicant for time off on 28 June 2005 so that Mr Makhaza could attend a con/arb hearing for his co-employee, Mr Stephen Tefu. The applicant’s Employee Relations Officer, Mr Moloto consulted Mr Kruger on the request. Mr Kruger appended his signature on the request letter to signal his approval for Mr Makhaza’s absence on 28 June 2005.

[4] When Mr Makhaza came to Mr Moloto’s office on 24 June 2005, he was shown an approval for his absence on 28 June 2005. The union had also sent another request so that Mr Makhaza could attend their national executive committee meeting on 28 June 2005. He then told Mr Moloto that the national executive committee meetings normally took about 3 days. Mr Moloto offered him a telephone to enquire on the correct dates for the meeting from the union offices and was told that the meeting was scheduled for 28-30 June 2005 and that another fax would be sent to correct the dates. Mr Makhaza left the office to continue with his duties as Mr Moloto undertook to communicate the request for further absence with the relevant Managers. Mr Kruger expressed his reservations in granting authority for a further absence. He pointed out that Mr Makhaza had been absent for 4 days of that week, that on Monday 27th June 2005 it would be a national stay-away day and that if granted permission for 28-30 June, it would mean Mr Makhaza would have worked for one or two days in two weeks. Mr Moloto communicated that concern to Mr Makhaza.

[5] At about 15h30 Mr Makhaza went to Mr Kruger for permission for his absence for 29-30 June 2005. There was an understanding between them that Mr Makhaza would attend the con/arb first and then go to the national executive committee on 28 June 2005. Mr Kruger said that he had first to discuss the issue with the applicant’s Human Resources Manager (HR Manager), Mr. Francois Fourie who by then had left the office premises. He said that he would communicate the outcome of the discussion to Mr Makhaza on Monday. Mr Makhaza insisted on permission being granted to him at that time, pointing out that on Monday there would be a national stay-away. The discussion calminated in the extended permission not being granted to Mr Makhaza. On that Friday Mr Makhaza wrote a letter addressed to the arbitrator for the con/arb in which he explained why he would not attend the hearing. On the following day, a Saturday, Mr Makhaza came to work and he handed the letter to Mr Tefu to pass it on to the arbitrator.

[6] On Monday 27 June 2005 there was indeed a national stay-away. Mr Kruger did not communicate any decision which might have been reached after his consultation with Mr Fourie on the extended leave of absence of Mr Makhaza.

[7] On 28 June 2005 Mr Makhaza reported at work while Mr Moloto attended the con/arb on behalf of the applicant. Mr Tefu appeared without a representative and he handed the letter written by Mr Makhaza to the arbitrator. The arbitrator was upset when it came to light that the applicant had, according to the letter, refused to grant Mr Makhaza permission to attend the con/arb. Mr Moloto communicated with his office to have some documents faxed to the arbitrator to explain the version of the applicant, where up the hearing proceeded.

[8] The applicant took the position that Mr Makhaza had committed an act of misconduct through the representations he had made in the letter which read:

“ Dear Sir/Madam

The union sent a time off request for me as rep of Steven Tefu to

represent him in this case and the time off came in time and

there was (sic) other union activities. Time-offs were also send

(sic) to the company:

(1) 28/06/05 the above case

(2) N E C meeting 29/06/05

(3) 30/06/05 wage negotiations

at this last hour 4.45pm on Friday this 24/06/05 I was told none of this (sic) meetings I have to attend because of the legal strike of COSATU on Monday 27/06/05.

My department Head told me the (HRS) told him not to release me because of my participation in the Monday stayaway. I was just notifying you comm. about my absentia to the case the reason. (Sic)”

[9] The applicant charged Mr Makhaza for:

“ Serious misconduct in that he committed an act of dishonesty

in making written presentation to the NBCCI (first respondent)

on Tuesday 28 June 2005 which was not only a gross

misrepresentation of the truth but also gross fabrication. In doing

this, he abused his position as shop steward at CSG and through his

actions brought the company into disrepute.”

He was found to have committed the misconduct with which he was charged and was dismissed. His internal appeal was not successful. He was aggrieved and referred a dismissal dispute for conciliation and for arbitration. The second respondent issued an award in which she ordered the applicant to reinstate him retrospectively. It is that order which is the subject of this application.

GROUNDS FOR REVIEW

[10] The applicant submitted that the arbitrator unjustifiably and/or incorrectly found and/or committed a gross irregularity in finding that:

(1) There was no evidence of misconduct or gross fabrication or malicious intent for which Mr Makhaza was dismissed.

(2) Mr Makhaza was confused, that such confusion was exacerbated by a new rule which had been conveyed to him that morning requiring him to sign leave forms and that he then preferred to protect his job.

(3) Mr Makhaza was uncertain as to what time offs had been approved.

(4) It was common cause that Mr Kruger was not happy and was angry about Mr Makhaza taking time off and being away.

(5) There was any merit to Mr Makhaza’s assertion that he needed to find out about the time off for 29 and 30 June 2005 because he had to sleep over.

(6) Mr Makhaza did not know what he was putting in the letter as he was not “a man of letters” and also not writing in his first language.

(7) Mr Makhaza’s dismissal was procedurally unfair because Mr Moloto should not have recorded the proceedings of the disciplinary hearing.

(8) The chairperson of the disciplinary hearing, Mr Robson had not considered Mr Makhaza’s length of service and that there was no indication that the employment relation had irretrievably broken down.

(9) That Mr Makhaza’s dismissal was both procedurally and substantively unfair and in awarding him reinstatement. It was submitted that the arbitrator unjustifiably and / or incorrectly failed to deal with Mr Makhaza’s credibility.

THE ARBITRATION HEARING

[11] In addition to the evidence which, by and large was common cause, the following featured as the version of each party:

Leave of absence

The applicant’s evidence

[12] Mr Kganakga said that the company permitted employees, such as shop stewards to go on leave and to submitted leave forms when they returned to work, if prior permission for leave had been given. A change in the system was put in place in terms of which employees had first to complete and submit leave forms before going on leave. He explained the changed system to Mr Makhaza in the morning of 24 June 2005.

[13] Mr Kganakga and Mr Kruger were together when Mr Kruger repeatedly told Mr Makhaza that permission had already been granted to him for his absence on 28 June 2005. As a result, Mr Makhaza should have attended both the con/arb and thereafter the national executive committee meeting on that day. Both said that Mr Makhaza said that he would not attend the corn/arb on 28 June 2005 if Mr Kruger did not grant him permission for the extended period. What was outstanding therefore was permission for Mr Makhaza’s absence for 29 and 30 June or for one of the two days. It was conceded that the decision was not communicated to Mr Makhaza on Monday, 27 June 2005 as was undertaken. There was a belief that the decision would be communicated to Mr Makhaza by Mr Moloto on 28 June 2005 when they would have met at the con/arb hearing. Mr Kruger would not remember whether permission was granted for only one or more days falling within the period 28-30 June 2005.

[14] Mr Kruger conceded that he had a company cellular telephone with him on Friday when Mr Makhaza insisted on being given an answer for the extended leave of absence. He said that he could have used the cellular telephone to consult with Mr Fourie but he did not think of doing so at the time.

[15] Mr Moloto and Mr Kruger said that the company had never refused permission for a shop steward to attend union meetings. They said that if Mr Kruger had denied Mr Makhaza permission to attend the con/arb on 28 June 2005 that would amount to an unfair labour

practice by the company. In that event Mr Kruger stood to be convicted and dismissal for committing a serious act of misconduct.

They denied that Mr Kruger withheld permission for Mr Makhaza to attend the con/arb on 28 June 2005.

Mr Makhaza’s evidence

[16] He admitted that he repeatedly told Mr Kruger to give him permission on that Friday for his absence to cover the extended period. When Mr Kruger told him that a reply would be given to him on Monday he said that he had told Mr Kruger that he would not be at work on Monday as it would be a national stay away day. He said that Mr Kruger could have telephoned Mr Fourie and that an answer could have been given to him on that day. He said that he was not sure if permission had been granted to him for 28 June 2005 as Mr Kganakga had also told him of a new rule that leave forms had to be completed and submitted before an employee went on leave.

The Disciplinary Hearing

The Applicant’s version:

[17] Mr. Steven Robson chaired the disciplinary hearing. He conceded that at the commencement of the hearing, there was an objection raised on behalf of Mr. Makhaza against Mr. Moloto sitting in and taking minutes, when he had also been involved in the events of 24 June 2005 and was described by Mr. Makhaza as a possible witness. He said that he could not postpone the hearing to get another person to take minutes as they were under pressure due to a strike which was coming up, work pressure and that they were busy with a compliance revamp of the complete system. He said that Mr. Moloto did not influence him in any way in the decision making process.

[18] Mr. Robson conceded that there was a stage when he sought advice from the HR Manager on a procedural issue. He said that it was during the open hearing that he elicited such help and Mr. Makhaza and his representative could hear. In his view, no irregularity was therefore committed.

[19] As to why he found Mr. Makhaza guilty he said that:-

· Two witnesses of the employer led corroborative evidence that Mr. Makhaza was given permission to attend the con/arb.

· There was a letter from the union which indicated that the union was under the impression that Mr. Makhaza had been granted permission to attend the con/arb on 28 June 2005 and that he could similarly be allowed to attend the national executive committee meeting on the same day.

· The evidence of Mr. Makhaza brought nothing new to contradict the evidence of the employer.

· Whether permission had been given in writing or not in writing became almost irrelevant because it was acknowledged that the issue was whether he was specifically told he could not go.

· It did not make any sense that the Logistics Manager would prevent somebody going on a con/arb when he knew what the implications thereof would be.

· As a Director, Mr. Robson himself would not have permission to prevent somebody from attending a con/arb.

[20] The main reasons underlying the sanction of dismissal were therefore that:-

· It was a misconduct involving an act of dishonesty. It justified a dismissal;

· The act itself brought the company’s name into disrepute with the Bargaining Council and the Union;

· The lies told, impacted directly on another employee. It impugned the integrity of a senior employee who could have been dismissed if the contents of the letter were true;

· The trust relationship between Mr. Makhaza and the company but specifically with Mr. Kruger had been damaged. He could not see them continuing working together.

Mr. Makhaza’s version:

[21] He was at work on 24 June 2005. At about 9h00 he proceeded to the warehouse office to complete leave forms for the three days he was absence in that week. He met his supervisor, Mr. Kganakga who told him that a new system had been implemented in terms of which an employee was not to go on leave unless leave forms were completed and submitted. He then proceeded to see Mr. Moloto in his office as advised by Mr. Kganakga in connection with some time-offs. He found two time-off documents one of which had been signed by Mr. Kruger for 28 June 2005. There was a third time-off document which did not have any dates and time for the time off. Mr. Moloto put the dates and time to say when time-off would be taken, signed the documents and gave all three to him to take to the HR Manager for his approval. Later on, Mr. Moloto was to collect the documents from the HR Manager.

[22] At about 15h00 he met Mr. Kganakga and asked him to go and collect the leave forms for completion and attachment to the time-offs as advised so that he would attend the meeting and the con/arb. On his return, Mr. Kganakga told him that Messrs Moloto and Kruger were complaining about his absenteeism, including one for Monday as there would be a national stay away. Mr. Kganakga said that he had seen one time-off document which meant that there was a query about dates. From what Mr. Kganakga told him, he understood that he was denied permission to go away to the meetings. He went to Mr Moloto but found him on his way home and Mr Moloto referred his back to Mr Kruger for an answer to the request to be released for the meetings. He found Mr. Kruger at the loading zone where Mr. Kruger told him that he approved the request for 28 June 2005 but needed to discuss the request for further days with Mr. Fourie on Monday, Mr Kruger expressed concern that he would not be at work on Monday and on Wednesday to Friday, when he also had not been at work for the whole of that week. He asked Mr. Kruger if permission was being denied because of the Monday stay away. He further asked if he was to come to work on Tuesday the 28th of June or go to the con/arb hearing. Even as he insisted, Mr Kruger refused to answer him but said that he wanted to speak to Mr. Fourie first and to give him an answer on Monday. Mr Kruger had a cellular telephone he could have used to consult with Mr Fourie. When permission was not granted to him, he pondered on what to do, taking into account the fact that he stayed in the same township with Mr Tefu and that he could not just abandon him without compromising his safety, he decided to write the letter to notify the arbitrator that he was denied permission to attend the con/arb hearing.

Submissions By Parties

[23] The submissions by Mr Matyolo for the applicant entailed the outlining of evidential material, the restating of the test for a review application and the review grounds. Mr. van der Riet for Mr Makhaza submitted that the review application had no merits as the arbitrator independently assessed the evidence before her with the benefit of having seen witnesses giving evidence He said that the misconduct for which Mr Makhaza was dismissed was not proved by the applicant. He stated that Mr Makhaza made it clear to Mr Kruger that if he were not telephoned on Monday, he would not know whether or not he was to be back at work on Tuesday, 28 June 2005. He submitted that the arbitrator justifiably found that the contents of the letter written by Mr Makhaza did not amount to serious misconduct for which he was charged and dismissed. He asked for the dismissal of the review application.

Analysis

[24] I take the view that the main attack on the award is that the arbitrator unjustifiably and/or incorrectly found and/or committed a gross irregularity in finding that there was no evidence of misconduct, gross fabrication or malicious intent on the part of Mr. Makhaza, The other review grounds tend to follow from this attacked finding of the arbitrator.

[25] There are at least two considerations which are essential in this application. The first is whether there is a rational objective basis justifying the connection made by the arbitrator between the material properly available to her and the conclusions that she eventually arrived at. See Carephone (Pty) Limited vs Marcus No & others [1998] 19 ILJ 1425 (LAC) and Shoprite Checkers (Pty) Limited v Ramdaw NO& others [2001] 22 ILJ 163 [LAC].The second is that it is not merely high handed or arbitrary conduct which is described as a gross irregularity, behaviour which is perfectly well-intended and bona fide, though mistaken, may come under that description, The crucial question is whether it prevented a fair trial of the issues. If it did, then it will amount to a gross irregularity. See Ellis v Morgan; Ellis v Desai 1909 TS 576 at 581 and Goldfields Investments Ltd and Another v City Council of Johannesburg and Another 1938 TPD 551 at 560, In determining whether the decision of the arbitrator is justifiable in terms of the reasons given for it, a value judgment has to be made which will inevitably involve a consideration of the merits of the matter with caution that I do not do so to substitute my opinion on the correctness thereof, but to determine whether the outcome is justifiable- see the Carephone decision.

[26] Before 24 June 2005, employees of the applicant seeking to go on leave had to liaise with various functionaries such as Supervisors,

Managers and an Employee Relations Officer, to obtain the necessary authority. There are documents that could be exchanged between the functionaries in the processing of such authority. In the case of shop stewards, the union would send a written request for time off for that particular shop steward. Depending on the circumstances, it could be sent to Mr Kruger for his signature if he considered operational requirements of the company to permit the release of that shop steward. Once approval in principle was granted, an employee could take that leave of absence, the applicant permitted its employees to take leave even if a leave form was not completed and submitted prior to going on leave.

[27] On 24 June 2005 the applicant began to implement a change in the granting of leave to its employees. It resorted to a system which had been adopted as far back as 12 February 1999 but had not effectively been used. The system of consulting various functionaries remained the same. The change was that the employees were no longer permitted to go on leave without first completing and submitting a leave form, covering the period of intended absence, Shop stewards had therefore to submit leave forms for the days they would be performing their duties away from the premises of the applicant.

[28] Mr Makhaza was appraised of the change in the morning of the 24 June 2005 by Mr Kganakga, Before he could attend the con/arb hearing therefore the letter sent by the union requesting the time of had to be signed by Mr Kruge, where after it had to be attached to completed leave forms and submitted to an authorised functionary such as Mr. Moloto or Mr Kganakga.

[29] The evidence of Mr Makhaza is very clear in this respect. He knew that Mr Kruger had already signed the letter requesting his absence for 28 June 2005 to attend the con/arb hearing. This request is dated 23 June 2005. He also saw the request dated 22 June 2005, also for 28 June 2005 but for the executive committee meeting. He then took issue with the period of the executive committee meeting. Mr Moloto gave him a telephone to clear the period with the union and a third request wrongly dated 25 June 2005 was sent per fax on the 24 June to Mr Moloto by the union. It is in fact in respect of the third letter that Mr Makhaza sought the signature of Mr Kruger.

[30] All that Mr Makhaza needed to do on Friday 24 June 2005, was to take the request letter signed by Mr Kruger, complete leave forms for the 28 June 2005, submit the two documents to Mr Kganakga and to attend the con/arb on 28 June 2005. The functionaries of the applicant had played their part. If he had played his part as indicated, authorisation of his absence on 28 June 2005 would have been completed in compliance with the applicant’s changed leave system, in the circumstances, he ought not to have written the letter to the arbitrator. The explanation he proffered in that letter on why he would not attend the con/arb was therefore a lie. He was clearly hurt by Mr Kruger’s refusal to grant him there and the n an absence of 3 days. He devised a method of hitting back at the applicant and found it at the letter he wrote. He achieved the results which he had contrived; as the arbitrator was agitated by the position allegedly taken by the applicant in refusing Mr Tefu representation at the hearing. There was no confusion at all in his mind. The letter stated that which he wanted to convey to the arbitrator in the simplest of the expression. In my view, he committed an act of misconduct for which he had to be disciplined. The notes for the disciplinary hearing indicate clearly which factors were considered to be mitigating and which as aggravating. These notes were placed before the arbitrator and no challenge was made on them. The taking of the disciplinary notes by Mr Moloto and the consultation by the chairperson are both not desirable practices in the circumstances. None is however of such serious magnitude as to amount to a procedural defect worthy of consideration.

[31] Having considered the merits of this matter, I am of the view that there is no rational objective basis justifying the connection the arbitrator made between the material properly available to her and the conclusions that she eventually arrived at. Well intended as her behaviour might have been, it did prevent a fair trial of the issues that were brought to her. In my view, her award should not stand.

[32] I accordingly make the following order:

1. The arbitration award dated 18 February 2006 under case number GPCHEM 1792 issued by the second respondent is reviewed and set aside.

2. The dismissal of Mr Z.I Makhaza by the applicant was procedurally and substantively fair.

3. No order as to costs is made.

____________________

Cele AJ

Date of Hearing: 8 June 2007

Date of Judgment: 8 November 2007

Appearances:

For the Applicant: Mr. Matyolo

Instructed by: Perrott, Van Niekerk & Woodhouse Inc.

For the Respondent: Mr. van der Riet

Instructed by: Cheadle Thompson & Haysom Inc.