Defy Appliances (Pty) Ltd v UASA obo Parasarmen and Others (D 1456/18) [2021] ZALCD 12 (14 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA

Case no: D 1456/18

Not Reportable

In the matter between:

DEFY APPLIANCES (PTY) LTD

Applicant

and

UASA obo PARASARMEN, NEVILLE First Respondent

CCMA

Second Respondent

COMMISSIONER J NGWANE

Third Respondent

Application heard: 11 March 2021 (via Zoom)

Delivered: 14 July 2021

JUDGMENT

WHITCHER J

[1] This is an opposed application brought to review and set aside the award made by the third respondent acting as arbitrator under the auspices of the second respondent in which he found that the dismissal of the first respondent (‘the employee’) was substantively unfair.

[2] At the commencement of the hearing, I ruled that the review application and record had been filed timeously.

[3] Following a disciplinary enquiry, the employee was found guilty of the following charge and dismissed on 25 September 2014:

Gross negligence in the discharge of duties (improper performance of duties) failed to set 700 SP hobs in cell 6 on July 2014.

[4] The employee was employed in the position of a grade 3 setter with 18 years of experience. On the night shift on 30 July 2014, he was instructed by his supervisor, S Naidoo to set the trim and bead machine. It was an urgent requirement as 700 series hobs were due to be dispatched on the night shift. The employee did not carry out the instruction, and as such caused the night shift

production line to be stopped and the 700 hobs were not dispatched as planned.

[5] In arriving at her decision, the arbitrator failed to take into account the following material evidence:

5.1 The employee gave different explanations for his conduct: one, that there were no blades available. Another, that the roller was the problem.

5.2 However, another employee, Mr Mzolo, who was also employed as a setter but did not have the same years of experience as the employee was able to set the machine in 40 minutes, the following morning on the new day shift. Mzolo was able to set the machine by fixing and utilising the roller which was on the bed of the machine and obtaining the requisite blade from the tool room which was hanging on a storage rack.

5.3 Mr Khuwayo, the press shop superintendent testified that he observed Mzolo doing the job, and in particular that he had seen Mzolo going to the tool room and emerging with a blade and further observed that the roller used by Mzolo as already on the machine bed.

5.4 In the face of the above, the employee still persisted with his claim and refused to accept responsibility for this actions.

5.5 In failing to set the machine on time, the employee caused the assembly line to be halted and the non-delivery of the hobs.

5.5 Further to the above, the employee had been counselled for poor work performance in April 2014 and given a written warning.

5.6 The situation pertaining to the employee was distinguishable from that of another employee, Mvube in that the latter’s actions did not stop the production line, and crucially he admitted to his misconduct, and never gave excuses.

[6] These are the simple facts that distinguished themselves in the record, and if the arbitrator had really considered them, he would have found that the employee was guilty of negligence (at least) and that he persistently failed to acknowledge his misconduct, even in the face of the evidence that Mzolo had carried out the task with no problem at all. His conduct was made serious by the fact that he had been warned only a few months before about his work performance.

[7] In the circumstances, it could not be said that the applicant had acted unfairly when it had imposed the sanction of dismissal. It is trite that the issue is not what sanction the arbitrator would have imposed but whether in imposing the sanction in issue the employer acted unfairly. So it is the conduct of the employer that is under scrutiny and whether there are objective grounds for their view that they can no longer rely on the employee.

[8] The decision of the arbitrator was accordingly unreasonable.

[9] In the premises, I make the following order:

1. The award by the third respondent is reviewed and set aside and substituted with an order that the dismissal of the first respondent (N Parasarmen) was substantively fair.

2. There is no order as to costs.

________________________________

Benita Whitcher

Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT:

Cox Yeats Attorneys (T Moodley)

FIRST RESPONDENT: UASA (A Phewa)

tmoodley@coxyeats.co.za

a.phewa@uasa.org.za