Industrial Oleo Chemical Products v Pillay and Others (D1294/16) [2021] ZALCD 60 (6 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

Case no: D1294/16

In the matter between:

INDUSTRIAL OLEO CHEMICAL PRODUCTS Applicant

and

SOGANDRAN PILLAY First

Respondent

SANDILE MADIKIZELA N.O. Second

Respondent

THE NATIONAL BARGAINING COUNCIL

FOR THE CHEMICAL INDUSTRY Third

Respondent

Heard: 26 May 2021

Delivered: 06 August 2021

Summary: Review – misconduct – splitting of charges – facts necessary to prove count1 facts different to those necessary to prove the second count – charges one and two different – provocation – early departure from work by employee provoked by actions of supervisor – proper enquiry conducted – decision reasonable.

JUDGMENT

CELE J,

Introduction

[1] This is an application in terms of Section 145 (1) (a) of the Labour Relations Act[1] (LRA) to review and set aside the award issued by the Second Respondent (the Commissioner) dated 17 September 2016, under case number KZNCHEM273-14/15. The Commissioner found the dismissal of the First Respondent (Mr Pillay) substantively and procedurally unfair and ordered his retrospective reinstatement. Mr Pillay opposed this application. At the hearing of this matter, it came to light that the review application was filed late, albeit for a short lateness. Condonation was granted.

Factual Overview

[2] Mr Pillay commenced his employment with the Applicant from 1 September 2002 as a Tank Farm Operator in the production of chemicals. In December 2014 he worked as a Disproportionation Plant Operator, which position he was promoted to on 1 November 2008. The Applicant's operations were split between two plants, Disproportionation Plant, the DSP and the Tall Oil Plant, the TOP. Mr Pillay worked with Mr Mjweni, an Assistant Operator and Mr Pillay's assistant. On the shift of 20/21 December 2014 a night shift, Mr Pillay would instruct Mr Mjweni as to what work to do. Mr Pillay was senior to Mr Mjweni. Pillay and Mjweni would work a two-person shift. Mr Govender was the DSP Superintendent and the DSP day shift supervisor. Mr Ramchander was primarily involved with the TOP but would supervise DSP during the night shift. Mr Mbuso was a Panel Operator in the TOP.

[3] An aspect of the plant that Mr Pillay operated ran at dangerously high temperatures making the working environment inherently hazardous. Mr Pillay worked with various chemicals. The aspect of the plant that Mr Pillay operated on would require human intervention. An employee needs to monitor the kettle, sample the product on the kettle and take decisions about what the next step, if any, to be taken. The Applicant's workplace was regarded as a major hazardous installation (MHI). Situations resulting in the bursting of discs or over boiling or the kettle over pressurised should not occur.

[4] Mr Pillay was scheduled to work the night shift from 18:00 on 20 December 2014 until 06:00 on the morning of 21 December 201-4. At approximately 02:49 on 21 December 2014 Mr Dlamini, who was another employee, and Mr Pillay entered the Control Room. At approximately 03:11 both Messrs Pillay and Dlamini left the Control Room without their PPE. They returned at 03:33 but at approximately 03:39 Mr Dlamini left the Control Room again. Around that time Mr Ramchander inspected what was known as the T11 sump in the DSP plant. There was then a shout or the sound of someone screaming. Mr Pillay then exited the Control Room while Mr Dlamini was walking back up the stairs towards the Control Room landing, while Mr Ramchander was walking behind him up the stairs, . When Messrs Ramchander and Dlamini reached Mr Pillay, Mr Dlamini asked Mr Pillay about Jeremy's whereabouts. Then Mr Ramchander told Mr Dlamini to go to the change room. Mr Pillay told Mr Dlamini to hold onto the handrails as he was walking down the stairs. Mr Ramchander then requested Mr Pillay to accompany him to the Hime Street security office.

[5] Mr Pillay proceeded to re-enter the Control Room and attended to something behind the DSP control box. Mr Pillay then proceeded to the Hime Street security office. At Mr Ramchander's instance, the security guard stationed there, Mr Pillay and Mr Ramchander all underwent a breathalyser test. All of these test results were negative. Mr Dlamini was at the Hime Street security office. Dissatisfied with these results, Mr Ramchander requested the guard to contact other guards at the Chamberlain security office to bring another breathalyser machine. Discontent with the wait for the guards from the Chamberlain security office, Mr Ramchander decided to walk to the Chamberlain security office in company of Mr Pillay. They however, met the guard who was coming from the Chamberlain security office to the Hime Street security office in the parking lot. In the parking lot, and at Mr Ramchander's instance again, himself, the guard (from Chamberlain security) and Mr Pillay took a breathalyser test. All of these tests were negative.

[6] Mr Ramchander, however, was also dissatisfied with these test results and sought to contact the security company's area inspector (i.e. the guards' superior/supervisor), for their intervention or assistance as he was not satisfied with the breathalyser equipment. Messrs Ramchander, Pillay and the guard parted ways from the parking lot. Mr Ramchander returned to the Hime Street security office and Mr Pillay proceeded to the DSP plant. At approximately 04:03, Messrs Pillay and Dlamini were back in the Control Room. They had a brief interaction, and at approximately 04:05 they both left the Control Room. At approximately 04:15, Mr Dlamini slipped off his chair and fell to the ground while he was in the Hime Street security office. He was finally tested and found to be positive for alcohol and was disciplined.

[7] At approximately 04:20 Mr Pillay adorned in his PPE attire, arrived at the entrance/exit to the site in his car ashe sought to leave the site. He alighted from his car which was then searched by the guards who were hesitant to let him leave the site. When the security area inspector or supervisor arrived at the gate, Mr Pillay pushed the button to open the gate and after a security van drove in, he drove out of the site. Mr Pillay's departure from the site, at approximately 04:20, being some one hour and forty minutes prior to his shift ending, was not authorised. The Applicant had a rule that employees were not to leave site with their PPE because of the chemical residue on it which might affect third parties they came across.

[8] At approximately 04:33 Mr Pillay telephoned Mr Govender and informed him that he was no longer on site and that he had an issue with Mr Ramchander. Mr Govender told Mr Pillay to return to work. Mr Pillay went to the local Police Station where he asked to be tested for alcohol presence on him. He had a drinking problem for which he was treated and was at the time undergoing rehabilitation.

[9] On 24 December 2014 Mr Pillay was issued with a notice of suspension and on 2 January 2015 he was issued with a notification to attend a disciplinary enquiry. The charges lodged against him were:

"1. Negligence: It is alleged that, on 21 December 2014, you left the factory without permission or notifying your shift supervisor.

2. Gross negligence: It is alleged that, on 21 December 2014, you left your operational area responsibility unattended.

3. Failure to follow safety regulations: It is alleged that, on 21 December 2014, you failed to notify management of an unsafe act and/or condition by not notifying your line manager that an employee may have been under the influence of alcohol, in your presence.

4. Misconduct: It is alleged that, on 21 December 2014, you left the site with Company PPE".

[10] Mr Pillay was found guilty of the charges lodged against him and dismissed. He referred a dispute to the Third Respondent. The dispute was then arbitrated. The applicant led the evidence of three witnesses (Messrs Vishen Sewpersadh, Joe Ramchander, and Sathie Govender) at the arbitration hearing. Mr Pillay testified personally and led the evidence of one witness, Mr Jeremy Munian. The applicant applied to reopen its case to lead the evidence of Mr Sathie Govender. This was done after Mr Pillay and his witness testified. The assailed arbitration award was issued. The finding made was that Mr Pillay's dismissal was procedurally and substantively unfair. The Commissioner ordered Mr Pillay's retrospective reinstatement. The Applicant initiated the present review application.

Analysis

[11] The applicable test on review is the reasonableness approach as postulated by the Constitutional Court in Sidumo and another v Rustenburg Platinum Mines Ltd and others (Sidumo).[2] The question to be answered by a review Court is whether the decision reached by a commissioner is one that a reasonable decision-maker

could not reach, having regard to the material properly before him or her.[3] As recently put by the Labour Appeal Court (LAC) in the matter of South African Municipal Workers Union obo Mosomo v Greater Tubatse Local Municipality[4]:

"The test that the Labour Court is required to apply in a review of an arbitrator's award is this: "Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?" To maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. 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."

[12] In this matter there is also the issue pertaining to the drawing of charges. The wording of charges in employment disciplinary contexts

and an employer's labelling of the alleged misconduct therefore became of concern in this matter. In Woolworths (Pty) Ltd v CCMA and Others[5], LAC held that:

"Unlike in criminal proceedings where it is said that "the description of any statutory offence in the words of the law creating the offence, or in similar words, shall be sufficient", the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellant's disciplinary codes, referred to above. It was sufficient that the wording of the misconduct alleged in the charge - sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of listed offences. After all, it is to be borne in mind that misconduct charges in the workplace are generally drafted by people who are not legally qualified and trained."[6]

[13] Further, in National Commissioner, South African Police Service v Myers and Others[7], the LAC stated:

"Before dealing with the issue of sanction, I need to re-emphasize that an employer is not and cannot be expected to frame a charge sheet in respect of a misconduct committed by an employee as one would prepare a charge sheet in a criminal matter. The importance of a so - called charge sheet in a misconduct enquiry is to set out the allegation that constitutes the misconduct so that the employee is aware of the case to which he or she is required to answer. Also of little consequence is the employer's averment that the allegations constitute a number of counts of misconduct or a single count. It is the allegations that constitute the misconduct which must be considered and a conclusion arrived thereon."[8]

[14] More recently, the LAC, held in EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[9] that:

"Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. ... The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of applicable rules or standards."

Grounds for review

[15] It has become unnecessary to separately identify the chief findings of the Commissioner because these are well identified by each ground of review challenging the same. The submission by the Applicant is that the Commissioner's finding that there was a splitting and duplication of charges in counts 1 and 2 is not a finding that is based on the evidence. It is also indicative that the Commissioner did not understand or properly consider the evidence that was led before him. According to the Applicant, what is also clear from the Commissioner 's reasoning on the issue of the splitting of charges and the use of the word "gross" is that he was more focussed on form over substance and as such, was completely caught up with the wrong enquiry. Furthermore, the Commissioner's drawing of a severely negative inference against the Applicant due to the wording of the charges is totally inappropriate as Mr Pillay was never prejudiced by the formulation of the charges. Mr Pillay, in fact, conceded to that.

[16] In relation to the splitting of the charges, I agree with the Applicant that the facts necessary to prove count 1 are different to those necessary to prove the second count. These are indeed different charges. The one relates to leaving the plant without permission or advising his employer and the other relates to his leaving his particular workplace unattended or without somebody in his stead. There is no splitting of charges here. They relate to completely different circumstances. It is quite conceivable that, for example, had Mr Pillay left the workplace, but ensured that another suitable employee remained in his operational area, then charge 2 would not have been applicable. The Commissioner's finding that there was a splitting and duplication of charges is not a finding that is based on the evidence.

[17] Whether sufficient evidence was led by the Applicant for each charge is however, a completely different enquiry. Charges 1 and 2 were of negligence and gross negligence. Grogan J, Workplace Law, Dismissal[10], deals with negligence as well as poor work performance and says: negligence is a failure to comply with the standard of care that would be exercised in circumstances by a reasonable person. Where negligence or poor work performance results from circumstances beyond an employee's control, such as physical or mental incapacity, it should be treated as such. It is foreseeable that out of anger and therefore being emotional, Mr Pillay could storm out of the company premises (i) without necessary permission or (ii) neglect to put measures in place to safeguard company kettle. So a charge of negligence or gross negligence is possible on the given facts if by so acting he does what a reasonable person might have not done by getting permission or by taking steps to safeguard the plant.

Charge 1

[18] It was alleged that, on 21 December 2014, Mr Pillay left the factory without permission or notifying his shift supervisor. He did not obtain Mr Ramchander's permission before he left the premises or that of Mr Govender. He only spoke to Mr Govender after he had left the premises and Mr Govender had instructed him to return to his workplace. It remained common cause that permission was necessary for any employee leaving working premises before time up, to seek and obtain permission. Failure to do so was punishable misconduct. Mr Pillay would only be guilty, in the words of the Applicant's disciplinary Code, of absenteeism by leaving the workstation early. The Code prescribed a sanction of a verbal warning on the first time offending. He was left with less than two hours before the end of his shift. The 12 months durability of a warning is the maximum period. Any shorter period of durability can be imposed, depending on the seriousness of the misconduct. No defect was committed by the Commissioner in this respect.

[19] Put differently, the Commissioner conducted a proper enquiry. Assessed evidence properly and reached a reasonable decision. The probabilities favour the acceptance of the version of Mr Pillay that his early departure from work was provoked by actions of Mr Ramchander . Mr Pillay went about executing his duties until Mr Ramchander came to him, took him along, subjected him to breathalyser tests and made some unpleasant utterances to him. The fact that Mr Pillay left work and went straight to the police station is not without significance. It shows that he believed in his innocence and wanted to prove Mr Ramchandar wrong in the accusations he had made. It also shows one consideration which the Commissioner deliberated on for some time. Mr Pillay was one of the employees who felt that the Applicant was not considerate to their plight. They felt vulnerable at the hands of Applicant's management. Mr Ramchander knew about this vulnerability and capitalised on it.

Charge 2

[20] The second charge was described as: Gross negligence: It was alleged that, on 21 December 2014, Mr Pillay left his operational area responsibility unattended. Mr Sewpersadh said safety and lives were placed at risk by Mr Pillay's conduct in leaving the plant when he did. According to the Applicant Mr Pillay operated in a hazardous workplace where safety was of optimal importance. At the time he left the premises and/or his place of work, the temperature in the kettle was particularly high.

[21] Mr Pillay left the working station, at least twice at the critical time. The first was at the instance of Mr Ramchander, who took him to two places where a breathalyser test was conducted. All the concerns of the Applicant about the status of the plant were applicable, but still Mr Ramchander took him around. The kind of measures to be put in place for the temperature in the kettle which was particularly high did not matter then. Surely if Mr Pillay tested positive from the breathalyser test, he would not be allowed back to his working station.

[22] In the words of the Applicant, the working station would be left unattended. Why the Applicant was more concerned with the second stage, when Mr Pillay left the working station on his own accord, as opposed to the first, remained unexplained. If Mr Pillay was guilty of leaving the working station unattended for the second occasion, Mr Ramchander was equally guilty for making him leave in the first stage, yet he escaped discipline. Disciplinary consistency was not at play here.

[23] The comparison thus undertaken reveals one important state of affairs, namely that the Applicant trusted Mr Mjweni with duties to stabilise the temperature in the kettle. The probabilities of the evidence show that Mr Mjweni was able to control the high temperatures. That is why, throughout this episode no harm was ever experienced. Further, Mr Sewpersadh gave an elaborate description of how critical the plant was yet he could not explain why there was such a lax attitude as to what steps were put in place. This relates to the issue of negligence, the possibility that something may occur. If the company was aware of the critical situation the question that arises is what was done to manage this. If there was something critical Mr Ramchander would have contacted management or he would have addressed the issues himself. Clearly, the kettle was not left unattended in the presence of Mr Mjweni. Mr Pillay should have been acquitted of this count.

Charge 3

[24] The third charge was one of failure to follow safety regulations. It was alleged that, on 21 December 2014, Mr Pillay failed to notify management of an unsafe act and/or condition by not notifying his line manager that an employee might have been under the influence of alcohol, in his presence. The Commissioner confirmed a conviction on this charge and there is no counter review application. The Commissioner found that a final written warning was a fair and appropriate sanction to ensure for six months. The Applicant listed a multiplicity of facts which, according to the Applicant, showed that Mr Pillay's conduct when viewed overall on 21 December 2014, was serious and warranted the sanction of dismissal. In relation to this charge, it is noteworthy to observe that a drunken employee, Mr Dlamini, remained employed by the Applicant. No basis has been laid why failing to report a drunken employee should carry a heavier sanction than actually being so drunk that the said employee could not maintain a proper balance.

[25] Secondly, a drunken stupor has degrees. It appears that the moment when Mr Dlamini was visibly drunk was when Messrs Pillay and Ramchander had met and were together and moments thereafter. It was at this moment that Mr Pillay allegedly made a report about people that had consumed liquor. According to the Applicant's version there would be no need to report Mr Dlamini, who was visibly drunk. Instead more people were implicated as Mr Pillay witnessed Mr Ramchander observing a drunken Mr Dlamini. Put differently, there was no need to tell Mr Ramchander the obvious. Therefore this charge could never serve, alone, or with any others, as a fair reason to dismiss Mr Pillay.

Charge 4

[26] The fourth charge was described as misconduct where it was alleged that, on

21 December 2014, Mr Pillay left the site with Company PPE. The Commissioner acquitted Mr Pillay on this charge. In their founding

affidavit, the Applicant did not include this charge in the grounds of review[11]. Accordingly the Commissioner's finding stands. In any event, a sanction on this charge could carry a minimal weight, if any, to other charges. The employer could not be allowed to profit from its own wrong behaviour in creating a volatile situation at the workplace and not taking steps to guard its employees against Mr Ramchander who is an operational risk.

[27] One observation needs to be made. The manner in which Mr Ramchander went about executing his supervisory functions on those early hours of 21 December 2014 left much to be desired. It caused disrepute to the name of the Applicant. Mr Dlamini was tested once and the results thereof were accepted. Mr Pillay was tested twice but the results were rejected. As if that were not enough, Mr Ramchander pretended not to be testing Mr Pillay when, in fact, he was gunning for him. A drunken employee was retained at the expense of a sober employee who was humiliated and dismissed. Mr Ramchander did all this with impunity. Mr Pillay ought never to have been dismissed, in the first place. He is entitled to his full reinstatement with retrospective effect, as ordered by the Commissioner. To mulct him of any costs would be grossly unfair.

[28] In the premises the following order shall be issued:

Order

1) Condonation for the late filing of the review application is granted.

2) The review application is dismissed.

3) The Applicant is to pay the costs thereof.

H Cele

Judge of the Labour Court of South Africa

Appearances:

For the applicant Mr D Woodhouse of Mervyn Taback Inc.

For the first respondent Mr J Reddy of J Reddy Attorneys.

[1] Act No. 66 of 1995 ("Act")

[2] [2007] 12 BLLR 1097 (CC).

[3] Ibid at paragraph 110

[4] [2021] 5 BLLR 494 (LAC) at paragraph 27.

[5] [2011] 10 BLLR 963 (LAC).

[6] Ibid at paragraph 32.

[7] [2012] 7 BLLR 688 (LAC).

[8] Ibid at para 98.

[9] (2019) 40 ILJ 2477 (LAC) at paragraph 16.

[10] 13th ed, 2020 at 209 to 210. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. See: Prof. P.A.K. le Roux , Negligence - The Grounds for Disciplinary Action Contemporary Labour Law Vol. 5 No. 1 August 1995 at 1 to 6). Afrox Healthcare Ltd v. CCMA & Others [2012] 7 BLLR 649 (LAC); [2012] JOL 208 779 (LAC).

[11] See paragraph 31.2.21 of the founding affidavit.