Mukwevho v Adendorf Machinery and Others (J 1371/2012) [2013] ZALCJHB 267 (18 October 2013)

Not Reportable

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

CASE NO: J1371/2012

In the matter between:

SIMON MUKWEVHO Applicant and ADENDORF MACHINERY First Respondent METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL Second Respondent TSHEPO MASHIGO NO Third Respondent

Date heard: 02 July 2013

Judgment delivered: 18 October 2013

VAN AS, AJ

Introduction

This is an application to review and set aside the arbitration award (“the arbitration award”) handed down by the third respondent (“the Arbitrator”) on 15 March 2012. The applicant also seeks condonation for the late filing of this review application.

The first respondent (“Adendorf Machinery”) opposes the review application and the condonation application. The second respondent (“the MEIBC”) and the Arbitrator abide by the decision of this Court.

Despite being properly notified of the date of set down of this matter, there was no appearance for Adendorf Machinery on 2 July 2013. Accordingly, I heard the matter in the absence of Adendorf Machinery.

The relevant facts

The applicant, a mechanic in the employ of Adendorf Machinery, was dismissed by Adendorf Machinery in November 2011 for persistent late coming. The applicant referred a dispute to the MEIBC which was arbitrated before the Arbitrator on 1 March 2012. The Arbitrator found the applicant’s dismissal to be substantively fair but procedurally unfair and thereafter awarded compensation to the applicant in an amount equivalent to one month’s salary, being R4 100, 00.

The applicant thereafter launched this review application and also sought condonation for the late filing of the review application.

The condonation application

The review application was served and filed some 23 days late. The explanation for the delay is that the applicant initially approached the Legal Aid Board and thereafter his current attorney of record when the Legal Aid Board was not able to assist him.

None of these allegations are meaningfully challenged in the answering affidavit of Adendorf Machinery.

Since, for the reasons more fully dealt with hereinbelow, I believe that the applicant has reasonable prospects of success, I hereby condone the late filing of the review application.

The grounds of review

The applicant essentially seeks to review and set aside the arbitration award on the ground that the Commissioner committed a reviewable irregularity and thereby arrived at a conclusion which no reasonable decision-maker could have reached in finding that the applicant was guilty of poor timekeeping under circumstances in which the applicant furnished a reasonable explanation for his late arrival on 18 November 2009, namely that the train, which transports him from home to work, was late.

The applicant also alleges that the Arbitrator took irrelevant evidence into account, namely that the applicant had threatened to assault Iain Bennie (“Bennie”) when he confronted the applicant about arriving at work late on the day in question.

In his arbitration award and in considering the substantive fairness of the applicant’s dismissal, the Arbitrator held the following:

“Both Bennie and Foxcraft testified that the applicant was a habitual latecomer at work and that when they confronted him he became

disrespectful and threatened them. He specifically threatened Bennie that he would take off his jacket when they met. This was not denied by the applicant. Instead he asked Bennie during cross-examination as to when was it that he threatened to take off his jacket and Bennie responded by saying that it was during the disciplinary enquiry. It had to be clarified by Bennie that it was not in the disciplinary hearing itself, but during the time the hearing was in progress, outside of the hearing. So it follows that there is no question that the applicant threatened to take off his jacket. The logical conclusion to be drawn from this was that the applicant wanted to beat him up the next time they met.

Secondly, the applicant confirmed that he was on a warning at the time he came late and was confronted by Bennie. Both the respondents’ witnesses testified that the applicant was a habitual latecomer. Only in one instance did the applicant give an excuse about the trains that were running late and he did not give excuses for other instances of late coming. Once off late coming is not a dismissible offence but in the applicant’s case it was persistent and it would appear that there were no excuses furnished by him.

The respondent adopted progressive discipline by giving the applicant warnings before he was finally dismissed. It would appear that the warnings did not have the intended or desired effect on the applicant and as a last resort, dismissal was resorted to.”

It is apparent from the aforementioned extract from the arbitration award that the Arbitrator did not apply his mind as to whether the applicant had furnished a reasonable and plausible explanation for his late arrival on 18 November 2009. The Arbitrator instead concluded that the applicant’s dismissal was substantively fair because the applicant was a “habitual latecomer”.

In my opinion, the Arbitrator was required to first determine whether the applicant had furnished a reasonable explanation for his late coming on 18 November 2009 before considering whether dismissal was an appropriate sanction for his habitual late coming.

The Arbitrator did not do so and instead simply appeared to accept that there was no reasonable explanation for the applicant’s late arrival at work on 18 November 2009. There was, in my opinion, no basis for the Arbitrator to arrive at such a conclusion.

Accordingly, I believe the Arbitrator committed a reviewable irregularity and thereby arrived at a conclusion which no reasonable decision-maker could have reached in finding that the applicant was guilty of poor timekeeping without first applying his mind to whether there was a reasonable explanation for his late arrival at work on 18 November 2009.1

Insofar as the second ground of review is concerned, it is apparent from the notice to attend a disciplinary enquiry (Annexure “CK4” to the answering affidavit of Adendorf Machinery) that the applicant was also charged with gross insubordination in that:

“On 18 November 2009 your repairs manager confronted you on your late coming and [that you] only started working after 8.30. You used abusive language towards your manager and showed blatant disrespect towards your manager.”

It is apparent from the arbitration award that the Arbitrator accepted the version of Bennie, namely that the applicant had threatened to assault him at the disciplinary enquiry.

Unfortunately, the Arbitrator does not thereafter take this misconduct into account in determining the substantive fairness of the applicant’s dismissal and instead simply finds that Adendorf Machinery dismissed the applicant because he was a habitual

latecomer and that the applicant’s dismissal was substantively fair for this reason alone.

Mr Maluleke, who appeared for the applicant, submitted that I should substitute the arbitration award with a finding that the dismissal of the applicant was substantively unfair and should thereafter award compensation to the applicant. Mr Maluleke also

confirmed that the applicant does not seek reinstatement.

The applicant was dismissed in November 2009 and the arbitration award was handed down in March 2012. It would therefore not be fair nor reasonable to remit the dispute to the MEIBC concerning the substantive fairness of a dismissal which occurred almost four years ago. This is especially so since Adendorf Machinery have not opposed the review application.

In my opinion and in the absence of the Arbitrator having specifically found the applicant guilty of gross insubordination and, more importantly, having failed to take such misconduct into account in determining the substantive fairness of the applicant’s dismissal, I should review and set aside the arbitration award and substitute same with a finding that the dismissal of the applicant was substantively unfair.

Insofar as the quantum of compensation to be awarded to the applicant is concerned, I believe that the applicant was, to some degree, the architect of his own misfortune in this matter and that I should therefore restrict such compensation to an amount

equivalent to five months salary. This is again especially so since the applicant, on his own version, seems to have become involved in an altercation with Bennie during the disciplinary proceedings.

Order

Accordingly, I make the following order:

The arbitration award is reviewed and set aside and substituted with an order that the dismissal of the applicant was substantively and procedurally unfair.

Adendorf Machinery is ordered to pay compensation to the applicant in the amount of R24 600, 00 which includes the compensation previously awarded to the applicant for procedural unfairness by the Arbitrator.

Such compensation is to be paid to the applicant within 10 (ten) days of date of this Court order.

There is no order as to costs.

____________

M J VAN AS

Judge of the Labour Court of South Africa

APPEARANCES:

Applicant: Advocate H P Maluleke instructed by Ndhlovu Attorneys

Respondents: No appearance for the respondents

1Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) at paragraph 119