AT THE METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL. NUMSA obo JOHN MAHLANGU ARBITRATION AWARD

Transcription

1 AT THE METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL IN THE ARBITRATION BETWEEN NUMSA obo JOHN MAHLANGU APPLICANT AND GK STEEL & MINING RESPONDENT ARBITRATION AWARD CASE NUMBER: MEGA DATE OF HEARING: 12 July and 09 October 2012 WRITTEN CLOSING SUBMITTED: 16 October 2102 DATE AWARD SUBMITTED: 28 October 2012 NAME OF PANELLIST: Coen Havenga Centre for Dispute Resolution Gauteng and North West (011) Tshwane, Mpumalanga and Limpopo (012) Free State and Northern Cape (057) Western Cape (021) KwaZulu Natal (031) East London (Border Region) (043) Port Elizabeth (Midlands) (041)

2 1. DETAILS OF HEARING AND REPRESENTATION The last day of the hearing of the arbitration took place on 09 October 2012 at the Centre for Dispute Resolution at the Metal and Engineering Industries Bargaining Council offices in Witbank. The parties requested to submit written closing arguments which were all submitted by 16 October The Applicant is NUMSA on behalf of John Mahlangu, represented by Mr. S Tau, a union official. The Respondent is GK Steel & Mining, represented by Mr. L Cullen, an EOM official. 2. THE ISSUE TO BE DECIDED The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties agreed that the dismissal of the Applicant is not in dispute. Both substantive and procedural fairness were placed in dispute. The issue to be decided was accordingly whether the Applicant s dismissal was substantively and procedurally fair. The Respondent submitted a bundle of documents as Bundle A, page 1 20, and the Applicant submitted Bundle B, page PRELIMINARY ISSUES Respondent submitted the following opening statement: The Applicant was notified of the disciplinary hearing, as well as the union as he was a shop steward. He failed to follow a direct order in respect of safety. He failed to wear his personal protective equipment (PPE). Dismissal was the appropriate sanction. He was found guilty and was dismissed on 10 February He had 6 years service. He had been employed as a cutter and earned R33-68 per hour. The Applicant submitted the following opening statement: It was an unfair dismissal for misconduct, as he denies the misconduct. The Applicant challenges the procedure as item 4(2) of Schedule 8 was not complied with. The Applicant was a shop steward. The Applicant asks for retrospective reinstatement without loss of any benefits.

3 4. SUMMARY OF EVIDENCE The proceedings have been recorded digitally, and only a summary of the Respondent s witnesses and Applicant s evidence follows below. LLOYD CULLEN testified that he was requested to chair the disciplinary hearing. Page A2 and A3 are letters notifying the union of the disciplinary hearing as the Applicant was a shop steward. The Applicant was informed of his rights. He elected not to be represented. He signed on page A4. He pleaded not guilty. He was found guilty. He never raised any concern about the process. He never asked to be represented. During cross-examination he testified that the issue of consulting with the union in respect of the disciplinary action against a shop steward is a matter of interpretation. He denies that the Applicant requested a postponement. JOHANNES BOTHA testified that he is the general manager. They have 2 HD Plasma cutters and 2 flame cutting machines. Employees must wear their PPE. The flame cutters are dangerous because of the splattering effect. Safety is not negotiable. The PPE consist of ear plugs, goggles, safety boots and overalls. Page A17 reflects the toolbox talks held every week to teach employees the importance of PPE. It is done with all employees. Page A18 shows the Applicant s signature as proof that he attended the safety talk. In respect of charge 1 he did not follow the rules as he wore his goggles on top of his head and not on his eyes. He could lose his eye if metal is shot into his eye. Charge 2 is about him not wearing the protection as instructed. There was a previous dismissal for the same reason. The Respondent acted consistently. Charge 4 relates to the fact that there was an inspection by an Escom subcontractor on a tender. They check for quality and safety. On that day the employees were specifically asked to please wear the PPE. The Applicant did not wear his. He jeopardized his own safety as well as a 3.5 million rand tender. They did not place an order with the Respondent and they lost business as a result. The flame cutters used by the Applicant causes a flash that could get into the eyes. During cross-examination he testified that Kolesky informed him that the Applicant was not wearing his PPE. He did not witness the incident. He denied that the lenses of the goggles were too dark too see through. Kusela was a potential client and they never received an order from them. The employees have to wear PPE even if they are not operating a machine at the time. GERHARD KOLESKY testified that he is the owner of the business. The Applicant was dismissed for not obeying his instructions to the workshop foreman. He expected a visit from Kusela Power Station. They belong to Escom and are very strict when it comes to safety.

4 He gave the workshop foreman instruction to go to every profile cutter and tell them management says they must please wear their PPE. The people wanted to see the workshop and he wanted to show them the plasma machine they imported from Germany. He found the Applicant cutting strips without his safety glasses. He called him to his office after the people left to ask why he did not wear it. He did not answer him. When he said he is going to charge him he said he must do what he wanted to do. He wore his safety glasses on top of his head. The machine he uses causes sparks to fly and the safety glasses protect the eyes. Melted steel could cause the loss of an eye. The same week that they had the safety meeting the Applicant failed to wear his PPE. He personally saw him without his glasses. During cross-examination he testified that the Applicant was busy cutting when he saw him. Sparks were flying all over the place. The Applicant s version that he can t see through the glasses when taking measurements is not valid as he worked on an automatic machine that had the measurements fed into a computer. He just has to cut. The Applicant is a shop steward. He tried to divert the visitor s attention so they would notice the Applicant cutting without his glasses. The relationship has been broken when he told him to do what he wanted to do. He did respond to the union s letter as per page A2. He endangered the contract with Escom as they place high regard on safety. JOHN MAHLANGU testified that he was taking measurements with the safety glasses on his head as he see properly through it when it is on his eyes. If one cut the wrong size you get dismissed or have to pay. He did not tell Kolesky to do what he wants to. He is a shop steward. He did ask for a postponement to obtain representation. It was refused. He signed A4 because they said he will be dismissed if he does not sign. The Respondent did not respond to the union s letter. The company did not consult the union. The relationship has not been broken down. During cross-examination he testified that he was issued with safety glasses. It is issued to protect him. Safety glasses go hand in hand with his work as profile cutter. His glasses were on his head. One can read on paper through the glasses. He agrees there are light in the workshop. He agrees there is a rule about safety in the workplace. All employees are educated on the use of PPE. It is a fair rule. SUMMARY OF CLOSING ARGUMENTS The parties submitted written closing arguments which forms part of the record. I have studied and considered both sets of closing arguments. The Respondent argued that the dismissal was both substantively and procedurally fair. The Applicant argued that none of the misconduct was proven and requests retrospective reinstatement.

5 5. ANALYSIS OF EVIDENCE AND ARGUMENT 5.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL In considering the substantive fairness of the dismissal of the Applicant for misconduct, the principles contained in the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines: a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and b) If the rule or standard was contravened, whether or not i. The rule was a valid or reasonable rule or standard; ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard; iii. The employer has consistently applied the rule or standard. iv. Dismissal was an appropriate sanction for the contravention of the rule or standard. The dismissal of the Applicant is not in dispute, and the Respondent is therefore required to prove that the dismissal was substantively and procedurally fair. The standard of proof that is applicable in hearings of this nature is identical to the civil standard the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb WAS A RULE OR STANDARD REGULATING CONDUCT IN, OR OF RELEVANCE TO, THE WORKPLACE CONTRAVENED? Arbitration hearings are not merely reviews of the employer s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). An arbitration hearing constitutes a full rehearing on the merits plus an investigation of the fairness of the procedure followed by the employer. (See Gibb v Nedcor Ltd ILJ 364 (LC)). Arbitration amounts to a hearing de novo. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing.

6 This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)). The charges against the Applicant appear in the notice to attend a disciplinary hearing as reflected on page 3 of Bundle A, and reads as follows: 1. Not following company rules & procedures concerning safety. 2. Not following direct orders from management. 3. Breach of working relationship between employee and employer. 4. Putting the company s name into disrepute and endangering contracts. I am satisfied that the Respondent proved on a balance of probabilities that The Applicant was issued with PPE, that he was educated in the use of it and that he was given a specific order to wear it on the day of the incident. The Applicant did not dispute that. He also does not dispute that he did not wear the glasses on his eyes when observed. He denied that he was cutting at the time and submits that he wore the glasses on his head to enable him to take measurements as he can t see properly through it when taking measurements. The glasses were produced at the arbitration and it is evident that one can indeed see through the glasses. Even if I accept that he was not cutting at the time his excuse for not wearing it at all times as instructed is not valid. However, the Respondent submitted that there is no need to take measurements as it is done by computer. On a balance of probabilities I am satisfied that the Applicant was indeed cutting at the time that he was observed to have his glasses on his head. He failed to adhere to company rules concerning safety. It is not in dispute that there was a direct order on the day to wear PPE in the light of a visit by potential clients. The Applicant failed to follow that instruction. Considering the undisputed evidence of the Respondent that the potential client places high standards on safety, and that the company received no orders form them, I find that the company name was probably brought into disrepute by the Applicant s defiance. This led to a breach of the working relationship. I am satisfied that the Respondent proved on a balance of probabilities that the Applicant committed the misconduct he was charged with.

7 5.1.2 WAS THE RULE OR STANDARD VALID OR REASONABLE? Considering the nature of the employer s business, the circumstances in which it operates, the type of work performed by the employee and the environment in which the work is performed, it is accepted that the rules are valid, i.e. lawful and reasonable. The employer has an obligation in terms of legislation to ensure the safety of employees, and rules and instructions to promote that have to be adhered to. the Applicant agreed that such rules are reasonable and valid. There is no evidence that the rules had been abrogated by disuse because the employer had not relied on it for some time WAS A THE EMPLOYEE AWARE, OR COULD HE REASONABLY BE EXPECTED TO HAVE BEEN AWARE OF THE RULE OR STANDARD? What is required by the provisions of paragraph 7 of Schedule 8 for a dismissal for misconduct to be fair is that the employee was aware or could be reasonably expected to have been aware of the rule or standard. Although the provisions of Schedule 8 do not necessarily require the rule or standard in question to have been conveyed to employees in meticulous detail in the disciplinary code of the employer, I am satisfied that it was in fact done so in this case. The Applicant did not dispute knowledge of the rules. I am of the opinion that the employee was well aware of the rules or standards as shop steward, and that the conduct the employee was found guilty of, constitutes transgressions HAS THE RULE OR STANDARD BEEN CONSISTENTLY APPLIED BY THE EMPLOYER? There is no evidence of inconsistent and arbitrary action on the part of the employer in this matter. There is no evidence that the employer has habitually or frequently condoned similar offences in the past. There is also no evidence that the employer s standards differ materially from those applied by other employers IS DISMISSAL AN APPROPRIATE SANCTION FOR THE CONTRAVENTION OF THE RULE OR STANDARD? The employer has argued that dismissal is appropriate taking into account the nature of the transgression. It is therefore necessary to consider whether dismissal is an appropriate sanction, and whether a lesser sanction would serve the desired purpose. The employer s disciplinary code prescribes dismissal for an offence of this nature.

8 In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an appropriate remedy, in the light of the facts of the case. The courts have accepted that the ultimate justification for employers power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC) at 1058F-G). Defiance to obey a reasonable instruction must be gross to justify dismissal. The Applicant put his own safety at risk and also jeopardized a potential contract worth millions of rand through his disobedience to follow instructions. The misconduct is serious. As a shop steward he had the responsibility and duty to set an example in respect of adherence to rules and following procedure. Employers have a right and duty to maintain discipline in the workplace. This duty is recognized in Schedule 8 of the Labour Relations Act, no. 66 of 1995, the Code of Good Practice: Dismissal. The function of discipline in the employment context is to ensure that individual employees contribute effectively and efficiently to the goals of the common enterprise. Those employees who show by their conduct that they are unwilling to comply with, or are incapable of adhering to their employer s rules and standards can fairly be dismissed (See NUMSA and others vs Free State Consolidated Gold Mines 1996 (1) SA 422 (A)). I am satisfied that the nature of the offences of which the Applicant has been found guilty of, is in the specific circumstances such that it would have a irreparable impact on the trust relationship. It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the innocent party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at ) On that basis it appears to me that our law has to be the same as that of English law and also that a reciprocal duty rests upon the employee. There are some judgments in the LAC to this effect (e.g. Humphries & Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union (1991) 12 ILJ 1032 (LAC) 1037G). The Applicant has not shown any signs of remorse that would indicate a willingness to restore the trust relationship. The Applicant s years of service cannot outweigh the gravity and seriousness of his offence. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).

9 Taking into account then the inherent seriousness of the misconduct concerned as well as the aggravating factors that have been discussed above, it is my opinion that dismissal is an appropriate sanction in these circumstances. 5.2 PROCEDURAL FAIRNESS OF THE DISMISSAL Section 188 of the Labour Relations Act, 66 of 1995, confirms that procedural fairness is an independent requirement for a fair dismissal. In considering the procedural fairness of the dismissal of Mr. Mahlangu for misconduct, the principles contained in item 4 of Schedule 8 The Code of Good Practice: Dismissal of the Labour Relations Act, 66 of 1995, is followed. I am satisfied on the correspondence with the union in Bundle A shows that the Respondent did notify the union of the pending disciplinary action against a shop steward, and that the requirement of consultation was met. The Applicant alleges that he signed the process form merely because he was threatened with dismissal, and that his request for a postponement to obtain representation was denied. I find it improbable that a shop steward would act in that manner. He would be well aware of his rights. I find that there was no procedural unfairness that caused material prejudice to the Applicant. 6. AWARD 1. I find that the dismissal of Mr. Mahlangu was both substantively and procedurally fair. 2. The Applicant is not entitled to relief and the application is dismissed. PANELLIST: COEN HAVENGA AWARD: MEGA35737