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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT PORT ELIZABETH

Case No: P174/05

In the matter between:

GOODYEAR SA (PTY) LTD Applicant

AND

BARGAINING COUNCIL FOR THE NEW TYRE MANUFACTURING INDUSTRY 1^ST Respondent

LOUIS VERMAAK N.O. 2^nd Respondent

NATIONAL UNION FOR METAL WORKERS 3^rd Respondent

M MOSI 4^th Respondent

JUDGMENT

Molahlehi J.

Introduction

[1] The applicant seeks an order to review and set aside the arbitration award of the second respondent (the Commissioner) under case number BC 23/2003 dated 23 March 2005. In terms of the arbitration award the Commissioner found the dismissal of the fourth respondent (the employee) to be substantively unfair and directed that he be reinstated.

Background

[2] The facts in this case are fairly common cause. The employee who was before his dismissal employed as a forklift driver by the applicant was dismissed after being charged with the following two charges:

“(1) Driving a forklift Negligently or/and Reckless (sic) on Friday 14 February 2003 during 1^st Shift which resulted in the injury of a pedestrian.

(2) Non-Compliance with established procedure by not completing your drivers (sic) check off sheet at the start of your shift on Friday 14 February 2003 1^st Shift.”

[3] It is common cause that the incident that led to the charges proffered against the applicant occurred, on the 14 February 2003, in the process of the employee reversing the forklift.

[4] The applicant alleges that because of failure to keep a proper look out, the employee collided with Mr Blues, a pedestrian and a contractor who was walking in the applicant’s factory at the time of the incident. As a result of the collision Blues was pinned between the forklift and the guard-rail which serves to protect the factory floor entrance.

[5] The version of the applicant during the arbitration hearing was that but for pinning of Blues onto the guard-rail, the negligent driving of the employee would have inevitably resulted in the forklift striking the guard-rail.

[6] The employee conceded after observing the video of another forklift driver performing a reverse that the maneuver performed in the video was the correct one and that if the driver so wished, he could have turned more sharply. The employee also conceded that the applicant’s policy regarded safety as a priority and that pedestrians have right of way in the factory. The employee did not dispute the existence of the rules relating to safety and their seriousness, including the fact that employees had been briefed of this policy few weeks ago before the incident. Clause 11 of the applicant’s In-Plant Driver Policy for drivers provides:

“Remember that pedestrians always have the right of way and at shift changes time pedestrian traffic will be increased.”

[7] The applicant also led evidence that indicated that the policy of compliance with safety rules has been applied consistently and that breach thereof has resulted in disciplinary action. In this regard one of the witnesses of the applicant, Mr Nyiki testified how he was issued with a final written warning during 1995, after pleading guilty for bumping another employee with a forklift.

[8] As indicated above the applicant did not dispute knowledge of the rule, but disputed having driven negligently on the day in question. He contended that he did not see Blues because he ran directly behind the forklift.

The grounds for review and the award

[9] The applicant contended that the arbitration award stand to be reviewed because the Commissioner disregarded the relevant material evidence and abrogated his responsibility to consider and determine the merits of the dispute with reference to all evidence before him. He also failed to properly apply his mind to the main substance of the applicant’s case and in particular the importance of safety within the applicant’s workplace.

[10] The Commissioner rejected the employee’s contention that the dismissal was procedurally unfair. Thus procedural fairness was not an issue for consideration in this review application.

[11] In as far as substantive fairness was concerned, the Commissioner found the employee guilty of negligence for failing to keep a proper look out prior to the occurrence of the incident. The contention by the applicant that the conduct of the employee amounted to gross negligence was however rejected by the Commissioner. It was for this reason and those which are discussed later in this judgment that the Commissioner decided to interfere with the dismissal sanction. The other factors which the Commissioner took into account in arriving at the conclusion that the dismissal was not an appropriate sanction were the following:

“Firstly, the respondent’s Code of Conduct recommends a Final Written Warning for “Recklessness.” The Respondent’s In Plant Driver Policy states that “safety offences will be treated severely and loss of your license could mean there is no other position for you in the company.

Secondly, the applicant has a long service of 22 years, with the respondent and a clean record. I do not belief it is fair to dismiss the applicant based on this singular incident and given the singular incident and given the specific circumstances that had prevailed.

Thirdly, taking into account the circumstances of the accident as outlined I cannot find that the trust relationship between the applicant and the respondent had broken down to the extent that the employment relationship cannot continue.”

[12] The Commissioner also assessed the relative contributions to the incident by both the employee and Blues. The Commissioner rejected the version of the employee that he did not see Blues because he ran into the forklift from behind. In this regard the Commissioner found that had the employee “performed the required visual checks… he would have observed Mr. Blues and would have prevented the accident.”

[13] The Commissioner having found the employee guilty of negligence in that he did not keep a proper lookout when he was executing the reverse, ordered the reinstatement of the employee retrospectively to the 1^st April 2004, and that he (the employee) be issued with a final written warning.

[14] I have already mentioned that the Applicant contended that the Commissioner abrogated his responsibility by failing to consider and determine the dispute with reference to all evidence that was before him. The Commissioner was also criticized for disregarding the importance of the safety regulations.

[15] As concerning the issue of contributory negligence, the applicant argued that the employee was not negligent because he struck Blues, but because he failed to keep a proper look out and the fact that he struck Blues was indicative of his negligence.

[16] The applicant further contended that the collision and the injuries suffered by Blues had no bearing on the degree of negligence. The thrust of this argument is that the Commissioner should have assessed negligence with reference to the extent to which the employee disregarded the standard required of him as a driver.

[17] Counsel for the applicant, argued that because of the fixed approach adopted by the Commissioner, he failed to apply his mind to the relevant safety standards and the extent on which the employee failed to comply with them. This according to him is the relevant inquiry which the Commissioner should have conducted in relation to the degree of the employee’s negligence.

[18] The Commissioner was criticized for failing to have proper regard to; (a) the rules regarding the driving of the forklift and in particular the reversing thereof, (b) the degree to which the employee disregarded the rules and procedures governing the safe driving of a forklift, (c) the absence of evidence justifying the employee’s departure from the required safety standards, and failure to keep proper lookout.

[19] The crux of the matter, as I see it, turns on whether or not the dismissal was an appropriate sanction in the circumstances, the Commissioner having found the employee guilty of negligent driving.

The test for review

[20] The Constitutional Court, in the case of Sidumo v Rustenburg Platinum Mine [2007] 28 ILJ 2405 (CC), held that the Court is entitled to interfere with an arbitration award only if it has been shown that the decision of the arbitrator is not reasonable. The test is that of determining whether or not the decision made by the arbitrating Commissioner is one which a reasonable decision maker could reach.

[21] The importance and implication of the decision in the Sidumo’s case received attention in the Labour Appeal Court decisions of Phalaborwa Mining Company Limited v Anthony James Cheetham & 2 Others (unreported JA7/2006) and Fedelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and Others (unreported DA10/05).

[22] In dealing with the effect of the Sidumo’s judgment Willis JA in Phalaborwa Mining Company Limited says:

“… the judgment has the clear effect that the courts, and, in particular, the Labour Courts, must defer (but not in an absolute sense) to the decision of the Commissioners.”

The learned judge of the Labour Appeal Court then quoted with approval what was said in Sidumo by the minority judgment of Ncobo J, when he said:

“as far as possible arbitration awards would be final and would only be interfered with in very limited circumstances.”

[23] In the Fedelity Cash Management Services, Zondo JP delivering the unanimous decision of the Court, said:

“The test enunciated by the Constitutional Court in Sidumo for determining whether a decision or arbitration award of a CCMA Commissioner is reasonable is a stringent test that will ensure that such awards are not lightly interfered with.”

[24] The reasonable decision maker’s test is obviously an objective test which requires that all the evidence and the issues which were before the Commissioner should be taken into account in determining whether or not the decision or ruling of the Commissioner is reasonable. In Fedelity Cash Management Services the Court held that Sidumo’s judgment does not allow that CCMA arbitration awards or decisions to be set aside simply because the Court would have arrived at a different decision to that of a CCMA Commissioner’s arbitration award.

[25] In my view the arbitrator in arriving at the conclusion that the employee was not guilty of gross negligence but of negligent driving applied his mind to the evidence before him and the circumstances within which the incident is said to have happened. It may well be that this Court or another arbitrator may have arrived at a different conclusion to that of the arbitrator. That is not the test to apply in review matters. The test as already indicated is whether or not the decision of the arbitrator is reasonable in that the arbitrator took into account the evidence before him and the circumstances of the case presented to him.

Appropriateness of the sanction

[26] The applicant in its attack of the decision of the Commissioner to interfere with its decision to dismiss the employee relied on the decision of the Supreme Court in the case of Rustenburg Platinum Mines Limited (Rustenburg Section) v CCMA and others (2006) 27 ILJ 2076. In that case the Supreme Court of Appeal held that CCMA Commissioner is entitled to interfere with the sanction imposed by the employer in circumstances where the employer’s sanction falls outside the so-called “range of reasonable response.”

[27] The approach to be adopted by a CCMA Commissioner when deciding whether dismissal as a sanction in a particular case is fair or unfair, was clarified in both Sidumo and Engen Petroleum Ltd v CCMA & others (2007) 28 ILJ 1507 (LAC).The decision of whether a dismissal as a sanction is fair or unfair must be decided by the Commissioner in accordance with his or her own sense of fairness. (See Engen at para 117 to 119 and Sidumo at para 75 to 76). In this regard the Constitutional Court in Sidumo (at para 75) said: “Ultimately, the Commissioner’s sense of fairness is what must prevail and not the employer’s view.”

[28] In assessing the fairness or unfairness of the dismissal sanction, the Commissioners should in terms of Sidumo take into account all the circumstances of the case, including the importance of the rule that was breached and the reasons why the employer imposed the sanction of dismissal. The employer’s reasons for imposing the dismissal sanction must be weighed against the employee’s inputs.

[29] The other factors which the Commissioners need to take into account in assessing the fairness of the dismissal sanction are; (a) the harm caused by the employee’s conduct, (b) whether the repetition thereof might be avoided through training or counseling, (c) the length of service of the employee and (d) the impact and the effect of the dismissal on the employee. (see Sidumo at para 78, Fedelity Cash Management Services at par 94 and Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industries and others (unreported case D679/04).

[30] Turning to the facts of the present case I have already indicated that the Commissioner having concluded that the employee was not guilty of gross negligence but guilty of negligence decided to interfere with the dismissal sanction which was imposed by the applicant. Thus the question that remained to be answered by the Commissioner related to the determination of whether or not the dismissal in all circumstances of the present case was fair. In answering this question the Commissioner was required to give an answer which is reasonable.

[31] In answering the question and arriving at the conclusion that the dismissal sanction was unfair the Commissioner, took into account; (a) the applicant’s Code of Conduct, (b) the applicant’s In Plant Driver Policy, (c) the clean disciplinary record and the 22(twenty two) years of service which the employee had with the applicant and (d) all the circumstances surrounding the incident that led to charges being proved against the employee.

[32] In my view the analysis of the evidence and the issues before the Commissioner reveal that the decision the Commissioner reached, that the employee was not guilty of gross negligence but of negligence and that the dismissal sanction imposed by the applicant was harsh, was a decision that a reasonable decision maker could reach. There is accordingly no reason or basis for interfering with the decision of the Commissioner.

[33] In the circumstances, I would dismiss the review application. As concerning the costs, I am of the view that the requirements of law and fairness dictate that costs should follow the result.

[34] The review application is dismissed with costs.

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Molahlehi J

Date of Hearing : 23 August 2007

Date of Judgment : 11 January 2008

Appearances

For the Applicant : Adv. R.B. Wade

Instructed by : Chris Backer & Associates

For the Respondent: W.R. Mokhare

Instructed by : Monyane Attorneys

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