NTE Company (Pty) Ltd v CEPPWAWU and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Allen-Yaman AJ
• Judgment Date: 15 January 2023
• Citation: 2023 JDR 2629 (LC)
• Hearing Date: 18 October 2022
• Docket Number: D504/2021
• Court: Labour Court

Allen-Yaman AJ:

Introduction

[1]

This applicant seeks to review and set aside the award issued by the third respondent on 1 July 2021 in terms of which the third respondent found that the dismissal of the employee, Mr Sydney Ngwenya, by the applicant had been substantively unfair and ordered the applicant to reinstate him and to pay him backpay in the amount of R30 395.43.

[2]

The application is unopposed by any of the respondents.

[3]

Where it is necessary to do so, the first respondent trade union will be referred to as CEPPWAWU and the first respondent employee will be referred to as ‘the employee’.

Background

[4]

The applicant’s conducts the business of the manufacture of a product known as Wattle Extract. In the course of its operations, a by-product known as boiler ash is created.

[5]

In the past it had been permissible for the applicant to give the boiler ash to the general public, however, at a point in time prior to February 2021, this practice became prohibited as a matter of law. From that point onwards, the applicant was only permitted to give its boiler ash to those who were ‘approved’ to take possession thereof.

[6]

The applicant’s Production Manager, Mr Willem Janse van Rensburg alleged that on 22 February 2021 he had received a telephone call from a private individual who had requested a delivery of boiler ash. He alleged further that when he advised the individual that this was impermissible, the individual

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questioned why, if this was so, boiler ash was still being delivered on weekends.

[7]

This telephone conversation led Mr Janse van Rensburg to investigate the allegations made by the person who had telephoned, which resulted in him locating two piles of boiler ash in a nearby residential area referred to as the RDP.

[8]

Mr Janse van Rensburg duly reported the issue to the applicant’s Factory Manager, Mr Lawrence Savage.

[9]

In the result, the employee was charged as follows,

‘1.

Breach of Rule 6.4: Lawful instruction

In that you delivered ash to the RDP on the weekend of 20-21 February 2021 in contravention of the instruction by Production Manager, Mr Wille Janse van Rensburg to not drive out boiler ash without management authorisation. No such authorisation was given to deliver ash in the RDP.

2.

Breach of Rule 9.2: Dishonesty

In that when asked about the ash on Monday, 22 February 2021, you denied that you had delivered it to the RDP, despite clear evidence to the contrary.’

[10]

At the disciplinary enquiry which was held, the employee denied that he had been guilty of the misconduct alleged. He was nonetheless found to have done so and was found to have been dishonest in the course of his evidence given in his defence. These findings resulted in the chairperson having recommended the sanction of dismissal.

[11]

The applicant accepted the recommendation as aforesaid and the employee was notified of the applicant’s decision on 18 March 2021 in the letter addressed to him by which he was dismissed.

[12]

CEPPWAWU referred a dispute timeously to the second respondent on behalf of the employee, in which the fairness of the employee’s dismissal for

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misconduct was challenged. It was this dispute which was arbitrated by the third respondent.

[13]

The applicant led the oral evidence of three witnesses in support of its case, Mr Janse van Rensburg, Mr Savage, and its Engineering Foreman, Mr Johannes Erasmus. In addition, the applicant introduced certain documentary and photographic evidence. The applicant himself testified in support of his own case.

[14]

Although both parties were represented during the course of the arbitration, neither was legally represented: the applicant was represented by an official of the employer’s organisation AHI and the employee was represented by CEPPWAWU.

[15]

Upon the conclusion of the parties’ evidence the third respondent issued the award which is sought to be reviewed and set aside in these proceedings.

Analysis

[16]

In its founding affidavit the applicant contended that the award was subject to review in terms of section 145 of the LRA.

[17]

In particular, it was suggested by the...