Pailpac (Pty) Ltd v De Beer NO.

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Phatsoane ADJP, Kathree Setiloane AJA and Savage AJA
• Judgment Date: 01 March 2021
• Court: Labour Appeal Court
• Hearing Date: 10 November 2020
• Docket Number: DA 12/2018

Kathree-Setiloane AJA:

[1]

This appeal is against the judgment and order of the Labour Court (Gush J) dismissing the review against the arbitration award of the first respondent ("arbitrator") made under the auspices of the second respondent, the Metal and Engineering Industries Bargaining Council ("Bargaining Council"), in which the arbitrator, inter alia, found that the dismissal of the fourth to eleventh respondents ("dismissed employees) was substantively unfair and reinstated them. The dismissed employees are members of the third respondent, the National Union of Metal Workers of South Africa ("NUMSA"). The appeal is with leave of this Court.

Background:

[2]

NUMSA embarked on a national strike in the metal and engineering industry in July 2014. The dismissed employees, who were employed by the appellant, Pailpac (Pty) Ltd ("Pailpac"), at its factory in New Germany, KwaZulu Natal, participated in the strike. They were dismissed for misconduct relating to the

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Kathree-Setiloane AJA

carrying of weapons such as sticks, PVC rods, sjamboks and golf clubs during the strike. Pailpac charged them, in terms of its revised Breaches of Discipline document ("revised BOD rules"), for "brandishing and wielding weapons during a strike". The dismissed employees were found guilty as charged at individual disciplinary hearings and dismissal was recommended. Pailpac subsequently dismissed all of them.

[3]

The dismissed employees referred an unfair dismissal dispute to the Bargaining Council for arbitration. The arbitrator found the dismissals to be substantively unfair and reinstated the dismissed employees retrospectively to the date of their dismissal. She reasoned as follows:

'I do not believe that in the current circumstances that it will be fair to hold the [dismissed employees] bound to a rule that they did not know existed, or which was not effectively communicated to them.'

[4]

Pailpac challenged this finding on review. It argued, relying on the constitutional standard of review in Sidumo [1] that the arbitrator's award is reviewable as the outcome reached was not one that could reasonably have been reached on the evidence and other material properly before the arbitrator. The Labour Court dismissed the review application with no order as to costs. In doing so, it reasoned as follows:

'[23]

In this matter, it is clear that the [arbitrator] gave the parties a full opportunity to have their say, identified the dispute she was required to arbitrate, understood the nature of the dispute and dealt with the substantial merits of the dispute.

…

[28]

In her award, the [arbitrator] clearly analyses the evidence surrounding the [dismissed employees] averment that they were not aware of the rules and whether they reasonably should have been expected to have been aware of them.

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…

[31]

Bearing in mind that this is a review of the [arbitrator's] award and not an appeal, I am not persuaded that the reasons for the conclusion of the arbitrator that the [dismissed employees] could not reasonably have been expected to have known the rule is a decision that another arbitrator could not have reasonably reached… .

[32]

The [arbitrator has clearly set out the reasons for concluding that the [dismissed employees] could not reasonably have been expected to know the rule despite [Pailpac's] evidence. The decision clearly falls within a band of reasonable conclusions. It cannot be said that the [arbitrator's] conclusion is one to which another arbitrator could not reasonably have arrived.'

[5]

It is these findings which are appealed against.

Analysis:

[6]

The primary issue for determination is whether the employees knew or could reasonably have been expected to be aware of the rule.

[7]

Pailpac's central argument is that the evidence shows that the dismissed employees had knowledge of the rule preventing them from, effectively, carrying sticks, sjamboks and golf clubs in a hostile fashion during the strike, but the arbitrator ignored this evidence which was material to the outcome of the dispute. It furthermore argues that the arbitrator ignored material contradictions in the version of dismissed employees regarding knowledge of the rules and sight of the area where the rules were published, yet the Labour Court simply rubberstamped the arbitrator's findings and did not interrogate the evidence or the material contradictions in the dismissed employees' version. It contends that once it was established that the dismissed employees had knowledge of the rule or could reasonably have been expected to have knowledge of it, there was no genuine dispute as to its breach; hence their individual dismissals were justified.

[8]

The dismissed employees contend, to the contrary, that that there was no acceptable evidence before the arbitrator that any of the dismissed employees

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had actual knowledge of the rule prohibiting the carrying of weapons and the sanction for contravening it. In development of this argument, they contend that Pailpac's attitude towards its responsibility to ensure that its employees knew and understood the import of rules which could result in their dismissal was grossly inadequate, both generally in regard to the revised BOD rules and, specifically, in regard to its Picketing Policy and Procedure ("picketing policy") which did not, in any event, inform employees that contravention was a dismissible offence). In...