Tzaneng Treated Timbers (Pty) Ltd v National Bargaining Council for the Wood & Paper Sector and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Coppin JA and Tokota AJA and MG Phatudi AJA
• Judgment Date: 06 April 2022
• Docket Number: JA77/19
• Hearing Date: 17 February 2022
• Court: Labour Appeal Court
• Citation: 2022 JDR 1985 (LAC)

Phatudi AJA:

[1]

This is an appeal against the entire order of the Labour Court (Coetzee AJ) in which it dismissed an application brought by the appellant in terms of section 145 of the Labour Relations Act [1] ("LRA") to review an award made by the second respondent in favour of the 30 employees represented by the third respondent. Leave to appeal to this court was granted on petition.

[2]

The issue that arises for decision in this appeal is essentially whether the court a quo had erred in dismissing the review application and whether the award of the arbitrator, acting under the auspices of the first respondent, fell within the range of a reasonable award an arbitrator could have made. [2]

[3]

It is common cause that the employees affiliated to the third respondent union, including the 30 employees who are cited herein as third respondent, embarked on a legal, protected strike on 4 August 2014. On the morning of the strike the workers clocked in at the workplace of the appellant but then left to participate in the strike. The workers were not given access to the workplace again on that day, as a result of which they never clocked out. The appellant in fact denied them such access.

[4]

Upon their return to work the next day the respondent employees were each given a notice of suspension by the appellant, pending an investigation into their alleged misconduct relating to their clocking conduct on the day of the strike. Notwithstanding protestation by the third respondent union on their behalf, the respondent workers were thereafter charged with misconduct relating to the clocking.

[5]

In the main charge they were alleged to be guilty of fraudulent clocking in, because on 4 August 2014 (i.e. the day of the strike) they had clocked in for duty and had left the appellant's premises without clocking out. The charge also alleged that this was "a class 1" and "a very serious offence".

[6]

The appellant principally relied on "clocking instructions", with which the employees were allegedly familiar, that had been revised in July 2011, and in

2022 JDR 1985 p3

Phatudi AJA

terms of which: "1. Employees must clock in when coming on duty; 2. Employees must clock out for lunch and then clocked in again when they return to work; and 3. Employees must clock out when they leave the premises." In terms of the instructions employees who leave the premises without clocking out will face disciplinary action.

[7]

In terms of the appellant's disciplinary code class 1 offences are considered "very serious". Item 22 of the code states the following under the heading "Fraudulent Timekeeping": "Clocking in for someone else, having someone clock in for you", and more relevant for this case, "clocking without actually working".

[8]

The thirty respondent employees were found guilty of the said charge at the disciplinary hearing and were dismissed by the appellant. As a consequence, the third respondent union, on behalf of the employees, referred an unfair dismissal dispute to the second respondent (i.e. the bargaining council). After conciliation failed the matter was referred to arbitration, where the arbitrator presided...