Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN	CASE NO:  J5393/00
2001-11-13

In the matter between 
CAPE GATE	Applicant
and
NUMSA	Respondent
________________________________________________________________
	J U D G M E N T
________________________________________________________________
REVELAS, J:  
1.	This is an application for review in terms of section 145 of the Labour Relations Act, 66 of 1995 ("the Act"), to set aside an award of the first respondent ("the arbitrator"), in terms of which the fourth respondent, a former employee of the applicant, was reinstated. 
2.	The applicant had dismissed the fourth respondent on 7 January 1999 for alleged poor work performance.
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3.	The background to this dispute before the arbitrator, was that the fourth respondent had been employed by the applicant as an operator, Baling Wire Machines department. There he operated two wire machines, and was required to produce 22 reels per machine per day. An investigation by an industrial technologist revealed that the production could be substantially increased, and after consultation with its employees the targets were increased to 33 reels per machine per day. 
4.	Even though a phasing in period of one month for the increased targets was allowed, the applicant failed to perform in terms of these new set targets. The fourth respondent complained of back problems, but despite requests he was unable to provide the applicant with any medical proof of such problems. 
5.	On a previous occasion, prior to the introduction of the new targets, the applicant raised a similar complaint, but a medical practitioner opined that the fourth respondent would be able to perform his duties without any risk of injury to himself. The fourth respondent received counselling and various warnings pursuant to disciplinary hearings, and the record reflected a rather extensive process of progressive discipline, which was followed by the applicant. 
6.	The applicant was also temporarily seconded to different operators positions on the straightening wire machine, the small or utility products changing machine, and “binding and packaging” respectively. 
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7.	The fourth respondent displayed a lack of interest in these positions, and was often seen reading newspapers instead of working. Further counselling and warnings resulted in a final written warning on 27 November 1998 for failure to maintain output levels. The fourth respondent's output levels did not improve. 
8.	A further disciplinary inquiry was held on 7 January 1999, which was the last inquiry into the fourth respondent's performance, because he was dismissed on this occasion. His dismissal was confirmed on appeal.
9.	The arbitrator found that his dismissal was unfair as the applicant did not seek alternative positions with the fourth respondent as it “was required to do”, for example, the fourth respondent could have been transferred to a different department, within the applicant.
10.	The arbitrator also found that the disciplinary hearings were inappropriate because the applicant failed to focus on “issues appropriate to this type of case”. He also found the dismissal was an inappropriate sanction or remedy to the problem. 
11.	The arbitrator came to the aforesaid conclusion despite the following findings by him:
The arbitrator found that the reason for dismissal was 	incapacity; that items 8 and 9 of Schedule 8 of the Act applied to the dismissal; that the applicant's evidence as opposed to the fourth respondent's evidence had to be accepted. He found that the fourth respondent failed to maintain the production targets, increased from 22 to 33 rolls of wire per machine, set by the applicant during September 1998, for spooling machine operators. The increase of the target by the applicant was fair and not unreasonable.

12.	The fourth respondent's failure to attain the target was deliberate. The fourth respondent's conduct in failing to attain the target was unacceptable and inappropriate.
13.	The evidence before the arbitrator was thus that the fourth respondent deliberately, despite nine counselling and disciplinary inquiries into his performance, refused to increase his target. There was also evidence that the employment relationship between the fourth respondent and his supervisors had deteriorated to an intolerable level because the fourth respondent refused to fulfil the terms of his employment contract. 
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14.	In my view the arbitrator, who is not an expert in the manufacturing of steel wire, should have considered whether the sanction imposed by the applicant was fair and reasonable, and give proper reasons for concluding that the fourth respondent should have been transferred to another department. The applicant had worked in different departments but demonstrated an unwillingness to work. 
15.	The arbitrator overlooked the fact that the fundamental cause of the problems was the applicant's attitude, and adopted an extremely prescriptive position in his reasoning. 
16.	He never considered the evidence, that the employment relationship had become intolerable in the context of section 193(2) of the Act, and in those circumstances tailed consider  whether reinstatement was the more appropriate remedy.
17.	The arbitrator in fact imposed a finding on the applicant, which is rationally and reasonably disconnected to the facts of the matter, and consequently should be set aside. 
18.	In my view there is no reason why I should not substitute the arbitration award with my own order. A representative of NUMSA, the third respondent, who appeared for the fourth respondent on this point only, was only unable to persuade me otherwise.
19.	I order as follows:
1.	The arbitration award No.GA63962, dated 4 October 2000 is set aside and substituted by the following order:
"The dismissal of the fourth respondent was fair".

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E. Revelas