This matter concerns the First Respondent’s award finding that the dismissal of the Fourth Respondent was substantively unfair, ordering his reinstatement. The Applicant sought an order setting aside the award, while the Fourth Respondent applied for the award to be made an order of court.
The Fourth Respondent’s dismissal arose from his failure to ship an urgent order of parts required for a unit to operate, from a client in the Democratic Republic of Congo. It was common cause that once an order is received, it should be airfreighted within a couple of days. The order file was placed on the Fourth Respondent’s on 25 October 2011, however, a week later it had still not been shipped.
The Arbitrator found that under usual circumstances, where a shipment is urgent, the Fourth Respondent would usually be contacted once the shipment was packed and ready to be invoiced, however, this did not happen. In addition, where an order is as urgent as this, the file should not merely be left on the Fourth Respondent’s desk without further follow up.
The Arbitrator found that the financial loss suffered by the First Respondent was not solely due to the Fourth Respondent’s failure, as other departments were also responsible. The Arbitrator found the dismissal to be unfair, ordering the employee’s reinstatement.
The Applicant’s grounds of review are that the Arbitrator:
- misconceived the nature of the charges against the Fourth Respondent which related to his failure to expedite the matter once it reached his desk in the warehouse;
- failed to appreciate that there was evidence providing good reasons for the initial delay;
- failed to appreciate that export controllers ought to be at their desks dealing with urgent orders;
- misconstrued the evidence when concluding that the file ought to have been given to him personally or phoned him if he was not at his desk; and failed to take into account that the Fourth Respondent was on a final written warning.
The Labour Court (the LC) agreed that the main complaint against the Fourth Respondent was his failure to ship the order despite the passing of an entire week and that there were valid reasons for the initial delays.
In relation to the third ground of review, the LC agreed that export controllers were not required to go to the warehouse to follow up on orders, but rather to follow up by phone and email. In this instance, the Fourth Respondent frequently followed up with the warehouse personnel to get them to speed up the process so the order could be shipped, however, once the file reached his desk there was no further correspondence in relation to this order. Even if the Fourth Respondent denied having received the file, he failed to take any steps to expedite the matter which he was well aware was urgent. If he genuinely believed the order had not yet been invoiced he ought to have been urgently following up with the warehouse staff, which he failed to do. The LC found that the Arbitrator could not reasonably have come to the conclusion that he was not responsible for the delay after 25 October.
It was further found that the Arbitrator failed to consider the final written warning issued to the Fourth Respondent due to his failure to finalise another urgent order for nearly a month. Given the considerable financial losses suffered as a result of the delay and the Fourth Respondent’s final written warning for a related misconduct, the finding that his dismissal was substantively unfair was not reasonable.
The LC held that the arbitration award be reviewed and set aside, and the finding that the dismissal was substantively unfair was substituted with a finding that the dismissal was substantively fair. The application to make the award an order of court was dismissed.
This case highlights that where an employee is on a final written warning for neglecting an urgent matter, and then subsequently, fails to do what was required in the circumstances to finalise another matter which he was aware was urgent, the employee’s dismissal will be substantively fair.
Written by Wesley Pons and supervised by Charlotte Clarke, 10 August 2018