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[2013] ZASCA 63
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National Union of Public Service and Allied Workers (NUPSAWU) obo Mani and Others v National Lotteries Board (576/2012) [2013] ZASCA 63; [2013] 8 BLLR 743 (SCA); (2013) 34 ILJ 1931 (SCA) (24 May 2013)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
CASE NO.: 576/2012
Not Reportable
In
the matter between:
NATIONAL
UNION OF PUBLIC SERVICE &
ALLIED
WORKERS UNION (‘NUPSAWU’)
obo
MANI AND NINE OTHERS
................................................................
Appellant
and
NATIONAL
LOTTERIES BOARD
.........................................................
Respondent
Neutral citation:
National Union of Public Service and Allied Workers obo Mani &
Others v National Lotteries Board
(576/12)
[2013] ZASCA 63
(24
May 2013)
Coram
:
NUGENT, PONNAN, THERON and
PILLAY JJA and WILLIS AJA
Heard:
7 May
2013
Delivered: 24 May 2013
Summary: Labour Law -
Dismissal for insubordination – Whether dismissal of employees
automatically unfair in terms of s 187(1)(
d
) of the
Labour
Relations Act 66 of 1995
, as amended, alternatively whether it was
otherwise unfair.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from: Labour
Court, Johannesburg (Basson J sitting as a court of first instance):
The appeal is dismissed
with costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
WILLIS AJA (NUGENT,
PONNAN and THERON and PILLAY JJA concurring):
Introduction
[1] This appeal concerns
the dismissal of ten employees by the respondent on 25 August 2008.
The ground for dismissal was misconduct
in the form of
insubordination. The decision to dismiss was taken after a
disciplinary enquiry conducted by Professor André
Van Niekerk,
who is now a member of the Labour Court. Having been specifically
appointed by the respondent to chair the disciplinary
enquiry as an
independent person, he found dismissal to be the appropriate
sanction. The respondent is a juristic person established
in terms of
s 2 of the National
Lotteries Act 57 of 1997
(‘the
Lotteries
Act&rsquo
;). Professor van Niekerk’s decision was reconsidered
in an internal appeal. An attorney, Mr George Negota, dismissed that
appeal on 19 September 2008.
[2] On 23 September 2008
the appellant, a trade union acting on behalf of the ten dismissed
employees, referred a dispute relating
to the alleged unfair
dismissal of these employees to the Commission for Conciliation
Mediation and Arbitration (‘the CCMA’).
The relief sought
by the appellant was the reinstatement of the ten employees. The
process of conciliation was unsuccessful. The
appellant thereupon
referred the dispute directly to the Labour Court in terms of
s 191
(5)(
b
)(
i
) of the
Labour Relations Act 66 of 1995
, as
amended (‘the LRA’). The appellants alleged that the
dismissal had been ‘automatically unfair’ in terms
of
s
187
of the LRA. The appellants relied on the provisions of
section
187(
1
)(
d
) of the LRA which provides that a dismissal is
automatically unfair if the reason for the dismissal is that:
‘
the
employee took action, or indicated an intention to take action,
against the employer by-
(i)
exercising any right conferred by this Act; or
(ii)
participating in any proceedings in terms of this Act.’
[3]
The appellant has alleged that the dismissal was ‘automatically
unfair’ in terms of
s 187(1)(
d
)
of the LRA because the employees were dismissed for participating in
lawful union activities, viz. supported their trade union’s
petition for the removal from office of the respondent’s chief
executive officer (‘CEO’), Professor Vevek Ram.
In the
alternative the appellant submitted that the dismissal of the
employees was, in any event, unfair because it was inappropriately
severe in all the circumstances and, moreover, there had been no
irretrievable breakdown in the relationship between the employees
and
the respondent. The appellant claimed the reinstatement of the
employees.
[4]
The parties consented, in terms of
s 158(2)(
b
)
of the LRA, to the Labour Court having jurisdiction to determine
whether the dismissal had been ordinarily (as opposed to
automatically)
unfair, even though that dispute had not been referred
to arbitration in terms of
s 115
(1)(
b
)
of the LRA.
[5] On 3 February, 2011,
the Labour Court (per Basson J) found that the dismissal of the
employees had been both substantively and
procedurally fair. The
learned judge
dismissed an
application for leave to appeal on 31 May 2011. The appellant then
petitioned the Labour Appeal Court (‘the LAC’).
The LAC
dismissed the petition on 22 September 2011.This appeal, against the
decision of the Labour Court
1
is
before us with the leave of this court.
[6] The relief sought by
the appellant is accordingly that the order of the Labour Court (the
court a quo) be set aside and the
following substituted therefore:
(1)
the dismissal of the applicants was procedurally and substantively
unfair;
(2)
the respondent is ordered to retrospectively reinstate the applicants
to the positions they occupied before their unfair dismissals,
alternatively to similar or equivalent positions without any loss of
remuneration and benefits.
(3)
the respondent is ordered to pay the applicants’ costs.
The appellant also seeks
an order for costs in this appeal.
The relevant facts
[7] The relevant facts
are largely common cause. Various employees were dissatisfied with
the fact that Professor Ram held the position
of CEO. On 20 March
2008 three of the appellant’s shop stewards, Messrs Kelebogile
Mokgatlha, Mzikayise Mani and Ms Zinzi
Ramatseba, using the
appellant’s letterhead, wrote a letter to Mr Sikonela (then the
respondent’s Manager of Human
Resources and Administration) in
which they raised complaints about ‘the leadership style and
modus operandi’ of Professor
Ram and said they were ‘no
longer prepared to bear his style of leadership any longer’. In
that letter the shop stewards
expressed demanded sight of Professor
Ram’s contract of employment. On the same day these three shop
stewards similarly addressed
a letter to Mr Sikonela on the
appellant’s letterhead in which they expressed their discontent
at not being invited by the
respondent’s board to attend
interviews for the appointment of the Chief Operations Officer
(‘COO’). In that
letter they said:
‘
We
shall therefore not recognize the person appointed and further not
give him or her any kind of cooperation and assistance in
whatever
way. We will isolate such a person and ensure that he or she does not
feel welcome until due processes are followed with
the union
involved.’
[8] Mr Sikonela replied
on 1 April 2008 in a letter wherein he said that the shop stewards
had ‘no right to demand the contract’
of the CEO and ‘no
right to determine the manner in which the CEO carries out his
functions’. In that letter Mr Sikonela
drew attention to the
fact that ‘any employee has the right to follow the grievance
procedure if such an employee has a grievance’.
The respondent
has a grievance procedure set out in its Staff Policy document which
commenced on 1 May 1999, the stated purpose
of which policy document
is to implement the purposes for which the respondent had been
established. The grievance procedure in
this document recognizes the
right of employees to avail themselves of the remedies provided for
grievances in ‘labour legislation’.
On 1 April 2008, in a
separate letter, Mr Sikonela advised the appellant that it had no
right to attend the interview for the position
of COO and warned it
that it faced the risk of disciplinary action being taken against its
members for insubordination, which disciplinary
action could include
dismissal.
[9] On 16 April 2008 the
appellant thereupon referred a dispute to the CCMA over its claim
that it had a right to obtain a copy
of Professor Ram’s
contract of employment. The appellant categorized the nature of the
dispute as one relating to the disclosure
of information. Ultimately,
the parties were unable to resolve this narrowly defined dispute
through conciliation. This was referred
in terms of
s 135(5)
of the
LRA to arbitration under the auspices of the CCMA. After a hearing on
24 July 2008, CCMA commissioner Mr Khotjo Matji delivered
an award on
1 August 2008 in which he dismissed the appellant’s claim for
information pertaining to the contract of employment
of Professor
Ram. During the conciliation first session held under the auspices of
the CCMA on 9 May 2008 the parties reached an
interim agreement in
terms of which the union would send a letter to the board of the
respondent in which it would attempt to justify
its claim that it was
entitled to a copy of this contract and ‘to specify in writing
the expectations of the staff in terms
of overall organizational
performance and delivery’. The parties formally extended the
period for the conciliation process
to 11 June 2008. This agreement
was recorded by a commissioner of the CCMA, Ms Ann Hofmeyr.
[10] The appellant
addressed its letter to the respondent on 23 May 2008. In that letter
the appellant complained that Professor
Ram had failed to ensure that
the following Human Resource Policies were in place: ‘Performance
Appraisal, Promotions, HIV/AIDS,
Skills Development, Staff Training,
Relocation, Employment Equity, Health and Safety’. After
remonstrating that he had failed
to allocate study bursaries to
staff, the appellant expressed its dissatisfaction about the fact
that he had allegedly introduced
restricted areas for staff in
certain sections of the respondent’s building and had given
‘preferential treatment to
certain departments by allowing them
to appoint friends without advertising the vacancies and further not
applying consistent contractual
terms’. The
Mail and
Guardian
, a news publication having a national circulation,
received a copy of this letter. After inviting the respondent to
respond, the
Mail and Guardian
published an article –
A
whole Lotto nothing going on
– in which it described
Professor Ram as having been ‘hauled before the CCMA by his own
staff’. The article said
that Professor Ram had been accused of
‘treating staff and board members autocratically and of
routinely failing to meet
delivery deadlines for the hand-over of
more than R2-billion in annual grants to sports, arts and charities’.
[11] The facts upon which
the case turns are that, on 3 June 2008, 41 employees of the
respondent, including the shop stewards Mokgatlha,
Mani and
Ramatseba, addressed a letter to Mr Sikonela in which they said had
submitted a ‘vote of no confidence’ in
Professor Ram and
urged the board of the respondent ‘to ensure that June 30
th
,
2008 is the last day of his employment’. The employees said in
that letter that ‘we are no longer prepared to spend
a day with
Professor Ram in the same building with him at the helm of this
organisation’. This letter of petition had been
prepared for
signature by 48 employees but seven of those whose names appeared
thereon did not sign it. This petition was followed
up by a letter of
5 June 2008 addressed by Mr Maurice Makatu, the provincial organizer
of the appellant, to Mr Sikonela in which
the appellant called upon
the respondent to resolve ‘the current impasse’. In the
letter the appellant also asserted
its right, as a trade union, to
‘communicate the contents of its correspondence to the public
through the media without any
fear from the Board’.
[12] Acting through its
attorneys, the respondent then sent a letter dated 6 June 2008 to the
appellant in which it referred to
the history of the matter since 20
March 2008 and described the ultimatum concerning the employment of
Professor Ram as constituting
‘an act of insubordination by all
individuals who have signed the petition’. The letter went on
to describe the ultimatum
as being ‘subversive of the integrity
and authority of the Board and its capacity to perform its statutory
functions’.
The letter further alludes to the fact that in
terms of
s 7(1)(
a
) of the
Lotteries Act the
CEO is ‘solely
accountable to the board [of the respondent] for the performance of
all financial, administrative and clerical
functions of the board and
any duties which may be delegated to him or her in terms of
subsection (4)’. Subsection 4 provides
that: ‘Any
function of the board in terms of this Act may be delegated to the
chief executive officer, and any such delegation
shall be in
writing’. The letter by the respondent’s attorneys
described the conduct of the employees concerned as
accordingly being
unlawful and called upon all those who had signed the petition to
withdraw it unequivocally by 9 June 2008. Three
of the employees who
had signed the petition then retracted their support for it.
[13] Acting on behalf of
the appellant, Mr Makatu responded to the letter of the respondent’s
attorneys by way of correspondence
dated 9 June 2008. In that letter,
he raised certain points upon which the appellant has continued to
rely throughout the dispute.
The appellant invoked the constitutional
right of both it and its members to ‘freedom of expression,
assembly, demonstration,
picket and petition’, the ‘freedom
of the press and other media’ and the ‘freedom to receive
and impart
information’. The letter asserted the right of
everyone ‘peacefully and unarmed to assemble, to demonstrate,
to picket
and to present petitions’. In that letter Mr Makatu
submited that the ‘collective agreement’ which was
entered
into between the parties on 17 September 2007- more commonly
known as a ‘recognition agreement’ within the labour
relations
community - prohibited neither the appellant nor its
members from ‘making reference to the performance of the CEO’.
Subsequently, the appellant lost its representivity and, accordingly,
its recognition by the respondent as the bargaining representative
of
the employees. Mr Makatu said that the letters sent to the respondent
on behalf of the appellant’s members on 23 May and
3 June 2008
had not referred to any strike or work stoppage after 30 June 2008.
He also protested that the signing of the petition
by employees of
the respondent had not been unlawful.
[14] On 17 June 2008 Mr
Sikonela sent a notice of the disciplinary enquiry to each of the
thirty-eight employees who had signed
the petition but not retracted
his or her support. This was the disciplinary enquiry which was
chaired by the Professor Van Niekerk.
The enquiry commenced on 23
June 2008. The notice of enquiry referred to the history of the
matter since 20 March 2008. The charges
in the notice read as
follows:
‘
Charge
1: Insubordination and disrespectful behavior making the continued
employment relationship intolerable by associating yourself
with and
supporting-
the
contents of the union’s letter dated 23 May 2008 and the
petition dated 2008 in which the CEO is grossly defamed by
the false
accusations of ineptitude, favoritism, racial bias, unlawful acts
and mismanagement;
the
statement that you are not prepared to continue working with the CEO
in the same building with him at the helm;
the
call to the NLB
2
to
relieve the CEO of his duties.
Charge
2: Bringing the name and integrity of the NLB and the CEO into
disrepute and making the continued relationship intolerable
by
associating with and supporting-
the
contents of the union’s letter dated 23 May 2008 and the
petition dated 2008 in which the CEO is grossly defamed by
the false
accusations of ineptitude, favoritism, racial bias, unlawful acts
and mismanagement;
the
publication of that letter in the media;
the
union’s stated intention in its letter dated 5 June 2008 to
make the contents of its correspondence with the NLB available
to
the media whenever it deems fit.
Charge
3: The material breach of the general duty to act in good faith, to
cooperate with and the refusal to work under the supervision
and
control of the duly appointed CEO.’
The notice of the
disciplinary enquiry informed the affected employees that if found
guilty they could be dismissed from employment
with the respondent.
The findings of the
disciplinary enquiry
[15]
The disciplinary enquiry before Professor Van Niekerk as the
chairperson lasted several days. In his written reasons for making
his findings in the disciplinary enquiry, he considered the
provisions of
s 7(1)(
a
)
of the
Lotteries Act, which
made the CEO ‘solely accountable’
to the board of the respondent to be a relevant consideration. The
chairperson relied
on the fact that the so-called ‘collective
agreement’ entered into between the parties contained a clause
in which
the appellant ‘recognizes management’s authority
and responsibility to plan organize and manage’. He also found
that ‘the vast majority of the allegations made concern
archetypal workplace grievances, which ought appropriately to be
addressed and if possible resolved by the use of internal
procedures’. The chairperson noted that the affected employees
had failed to use the grievance procedures provided for in both the
LRA and the Staff Policy document – even if the structures
which were provided for the in the latter were amenable to criticism.
[16] The chairperson
emphasised that neither Professor Ram’s conduct nor his
performance was a relevant issue in the disciplinary
proceedings in
question. The chairperson was mindful of the fact that the issue he
had to consider was whether the continued employment
relationship
between the respondent and the affected employees had been rendered
intolerable by reason, inter alia, of their insubordination.
He found
that he could make a finding on the issues in question regardless of
the merits of any of the accusations levelled against
Professor Ram.
Professor Ram resigned as CEO of the respondent on 20 January 2012.
[17]
The chairperson referred with approval to John Grogan’s
definition of ‘insubordination’ in
Dismissal,
Discrimination and Unfair Labour Practices
3
as occurring ‘when an employee
refuses to accept the authority of his or her employer or of a person
in a position of authority
over an employee’. Professor Van
Niekerk found that ‘by stating that they “were no longer
prepared to spend a
day with Professor Ram in the same building with
him” and that the Board is urged “to ensure that June
30
th
,
2008 is the last day of his employment”, the individual
employees made themselves guilty of insubordination and disrespectful
behaviour’.
[18] The chairperson also
found that by associating themselves with the making public of their
grievances concerning Professor Ram,
more particularly in the manner
to which they resorted, ‘the individual employees associated
themselves with a campaign clearly
designed to bring the Board and
its CEO into disrepute’. Accordingly, a finding of guilt with
respect to the misconduct alleged
in count 2 was made against each of
the affected employees. They were found not guilty on count three.
[19] In his concluding
remarks before the chairperson, Professor Ram had said that not all
of the affected employees may have realised
the seriousness of their
actions. With this in mind, Professor Van Niekerk afforded all 38 of
those whom he found guilty of misconduct
the opportunity to sign a
formal acknowledgement and undertaking, on or before 13 August 2008,
in which they (i) dissociated themselves
from the letters addressed
by the appellant to the respondent on 23 May and 3 June 2008; (ii)
accepted their wrongdoing, (iii)
apologised to Professor Ram, (iv)
undertook in future to use the grievance procedures provided for in
both the Staff Policy document
and the LRA and (v) agreed to receive
a final written warning, valid for 12 months for a similar offence.
At the request of the
appellant the deadline was extended to 20
August 2008. Of the 38 affected employees, 28 signed the
acknowledgement and received
the warnings accordingly.
[20] The ten employees
with whom this appeal is concerned did not sign this undertaking.
Instead, they relied on a ‘collective
submission’
recorded in writing which was handed to the chairperson at the
hearing on 20 August 2008. In that collective
submission, signed by
each of the ten employees and their union representative, they
recorded that ‘in the light of your
findings on charge 1 and 2
we sincerely apologise insofar as our actions constituted misconduct
of insubordination and brought
the name of the Board and its CEO into
disrepute’.
[21] In his written
reasons for the sanction of dismissal imposed on the ten employees on
25 August 2008, the chairperson referred
to the fact that three of
the original 41 petitioners had recanted very soon afterwards and
that 28 of the remaining 38 had responded
positively to the
opportunity to make amends. He said that:
'
In
these circumstances, the belated statement of apology proferred in
the submissions, qualified as it is, is too little, too late
and the
question of sanction must necessarily be addressed in the absence of
a sincere and timeous apology.’
The chairperson went on
to say that:
‘
(t)he
fact that the employees in this instance have been offered the
opportunity to recant on terms that the majority of their colleagues
considered reasonable must weigh against any salutary effect of a
warning, and seriously calls into question the prospects of a
continued employment relationship on the necessary terms of mutual
trust and confidence
.’
The judgment of the
Labour Court (the court a quo)
[22] The learned judge in
the court a quo was unimpressed with the submission that the threats
contained in the petition were not
serious and were merely strategic
in order to catch the attention of the respondent. She described the
notion that the respondent
should not have taken the words in the
petition seriously as ‘ridiculous’.
[23] The court a quo
agreed with Professor Van Niekerk’s findings of misconduct in
respect of counts 1 and 2. The learned
judge held that the employees’
acts of insubordination and bringing into disrepute the reputation of
both the respondent
and its CEO were not ‘legitimate’
activities. She found that these activities were neither
constitutionally protected
nor protected under the LRA. She found
that no constitutionally enshrined right had been infringed by
finding the employees guilty
of misconduct and dismissing them. The
learned judge found that there had been no ‘automatically
unfair’ dismissal
in terms of
s 187
(d) of the LRA.
[24] The court a quo
found that, against the background of events, more especially the
‘olive branch’ extended to them
by both Professor Ram and
the chairperson of the disciplinary enquiry, the dismissals could not
otherwise be found to have been
unfair. She found that there was no
inconsistency in the fact the chairperson had dealt differently with
those who had signed the
undertaking and those who had not. Different
facts call for different measures. The learned judge also found that
there was nothing
procedurally unfair in coming to the conclusion to
dismiss. On the contrary, she found that the chairperson of the
disciplinary
enquiry had acted with exemplary fairness.
The appellant’s
banner as unfurled in this Court
[25]
Mr
Ngalwana
SC,
who appeared for the appellant, summoned from his artillery the
judgment of Froneman DJP who delivered the judgment of the LAC
in
South African Chemical Workers
Union v Afrox Ltd
.
4
In
SACWU
v Afrox
the learned judge
emphasised the constitutionally enshrined character of rights and
freedoms enjoyed by trade unions and their members
in contemporary
South Africa. Mr
Ngalwana
also referred to
Kroukam
v SA Airlink (Pty) Ltd
5
where the appellant had been dismissed
primarily as a result of activities which had been undertaken by him
on behalf of the union.
The LAC held that it therefore followed, as a
matter of law, that in terms of
s 187(1)(
d
),
read together with
ss 4(2)(a)
of the LRA, his dismissal had been
‘automatically unfair’ and he was entitled to
reinstatement. Mr
Ngalwana
submitted, correctly, that trade
unions and their members are entitled to engage in robust exchanges
with management. The decorum
of a bourgeois tea party is not expected
of angry employees. He contended that, in the present case, this is
all that had occurred
and that the dismissed employees had been doing
no more than exercise their constitutionally enshrined right to
petition their
employer. Accordingly, so he submitted, the dismissals
had been automatically unfair in terms of the LRA.
[26]
In the alternative to his submissions that the dismissals had been
automatically unfair, Mr
Ngalwana
referred to the fact that the
employer’s disciplinary code lists ‘deliberate rudeness
to a divisional manager or general
manager’ as examples of
‘minor offences’. While accepting that the code is, as it
expressly mentions, merely
a guide, he advanced the proposition that,
as the code did not make insubordination a first order act of
misconduct, it was accordingly
unfair to dismiss the employees on
this account. Mr
Ngalwana
also contended that in dismissing the
ten employees and not the others who had committed a similar offence,
the respondent had been
inconsistent and that this, too, had been
unfair.
[27]
Mr
Maenetje
SC,
who appeared for respondent, agreed that the pivotal issue in this
case is whether the conduct of the dismissed employees on
3 June 2008
when they petitioned Mr Sikonela, expressed a ‘vote of no
confidence’ in Professor Ram, urged the board
of the respondent
‘to ensure that June 30
th
,
2008 is the last day of his employment’ and said in that letter
that ‘we are no longer prepared to spend a day with
Professor
Ram in the same building with him at the helm of this organisation’
amounted to unlawful conduct or, put differently,
was protected
activity in terms of the employees’ constitutionally enshrined
right to petition. Mr
Maenetje
agreed that the issue of whether the
appellant had, in fact, communicated the contents of its petition to
the media and, if so,
what the implications of this may be, was
essentially ancillary to the main issue of the insubordination
alleged to have been inherent
in the petition and the circumstances
surrounding it.
[28]
Mr
Maenetje
also
agreed that, if the dismissal was not found to have been
automatically unfair in terms of the LRA, the next questions that
need to be considered were whether the dismissals had been unfair on
the basis that:
the acts of misconduct
were insufficiently serious to justify dismissal; and
the respondent had been
inconsistent in dismissing the ten affected employees and not
others.
Mr
Maenetje
supported
the judgment of the court a quo.
Conclusions
[29] Mr
Ngalwana’s
initial submission was that the employees had been dismissed because
they had joined in petitioning the respondent, which was a
legitimate
trade union activity. That submission is not factually correct. That
the affected employees supported a petition was
not, by reason of
this fact alone, the cause of their dismissal. As correctly found by
the disciplinary enquiry, and the court
a quo, the cause of their
dismissal was what they said in the petition, which is a different
matter. No doubt it is correct, as
was submitted by Mr
Ngalwana
,
that they would not have been dismissed had the petition not been
sent, but that is because the offensive material therein would
not
have been conveyed. It was the communication of the offensive
material that caused their dismissal, not the act of petitioning
in
itself.
[30] As far as this
submission, advanced on their behalf of the affected employees is
concerned, murder and arson, would, for example,
remain unlawful even
if the conspiracy hatched to commit them had been formed during a
meeting of a trade union, scrupulously convened
in terms of the
formal organisational rights conferred upon trade unions by the
provisions of the LRA and affirmed in the Constitution.
When these
vivid hypothetical illustrations were presented to Mr
Ngalwana
by the court, he was compelled to concede that it could never have
been intended by the legislature that the rights to petition
and to
organise in terms of the LRA and the Constitution were unqualified. A
meeting of trade union officials and shop stewards
cannot, for
example, be convened to plot and plan the murder of a disagreeable
employee at the work place or to burn down the buildings
of the
employer, no matter how justified the participants may believe such
action to be. So too, pickets, protests, meetings, pamphleteering
cannot, as the court a quo also mentioned by way of illustration, be
organized contrary to our law of defamation. Trade union activities
which constitute unlawful acts of insubordination are not protected.
The law does not dissemble unlawful acts through the invocation
of a
constitutional banner.
[31]
The court a quo referred to
Acrylic
Products (Pty) Ltd v CWIU and Another
;
6
Slagment (Pty) Ltd v Building
Construction and Allied Workers Union
;
7
Johannes v Polyoak Industries
8
and
Air
Products (Pty) Ltd v CWIU
9
to consider the meaning of
‘insubordination’ and the consequences that may flow
therefrom.
The conclusions of
the learned judge cannot be faulted. No reasonable person could come
to any other conclusion from the conduct
of the employees than that
they were serious in their threat willfully to defy their employer
and its CEO. This constitutes insubordination.
There would be no
logic in requiring an employer first to wait to see whether the
threat was acted upon before it can invoke disciplinary
proceedings
against the employee concerned. Provided the threat is credible an
employer may act upon it forthwith.
[32] Correctly construed,
the affected employees were dismissed not for petitioning their
employer but for their acts of insubordination.
Neither the
Constitution nor the LRA protects employees from dismissal for
insubordination. The affected employees were not dismissed
in
contravention of s 187(1)(d) of the LRA. There was no automatically
unfair dismissal.
[33]
As Grogan notes in his
Dismissal
,
10
the LRA’s Code of Good Practice
encourages employers to adopt disciplinary measures other than
dismissal and, in the case
of less serious offences to follow a
system of ‘graduated’ discipline.
11
This principle was applied when
Professor Ram recognised that not all of the affected employees may
have realised the seriousness
of their actions and Professor Van
Niekerk, against this background gave all of those whom he found
guilty of misconduct the opportunity
to dissociate themselves from
the petitions, accept their wrongdoing, apologise to Professor Ram
and to undertake that they would,
in future, use the grievance
procedures provided for in both the Staff Policy document and the
LRA. This opportunity was extended
at the request of the appellant.
Professor Van Niekerk acted in a procedurally fair manner.
[34] There is no
inconsistency in giving, on the one hand, written warnings to those
who acknowledged their wrongdoing and, on the
other, dismissing those
who did not. The dismissed employees persisted, right to the end, in
protesting that they had done nothing
wrong in seeking to hound
Professor Ram out of his office. On the contrary, they insisted that
they were merely exercising their
rights in terms of the LRA and the
Constitution. This unrepentant intransigence rendered the continued
employment relationship
between the parties intolerable. The
relationship between them had irretrievably broken down.
[35]
Section 185 of the LRA gives employees the right not to be subject to
unfair labour practices. These include ‘unfair
conduct relating
to the promotion, demotion, probation or training or the provision of
benefits to an employee’.
12
Section 191 of the LRA provides
mechanisms for the resolution of such disputes. Section 193 provides
remedies for such disputes.
Sections 133 to 135 provide for the
resolution of disputes of mutual interest. Whatever criticism may
have been leveled at the
respondent’s own internally provided
grievance procedures, the LRA provides avenues down which the
affected employees could
have walked and even marched. They failed to
use these at their peril.
[37] It is irrelevant to
the determination of this appeal that, subsequent to the events that
gave rise to the dismissals, the appellant
lost its recognition by
the respondent and Professor Ram resigned. The appeal must be decided
on the facts that were germane at
the time of the dismissals.
[38] The appeal is
dismissed with costs.
_________________
N.P. Willis
Acting Judge of Appeal
APPEARANCES:
For the Appellant: N. V.
Ngalwana SC (with him N
.
Mbelle)
Instructed by:
Ndumiso Voyi
Incorporated, Johannesburg
Webbers Attorneys,
Bloemfontein
For the Respondent: N.A.
Maenetje SC
Instructed by:
Cheadle Thompson &
Haysom, Johannesburg
McIntyre & Van der
Post, Bloemfontein
1
See
Republican Press (Pty) Limited v Ceppawu
2008 (1) SA 404
(SCA); (2007)
ILJ
2503 (SCA) at para [14], read with
National
Union of Metalworkers of South Africa v Fry’s Metals (Pty)
Limited
2005 (5) SA 433
; (2005) 26
ILJ
689;
[2005] 5 BLLR
430
(SCA) at para [42] and
NUM & Another v Samancor Limited &
Others
[2011] 11 BLLR 1041
(SCA) at para
[14].
2
ie
the National Lotteries Board.
3
Grogan,
J.
Dismissal, Discrimination and Unfair Labour Practices,
(2007), 2
nd
Edition, Juta’s: Cape Town. The same
definition appears in his more recent
Dismissal
(2010),
Juta’s: Cape Town at p196.
4
South
African Chemical Workers Union v Afrox Limited
(1999) 20 ILJ 89;
[1998] 12 BLLR 1209
(LAC).
5
Kroukam
v SA Airlink (Pty) Limited
2005
26 ILJ 2153;
[2005] 12 BLLR 1172
(LAC).
6
Acrylic
Products (Pty) Limited v CWIU and Another
[1997] 4 BLLR 370
(LAC).
7
Slagment
(Pty) Limited v Building Construction and Allied Workers Union
1995 (1) SA 742
; (1994) 15 ILJ 979 (A).
8
Johannes
v Polyoak Industries
[1998] 1 BLLR 18
(LAC).
9
Air
Products (Pty) Limited v CWIU
[1998] 1 BLLR 1
(LAC).
10
Op
.
ci
t.
11
At
p168.
12
s186(2)(
a
)of
the LRA.