THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1881/20
In the matter between:
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION WORKERS UNION (AMCU)
obo DAVID MOROBISI Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER KHUTSO ELIAS MPAI N.O. Second Respondent
NORTHAM PLATINUM MINES
(BOOYSENDAAL OPERATIONS) Third Respondent
Heard: 16 August 2023
Delivered: 26 January 2024 (This judgment was handed down electronically
by circulation to the parties’ legal representatives by email, publication on the
Labour Court website and release to SAFLII. The date and time for handing -
down is deemed to be 10h00 on 26 January 2024.)
2
JUDGMENT
PHEHANE, J
Introduction
[1] The applicant brings an application in terms of section 145 of t he Labour
Relations Act 1 (LRA) to review and set aside the arbitration award by t he
second respondent dated 25 October 2020 in which the second respondent
found that the applicant’s dismissal was substantively fair.
[2] The third respondent opposes the application.
Background facts
[3] The was employed by the third respondent as LHD Operator.
[4] On 4 March 2020, Mr. Beukes, a shift supervisor and senior to the applicant,
requested Mr. Mashala, a team leader . and also a senior to the applicant, to
instruct the applicant to clean an underground working area. If this area is not
cleaned, health and safety risks ensue and the commencement of the
following shift is delayed. The applicant refused to follow the aforesaid
instruction, stating that it was time for him to knock off.
[5] Later on the same date, Mr. Beukes requested Mr. van der Watt, another shift
supervisor, to request the applicant to clean the aforesaid working area in
preparation for the next shift. The applicant refused to acknowledge Mr. van
der Watt when he blew his whistle to stop the applicant as he drove away.
[6] Messrs. Beukes and van der Watt proceeded to the working area and noted
that the applicant had not cleaned it.
[7] On 6 March 2020, the Mine Overseer, namely, Mr. Mokotsi, arranged a
meeting with the applicant to presen t him with a written warning as
progressive discipline and in accordance with the third respondent’s
1 Act 66 of 1995, as amended.
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disciplinary code and procedure. Also present at this meeting, were Messrs.
Beukes, van der Watt and Mashala. The applicant’s refusal to carry out their
lawful instruction on 4 March 2020 was discussed with him. Mr. Beukes
explained that the applicant’s failure to prepare the working area for the next
shift resulted in a loss of production for the third respondent. Mr. Mokotsi
prepared disciplinary documentation containing a written warning and
presented it to the applicant to correct his behaviour. Upon presentation, the
applicant responded aggressively by saying, amongst other things, that the
disciplinary documentation presented to him was “ masepa”, which is a vulgar
word in the Sepedi, Sesotho and Setswana languages, meaning “faeces” and
in slang language, “sh**t”.
[8] The applicant was reprimanded several times for using the vulgar word
“masepa” - when he refused to sign the written warning, terming it “ masepa”;
when he referred to the progressive discipline process as “ masepa” and told
his seniors that they should call him to a formal disciplinary hearing. The
applicant was warned that he was being disrespectful by pointing fingers at
Mr. Beukes and the other colleagues who were present and senior to him. In
addition, the applicant referred to Mr. Beukes as a “ Boesman”, which is a
derogatory term for a person of the coloured race. He also referred to Mr. van
der Watt as a “ Boer”, a derogaroty term for a person of the Afrikaans culture.
In so referring to his seniors in derogatory terms, in comparison to himself, he
stated that he is Motswana. The applicant did not accept the warning and
threw it on Mr. Mokotsi’s office table and left the meeting, shouting profanities.
[9] On 12 May 2020, the applicant was charged with the following acts of
misconduct:
‘1. Refusal to carry out a reasonable law ful instruction - and that you was
[sic] given an instruction by Mr. Graeme Beukes and you blatantly
refused to carry the instruction [sic].
4
2. Gross insubordination - and that you disrespectfully in front of other
employees said to the Shift Supervisor Mr Graeme Beukes that the
disciplinary document he was presenting to you is “Masepa’’.’2
[10] The outcome of the disciplinary hearing was a finding of not guilty on the first
charge and of guilt on the second charge of gross insubordination. 3 The
applicant was dismissed on 21 June 2020. He unsuccessfully appealed
against the decision/sanction of the disciplinary enquiry. Consequently, on 28
July 2020, his dismissal was upheld.
[11] Thereafter, the applicant referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA). The applicant
did not challenge procedural unfairness . He challenged the substantive
fairness of his dismissal on two aspects : firstly, he denied committing the
misconduct, and secondly, he contends that the sanction of dismissal was
unfair and inappropriate.4
The grounds of review
[12] The applicant raises three grounds of review.5 They are summarised below.
The first ground of review:
[13] The applicant avers that he was charged with insubordination and dismissed
for this offence when he utilized the word “masepa”. He denies that he utilized
this word and states that he used the word “nonsense”.
[14] At the very outset, the applicant downplays the charge against him. The
charge is set out in clear terms. I paraphrase – he is charged for gross
insubordination for being disrespectful to Mr. Beukes, the shift supervisor in
the presence of other employees when Mr . Beukes presented him with a
written warning and used the word “masepa”.
2 Record of arbitration proceedings, p 65.
3 Record of arbitration proceedings, p 53.
4 Transcribed record, p 6, lines 1 to 10.
5 See: founding affidavit at paras 19 to 32, on pp 9 to 12, and supplementary affidavit at paras 5 and
6, pp 31 to 33.
5
[15] The applicant avers, rather strangely, that he ought to have been charged
with inso lence and not insubordination. He seeks solace in the third
respondent’s disciplinary code that provides for the sanction of a final written
warning for insolence as a first offence. 6 He also seeks comfort in the finding
of no guilt in the disciplinary hearing in relation to the first offence regardi ng
his refusal to carry out a lawful instruction. He alleges that there was no
evidence by the third respondent to prove that he failed to obey a reasonable
instruction in relation to t he second charge that was levelled against him. He
draws a clear distinction between insolence and insubordination.
[16] The applicant alleges that the second respondent committed a gross and
reviewable irregularity in that he failed to properly assess the charge before
him.
[17] It is trite that disciplinary enquiries are not meant to replicate the criminal
justice module.
7 In Police & Prisons Civil Rights Union v Minister of
Correctional Services and o thers,8 this Court held that the standard for a
disciplinary charge sheet cannot be the same as one in a criminal trial. The
Court went on to state that the information on the charge sheet must be
sufficient for the employee to know the case she/he is to meet.
[18] This Court has also stated that there is no place for formal disciplinary
procedures that incorporate all the accoutrements of a criminal trial, including
technical and complex charge sheets.
9
[19] In addition, this Court has held that disciplinary charges are not intended to be
a precise statement of the elements of an offence but need only be sufficiently
precise to allow the employee to identify the incident which forms the subject
matter of the complaint in order for the employee to prepare a suitable
defence.10
6 Record of arbitration proceedings, p 76.
7 Bader SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2016]
ZALCJHB 550 (20 December 2016).
8 [2018] ZACC 24; (1999) 20 ILJ 2416 (LC).
9 Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and
Arbitration and Others [2006] ZALC 44; (2006) 27 ILJ 1644 (LC) at p 1652.
10 Zeelie v Price Forbes (Northern Province) (1) (2001) 22 ILJ 2053 (LC) at para [37].
6
[20] In Woolworths (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration & Others,11 the Labour Appeal Court (LAC) stated as follows:
‘… the misconduct charge on and for which the employee was arraigned and
convicted at the disciplinary enquiry did not necessarily have to be strictly
framed in accordance with the wording of the relevant acts of misconduct as
listed in the appellant’ s disciplinary codes, referred to above. It was sufficient
that the wording of the misconduct alleged in the charge-sheet conformed,
with sufficient clarity so as to be understood by the employee, to the
substance and import of any one or more of the listed offences. After all, it is
to be borne in mind that misconduct charges in the workplace are generally
drafted by people who are not legally qualified and trained…’
[21] In National Union of Mineworkers and others v Commission for Conciliation,
Mediation and Arbitration and others12 (NUM), this Court held as follows:
‘[27] The applicants were charged with “aiding and abetting diamond theft”.
On review, they complai n that they were not charged with having
broken fissure.
[28] The arbitrator found that the phrase “aiding and abetting diamond
theft” was an umbrella term that included the breaking of fissure. He
pointed out that “all witnesses for both parties agree that the activity
with which the employees were charged consisted of the un authorized
breaking of fissure, that this was explained to the employees and their
representative at the disciplinary proceedings, and that the activity in
question is a dismissible offence”. He went on to state:
“Inelegant and poorly worded charges are a common feature
of disciplinary proceedings in the workplace. There are
occasions where the mis -description is of such a nature that it
renders the ensuing disciplinary process and outcome unfair;
and there are other occasions where this does not lead to
unfairness. It is therefore necessary to look at the substance of
the matter to see what actually transpired in this instance. As
mentioned above, it was at all times clear to all parties what
11 (2011) 32 ILJ 2455 (LAC) at para [32].
12 (2011) 32 ILJ 956 (LC) at paras [27] – [30].
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activity the employees were accused of - namely the
unauthorized breaking of fissure.”
[29] The arbitrator went on to look at the description of the offence in the
disciplinary code and the content of the charge. He confirmed the
wording of the charge entails no unfairness to the employees.
[30] In my view, the arbitrator’s reasoning cannot be faulted…’
[22] In view of the aforegoing, the following principles arise:
22.1 a disciplinary charge sheets need not be drafted with the precision of a
legislative drafter;
22.2 disciplinary charges are not the same as criminal charges; and
22.3 an employee should be informed of the essence of the allegations
against him or her, in order that she or he may raise his or her defence
thereto.
[23] In EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
13 (EOH Abantu), the LAC held that the categorisation
by the employer of the alleged misconduct is of less importance. The second
respondent considered EOH Abantu in analysing the charge against the
applicant for which he was dismissed. 14 After having done so, the second
respondent concluded that the applicant ’s misconduct can best be defined as
insolence, which is a dismissible offence in terms of the third respondent’s
disciplinary code and procedure.
[24] The charge of gross insubordination was sufficiently explained in the charge
sheet for the applicant to understand the misconduct that he was charged for .
The mis categorisation of the charge that the applicant harps on does not
automatically result in a fatal irregularity warranting the setting aside of the
arbitration award.
13 [2019] 12 BLLR 1304 (LAC).
14 See: para 88 of the arbitration award on p 24.
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[25] As stated in NUM, what is necessary is to look at the substance of the
allegation, to consider what transpired. In the present case, t he charge sheet,
being sufficiently crafted to enable the applicant to answer the allegation and
to provide a version as to whether or not he was disrespectful and whether or
not he used derogatory terminology, on the totality of evidence before the
second respondent, the arbitration award unreasonable. The second
respondent categorising the offence as insolence does not make the
substance of the allegation less serious. The second respondent is alive to
this and applies his mind to the seriousness of the charge with t he use of the
word “ gross”
15 and points Mr. Mokotsi to the third respondent’s disciplinary
code, where the offence of gross insubordination is categorised with the
offences of serious disrespect, imprudence or insolence. Mr Mogotsi’s
evidence is that gross insubordination includes the misconduct of serious
disrespect, impudence or insolence.
16
[26] In the circumstances, the description of the charge as “gross insubordination”
as opposed to “gross insolence” is of no moment , as gross insubordination is
interpreted by the third respondent to include insolence and disrespect . The
charge describes the misconduct of gross insubor dination as disrespect to a
senior in the presence of other employees and t he use of a vulgar word when
the senior employee was meting out progressive discipline to the applicant.
[27] The evidence before the second respondent , the applicant’s conduct was so
disrespectful that it posed a deliberate and serious challenge to the third
respondent’s authority and it is for this reason that the second respondent
found, and correctly so, that the applicant “ defied Beukes’ authority ”.
17 Mr
Beukes’ evidence is that he understood the word “ masepa” as a swear
word.18 Further, the referral to his supervisors as “Boesman” and “Boer” was
insulting to them. 19 In my view, therefore, the charge of gross insubordination
is properly categorised. In my view, the second respondent did not
15 Transcribed record, p 136.
16 See: transcribed record, at pp 136 to 137.
17 See: para 120 of the arbitration award, on p 28.
18 Transcribed record, p 63, line 14 to 17 and p 64, lines 1 to 10.
19 Transcribed record, p 104. The evidence of Mr. van der Watt is that he was insulted when referred
to as a “Boer” by the applicant. On p 39 of the transcribed record, Mr. Beukes states that the
applicant’s referral to him as a “Boesman” is ‘diminishing’.
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miscategorise the charge. The charge as described comprises of gross
insubordination and gross insolence. If the applicant’s contention is for a
moment accepted, that he ought to have been charged with insolence, then,
in view of his insolence, which was gross because he repeated the word
“masepa”, he insulted the dignity of his supervisors by referring to them as
“Boer” and “ Boesman”, challenged and undermined their authority to
discipline him progressively, dismissal is the appropriate sanction.20
[28] In view of the aforegoing, I find that the second respondent correctly found
that the applicant’s conduct fell within the realm of gross insolence and found
the dismissal to be substantively fair.
[29] To drive the point home, i n Pallucci Home Depot (Pty) Ltd v Herskowitz and
Others,21 the LAC stated that insubordination may also be present where
disrespectful conduct poses a deliberate and serious challenge to the
employer’s authority, even where there is no indication of an instruction being
given for defiance of an instruction.
[30] In his heads of argument , the applicant contends for the first time, that his
conduct should be condoned because he was provoked.
22 This was not
pleaded by the applicant. It is incongruent for the applicant to deny that he is
guilty of the misconduct and at the same time, to state that he should be
condoned for the misconduct because he was provoked. For what it is worth,
the case relied upon by the applicant for this contention is distinguishable
from the facts of the present case, as there was no evidence before the
second respondent of a strained relationship, abuse or unwarranted and
unacceptable conduct that the applicant was subjected to by the third
respondent which could be said to have provoked him.
23
[31] In light of the aforegoing, and having regard to the principles expressed in the
aforegoing cases, the applicant’s contention, that the second respondent
committed a gross and reviewable irregularity in failing to properly assess the
21 [2014] ZALAC 81; (2015) 36 ILJ 1511 (LAC).
22 Applicant’s heads of argument at para 32.
23 See: third respondent's heads of argument at para 19.15, and the authority cited therein, on which
the applicant relies.
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charges before him with the evidence indicated that the applicant ought to
have been charged for insolence, lacks m erit. I find that the second
respondent applied his mind to the facts, the evidence and the law relating to
the categorisation of the charges.
The second ground of review:
[32] The applicant alleges that the second respondent committed a gross and
reviewable irregularity in that he failed to determine whether the trust
relationship between the applicant and the third respondent had broken down
as a result of the applicant ’s misconduct and he failed to consider the
applicant’s facts in mitigation of sanction.
[33] In Easi Access Rental (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and O thers,
24 this Court found that , where direct evidence of the
breakdown of trust in the employment relationship has not been led, the
enquiry into the fairness of the dismissal by the commissioner includes a
determination of whether the breakdown cannot be inferred from the nature of
the offence. Therefore, the third respondent’s failure to lead direct evidence of
the breakdown of the trust relationship does not in itself render the applicant’s
dismissal unfair nor does it mean that the trust relationship has not broken
down irretrievably. The second respondent found that the applicant failed to
provide justification for his conduct notwithstanding the repeated reprimands
and that such conduct was displayed in front of employees who are more
senior to him.
25 Therefore, the unwillingness by the applicant to admit and
acknowledge his conduct demonstrates that the trust relationship has broken
down irretrievably.
[34] The second respondent considered all the aforegoing. He also considered the
appropriateness of dismissal as a sanction for a first offence when he took
24 [2015] ZALCJHB 466; [2016] 8 BLLR 783 (LC).
25 See: paras 118 and 119 of the arbitration award, on p 27 to 28.
11
into account the provisions of Schedule 8 of the LRA (The Code of Good
Practice: Dismissal) and reasoned that gross insubordination is a serious
misconduct that makes continued employment rel ationship intolerable.
26 In
the circumstances and in my v iew, no irregularity was committed by him, as
he took the facts before him into consideration in determining whether
dismissal was the appropriate sanction.
[35] The second respondent considered the applicant’s facts in mitigation. He
refers in his arbitration award
27 to the case of Toyota SA Motors (Pty) Ltd v
Radebe and o thers28 where the LAC held that a long service record of an
employee cannot save an employee who is found guilty of serious misconduct
from a sanction of dismissal. The ground of review accordingly lacks merit.
The third ground of review:
[36] The applicant contends that the second respondent committed a gross and
reviewable irregularity in that he failed to properly consider whether the
sanction of dismissal was appropriate having regard to the nature of the
offence. He contends that the second respondent ought to have considered
progressive discipline and a sanction to “remedy and rectify” his conduct.
[37] In my view, where an employee showed no remorse for his conduct, denied
that he misconducted himself as charged and in the circumstances of the
present case, where he swore at and insulted his supervisors when he was
being progressively disciplined in the first place, it would serve no purpose to
mete out progressive discipline when regard is had to the seriousness of the
offence and the nature of the offence and the facts relating to the offence.
26 Arbitration award at paras 116 to 126, on pp 27 to 28.
Item 3 (4) of the Code of Good Practice: Dismissal provides as follows:
‘Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct
is serious and of such gravity that it makes a continued employment relationship intolerable .
Examples of serious misconduct, subject to the rule that each case should be judged on its merits,
are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the
safety of others, physical assault on the employer, a fellow employee, client or customer and gross
insubordination….’ [Emphasis added]
27 At para 122 on p 28.
28 [1999] ZALAC 42; (2000) 21 ILJ 340 (LAC).
12
[38] On the evidence before the secon d respondent, t he third respondent’s
disciplinary code and procedure provides for di smissal as a sanction for the
first offence for gross insubordination, serious disrespect, impudence or
insolence is dismissal. In so far as progressive discipline is concerned, the
disciplinary code and procedure of the third respondent provides that in
instances where misconduct is mere insubordination or insolence, the first
offence is a final written warning and the second offence is a dismissal.
29 The
applicant did not challenge the reasonableness, fairness and validity of this
rule. Consequently , there is no dispute that the applicant was charged and
disciplined in terms of the third respondent’s disciplinary code and procedure.
The second respondent considered the applicant’s conduct and was satisfied
that it fell squarely within the definition of gross insubordination, insolence and
disrespect which warrant a dismissal for a first offence and not merely
insubordination or insolence which warrants a final written warning on the first
offence.
[39] In Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
others,
30 this Court held that it would be unfair to expect an employer to take
back an employee when the employee was persistent in his or her denials
and did not show any remorse.
[40] In summarising the afore- going, in considering the appropriate sanction, the
second respondent considered that the applicant did not provide any
justification for the use of derogatory, abusive and vulgar language; he did not
provide any justification for undermining and ridiculing Mr. Beukes in front of
his colleagues, notwithstanding the repeated reprimands by Mokotsi. Further,
that the applicant’s conduct fell within the ambit of gross insolence and
disrespect. The second respondent also took into consideration that the third
respondent’s disciplinary code and procedure stated that the sanction for
gross insubordination, seriousness dis respect, insolence, and imprudence is
dismissal for the first offence. Finally, the second respondent considered that
the applicant’s conduct was persistent and took place in full view of other
employees.
29 See: p 76 of the record of the arbitration proceedings.
30 [2007] ZALC 93; [2008] 3 BLLR 241 (LC).
13
[41] In the circumstances, the second respondent properly considered that
dismissal was the appropriate sanction taking into account the nature of the
offence and the third respondent’s disciplinary code and procedures.
Conclusion
[42] The LAC has stated that the test for substantive reasonableness of the
outcome or result of a CCMA award is an outcomes -based enquiry entailing a
stringent test aimed at ensuring that arbitration awards are not likely interfered
with.31
[43] In light of the aforegoing, on the totality of the evidence before the second
respondent, in my view, his decision is reasonable. There is accordingly no
basis to interfere with the arbitration award.
32
[44] In view of the aforegoing, the following order is made:
Order
1. The review application is dismissed.
2. T here is no order as to costs.
_______________________
M. T. M. Phehane
Judge of the Labour Court of South Africa
31 Ellerine Holdings Ltd v Commission, Conciliation, Mediation and Arbitration and others [2008]
ZALAC 6; (2008) 29 ILJ 2899 (LAC) at 2906H; Fidelity Cash Management Service v Commission for
Conciliation, Mediation and Arbitration and Others [2007] ZALAC 12; [2008] 3 BLLR 197 (LAC) at
para [100]; Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae )
[2013] ZASCA 97; [2013] 11 BLLR 1074 (SCA) (Herholdt) at para [13].
32 Sidumo and another v Rustenburg Platinum Mines Ltd & others [2007] ZACC 22; [2007] 12 BLLR
1097 (CC).
See also: Herholdt, supra at para [12], where the Supreme Court of Appeal held as follows:
‘… That test involves the reviewing court examining the merits of the case "in the round" by
determining whether, in the light of the issue raised by the dispute under arbitration, the outcome
reached by the arbitrator was not one that could reasonably be reached on the evidence and other
material properly before the arbitrator.’
14
Appearances:
For the Applicant: Adv. A Cook
Instructed by: Larry Dave Incorporated Attorneys
For the Third Respondent: Adv. R. Itzkin
Instructed by: Webber Wentzel Attorneys