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[2024] ZALCJHB 152
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Mogudi and Another v African Explosives Ltd and Others (JR1056/2018) [2024] ZALCJHB 152 (26 March 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR 1056/2018
In
the matter between:
TSEBO
MOGUDI
First Applicant
SEJAKWADI
MATLALA
Second Applicant
and
AFRICAN
EXPLOSIVES LTD
(Now
trading as AECI MINING
LIMITED)
First
Respondent
NATIONAL
BARGAINING COUNCIL FOR THE
CHEMICAL
INDUSTRY
Second Respondent
S.
OOSTHUIZEN
N.O.
Third Respondent
Decided
on the Papers.
Delivered:This
judgment was handed down electronically by circulation to the
parties' legal representatives by email and publication
on the Labour
Court’s website. The date and time for hand-down is deemed to
be on 26 March 2024
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background
:
[1]
The
applicants had approached this Court seeking an order reviewing and
setting aside the arbitration award issued by the third
respondent
(Arbitrator), acting under the auspices of the second respondent
(NBCCI). The first respondent’s (Employer) correct
name and
citation is AECI Mining Limited. This followed the restructuring and
renaming of African Explosives Limited, which had
employed and
dismissed the individual applicants.
[2]
The
two individual applicants were a group of 14 employees who were
dismissed on 1 September 2017 by the Employer for misconduct
related
to insubordination. Of the 14 dismissed employees, four of them
referred a dispute to the NBCCI. When attempts at conciliation
failed, the dispute was referred for arbitration. It came before the
Arbitrator, who had issued her award on 20 April 2018 in terms
of
which it was found that the dismissal of the applicants was
procedurally and substantively fair.
[3]
The
applicants launched the review application on 20 July 2018.
The
review application was however filed outside the statutory time
frames, and condonation is sought in that regard. The Employer
in
opposing the review application also contended that the applicants
failed to prosecute the application timeously in that they
failed to
file a complete record of the arbitration proceedings.
[4]
Notwithstanding
the challenges faced by the applicants, the Employer has delivered
its answering affidavit only in respect of the
application for
condonation. It also delivered a Rule 11 application to have the
review application dismissed on account of lack
of timeous
prosecution. The Rule 11 application is not opposed, even though in
the heads of argument, the applicants sought to
address the issue of
delays in prosecuting the matter.
Condonation
for the late filing of the review application:
[5]
As
already indicated, the arbitration award having been issued on 20
April 2018, the review application was launched on 20 July
2019. The
Employer had delivered its Notice of Intention to oppose the review
application on 31 July 2018. What appears to be an
application for
condonation is incorporated in the review application. The Employer
took issue with the fact that the application
for condonation is not
in compliance with the provisions of Rule 7 of the Rules of the
Court. However, as apparent from the applicants’
pleadings, the
individual applicants brought the review application to court on
their own. To this end, the Court will in the interests
of justice,
exercise leniency and indulge them, and in a further attempt to bring
this matter to finality.
[6]
The
review application is some 6 weeks out of the statutory time periods
set out in section 145(1)(
a
)
of the LRA. This much the applicants conceded. The principles
applicable to condonation applications are trite and need not be
re-hashed. It can only be reiterated that in such applications, the
applicants need to show good cause why the Court should condone
non-compliance with statutory time frames. Good cause ordinarily
involves a consideration of various factors, including
inter
alia
,
the extent of the delay, a reasonable and satisfactory explanation
for the delay, the parties’ prospects of success, and
the
prejudice to the parties should condonation be granted or refused.
These factors are interrelated and are not individually
decisive.
Ultimately, the interests of justice will dictate whether condonation
ought to be granted or refused
[1]
.
The
delay and the explanation:
[7]
The
delay of about six weeks is indeed excessive
albeit
not in the extreme. The explanation proffered by the applicants was
that their legal representative, (who had also represented
them at
arbitration proceedings), was only able to consult with them on 4 May
2018. At the consultations, they were informed of
the need to raise
funds for their application to be pursued. They contend that they
could not raise the funds, resulting in two
of the other applicants
abandoning the matter.
[8]
The
two individual applicants however on their own obtained a case number
from the Registrar of the Court in or about the end of
May 2018. They
contend that at the beginning of July 2018 they had raised about
R2000.00, which was however not sufficient to fund
legal
representation and pursue the matter. At the time, they were also
informed that they needed to apply for condonation. In
a nutshell,
they blamed lack of funding for their non-compliance with the time
periods.
[9]
The
Employer in opposing the condonation correctly pointed out that the
explanation for the excessive delay is inadequate, and that
the delay
is not explained with particularity to entitle the applicants to an
indulgence. It was pointed out that the applicants
were legally
represented at the arbitration proceedings. Having consulted with
their legal representatives on 4 May 2018, which
was some less than
two weeks after the award was issued, the employer’s contention
was that the applicants must have been
informed of the applicable
time frames within which to launch their review application.
[10]
To
the extent that the applicants had referred to various dates in
explaining the delays,
i.e
.,
4 May 2018 when they consulted with their legal representative, the
end of May when they obtained a case number, and beginning
of July,
these dates are merely a recordal of events without adding anything
of value to their explanation.
There
is a requirement in such applications, for the applicants to give an
explanation which covers the full length of the delay,
in order for
the Court to be in a proper position to assess whether or not that
explanation is satisfactory
[2]
.
The applicants failed in this regard.
[11]
It
was further pointed out that despite the applicants’ alleged
lack of funds, very little information is provided as to how
and when
they were able to secure the necessary funding, especially for the
transcribed record. To the extent that the applicants
pleaded lack of
funds in complying with the time frames, again, it has been said that
a claim of lack of funds on its own cannot constitute reasonable
explanation for non-compliance with applicable time frames
.
Thus,
when an allegation of lack of funds is made, there is a need for the
applicants to inform the Court as to when and how funds
were raised.
Furthermore, there is a need for the applicants to indicate what
effort if any, they took to enquire in regards to
other available
resources or avenues to assist them in pursuing the review
[3]
.
[12]
Arising
from these principles, the applicants do not say much or attempt any
explanation for the periods of the delay. Again, the
applicants
failed to take the court into its confidence as to how they raised
funds for the transcription of the record, to the
extent that they
brought the review application on their own. On the whole however,
there is no reasonable or acceptable explanation
for the delays in
complying with the stipulated time frames.
Applicants’
prospects of success on review:
[13]
Even
if the Court was to be generous and accept that there is some
explanation for the delay, and that the parties’ prospects
of
success needed to be considered, it has been said that other than
that there must be a compelling excuse for non-compliance
with the
time frames, there is also a need for the parties’ prospects of
success to be strong
[4]
.
[14]
The
Employer’s contention was that the applicants’ prospects
on the merits was weak, and I agree that indeed the applicants
have
an insurmountable hurdle regarding their prospects of success in the
review. This is so based on the evidence led at arbitration
proceedings and the findings of the Arbitrator.
[15]
By
way of background, it was common cause that the applicants were plant
operators and were dismissed for gross insubordination,
after they
had refused to obey reasonable and lawful instructions issued to them
on multiple occasions. As evident from the record
and the arbitration
award, the applicants refused to obey an instruction to resume work
at Plant ‘PE19’. This was after
they were instructed by
the plant manager, their direct supervisor, and HR Managers to
undergo the necessary training before they
could work on the new
plant. The applicants had in all instances refused to obey the
instruction, demanding that the employer
must first re-evaluate their
positions.
[16]
The
employer had refused to accede to the demands because issues of
re-evaluation of posts was to be dealt with at national, and
not
plant level. Following the involvement of recognised unions, the
employer had relented, and agreed to re-evaluate the posts.
The
Employer however required the employees to start operating the plant
whilst the process of re-evaluation of posts was on-going.
The
employees including the applicants however would have none of that,
as they demanded that the employer should complete the
re-evaluation
process before they started operating the plant.
[17]
The
employer’s contention before the Arbitrator was that other
employees who were members of other unions had followed the
instructions and performed their duties whilst the re-evaluation
process was on-going. The applicants and the 12 other employees
however had refused to resume duties on the plant.
[18]
Evidence
in support of the employer’s case was led by its operations
manager, Mr Sibiya. His evidence was that following an
audit by the
Department of Environmental Affairs, it was established that the
employer’s operations were not in compliance
with applicable
legislation. It is not necessary to elaborate into the details of how
the employer was found wanting in this regard.
The audit had however
necessitated that a new plant be built in 2016 that would ensure that
the employer’s operations and
plants were in compliance with
legislative requirements. This was in particular reference to a plant
that was used to treat, neutralise,
and remove effluent in the waste
material produced by the employer. A new plant (PE19) was finalised
and had become operational.
It was in reference to this new plant
that the applicants had refused to undergo training or start
operating it, as they demanded
that their posts be re-evaluated.
[19]
Sibiya
testified that the applicants refused repeated instructions to work
on the new plant. To keep operations going, this had
necessitated
that the team managers had to perform the applicants’ tasks
over three days. Discussions were held with the
three representative
unions, and at some point of the negotiations, the union shop
stewards gave feedback to management, indicating
that the employees
still refused to operate the plant until re-evaluation of posts was
completed. Other employees had however agreed
to resume their duties
on the plant. Sibiya had then warned employees and informed them that
they were in breach of their contractual
obligations. He further
implored them to start operating the plant, but to no avail.
[20]
Sibiya
testified that after the three days, the team leaders called
employees to a refresher training. The applicants were part
of the
group that refused to undergo the training or start operating the
plant. At all material times, they were demanding a re-evaluation
of
their posts. Sibiya had denied that the applicants had at any stage
raised concerns surrounding health and safety issues in
operating the
plant. He contended that safety was not an issue as all that the
applicants were interested in was a re-evaluation
of their posts.
Those employees that refused to obey the instructions were
subsequently suspended, subjected to a disciplinary
enquiry, and then
dismissed.
[21]
Another
witness, Ms Mabaso, who was employed as a team leader, confirmed
Sibiya’s version of events as she had also conveyed
to the
employees that management had agreed to re-evaluation of positions,
and that they should resume their duties whilst the
process of
re-evaluation took place. She had also explained to them that
refresher training would be provided to the employees.
She confirmed
that the employees were insistent that the re-evaluation of posts
should be done first.
[22]
Mabaso
had also personally called each of the employees to explain to them
that they were refusing to obey instructions and there
could be
consequences. She contended that the employees confirmed that they
were aware, but still refused to start operating the
plant. She had
then issued letters of suspension to those employees who refused to
obey the instruction. She also denied that the
employees had during
her discussions with them, raised any safety concerns, and that had
this been done, she would personally have
involved the employer’s
engineering department to deal with those concerns.
[23]
The
applicants’ case before the Arbitrator was that the employer
had unilaterally changed their terms and conditions of employment,
and committed an unfair labour practice when it altered their
contracts of employment. They had contended that they were
pressurised
into starting operations on the plant when there were
safety concerns, and when the plant had not been assessed or
certified as
being safe.
[24]
The
summary of the applicants’ testimony through the evidence of
Messrs Mashua, Tsebo Mogudi, Matlala, and Ndawondwe, was
that they
had safety concerns about the new plant as they were not familiar
with it. They were promised that they would be trained
on the new
plant but this never took place. They contended that they were merely
told to start operating the new plant when no
induction or training
was offered in regard.
[25]
They
all denied that they had refused to obey an instruction, and that
they had valid reasons for refusing to obey due to safety
concerns.
This was despite the fact it being put to them during
cross-examination that the issue of safety was never raised before,
inclusive of at the disciplinary hearing or in the pre-arbitration
minutes, until at arbitration proceedings. They also denied
that they
had made a demand that their posts be re-evaluated. Mashau however
confirmed under cross-examination that they were informed
of the
refresher training, which instruction was repeated on no less than
three occasions.
[26]
Having
heard the evidence, the Arbitrator concluded that the employer had
discharged its onus of proving that the dismissals were
procedurally
and substantively fair. She found that the applicants had repeatedly
refused to obey instructions as they demanded
a re-evaluation of
their positions, and that there was no substance to the allegation
that the employees had safety concerns as
these would been
appropriately dealt with. She found that issues of safety were raised
for the first time at arbitration proceedings.
[27]
The
Arbitrator concluded that the instructions issued to the employees
were lawful and reasonable; that the employees refused to
obey those
instructions, which refusal constituted an act of gross
insubordination, making a dismissal appropriate in the circumstances.
The Arbitrator further concluded that there was no basis for a
finding to be made that the dismissals were procedurally unfair,
in
that the documentary evidence presented regarding the hearings
demonstrated that the employees’ union representatives
were
present in those hearings, and that it was not necessary for each of
the employees to have testified at those proceedings.
[28]
In
these proceedings, the individual applicants in their heads of
argument submitted that they had ‘staged a lawful protest
in
the form of legal go-slow’ for the employer’s
non-compliance with applicable mining statutes, in order to highlight
the unsafe working conditions at the plant. They contended that they
were first offenders and ought to have been treated with leniency
as
they refused to carry out an unlawful instruction.
[29]
They
further submitted that the Arbitrator was ‘wrong’ with
her findings and on issues of law, as she did not consider
their
health and safety concerns, and further that she did not consider
their rights to a fair hearing at the internal disciplinary
enquiry,
inclusive of the fact the proceedings were not recorded. They further
submitted that the proceedings were conducted in
English, when they
all spoke different languages, and that no interpreter was made
available to assist them.
[30]
The
test on review is whether
the
decision of the Arbitrator can be said to fall outside of a band of
decisions to which a reasonable arbitrator could arrive
at
[5]
.
On the facts of this case, there is no doubt that
the
reasonableness of the Arbitrator’s decision is unassailable.
[31]
The
issue in dispute before the Arbitrator was clear, which was whether
the dismissal of the applicants was procedurally and substantively
fair following allegations of misconduct related to gross
insubordination. In
Sylvania
Metals (Pty) Ltd v M.C Mello N.O & others
[6]
the Labour Appeal Court (LAC) held that insubordination in the
workplace context generally refers to the disregard of an employer’s
authority or lawful and reasonable instructions. It occurs when an
employee refuses to accept the authority of a person in a position
of
authority over him or her and, as such, it constitutes misconduct
because it assumes a calculated breach by the employee of
the
obligation to adhere to and comply with the employer’s lawful
authority. The LAC further added that insubordination includes
a
wilful and serious refusal by an employee to adhere to a lawful and
reasonable instruction of the employer, as well as conduct
which
poses a deliberate and serious challenge to the employer’s
authority, even where an instruction has not been given.
[32]
Arising
from the above, it has also been held that
whether
gross insubordination has been demonstrated involves an enquiry into
three main considerations,
i.e
.,
the
action of the employer prior to the deed, the reasonableness of the
instruction, and the presence of wilfulness by the employee
[7]
.
In
TMT
Services
,
it was further held that
the
employer’s prerogative to command its subordinates is the
principle that is protected by the class of misconduct labelled
“insubordination” and that it addresses operational
requirements of the organisation that ensure that managerial
paralysis
does not occur. In this regard, it was further held that
defiance of authority can be proven by a single act of defiance
[8]
.
[33]
Against
the above principles, there is no doubt in this case that the
applicants conducted themselves in a grossly insubordinate
manner, in
view of the numerous instructions issued to them to start operating
the plant, and the equally numerous occasions that
they had refused
to obey those instructions issued by various senior management
personnel. I agree with the submissions made on
behalf of the
employer that indeed the applicant’s conduct was not only
wilful, but also persistent and serious, and intended
to challenge
the authority of senior management over a long period.
[34]
Even
on the applicants’ own evidence, it is apparent from the
various reasons that they had advanced, that they had on numerous
occasions refused to obey instructions. The Employer’s
consistent version was that the applicants refused to obey the
instructions
because they demanded a re-evaluation of their posts. It
was further the employer’s version that at no stage did the
applicants
raise safety concerns, and that it was for the first time
at arbitration proceedings that they had done so.
[35]
In
the applicants’ heads of argument, the applicants suddenly
contended that they had staged ‘a lawful protest in the
form of
legal go-slow’ for the employer’s non-compliance with
applicable mining statutes, in order to highlight the
unsafe working
conditions. Before the Arbitrator, their case was that the employer
had unilaterally changed their terms and conditions
of employment or
had committed an unfair labour practice. Any of their contentions
however confirms that they were indeed insubordinate,
irrespective of
the multiple reasons they wished to proffer.
[36]
To
the extent that in these proceedings the applicants had contended
that they were on a ‘go-slow’ or ‘lawful
protest’,
this contention however makes the applicants case worse, as if
demonstrate that they were not willing to obey the
instructions.
Worst still, however, is that it is trite that it would be
impermissible for litigants to raise issues in review
proceedings,
which were never placed before an arbitrator in the first place. All
that can be said is that the applicants appear
to be adapting their
case as and when it progressed.
[37]
In
the end, I am satisfied that on the facts of this case, the
employer’s
actions of
having to effect changes to its operations and the creation of the
new plant was to meet its statutory obligations as
demanded by the
Department of Environmental Affairs. The applicants were offered
refresher training on the new plant and had resisted
it. At the very
least,
Mashau
confirmed that they were indeed informed of the refresher training,
which instruction was repeated on no less than three
occasions.
[38]
There
was nothing unlawful or unreasonable about the instructions to start
operating the plant. If they had any safety concerns
as Mabaso had
testified, she would not have hesitated to involve the engineering
department to deal with whatever safety concerns
the applicants had.
In the end, the excuse of safety concerns was nothing but a ruse.
[39]
For
three days the applicants refused to obey the instruction, even after
the intervention of the unions. This had led to team leaders
themselves having to perform the applicants’ tasks. The
applicants despite their demands on a re-evaluation of their posts
having been met, with the proviso that the process of re-evaluation
would be on-going whilst they continued with their duties,
had
nonetheless persisted with their refusal, whilst other employees
carried on with their functions. Clearly the applicants’
posture was unreasonable in the circumstances.
[40]
In
the end, the applicants on the multiple occasions were begged to
start operating the plant and had instead, displayed
outright
wilfulness not to follow the
instructions, and ignored warnings. The employer under the
circumstances was compelled to
address
operational requirements of the organisation and ensure that
managerial paralysis did not occur, especially in the face
of
conduct
which posed a deliberate and serious challenge to its authority. This
meant that the circumstances dictated that the employer
was obliged
to take action and dismiss the applicants. Clearly the applicants put
themselves in a position they find themselves
currently, if they
still remain without an income. They were warned of such
consequences, but had nonetheless continued with their
recalcitrant
conduct.
[41]
Furthermore,
and
in line with the approach in
Goldfields
[9]
,
I am satisfied that the Arbitrator as apparent from the record and
the award,
dealt
with the dispute before her with the minimum of legal formalities,
and employed a process that gave all the parties a full
opportunity
to have their say in respect of that dispute. The Arbitrator further
properly identified and understood the nature
of the dispute she was
required to arbitrate, and dealt with the substantial merits of the
dispute. Based on the evidence before
her, the Arbitrator thus
arrived at a decision that another decision-maker could reasonably
have arrived at.
Summary:
[42]
In
the light of the excessive nature of the delay in filing the review
application, the inadequate nature of the explanation proffered
for
the delay and non-existent prospects of success on the merits in the
main, it is apparent that it is the employer that stands
to be
prejudiced in having to defend a protracted matter that enjoys no
prospects of success. In the circumstances, the applicants
have not
demonstrated good cause in their condonation application, and
accordingly, the interests of justice dictate that condonation
for
the late filing of the review application be refused.
[43]
Against
the above conclusions, it would not be necessary for the Court to
deal with other matters arising from the employer’s
Rule 11
application.
[44]
I
have further had regard to the requirements of law and fairness
insofar as an award of costs is concerned. The applicants represented
themselves in this matter and against all other considerations, any
award of costs is not deemed warranted.
[45]
In
the premises, the following order is made:
Order:
1.
The
applicants’ application for condonation for the late filing of
the review application is dismissed.
2.
The
applicants’ application for a review of the arbitration award
issued by the third respondent under GPCHEM11-17/18 and
as issued
under the auspices of the second respondent is dismissed.
3.
There
is no order as to costs
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
REPRESENTATION:
For
the Applicants:
In person.
For
the First Respondent:
Mr D Cithi of Mervyn Taback Inc.
[1]
See
Melane
v Santam Insurance Co. Ltd
1962
(4) SA 531
(A) at 532B – E;
United
Plant Hire (Pty) Ltd v Hills
1976(1) SA 717 (A) at 720 E – G;
Grootboom
v National Prosecuting Authority
[2013]
ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC) at paras
22-3 and 51;
Moila
v Shai N.O. and Others
(2007) 28 ILJ 1028 (LAC) at para 34;
Brummer
v Gorfil Brothers Investments (Pty) Ltd
2000
(2) SA 837 (CC)
[2]
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and others
(2010)
31 ILJ 1413 (LC) at para 13.
[3]
Du
Plessis
Wits
Health
Consortium
(
Pty
)
Ltd
[2013]
JOL 30060
(LC) at para 16
;
[2012]
ZALCJHB 53 (14 June 2012);
Balmer
and others v Reddam (Bedfordview) (Pty) Ltd
(2011)
32 ILJ 2121 LC at para 15
[4]
A
Hardrodt (SA) (Pty) Ltd v Behardien and Others
(2002) 23 ILJ 1229 (LAC) at para 4.
[5]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ;
(2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC)
[6]
(JA83/2015)
[2016] ZALAC 52
(22 November 2016) at paras 17 –
18; See also
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
[2014]
ZALAC 81
;
[2015] 5 BLLR 484
(LAC) ; (2015) 36 ILJ 1511 (LAC)
[7]
TMT
Services and Supplies (Pty) Ltd v Commission for Conciliation
Mediation and Arbitration and Others
[2018] ZALAC 36
; (2019) 40 ILJ 150 (LAC);
[2019] 2 BLLR 142
(LAC) at
para 4.
[8]
At
para 19.
[9]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at
para 20.