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[2012] ZALAC 42
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Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd and Others (JA 5/2011) [2012] ZALAC 42; (2013) 34 ILJ 1440 (LAC) (31 December 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no. JA 5/2011
Reportable
In the matter between:
MOTOR INDUSTRY STAFF
ASSOCIATION
..........................................
First
Appellant
H.
J.
VAN
JAARSVELD
.....................................................................
Second
Appellant
and
SILVERTON
SPRAYPAINTERS AND
PANELBEATERS (PTY) LTD
.............................................................
First
Respondent
MOTOR INDUSTRY
BARGAINING COUNCIL
.............................
Second
Respondent
J.
MOOLMAN N.O.
...........................................................................
Third
Respondent
Heard: 13 March 2012
Delivered: 31 December
2012
Summary: Employee, an
estimator in a panel-beater’s shop, refusing (3 times) to obey
employer’s instruction to go out
and solicit work for the
company. Dismissed for insubordination. Issues include: (1) Whether,
in the circumstances, the instruction
amounted to unilateral change
to terms and conditions of employment contract or merely change to
the working practice; and (2)
whether dismissal was fair.Held:
Dismissal fair. Appeal dismissed.
JUDGMENT
NDLOVU JA
Introduction
[1] At all material times
the second appellant, Mr Hendrik van Jaarsveld (Mr van Jaarsveld) was
a member of the first appellant,
the Motor Industry Staff Association
(MISA), which is a duly registered trade union in terms of the Labour
Relations Act
1
(the LRA) and which
facilitated the institution of this appeal both in its own interest
and on behalf of Mr van Jaarsveld.
2
[2] The appeal is against
the judgment and order of the Labour Court (Boda AJ) in terms of
which the Court
a
quo
dismissed
the appellants’ review application against the arbitration
award issued by the third respondent (the arbitrator)
whereby the
arbitrator declared that the dismissal of Mr van Jaarsveld by the
first respondent (the company) was substantively
and procedurally
fair.Leave to appeal to this Court was granted by the Court
a
quo.
[3] The company carried
on the business of panelbeating and spraypainting of vehicles,
situate at Silverton, Pretoria. On or about
1 June 2006,
3
Mr van Jaarsveld was
employed by the company as a panel beater. During July 2007,he was
promoted to the position of an estimator.
However, on 17 March
2009,he appeared before a disciplinary enquiry charged with
misconduct. He was found guilty and dismissed
from the employ of the
company with effect from 18 March 2009.
Background facts
[4] During or about
September 2008,
the
company experienced financial problems occasioned by a downturn in
its business. The company advised the employees about the
problem and
the possibility of retrenchments. However, nothing happened
immediately. During January 2009,
the
company again advised the employees about the possibility of
retrenchments. There was simply not enough work coming in to maintain
the economic viability of the company’s business. It was then
decided that everyone involved with the company had to put
some extra
effort in the form of promoting the business. Pamphlets and flyers
were printed for distribution to prospective clients,
advertising the
company’s business.
[5] As a result, during
January 2009 an instruction was issued by Mr Andreas Cronje, the sole
director of the company, to Mr van
Jaarsveld to take part in
marketing the company’s business. In particular, Mr van
Jaarsveld was instructed ‘to physically
go to the office of the
assessors and fleet companies in order to promote the business of the
[company] and to procure work
’
4
.
In undertaking these
duties,
Mr
van Jaarsveld would use the company car and all the expenses incurred
in relation thereto would be paid by the company. He would
also carry
brochures containing the company profile for distribution to
assessors and company clients. However, Mr Jaarsveld refused
to
comply with the instruction on the basis that marketing was not part
of his work as estimator.
[6] It was common cause
that there was no written contract of employment concluded between
the company and Mr van Jaarsveld and
he had no letter of appointment
ever issued to him. It was also common cause that none of the company
employees, including Mr van
Jaarsveld, had ever received training by
the company in the field of marketing. According to Mr van
Jaarsveld’sversion, which
was not challenged, his job
description as estimator involved the following:
6.1 quoting customers for
accident damages to their vehicles;
6.2 corresponding with
assessors regarding quotations for repairs to vehicles;
6.3 assisting the
workshop manager in controlling the ordering and receipt of parts;
6.4 informing customers
of progress made in respect of repairing their vehicles; and
6.5 obtaining prices for
vehicle parts.
[7] Mr van Jaarsveld
averred that the instruction given to him during January 2009amounted
to unilaterally amending his terms and
conditions of employment. On
that basis he had declined to comply with the instruction.Then on 10
March 2009, MrCronje once again
confronted Mr van Jaarsveld, then in
the presence of the company’s bookkeeper, Ms Ruby Edna Spaans,
with the same instruction
to go out and promote the company’s
business in the manner described above. Mr van Jaarsveld’s
response to Mr Cronje’s
instruction was to the following
effect:
7.1. It was not part of
his job description to attend to the marketing of the company’s
business.
7.2. In any event, he had
telephonically contacted assessors who told him that they would come
and see him in due course. He submitted
that Mr Cronje did not
believe him in this regard.
7.3 He was also wary
about the possibility of certain clients asking him marketing-related
questions which he might not be able
to answer, and which situation
would potentially embarrass the company.
[8] Mr Cronje felt that
Mr van Jaarsveld’s excuses were unacceptable because, as an
experienced panel beater and estimator,
it would not be a difficult
task for him to go out and promote the company’s business.
Further, if he encountered any problems,
including difficult
questions and uncooperative clients, he would refer those matters to
Mr Cronje. Consequently, on the same day
(10 March 2009) Mr Cronje
summarily handed Mr van Jaarsveld a final written warning for
refusing to obey a lawful instruction.
[9] On the following day
(11 March 2009) Mr Cronje again confronted Mr van Jaarsveld with the
same instruction which Mr van Jaarsveld
again refused to obey, for
the same reasons he had stated previously. He was then charged with
misconduct and served with a notice
to attend a disciplinary enquiry
scheduled for 17 March 2009. The misconduct charge read as follows:
‘
Weiering of
versuimom ‘n wettigeinstruksienatekom in datjy op die 11 Maart
2009 vir die derdekeergeweier het omuittegaan en
werk in te bring op
die maatskappy se kostes.’
[10] Then sometime
between 11 and 16 March 2009, Mr van Jaarsveld was removed from the
position of an estimator and reinstated as
panel-beater, presumably
without any change in his salary. He did not object to this change.
However, on 16 March 2009 he was placed
on suspension pending the
disciplinary enquiry.
[11] The disciplinary
hearing proceeded on 17 March 2009 and was chaired by Mr Grant
Joubertof SEESA (presumably, Small Enterprise
Employers of South
Africa), being the company’s employers’ organisation.Mr
van Jaarsveld was found guilty as charged
and the chairman
recommended a sanction of summary dismissal, which was duly approved
and his dismissal took effect on 18 March
2009. At that time he was
earning a basic salary of R15 500 per month. He lodged an internal
appeal,but unsuccessfully.
[12] Mr van Jaarsveld
referred an unfair dismissal dispute to the second respondent
bargaining council (MIBCO) for conciliation,
which
process,unfortunately,failedto resolve the dispute.
The arbitration
proceedings
[13] The matter
culminated in the arbitration hearing being held under the auspices
of MIBCO before the arbitrator. Mr van Jaarsveld
claimed that his
dismissal was both substantively and procedurally unfair and sought
relief in the form of maximum compensation
in terms of the LRA
5
.
[14] In his award the
arbitrator remarked, among other things, as follows
6
:
‘
It is common
cause that the change to applicant’s duties was motivated by a
desire on the part of the employer to avoid retrenchments
and to
increase the profitability of the company after a slowdown in
business. Whether the employer’s unilateral change to
applicant’s terms and conditions of employment constitutes a
breach of contract or unfair labour practice depends on the
facts of
the case at hand. …
[The applicant] is an experienced
panel beater and competent estimator (in his own words), which shows
that he has sufficient knowledge
of a panel beating business to
answer any questions relating thereto and that he was capable to
interact with troublesome clients
… .
I do not believe that he lacks the
necessary skills and qualities to comply with the instruction, which
would have been detrimental
to the image of the company.
During cross examination he gave a
perfectly acceptable rendition on how to persuade assessors and
managers of large companies to
provide work for the company …..
The mere fact that he contacted
assessors to arrange meetings with them shows not only that he had
accepted this additional task
as part of his duties, but realized the
significance thereof….
Against the background of his duties
as an estimator, the company’s operational requirements, the
fact that his job as an
estimator at the time did not keep him fully
occupied everydayand to safeguard his job, I am of the opinion that
his employer was
entitled to unilaterally change his job description
to include the additional task of marketing. This change does not
seem so dramatic
that the applicant undertakes an entirely different
job or that it exceeds the boundaries of the core content of his
job….
Respect and obedience are implied
duties of an employee and the courts require a reasonable degree of
respect and courtesy to their
employers. Applicant’s conduct
was not only disrespectful but is sufficient to show an intention to
challenge the authority
of his employer and was aggravated by the
fact that it was done in the presence of other employees like
MsSpaans.’
[15] On the basis of
these reasons, amongst others, the arbitrator found that the
instruction given to Mr van Jaarsveld was lawful
and reasonable; and
that his refusal, three times, to comply with the instruction
constituted a gross, persistent, and deliberate
insubordination of
his employer, which was serious indeed. He further noted that Mr van
Jaarsveld had been issued with a final
written warning in respect of
his refusal to obey the same instruction and that, at that point, it
should have been clear to him
that he would be dismissed if he
persisted to refuse to comply with the instruction. Hence, the
arbitrator found that ‘[t]he
relationship of trust, mutual
confidence and respect which is the essence of a master-servant
relationship cannot under these circumstances
continue.’
[16] The arbitrator noted
that, even though there was no formal disciplinary hearing which
preceded the final written warning issued
to Mr van Jaarsveld at the
meeting of 10 March 2009, it was clear that the meeting ‘had a
decidedly investigative air about
it [and that] it was convened for
the purpose of motivating applicant and [for the applicant] to alert
the employer of any problems
that might be in the way of complying
with the instruction….The applicant made no attempt to alert
the employer of any deficiencies
of a personal nature or indicated
any valid reason for refusing to comply with the instruction…He
had ample opportunity
to state his case and explain his conduct…There
is no reason why a final written warning should not have been issued
against
the applicant in these circumstances.’
[17] Accordingly, the
arbitrator declared that Mr van Jaarsveld’s dismissal was both
substantively and procedurally fair.Mr
van Jaarsveld’s claim
was, therefore, dismissed and no order as to costs was made.
Proceedings in the
Labour Court
[18] As the appellants
were not satisfied with the outcome of the arbitration hearing they
launched a review application in the
Court
a quo
, in terms of
section 145, read with section 51(8), of the LRA. The grounds of
review, in terms of the appellants’founding
papers, included
the following:
18.1 There was no
evidence before the arbitrator that Mr van Jaarsveld had tacitly
agreed to promote and market the business of
the company.The
arbitrator therefore erred in this regard.
18.2 Insofar as the
arbitrator held that the company had the right to implement
unilateral changes to the terms and conditions of
Mr van Jaarsveld’s
employment contract, the arbitrator erred.
The arbitrator erred in
holding that by telephoning the assessors Mr van Jaarsveld had
thereby accepted the instruction.
The arbitrator erred in
failing to ask the question whether marketing fell within the ambit
and scope of Mr van Jaasrveld’s
duties as an estimator in
order to determine whether it was a lawful instruction,
alternatively a reasonable instruction. It
was clear from the
evidence before the arbitrator that marketing did not fall within
Mr van Jaasrveld’s duties as an
estimator. As such, the
arbitrator should have held that it was an unlawful instruction,
alternatively an unreasonable instruction.
18.5 The arbitrator erred
in holding that Mr van Jaarsveld’s duties as an estimator
showed that he had the necessary skills
and qualities to comply with
the instruction.
18.6 The arbitrator
erred, therefore, in finding that Mr van Jaarsveld’s dismissal
was substantively fair.
18.7 The arbitrator erred
in holding that the company could simply issue a final written
warning without holding a disciplinary
hearing.
18.8 The arbitrator erred
in failing to hold that it was procedurally irregular for Mr van
Rooyen to have presided over Mr van Jaarsveld’s
the appeal,yet
Mr van Rooyenhad signed the dismissal recommendation prior to the
appeal before him.
18.9 The arbitrator
erred, therefore, in finding that Mr van Jaarsveld’s dismissal
was procedurally fair.
[19] After considering
the submissions from Counsel, the learned Judge
a
quo
remarked,
in part, as follows
7
:
‘
In my view
this is a case where it is fundamentally important for the court to
hold the line between an appeal and a review. There
are very
persuasive arguments made by Mr
Ebersohn
,
as to why perhaps some other commissioner could have found that the
instruction to the employee did amount to a unilateral change
to
terms and conditions of employment, and that the employer should have
utilised section 189 of the Labour Relations Act, and
followed a
retrenchment process if the employee did not want to accept the
change because of the
Mazista
Tiles
judgment.
Those arguments that Mr
Ebersohn
made
are very comprehensive and very persuasive. But that is not the test
for review. The test for review in a case like this is
whether the
commissioner asked himself the right question, applied his mind to
the matter, and came to the conclusions which this
court cannot
second guess unless it is satisfied that no reasonable arbitrator
would have come to that conclusion.
I am not satisfied that a case for
review has been made out on any three legs of substantive fairness,
or on the leg of procedural
fairness.’
[20] On procedural
fairness, the Court
a
quo
had,
specifically, the following to say:
8
‘
The LRA does
not oblige an employer to give an appeal hearing, and if the initial
hearing was fair I cannot see on what basis the
employee can then
later complain that the
audialterampartem
principle was not followed. Based on the principles of Avril
Elizabeth Homes, I cannot fault the commissioner’s decision
that the dismissal was procedurally fair.’
[21] The learned Judge
a
quo
noted that it did appear that there was a “slight
contradiction” in the arbitrator’s award in that at one
stage
the arbitrator seemed to treat the matter as one involving a
unilateral change to terms and conditions of employment whilst at
some other stage he found that ‘actually there was not such a
great unilateral change because the instruction was not an
extraordinary instruction, having regard to the employee’s
normal duties, and that the employee consented to the instruction
in
any event.’
[22] Accordingly, the
review application was dismissed and each party was ordered to pay
their own costs.
The appeal
[23] The grounds of
appeal, in terms of the notice of appeal, were basically that the
Court
a quo
erred in holding -
23.1 That the
arbitrator’s reasons were not ‘so unreasonable’
that no reasonable arbitrator could have come to
these conclusions.
23.2 That the arbitrator
had applied his mind to the issues before him and that he had asked
the correct question and therefore
had not committed a mistake of
law.
23.3 That there were no
grounds for reviewing the award in respect of the finding that Mr van
Jaarsveld’s dismissal was substantively
fair.
[24] Mr
Ebersohn,
appearing for Mr van
Jaasrveld, submitted that the arbitrator failed to ask himself the
correct question. (
Stocks
Civil Engineering (Pty) Ltd v Rip NO andAnother
9
).
He
submitted that the right question which the arbitrator ought to have
asked himself was three-fold: firstly, whether marketing
fell within
Mr van Jaarsveld’s terms and conditions of employment, to which
the answer (on the common cause facts) was in
the negative. Secondly,
whether the company could unilaterally amend the terms and conditions
of Mr van Jaarsveld’s contract,
to which the answer, in terms
of our law,
was
also in the negative. Thirdly, whether, in those circumstances, the
instruction was lawful and reasonable. The answer was also
clearly a
‘no’. That being the case, Mr van Jaarsveldshould not
have been convicted of any misconduct.
[25] Mr
Ebersohn
argued that, by failing
to ask himself the correct question, the arbitrator had, as a
result,reached a wrong conclusion of law when
he found that the
company ‘was entitled to unilaterally change [Mr van
Jaarsveld’s] job description to include the
additional task of
marketing’and that the instruction was both lawful and
reasonable.Counsel submitted that this was a gross
error of law on
the part of the arbitrator which affected his award and rendered it
reviewable. He contended that, given Mr van
Jaarsveld’sposition
asan estimator, the company’s instruction that he must, in
addition to the duties pertinent to
his position aforesaid,
go out and promote the
company’s business,
constituted
a unilateral change to his terms and conditions of employment. Such
instruction was unlawful, unreasonable and impermissible.
In this
regard he referred us, particularly,to this Court’s decision in
Mazista
Tiles (Pty) Ltd v National Union of MineworkersandOthers.
10
[26] Counsel further
submitted that the fact that Mr van Jaarsveld had phoned certain
assessors about getting work for the company
could not be construed,
as the arbitrator did, to have constituted consent on Mr van
Jaarsveld’s part. In any event, the
arbitrator contradicted
himself by holding, on the one hand, that the company had the right
to unilaterally amend the terms and
conditions of Mr van Jaarsveld’s
employment whilst, on the other, also holding that Mr van Jaarsveld
had consented to the
amendment. Mr
Ebersohn
also pointed out
that it was common cause that Mr van Jaarsveld was not even trained
by the company in the field of marketing.
Therefore, his refusal to
obey the instruction wasjustified and he was not guilty of
insubordination.Consequently, his dismissal
wassubstantively unfair.
He submitted that the arbitrator, in the circumstances, reached a
conclusion which no reasonable decision-maker
could have reached.
[27] It was common cause
that the disciplinary hearing was chaired by Mr Grant Joubert who was
appointed by SEESA. At the conclusion
of the enquiry, Mr Joubert made
a recommendation that Mr van Jaarsveld be summarily dismissed.
However, the recommendation letter
was not signed by Mr Joubert, but
instead, it was signed by Mr van Rooyen who was also employed by
SEESA. It was also common cause
that Mr van Jaarsveld lodged an
internal appeal against his dismissal. The appellants’
complaint lies with the fact that
the same Mr van Rooyen was the one
who went on to preside over Mr van Jaarsveld’s internal appeal,
which was dismissed. Mr
Ebersohn
submitted that Mr van Rooyen
ought not to have signed the dismissal recommendation letter since he
knew that in the event of Mr
van Jaarsveld lodging an internal appeal
he would be the one to preside over it. He further pointed out that
Mr van Rooyen had
initially denied that he had even seen or signed
the letter. However, he had later admitted that he had done so. On
this basis,
counselsubmitted there was a reasonable perception of
bias on the part of Mr van Rooyen, which tarnished the internal
appeal process
and thus rendered Mr van Jaarsveld’s dismissal
also procedurally unfair.
[28]
At
the outset Mr
Beaton
SC, for the company,
pointed out that there was no written contract of employment which
the company concluded with Mr van Jaarsveld.
He reaffirmed that Mr
van Jaarsveldwas appointed as a panel beater and subsequently
promoted to the position of estimator. He submitted
that, on Mr van
Jaarsveld’s own version, this was an employment contract whose
content was flexible. In this regard,
he
referred us to the evidence of Mr van Jaarsveld during the
arbitration hearing, as appearing in the reconstructed record, where
Mr van Jaarsveld acknowledged that none of the other employees were
also trained in marketing and further that he had himself assisted
in
that regard as much as he could.
11
According
to Mr
Beaton
,
this was proof that the contract was a flexible one. However, it was
common cause that Mr van Jaarsveld had never gone out to
solicit
work, but he had only phoned assessors and clients from his office,
which was probably the assistance he had referred to.
[29] In his heads of
argument,Mr
Beaton
submitted that the
question which the arbitrator was required to ask was whether Mr van
Jaarsveld was instructed to undertake an
entirely different job to
that for which he was employed at the time of the instruction.
Counsel further submitted that the arbitrator
asked himself this
question and he answered it correctly when he found that the company
‘was entitled to unilaterally change
[Mr van Jaarsveld’s]
job description to include the additional task of marketing.
’
12
He
argued that if the arbitrator was required to have asked the question
whether marketing fell within Mr van Jaarsveld’s
terms and
conditions of employment (which Mr
Ebersohn
suggested the arbitrator
should have done) that would render impossible any accommodation of
changes in the work practice as envisaged
in the
Mauchle(Pty)
Ltd t/a Precision Tools v NUMSA and Others,
13
decision.
[30] On the question of
procedural fairness, Mr
Beaton
conceded that since the company
provided an internal appeal structure it was imperative that the
appeal process be conducted in
a fair manner. He submitted that, in
any event, on the evidence before the arbitrator, it was evident that
both the disciplinary
hearing and the internal appeal process were
procedurally fair.
Analysis and
evaluation
The substantive
fairness aspect
[31] It is trite that an
employee is guilty of insubordination if the employee concerned
wilfully refuses to comply with a lawful
and reasonable instruction
issued by the employer.It is also well settled that where the
insubordination was gross, in that it
was persistent, deliberateand
public, a sanction of dismissal would normally be justified. Mr van
Jaarsveld was charged and convicted
of misconduct involving
insubordination, as a result of which he was dismissed from the
company’s employ. The case for Mr
van Jaarsveld is that he was
not guilty of misconduct, in the first place, because he was entitled
to refuse to obey an unlawful
and unreasonable instruction given to
him by the company, on the basis that the instruction constituted an
impermissible unilateral
change to his terms and conditions of
employment as an estimator.
[32] Ordinarily, an
employer is not entitled to unilaterally change the terms and
conditions of an employment contract. In
Mazista Tiles,
this
Court formulated the principle thus:
‘
An employer
who is desirous of affecting changes to terms and conditions
applicable to his employees is obliged to negotiate with
the
employees and obtain their consent. A unilateral change by the
employer of the terms and conditions of employment is not
permissible.
It may so happen, as was the position in this case, that
the employees refuse to enter into any agreement relating to the
alteration
of their terms and conditions because the new terms are
less attractive or beneficial to them. While it is impermissible for
such
employer to dismiss his employees in order to compel them to
accept his demand relating to the new terms and conditions, it does
not mean that the employer can never effect the desired changes. If
the employees reject the proposed changes and the employer
wants to
pursue their implementation, he has the right to invoke the
provisions of s 189 and dismiss the employees provided the
necessary
requirements of that section are met.
14
…
Nor will [the employer] be justified
to institute disciplinary action against the employees who resist the
implementation of the
unilaterally changed terms and conditions. The
employees’ resistance against such unilateral changes cannot be
regarded as
constituting misconduct.’
15
[33] It is trite that, in
terms of the
Sidumo
test,
16
the question to be asked
in determining whether an award is reviewable,
in
that it does not pass muster of judicial review under section 145 of
the LRA,
is
whether the award constituted a decision which a reasonable
decision-maker could not have made.
[34] Indeed, it would
appear, at the cursory glance of the award, that the arbitrator made
a finding that the company was entitled
to unilaterally change Mr van
Jaarsveld’s employment contract to include marketing. However,
from the holistic reading of
the award one gets the clear and proper
perspective of the arbitrator’s actual finding in this regard.
Firstly,
he
hastened to add that, by issuing the instruction, thecompany acted
reasonably under the circumstances. Secondly, he went on to
find that
‘actually there was not such a great unilateral change because
the instruction was not an extraordinary instruction,
having regard
to the employee’s normal duties…’and further that
the unilateral change to Mr van Jaarsveld’s
‘job
description…does not seem so dramatic that [he] undertakes an
entirely different job or that it exceeds the boundaries
of the core
content of his job’. Of course, the apparent unfortunate choice
of words on the part of the arbitrator tended
to have the effect of
blurring his finding,
to
the extent which the Court
a
quo
regarded
as a “slight contradiction” in the arbitrator’s
finding.
[35] As indicated, it
would appear that the arbitrator engaged in the usage of wrong
phraseology in his finding on the issue of
alleged unilateral change
to terms and conditions of employment. In any event, it has been held
that it is not important how a
commissioner/arbitrator expresses
himself/herself in the award; what the review court is required to do
is simply to look at the
arbitration record and, having done so, ask
the question, in terms of the
Sidumo
test,
whether the award is one which a reasonable decision-maker could have
made. In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation &
Arbitration and Others,
17
this
Court (per Zondo JP, with Khampepe and JappieJJA concurring) stated
18
:
‘…
It
seems to me that, even if there may have been a debate under
Carephone
and prior to
Sidumo
on whether a commissioner's decision for which he or she has given
bad reasons could be said to be justifiable if there were other
reasons based on the record before him or her which he or she did not
articulate but which could sustain the decision which he
or she made,
there can be no doubt now under
Sidumo
that the reasonableness or otherwise of a commissioner's decision
does not depend - at least not solely - upon the reasons that
the
commissioner gives for the decision. In many cases the reasons which
the commissioner gives for his decision, finding or award
will play a
role in the subsequent assessment of whether or not such decision or
finding is one that a reasonable decision maker
could or could not
reach. However, other reasons upon which the commissioner did not
rely to support his or her decision or finding
but which can render
the decision reasonable or unreasonable can be taken into account.
This would clearly be the case where the
commissioner gives reasons
A, B and C in his or her award but, when one looks at the evidence
and other material that was legitimately
before him or her, one finds
that there were reasons D, E and F upon which he did not rely but
could have relied which are enough
to sustain the decision.’
[36] Whether the mistake
of law committed by the arbitrator is one which warrants that the
award be reviewed and set aside also
depends on the nature and extent
of the mistake in a given case. Not every mistake of law warrants or
justifies the nullification
of a decision under scrutiny. In
Local
Road Transportation Board and Another v Durban City Council and
Another
,
19
the Appellate Division (now the Supreme Court of Appeal)
(
per
Holmes JA)
stated:
20
‘
A mistake of
law
per
se
is not an irregularity but its consequences amount to a gross
irregularity where a judicial officer, although perfectly
well-intentioned
and bona fide, does not direct his mind to the issue
before him and so prevents the aggrieved party from having his case
fully
and fairly determined.’
[37] In
Mauchle,
above,which
the arbitrator notably referred to in the award,the facts of the case
were briefly the following. There were severalemployees,
each of whom
was employed as a machine operator – ordinarily operating one
machine. However, when the employer got a special
order that had to
be attended to urgently an instruction was issued that each employee
would have to operate two machines in order
to dispose of the special
order. The employees refused to comply with the instruction, claiming
that in terms of their contracts
they were required to operate only
one machine and that the instruction constituted a unilateral change,
by the employer, to the
terms and conditions of their employment
contracts. They were dismissed for misconduct. When the dispute
eventually came on appeal,
at the instance of the employer, this
Court distinguished between a change in working conditions and one in
terms and conditions
of employment, as follows:
21
‘
On those
facts it was not a term of the contract of employment that the
applicants would operate only one machine. A description
of the work
to be performed as that of ‘operator’ should not, in my
view, ‘be construed inflexibly provided that
the fundamental
nature of the work be performed is not altered.’ (Wallis
Labour
and Employment Law
para
45 at 7-9). I agree with the view expressed by the learned author at
7-23 n 9 that employees do not have a vested right to
preserve their
working obligations completely unchanged as from the moment when they
first begin work. It is only if changes are
so dramatic as to amount
to a requirement that the employee undertakes an entirely different
job that there is a right to refuse
to do the job in the required
manner. In
Crewswell
v Board of Inland Revenue
(1984) 2 All ER 713
(ChD) at 720b-d Walton J said:
“
I
now turn straight away to a consideration of the main point on which
counsel for the plaintiff relied. He put his case in this
way, that
although it is undoubtedly correct that an employer may, within
limits, change the manner in which his employees perform
a work which
they are employed to do, there may be such a change in the method of
performing the task which the employee was recruited
to perform
proposed by the employer as to amount to a change in the nature of
the job. This would mean that the employee was being
asked to perform
work under a wholly different contract and this cannot be done
without his consent …
It is a very fine line
from counsel’s submissions to the submission that employees
have a vested right to preserve working
obligationscompletely
unchanged as from the moment when they first begin work. This cannot
surely, by any stretch of the imagination,
be correct.”
See, too
De Beers Consolidated
Mines Ltd (Finsch Mine) v National Union of Mineworkers & others
(unreported decision of the Northern Cape Division of the Supreme
Court, case no 1111/92).’
[38] After analysing the
material presented to him, the arbitrator found that,
on the basis of Mr van
Jaarsveld’sjob description as an estimator, it was clear that
his duties (as listed by Mr van Jaarsveldhimself)involved
a common
denominator, namely, the daily interaction with assessors and clients
of the company.The Court
a
quo
found,
correctly so in my view, that the arbitrator had given ‘comprehensive
reasons why he [came] to the conclusion that
this particular
instruction was not a dramatic change to the terms and conditions of
the employee’s core duties.’
[39] I am satisfied that
the instruction for Mr van Jaarsveld to physically go out and solicit
work from assessors and fleet companies
during an economically
threatening period, was simply something that could be inferred from,
or at most, which was ancillary to,
his normal duties. Put
differently, it was simply a variation in his work practice or a
change in the manner his job was to be
performed -a situation that
was occasioned by sound andcompelling operational reasons on the part
of the company.Previously,
the
company waited for clients to knock on the door to bring the work;
but this was no longer happening. So, the company came up
with the
idea that ‘Look, instead of waiting for clients to come to us,
let’s go out and solicit work from them.’
It was
fundamentally the same job which was then to be performed in a
slightly different manner. Indeed, it was, in my view, the
situation
in respect of which Mr van Jaarsveld did not have a vested right to
preserve his working obligations completely unchanged
as from the
moment when he first began to work.
22
[40] It also seems to me
that, in the present context, the term ‘marketing’ was
simply bandied about and loosely used
in a manner which, in my view,
did not actually entail the change in the work practice which the
company had envisaged. On the
facts, this scenario was not meant to
refer to the formal business marketingprofession. As I have said, it
only entailed solicitation
of work which Mr van Jaarsveld was, after
all, involved with. It clearly did not require of him to have had
some special training
‘in marketing’ in order to be able
to perform the job. In my view, the employer had the right to effect
these changes
in the work practice in order to adapt to the changing
economic environment that was adversely affecting the operational
requirements
of the company. Therefore,a denial of flexibility in the
interpretation of the terms and conditions of Mr van Jaarsveld’s
unwritten employmentcontract would be unreasonable and absurd, as it
would have the effect of frustrating the company’s efforts
towards its economic revival, an objective that was in the interest
of both the company and all its employees, including Mr van
Jaarsveld.
[41] It is also
significant to note that Mr van Jaarsveld was to be provided with
thecompany car which he would use when going out
to solicit work and
that any incidental expenses in relation to his field duties would be
paid by the company. Further, it was
common cause that his position
as an office-bound estimator, in terms of his listed duties, was no
longer occupying him full-time
at the time the instruction was
issued. Therefore, instead of engaging him in terms of section 189 of
the LRA, with a view topossible
retrenchment, the company resorted to
a pragmatic,reasonable and practicable solution that was intended to,
and indeed would, benefit
everyone involved with the company. In my
view, it was within the company’s legitimate power to resort to
this method in
its own interest and that of its employees, including
Mr van Jaarsveld. In any event, it was not the appellant’s
complaint
in the Court
a
quo
that
the company should have resorted to section 189 consultation
procedure. This issue was never raised by the appellants in both
their founding and supplementary affidavits filed for the review
application. It is, therefore, not open to the appellants to raise
the issue at this stage. In
Director
of Hospital Services v Mistry,
23
the
Appellate Division stated:
24
‘
When, as in
this case, the proceedings are launched by way of notice of motion,
it is to the founding affidavit which a Judge will
look to determine
what the complaint is. As was pointed out by Krause J in
Pountos'
Trustees v Lahanas
1924 WLD 67
at 68 and as has been saidin many other cases:
“
...
an applicant must stand or fall by his petition and the facts alleged
therein and that, although sometimes it is permissible
to supplement
the allegations contained in the petition, still the main foundation
of the application is the allegation of facts
stated therein, because
those are the facts which the respondent is called upon to confirm or
deny”.
’
[42] It seems to me that
in the present instance the arbitrator properly applied his mind to
the issues before him. Save his usage
of wrong legal phraseology that
the company was entitled to unilaterally amend the terms and
conditions of Mr van Jaarsveld’s
employment contract, the
arbitrator’s award comprehensively dealt with all the relevant
issues in a sound and well-reasoned
manner. In other words, if such
usage of wrong phraseology amounted to the commission of a mistake of
law by the arbitrator, as
contended by Mr
Ebersohn
, then it
was not, in my view, a gross or material mistake of law. It is clear
that the mistake did not materially affect the arbitrator’s
ultimate decision. The mistake was, therefore, immaterial and
irrelevant. It does not, in my view, constitute a ground to review
and set aside the award.
[43] It appears to me,
considering the evidentiary material properly presented to the
arbitrator and notwithstanding the mistake
aforesaid, that the
company’s instruction was a lawful and reasonable one which Mr
van Jaarsveld was obliged and obligated
to carry out. His blatant,
persistent and public refusal to comply with thislawful and
reasonable instruction constituted gross
insubordination on his part.
He seriously and inexcusably undermined the authority of management.
In my view, he was correctly
convicted of the misconduct as charged
and his dismissal was, therefore, substantively fair. Given this
finding, it is no longer
necessary to determine whether Mr van
Jaarsveld, by phoning the assessors, thereby consented to the
controversial change introduced
by the company.
The procedural
fairness aspect
[44] The record of the
disciplinary hearing shows that the company had put in place a fair
disciplinary procedure which was followed
perfectly during the
proceedings against Mr van Jaarsveld. Indeed, the appellants lodged
no complaint against the disciplinary
process at the first instance
level. The complaint lies only against the alleged unfairness in the
internal appeal process. Although
the LRA does not oblige an employer
to provide an internal appeal structure,
it
is,
in my
view,imperativethat once the employer has decided to establish such
structure in the workplace the appeal process must be
fair. Any
employee who feels aggrieved by the outcome of a disciplinary process
has a vested right of access to a fair internal
appeal process,
where such appeal
structure is provided in the workplace. Otherwise, if the fairness of
the internal appeal process should simply
be ignored as irrelevant,
then the establishment of such appeal structure becomes a meaningless
exercise. In any event, such action
would be in direct violation of
every person’s right to fair labour practices asenshrined in
the Constitution.
25
I therefore do not agree
with the view expressed by the learned Judge
a
quo
on
this point, to which I referred earlier in this judgment.
[45] It is common cause
that Mr van Rooyen was not involved in the disciplinary hearing. It
is also clear that he signed the dismissal
recommendation letter on
behalf of his colleague, Mr Joubert,
26
who
chaired the disciplinary enquiry. Mr van Rooyen testified that when
he signed the letter on behalf of his colleague he had neither
seen
the disciplinary minutes nor discussed the matter with Mr Joubert. He
also explained that from the time when he signed the
letter to the
time that the appeal came before him,
he
had completely forgotten that he had ever seen the letter because, as
he put it, ‘…daar word in onskantoor op ’n
weeklikse basis tussen 250 en 300 dissiplinereverhoregedoen. So die
moontlikheiddatek al hierdiebrifies net afteken en hulle word
net
uitgefaks is ’n baiegrootmoontlikheid’.
27
That,
to my mind, innocently explained why Mr van Rooyen might have first
denied that he had seen or signed the letter. It does
not appear
that, with his signature clearly appended on the letter, he would
have wilfully lied that he did not see or sign the
letter. The
arbitrator accepted Mr van Rooyen’sversion in this regard.
28
On
the holistic consideration of Mr van Jaarsveld’s disciplinary
process,
I
am inclined to hold that it was conducted fairly. In any event, his
complaint about the internal appeal process would have been
compensated by the fact that he was subsequently accorded another
opportunity to state his case and ventilate all his grievances
when
the dispute was dealt with
de
novo
during
the arbitration hearing.Accordingly, I hold that the procedure
followed by the company which led to the dismissal of Mr van
Jaarsveld was a fair procedure.
Was the sanction of
dismissal appropriate?
[46] As I have stated
above, where the insubordination was gross, in that it was
persistent,
deliberateand
public, a sanction of dismissal would normally be justified. In
Slagment
(Pty) Ltd v Building Construction & Allied Workers Union and
Others,
29
two
employees had persistently refused, without just cause, to carry out
lawful instructions given to them by their newly appointed
manager
under whose supervision they were. Before holding that the employees’
dismissals were “not substantively unfair”
but that they
were “fully justified”, the Appellate Division (per
Nicholas AJA) remarked as follows:
‘
The
employees had been guilty of sustained disobedience. They had
deliberately set themselves on a collision course with management.
They were insubordinate and insulting. Their conduct was such as to
render a continuance of relationship of employer and employee
impossible.’
30
[47] In the present
instance, Mr van Jaarsveld wilfully, persistently and publicly defied
a lawful and reasonable instruction given
to him by his employer, Mr
Cronje, who was the sole director of the company. On one of the
occasions when Mr van Jaarsveld defied
the instruction it was in the
presence of Ms Spaans, one of the company employees.It is trite that
mutual trust and respect constitute
a fundamental pillar in every
sustainable employer-employee relationship.In my view, Mr van
Jaarsveld’s unbecoming conduct
completely ruined his employment
relationship with the company, which rendered his dismissal
justified.
31
The
misconduct was so serious that the sanction of dismissal would, in my
view, have been justified even in the absence of the final
written
warning. On this basis, the question whether the warning was
regularly and fairly issued becomes irrelevant.
[48] Mr
Ebersohn
furtherargued
that the fact of the company having decided to reinstate Mr van
Jaarsveld as a panel beater with effect from 16 March
2009 served as
sufficient proof that the company was still happy to continue with
him as its employee, provided he was a panel
beater. On that basis,
he submitted that the employment relationship between Mr van
Jaarsveld and the company had not irreparably
broken down. With
respect, counsel’s argument is not sustainable. The
reinstatement of Mr van Jaarsveld as a panel beater
was to be in
place pending the holding of the disciplinary hearing. There was
nothing unusual with the company’s initiative
in this regard,
namely, to reinstate Mr van Jaarsveld as a panel beater pending the
disciplinary enquiry. In my view, this initiative
did not amount to a
waiver by the company of its right to execute the sanction of
dismissal upon Mr van Jaarsveldbeing convicted
of the misconduct.
After all, it would have been wrong and irregular for the company to
have assumed his guilt before the disciplinary
process was even
finalised.
[49] In my view,
therefore, the decision which the arbitrator reached in his award was
one which any reasonable decision-maker,
presented with the same
evidentiary material, could have reached. For the reasons that I have
stated, the appeal must fail. Mr
Ebersohn
submitted that costs
should follow the result; and reluctantly conceded that it would mean
that if the appellants lost the appeal
they should bear the costs
thereof. However, bearing in mind that (1) Mr van Jaarsveld lost his
job and was currently presumably
out of employment and (2) the appeal
involved legal issues which were fairly arguable from both sides
(that is, it was not a frivolous
and/or vexatious exercise on the
part of the appellants), it is my considered view,notwithstanding
counsel’s concession aforesaid,that
fairness and equity dictate
that no order as tocosts ofthe appeal should be made.
The order
[50] In the result, the
following order is made:
1.
The appeal is
dismissed.
2. There is no order as
to costsof the appeal.
___________________
Ndlovu JA
WaglayDJP and Murphy AJA
concur in the judgment of Ndlovu JA
APPEARANCES:
FOR THE APPELLANT: Dr G
Ebersöhn
c/oEbersöhn
Attorneys, Randburg
FOR THE RESPONDENT: Adv
RG Beaton SC
Instructed by Vogel Malan
Attorneys, Pretoria
1
Act
66 of 1995
2
Section
200 of the LRA.See also
National Union of Mineworkers v Hermic
Exploration (Pty) Ltd
(2003) ILJ 787 (LAC) at paras 37-- 41;
Amalgamated Engineering Union v Minister of Labour
1949 (4)
SA 908
(A) at 910.
3
This
date (1 June 2006) was alleged on behalf of Mr van Jaarsveld in his
founding affidavit in the review application. (See para
12).
Strangely, though, in his notice of internal appeal Mr van Jaarsveld
stated that he commenced employment with the company
on 27 July
2006. (See p97 of the indexed papers). However, nothing seems to
turn on this apparent discrepancy.
4
5
Section
194(1)
6
Arbitration
award, at 31-34 of the indexed papers.
7
Record,
vol 5 at 314-315.
8
LC
Judgment, at 319 of the indexed papers.
9
(2002)
ILJ 358 (LAC) at paras27-28.
10
(2004)
25 ILJ 2156 (LAC).
11
Arbitration
record (reconstructed portion), at 274 para 204 of the indexed
papers.
12
Arbitration
award, at 34 lines 3-5 of the indexed papers.
13
(1995)
16 ILJ 349 (LAC).
14
Mazista
Tiles
at para 48.
15
Mazista
Tiles
at para 53.
16
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28
ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC).
17
(2008)
29 ILJ 964 (LAC).
18
Ibid,
at para 102.
19
1965
(1) SA 586
(A).
20
Ibid
at 598A.
21
Mauchle
,
at 357F-358B.
22
See
Mauchle
, above.
23
1979
(1) SA 626
(A).
24
Ibid
,
at 635H-636A. See also
Smuts v Adair and Another
[2004] 1
BLLR 34
(LAC);
Mauerberger v Maurberger
1948 (3) SA 731
(C)
at 732;
Titty’s Bar & Bottle Store (Pty) Ltd v ABC
Garage (Pty) Ltd andOthers
1
1974 (4) SA 362
(T) at 368B-369A.
25
Section
23 (1) of the Constitution of the Republic of South Africa, Act 108
of 1996.
26
Letter
dated 17 March 2009, at 94 of the indexed papers.
27
Arbitration
record, at 222 lines 5-7 of the indexed papers.
28
Anglo
American Farms t/a Boschendal Restaurant vKomjwayo
(1992) 13 ILJ
573 (LAC) at 583I-584F.
29
(1994)
15 ILJ 979 (A).
30
At
989H-I.
31
Slagment
,
above.