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[2013] ZALAC 10
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National Union of Mineworkers obo Selemela v Northam Platinum Ltd (JA 25/11) [2013] ZALAC 10; (2013) 34 ILJ 3118 (LAC); [2014] 9 BLLR 870 (LAC) (31 May 2013)
17
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
Reportable
Case No. JA 25/11
In the matter between:
NUM obo SELEMELA
......................................................................................
Appellant
and
NORTHAM PLATINUM LIMITED
................................................................
Respondent
Summary: Appeal: Review of CCMA
award.
Sidumo
test restated. Insubordination sufficiently
serious and deliberate.In appropriate circumstances, a lapsed (final)
written warning
may be taken into account in determining the fairness
of dismissal. Held: Dismissal substantively fair.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NDLOVU, JA
Introduction
[1] This is an appeal against the
whole judgment and order of the Labour Court (per de Swart, AJ)
handed down on 21 July 2009. The
appeal came before us with the leave
of the Court
a quo
.
Factual background
[2] The appellant, the National Union
of Mineworkers (NUM), is a registered trade union and instituted this
litigation on behalf
of its member, Stephen Selemela.
1
The respondent company carries on the business of mining operations
in the Northam district, Limpopo Province.On 21 May 2004, Selemela
assumed employmentwith the respondent as an artisan assistant.
[3] However, on 15 August 2005,he was
charged with two counts of misconduct, as follows:
‘
1.
Misconduct whereby you on the 09/07/2005 neglected your duty by
refusing to carry out a lawful instruction given to you by your
supervisor: J J Liebenberg to clean the workshop.
2.
Misconduct whereby you on the 09/07/2005 left your workplace without
the permission of your supervisor.’
On the same day a third count of
misconduct was added, namely:
3.
Misconduct whereby you on the 11/07/2005 threatened to kill Adriaan
Willemse by stating that you will come to the workshop and
kill him
and the other people in the workshop.’
[4] On 20 August 2005, and at the
conclusion of a disciplinary hearing,Selemela was found guilty as
charged on all three counts.
Two days later, he was dismissed from
the respondent’s employ and served with the duly completed
‘dismissal form’
accordingly. At the time of his
dismissal he was earning R2483,03 per month.
[5] Selemela was aggrieved by his
dismissal, hence he referred a dispute to the CCMA whereby he alleged
that the dismissal was substantively
unfair and sought reinstatement.
He did not challenge its procedural fairness. Attempts at
conciliation failed and the dispute
was subsequently referred to
arbitration. The matter came before commissioner Jowie Teffo (cited
as the first respondent in the
Court
a quo
) who, on 16
November 2006, issued an arbitration award whereby she declared that
Selemela’s dismissal was substantively unfair
and ordered that
he be reinstated “to his former position as at (the) date of
dismissal on the same terms and conditions”;
and to resume his
duties with effect from 1 December 2006. The respondent was further
ordered to pay Selemela an amount of R29796,36
being his twelve
months’ remuneration on or before 1 December 2006.
[6]
The respondent, being dissatisfied with the commissioner’s
decision, took the matter up on review with the Labour Court,
in
terms of section 145 of the Labour Relations Act (the LRA).
2
In
its judgment, the Court
a
quo
found
that the dismissal of Selemela was “procedurally and
substantively” fair and thus reviewed and set aside the
commissioner’s award accordingly. It is against this judgment
that the appellant now appeals to this Court.
The arbitration proceedings
[7] During the arbitration hearing,
two witnesses testified on behalf of the respondent, namely, Andries
Johannes Liebenberg (also
known as Johan) the workshop electrician,
and Adriaan Willemse (also known as Attie), the electrical assistant.
Selemela was the
only witness for his case.
[8] Liebenberg testified that on 9
July 2005,at about 08h45, he instructed Selemela and his co-workers
Attie and Vistos to strip
a 35 millimetre cableat the workshop, which
they duly did. Then Liebenberg and Chris de Beer, another
electrician, left the workshop
for the training centre to attend to
another job there and returned to the workshop at 09h45. At about
10h00,Liebenberg issued
another instruction to Selemela and his
co-workers as aforementioned to clean up the workshop of all the
pieces of cable that they
had stripped. They had to perform the
cleaning quickly because, as it was on Saturday, the company would
close early at 11h00.
However, Selemela and Vistos simply ignored
Liebenberg’s instruction. Instead,Vistos left the workshop and
Selemela went
to stand by the front door. De Beer also asked Selemela
to comply with the instruction, but still in vain. At that
stage,Selemela
left the workshop as well. He and Vistos only returned
at 10h45, which was 15 minutes before the closing time. There was
some indication
in evidence that Vistos, as a result of this
incident, was no longer employed by the respondent. As to how his
employment contract
got terminated, of course,is an issue of no
relevance to this case.
[9] On Monday, 11 July 2005, Selemela
was called to the office of Andre van der Veen, the respondent’s
foreman, where he was
confronted about his alleged misconduct on the
previous Saturday. When Selemela came out of the office, he went
straight to Willemse
and, speaking in English,accused Willemse of
being a spy and threatened that he would come back to the workshop
and shoot him (Willemse)
and Liebenberg and also that he would ‘get’
the other artisans.
[10] Liebenberg further testified that
Selemela had previously received a final written warning involving
the misconduct of disobeying
a lawful instruction and leaving the
workstation without permission, committed on 27 January 2005. The
said warning was valid for
182 days.
[11]
Willemse substantially corroborated the evidence of Liebenberg in
relation to Selemela’s alleged acts of misconductboth
on 9 and
11 July 2005. Concerning the Saturday instruction to clean up the
workshop,Willemse, in summation, stated:
3
‘
Ek
het die instruksie uitgevoer. Stephen (Selemela) het die instruksie
geignoreer en Vistos het die werksplek verlaat. Terwyl ek
besig was
het Johan Liebenberg na Stephen toegekom en vir die tweede keer gevra
om my te help skoonmaak. Hy het weer die instruksie
geignoreer en hy
het die werksplek verlaat. Ek het die werksplek klaar skoon en veilig
gemaak. Hulle het so 10:50 teruggekom…’
On
the Monday incident, Willemse stated:
4
‘
Dit
was net na die meeting wat hy (Selemela) na my toegekom het, wat hy
vir my gese het, am I a spy or what… Ek het hom gevra
hoekom
sal hy so iets se. Hy het gese moenie worry nie, hy sal net inkom, in
die workshop inkom en vir my en Johan skiet…
Dit was nog voor
10:00, teetyd.’
Willemse further stated that Selemela
was speaking English at the time he threatened him.
[12] Selemela denied that he failedto
carry out Liebenberg’s instruction on 9 July 2005. He said when
Liebenberg and de Beer
returned from the training centre, Liebenberg
instructed them (i.e. Selemela, Willemse and Vistos) to stop
stripping the cables
but to collect the pieces that they had already
stripped and throw them in the rubbish bin. The reason for stopping
them was presumably
because it was then nearing the closing time. He
said he then collected the pieces (which he referred to as the
armour) and went
to throw them in the rubbish bin. Before going back
to the workshop he went to the toilet. When he returned, he found
that there
was a lot of dust in the workshop. He then decided to stay
outside. After the dust had subsided, he then went inside the
workshop.
It was already closing time.
[13] On Monday, 11 July 2005, during
tea time, he was called to the foreman’s office where he was
asked to answer about his
alleged misconduct on Saturday. When he
denied the allegation,Willemse was called in and asked to explain
what happened on Saturday.
Once he confirmed that Selemela had indeed
ignored Liebenberg’s instruction, he was then excused and told
to leave the office.
[14]
Selemela further testified that, when he came out of the office, he
went to Willemse and asked him why he had said that he
(Selemela)
refused to carry out the instruction when in fact they had performed
the job together. He said, at that stage, he asked
Willemse (in
English):
‘
Are
you a spy or what?
’
From
there he went to speak to Black co-workers (about three of them) in
the tea room. During the conversation,he had remarked (in
SeSotho) to
his Black colleagues that he knew that “these people, they are
inclined to eat during working hours… and
fall asleep…all
the White men we work with there… I said that whilst they were
busy, when they will be busy eating
or sleeping I will shoot them a
photo.”
5
It
was in that context that he used the word ‘shoot’ and it
was not intended thereby to threaten anyone. He said at
the time he
made that statement Liebenberg and de Beer were present in the tea
room and seated at a table right at the back about
ten metres away.
[15] He said that on the same day
(i.e. 11 July 2005) he was called to the IR (presumably, the
industrial relations) office where
he was asked to sign a suspension
form and, at the same time,informed about misconduct charges that had
been preferred against
him. He was never asked to explain the context
in which he had used the word ‘shoot’ but was merely told
to sign the
suspension form.
[16] It was put to Selemela, under
cross-examination by the respondent’s representative, that both
in his statement that he
submitted to the disciplinary enquiry and
during his evidence at the enquiry he had never mentioned that he
went to the toilet
and that when he returned to the workshop he found
that it was full of dust. To that, he said it was because during the
enquiry
he was sometimes stopped and told that what he was saying was
irrelevant. He conceded that he was speaking loudly to his colleagues
when he used the word ’shoot’, meaning ‘to take a
photo’. He was at that time also looking at Willemse
who was
still in the tea room but starting to turn around and going away.
[17] The commissioner rejected
Selemela’s version with respect to the incident of the Saturday
on the basis that she found
it improbable, and accepted the
respondent’s account. However, in relation to the Monday’s
incident the commissioner
rejected the respondent’s version and
accepted Selemela’s defence. In this regard, she reasoned that
if Liebenberg
had indeed heard Selemela telling Willemse that he
would shoot both Willemse and him, then he (Liebenberg) would have
intervened
and asked Selemela why he had made such threat. On this
basis,the commissioner found that Selemela’s conviction in
relation
to the Monday’s incident could not be sustained.
However, she appeared to have accepted that Selemela was guilty of
insubordination,
although she hastily questioned whether the
misconduct was so serious as to have warranted a sanction of
dismissal.
[18] Upon her finding that Selemela’s
final written warning had already lapsed and that the insubordination
that he had committed
was not so serious and deliberate, the
commissioner concluded that the sanction of dismissal was too severe.
As indicated earlier,
she ordered that Selemela be reinstated to his
job on the same terms and conditions. In addition, the respondent was
ordered to
pay Selemela the amount of R29 796,36 which was
described by the commissioner as being Selemela’s twelve
months’
remuneration.
Proceedings in the Labour Court
[19] In its review application, the
respondentput forth the following submissions as its grounds of
review:
1. Since the LRA did not countenance
an order for both reinstatement and compensation, the commissioner
exceeded her powers when
she made such order in her award.
2. The evidence clearly established
that Selemela was instructed twice to clean up the workshop and he
did not only fail to carry
out the instruction but he absented
himself from the place concerned without informing anyone as to where
he was going. This was
clear evidence of wilful conduct on the part
of Selemela and therefore a deliberate act of insubordination.
3. The threat of shooting made by
Selemela was clear, express and not implied. There was corroborative
evidence in this regard.
If the commissioner properly assessed the
evidence, she would have found that the threat was indeed made,
recognised the seriousness
of the threat and appreciated that, as a
result, the relationship necessary for continued employment had been
destroyed.
4. The commissioner was wrong in
holding that the final written warning which was issued on 22
February 2005 and valid for 182 days
had lapsed when Selemela
committed the misconduct of insubordination on 9 July 2005. Even,
assuming in Selemela’s favour,
that the period of 182 days be
calculated from 27 January 2005 (being the date of the previous
misconduct), it would have expired
on 29 July 2005. In other words,
considered from either way, the final written warning had not yet
expired as at 7 July 2005 when
Selemela committed insubordination.
5. In any event, even if the final
written warning had lapsed, the commissioner was obliged to take it
into account and by not doing
so she committed an irregularity.
[20] The probability findings and
conclusionsof law reached by the Court
a quo
included the
following:
‘
The
Commissioner rejected Selemela’s version regarding the events
in the workshop on the Saturday as being improbable. The
inescapable
conclusion is accordingly that she accepted the evidence of
Liebenberg and Willemse to the effect that Selemela failed
to obey
the instruction given to him to clean up the workshop. Indeed, she
finds that Selemela was guilty of insubordination…
Having
accepted the evidence of Willemse and Liebenberg in regard to the
events on the Saturday, the Commissioner, however, appears
to reject
their evidence in regard to the evidence on the Monday. Liebenberg
and Willemse were either credible and reliable witnesses
whose
evidence was acceptable, or they were not. There appears to be no
justification for accepting their evidence in regard to
the
insubordination, but rejecting it in regard to the subsequent threat
by Selemela on the Monday…
When
regard is had to the award as a whole, the Commissioner clearly
attempted to save Selemela’s job. In pursuit of this
objective,
she made credibility findings which were inherently inconsistent and
substituted her own views as regards the suitable
sanction for
insubordination, for that of the employer. Whilst the commissioner
was not bound to defer to the employer, she was
required to evaluate
whether the sanction of dismissal was fair in the light of all the
circumstances of the case…’
[21] Accordingly, the Court
a quo
held that the decision made by the commissioner was not one which a
reasonable decision-maker could have reached. Hence, the arbitration
award was reviewed and set aside.
The appeal
[22] There were three preliminary
applications lodged by the appellant, namely, (1) for the
reinstatement of the appeal which had
lapsed; (2) for condonation of
the late filing of the appeal record; and (3) for the late filing of
the power of attorney. The
applications were not opposed by the
respondent. In fact, according to Mr Beaton
,
for the
respondent, that issue was the subject of agreement between attorneys
for both parties. The Court, accordingly, granted
the applications
and proceeded with the merits of the appeal.
[23] The following were listed as the
appellant’s grounds of appeal:
23.1. The Court
a quo
erred in
finding that the commissioner committed a reviewable irregularity and
exceeded his powers in awarding both reinstatement
and compensation
equivalent to 12 months’ remuneration.
23.2. The Court
a quo
erred in
finding that the commissioner had rejected as improbable Selemela’s
version regarding the events in the workshop
on 9 July 2005.
23.3. The Court
a quo
erred in
finding that the “inescapable conclusion” was that the
commissioner accepted the evidence of Liebenberg and
Willemse that
Selemela had failed to obey an instruction given to him to clean up
the workshop.
23.4. The Court
a quo
ought to
have found that the mere fact that the commissioner rejected
Selemela’s version was not an indication, either in
logic or in
fact that she necessarily accepted the version of Liebenberg and
Willemse and she was not bound to do so.
23.5. The Court
a quo
erred in
finding that because the commissioner held that “it does not
seem that the refusal to carry out the instruction
was serious and
deliberate”, the commissioner had (impliedly or expressly)
found that Selemela was guilty of insubordination.
23.6. The Court
a quo
erred in
finding that there was no justification for accepting the evidence of
Liebenberg and Willemse in regard to insubordination
but rejecting it
in regard to the subsequent threat by the appellant on the following
Monday.
23.7. The Court
a quo
ought to
have found that the mere fact that the evidence of a witness was
accepted on one issue does not provide support for the
propositionthat such witness’ evidence ought also to be
accepted on a different issue.
23.8 The Court
a quo
erred in
finding that the written warning which Selemela had previously
received ‘had clearly not lapsed’.
23.9. The Court
a quo
ought to
have found that the appellant had testified and produced documentary
evidence which was not challenged that he had received
a written
warning which had expired on 16 May 2005.
23.10. The Court
a quo
erred in
finding that the decision of the commissionerwas not one which a
reasonable decision-maker could have reached on the evidence.
[24] Mr Hulley, for the appellant,
apparently believing that the amount of R29 796,36 was actually
intended by the commissioner
as compensation, as the Court
a
quo
also construed it to be the position, conceded that the
commissioner was then wrong to have ordered compensation in addition
to
reinstatement. He submitted, however, that with regard to the
other issues raised against the award, the commissioner was correct
in her assessment of the evidence before her and the conclusion that
she reached. He submitted that even on the part where the
commissioner rejected Selemela’s version as improbable, it
related not to the alleged insubordination (i.e. failing to obey
an
instruction) but rather to the misconduct of Selemela for having left
the workplace without permission and having failed to
re-enter the
dust-filled workshop through the back door. He submitted that this
was not a serious misconductto have warranted the
sanction of
dismissal.
[25] Mr Beatonsubmitted that in
relation to the misconduct charges based on the events of Saturday (9
July 2005) the commissioner
had properly analysed the evidence on
both sides before making the finding that “[Selemela’s]
version cannot stand
because it is improbable”
.
Counsel
argued that it was not correct that the commissioner had rejected
Selemela’s version as improbable only in relation
to him having
left the workstation without permission and failing to re-enter the
workshop through the other door because of the
dust, as Mr Hulley had
suggested was the case. Mr Beatonfurther submitted that the
commissioner ought to have taken into account
that within the same
year Selemela had wilfully disobeyed his superiors. Accordingly,
hecontended,the decision reached by the commissioner
was not one
which a reasonable decision-maker could reach.
[26] However, Mr Beaton conceded that
the Court
a quo
was wrong in holding that because the
commissioner had accepted the evidence of Liebenberg and Willemse
about the events of the
Saturday she necessarily had to accept the
evidence of these witnesses about the Monday events.
Analysis and evaluation
[27]
The commissioner issued the award on 16 November 2006 and the legal
position at that time in relation to reinstatement was
as interpreted
by this Court in
Kroukam
v SA Airlink (Pty) Ltd,
6
namely,
that an order on arrear remuneration must be commensurate with the
limit on compensation,
7
namely,
in the amount equivalent to 12 months’ salary, until this
position was again changed (removing the limit) in terms
of the
Supreme Court of Appeal decision in
Republican
Press (Pty) Ltd v CEPPWAWU and Others.
8
There
was therefore, in my view, no misdirection on the part of the
commissioner in awarding 12 months’ remuneration, as it
seemsthat is what she intended, subject to a sustainable finding that
the dismissal was substantively unfair.That being the case,
it
follows that Mr Hulley’s concession on this point was,
therefore, not warranted.
[28]
It is trite that the test applicable in determining whether or not an
arbitration award should pass muster of judicial review
under section
145 of the LRA is that of the constitutional standard of
reasonableness found in the question: ‘Is the decision
made by
the commissioner one which a reasonable decision-maker could not
reach?’
9
In
other words, the decision reached by a CCMA commissioner must fall
within the range of decisions that a reasonable decision-maker
could
make. As to what will constitute a reasonable decision, will depend
on the circumstances of each case.
10
A
commissioner is not given the power to consider afresh what he or she
would have done, but simply whether or not the dismissal
was fair.
Further, that in arriving at the appropriate decision the
commissioner is required to consider all relevant circumstances
and
not necessarily to defer to the decision reached by the employer.
11
[29]
In
Fidelity
Cash Management Service v CCMA and Others
,
12
this
Court (per Zondo JP, as he then was) amplified the
Sidumo
test
as follows:
‘
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA commissioner,
the
court feels that it would have arrived at a different decision or
finding to that reached by the commissioner. When that happens,
the
court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal is in terms of
the Act
primarily given to the commissioner and that the system would never
work if the court would interfere with every decision
or arbitration
award of the CCMA simply because it, that is the court, would have
dealt with the matter differently…
…
.
The
test enunciated by the Constitutional Court in
Sidumo
for
determining whether a decision or arbitration award of a CCMA
commissioner is reasonable is a stringent test that will ensure
that
such awards are not lightly interfered with. It will ensure that,
more than before, and in line with the objectives of the
Act and
particularly the primary objective of the effective resolution of
disputes, awards of the CCMA will be final and binding
as long as it
cannot be said that such a decision or award is one that a reasonable
decision-maker could not have made in the circumstances
of the case.
It will not be often that an arbitration award is found to be one
which a reasonable decision-maker could not have
made but I also do
not think that it will be rare that an arbitration award of the CCMA
is found to be one that a reasonable decision-maker
could not, in all
the circumstances, have reached.’
[30]
The remarks by the Court
a
quo
to
the effect that since the commissioner had accepted the evidence of
Liebenberg and Willemse in relation to the events of the
Saturday
there was then no justification for the commissioner to have rejected
their evidence in relation to the Monday events,
were, with respect
to the learned Acting Judge, obviously a misdirection on her part. Mr
Beaton correctly conceded this point.
It did not follow that a court
or tribunal is obliged to accept everything that an otherwise
credible and reliable witness has
to say, especially where the
witness testifies about separate and different issues. However, I am
satisfied that the Court
a
quo
was
otherwise correct in its general assessment of the review application
and, in particular, the conclusion which it reached.
[31]
Mr Hulley contended that when the commissioner rejected Selemela’s
version as being improbable she was referring only
to the evidence of
Liebenberg and Willemse pertaining to the issue of dust in the
workshop, Selemela’s failure to use the
back doorin that
situation and his leaving the workstation without permission. Counsel
submitted that the commissioner’s
finding in that regard did
not extend to her evaluation of the two witnesses’ evidence
pertaining to the insubordination
charge. I do not agree. If that was
the case it would, in my view, amount to interpreting the award too
narrowly and, indeed, selectively
and in a self-serving manner. The
award may not have been elegantly or articulately phrased, but this
is not uncommon with arbitration
awards. They are not ordinarily
expected to reflect a high standard of legal skill and meticulousness
as in court judgments
13
.
[32] In my view, the commissioner’s
analysis of the issues makes it clear that she first dealt with the
Saturday incidents
and then passed on to those that occurred on the
Monday. When she was assessing the evidence in relation to the
Saturday events,
(on the basis of the evidence of Liebenberg and
Willemse on the one hand, and Selemela, on the other), she was
dealing with the
evidence in its entirely aspresented to her,
including the evidence pertaining to the allegation of
insubordination on the part
of Selemela. It was after her evaluation
of all this evidence that she reached the conclusion that Selemela’s
version could
not stand as she found it improbable. To my
understanding, this probability finding was not restricted to the
narrow issuesas Mr
Hulley suggested.
[33] I am satisfied that the
commissioner did accept that Selemela was guilty of insubordination.
After she concluded her findings
on probabilities, she said this:
“The question is whether the above misconduct of
insubordination was so serious to warrant
a sanction of dismissal.”I
do not see what other insubordination the commissioner could have
meant if it was not about Selemela’s
failure to carry out
Liebenberg’s instruction to clean up the workshop. Absence from
a workstation without permission may
be an act of misconduct but it
does not
per se
constitute insubordination, at least certainly
not on the facts of this case.Strangely also, whilst the commissioner
acknowledged
that Selemela was guilty of insubordination she did not
propose what the suitable and appropriate sanction should have
been,or
be, imposed on him, in lieu of dismissal.
[34]
It was common cause, on the papers,that Selemela had two relevant
previous convictions involving the following acts of misconduct,
both
of which were committed on the same day:
14
‘
1.
Disobeying of a lawful instruction (whereby he didn’t commence
with the task between 10H30 – 11H30 on 27/1/05).
2.
Leaving the workplace without permission on 27/1/05.’
[35] The two documents appearing at
pages 249 (the first document) and 287 (the second document) were
admittedly handed in at the
arbitration hearing by Selemela and the
respondent, respectively. Both documents relate to the same two
previous convictions as
referred to above. However, their
characterisations vary in some significant respects, as shown
hereunder:
First document
Second
document
Written warning 1. Final written
warning
Issued on 16/2/2005 2. Issued on
22/2/2005
To expire 16/5/2005 3. Valid for 182
days
(Therefore, valid for 3 months)
[36]
Whilst the commissioner appeared to have acceptedthe respondent’s
version that Selemela was, on 22 February 2005, issued
with a final
written warning valid for 182 days, she nevertheless found that the
warning had expired when Selemela committed the
current
transgressions on 9 July 2005. However, a simple arithmetical
calculation shows that the commissioner was clearly wrong.
The Court
a
quo
acceptedthe
commissioner’s finding that the final written warning was valid
for 182 days but held, correctly so, that the
warning “had
clearly not lapsed”.In the circumstances, there is no reason,
in my view, why it should not be accepted
that, indeed, the appellant
had a final written warning issued against him on 22 February 2005
and which was valid for 182 days.
[37]
Remarkably though, it was Selemela who seemed to have raised the
issue of it being the second time that he was involved in
a similar
misdemeanour. He said the following:
15
‘
And
they said to me, you heard what the witness (Willemse) said. And I
said to them, this thing is now happening for the second
time.’
[38]
Indeed, an employee’s written warnings, even after they have
lapsed, may be taken into account, in determining the fairness
of his
or her dismissal where the employee concerned is found to have a
propensity to commit acts of misconduct at convenient intervals
falling outside the period of applicability of the written warnings.
In
Gcwensha
v CCMA and Others,
16
this
Court stated as follows:
17
‘
An
employer is always entitled to take into account the cumulative
effect of these acts of negligence, inefficiency and/or misconduct.
To hold otherwise would be to open an employer to the duty to
continue employing a worker who regularly commits a series of
transgressions
at suitable intervals, falling outside the periods of
applicability of final written warnings. An employee’s duties
include
the careful execution of his work. An employee who
continuously and repeatedly breaches such a duty is not carrying out
his obligations
in terms of his employment contract and can be
dismissed in appropriate circumstances.’
[39] In other words, even if it were
to be accepted that Selemela’s previous written warning, final
or not, had lapsed that
fact should not have relieved the
commissionerfrom taking the written warning into account in
determining whether or not the dismissal
was fair, particularly
bearing in mind that the previous transgressions were only five
months old and, more importantly, startlingly
similar to the present
misconducts, namely, failing to obey a lawful instruction and leaving
the workplace without permission.
Such persistent insubordinate
behavioural conduct could justifiably not be tolerated by any
employer.In my view, the commissioner’s
finding that the
insubordination committed by Selemela(on 9 July 2005) was not
deliberate and not serious, is simply unreasonable
and unsustainable.
It is not a decision which a reasonable decision-maker could reach on
the evidence presented. Selemela’s
insubordination ofLiebenberg
was sufficiently serious and deliberate and it, therefore,
constituted a gross misconduct, justifying
his dismissal. In other
words, even if he was not guilty of the Monday misconduct it would,
in the circumstances, not make any
difference on the question of an
appropriate sanction.
[40] However, since the issue of the
Monday events was argued, I propose to deal briefly with it as well.
Selemela admits that he
confronted Willemse and asked him ‘[a]re
you a spy or not?’but denies saying he would come back to the
workshop and
shoot him. According to Selemela, he only used the word
‘shoot’ when he was talking to his Black colleagues in
SeSotho
andin a completely different context, namely, meaning that he
was going to take a photo of the white colleagues eating or sleeping
during working hours and show it to the foreman.
[41] In my view, it is highly
improbable that Selemela used the word ‘shoot’ in the
context that he alleges. Indeed,
it is unclear how, whilst speaking
SeSotho, he would have used the word ‘shoot’, which is an
English word,to refer
to taking a photo. What is clear though is that
when he confronted Willemse with the spy accusation, he was angry, if
not very
angry, and it was most probably during that heat of the
moment that he threatened Willemse as alleged. The inherent
probabilities
appear to favour that conclusion. However, as stated
already, a finding on the alleged Monday misconduct is really not
necessary,
given the overwhelming evidence countenancing the
insubordination conviction, which alone is sufficient to justify the
fairness
of Selemela’s dismissal.
[42] In my judgment, the
commissioner’s award, to the extent that it declared Selemela’s
dismissal substantively unfair,
does not constitute a decision which
a reasonable decision-maker could reach. The order of the Court
a
quo
should therefore stand, save that in paragraph 3 thereof the
words ‘procedurally and’ should be deleted, on the basis
that the procedural fairness of the dismissal was not in issue.
[43] Both counsel submitted that,
whatever the outcome, neither party would ask for costs of the
appeal.That, to my mind, is a fair
and equitable proposition.
The Order
[44] In the result, the following
order is made:
The appeal is dismissed.
The order of the Court
a quo
is upheld, save that the words ‘procedurally and’
appearing in paragraph 3 of the order, are deleted.
There is no order as to costs of the
appeal.
______________________
NDLOVU, JA
Judge of the Labour Appeal Court
WAGLAY,
DJP and MUSI, AJA concur in the judgment of NDLOVU,JA
Appearances
:
For
the appellant: Adv GI Hulley
Instructed
by: KD Maimane Inc Attorneys, Johannesburg
For
the respondent: Adv RG Beaton SC
Instructed
by: Van Zyl Le Roux Inc, Pretoria
Application
heard:24 August 2012
Judgment
delivered:31 May 2013
1
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.
2
Act
66 of 1995.
3
Transcript
of arbitration proceedings at p134 of the indexed papers.
4
Transcript
of arbitration proceedings at p138 of the indexed papers.
5
Transcript
of arbitration proceedings at 183-4.
6
(2005)
26 ILJ 2153 (LAC).
7
In
terms of section 194(1) of the LRA.
8
(2007)
28 ILJ 2503 (SCA).
9
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28
ILJ 2405 (CC) at para 110.
10
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC).
11
Ibid
at para 76.
12
[2008]
3 BLLR 197
(LAC) at paras 98 and 100.
13
Compare:
Section 138(1) of the LRA which provides:
‘
(1)
The commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine
the
dispute
fairly and quickly, but must deal with the substantial merits of the
dispute
with the minimum of legal formalities.’
14
See
written warnings, at pages 249 and 287 of the indexed papers.
15
Transcript
of arbitration proceedings, at p182 lines 9-10 of the indexed
papers.
16
[2006]
3 BLLR 234
(LAC).
17
Id
at paras 24 read with para 32.