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[2016] ZALAC 47
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SAMWU and Others v Ethekwini Municipality and Others (DA5/13) [2016] ZALAC 47; [2016] 12 BLLR 1208 (LAC); (2017) 38 ILJ 158 (LAC) (2 September 2016)
\IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA5/13
In the matter between:
SAMWU
First
Appellant
(1
st
applicant in the Court a quo)
MKHUNGO
SB
Second Appellant
NTAKA
R
Third Appellant
(Further
applicants in the Court a quo)
and
ETHEKWINI MUNICIPALITY
First
Respondent
(3
rd
respondent in the Court a quo)
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
(1
st
respondent in the Court a quo)
DUBAZANE NONHLANHLA,
NO
Third Respondent
(2
nd
respondent in the Court a quo)
Delivered:
02
September 2016
Summary:
Dismissal: Gross insubordination – 2 shop stewards locking the
employer’s gate and threatening
not to open it unless certain
employees’ demand is met – Act amounting to sabotage of
employer’s operations and
constituting gross insubordination.
Dismissal justified.
Coram: Tlaletsi DJP,
Ndlovu JA
et
Makgoka AJA
JUDGMENT
NDLOVU JA
Introduction
[1] This is an appeal
against the judgment of the Labour Court (Gush J) handed down on 20
September 2012 whereby the Labour Court
dismissed, with no order as
to costs, the review application lodged by the appellants against the
arbitration award issued by the
third respondent (the arbitrator) on
19 April 2010, under the auspices of second respondent, the South
African Local Government
Bargaining Council (the ‘SALGBC’
or ‘bargaining council’). Leave to appeal was granted by
the Labour Court.
[2] In
terms of the arbitration award, the arbitrator found that the
dismissal of the second and third appellants, (Mr Solomon Bhekumuzi
Mkhungo and Mr Mthokozisi Rich Ntaka, respectively, or collectively
‘the employees’), was procedurally unfair but
substantively fair. The appeal was instituted by the South African
Municipal Workers’ Union (the union), in its capacity as
the
collective bargaining agent of the employees and on their behalf.
[1]
The factual matrix
[3] The employees were
formerly employed by the first respondent, the EThekwini Municipality
(the Municipality or the employer),
based at the South Western depot
in Chatsworth, Durban. They both served as shop stewards, affiliated
to the union. During 2008,
they were charged with misconduct,
involving gross insubordination, for which they were eventually
dismissed. This was after they
were found guilty by a disciplinary
enquiry, on one of the four counts with which they were charged.
[4] The alleged
misconduct against the employees was formulated in the charge sheet
as follows:
‘
COUNT 1
[You] illegally locked the gate of
South Western Depot, preventing the Electricity staff and contractors
from entering and leaving
the depot to perform their duties, i.e.
repairs to electrical infrastructure and construction of electrical
infrastructure. In
doing so, you disrupted the operation of the
employer, thereby contravening Clause 1.2.11.
COUNT 2
In view of the above you acted against
the Organisational Rights Agreement Clause 8.6.1 and 8.6.3 thereby
contravening Clause 1.1.
COUNT 3
In having locked the gates to the
depot, [you] were insolent, provocative and intimidatory towards your
manager, Mr N Dalton, thereby
contravening Clause 1.2.9.
COUNT 4
[You] refused to open the gates when
Mr Dalton told you to open the gates showing gross insubordination,
thereby contravening Clause
1.2.4.
[5] The disciplinary
enquiry found both employees not guilty on counts 1, 2 and 3; but
guilty on count 4. They were summarily dismissed
on 13 March 2009.
[6] The employees were
not satisfied with their dismissal and referred an unfair dismissal
dispute to the bargaining council. The
conciliation process failed
and the employees referred the dispute for arbitration. The
arbitration hearing proceeded before the
arbitrator.
The arbitration
[7] It was common cause
that on 15 July 2008 at about 08h30, the gate at the employer’s
workplace was locked by someone unauthorised
to do so. As a result
thereof, disruption was caused, as no one could enter or exit,
including the client contractors’ trucks.
Consequently, Mr Noel
Dalton, the employer’s maintenance manager, called a meeting
which included the employees, the administration
officer, Mr Denzel
Greeves and Mr Blackcat Mbongwa, another employee.
[8] At the meeting, Mr
Dalton pointed out that the unauthorised locking of the gate was
unacceptable and instructed Mr Mkhungo and
Mr Ntaka to go and open
it. According to Mr Dalton, they informed him that the gate would be
opened only if and when Mr Dalton
went to the lecture room to address
the general staff on the employees’ grievances, which included
a dispute over a particular
training programme and the appointment of
a certain employee to the position of a driver in preference over
another employee who
was put forward by the union as its preferred
candidate for the job. Mr Dalton further testified that he had
obtained information
from the security guard (Mr Ndlazi) that the
employees had in fact, earlier on, taken the gate keys from him and
locked the gate.
Thereupon Mr Dalton instructed the employees to open
the gate, which they refused to do. Even when Mr Dalton had gone to
the lecture
room to address the employees, they still did not open
the gate. It was opened some 2½ hours later. They defied Mr
Dalton
in front of other employees.
[9] Mr Dalton was aware
that it was not part of the employees’ line of duty to operate
the gate, but he said he issued the
said instruction based on Mr
Ndlazi’s report that the employees had locked the gate and that
the gate keys were still in
their possession. In Mr Dalton’s
view, the employees’ refusal to comply with his instruction
constituted gross insubordination.
Hence, they were charged with
misconduct involving gross insubordination, which was a dismissible
misconduct.
[10]
Mr Jabulani Jazzman Ndlazi, the employer’s security guard who
was on duty at the relevant time (the witness referred
to in Mr
Dalton’s evidence) also testified. According to him, on the day
in question, at about 08h30, he was approached by
the employees who
requested to have the gate keys, saying that “
there
was a discussion between themselves and the management. Then they
took the key away, they took the key inside the depot. After
some
time, I believe they finished their discussion and they came back and
gave me the key.”
[2]
[11]
Mr Ndlazi said that he acted that way because he had previously
inquired from Mr Greeves as to how he would have to react if
he was
confronted by a “strange or unusual” situation at the
gate whereby some employees asked him to give them the
keys. He said
Mr Greeves had advised him, saying, “
No,
you need to allow people to do whatever they want to do, as long as
you are safe”.
[3]
However,
under cross-examination, Mr Ndlazi made it clear that, in the present
instance, he was neither intimidated nor forced by
anyone to hand
over the keys to the employees. He also conceded that after the keys
were given back to him he then opened the gate
and the work
operations resumed normally.
[12] On the other hand,
the employees vehemently denied that they ever took the gate keys
from Mr Ndlazi and they further denied
that they locked the gate.
They averred that the gate was locked by their disgruntled colleagues
who were demanding to have a meeting
with Mr Dalton. Ms
Allen
,
who appeared for the union and employees, submitted that the
employees were all the time acting in their official capacity as
shop
stewards and on instructions given to them by the employees.
[13] The arbitrator found
that the employees were indeed guilty of gross insubordination and
that their dismissal was substantively
fair. On the procedural
fairness aspect, the arbitrator found that the Municipality had
appointed a presiding officer who was not
properly qualified, in
terms of the disciplinary procedure, to preside over the disciplinary
enquiry. On that basis, the arbitrator
found that the employees’
dismissal was procedurally unfair. Hence, she ordered the
Municipality to pay compensation to the
employees in varying amounts
as follows: R6289.20 for Mr Mkhungo and R15866.18 for Mr Ntaka; and
ancillary relief.
[14]
The employees were not satisfied with the award, as they primarily
sought reinstatement. Hence, they took the matter on review
to the
Labour Court in terms of section 145 of the Labour Relations Act (the
LRA).
[4]
The Labour Court
[15] The employees’
grounds of review are not clearly and tersely laid out as one would
have expected. However, gleaning from
their founding affidavit, I can
summarise their grounds of review as follows:
1.
That
the arbitrator’s award upholding the employees’ dismissal
was not warranted given the employees’ many years
of service
and clean disciplinary record;
2.
That
no evidence was led by the Municipality which justified the finding
by the arbitrator that the employees’ conduct constituted
insubordination, let alone gross insubordination.
[16] Having considered
the matter, the Labour Court concluded that the arbitration award was
not reviewable. The learned Review
Judge referred, with approval, to
the findings of the arbitrator:
‘
[30]
Based on this evidence, the second respondent [the arbitrator] in the
award reasonably concluded as
follows:
‘
The
question then is did the applicants open or get the gate opened on
receiving the instructions? Evidence led is that this did
not take
place but Dalton was merely informed that the gate would only be
opened if he attended the meeting with staff at the lecture
room. It
was also evidence that the gate was opened after Dalton said again at
the lecture room that the gate must be opened before
he commences the
meeting as he had then heeded staff call to the meeting. His
instruction to the applicants was still not carried
out when he
arrived at the lecture room.
Insubordination requires
either disobedience or challenge to authority which is deliberate and
serious. In this case I find that
the instruction was reasonable and
lawful. I also find that there was a challenge to authority which was
deliberate and serious.
I therefore in the circumstances conclude
that the respondent’s version that the applicants committed
gross insubordination
is more probable than that of the applicants
that they did not.’
And:
‘
[45]
The
[arbitrator] did take into account the fact that the [appellants]
were shop stewards. A shop steward is meant to lead by example
and
furthermore, he or she remains an employee and the employer is
entitled to expect conduct appropriate of that relationship.
It can
never be right therefore for a shop steward to advance as an excuse
the argument that what he or she did was done whilst
pursuing the
interests of its members.’
[17] Accordingly, the
Labour Court dismissed the employees’ review application, with
no order as to costs. It is that judgment
of the Labour Court against
which the appellants now appeal to this Court.
The appeal
[18] The appellants
criticised the Labour Court in upholding as reasonable the
arbitrator’s finding that the employees were,
indeed, guilty of
gross insubordination, on the evidence before her. They submitted
that the arbitrator’s failure to make
a distinction between
insubordination and gross insubordination constituted a misdirection
on her part and a gross irregularity
in the proceedings.
[19] Ms
Allen
argued that even if the employees were guilty of an act of
misconduct, it was not so serious as to amount to gross
insubordination.
According to her, their transgression should not
have attracted a sanction of dismissal.
[20]
For an arbitration award to be reviewed and set aside under section
145 of the LRA, it must be one falling within the range
of decisions,
which a reasonable decision-maker could not have made, given the
evidentiary material presented to the arbitrator
or commissioner, as
the case may be.
[5]
The
question to be asked is whether, on the evidentiary material
presented to the arbitrator, the decision of the arbitrator, as
evidenced in the award, can be justified.
[6]
The
Supreme Court of Appeal, in
Herholdt
v Nedbank Bank
(COSATU as
amicus
curiae
)
[7]
restated
the
Sidumo
test in the following terms:
‘
[W]hile the
evidence must necessarily be scrutinised to determine whether the
outcome was reasonable, the reviewing court must always
be alert to
remind itself that it must avoid “judicial overzealousness in
setting aside administrative decisions that do
not coincide with the
judge’s own opinions”. ...A result will only be
unreasonable if it is one that a reasonable arbitrator
could not
reach on all the material that was before the arbitrator. Material
errors of fact as well as the weight and relevance
to be attached to
particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only of any consequence
if their
effect is to render the outcome unreasonable.’
[8]
[Footnote omitted]
[21]
In
casu
the employment and working relationship between employer and
employees is governed,
inter
alia
,
by a collective agreement known as the Organisational Rights
Collective Agreement (the collective agreement),
[9]
which includes sections on ‘Disciplinary Procedure’
[10]
and ‘Conduct and Sanctions’
[11]
.
To the extent relevant for the present purpose, some of the
provisions of the collective agreement are the following:
Shop
Stewards’ Obligations
[12]
‘
8.6.1
Shop stewards shall do everything reasonably necessary to ensure
adherence to agreements, procedures, terms and
conditions of
employment, regulations and safety rules applicable to the employer.
8.6.2 ….
8.6.3 Except as
otherwise provided for in this agreement, or any other agreement
between the parties, the shop
stewards will be subject to the same
rules, regulations and other conditions of employment as other
employees of the employer.’
Conduct
and Sanctions
[13]
In
particular, the employee should “
obey
all lawful and reasonable instructions given by a person having the
authority to do so.”
[14]
Sanctions
for Misconduct
[15]
It is provided that as a
guideline, an employee can be summarily dismissed, despite being a
first offender, on conviction of any
of the following misconduct
charges:
‘
2.7.7
gross
insubordination
;
….
2.7.10 any other act of
misconduct which would constitute just cause for
dismissal.'
[22] In the decision of
this Court in
Motor
Industry Staff Association and Another v Silverton Spraypainters and
Panelbeaters and Others,
[16]
the distinction between insubordination and gross insubordination was
restated:
‘
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,
deliberate and public, a sanction of dismissal would normally be
justified.’
[17]
[23] It was common cause
that at the meeting called by Mr Dalton in his office, the employees
made it clear to him that the gates
would only be opened if Mr Dalton
went to the lecture room to address the staff on their grievances. It
was not in dispute that
ordinarily the opening and closing the gate
at the workplace was not part of the employees’ line of duty.
Mr Dalton was clearly
aware of that fact. However, Mr Dalton gave the
instruction he did to the employees on the basis of the information
that Mr Dalton
had received from Mr Ndlazi, to the effect that the
gate keys were taken from him by the employees. Mr Ndlazi confirmed
this position
in his evidence at the disciplinary enquiry and at the
arbitration hearing.
[24] Significantly, when
Mr Dalton confronted the employees about them allegedly locking the
gate, they did not immediately deny
having locked the gate. Instead,
they told Mr Dalton that the gate would be opened after he had gone
to address the staff at the
lecture room. Even when he arrived at the
lecture room, the gate was still not opened. It was only after he had
finished addressing
the staff that the employees gave the keys back
to Mr Ndlazi and the gate was opened.
[25] Whilst I am fully
convinced that the employees did take the gate keys from Mr Ndlazi,
his evidence is not without criticism.
He was the security officer
whose duty was to open and close the gate when required. This was
corollary to his responsibility to
check on the people and vehicles
entering and exiting the premises. In my view, it constituted a
complete and gross dereliction
of duty on Mr Ndlazi’s part to
have simply given the gate keys to the employees under the
circumstances that he did, especially
without any threat or
intimidation exerted on him by the employees or someone else, as it
is clear from his evidence at the disciplinary
enquiry. His conduct
in this regard was, in my view, grossly irresponsible and could have
warranted a sanction. As to what motive
was behind Mr Ndlazi’s
irresponsible action, would be speculative and is, after all,
irrelevant for the purpose of this judgment.
[26] Be that as it may,
the probabilities strongly favour the conclusion that the employees
took the gate keys from Mr Ndlazi and
locked the gate, or cause it to
be locked by someone else at their instance. In my view, whether they
took the keys by force or
otherwise is immaterial and irrelevant.
[27]
It would appear from their actions that the employees laboured under
a serious misconception that being in the position of
shop stewards,
as they were, gave them the power and latitude to domineer and bully
the management and as they pleased, with impunity.
Being affiliated
to organised labour does not detract from the fact that employees
still remain subordinate to their employers
and to obey and comply
with lawful and reasonable instructions given by the employers. In
the present instance, the employees ought
to have been aware and
mindful of their responsibilities and limitations in the workplace,
in their capacities as shop stewards.
The collective agreement made
it clear,
inter
alia
,
that: “
Except
as otherwise provided for in this agreement, or any other agreement
between the parties,
the
shop stewards will be subject to the same rules, regulations and
other conditions of employment as other employees of the
employer.”
[18]
One
of these is that “
an
employee…should obey all lawful and reasonable instructions
given by a person having authority to do so”
.
[19]
(Emphasised)
[28] It was part of the
employer’s essential operational requirements that the gate be
opened’ and thus the instruction
issued by Mr Dalton for the
gate to be opened was a lawful instruction. Further, the instruction
was a reasonable one - on the
basis that Mr Dalton had credible
information received from Mr Ndlazi that the employees had taken the
gate keys; and the fact
that the employees, when confronted about the
matter by Mr Dalton, they did not expressly deny having taken the
keys from Mr Ndlazi,
but they simply told Mr Dalton that the gate
would be opened only after Mr Dalton had addressed the staff on their
grievances.
[29] For a period of some
2½ hours, the employer’s productive operations had come
to a standstill, having been sabotaged
by the employees by their
actions. They had no legal or moral justification to conduct
themselves in that manner. They deliberately
and maliciously defied a
lawful and reasonable instruction given to them by Mr Dalton, their
maintenance manager, who was authorised
to give such instruction to
them. In the circumstances, I am inclined to hold that the finding of
the arbitrator, that the employees
committed gross insubordination by
refusing to comply with Mr Dalton’s lawful and reasonable
instruction, was a reasonable
finding. Their dismissal was,
therefore, justified.
[30]
The submission made on behalf of the appellants that the arbitrator
did not take into account the employees’ long service
with the
Municipality is factually incorrect. The arbitrator dealt with the
issue in clear and unambiguous terms:
[20]
‘
5.15
In determining whether dismissal is appropriate, I have taken into
account the applicants’ length of
service which is not less
than 20 years in respect of the first applicant and not less than 8
years in respect of the second applicant
and the fact that they had
clean disciplinary records. The respondent led evidence relating to
expired warnings of unrelated offences
concerning the second
applicant.’
[31] In conclusion, I am
satisfied that the arbitrator’s award does not constitute a
decision which a reasonable decision-maker
could not have reached, on
the evidence presented to the arbitrator. The appeal must therefore
fail.
[32] In the result, the
following order is made:
The
appeal is dismissed, with no order as to costs.
______________________
Ndlovu JA
Tlaletsi
DJP and Makgoka AJA concur in the judgment of Ndlovu JA
APPEARANCES
For the
appellants:
Ms C Allen
Instructed
by Tomlinson Mnguni James Attorneys
For the 1st
respondent: Mr V Naidu
Instructed
by Hughes-Madondo Inc
[1]
Section 200 of the
LRA.
[2]
Arbitration
record, vol 6, p557 lines 18-24.
[3]
Arbitration
record, vol 6, p583 line 20 and p584 line 12.
[4]
Act 66 of 1995.
[5]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC) at para 110.
[6]
Bester
v
Astral
Operations Ltd and Others
[2011]
3 BLLR 129
(LAC) at para 18;
SAMWU
v SALGBC
[2012] 4 BLLR 334
(LAC) at para 11.
[7]
2013 (6) SA 224
(SCA).
[8]
At
paras 13 and 25.
See
also
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at paras 14 and 16.
[9]
Collective
agreement, at p78-105.
[10]
Collective
agreement, vol 2 at p106-125.
[11]
Collective
agreement, vol 2 at p126-129.
[12]
Collective
agreement, vol 2 at p88.
[13]
Collective
agreement, vol 2 at 126.
[14]
Collective
agreement, vol 2 clause 1.2.4).
[15]
Collective
agreement, vol 2 at p127.
[16]
(2013)
34 ILJ 1440 (LAC); [2014] JOL 31995 (LAC).
[17]
At para 31.
[18]
Clause 8.6.3 of
the collective agreement, see above.
[19]
Clause 1.2.4 of
the collective agreement (Conduct and Sanctions), see above.
[20]
Arbitration award
para 5.15, at p48 vol 1 of the record.