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[2016] ZALAC 52
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Sylvania Metals (Pty) Ltd v Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 (22 November 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA 83/2015
In the matter between:
SYLVANIA
METALs (PTY) LTD
Appellant
and
M
C MELLO N.O.
First Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
ESWUSA obo MOFFAT
MOSEHLE
Third Respondent
Heard:
15 September 2016
Delivered:
22 November 2016
Summary:
Employee dismissed for insubordination in his behaviour directed at
plant manager and breach of
company rule in undertaking valve repair
in the plant without authorisation. At the time of dismissal, the
employee had a final
written warning for insubordination which
remained in force. At arbitration, commissioner found the employee’s
dismissal
substantively unfair in that his behaviour constituted
insolence and not insubordination while finding that no policy
prevented
his repair of the valve without authorisation and the
employee was retrospectively reinstated. The Labour Court dismissed
the appellant’s
subsequent review application in that the
commissioner’s decision fell within the ambit of reasonableness
required. Appeal
upheld: Judgment of Labour Court set aside,
arbitration award reviewed, set aside and substituted with order that
dismissal was
substantively fair. No order as to costs.
Coram: Waglay JP, Molemela JA
et
Savage AJA
Judgment
SAVAGE AJA
Introduction
[1]
This
appeal is concerned with whether an employee’s verbal
altercation with his superior constituted insubordination of a
sufficiently serious nature to warrant his dismissal, in
circumstances in which a final written warning for insubordination
remained
in force against him.
[2]
The
first respondent, (the commissioner) found the
dismissal of the
employee, Mr Moffat Mosehle, substantively unfair and retrospectively
reinstated him into his employment with the
appellant, Sylvania
Metals (Pty) Ltd. The Labour Court (Molahlehi J) dismissed the
appellant’s review application with costs.
With leave of the
Court
a
quo,
the appellant now appeals against the judgment and orders of the
Labour Court.
[3]
At
the outset of the hearing, the appellant sought an order that the
appeal be reinstated in terms of Rule 5(17) of the Rules that
govern
proceedings in the Labour Appeal Court (‘the Rules’),
together with an application for condonation for the late
filing of
the notice of appeal and the appellant’s heads of argument. The
reinstatement of the appeal was sought on the basis
that the
appellant was unaware that its application for leave to appeal had
been granted with the result that the notice of appeal
was filed
late. The application for condonation for the late filing of the
heads of argument follows the appellant’s failure
to receive
the Registrar’s directive that required heads of argument to be
filed. Both applications were not opposed and
having regard to their
merits, the appeal was duly reinstated and the late filing of the
notice of appeal and heads of argument
was condoned.
Relevant background
[4]
The
appellant conducts business in the mining sector. The employee was
employed by the appellant from March 2009 as a mechanical
fitter. On
15 November 2010, the employee was dismissed for:
1.
Serious
breach of company rules and procedures, in that on 14 October 2010
[you]
worked
on Blower A without the required permit issued by the Shift Foreman;
and
2.
Gross
insubordination and insolence in that on 14 October 2010 during a
meeting held concerning the incident referred to
[above you]
walked
out.
[5]
At
the time of his dismissal, a final written warning for
insubordination valid for six months remained in force against the
employee.
[6]
Aggrieved
with his dismissal, the employee referred an unfair dismissal dispute
to the Commission for Conciliation, Mediation and
Arbitration (CCMA).
When the matter was not resolved at conciliation, the employee
referred the dispute to arbitration. At arbitration,
it was common
cause that the employee, together with an engineering assistant, had
undertaken the repair of a high-pressure valve
in the appellant’s
plant without a permit. While the repair was underway, the employee’s
supervisor looked on.
[7]
The
appellant’s plant manager, Mr Tshepo Malema, testified at the
arbitration hearing that a written permit was required before
repair
work was undertaken in the plant to ensure that risk was properly
assessed. He accepted however that no written policy existed
at the
time that the employee had undertaken the repair and that valve
repairs had been undertaken by the employee in the past
without a
permit. After the repair had been undertaken, Mr Malema called a
meeting at his office of “
all
the team members…to explain why they went to do the job
without having the permit
”.
He did so to find out what had happened given that a serious accident
had occurred on the mine a few days before. During
the meeting, the
employee asked what standard was used. Mr Malema indicated that when
he reiterated the company’s legal standards
the employee
engaged in an argument with him. The employee raised his voice,
arguing about the standards the plant manager used,
making reference
to the Mine Health and Safety Act and refusing to explain what had
happened. Mr Malema interjected to make his
point but the employee
stated that he was not working to the plant manager’s standards
and that he would only take instructions
in writing from the plant
manager from that point on. He then “
stormed
out
”
of the office leaving the meeting before it had concluded. Mr Malema
stated that the employee’s conduct showed that
he “
doesn’t
care…what I was telling him
”
and indicated that he was not willing to continue working with the
employee, who had a final written warning in force against
him at the
time of this incident.
[8]
The
employee’s evidence was that he called an engineering assistant
when he found a valve leaking and that he undertook the
repair of the
valve while communicating with the control room operator via two-way
radio. At the meeting in Mr Malema’s office,
he was asked why
he had worked on the machine without a permit. He disputed that a
permit was required to undertake the repair
and stated that Mr Malema
kept interrupting him, told him not to talk about the Mine Health and
Safety Act but about the company’s
rules and denied him a
chance to explain what had happened. As a result, he stood up and
left the meeting.
[9]
The
commissioner found that the appellant’s safety rules had not
been breached by the employee in that no policy was produced
by the
appellant to show that a permit was required to adjust a valve; there
was a recent change in the rule as to when permits
were required; and
the employee’s supervisor had not instructed him to stop
working without a permit, indicating that he
had found nothing wrong
with the employee’s conduct. The employee was found not to have
been grossly insubordinate in walking
out of a meeting with the plant
manager when a specific instruction had not been issued to him,
although walking out of a meeting
with the plant manager while he was
still talking was disrespectful and this amounted to misconduct. The
commissioner found that
without gross insolence dismissal was
unwarranted and the employee’s continued employment was not
intolerable. The employee’s
final written warning for gross
insubordination was found not to justify dismissal for insolence
since insolence and insubordination
were distinct offences, with the
commissioner finding that:
‘
The
applicant is only guilty of insolence, which is not serious enough to
render continued employment intolerable
.’
[10]
While
the
dismissal
of the employee was found to be substantively unfair, no sanction was
imposed for insolence. The commissioner retrospectively
reinstated
the employee into his position with the appellant on the terms and
conditions which prevailed prior to his dismissal.
Costs only in
respect of the postponement of the arbitration on 10 August 2011 were
awarded against the employee.
Judgment of the Labour Court
[11]
Although
in the judgment of the Labour Court it was stated initially that
there was no basis on which to interfere with the arbitration
award
“
except
for the issue of the relief
”
in that “
reinstatement
is, with due respect unreasonable
”,
the judgment concluded differently by finding that “
applying
the reasonable decision-maker test
”
there was no basis to interfere with the commissioner’s
decision.
[12]
The
Labour Court found that the commissioner’s decision that the
employee’s conduct was not grossly insubordinate and
his
dismissal unfair was not unreasonable, nor was the finding that he
had not breached a company safety rule. This was so given
that the
evidence was that the employee had previously undertaken a valve
repair without a permit; and although the employee had
misconducted
himself in leaving the meeting, he was not given an opportunity to
explain what had happened.
[13]
Turning
to sanction, the Court approached the matter on the basis that
dismissal does not automatically follow the existence of
a valid
final written warning but is a factor to consider in the application
of progressive discipline. The employee was not instructed
to remain
at the meeting, was not warned of the consequences of leaving the
meeting and there was no evidence that the trust relationship
had
broken down due to his conduct. This led the Labour Court to conclude
that, despite its earlier recordal that reinstatement
was
unreasonable, and in spite of the commissioner’s failure to
impose a sanction for insolence, in applying the reasonable
decision-maker test, there was no basis on which to interfere with
the arbitration award. The review application was accordingly
dismissed with costs.
Submissions of the parties
[14]
Mr
Posthuma contended for the appellant that the Labour Court had erred
in finding that the commissioner’s decision fell within
the
bounds of reasonableness required. The appellant took no issue with
the commissioner’s finding that the employee had
not breached a
workplace rule in failing to obtain a permit before undertaking the
valve repair given that the appellant’s
policy had recently
changed and no written rule existed at the time of the repair.
However, given the employee’s grossly
insubordinate behaviour,
it was contended for the appellant that the dismissal of the employee
was fair. This was so given that
the evidence showed that there was
no prospect of any working relationship between the employee and Mr
Malema as the plant manager;
the employee stated that he would fight
with anything that did not have the plant manager’s signature
on it and would only
comply with instructions which were in line with
his understanding of the Mine Health and Safety Act. Furthermore, the
employee
had admitted that he would do the same again if faced with
the same situation while accepting that the instruction given to him
at the meeting was not unlawful. Mr Malema had made it clear that he
would not work with the employee, who had limited years of
service
and was required to work with the plant manager as his superior.
[15]
Mr
Goldberg submitted for the employee that having regard to the
circumstances in which the misconduct occurred, the employee’s
insolence was not gross, was specific to the incident in question and
did not amount to insubordination, for which he had received
a final
written warning. There was no proof of continuous disrespect for Mr
Malema, who was in any event, not the employee’s
immediate
superior, and no reason as to why progressive discipline was not
appropriate when the employee had one and half years’
service.
It was relevant that the employee was trying to explain what had
happened when Mr Malema cut him short and progressive
discipline
remained possible when the employee was well trained, with expertise,
was a shop steward with a good relationship with
his colleagues and
willing to make amends.
Evaluation
[16]
The
contract of employment between employer and employee is one to be
interpreted subject to the constitutional right to fair labour
practices and the national legislation which gives effect to that
right.
[1]
Our courts have traditionally viewed respect and obedience as implied
duties of an employee under the employment contract,
[2]
with the outdated
reliance on obedience intended to refer to the employee’s duty
to adhere to the lawful and reasonable instructions
of the employer.
Any repudiation of such duties constitutes a fundamental and
calculated breach of the employer’s lawful
authority
[3]
given that an appropriate degree of mutual trust, respect and
courtesy is to be shown by both employer and employee towards the
other
in
the context of an employment relationship.
[4]
[17]
Insubordination
in the workplace context generally refers to the disregard of an
employer’s authority or lawful and reasonable
instructions.
[5]
It occurs when an employee refuses to accept the authority of a
person in a position of authority over him or her and, as such,
is
misconduct because it assumes a calculated breach by the employee of
the obligation to adhere to and comply with the employer’s
lawful authority.
[6]
It includes a wilful and serious refusal by an employee to adhere to
a lawful and reasonable instruction of the employer, as well
as
conduct which poses a deliberate and serious challenge to the
employer’s authority even where an instruction has not been
given.
[7]
[18]
This
Court in
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others,
[8]
discussed the “
fine
line”
between
insubordination
and insolence, with the latter being
conduct
that is offensive, disrespectful in speech or behaviour, impudent,
cheeky, rude, insulting or contemptuous. While the Court
noted that
i
nsolence
may become insubordination where there is an outright challenge to
the employer’s authority,
“
acts
of mere insolence and insubordination do not justify dismissal unless
they are serious and wilful
”.
[9]
The sanction of dismissal is reserved for instances of gross
insolence and gross insubordination
[10]
or the
wilful
flouting of the instructions of the employer.
[11]
[19]
The
evidence before the commissioner showed that during the course of the
conflictual meeting held with the employee, he indicated
that he was
unwilling to work with Mr Malema as his senior in the manner of a
normal working relationship. He adopted an argumentative
and hostile
approach to Mr Malema during the meeting, refused to answer questions
put to him, indicated that he would not work
according to Mr Malema’s
standards and that he required his instructions to him to be put in
writing in future. Thereafter,
the employee left the meeting before
it was concluded and in evidence was unrepentant when he stated that
he would behave in the
same manner in the future were the situation
to arise again. His wilful conduct in this regard was to be
considered against Mr
Malema’s evidence that given the
employee’s behaviour he was not prepared to work with the
employee in future.
[20]
The
evidence before the commissioner showed that the employee’s
behaviour went well beyond a reasonable or legitimate difference
of
opinion between employer and employee. The employee was aggressive,
rude and disrespectful in his speech and behaviour towards
Mr Malema
during the course of the meeting. His refusal to adhere to a
reasonable instruction given to him to explain the circumstances
of
the valve repair was both wilful and serious. His insistence that all
future instructions to him to be signed by the plant manager,
that he
would not work according to Mr Malema’s standards and his
decision to leave the meeting before it had concluded posed
a
deliberate and serious challenge to the employer’s authority.
His conduct indicated a refusal to respect the authority
of Mr Malema
as his superior. It also indicated an approach which was impractical
insofar as it sought to require Mr Malema to
place all instructions
to him in writing. The employee’s chosen course of behaviour
constituted serious misconduct. It was
not merely insolent but also
insubordinate in the refusal to respect and adhere to the line of
authority in the workplace.
[21]
For
these reasons, the commissioner’s finding is unreasonable and
unsustainable that, while the employee had committed misconduct
this
was not sufficiently serious to constitute gross insubordination or
gross insolence. The employee was grossly insubordinate
in his
behaviour directed at Mr Malema and his conduct was sufficiently
serious and deliberate to amount to a gross misconduct.
[12]
[22]
In
Sidumo
and Another v
Rustenburg Platinum Mines Ltd and Others,
[13]
it
was emphasised that:
‘
In
terms of the LRA, a commissioner has to determine whether a dismissal
is fair or not. A commissioner is not given the power to
consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving at a decision
a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must consider all relevant
circumstances.’
[14]
[23]
The
relevant circumstances in this matter include the nature of the
misconduct; the fact that a final written warning remained in
force
against the employee for insubordination; that he is the sole
breadwinner with five dependents; he was 42 years old at the
date of
commission of the offence; Mr Malema’s testimony that he was
unwilling to continue to work with the employee; the
employee’s
limited service with the appellant and the employee’s lack of
remorse shown for his misconduct.
[24]
By
its nature, the employee’s misconduct had a serious impact on
the employment relationship between the parties. It posed
an
appreciable operational risk to the appellant in the conduct of its
business. This was so given the employee’s clear refusal
to
accept the authority and reasonable instructions of his superior, his
indication that he would only accept written instructions
in the
future and his unwarranted disrespect shown to his superior in
leaving the meeting prematurely.
[25]
The
emphasis placed by the LRA on progressive discipline does not assist
the employee. In
Transnet
Freight Rail v Transnet Bargaining Council and others,
[15]
it was stated that:
‘
An
employee on a final warning for the same offence will normally be
regarded as irredeemable, and dismissal will be justified if
the
employee commits a similar offence during the currency of the
warning… Usually, the presence of a valid final written
warning at the time the commission of the same or similar form of
misconduct should be properly interpreted as aggravating in nature.
The principles of progressive discipline require such a re-offending
employee usually to be considered irredeemable… I accept
that
the purpose of the warning is to impress upon the employee
seriousness of his actions as well as the possible future
consequences
which might ensue if he misbehaves again
….’
[16]
.
[26]
As
this Court recognised in
Gcwensha
v CCMA and Others
[17]
“
(
a)n
employee who continuously and repeatedly breaches … his
obligations in terms of his employment contract …can be
dismissed in appropriate circumstances.”
[18]
This
is so in that, as in
Timothy
v Nampak Corrugated Containers (Pty) Ltd
:
[19]
‘…
Progressive
sanctions were designed to bring the employee back into the fold, so
as to ensure, by virtue of the particular sanction,
that faced with
the same situation again, an employee would resist the commission of
the wrongdoing upon which act the sanction
was imposed. The idea of a
progressive sanction is to ensure that an employee can be
reintegrated into the embrace of the employers
organisation, in
circumstances where the employment relationship can be restored to
that which pertains prior to the misconduct…’
[20]
.
[27]
The
Labour Court in
Theewaterskloof
Municipality v SALGBC and Others
[21]
recognised that the general principle is whether the conduct of the
employee is incompatible with the trust and confidence necessary
for
the continuation of the employment relationship; and that where an
employee has been afforded an opportunity to correct his
or her
behaviour and nevertheless persists in taking a confrontational
course “
there
can be very little room for the notion of corrective discipline
”.
[22]
[28]
The
employee’s behaviour constituted serious misconduct. It had a
serious impact on the employment relationship in circumstances
in
which the employee had been given the opportunity, but had failed, to
remedy his behaviour while on final written warning. The
circumstances under which that final written warning had arisen are
of direct relevance since it was imposed following the employee’s
failure to comply with a lawful instruction issued to him by his
superior.
[29]
I am
satisfied in the circumstances of this matter that the sanction of
dismissal was fair. There is no merit in the contention
that the
employee’s conduct did not display disrespect of Mr Malema when
the facts clearly show otherwise, even in spite
of Mr Malema not
being the employee’s immediate supervisor but the plant
manager. The employee refused to accept or respect
the authority of
his superior and attempted to direct the manner in which he would
accept future work instructions. He displayed
a lack of remorse for
his behaviour, which he had failed to correct even while on a final
written warning. Having regard to all
of these relevant
circumstances, and in spite of mitigating personal considerations, I
am satisfied that a continued working relationship
was intolerable
and that the dismissal of the employee was fair. The Labour Court
erred, in my mind, in finding differently.
[30]
It
follows that the appeal must succeed. An order of costs would be
neither just nor fair in the circumstances of this matter.
Order
[31]
In
the result the following order is made:
1.
The
appeal succeeds with no order as to costs.
2.
The
order of the Court
a
quo
is set aside and replaced with the following order:
‘
(1)
The arbitration award issued by the
first respondent is reviewed and set aside; and replaced
with the
order that the dismissal of the applicant was substantively fair.
(2)
There is no order as to costs.’
___________________
Savage AJA
Waglay JP and Molemela JA agree.
APPEARANCES:
FOR THE APPELLANT:
Mr A J Posthuma
Instructed by
Snyman Attorneys
FOR THE THIRD RESPONDENT:
Mr A Goldberg
Goldberg Attorneys
[1]
Section 23 of the
Constitution.
[2]
Mqhayi v Van Leer SA
(Pty) Ltd
1984
(5) ILJ 179 (IC) at 182A-D, citing
London
Chronicle (Indicator Newspapers) Ltd
[1959] 2 All ER 285
at 287F and 288A.
[3]
Ibid
.
[4]
NUMSA obo Mkhwanazi v
Ellies Holdings (Pty) Ltd
(2012)
33 ILJ 516 (BCA);
Motor
Industry Staff Association and Another v Silverton Spraypaintes and
Panelbeaters (Pty) Ltd
(2013) 34 ILJ 1440 (LAC) at para 47.
[5]
National Union of
Public Service & Allied Workers obo Mani and Others v National
Lotteries Board
2014
(3) SA 544
(CC);
2014 (6) BCLR 663
(CC);
[2014] 7 BLLR 621
(CC);
(2014) 35 ILJ 1885 (CC) at para 57 (minority judgment of Froneman
J).
[6]
See
Grogan
Dismissal,
Discrimination and Unfair Labour Practices
2
ed (Juta & Co Ltd, Cape Town 2007) at 307.
[7]
Commercial Catering &
Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths
(Randburg)
(1989)
10 ILJ 311 (IC) at 314H-J.
[8]
(2015) 36 ILJ 1511 (L.
[9]
At
para 22.
[10]
At para 22.
[11]
National Trading Co v
Hiazo
(1994)
15 ILJ 1304 (LAC);
[1994]
12 BLLR 53
(LAC)
at 1308H-J.
[12]
See
National
Union of Mineworkers on behalf of Selemela v Northam Platinum Ltd
(2013) 34 ILJ 3118 (LAC) at para 39.
[13]
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC);
2008 (2) BCLR 158 (CC).
[14]
At
para 79.
[15]
(2011)
32 ILJ 1766 (LC).
[16]
At
paras 39-43.
[17]
(2006)
27 ILJ 927 (LAC).
[18]
At
para 24.
[19]
(2010)
31 ILJ
1844
(LAC).
[20]
At
1850A-C.
[21]
(2010)
31 ILJ 2475 (LC).
[22]
Theewaterskloof
(
supra
)
at para 37.