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[2017] ZALAC 77
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National Union of Metalworkers of South Africa (NUMSA) and Others v Blue Pump on Union (Pty) Ltd and Others (PA1/2017) [2017] ZALAC 77 (30 November 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Case no: PA1/2017
In the matter between:
NATIONAL UNION OF METALWORKERS OF
SOUTH
AFRICA
(NUMSA)
First Appellant
ZODWA
MAKHENTE
Second Appellant
PUMEZA
ROJI
Third Appellant
and
BLUE
PUMP ON UNION (PTY)
LTD
First Respondent
MOTOR
INDUSTRY BARGAINING COUNCIL (DRC)
Second Respondent
NALEDI
BISIWE
Third Respondent
Heard:
12 November 2017
Delivered:
30 November 2017
Summary:
The appellant employees were dismissed for insubordination in
refusing to comply with a lawful
and reasonable instruction of the
employer to clean a forecourt driveway. At arbitration, the
dismissals were found unfair in that
the employer failed to prove
that the instructed task could reasonably be undertaken. The Labour
Court found that the instruction
given was reasonable and that the
employees had refused to comply with on the basis that it was
unreasonable. The arbitration award
was set aside on review, with the
dismissals were found to be substantively fair. On appeal: judgment
of the Labour Court upheld.
Dismissals found substantively fair.
Appeal dismissed with costs.
Coram:
Coppin JA, Sutherland JA and Savage AJA
JUDGMENT
SAVAGE AJA
Introduction
[1]
This
is an appeal, with the leave of the Labour Court (Lagrange J),
against the review and setting aside of the award of the third
respondent, an arbitrator of the second respondent, the Motor
Industry Bargaining Council, in which the dismissal of the appellant
employees was found to be both procedurally and substantively fair.
[2]
The
second appellant, Ms Zodwa Makhente, and the third appellant, Ms
Pumeza Roji (the employees), were employed at a car wash owned
by the
second respondent, Blue Pump On Union (Pty) Ltd (the employer). After
the car wash closed down at the end of October 2011,
as an
alternative to retrenchment, the employees were re-assigned to work
as cleaners at the forecourt area of the employer’s
filling
station. On 1 November 2011, the employees were issued with safety
clothing and a spray bottle containing cleaning material
and
instructed to clean the forecourt driveway. After they failed to
carry out the instruction, the employees were warned that
their
conduct was dismissible and they were given time to consult their
union. Following their return from doing so, the employees
were
issued with final written warnings the same day. They were told to go
home and report for their next shift. On their return
to work, the
same instruction was given to both employees. Once again, the
employees did not perform the cleaning task given.
[3]
At
the ensuing disciplinary hearing, the employees contended that the
task which was the subject of the instruction given to them
was not
part of their job description. This defence was rejected and the
employees were found to had failed or refused to obey
a reasonable
and lawful request by management. On 10 November 2011, the employees
were dismissed.
Arbitration award
[4]
Aggrieved
with their dismissals, the employees, assisted by the National Union
of Metalworkers of South Africa, the first appellant,
referred an
unfair dismissal dispute to the bargaining council. The arbitrator
found that the employees were obliged to perform
the work as
instructed, that the instruction issued was clearly understood, that
the employees attempted the work but that –
‘
they
complained that it was difficult and not do-able. This was not
reflective of workers who were defiant and refusing to carry
out an
instruction. This could have been due to misunderstanding of how the
task was to be performed and what needed to be done
to make it
do-able.’
[5]
The
employer was found to have “
owed
it to himself and the employees to ensure that they are ‘shown
the ropes’ in their new assignment”
to
determine if the employees were defiant or ignorant of what needed to
be done:
‘
All
it would have taken was for a supervisor to walk out of the office
and go with the employees to inspect and investigate their
challenges
with the given assignment. That inspection would have sorted out
whether the employees’ claims were based on ignorance
of what
was expected of them or defiance to carry out the task as required.’
[6]
Since
the employer had failed to discharge the
onus
to prove that the employees refused to carry out a work instruction,
the dismissal of the employees was found to have been unfair.
With
reinstatement the primary remedy under the Labour Relations Act 66 of
1995 (the LRA), the employees were retrospectively reinstated
into
their employment with the employer.
Judgment of the Labour Court
[7]
On
review, the Labour Court found that the instruction given to the
employees was clear and understood. However, it was found that
the
arbitrator had erroneously concluded that the employees’ case
had been that the work was “
not
do-able
”,
a phrase coined by the arbitrator, when their evidence was that the
work was “
hard
’,
‘
too
hard
’,
“
difficult
’
or ‘
too
difficult
’,
that it was not easy for them as females to do and that they should
have been provided with a waterjet instead of protective
clothing,
chemicals and scrubbing brushes. Since the arbitrator failed to
construe the employees’ evidence in the context
of it not
having been properly tested with the employer’s witnesses that
the work was not possible to do, the Labour Court
found that this led
the arbitrator “
to
the mistaken inference that it was common cause the workers had
consistently said the work could not be done”
.
Since the work fell within the duties of the employees, it was
prima
facie
reasonable to expect the employees to perform the work unless it was
practically impossible. If the employees wished to rely on
the
practical impossibility of performing the work as the basis for
arguing that the instruction was unreasonable, it was found
that they
needed to rebut the
prima
facie
case that the work was not difficult to perform. The Labour Court
concluded that:
‘
In
the circumstances, I am satisfied that the arbitrator misconstrued
the evidence in an important aspect in inferring it was common
cause
the employees had maintained the work could not be done. As a result
of this, it seems [the arbitrator] failed to appreciate
that, if all
the evidence was considered, she could not reasonably infer that it
could not be done and that therefore the refusal
to perform it was
not wilful. Consequently, her finding that the employer failed to
prove that the [employees] had failed to carry
out a work instruction
was not one that a reasonable arbitrator could have come to and must
be set aside.
’
[8]
As to
sanction, the Labour Court approached the issue on the basis that the
final written warning which had been issued against
the employees was
part of the same events that led to their dismissal. That warning
only served to aggravate the situation although
the employer “
tried
to get the [employees] to consider their course of conduct and get
advice
.”
Yet, the employees –
‘…
remained
obdurate and even after getting the warning did not alter their
response when the instruction was repeated. They were not
prepared to
do the work assigned and their solution was to persist in asking the
employer to provide them with alternative employment,
in a situation
in which they had recently escaped retrenchment.’
[9]
The
Court, therefore, concluded that it was difficult to see how the
employees could return to their jobs without the same issues
resurfacing and that given their prior conduct there was no reason to
believe they would be any more willing to perform the work.
In such
circumstances, the dismissals were found not to have been an
inappropriate sanction. The arbitration award was for these
reasons
set aside on review and substituted with an order that the dismissals
were substantively fair.
On appeal
[10]
On
appeal, the employees contend that the Labour Court erred in placing
reliance on “
a
semantic issue
”,
which did not detract from the arbitrator’s finding that the
employees were not guilty of insubordination. A conspectus
of the
evidence showed that the employees did not clearly understand what
was expected of them, even when video footage indicated
that the
employees had received a demonstration on a smooth concrete curb of
the manner in which to undertake the task required.
Since the
probabilities supported a finding that the employees genuinely
considered the work too difficult for them, with no refusal
to comply
with the instruction, the dismissal of the employees was unfair and
the arbitrator’s award was not reviewable.
Consequently, the
employees sought that the appeal be upheld with costs.
[11]
The
employer argued on appeal that while Mr Darryl Talbot, the owner of
the business, had shown the employees the cleaning method
that had
been used for 20 years, the employees approached the matter on the
basis that they were employed as chars and that the
instruction given
was not part of that job. As much was borne out by the fact that on
their return from their trade union after
receipt of their final
written warnings, the employees informed the employer that the work
was not part of their job. Since their
case was that they understood
the instruction but that it was unreasonable given that they were
female, the task was too difficult,
they wanted a water jet to
complete it and it was not part of their job, the employer submitted
that the Labour Court correctly
found that it had not been the
employees’ case that the work was “
not
do-able
”.
Since the error that the work was not do-able permeated the
arbitration award, it was argued for the employer that the
result
reached was unreasonable and that the decision of the Labour Court on
review could not be faulted. In the circumstances,
the employer
sought that the appeal be dismissed with costs.
Discussion
[12]
The
Labour Court cannot be faulted for finding that
the
arbitrator misconstrued the evidence before her in inferring that it
was common cause the employees had maintained that the
work could not
be done.
The
evidence before the arbitrator showed that the employees
understood
the instruction they had been given but that they considered it
unreasonable for a number of reasons: that they were
employed as
chars and did not consider the work as part of their job; on the
basis that they were female and considered the task
too difficult for
them; and that they wanted a water jet to complete the task. On a
consideration of the evidence, the Court
a
quo
correctly found that the arbitrator could not reasonably have
inferred that the work as instructed could not be done; that the
refusal to perform was not wilful and that the employer failed to
prove that the employees had failed to carry out a work instruction.
In such circumstances, t
he
finding that the dismissal of the employees was substantively unfair
was found to fall outside of the ambit of reasonableness
required and
the arbitration award was set aside on review. I agree. It follows
that there is no basis on which to interfere with
the Labour Court’s
findings in this regard on appeal.
[13]
Turning
to the appropriateness of dismissal, it is trite that a determination
as to whether the sanction of dismissal is fair requires
a
consideration of all relevant circumstances, without deference to the
decision of the employer.
[1]
T
his
includes the importance of the rule that has been breached, the
reason the employer imposed the sanction of dismissal, the basis
of
the employee’s challenge to the dismissal, other factors such
as the harm caused by the employee’s conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on the employee
and
his or her long-service record and that this is not an exhaustive
list.
[2]
[14]
The
employees’ conduct in refusing to comply with the employer’s
reasonable workplace instruction constituted insubordination.
[3]
They were progressively cautioned that their conduct was serious and
were made aware that they risked dismissal if they persisted
with
their refusal to comply with the instruction given to them. After
they had been invited to consult with their trade union
and given the
opportunity to leave work to do so, they did not alter their stance.
This led to a final written warning being issued
to them before they
were sent home and told to return to work the next shift allocated to
them. On their return to work, the employees
persisted with their
refusal to comply with the instruction. By so doing, their conduct
amounted to a serious and willful breach
of their obligation to
adhere to and comply with the employer’s lawful authority.
[4]
[15]
In
such circumstances, it is indeed difficult to see how the employees
could return to their jobs without the same issues resurfacing.
Given
their prior conduct, there is no reason to believe they would be any
more willing to perform the work now than they were
in the past.
Their jobs were secured as an alternative to their retrenchment, with
no alternative positions available to them.
In such circumstances,
interference is not warranted with the finding of the Labour Court
that the dismissal of the employees was
appropriate. It follows for
these reasons that the dismissal of the employees was substantively
fair and that the appeal falls
to be dismissed.
[16]
Having
regard to considerations of law and fairness there is no reason as to
why costs should not follow the result.
Order
[31] For these reasons, the following
order is made:
1.
The
appeal is dismissed with costs.
______________
Savage
AJA
Coppin
JA and Sutherland JA agree.
APPEARANCES:
FOR
THE APPELLANTS:
Mr C Kirschmann
Instructed by Gray
Moodliar Attorneys
FOR
THE RESPONDENTS: Mr J
Grogan
Instructed by
Kirschmanns Inc.
[1]
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
at
para 79.
[2]
Sidumo
op cit.
at
para 78.
[3]
Sylvania
Metals (Pty) Ltd v Mello N.O and Others
[2016] ZALAC 52
at para 16;
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).
[4]
See
Grogan
Dismissal,
Discrimination and Unfair Labour Practices
2
ed (Juta & Co Ltd, Cape Town 2007) at 307;
Commercial
Catering & Allied Workers Union of SA and Another v Wooltru Ltd
t/a Woolworths (Randburg)
(1989)
10 ILJ 311 (IC) at 314H-J;
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
(2015)
36 ILJ 1511 (LAC) at para 22;
National
Trading Co v Hiazo
(1994) 15 ILJ 1304 (LAC);
[1994]
12 BLLR 53
(LAC)
at 1308H-J.