About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2018
>>
[2018] ZALAC 36
|
|
TMT Services and Supplies (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA32/2017) [2018] ZALAC 36; (2019) 40 ILJ 150 (LAC); [2019] 2 BLLR 142 (LAC) (17 October 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA32/2017
In the matter between:
TMT SERVICES AND
SUPPLIES (PTY)
LTD Appellant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION First
Respondent
ERIC MYHILL
NO Second
Respondent
SAMWU OBO FELICIA
LUNGILE Third
Respondent
Heard: 18 September
2018
Delivered: 17 October
2018
Summary: Summary:
Review of arbitration award – employee dismissed for defying
employer reasonable instruction – court
cautioning Labour Court
not to construe review and appeal – dominant factor is the
defiance of managerial authority - on
the facts, arbitrator has not
misdirected himself – Appeal upheld - Labour Court’s
judgment set aside, and arbitration
award confirmed.
Coram:
Waglay JP, Phatshoane ADJP and Sutherland JA
JUDGMENT
SUTHERLAND JA
Introduction
[1]
The third respondent (Lungile) had been
employed on a five-year fixed contract by the appellant (TMT). At the
relevant time, she
was two years into that contract. She was a
Training officer.
[2]
She
was dismissed for gross insubordination. The gravamen of that charge
was that she refused to obey an instruction to attend a
meeting to
discuss an audit report of her performance. The matter went to
arbitration whereupon an award was issued upholding the
fairness of
the dismissal. On review, the Labour Court reversed that finding and
ordered TMT to pay her salary for the balance
of her fixed term
contract from the date of dismissal, in effect, about three years’
worth of pay. The appeal lies against
those orders.
[1]
[3]
The
test in
Sidumo
dictates the resolution of the controversy; ie was the arbitrator’s
decision one to which no reasonable arbitrator could
come.
[2]
[4]
As
to “insubordination” as a class of misconduct, it has
been advanced by John Grogan that the enquiry into the gravity
of the
specific insubordination considers three aspects: the action of the
employer prior to the deed, the reasonableness of the
instruction,
and the presence of wilfulness by the employee.
[3]
In this case, only the presence of wilfulness by Lungile is
controversial.
The Facts
[5]
The central factual issue related to
Lungile’s deliberate refusal to attend a meeting which her
immediate superior, Stols,
had told her to attend. The arbitrator
held that she had defied an instruction. Even on the common cause
facts, in our view, there
can be no doubt that this finding was
unassailable.
[6]
In the afternoon of 25 April 2013, Stols
and Lungile spoke over the telephone. Stols gave the instruction to
attend the meeting
in that conversation. The meeting was to commence
the next day, 26 April at 07h00. The persons present were to be
Stols, Yolanda
Soden, another employee and colleague of Lungile, and
Lungile herself. The purpose of the meeting was to receive and
discuss an
audit report that Soden had carried out on the work
performance of Lungile. Lungile, during that conversation, stated
that she
was uncomfortable about Soden being present. Stols’
reply was that Soden’s presence was unavoidable as she was
presenting
an audit report prepared by herself. Nothing in this
conversation could be reasonably construed to mean that the meeting
had been
tentatively arranged. As things stood, Lungile was obliged
to attend the meeting at 07h00 the next day.
[7]
It was argued on behalf of Lungile that no
“instruction” was given. This contention invoked the fact
that Soden had
told Lungile about the meeting before Stols had
mentioned it. Lungile then called Stols to enquire about the meeting.
These facts
are neutral. Moreover, if no instruction had been given,
there would have been no need for the e-mail sent later that night by
Lungile, which is the next event to be examined.
[8]
In the evening of 25 April at about 20h40,
well after working hours, Lungile sent an e-mail to Stols. It stated:
‘
As
telephonically discussed today regarding the meeting that I found out
about from [Soden] late today that we will be meeting tomorrow
at COC
[ie the head office] I am still not comfortable as indicated to you
telephonically.
My reasons are:
(1)
A proper notice was not given, please give
me the proposed agenda for the meeting in order for me to prepare for
the items as proposed.
(2)
I could be happy if you could reschedule
the meeting for 3, 4 or 6 May, please choose a date that could best
suit your schedule
so that we can formalise the meeting, this
proposal however does not mean that I am refusing the verbal meeting
proposed by yourself
but for the meeting to be formalised and have
minutes thereafter for one to refer back to.’
I trust that is all in
order.’ [record: 67]
[9]
Lungile, also at that moment, sent an SMS
to tell Stols she had sent an e-mail. It stated:
‘
...I
have sent you an e-mail about tomorrow’s meeting. Please check
it ….’
[10]
Notable in the SMS is its vagueness.
Objectively, when Stols read it that night, she was not alerted to
any urgency to read the
e-mail nor was there any hint that the
meeting would or ought or could be aborted. Thus, unsurprisingly,
this e-mail was not at
once read by Stols. Moreover, the e-mail
itself is an acknowledgment that Lungile is supposed to meet the next
day and asks for
a postponement. Objectively, a person who makes that
request for a postponement of a meeting would expect an answer either
agreeing
thereto or refusing, in time to either attend or not, and in
this case before setting off to work in Kempton Park or setting off
to CAC to the meeting.
[11]
Stols read the e-mail and responded to it
at 04.38 the next morning. Her response was:
‘
This
is not a counselling session or any form of disciplinary process
therefor I do not need to give you a proper notice. It is
an
instruction from me for you to attend the meeting today at 7h00. The
agenda will be to discuss your audit report where [Soden]
will
explain the audit report to both of us of which thereafter I will ask
[Soden] to leave the meeting and discuss your punctuality
as well as
the email you have sent me.
I told you telephonically
yesterday about the meeting therefor saw no need to send you a
meeting request.
I find this email that
you have sent me very disrespectful.
See you at today’s
meeting, 07h00 at COC.’ [record 68]
[12]
At the same time an SMS was sent by Stols
to Lungile stating that the e-mail had been read and they would see
one another at the
meeting.
[13]
No reply was made by Lungile until 07h16
when Lungile in an e-mail states:
‘
I
only saw your email now I am already at Kempton Park depot.
I am sorry if you find my
email disrespectful but that was not my intention it was a sincere
request. When we spoke telephonically
yesterday you only informed me
the meeting would be about the audit not my punctuality.
Can we please arrange
another day rather than this one?’ [record 68]
[14]
So much for the bare facts.
[15]
The unavoidable consequence was that owing
to her absence and being physically at a distance from the COC
office, the slot scheduled
for the meeting was forfeited and the
postponement desired by Lungile was successfully engineered.
[16]
An obvious question arises from these
common cause facts. In the absence of being released from the
meeting, Lungile ought to have
gone to it, not gone to Kempton Park.
Having communicated a request for a postponement late in the evening
of 25 April, why did
she not react to the message that she must have
been waiting for, sent by Stols at 04h38, well in time to alert her
to come to
the meeting and not go to her desk? Lungile claims her
cell battery ran down and she could not communicate with anyone
before reaching
her desk in Kempton Park at 07h00. In our view, if
she was acting in good faith, it is implausible she would not have
been keen
to get an answer and it would be highly unlikely that she
would allow the chosen means of communication through which she
awaited
an answer, to become inoperable. The inference to draw is
that she contrived to procure a postponement by presenting the
employer
with a
fait accompli.
This
is the true gravamen of the case.
[17]
Stols thereupon telephoned Lungile after
reading the 07h16 message. The exact content of the oral exchanges
is, to some extent,
in dispute. The critical import of that
conversation was Stols rebuking Lungile for defying her instruction
and Lungile stating
she would not attend that meeting. They
argued. Lungile insisted on a formalised arrangement with written
notice and an agenda
as a condition for meeting to discuss the audit.
Ultimately the matter was referred to higher authority, and in a
conference call,
it was decided to reschedule the planned meeting for
a given date.
[18]
A
sterile debate took place in cross-examination about the number of
times the instruction was given by Stols, supposedly four times.
The
mere repetition of an instruction does not affect the true issue: the
giving of an instruction and its defiance. This debate
arose in the
context of whether the appropriate degree of “persistence”
was established. However, “persistence”
is relevant to
determining whether the employee indeed has defied the employer and
not merely neglected to carry out instructions.
It is thus an
evidential instrumental tool to test a conclusion. The idea of
“persistence” should not be allowed to
slide into the
basket of Labour Law myths which include the idea that an employee
must be warned three times before disciplinary
action can be taken.
“Persistence” means an absence of capitulation to the
employers will, not exclusively a reference
to repeated refusals.
[4]
[19]
Therefore,
defiance of authority can be proven by a single act of defiance.
[5]
There is no necessity for high drama and physical posturing to be
present.
[6]
The employer
prerogative to command its subordinates is the principle that is
protected by the class of misconduct labelled “insubordination”
and addresses operational requirements of the organisation that
ensure that managerial paralysis does not occur.
[7]
[20]
The upshot is that the arbitrator’s
findings of insubordination is wholly consistent with the evidence
adduced and therefor
no criticism can be advanced in that regard.
The severity of the
misconduct and the appropriate sanction
[21]
The framework of the Labour Relations Act
66 of 1995 (LRA) accords to different decision-makers authority to
make certain decisions.
Adjudging the severity of misconduct in
context, is a power conferred on an arbitrator. It is partly, at
least, a value judgement.
The choice made by the arbitrator must
stand unless it is demonstrable that no reasonable arbitrator could
have reached that conclusion.
[22]
In this matter, the evidence demonstrates a
contrived, and indeed devious manipulation by Lungile to achieve a
deferment of the
meeting. It involved the defiance of an express
direct and unequivocal instruction. The employer/employee
relationship dynamic
is premised on instructions being obeyed. It is
intolerable that an employer is forced to negotiate day to day
organisational arrangements
with employees. The effect of the refusal
was to undermine the working relationship with Stols whose trust she
forfeited. The arbitrator
took the view that dismissal was
appropriate.
[23]
However, the question arises whether a
corrective measure was not appropriate, rather than dismissal, eg a
written warning as a
form of progressive discipline, and if not, why
not. The aborted meeting was rescheduled, Lungile attended and its
objectives were
soon afterwards accomplished. The Code of good
conduct in the LRA requires progressive disciplinary options to be
considered. The
episode of defiance was an isolated event. The
defiance seems to have been triggered by apprehension rather than
malice. The notice
period to meet was a mere matter of hours and
although not unreasonable in the circumstances, plainly unsettled
Lungile. Subjectively,
being unnerved, whether objectively
justifiable or not, is an indication that her motives were
self-preservation rather than a
conscious desire to disrupt the
orderly running of the business.
[24]
These factors need to be weighed together
with the aggravating features of her conduct referred to above.
Caution must be exercised
when treading this path to maintain the
integrity of the
Sidumo
Test. Would these factors have unequivocally inclined a reasonable
arbitrator to have concluded that the conduct, though deliberate,
devious and serious, would not warrant dismissal? The arbitrator was
addressed on progressive discipline and took note of that
consideration.
[25]
The test to apply is higher than simply
could a reasonable arbitrator have imposed a lesser sanction; rather
the question is could
no reasonable arbitrator have concluded
dismissal was appropriate. Unless that threshold is exceeded, the
award must stand. The
weighing of the manipulative dimension of the
conduct was appropriate in the circumstances. In our view, the award
cannot be criticised
on the basis that no reasonable arbitrator could
have reached that conclusion.
[26]
The review court thought otherwise. We
cannot agree. The Labour Court was unduly impressed by the notion
that the arbitrator had
imposed a reverse
onus
on Lungile and therefore because this was wrong the award had to be
set aside. This finding by the Labour is incorrect. The question
of a
shift in
onus
to prove a fair dismissal cannot arise and in this case does not
arise. What happened in this case, is that an
evidential
burden
lay on Lungile to prove she
could not have received the early morning message on her cellphone,
that being her averment. All she
offered was her sayso. In the
context of the probabilities, and the considerations on this aspect
already dealt with, an adverse
finding was made. In our view, the
adverse finding was wholly appropriate.
[27]
In regard to sanction, the Labour Court
conflated an appeal with a review. The rationale of the award was
that the deliberate manipulation
of the situation by Lungile and the
defiance of managerial authority was the dominant factor, and thus
dismissal was appropriate.
The arbitrator has not misdirected himself
by reaching that conclusion, one which a reasonable arbitrator could
certainly reach.
Conclusion
[28]
Accordingly, the appeal should succeed.
[29]
Neither party sought costs and no such
order shall be made.
The Order
(1)
The appellant’s application for
condonation of the late filing of the notice of appeal is granted.
(2)
The appeal is upheld.
(3)
The order of the Labour Court is set aside.
(4)
The award of the Arbitrator is confirmed.
______________
Sutherland JA
Sutherland JA (with whom
Waglay JP and Phatshoane ADJP concur)
APPEARANCES:
FOR THE APPELLANT: Adv M
A Lennox,
Instructed by Snyman
attorneys.
FOR THE RESPONDENT: Adv E
M Masombuka,
Instructed by Madlela
Gwebu Mashamba Inc
[1]
[1]
An
application to condone the Late filing of the appeal was unopposed
and shall be granted.
[2]
Sidumo
and Another v Rustenburg Platinum Mines and Others
2008 (2) SA 24 (CC).
[3]
John
Grogan,
Workplace Law, Juta 12
th
Edition, chapter 12, Para 3.8, pp125-126.
[4]
An example where repeated refusals was the substance of the
insubordination is
PSA
of SA obo Khan v Tsabadi NO and Others
(2012) 33 ILJ 2117 (LC) where an employee resisted a transfer
despite many instructions to take up the new post.
[5]
See
the
Old
LAC decision in
Acrylic
Products
(Pty)
Ltd
v
CWIU
and
Another
[1997] 4 BLLR 370 (LAC).
[6]
An
example is the case of
Msunduzi
Municipality v Hoskins
(2017) 38 ILJ 582 (LAC) where a managerial employee defied an
instruction to cease advising and representing workers in
disciplinary
matters and in response to such instructions dared his
superiors to try their luck enforcing the instruction.
[7]
See: Scoble, Law of Master and Servant in South Africa, Butterworth,
Durban (1956) p145.