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[2019] ZALAC 1
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Legal Aid South Africa v Mayisela and Others (CA9/17) [2019] ZALAC 1; [2019] 5 BLLR 421 (LAC); (2019) 40 ILJ 1526 (LAC) (5 February 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA9/17
In
the matter between:
LEGAL
AID SOUTH AFRICA
Appellant
And
VINCENT
NKULULEKO MAYISELA
First Respondent
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
ANTONY
OSLER
Third Respondent
Heard:
10 September
2018
Delivered:
05 February 2019
Summary:
Review of arbitration award – employee dismissed for gross
insubordination – commissioner finding that dismissal
substantively fair and that employee misconducted himself by failing
to obey to lawful and reasonable instruction.
Held:
the idea that a senior manager, with
legal training, should be permitted to take run of the mill workplace
grievances to the Public
Protector, Parliament and to the Minister is
difficult to sustain. Employee
’
s
actions, besides being insubordinate, reveal a poor level of judgment
supporting the conclusion that he was not suited to the
post he
occupied. The commissioner’s finding that employee was acting
insubordinately with ulterior motive is accordingly
a decision which
a reasonable commissioner could reach on the evidence.
Appeal upheld and the application for
review dismissed.
Coram: Waglay JP,
Sutherland JA and Murphy AJA
JUDGMENT
MURPHY
AJA
[1]
The appellant appeals against the decision of the Labour Court (Cele
J) setting aside
in part the arbitration award of the third
respondent (“the commissioner”), reinstating the first
respondent, Mr Vincent
Mayisela (“Mayisela”) and granting
ancillary relief related to the order of reinstatement.
[2]
The appellant is the state-funded provider of legal services to the
indigent. It provides
services at Justice Centres throughout the
country. Mayisela was employed as the Justice Centre Executive
(“JCE”) managing
the Kimberley Justice Centre. He
reported to the Regional Operations Executive (“ROE”) for
the Western and Northern
Cape, Ms C Robertson (“Robertson”).
Mayisela was based in Kimberley while Robertson was in the Western
Cape.
[3]
During the course of 2013, the relationship between Mayisela and
Robertson deteriorated
resulting in Mayisela being charged with
numerous disciplinary infractions. After a disciplinary enquiry, he
was found guilty of
17 charges and dismissed. Mayisela referred the
matter to second respondent (“the CCMA”). On 8 October
2014, commissioner
T Potgieter issued an arbitration award finding
that the dismissal was substantively and procedurally fair. The
Labour Court set
aside that award and remitted the matter to the CCMA
for reconsideration by a different commissioner.
[4]
The matter then proceeded to arbitration before the commissioner who
handed down his
award on 14 February 2016. In the pre-arbitration
conference, the appellant indicated that it would persist against
Mayisela only
on four of the charges (made up of nine distinct
counts) for which he had been dismissed. The commissioner concluded
that Mayisela
was guilty on all the counts and that the dismissal was
substantively fair. The commissioner also rejected all Mayisela’s
contentions alleging procedural impropriety and held that the
dismissal was procedurally fair.
[5]
The Labour Court, on review, upheld the procedural fairness of the
dismissal, but
on the basis that the commissioner had erred in his
findings on six of the nine counts of misconduct, held that the
dismissal was
substantively unfair.
[6]
On appeal, the appellant submitted that the findings of the
commissioner on substantive
fairness were reasonable and ought not to
have been set aside on review. Mayisela did not file a cross-appeal
against the Labour
Court’s findings on procedural fairness. It
is necessary then to consider the reasonableness of the
commissioner’s
findings on each of the counts of alleged
misconduct. It will be convenient to deal with the evidence and
findings in relation
to each count separately and fully.
Charge
1.1 – Gross insubordination: refusal to arrange a
teleconference regarding performance assessment
[7]
This charge was that Mayisela was guilty of gross insubordination in
refusing or failing
to arrange a teleconference call to discuss his
supervisory assessment, despite being asked to do so by his manager
on more than
one occasion.
[8]
In March 2013, Robertson scored Mayisela at 54% for his supervisory
assessment. Mayisela
took umbrage at receiving this low score. In
ensuing correspondence, he complained that his performance should
have been discussed
with him and indicated that he intended to lodge
a grievance. He sought an explanation for his low score and asked for
the relevant
source documents. Robertson replied in an e-mail
including relevant documentation, stating that she intended to
discuss the score
with him and explaining that he still would be
afforded an opportunity to persuade her to amend the score. Robertson
thereafter
attempted to schedule a teleconference to discuss the
score.
[9]
On 11 April 2014, Mayisela emailed Robertson intimating that he saw
little point in
discussing the matter further as the assessment had
been finalised. He stated his intention to raise constitutional
issues with
various constitutional bodies. The proposed
teleconference did not take place, apparently on account of
Mayisela’s refusal
to co-operate in the scheduling of it.
Robertson testified that Mayisela basically refused to co-operate to
set up a meeting to
discuss the matter and that she perceived his
conduct as obstructive and insubordinate.
[10]
In his submissions before us, Mayisela maintained that he had been
willing to discuss the matter
further but Robertson had not persisted
with her request for a teleconference and face to face meetings. The
matter, he said, could
also have been pursued in various subsequent
telephonic communications.
[11]
Mayisela’s attitude to the convening of a meeting is captured
in the contemporaneous correspondence.
On the morning of 10 April
2013, Robertson addressed an e-mail to Mayisela stating that her
previous attempts to contact him telephonically
about arranging
further discussion had been unsuccessful. She asked him to let her
know when he would be available. He responded
a few hours later as
follows:
‘
I will appreciate
if I can have the explanation in writing as requested. I am unhappy
about the assessment and I intend using your
explanation as reasons
for my grievance. I think I am being vilified and this has been
coming on for a very long time now.
I don’t feel safe
in my work anymore as an African Manager in this region and I intend
taking matter up (sic) with Management
and the Portfolio Committee.
I honestly think that
Africans are being vilified in the region under the coded name of
poor performance….’
[12]
Later that day, Robertson responded by e-mail reiterating that she
needed to schedule the discussion
for the purpose of discussing the
score and scoring process. She explained as follows:
‘
Furthermore, as
per normal procedure you will have the opportunity in this discussion
to advise me why your scores should be changed,
one way or the other.
This is the process that I am following with all my managers. Once
again I thus request a time and date for
this discussion. If you are
still dissatisfied after our discussion, an internal grievance can be
filed.’
[13]
Mayisela responded:
‘
I
am aware of the grievance policy but matters that have Constitution
implications can be raised with constitutional bodies, and
there is
nothing that bars me from writing letters to the Public Protector,
Parliament or Human Rights Commission (sic). I am completely
free to
do so as a citizen of this Country.
I do
not have a problem discussing the assessment with me but I will have
no input at all because the assessment has been completed
and done. I
am aggrieved and require reasons for each finding so that I analyse
and lodge my grievance.’
[14]
Mayisela clearly believed that he was justified refusing to schedule
a teleconference. In argument,
he seized unconvincingly on his
statement that he did “not have a problem discussing the
assessment” as an indication
that he was willing to comply with
the instruction. But there is no escaping that he did not make
himself available or provide
a time and date for the teleconference
to take place, as he had been requested to do. He was evidently
aggrieved and took up the
attitude that on that account he was not
obliged to comply.
[15]
In his award, the commissioner, after making the general observation
that insubordination and
insolence constitute a challenge to
managerial authority, held that the evidence (as reflected in the
wording and tone of the contemporaneous
correspondence) demonstrated
resistant and obstructive behaviour on the part of Mayisela. He held
that it was not for Mayisela
to effectively block further discussions
because he disagreed with Robertson’s approach. His conduct
amounted to a general
challenge to Robertson’s authority and
thus amounted to insubordination rendered gross by its manner and
sustained nature.
[16]
The Labour Court held that Robertson’s calling for a meeting
was inappropriate. Her reaction
to Mayisela’s request for
information, it said, complicated matters and was unreasonable
because there was no evidence of
any internal regulation or policy
entitling her to call a meeting. In its view, there “really was
no need for any meeting”
and Robertson was “sidestepping”
Mayisela’s request for information. Thus, it concluded that
“the charges
were ill-founded and conviction on them was
premised on misdirection in failing to conduct a proper enquiry,
leading to an unreasonable
result”.
[17]
The appellant submitted that it is not up to an employee to dictate
how management should conduct
a performance assessment. The
submission is well-founded. Likewise, there is no basis for the
Labour Court’s finding that
Robertson’s instruction was
unreasonable because there was no regulation or policy entitling her
to call the employee to
a meeting. There was no need for any explicit
policy or regulation on which to base a request for a meeting. The
right or prerogative
of management to request a meeting to discuss
performance is self-evidently inherent in every employment
relationship. An employer
has the authority to determine how issues
of performance should be addressed. Robertson reasonably and fairly
sought to deal with
Mayisela’s concerns around his assessment
by way of a teleconference and later a meeting. It was not open to
Mayisela to
dictate how Robertson should deal with the issues. The
Labour Court misdirected itself in finding to the contrary,
especially when
it had not been alleged on the pleadings or in the
evidence that Robertson lacked authority to call Mayisela to a
meeting. The
conclusion that there was no need for a meeting because
Robertson had completed the assessment ignores the evidence that the
score
could be changed. The purpose of the proposed meeting was to
explore that possibility.
[18]
In the result, the finding of the commissioner that Mayisela was
guilty of insubordination in
terms of this charge was a reasonable
conclusion. The Labour Court accordingly erred in setting it aside.
Charge
1.2- Gross insubordination: refusal or failure to attend a meeting
with his manager to discuss various issues
[19]
This charge related to insubordination for a refusal by Mayisela to
attend a meeting with Robertson
to discuss various issues which he
had raised with her and with Mr Brian Nair, the appellant’s
National Operations Executive
(“the NOE”), despite being
requested to attend such a meeting on more than one occasion.
[20]
On 21 May 2013, Mayisela lodged a grievance with the NOE complaining
about the failure of Robertson
to approve a travel request for him to
attend a meeting and making unsubstantiated allegations that she was
victimising him. The
NOE responded on 23 May 2013 asking for more
details and information. Mayisela responded by e-mail withdrawing the
grievance but
making additional allegations against Robertson. The
NOE proposed a meeting between Mayisela and Robertson to resolve the
matter.
[21]
Robertson phoned Mayisela on 24 May 2013 requesting a meeting to
discuss the grievance he had
raised. Mayisela responded by saying
that he would “think about it” and revert. Further
attempts to arrange a date
were not successful. Mayisela accordingly
addressed an e-mail to Robertson on 27 May 2013 stating that he would
“advise of
a suitable date some other time!” Roberson
responded by e-mail on 29 May 2013 as follows:
‘
From the attached
I note that you do not have a suitable date.
In view of this, please
ensure your attendance at Regional Office, Stellenbosch on Tuesday, 4
June 2013 @ 09h00 to enable us to
resolve the issues.
Please ensure that your
travel arrangements are attended to urgently and that I am advised
when it is completed to enable me to
approve same.’
[22]
A few hours later, Mayisela, again appearing to take umbrage,
responded by e-mail, the relevant
part of which reads:
‘
Please confirm
whether this is an instruction or not. It is very clear from my side
that the e-mail amounts to an instruction.
If yes, I will attend. If
not, I do not think this is the right time to engage on the issue.
The reason for same is that I will
tell you things that you may not
want to hear.
I will certainly tell you
what you need to do as a person in order for you to change for the
better.’
Robertson
testified that she regarded this e-mail as obstructive and insolent.
[23]
On 31 May 2013, Robertson addressed another e-mail to Mayisela
informing him that the meeting
to deal with his grievances would be
re-scheduled for Monday 10 June 2013 as he would be attending a JCE
forum in Cape Town on
the following day. In response, Mayisela
unconvincingly claimed to be confused. Robertson answered clarifying
that the meeting
originally scheduled for 4 June 2013 had been
changed to 10 June 2013. Mayisela replied cryptically:
‘
Regarding our
meeting, I will advise you of a date.’
[24]
Mayisela did not arrive at the meeting on 10 June 2013. At 12h05 that
day, Robertson addressed
an e-mail to him as follows:
‘
Our
meeting was supposed to have been held today (10 June 2013). I note
that you have not arrived.
As
a result of the fact that you will be attending the JCE forum
tomorrow, our meeting will now take place on Wednesday, 12 June
2013
at 09h00 at the RO Stellenbosch.
Please
note that RO will make the necessary changes to your flight to
accommodate this meeting.’
[25]
Mayisela reacted over the next hour with three e-mails the content of
which reads:
‘
Please don’t
give me instructions that are clearly unlawful!
I will escalate my
problems with you to the CEO now because Brian don’t seem to
understand the harassment I am enduring under
you…..
Please take note that
should my travelling be changed without my permission, I will report
the harassment to the CEO.
I requested you the last
time to state that the meeting of the 10
th
was clearly an
instruction and requested you to confirm same but with no response.
Let me officially advise
you that should these harassment (sic) continue, I will report you to
the CEO, the Board and the Portfolio
Committee.
Brian Nair knows the
issues and [I] will not escalate issues to him anymore.’
[26]
Robertson replied immediately, explaining that as his manager she
required a meeting with him
to discuss the issues he had raised. She
reiterated that since he had not provided an alternative date, she
required him to meet
with her on 12 June 2013 and for him to change
his flight back to Kimberley accordingly. If he intended not to
attend the meeting,
she requested him to furnish reasons why his
presence would not be feasible. Mayisela responded as follows:
‘
You are clearly
intimidating and harassing me and unfortunately I am not going to
allow it.
I have clearly and
unambiguously informed you that I will inform you of a date. How can
we resolve issue if you continue to harass
me!
As things stand now, I
withdraw my intention to meet you until such time you decide to treat
me with respect.’
[27]
Mayisela did not attend the meeting re-scheduled for 12 June 2013.
[28]
The commissioner found that this behaviour, involving: repetitive
failures to revert; the ignoring
of instructions to attend meetings;
a contrived misunderstanding of clear instructions; insolence in
arrogating to himself the
right to set the date; and unreasonably
accusing Robertson of unlawful conduct; amounted to insubordination
on the part of Mayisela.
The commissioner described it aptly thus:
‘
This
is in itself a mixture of defence, defiance and attack and is
astoundingly unreasonable in the face of his palpable resistance
to
making arrangements; again, even if the employee did not agree with
this manager’s going about things, his response is
persistently
disrespectful and challenging to her authority.’
On
this basis, the commissioner found Mayisela guilty on this charge.
[29]
The Labour Court did not discuss or deal with the evidence in
relation to this charge. It nonetheless,
for reasons that remain a
mystery, set aside the commissioner’s finding. The e-mail
correspondence unassailably establishes
that Mayisela was
insubordinate and insolent. The Labour Court erred in setting aside
the finding of the commissioner on this charge
which was indisputably
reasonable.
Charges
1.3 and 1.4 – Gross Insubordination: refusal to attend a
meeting to represent the views of Legal Aid and refusal to
give
required information
[30]
Under charge 1.3, Mayisela was charged with insubordination for
refusing or failing to attend
a meeting with the Regional Court
President about part-heard matters of a certain magistrate (Mr Hole)
despite being advised to
do so and thereafter agreeing with the ROE
to attend a meeting, but then failing to do so, on questionable
grounds.
[31]
On 9 July 2013, Ms Robertson sent Mayisela an e-mail she had received
from the Regional Court
President in the Northern Cape which
requested the presence of a representative from Legal Aid at a
meeting on 11 July 2013 to
discuss the part-heard matters of Hole, a
Regional Court Magistrate, who had been suspended but was to return
to work on a limited
basis.
[32]
Robertson stated that the e-mail was intended for Mayisela’s
attention and information
and that he was required to attend the
meeting.
[33]
At the time, Mayisela had joined in litigation to have Hole’s
suspension set aside. He
took the view that the litigation presented
him with a conflict which prevented him from attending the meeting on
11 July 2103.
The appellant did not accept that there was a conflict.
Although Mayisela (together with others) had applied to set aside
Hole’s
suspension and the application was still
sub judice
,
the appellant did not see any barrier to his attending an
administrative meeting on its behalf to discuss the scheduling of
cases.
But even if he could not attend, he should have delegated
someone in his office to go. He failed to do that and failed to
inform
his manager of that fact.
[34]
Robertson discovered that no-one from the Kimberley office had
attended the meeting on the morning
of the meeting when she received
a phone call from the Regional Court President, causing her some
embarrassment. Mayisela excused
his non-attendance to Robertson on
the grounds of his perceived conflict and being told by Mr Ligaraba
from the NPA that the meeting
was not going to take place.
[35]
A second meeting was arranged for 26 July 2013 to discuss the Hole
matters. Robertson instructed
the employee to arrange for one of his
managers to attend given that he was supposed to meet with the NOE
that day. He was requested
to inform Ms Robertson by close of
business on 24 July 2103 who would be attending. Mayisela informed Ms
Robertson that he would
be attending on account of his meeting with
the NOE having been postponed. During their interaction, he informed
her that he intended
at the meeting to advance the same point of view
of the DPP regarding Hole. Robertson told him that he was required to
represent
the appellant at the meeting and should align himself with
the stance of the organisation rather than pursuing his own position.
Mayisela defiantly questioned Robertson’s authority to
pronounce on the stance of the organisation. He later failed to
attend
the meeting as he was expected to do by Robertson and sent two
colleagues in his place.
[36]
The commissioner held that confrontational stance taken by Mayisela
in relation to attending
the meeting and representing the
organisation amounted to insubordination.
[37]
The Labour Court held that the evidence did not establish that
Robertson had instructed Mayisela
to attend the meeting of 11 July
2013 and that Mayisela had disclosed his apparent conflict. The
commissioner’s failure to
properly apply his mind to this
evidence, the Labour Court opined, rendered his finding unreasonable.
However, the Labour Court
failed to deal at all with the evidence
that Mayisela in effect refused to represent the appellant at the
meeting because he disagreed
with its stance on Hole’s conduct.
The commissioner’s finding, having regard to that evidence, was
reasonable and the
Labour Court erred in setting it aside.
[38]
The Labour Court agreed with the commissioner that Mayisela was
guilty of insubordination under
charge 1.4 by refusing to give
Robertson information about the practitioners who were on record in
the part-heard matters in Hole’s
court. Robertson sought this
information after the meeting of 26 July 2013, but Mayisela without
good reason refused to give it.
His conduct here too was
insubordinate. Mayisela did not file any cross-appeal against this
finding of the Labour Court.
Charge
2.1 – Gross insolence in accusing manager of going on a witch
hunt
[39]
In the course of correspondence regarding Mayisela’s
performance assessment, Robertson
asked why he was copying the NOE in
his correspondence. On 26 March 2013, Mayisela replied in an e-mail
as follows:
‘
I copied Brian
because this is part of the witch-hunt process.’
[40]
The commissioner held that the allegation was clearly an unjustified
accusation by Mayisela that
Robertson was orchestrating some kind of
campaign against him and thus amounted to insolence. The Labour Court
upheld the commissioner’s
finding as reasonable in that
Mayisela, obviously wounded by his poor performance assessment,
“became offensive and went
on the attack” by making a
comment that was “certainly derogatory, disrespectful and
cheeky”. There is no cross-appeal
against the Labour Court’s
finding.
Charge
2.2 – Gross insolence in that Mayisela screamed and shouted at
the ROE on the phone on 13 September that he wanted
to be suspended
[41]
The allegation in this charge is that during a telephone conversation
in relation to the Hole
matters, Mayisela shouted at Robertson that
he wanted to be suspended and that he would be contacting the CEO and
chairperson of
Legal Aid to suspend him.
[42]
The commissioner, relying on the surrounding evidence about the
relationship between Robertson
and Mayisela, held that the
probabilities favoured the appellant’s version and that this
conduct too constituted insolence.
The Labour Court accepted this
finding as reasonable and there is no cross-appeal against its
finding.
Charge
3.1 – Attack on the honour, dignity or good name of the ROE in
making tacit accusations of racism
[43]
This charge alleged an attack on the dignity of Robertson in that
during the period of March
2013 to October 2013, Mayisela made tacit
accusations of racism against her and, in doing so, attacked her
honour and integrity.
The commissioner found the employee guilty on
this charge based on the e-mail dated 10 April 2013 referred to
earlier and in particular
the following statements:
‘
I just don’t
feel safe in my work anymore as an African manager in this region and
I intend taking matter (sic) up with Management
and Portfolio
Committee.’
I honestly think that
Africans are being vilified in the region under the coded name of
poor performance and it’s also clear
in the non-appointment of
African managers in the region.’
[44]
The e-mail clearly implies that Robertson (a coloured person) was
racist in that she was allegedly
vilifying and prejudicing African
because they were Africans. The accusation was undoubtedly levelled
at Robertson given that the
e-mail was addressed to her and the
complaint was about the region for which she was responsible.
[45]
Mayisela stood by his allegation, pointing to the fact that six of
the seven African managers
in the Northern Cape region received
negative performance assessments.
[46]
The commissioner felt that the allegations were unjustified in that
there was insufficient evidence
to substantiate them, and that the
statistics could be interpreted in different ways. He opined that the
issue was not “to
dissect the politics of the employer’s
region” but whether it was appropriate for Mayisela to have
made the accusation
to his superior in the manner he did. He
concluded that the conduct constituted an unjustified personal attack
on Robertson’s
dignity and that it would have been more
appropriate for Mayisela to have raised any legitimate concern about
discrimination in
a different forum and in a different way. Hence,
the commissioner found Mayisela guilty on this charge.
[47]
The Labour Court was sympathetic to Mayisela. It took the view that
Mayisela was entitled to
raise the matter and even take it to the
Parliamentary Portfolio Committee. His mere announcing of the
complaint, in its view,
did not amount to misconduct and the
commissioner’s finding that the accusation was made
inappropriately constituted a failure
to conduct a proper enquiry
into the allegation, resulting in an unreasonable finding. It
professed that Mayisela should never
have been charged with this
offence.
[48]
The Labour Court’s conclusions, with respect, miss the mark in
an important respect. Although
one naturally may be sympathetic to a
colleague who has subjectively experienced a negative performance
assessment as racial discrimination,
unjustified allegations of
racism against a superior in the workplace can have very serious and
deleterious consequences. Employees
who allege tacit racism should do
so only on the basis of persuasive objective information leading to a
compelling and legitimate
inference, and in accordance with grievance
procedures established for that purpose. Unfounded allegations of
racism against a
superior by a subordinate subjected to disciplinary
action or performance assessment, referred to colloquially as
“playing
the race card”, can illegitimately undermine the
authority of the superior and damage harmonious relations in the
workplace.
[49]
Moreover, false accusations of racism are demeaning, insulting and an
attack on dignity, more
so when the person attacked, by reason of a
previously disadvantaged background, probably has suffered personally
the pernicious
effects of institutional and systemic racism. As the
Labour Court rightly said in
SACWU
and
Another v NCP Chlorchem (Pty) Ltd and Others
:
[1]
‘
I can hardly
conceive of any place or circumstance or country where, if a person
is told that he is racist, it will not be experienced
by such person
as him or her being insulted and abused.’
[50]
In light of that, the commissioner was justified in finding that
Mayisela ought to have raised
any issues he had regarding Robertson’s
alleged racism in the proper forum. It was not appropriate to attack
Robertson by
way of an e-mail to her, especially when there was no
clear objective basis for it. The appellant had a grievance procedure
with
which Mayisela was familiar as he had lodged grievances in the
past.
[51]
Moreover, while the commissioner based his finding principally on the
e-mail of 10 April 2013,
there were other instances of false
accusation canvassed with Mayisela during cross-examination upon
which the appellant relied
in argument to further demonstrate his
guilt on this charge. For instance, in an e-mail to the NOE dated 26
July 2013, Mayisela,
without substantiation, referred to “issues
of racism and harassments” in Robertson’s office and
stated that
the “situation of racism in the Western Cape will
explode, people are just afraid to talk and rather channel their
advances
to me.” No evidence has been presented confirming that
any employee in Robertson’s office experienced racism. This
e-mail must be viewed in a more serious light given that the NOE
warned Mayisela on 23 May 2013 that he should not make
unsubstantiated
allegations. Without adequate validation of the
accusations, it may be inferred that Mayisela was wrongfully aiming
to discredit
Robertson.
[52]
The evidence thus demonstrates convincingly that Mayisela was guilty
of this charge and that
the Labour Court erred in concluding that the
commissioner decided the issue unreasonably.
Charge
3.2 – An attack on the good name and dignity of the ROE in the
form of unfounded allegations of harassment.
[53]
This charge relates to Mayisela attacking Robertson’s honour,
dignity and good name by
making unfounded accusations of harassment
in responding to reasonable requests that he attend meetings on 4
June 2013, 10 June
2013 and 12 June 2013. It is alleged that
Mayisela’s responses were unacceptable, insolent, rude and
disrespectful.
[54]
There are two parts to this charge. The first relates to the
accusations of harassment and the
second to the employee’s
responses to the meeting requests.
[2]
[55]
Mayisela made various allegations that he was being harassed because
Robertson wanted him to
attend a meeting with her in June 2013. The
commissioner found that her requests were reasonable and within her
discretion to determine
and insist on a meeting with her subordinate.
There was no basis for alleging that that was harassment.
[56]
The finding of the Labour Court on this count is difficult to follow.
It seems to have concluded
that both parties made allegations of
harassment and the charge was unfounded because “it was never
made clear what was harassing
in being told the business of the
[appellant] was to be run, even if the advice was misguided.”
This is not a basis upon
which it might legitimately be concluded
that the decision of the commissioner on this question was
unreasonable. The charge must
be assessed on its merits and the
evidence does not indicate that Robertson in assessing Mayisela’s
performance harassed
him in any way.
[57]
The e-mail of 29 May 2013, in response to an instruction to attend a
meeting on 4 June 2013,
was rude and insulting in that Mayisela told
Robertson that he would tell her things she did not want to hear.
[58]
In the result, the evidence provided a reasonable basis for the
commissioner to conclude that
Mayisela was guilty on this charge made
worse by his communication of the unfounded allegations to
Robertson’s superiors
with the probable intention to embarrass
her.
Charge
4.1 - Threats and intimidation made via e-mail
[59]
This charge alleged that during the period of April 2013 –
November 2013 Mayisela made
a number of threats via e-mail with the
intention of intimidating Robertson.
[60]
There were a number of e-mails in which Mayisela threatened to take
action against Robertson
unless she stopped doing what was upsetting
him. Under cross-examination, Mayisela conceded that he had made
threats to report
Robertson to the CEO, the Board, the Parliamentary
Portfolio Committee and the Minister of Justice and Constitutional
Development.
[61]
The commissioner captured the issue on this charge insightfully as
follows:
‘
The employee’s
case is simply that it is not intimidation to tell someone what you
are going to do. In one sense, I agree;
the employee is certainly
entitled to take whatever steps he may. However, the real thrust of
this charge is that, while the action
(the reporting) may appear
benign or even high-minded, it is actually not, because the purpose
of the threat is to undermine his
superior into simply doing what the
employee thinks she should do, presumably relying on her fear of
being put in a bad light with
those higher up to get his way. In this
sense it is a playground tactic that is yet another manifestation of
insubordination.’
[62]
The Labour Court took the view that there was no evidence that
Mayisela did not believe in the
truthfulness of the allegations he
made against Robertson and that she was issuing incorrect
instructions. In its view, Mayisela’s
disclosures were akin to
protected disclosures under the Protected Disclosures Act
[3]
(“the PDA”) “which should be encouraged rather than
discouraged”. Therefore, the Labour Court reasoned,
the
commissioner had failed to conduct a proper enquiry for this charge
with the result that he reached a conclusion which no reasonable
decision-maker could reach.
[63]
Again, the Labour Court missed the mark. The finding of the
commissioner was that Mayisela had
an ulterior motive in making the
threats and had not followed proper procedure by indulging in “a
playground tactic”.
The Labour Court’s equation of the
circumstances surrounding this charge with the making of a protected
disclosure is misplaced
and misconstrues the provisions of the PDA.
Mayisela was making threats; he was not making any disclosure of
information of any
impropriety to Robertson. Moreover, it is more
than arguable that the threats to report Robertson to the outside
constitutional
bodies (made to her) did not constitute the disclosure
of information which Mayisela had reason to believe (objectively)
showed
or tended to show any impropriety as defined in the PDA.
[64]
On the evidence the conclusions of the commissioner are entirely
reasonable.
The idea that a senior manager,
with legal training, should be permitted to take run of the mill
workplace grievances to the Public
Protector, Parliament and to the
Minister is difficult to sustain. Mayisela’s actions, besides
being insubordinate, reveal
a poor level of judgment supporting the
conclusion that he was not suited to the post he occupied. The
commissioner’s finding
that Mayisela was acting insubordinately
with ulterior motive is accordingly a decision which a reasonable
commissioner could reach
on the evidence.
Conclusion
[65]
It is clear from the arbitration award that the commissioner properly
applied his mind with reference
to relevant considerations when
determining the issue of whether dismissal was an appropriate
sanction. He accepted Robertson’s
evidence that the extent and
repetition of the insubordinate and insolent conduct on the part of a
senior manager had broken the
trust relationship irretrievably. His
conclusion that the dismissal was substantively fair was reasonable
and is not susceptible
to review.
[66]
The appeal against the decision of the Labour Court, therefore, must
be upheld and the application
for review dismissed. This is not a
case in which the employee should be mulcted with costs. The issues
required ventilation and
Mayisela did not act vexatiously and
unreasonably in seeking review or vindication of his position, albeit
unsuccessfully.
[67]
In the premises, the appeal is upheld. The order of the Labour Court
is set aside and replaced
with the following order:
“
The application
for review is dismissed”.
__________________
JR Murphy
Acting
Judge of Appeal
I agree
_________________
B Waglay
Judge
President
I agree
________________
R Sutherland
Judge
of Appeal
APPEARANCES:
FOR THE APPELLANT:
Adv CS Bosch
Instructed
by CK Attorneys Inc
FOR
THE RESPONDENT:
In person
[1]
(
2007)
28 ILJ 1308 (LC) at para 13
[2]
On the surface there is a measure of duplication in this charge and
charge 1.2. In his discussion of procedural fairness, the
commissioner rejected the contention that there had been unfair
splitting of the charges. He held that the language used in an
email
may give rise to discrete charges in the context of workplace
discipline. The Labour Court agreed and there is no cross-appeal
against its finding.
[3]
Act
26 of 2000.