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[2012] ZALCJHB 17
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Public Servants Association of South Africa obo Khan v Tsabadi and Another (JR 2459/09) [2012] ZALCJHB 17; (2012) 33 ILJ 2117 (LC) (25 January 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
Of interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: jR 2459/09
In the matter between:
PUBLIC SERVANTS ASSOCIATION OF SA
on behalf of S KHAN
…...........................................................................................
Applicant
and
M J TSABADI
…..........................................................................................
First
Respondent
PUBLIC HEALTH AND SOCIAL
DEVELOPMENT
SECTORAL BARGAINING COUNCIL
…...............................................
Second
Respondent
GAUTENG PROVINCIAL DEPARTMENT OF
HEALTH
….................................................................................................
Third
Respondent
MEC FOR HEALTH, GAUTENG PROVINCIAL
GOVERNMENT
…....................................................................................
Fourth
Respondent
Heard: 13 October 2011
Delivered: 25 January 2012
Summary: Review application –
insubordination that warrants dismissal depends on the nature and
circumstances of the insubordination
– applicant’s
refusal to obey a lawful instruction – employment relationship
intolerable. Dismissal appropriate
sanction – review
application dismissed.
JUDGMENT
___________________________________________________________________
HULLEY AJ
Introduction
[1] This is an application to review
and correct, alternatively to set aside an arbitration award issued
by the first respondent.
[2] The applicant seeks to have the
award corrected to provide that the dismissal of Dr Khan was
substantively unfair and for her
reinstatement and related relief.
[3] The applicant is recorded as the
Public Servants Association acting on behalf of S Khan, but for the
sake of convenience I shall
refer to Dr Khan as the applicant herein.
[4] The third and fourth respondents
failed to file any opposing papers. They simply filed a notice of
intention to oppose and then
adopted the attitude that they would
simply oppose the application on the papers filed by the applicant
without further ado.
[5] I did not understand Mr Van der
Merwe who appeared on behalf of the applicant to contest the
continued involvement of the second
and third respondents too
vigorously and I am accordingly inclined to allow them to do so.
[6] I should note however that in
terms of Rule 7A (9) of the Labour Court Rules, a party ‘wishing
to oppose’ the granting
of an order ‘must’, within
a period of 10 days from receipt of the amended notice of motion and
supplementary affidavit
or a notice that the applicant intends to
stand by its original notice of motion and affidavit ‘deliver
an affidavit in answer
to the allegations made by the applicant’.
There is nothing in the rule which permits a party to simply file a
notice of
opposition. Indeed, there is nothing in the rule which
requires the filing of a notice of opposition; the intention to do so
is,
presumably, inferred from the filing of the answering affidavit
and its content.
[7] Although the rule suggests that
the filing of the answering affidavit is peremptory (“must”),
I do not think it
is in the interests of justice to adopt a
fastidious approach in cases such as these and my inclination would
be to condone non-compliance
unless there is evidence of prejudice or
at the very least a risk of prejudice to the other party.
[8] In any event, we would do well to
remind ourselves that the rules exist for the courts and not the
courts for the rules.
1
This is not to say that this Court
should encourage a lax attitude by practitioners to the rules, but
rather that it should bear
in mind that the purpose of the rules is
to ensure the inexpensive and expeditious completion of litigation
and that it should
insofar as it is permitted and within the ambit of
its inherent powers interpret and apply the rules in such a manner as
to ensure
rather than stymie this result and the achievement of
justice.
2
[9] The approach adopted by the third
and fourth respondents is not one which is to be encouraged, but the
filing of the notice
of opposition alerted the applicant to the fact
that they intended opposing the relief sought although it did not
indicate on what
grounds they intended to do so. In the
circumstances, however, as previously noted, no prejudice has
resulted (at least none has
been suggested) and I am inclined to
condone non-compliance.
[10] That having been said, I do
believe that the third and fourth respondents were slack in their
observance of the rules and in
the manner in which they opposed these
proceedings. Indeed, the third and fourth respondents, having failed
to file an answering
affidavit, then missed the date for the filing
of heads of argument. In these circumstances, I am of the view that
an appropriate
mechanism with which to censure their laxity is by way
of an appropriate costs order. I will return to this aspect later.
Procedure for the review of
arbitration proceedings
[11] Sadly, as so frequently happens
in review applications to this Court, the proceedings before the
first respondent were not
properly recorded and this necessitated a
reconstruction process.
[12] It is necessary for me to deal
with the rules regarding reconstruction at the outset.
[13] Rule 7A sets out the procedure to
be followed when a party seeks to review a decision or proceedings of
a body or person performing
a reviewable function. This includes the
review of arbitration awards such as in the present case.
[14] Rule 7A, it has been held, like
its close relative, Rule 53 of the Uniform Rules of Court,
3
is not peremptory and has been devised
largely for the benefit of the applicant.
4
An applicant is accordingly not
obliged to follow that procedure and can elect, instead, to follow
the procedure contemplated by
Rule 7.
5
A party who elects to proceed without
the benefit of a complete record runs the risk that she will be
unable to discharge the
onus
which is upon her.
6
Moreover, disputes of fact will be
decided according to the
Plascon-Evans
rule
7
which could be obviated to some extent
where there is a complete record of the proceedings (assuming, that
is, that the ground of
review is based upon an issue which appears
from the record).
[15] Rule 7A(2) provides that the
notice of motion must call upon the person or body whose decision is
sought to be reviewed to
despatch “the record” of the
proceedings sought to be corrected or set aside.
[16] Generally a record may be kept
either in the form of handwritten notes or in the form of a tape or
electronic recording. (See,
for instance, the provisions of Rule
36(2) of the Rules of the Commission for Conciliation, Mediation &
Arbitration.)
[17] The practice appears to be for
the bargaining council or CCMA, as the case may be, to make available
to the Registrar of this
Court the tape recordings of the arbitration
proceedings. The applicant is then notified by the Registrar and he,
she or it must
then endeavour to have the record transcribed.
[18] Once the transcription is
complete, the applicant’s representative must consider the
transcription to ensure that it
is in order. In this regard, Rule 7A
(5) requires the applicant to make copies of such portions of the
record as she considers
to be necessary for the review and to
‘certify each copy as true and correct’. In so far as the
transcription of oral
evidence is concerned, the transcriber
generally certifies the truth and correctness of the transcript based
on what she has heard.
Where the “record”, however,
consists of additional evidence, such as documents, maps or models,
the applicant’s
representative cannot content herself with the
transcriber’s certificate, but must herself so certify.
[19] It often happens that the
transcript is littered with words such as “
inaudible
”
,
“
indistinct
”
,
“
mechanical
interruption
”
or
words to that effect.
[20] Should this happen, the
appropriate action to be taken is for the applicant’s attorney
to endeavour to listen to the
tape recordings with a view to filing
in the gaps in the transcript. The attorney represented the applicant
at the arbitration
proceedings she should be in a good position to
make sense of what the witness was referring to in the portions where
the gaps
appear.
[21] If this process fails to yield a
satisfactory outcome and the applicant is thus unable to certify the
truth and correctness
of the record, the applicant must approach the
arbitrator and the CCMA or bargaining council, point out that the
transcript is
incomplete and request the arbitrator to supplement the
record with her handwritten notes. If the arbitrator is satisfied
that
her notes are a sufficient record of the oral testimony, he or
she should file these and they will then (properly transcribed) stand
as a record of the proceedings. The arbitrator should file an
appropriate notice together with the handwritten notes certifying
the
correctness and accuracy of those notes.
[22] If, however, the arbitrator is
not satisfied that her notes constitute an accurate or sufficient
record she must file a report
stating this fact. A process for the
reconstruction of the record must then be embarked upon.
[23] The first step in the
reconstruction process is to arrange a meeting between the employer,
employee and the arbitrator in order
to “compare notes”
as it were and to fill in any gaps in the record. Each of these
parties plays an important part
in this reconstruction process and
each has an obligation to attend those proceedings and contribute
positively towards the process.
The arbitrator and bargaining council
or CCMA whose obligation was to ensure that a proper record was kept
must, however, arrange
the meeting/s and ensure that they are
properly co-ordinated. Neither party can, however, remain supine and
where there is a failure
on the part of the bargaining council or
CCMA to arrange a reconstruction meeting, both the employer and
employee are obliged to
take measures to ensure that this is done.
[24] The procedure to be followed in a
reconstruction meeting was fully explained by Comrie AJA in
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v.
Commission for Conciliation, Mediation and Arbitration
and Others
8
:
‘
A
reconstruction of a record (or part thereof) is usually undertaken in
the following way. The tribunal (in this case the commissioner)
and
the representatives (in this case Ms Reddy for the employee and Mr
Mbelengwa for the employer) come together, bringing their
extant
notes and such other documentation as may be relevant. They then
endeavour to the best of their ability and recollection
to
reconstruct as full and accurate a record of the proceedings as the
circumstances allow. This is then placed before the relevant
court
with such reservations as the participants may wish to note. Whether
the product of their endeavours is adequate for the
purpose of the
appeal or review is for the court hearing same to decide, after
listening to argument
in
the
event
of a dispute as to accuracy or completeness.
’
9
[25] It seems to my mind that since it
is for the arbitrator and the CCMA or bargaining council to produce
“the record”,
if the arbitrator is satisfied that the
process of reconstruction has enabled him or her to produce such
record and to certify
it as correct she must do so. She must, of
course, record any reservations or objections noted by either the
employer or employee.
They should then file affidavits setting out
the respects in which they contest the correctness of the record,
what they claim
is the correct evidence and the reasons for holding
those views.
[26] An affidavit should be prepared
by the arbitrator to explain the reasons for the lack of a proper
recording in the first place
and, if certain tape recordings were
unavailable, the reasons or possible reasons for their absence. If
the tape recordings went
missing, the arbitrator’s affidavit
must be accompanied by an explanation from the case manager of the
CCMA or bargaining
council or any other person who can swear
positively to such facts, as to the record keeping system of the CCMA
or bargaining council
and what is likely to have happened to the
missing tape recordings.
10
[27] Should it, after the aforesaid
processes have been engaged in, transpire that the record or
substantial portions thereof are
indisputably lost and the parties
are unable to reconstruct those portions, the arbitrator must submit
an affidavit to this effect
to the Court. The Court is then
confronted with a choice ‘either to let the judgment in the
respondent’s favour stand,
or to set it aside and to refer the
matter for hearing
de
novo
.’
11
Either election results in some form
of prejudice to one of the parties and should be embarked upon only
as a last resort.
[28] I should point out that in the
context of appeals in criminal proceedings, the courts have pointed
out that where the official
recordings have been lost or are not
retrievable, the best secondary evidence has to be obtained.
12
This would include, where the tape or
electronic recordings have not been properly transcribed, for
instance, receiving the bench
notes kept by the judicial officer of
the court below.
[29] In the context of criminal
appeals, the route which appears to be adopted is, where the record
cannot be constructed with the
best available evidence, to set aside
the conviction and sentence. Since the decision to institute criminal
proceedings rests with
the Director of Public Prosecutions, the
criminal courts have no power to refer the matter back for a hearing
de novo
.
13
The latter constraint does not apply,
of course, in the context of labour proceedings.
[30] Subject to the latter
observation, it appears to my mind that the approach adopted in the
context of criminal appeals is a
useful guideline for this Court to
follow.
Status of the transcribed record in
the present case
[31] In the present case, the
applicant instituted review proceedings on 23 September 2009. In
compliance with Rule 7A (2), the
notice of motion called upon the
first and second respondents (the arbitrator and the bargaining
council, respectively) to despatch
the record of the arbitration
proceedings.
[32] It is not clear when the tape
recordings in the present case were filed with the Registrar by the
second respondent, but it
appears from the transcriber’s
certificate attached to the transcript of the oral evidence that the
transcription was completed
on 6 December 2009.
[33] On 30 July 2010, a person
identified as D Z Adonis, the General Manager of the applicant’s
trade union, filed a document
styled “Filing Sheet: Transcript
/ Record & Bundles of Documents”. In the document, Adonis
indicated that the “record”
consisting of the arbitration
award, pre-arbitration minute, closing arguments before the
arbitrator, the transcript / record of
the arbitration proceedings
and the bundle of documents used as evidence during the proceedings
(Bundles A to E) were filed therewith
and that such documents were
certified to be ‘a true copy of the transcript provided by the
transcribers and of the bundles
of documents and other documents used
by the parties at the proceedings’.
[34] On 31 August 2010, the applicant
filed its supplementary affidavit and amended notice of motion in
apparent compliance with
Rule 7A (8) (a). The documents were not
filed within the 10-day period prescribed in that rule, but the third
and fourth respondents
made no issue of this and I am not inclined to
do so either.
[35] The transcribers, who are
identified as N. Lotter and S. Laas, provided a certificate in which
they confirmed that –
‘
I
the undersigned, hereby certify that insofar as it is audible, the a
foregoing (
sic
)
is a true and correct transcription of the proceedings recorded by
means of a mechanical recorder …’
[36] The transcribers further noted
that the recording was ‘very bad at some points and parties are
extremely inaudible’.
Presumably the reference to “parties”
was intended to be to the witnesses. The transcribers also noted that
it appeared
that the ‘applicant’s evidence [was] missing
from the record as tapes [were] not supplied’.
[37] The applicant supplemented this
gap in the record by the inclusion of a further twelve pages which
were transcribed from the
handwritten notes of the applicant’s
representative at the arbitration proceedings. This transcription was
accompanied by
a note by the transcriber, a Mrs M James, who
certified that ‘this transcription is a fair reflection of the
handwritten
notes of advocate F J Van der Merwe taken during the
arbitration proceedings in this matter’. (It appears that Mr
Van der
Merwe who appeared in these proceedings on behalf of the
applicant, also represented her in the arbitration proceedings.)
[38] There is no indication by Mrs
James as to when she completed the transcription, but on 10 October
2011, an affidavit was filed
on behalf of the applicant in which she
set out the measures taken to reconstruct the record. This affidavit
was filed in response
to a complaint regarding the status of the
record raised in the heads of argument filed on behalf of the third
and fourth respondents.
[39] The following can be gleaned from
that affidavit and the addenda thereto:
After receipt of the transcript of
the arbitration proceedings (it is not indicated when the
transcription was received) the
applicant’s representative
addressed a letter dated 8 February 2010 to the bargaining council.
In this letter, he stated
that the evidence of three witnesses,
More, Msimango and Khan, who gave evidence on 23 and 24 March 2009
was not contained
in the transcript. He requested the assistance of
the second respondent in establishing the whereabouts of the
missing tape
recordings.
The second respondent apparently
forwarded the request to the first respondent.
On 17 February 2010, the first
respondent replied by way of an e-mail in which he indicated that
he did not have the tape recordings.
He suggested two options: for
him to depose to an affidavit confirming that his award contained
‘sufficient details of
what transpired during the arbitration
proceedings’ or to engage in a reconstruction process.
The applicant adopted the view that
a reconstruction process should be engaged in.
A meeting for the reconstruction of
the missing portions of the oral evidence was arranged for on 3 May
2010, but this meeting
was subsequently cancelled (on the day) due
to the unavailability of the first respondent.
Despite various further attempts,
mostly from the applicant’s side, the parties were unable to
arrange a further meeting.
On 19 August 2010, the applicant’s
representative addressed an email to the second respondent
expressing the view that
little purpose would be served in
continuing with a reconstruction if the first respondent did not
have his notes. He noted
that the third and fourth respondents’
representative, Mr Makka, had apparently lost his notes and that
his own notes
had been made available to Makka. He noted that in
light of these facts ‘the record is now sufficiently
reconstructed’
in his view.
[40] It is unclear from the affidavit
and addenda whether Makka ever agreed with the view that everything
had been done to complete
the reconstruction of the record, but it is
apparent from the correspondence of Makka that he implicitly accepted
that further
engagement in the process was futile. At any rate, at
the hearing of this matter counsel for the third and fourth
respondents acknowledged
that everything had been done.
[41] That having been said, I am not
satisfied that everything had indeed been done to ensure the
reconstruction of the record.
For instance, the first respondent
expressed the view at an early stage that his award adequately
captured the evidence. This issue
was not pursued, at the very least
as a starting point for the reconstruction of the record.
[42] Whatever the case may be,
however, I am not prepared to go behind the apparent agreement of the
parties’ representatives
and, as I have previously indicated,
the rules to ensure the availability of the record are for the
benefit of the applicant who
is entitled to waive his or her right
thereto. I should emphasise that the cases referred to above
regarding the application of
this principle apply to an election by
an applicant between the procedure contemplated by Rule 7 and that
contemplated by Rule
7A. They have not been applied in the context of
an election by an applicant to proceed in circumstances where, having
requested
the record, an insufficient or incomplete record is
presented, thus compelling him or her to make an election on how to
proceed.
[43] On the facts of this case,
however, the process of reconstruction had not, as pointed out above,
been properly dealt with.
Moreover, the applicant’s counsel, Mr
Van der Merwe, insisted in argument before me that the record was
sufficient. This
is thus not a case in which the applicant maintained
its stance that the record was incomplete and that she was not in a
position
to properly review the award.
[44] Mr Lennox, who appeared on behalf
of the third and fourth respondents, urged me to have regard to the
facts as set out in the
arbitration award. I did not understand Mr
Van der Merwe to contest this suggestion
per se
. I am of the
view that this is a useful manner in which to deal with the problem
and accordingly intend to have regard to the arbitration
award where
necessary. There is in any event no suggestion by the applicant that
the record of evidence contained in the award
was incorrect. I
accept, however, that it may not be complete.
[45] Whilst I do have regard to the
transcribed notes which the applicant’s representatives took at
the arbitration proceedings,
those notes are not only terse, but are
cryptic as well. They do not, for instance, contain any lengthy notes
on the line of cross-examination
conducted by the applicant’s
representative. It would have been surprising if it were otherwise.
[46] In the circumstances, and in
light of Mr Van der Merwe’s insistence, I proceed hereunder to
consider the review application
on the limited record before me.
The evidence led at the arbitration
proceedings
[47] The applicant, it appears, took
up employment with the third respondent (to whom I shall hereinafter
to as the Department)
at some stage during 1992 or 1993. At the time
she was employed as the Superintendent of the Department’s
Lenasia South Hospital.
[48] At some stage (it is unclear
precisely when this occurred), the applicant suffered an injury to
her right arm. It appears that
she suffered severe nerve damage
requiring some 18 to 19 operations. The applicant’s use of this
arm was severely compromised
as a result.
[49] The public service underwent a
restructuring process which resulted in a “person-to-post
matching” process in terms
of Resolutions 7 and 8 of the PSCBC.
[50] There was some suggestion in the
documentation that was filed of record that the applicant had
declined to participate in that
process.
14
The applicant’s own account was
that she had in fact accepted that post “with gratitude”
but had requested a job
description relating thereto.
15
[51] At any rate, it appears that the
applicant was absorbed into the post of Medical Advisor at the level
of Deputy Director. This
was the post which she occupied at the time
of her dismissal although she was also described as the Deputy
Director for Tenders
and Contract Management.
[52] It was common cause that the
applicant, in such capacity, reported to Mr Valdis Ramaano, the
Director Supply Chain Management.
[53] Ramaano testified that in
December 2003, he was transferred to the Department from Johannesburg
Hospital (where he had been
employed as the Director of Finance and
Procurement). He was appointed at level 13 as Acting Director,
Administration and Logistics.
He identified and referred to the
applicable job description for the post of Medical Advisor: Tenders
and Contracts.
16
[54] According to Ramaano, his
relationship with the applicant suffered severe strain as a result of
her refusal or failure to do
any work under him. She did hardly any
of the work for which she was responsible and as a result he was
compelled to distribute
this work among various other people,
including her juniors in an effort to ensure that proper service
delivery was maintained.
[55] Ramaano was referred to a file
(Bundle C) containing documentation which the applicant claimed
consisted of work which she
had performed. He testified that none of
the work referred to in that file was within his province and was not
work which the applicant
was employed to perform.
[56] The final straw for Ramaano came
when he requested the applicant to participate in the development of
a tender process involving
the Pretoria Academic Hospital.
Information needed to be requested from various companies in order to
assess the requirements and
the budget allocation for a particular
product. Ramaano testified that the applicant’s response was
that she required authority
from her union or her lawyer first to
perform the work as she had been appointed as the Acting Director to
a Director who was still
on suspension and the documentation relating
thereto was a matter to be utilised in the disciplinary proceedings.
[57] It is unclear from the evidence
precisely what happened next, but the parties concluded an agreement
at the bargaining council
on 8 June 2004. It appears that this
agreement arose out of an unfair labour practice dispute regarding
some alleged assault perpetrated
by Ramaano upon the applicant.
Whatever may have led to the referral to the bargaining council, it
appears from the agreement that
the parties agreed that the applicant
would meet with Ramaano under the chairmanship of a person identified
as Mr E Butshingi and
that they would do so before the end of June
2004 in order to finalise a job description, organogram and her
functional role within
the department.
[58] It was put to Ramaano during
cross-examination that the applicant in an attempt to resolve the
ongoing dispute regarding her
job description prepared a document
setting out her job description.
17
If regard be had to the content of
this document, it appears that, at least by June 2004, the applicant
was aware that her tasks
included tender and procurement
administration. Included in the document is a reference, in addition
to tender and procurement
responsibilities, to clinical trial and
inter-departmental collaboration.
[59] According to Ramaano, the latter
aspects never formed part of the applicant’s job description.
For present purposes that,
however, is irrelevant.
[60] On 23 July 2004, the Head of
Department addressed a letter to the applicant. The letter read as
follows:
‘
Dear
Dr Khan
TRANSFER
TO A POST OF MEDICAL SUPERINTENDENT AT SOUTH RAND HOSPITAL
1.
Our communication regarding the optimal utilisation of your skills
and expertise refers.
2.
In view of the foregoing I have pleasure in informing you, that
subsequent to our communication and having duly considered our
service needs, approval has been granted for your placement in the
capacity of Medical Superintendent at South Rand Hospital, with
effect from the 1
st
of August 2004.
3.
I trust that you will accept your placement as expounded above
favourably and that you will be happy and successful in your new
work
environment.
4.
We request that you should sign the attached form to indicate
acceptance / non-acceptance of this offer, within five (5) working
days from date of receipt of your letter
.’
[61] The letter was signed on behalf
of the Head of the Department.
[62] It is not clear what document was
attached thereto.
[63] I pause, once again, to note that
there does not appear to have been any dispute between the parties as
to whether the Department
was entitled to insist on an employee being
transferred without his or her permission. Having regard to the
provisions of section
14 of the Public Service Act,
18
it may well not be open to an employee
within the public service to challenge his or her transfer provided
it is within the “public
interest” and the transfer has
been effected on the authority of a person having the power to take
such decision.
[64] There was no challenge, it
appears, either in the arbitration proceedings or in the proceedings
before this Court as to the
entitlement or power of the Department to
insist on the applicant being transferred. I will accordingly, for
the purposes of this
matter, proceed on the assumption that the
Department was entitled to insist upon the transfer of the applicant
in terms of the
applicable legislation. (At this stage I say nothing,
yet, as to whether the Department in fact so insisted. As it so
transpired,
there is a dispute as to whether the Department had in
fact provided an instruction or whether it was merely a request. I
will
deal with that issue
anon
).
[65] It will be noted from the
arbitration award that the first respondent considered the aforesaid
issue on the basis of Ramaano’s
managerial prerogative. Whether
this is legally tenable is not a matter which I need consider as
there was no challenge to this
aspect.
[66] According to the applicant, she
was initially presented with the offer set out in the letter of 23
July 2004 in a verbal form
and shortly thereafter in the form of the
letter. She claimed that she had rejected the offer at that stage and
did not, when subsequently
presented with the letter, consider that
she was required to formally reject the offer in writing.
[67] An
impasse
developed which
led ultimately charges being proffered against the applicant. The
nature and terms of this
impasse
were recorded in a series of
correspondence exchanged between the parties. I will deal with that
correspondence under a different
heading below.
[68] In a charge sheet dated 8 April
2005, the Department proffered the following charges against the
applicant.
‘
It
is alleged that you:
Charge
1
Are
guilty of misconduct in that you failed to carry out lawful order or
routine instructions in that on the 23
rd
July 2004 you
were instructed by letter to assume duties at South Rand Hospital but
you failed to follow the instructions, a follow-up
letter dated 4
th
October 2004 was presented to you but you were still defiant.
Alternative
to charge 2
Guilty
of insubordination in that you failed to report to South Rand
Hospital as instructed by letter dated 23
rd
July 2004 and
a subsequent letter dated 4
th
October 2004.
Charge
2
Are
guilty of misconduct in that you failed to comply with your contract
of employment whereby you promised to let your services
to the
Department of Health for a salary, but you report to work every day,
sit in your office without performing any duty.
Charge
3
Guilty
of misconduct in that you prejudice the administration and discipline
of the department in that you occupy the office of
the Department on
daily basis without rendering any services.
Charge
4
Guilty
of misconduct in that you failed and still failing to take reasonable
instruction from your Supervisor, which amounts to
insubordination.’
[69] Disciplinary proceedings ensued.
These were interspersed by lengthy delays (and I will deal with those
below).
[70] In a document dated 4 December
2006, the chairman delivered his findings. He concluded that the
applicant was guilty as charged,
but noted that charges 2 and 3
“flows from one charge” and made “a combined
finding of guilt as one charge”.
[71] After evidence in mitigation and
aggravation was received the applicant was informed that her services
had been terminated
and affording her the right of appeal.
[72] The applicant, through her union,
lodged an appeal on 16 February 2007. The appeal failed.
[73] The applicant then referred a
dispute concerning an unfair dismissal to the second respondent.
The arbitration award
[74] The first respondent analysed the
evidence and concluded that the dismissal of the applicant was fair
both substantively and
procedurally. He dismissed the application.
[75] In arriving at his conclusion,
the first respondent reasoned as follows:
With regard to the
first charge, the uncontested evidence before him was that a
meeting was held with the applicant and her
representative when she
was requested to indicate the duties that she was performing. It
was established in that meeting that
some of the activities that
the applicant indicated were her core functions were performed
elsewhere and that the applicant
was unable to account for what she
was doing in the Supply Chain Management Unit.
Pursuant to that
meeting, the Department made a business decision to transfer the
applicant to South Rand Hospital as a hospital
superintendent as
that hospital required one. The applicant and her representative
were called to a further meeting where this
decision was
communicated to them and the applicant requested to respond in
writing within five days. She failed to do so.
Mr. Henry Hall, the
applicant’s representative, in that meeting, testified that
it was unnecessary to respond in writing
as they had verbally
rejected the transfer. The applicant, on the other hand, testified
under cross-examination that she would
under no circumstances
accept the transfer, no matter what the exigencies of the
Department dictated as she had been absorbed
into a different post.
The applicant's claims
that that her clinical skills were no longer as sharp as they used
to be were to be rejected as the Department’s
witnesses
established that this had been taken into account when the she was
to be transferred and the compromise was that
she was to be
utilised in a managerial as opposed to a clinical position and
would only in extreme circumstances be required
to perform clinical
functions.
The applicant was a
medical doctor by profession and she was not being gainfully
employed in the Supply Chain Management unit.
In an attempt to
utilise her skills, the Department sought to transfer her to South
Rand Hospital but she rejected the transfer
verbally.
The transfer of an
employee in accordance with the exigencies of the business remained
a managerial prerogative and whether
this was an order or a request
was immaterial.
‘
It
remains a fact that the Applicant was advised in writing that she
would be transfer[red] to South Rand Hospital and she refused
without offering any excusable reasons’.
A refusal to obey a
lawful and reasonable instruction carries with it the highest
penalty in labour law, i.e. dismissal.
The dismissal of the
applicant on this basis was accordingly fair.
In so far as the second charge was
concerned, the applicant’s evidence that she had performed
the work set out in Bundle
C had to be rejected based on Romaano’s
evidence that
those
tasks had nothing to do with Supply Chain Management.
Moreover, since her
salary was paid from the budget of Supply Chain Management, it made
sense that her work would be related
to the work performed by the
Department which paid her salary.
The irresistible
inference to be drawn from the aforesaid was that the applicant did
not render any services to the Supply Chain
Management directorate.
This was corroborated by Ramaano's unchallenged testimony that he
had to re-allocate work that the
applicant refused to do to some
other individuals in the Department to avoid compromising service
level agreements with other
departments / institutions.
The grounds of review
[76] The applicant attacks the award
on several bases.
I summarise these below.
[77] First, the applicant argued that
the finding by the first respondent that it was “immaterial”
whether the terms
of the letter of 23 July 2004 and the verbal
discussion which preceded it constituted an “instruction”
or not was legally
untenable.
[78] In this context, the applicant
contended that it was impermissible and contradictory for the first
respondent to hold the aforesaid
view and, at the same time, find the
applicant guilty on a charge of failure to carry out a lawful and
reasonable instruction.
[79] Second, the applicant argued that
assuming she was correctly found guilty of a failure to obey the
instruction the first respondent
“ignored” certain
crucial evidence, primarily her testimony that she had rejected the
offer both verbally and in writing
and the Department should have
advised her whether it accepted her rejection before charging her.
(To be fair to the applicant
the substance of this ground of review
is that the applicant was wrongly found guilty of the first charge in
the first place.)
[80] Third, in so far as the second
charge was concerned, the applicant argued that the first respondent
failed to have due regard
to the fact that the parties had concluded
a settlement agreement regarding the finalisation of her job
description. This, she
argued, was an indication that she was
uncertain of what her job description entailed and the first
respondent paid insufficient
regard to this.
[81] Fourth, the applicant contended
that the first respondent’s finding that she had betrayed her
position of trust was unsupported
by the evidence, both because she
was not guilty of the charges in the first place and because no
evidence was led of a breakdown
in the relationship of trust. The
latter point, she contended, is underpinned by the fact that the
Department had in fact invited
her to an interview for a promotion to
a different post.
[82] Fifth, the applicant argued that
assuming that she was guilty of the charges there was no evidence
that dismissal was the appropriate
sanction.
Inter alia
, she
had a clean record, there was no evidence that the relationship of
trust had broken down and the employer had not followed
the principle
of progressive discipline.
[83] Sixth, in so far as the procedure
was concerned, the applicant argued that the first respondent erred
in finding that she was
to blame for the various delays in concluding
the disciplinary proceedings over a period of 1 ½ years.
The merits of the review
application
[84] I turn now to consider the merits
of this application.
[85] The primary focus of Mr Van der
Merwe’s argument before this Court related to the absence of an
instruction in the letter
of 23 July 2004. Mr Van der Merwe contended
that the manner in which the first respondent dealt with this aspect
in his award was
inexplicable and irrational.
[86] It will be recalled that the
arbitrator found that –
‘
[T]ransfer
of an employee in accordance with the exigencies of the business
remains a managerial prerogative. Whether or not this
was not and
order but a request subject to rejection by the Applicant is
immaterial. It remains a fact that the Applicant was advised
in
writing that she would be transfer[red] to South Rand Hospital and
she refused without offering any excusable reasons’.
[87] Mr Van der Merwe contended that
the first respondent’s finding that it was “immaterial”
whether “this”
was an instruction or not was in conflict
with his subsequent finding that the applicant was guilty of
insubordination for failing
to comply with an instruction.
[88] At first blush there appears to
be much merit in Mr Van der Merwe’s criticism of the award on
this aspect. Unless there
was a lawful and reasonable instruction
given to the applicant she was under no obligation to follow that
instruction, much less
where no instruction was given in the first
place. Thus, it would be irrational for the first respondent to find,
on the one hand,
that it was irrelevant whether an instruction was
given and, on the other, that the dismissal of the applicant for
failure to comply
with the instruction was fair. These conclusions
are mutually exclusive. Indeed, I must confess that I was initially
persuaded
by this argument.
[89] However, upon consideration of
all the evidence in the record it seems to my mind that the first
respondent’s award,
though not a model of clarity in this
regard, must be understood in a different sense to that for which Mr
Van der Merwe contended.
[90] There is a series of
correspondence exchanged between the applicant and the Department (to
which I promised to return and now
do) which, it appears, was what
the first respondent had in mind. The reference to “this”
in the sentence ‘whether
or not this was not an order’
refers, it appears, to the letter of 23 July 2004. In the subsequent
statement ‘the Applicant
was advised in writing that she would
[be] transfer[red] to South Rand Hospital and she refused …’
the words “in
writing” do not refer (as Mr Van der Merwe
contended) to the letter of 23 July 2004. It refers, to my mind, to
the series
of subsequent correspondence.
[91] To understand the first
respondent’s reasoning on this score, I will commence with a
consideration of the letter of 23
July 2004. Mr Van der Merwe’s
argument was that the letter did not contain an instruction. This was
based upon a reading
of the provisions of paragraph 4 of the letter
which required the applicant to indicate her ‘acceptance /
non-acceptance
of this
offer
’ (my emphasis).
[92] Mr Van der Merwe acknowledged
that that interpretation was at odds with what was contained in
paragraphs 2 and 3 of the letter
in which it was suggested that the
placement was a forgone conclusion.
[93] There was thus a conflict in the
letter and were it not for subsequent events the argument of Mr Van
Der Merwe would have held
sway.
[94] However, what in fact happened
next was captured in a series of correspondence between Mr Greg
Higgins of Bowman Gilfillan
Attorneys, the applicant’s
erstwhile attorneys, and Ms J More, the Department’s Director,
Labour Management.
[95] On 1 September 2004, Higgins
addressed a letter to More in which he complained about the failure
of the Department to comply
with the terms of the settlement
agreement. Higgins indicated that unless the terms of the agreement
were complied with by 11 September
2004 application would be made to
the Labour Court to have the settlement agreement made an order of
court.
[96] In response to that letter, More
addressed a letter dated 22 September 2004 to Higgins of Bowman
Gilfillan Attorneys.
19
(Although the letter indicates that it
was sent in response to a letter from Bowman Gilfillan Attorneys’
letter of 21 September
2004, on the face of it, it is in fact a
response to the letter dated 1 September 2004).
[97] In her letter, More complained
that there were a number of inconsistencies in Higgins’ letter
(it appears that what she
actually meant was that a number of
statements of fact which were incorrect). She continued:
‘
Your
client has not informed you that in our last meeting, the Department
gave her a letter informing her to move to South Rand
Hospital. She
is going to be a Medical Superintendent at that institution. The
meeting agreed that PSA and Dr S Khan will respond
in writing, within
five days to the letter. It is almost two months [but] we have not
received[d] a response.
Dr
Khan is currently not do[i]ng anything. She is just sitting in her
office. Your client is a Manager and understands the responsibilities
of her level. Should your client not report for duty at South Rand
Hospital by the 30/09/2004 the Department will charge her in
terms of
our Disciplinary Code and Procedure….’
[98] In her letter of 22 September
2004, More called for a copy of the settlement agreement, the
existence of which she was at that
stage still disputing.
[99] On 27 September 2004, Higgins
addressed a letter to More in response to her letter of 22 September
2004. He attached a copy
of the agreement and then stated:
‘
4.
Despite the aforementioned settlement agreement not being complied
with by the Department, our client was
unilaterally
advised
that she was
being
moved
to
South Rand Hospital to
take
up
the
position as a medical superintendent. Apart from this being
unilaterally
implemented
without
first complying with the terms of the agreement, it is well-known by
the department that our client’s health is not
up to the
demands of the position of superintendent. In the circumstances our
client is simply not in a position to take up the
offer.
5.
Our client denies that she is currently not doing anything. Our
client finds such an allegation startling and supports our client’s
contention that the department is ill-informed as to the nature of
our client’s daily activities. Our client’s instructions
are that she is kept busy at work doing a variety of research.’
20
(Emphasis
added.)
[100] It is apparent from the letter
of Higgins dated 27 September 2004 that he was of the view that the
Department had taken a
“unilateral” decision to move the
applicant to South Rand Hospital to take up the position as a medical
superintendent.
Higgins expressed the view that the applicant could
not take up “the offer” because the agreement had not
been complied
with and she was precluded due to her state of health
from doing so. Notwithstanding his reference to this as “an
offer”,
it is apparent that he was of the view that the
Department had adopted a firm stance. In other words, it is apparent
that he was
of the view that the applicant was under an instruction.
[101] On 29 September 2004 More
responded with a letter to the following effect:
‘
We
refer to your letter dated 27/09/2004.
The
document you faxed to us is not [a] settlement agreement of any
dispute between Dr Khan and Gauteng Department of Health. The
Agreement was a commitment between Dr Khan and Gauteng Health
Department to hold a meeting. A meeting was held between Dr Khan
represented by PSA and the Department of Health. The Department of
Health was represented by Mr Butshingi, Ms J. More and Mr V.
Ramaano.
During
that meeting your client, Dr Khan, could not tell the meeting what
her actual work is on a daily basis, weekly or monthly.
Dr Khan was
then given a letter informing her about her transfer to South Rand
Hospital. Dr Khan and her representative indicated
that they will
respond within (5) days to the letter. We have not received anything
from Dr Khan or her representative.
The
only response, we got was from yourselves threatening the Department
about referring Dr Khan’s matter to [the] Labour
Court. The
decision to move Dr Khan is not a unilateral action by the
Department.
The
Head of Department has the right to move or transfer staff based on
operation requirements.
We
are also not aware of any health condition that Dr Khan has that
would inhibit her from performing Superintendent’s functions.
We would like to reiterate that
should
Dr Khan not report at South Rand Hospital by the 30
th
of
September 2004, we will proceed to charge her in terms of
Disciplinary Code and Procedure
.’
21
(Emphasis
added.)
[102] One can hardly imagine a more
strongly worded instruction. Indeed, More goes so far as to point out
that disciplinary proceedings
would follow for non-compliance.
[103] Thus, whatever ambivalence may
have been expressed in the letter of 23 July 2004 and whatever doubt
might have existed in
the mind of the applicant upon receipt of that
letter, such was removed by the series of letters sent by More.
[104] On 30 September 2004, Higgins
responded to the aforesaid letter. He wrote:
‘
Dear
Madam,
GAUTENG
DEPARTMENT OF HEALTH / DR S KHAN
We
refer to your letter dated 29 September 2004.
Our
client’s instructions are as follows:-
1.
Our client begs to differ with your interpretation of the agreement.
The agreement itself states quite clearly that the parties
were to
meet before the end of June 2004 in order to finalise the following:-
1.1
job description;
1.2
Organogram;
1.3
Her functional role in the Department
2.
The fact of the matter is to date the aforementioned issues have not
been finalised. Our client’s instructions in this
regard are
that a number of meetings which were arranged by our client were
postponed. In short, none of the issues referred to
in the agreement
were ever finalised.
3.
Whenever our client referred to the agreement, the Department’s
stance was that our client’s position was redundant.
On several
occasions the Department requested our client to furnish the
Department with information about what our client did within
the
Department. This is indicative of the fact that the Department does
not know what our client’s job description is and
what her
functional role is within the Department.
4.
Despite non-compliance by the Department with the terms of the
agreement, our client was unilaterally advised that she was to
transfer to the South Rand Hospital in order to take up the position
as a medical superintendent. Despite being advised that our
client
was not medically capable of assuming this position and that this was
well-known within the Department this information
was challenged and
our client was instead threatened with disciplinary action. One would
have assumed, at the very least, that
the Department would have been
prepared to have investigated the issue of our client’s medical
condition before threatening
her with disciplinary action.
5.
In any event, and in order to ensure that our client’s
interests are protected, you are called upon to provide us with
the
following information:-
5.1
When was the
decision
made
to move
Dr Khan to South
Rand Hospital?
5.2
Who made the
decision
? To the extent that the decision was
made at a meeting of the Department, we require a copy of the minutes
of such meeting.
5.3
Precisely what are the reasons for the Department’s
decision
to unilaterally transfer our client to South Rand Hospital
?
5.4
When was it first raised as a possibility that our client would be
transferred to South Rand Hospital?
5.5
Precisely what are the operational requirements which have
resulted
in our client’s unilateral transfer
?
5.6
In terms of what authority is it alleged that the Head of Department
has
the right to transfer our client to South Rand Hospital
,
especially given the fact that no process of consultation has been
complied with?
6.
Our client has explained to the Department the nature of her work.
However, it would appear that since our client’s disciplinary
hearing, there has been an orchestrated campaign to try and reduce
the extent of our client’s work within the Department.
This is
an issue which our client intends dealing with in the appropriate
forum in due course.
Until
such time as the aforementioned questions have been answered, we do
not believe that there is any legal basis for you to institute
disciplinary proceedings against our client.
In
the interim, all our client’s rights are strictly reserved.’
(Emphasis added.)
[105] This letter and the emphasised
portions in particular make it clear that Higgins considered that a
“decision”
had been taken to transfer the applicant.
Although Higgins appears to have been in the nascent stages of
challenging the lawfulness
of that decision (for which he required
further information) there was no indication that he or the applicant
considered it to
be anything other than an instruction.
[106] On 25 October 2004, the HOD
addressed a further letter to the applicant in which it was noted
that she had in fact not assumed
the post “offered to you”
as Medical Superintendent at South Rand Hospital and did not
indicated any reasons for not
doing so. The letter proceeded to state
that she was afforded the opportunity within three working days from
date of receipt of
the letter to inform More of her reasons for
non-compliance.
[107] The applicant responded in terms
of a letter dated 28 October 2004. The letter is headed ‘PLACEMENT
/ REDEPLOYMENT OF
STAFF DURING THE TRANSFORMATION AND RESTRUCTURING
PROCESS OF THE PUBLIC SERVICE IN ACCORDANCE WITH THE DIRECTIVES OF
PSCBC RESOLUTION
7 OF 2002’.
[108] In that letter the applicant
pointed out that she had been summoned to a meeting in August 2004
with More where she was presented
with a letter which dealt with her
transfer to South Rand Hospital as a Superintendent. She went on to
state that –
‘
both
Henry [Hall, the applicant’s representative at that meeting]
and I declined indicating that I had
already
accepted the post offered to me after Resolution 7 of 2002, in
October 2003’. (Emphasis in the original)
[109] The applicant proceeded to
complain that she was already in a post in the central office and
that she had been ‘assured
that the conditions of service were
to remain the same as per the October 2003 letter from the Human
Resources Directorate, and
signed by Ms More’.
[110] Despite her use of the word
“offer” or variations thereof it is apparent that the
applicant knew that she had
been instructed to proceed to South Rand
Hospital. The thrust of her letter is an argument as to why she
should not be transferred,
pointing out that she had been given a
previous assurance that her conditions of service would remain the
same and, further, that
was precluded because of the injury to her
left hand from transferring.
[111] In the circumstances, I am
satisfied on the documentation which was before the arbitrator, that
his conclusion that what was
set out in the letter of 23 July 2004
was “immaterial” when one had regard to the
correspondence which followed.
[112] This line of attack on the award
must accordingly fail.
[113] In his heads of argument Mr Van
der Merwe referred to a passage in Le Roux and Van Niekerk,
The SA
Law of Unfair Dismissal
, where the learned authors expressed the
view that it would be unfair to dismiss an employee where her refusal
to obey an instruction
was not unreasonable. Mr Van der Merwe pointed
out that the applicant had a reasonable basis to refuse to transfer
given her medical
condition and the requirements of the post of
Superintendent at South Rand Hospital.
[114] I have not been able to locate
this text book and cannot comment on the context in which the learned
authors assert the aforesaid
principle. However, the scope for the
application of this principle must, if at all possible, be very
narrow. In the first place,
I fail to see how an employer can
reasonably give an instruction which the employee can reasonably
decline to follow. Logically,
and leaving aside semantics, both
stances cannot be reasonable. If an employer provides a reasonable
instruction ignorant of certain
facts which affect the employees
ability to comply with such an instruction and the employee
subsequently declines to follow the
instruction, then the original
instruction would not be unreasonable, but the employer’s
subsequent insistence on the employee
complying therewith (after
those facts are brought to the employer’s attention) would be.
On the other hand, if an employee
is given a reasonable instruction
and she refuses (by which I mean she does so through some expressed
or overt act) to comply therewith
due to certain facts which are
known only to her, she would be guilty of insubordination, although
those facts (if disclosed at
the disciplinary enquiry, of course)
would amount to mitigation. I hazard to suggest that no employer
would, depending on the circumstances,
persist with charging an
employee once the reason for the refusal is disclosed, but that is a
different issue.
[115] Whatever the merits in the
principle expressed by Le Roux and Van Niekerk, it can have no
application to the facts of the
present case. The first respondent
accepted that it had been made clear to the applicant that she was
not going to be required
to perform any clinical work except in
emergency situations and that she would be employed largely in a
managerial / administrative
capacity. There is no suggestion that
this finding by the first respondent was irrational or unjustifiable.
In the circumstances,
the applicant could not continue to refuse to
obey the instruction to transfer. The fact that she at no stage
revised her stance
after a lengthy period during which correspondence
was exchanged, demonstrates that she had no intention of complying
with the
instruction. The first respondent noted that even at the
arbitration proceedings the applicant made it clear that she would
‘under
no circumstances accept the transfer’.
[116] By its very nature the
employment relationship places certain obligations upon the employee,
two aspects of which are the
generic duties of the employee to
maintain an harmonious relationship and to co-operate with her
employer. Brassey notes that the
employee’s obligation to
ensure an harmonious relationship with the employer and other staff
requires that she should do
nothing to undermine it.
22
The learned author points out that
employers ‘and the managers through whom they enforce their
will, are likewise entitled
to respect’ and that failure to
demonstrate this amounts to insubordination which suggests, he says,
that the offence ‘consists
in a failure to submit to the
employer’s authority’.
23
[117] In
Commercial
Catering & Allied Workers Union of SA and Another v Wooltru Ltd
t/a Woolworths (Randburg)
24
the Industrial Court held that:
‘
the
offence of insubordination is constituted by the following: When the
employee refuses to obey a lawful and reasonable command
or request
and the refusal is wilful and serious (wilful disobedience), or when
the employee's conduct poses a deliberate (wilful)
and serious
challenge to the employer's authority.
’
25
[118] This view has been endorsed by
Grogan who, citing the above authorities, noted that ‘employees
are obliged to respect
and obey their employers because lack of
respect renders the employment relationship intolerable and
disobedience undermines the
employer's authority’.
26
[119] In
Transport
& General Workers Union and Another v Interstate Bus Lines (Pty)
Ltd,
27
an employee tore up the notes of the
chairman at a disciplinary enquiry into alleged misconduct. The Court
held that his behaviour
amounted to ‘gross insubordination’
and although the court could not find that it was calculated to
challenge the respondent's
authority, it nevertheless had ‘the
effect of disregarding the respondent's authority and of making a
mockery of the respondent's
disciplinary procedure’. The Court
accordingly found the dismissal to have been substantively fair.
[120] In
Commercial
Catering & Allied Workers Union of SA and Another v Wooltru
,
supra
,
the Court defined insubordination in the following manner.
‘
It
is also of extreme importance to note that insubordination is not the
same as insolence - as clearly appears from the above quoted
dictum
in the
Moonian
v Balmoral Hotel
case.
The
Shorter Oxford English Dictionary
(1973)
refers to insubordinate as: 'not obedient to the orders of superiors'
and to insubordination as: 'resistance to or defiance
of authority;
disobedience'. On the other hand insolence is defined as: 'offensive
contemptuousness of action or speech due to
presumption'; and
insolent is defined as: 'contemptuous of rightful authority;
presumptuously contemptuous; impertinently insulting'.
Likewise,
Collins
English Dictionary
(1983)
does not regard insubordination and insolence as synonyms. Insolent
is defined as: 'offensive; impudent or disrespectful'.
It is clearly
a synonym for cheeky which is defined as: 'disrespectful in speech or
behaviour; impudent'. Disrespectful (the other
synonym for both of
these words) is defined as: 'contempt; rudeness; lack of respect
for'. It is clear that insolence, disrespect,
rudeness and impudence
are birds of a feather. On the other hand, insubordinate is defined
as: 'not submissive to authority; disobedient
or rebellious'.
Disobedient is defined 'as not obedient; neglecting or refusing to
obey'.
It
is clear that (even though he can be both at the same time) an
employee can be insolent (impudent, cheeky, disrespectful or rude)
without necessarily being insubordinate (disobedient or challenging
authority). Mere disrespect for the employer (or insolence,
impudence, cheekiness or rudeness) cannot by itself constitute
insubordination which by its very nature requires disobedience or
an
outright challenge to authority. As has been fully explained above,
insubordination can manifest itself in the refusal to obey
a
reasonable and lawful command or in the challenge (or resistance) to
or defiance of (see especially
The
Shorter Oxford English Dictionary
above)
the authority of the employer. It is, of course, required that the
insubordination must be deliberate (wilful) and serious
(above). This
is not to say that contemptuousness of authority (insolence,
impudence, cheekiness, disrespect or rudeness) cannot
constitute a
ground for dismissal (provided, of course, that it is wilful and
serious). One should, however, always distinguish
between
insubordination on the one hand and insolence on the other hand
because they are definitely not the same kind of offence.’
28
[121] The employment relationship
entails a
quid pro quo
.
In exchange for a salary and other benefits the employee agrees
inter
alia
to place her services
at the disposal of the employer and to obey the lawful and reasonable
instructions of the employer on how
those services are utilised. The
employee cannot refuse to obey the lawful instructions of the
employer whilst at the same time
drawing a salary.
[122] I am satisfied that there was
sufficient evidence before the first respondent to find the applicant
guilty of a failure to
obey a lawful instruction.
[123] The question remains, however,
whether the sanction of dismissal was appropriate in the
circumstances. This is the fifth ground
of review as outlined above.
It is appropriate to deal with it at this stage.
[124] The first respondent dealt with
this aspect fairly tersely. He noted only that a ‘Refusal to
obey a lawful and reasonable
instruction carries with it the highest
penalty in labour law, i.e. dismissal.’
[125] I do not think that this is a
fair reflection of the law. Much depends upon the circumstances, the
nature of the insubordination
and the circumstances surrounding the
employees conduct, the manner in which the refusal was conveyed, the
length of service of
the employee and any and all other factors
relevant to aggravation and mitigation.
[126] On the facts of the present
case, however, the length of the applicant’s employ, her clean
record and other mitigating
factors were all offset by the fact that
the applicant’s refusal endured for a substantial period of
time and that she continued
in the interim effectively to do none of
the work for which she was employed. Her conduct was accordingly
sufficient to warrant
her dismissal. I cannot fault the first
respondent’s conclusion in this regard.
[127] The fact that the applicant did
perform other work cannot alter this conclusion. The point is that
she was required to work
in the Supply Chain Management department.
The fact that she was unable to point to a single task which she had
performed relating
to the functions of that department is very
disturbing. The applicant cannot choose which tasks she enjoys and
perform those and
which she does not and refuse to do those.
[128] This effectively takes care of
the first two and the fifth grounds of review as set out above.
[129] In so far as the third ground of
review is concerned, I cannot agree with the argument that the first
respondent had insufficient
regard to the evidence surrounding the
settlement agreement. The first respondent set out in detail the
argument advanced by the
applicant in this regard.
29
The first respondent accepted the
evidence of More and Ramaano on this aspect, however.
[130] More testified that a meeting
had been arranged with the applicant and her union representative
during which the applicant
was required to explain what functions she
performed but was unable to provide a satisfactory explanation. In
terms of this evidence
most of what the applicant described to More
as her core functions were not performed within the Supply Chain
Management department
or had been allocated to other personnel.
[131] Ramaano, on the other hand,
testified that all the work which the applicant claimed she performed
(which was captured in Bundle
C) did not relate to his department.
[132] I have already made the
observation above that the applicant clearly knew by June 2004 that
some of her functions entailed
tender and procurement administration.
Yet this is precisely the work which she refused to do.
[133] In the circumstances, I cannot
find that the arbitrator’s award is reviewable on this ground.
[134] In the fourth ground of review
as outlined above, the applicant complains that the first respondent
had no evidence before
him upon which he could come to the conclusion
that she had betrayed her employer’s trust.
[135] In his award, the first
respondent described the applicant as occupying a position of trust
and breaching that trust in the
manner in which she behaved (a) by
refusing to obey a lawful instruction and (b) by not attending to her
duties. As I understand
the reasoning of the first respondent, he was
of the view that the applicant occupied a senior position both within
the employer’s
structures and within the trade union. She
appreciated the nature of her responsibilities and the consequences
of her conduct.
By persisting with her conduct ‘over a long
period of time’,
30
she breached the trust that had been
reposed in her.
[136] Whilst there is undoubtedly an
element of trust which an employer reposes in an employee to perform
his or her work, it seems
to my mind that the authorities on the
subject when talking about a breakdown of trust are concerned more
with the integrity of
an employee and not with her refusal to obey
instructions
per se
.
The first respondent does not say as much when dealing with this
subject, but it is apparent from the evidence of both More and
Ramaan
(which the first respondent accepted) that the manner in which the
applicant avoided performing her work had implications
on her
integrity.
[137] I cannot say that no arbitrator
could reasonably come to this conclusion.
[138] I turn now to consider the sixth
ground of review and the attack on procedural fairness. Under this
rubric the applicant complained
that the first respondent wrongly
apportioned the blame to her for the delay in finalising the
disciplinary proceedings.
[139] To consider this submission, I
must deal with what transpired after the charges were proffered
against the applicant. It will
be recalled that the charges were
proffered against her in terms of a notice dated 8 April 2005
[140] On 4 May 2005, Higgins addressed
a letter to More in which he pointed out that the charge sheet had
only been served on his
client on 3 May 2005 and the hearing was
scheduled for 11 May 2005. He indicated that his client would not be
sufficiently prepared
for a hearing by that date and requested that
it be postponed to the week of 18 May 2005.
[141] Higgins indicated in his letter
that his client was the Vice President of the Public Service
Association and that there was
a ‘long and involved history
concerning our client’s employment’. As a result, he
contended that his client should
be allowed legal representation at
her disciplinary enquiry.
[142] The applicant’s request
for legal representation created a great deal of consternation and
conflict between the parties
at the disciplinary enquiry and in the
arbitration proceedings. It has reared its head in these proceedings
yet again albeit in
a slightly different guise. It is perhaps
appropriate that I should, at this stage, deal with the question of
legal representation
before returning to the chronology of events
relevant to the present ground of review.
[143] The entitlement to legal
representation is dealt with in terms of Clause 7.3.f of Resolution 1
of 2003. I was advised in argument
that the resolution outlined the
terms of a collective agreement which was binding upon the parties.
[144] Clause 7.3.f is fairly specific.
It reads as follows:
‘
In
a disciplinary hearing, neither the employer nor the employee may be
represented by a legal practitioner, unless –
The
employee is a legal practitioner or the representative of the
employer is a legal practitioner and the direct supervisor of
the
employee charged with misconduct; or
The
disciplinary hearing is conducted in terms of paragraph 7.3.c;
For
the purposes of this agreement, a legal practitioner is defined as a
person who is admitted to practice as an advocate or
an attorney in
South Africa.’
[145] In my view, the meaning to be
afforded to the provisions of clause 7.3.f are fairly clear: unless
the circumstances contemplated
in sub-paragraphs (i) and (ii) apply,
neither the employer nor the employee may be represented by a legal
practitioner. On the
face of it, it appears that the intention of the
parties was to prohibit the use of legal practitioners representing
either the
employer or employee in disciplinary enquiries save in the
circumstances contemplated therein.
[146]
En
passant,
I should mention
that Clause 7.3.c deals with a form of pre-dismissal arbitration.
[147] Mr Van der Merwe sought to
contend that the arbitrator somehow retained some form of discretion
to allow legal representation
notwithstanding his acknowledgement
that on the express wording of the provision legal representation was
not permitted. For the
reasons set out below, I disagree with Mr Van
der Merwe’s argument.
[148] A person has no right to legal
representation before a disciplinary tribunal.
31
[149] The position is that the
chairperson of a disciplinary tribunal retains a discretion whether
to permit legal representation
in given circumstances. Whether the
employee should be afforded legal representation is a function of his
right to fair treatment.
32
[150] The question which arises in the
present case however, is different. In the present case, the unions
have concluded a binding
collective agreement. The question thus is
not whether the chairperson in these circumstances retains any
residual right to afford
a party legal representation. The question
is whether, on a proper construction of the agreement, the parties
thereto intended
to provide the chairperson with such a discretion.
[151] A similar situation arose in the
case of
MEC: Department of
Finance, Economic Affairs & Tourism, Northern Province v
Mahumani
33
(hereinafter referred to as
Mahumani
).
In that case the Court was called upon to determine the issue in the
context of Resolution 2 of Public Service Resolution 2 of
1999. It
appears that that resolution was the predecessor to the present
Resolution 1 of 2003. In this regard reference is made
to the first
page of the Resolution 1 of 2003.
[152] At any rate, clause 7.3.e of
Resolution 2, which, as in the present case, was encapsulated into a
collective agreement, provided
that:
‘
In
a disciplinary hearing, neither the employer nor the employee may be
represented by a legal practitioner, unless the employee
is a legal
practitioner. For the purposes of this agreement, a legal
practitioner is defined as a person who is admitted to practice
as an
advocate or an attorney in South Africa.’
[153] Clause 7.3.e of the defunct
Resolution 2 of 1999 was in substantial terms almost identical to
clause 7.3.f(i).
[154] In
Mahumani’s
case
the Code contained a Clause 2.8 which provided that the terms of the
Code were ‘guidelines and may be departed from
inappropriate
circumstances’. Relying upon that Clause Patel AJA stated:
‘
The
parties, who agreed on the code, were intent on devising a fair
procedure (see clause 2.4) and it is reasonable to assume that
they
also knew that there may be circumstances in which it would be unfair
not to allow legal representation. In these circumstances
it is
likely that they would have intended the presiding officer to have a
discretion to allow legal representation in circumstances
in which it
would be unfair not to do so. I can find no indication in the code to
the contrary. There is, therefore, no justification
for interpreting
'appropriate circumstances' in clause 2.8 so as not to include
circumstances which would render it unfair not
to allow legal
representation at a disciplinary enquiry
.’
34
[155] The learned judge then concluded
that:
‘…
if,
on a conspectus of all the circumstances, it would be unfair not to
allow legal representation the provisions of clause 7.3(e)
may in
terms of clause 2.8 be departed from. The presiding officer erred in
holding that he had no discretion to allow such a departure
.’
35
[156] I have searched in vain for a
similar clause in the present agreement to that in the defunct clause
2.8. It is simply not
there.
[157] Two observations spring from the
absence of a similar provision to the old clause 2.8.
The first is that the parties, by
excluding it from operation under the new Disciplinary Code and
Procedure, intended to remove
any discretion which may have been
infused by the old clause 2.8.
Secondly, in the absence of a
similar provision to Clause 2.8, it would appear that the judgment
in
Mahumani
, is of persuasive value only. In fact, it
appears that the decision in
Mahumani
would have been
different if clause 2.8 did not exist.
[158] It seems to me that Mr Van der
Merwe must be correct when he argues that the concept of fairness
would ordinarily require
the chairperson of a disciplinary enquiry to
retain some discretion to allow legal representation in appropriate
circumstances.
That does not, however, apply here. The provisions of
sub-clause (ii) seem to have been drafted with the intention of
alleviating
any hardship, real or perceived, which stemmed from not
allowing legal representation in appropriate circumstances. In other
words,
the parties intended that if the circumstances required legal
representation a party would be at liberty to ask for legal
representation
provided he or she agreed that the matter be referred
to pre-arbitration dismissal proceedings.
[159] Furthermore, there appears to my
mind to be an insurmountable problem to the argument advanced by Mr
Van der Merwe. It is
apparent from the record, and I did not
understand Mr Van der Merwe to contend otherwise, that the Department
at all stages maintained
the stance that the applicant was not
entitled to legal representation. Thus, unless the parties agreed
that on a proper construction
of the collective agreement the
chairman of the disciplinary enquiry retained a discretion to permit
legal representation, there
was a dispute as to the proper
interpretation to be given to the collective agreement. In that
event, unless either party yielded
to the interpretation of the
other, the applicant’s only recourse would have been to refer
the dispute for arbitration concerning
the proper interpretation be
given to the collective agreement. Indeed, this is what the parties
contemplated in terms of clause
4 of the agreement and it is what was
contemplated by the legislature in terms of section. 24 of the Labour
Relations Act. A dispute
concerning the proper interpretation of the
collective agreement was not referred to arbitration. It appears, to
my mind, that
that must be the end of the issue.
[160] It appears that at one stage
Higgins had acceded to this interpretation and in fact requested that
the matter be referred
to pre-arbitration dismissal proceedings in
accordance with the provisions of clause 7.3.c. This approach was
however reversed
subsequently by the applicant who withdrew the
consent given by Higgins and, instead, terminated his services.
[161] As an aside, I should mention
that there appears to have been some confusion during the arbitration
proceedings as to whether
the Department had given an undertaking to
withdraw the charges and whether the applicant had been afforded
legal representation
by an earlier Chairman. I am in agreement with
the contentions of Mr Lennox, who appeared for the third and fourth
respondents,
that not only were the applicant’s contentions in
this regard not supported by the record, but it is apparent that when
she
appealed against her sanction and dismissal, she did not raise
these issues and in fact appeared to have taken the contrary stance.
[162] I return to the chronology in
order to deal with the question of the delays in proceeding with the
disciplinary enquiry.
[163] It appears from the evidence of
Ms Kedibone Maphunye, the Department’s Assistant Director
Labour Relations, who represented
the Department at the disciplinary
enquiry, that the applicant appeared at the hearing on 11 May 2005
and was assisted by a legal
representative. Maphunye testified that
because the applicant was not entitled to be assisted by a legal
representative the matter
was postponed to 18 May 2005 in order to
afford her the opportunity to appear on the later date with a fellow
employee or a representative
from the union.
[164] I pause at this point to note
that according to the line of cross-examination adopted by the
applicant’s representative,
it appears that the evidence of
Maphunye that the matter was to continue on 18 May 2005 would be
challenged. I do not believe that
anything turns on this issue, but
it is to be noted that in the letter from Higgins to More dated 9 May
2005 a postponement was
requested until 18 May 2005 in order to
enable the applicant to prepare adequately for that hearing. It thus
appears that this
was the more likely reason for the postponement
until 18 May 2005. At any rate, I do not believe that anything turns
upon this
issue.
[165] According to Maphunye, the
hearing was, on 18 May 2005, again postponed, this time until 20 July
2005 in order to allow the
applicant a further opportunity to obtain
a representative who was not an attorney.
[166] Included in the bundle of
documents presented to this Court (and which apparently served before
the arbitrator) was a document
styled “Recusal As Presiding
Officer” dated 21 September 2005. In that document the
Chairman, Mr Levi Mashabela set
out his version of what occurred. He
indicated that at the commencement of the hearing the employer’s
representative objected
to Higgins representing the applicant at the
proceedings and after hearing argument on the issue he (Mashabela),
recommended that
the parties deal with the issue by agreement. The
matter was postponed in order to enable the parties to discuss and
attempt to
reach consensus. He indicated that he had been informed
that the matter had been scheduled to continue ‘on or before
the
22
nd
September 2005’ but that the parties had
not reached agreement on the question of legal representation.
Mashabela pointed
out that due to his ‘tight calendar schedule’
he was compelled to recuse himself from the matter.
[167] This does not accord entirely
with the evidence of Maphunye or, for that matter, Higgins’
letter of 9 May 2005.
[168] At any rate, what is clear is
that between the time period when the matter was first called and 21
September 2005 there was
no question of any delay on the part of the
Department (I exclude the delay between the time when the charge
sheet was drawn up
and the time when it was served on the applicant).
[169] Maphunye testified that the
matter was subsequently scheduled for 11 November 2005 and when the
matter was called at 09h00
on that day the applicant appeared in
person and indicated that her union representative would be available
at 15h00. As it so
happened the matter did not proceed on that day
and the next date upon which the matter was set down was for 31 July
2006, some
eight months later. It is not clear precisely what the
reason for this delay was but according to Maphunye she indicated
that the
Department was having some difficulty in obtaining another
presiding officer to chair the enquiry.
[170] When the matter was called on 31
July 2006, the applicant appeared in person as she could only secure,
it appears, the services
of a person who was a junior to herself
(within the structures of the union) and she declined to be
represented by a junior person.
[171] A further delay ensued and the
matter eventually proceeded on 12 October 2006 until its conclusion.
On those occasions, the
applicant was represented by an official of
the Public Servants Association, her union in the present
proceedings.
[172] It appears to my mind that,
having regard to the account set out above, that although there were
delays which must properly
be attributed to the employer, there are
other delays which ought equally to be attributed to the applicant.
[173] In these circumstances, little
purpose is served in apportioning blame for the delay. I should state
however, that I am not
satisfied that the applicant was in any way
prejudiced as a result of any default on the part of the employer.
[174] In the circumstances, this
ground of review must fail.
Costs
[175] Costs are to be awarded
according to the requirements of the law and fairness.
36
[176] My inclination is that unless
there are sound reasons which dictate a different approach, it is
fair that the successful party
should be awarded her costs. The
successful party has been compelled to engage in litigation and
compelled to incur legal costs
in doing so. An appropriate award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions
to litigate in this Court, whether
as applicant, in launching proceedings or as respondent opposing
proceedings.
[177] The third and fourth respondents
have achieved success in opposing this application. They have,
however, been rather slack
in their opposition; their contribution
has been minimal. They failed to file an answering affidavit and even
although they filed
heads of argument, they did so at a late stage.
This is a practice that should be deprecated.
[178] I intend expressing my
disapproval by disallowing the third and fourth respondents of their
claim for costs as the successful
party.
Conclusion
[179] In all the circumstances, I make
the following order:
The application is dismissed.
There is no order as to costs.
______________
G. I. HULLEY
ACTING JUDGE OF THE LABOUR COURT
APPEARANCES:
FOR THE APPLICANT: ADV. F. J. VAN DER
MERWE
ON INSTRUCTIONS FROM: BOUWERS INC.
FOR THIRD AND FOURTH RESPONDENT: ADV.
M. A. LENNOX
ON INSTRUCTIONS FROM: AJAY MAKKA INC.
1
Republiekeinse
Publikasies (Edms.) Bpk v. Afrikaanse Pers Publikasies (Edms.) Bpk
1972 (1) SA 773
(A), at 783A.
2
Khunou
& Others v. M Fihrer & Son (Pty) Ltd & Others
1982
(3) SA 353
(W), at 355E – 356C.
3
Jockey
Club of South Africa v. Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A), at 661E –
F
4
Moloi
v. Euijen NO & Another
(1997) 18
ILJ
1372 (LC)
,
at 1374G – 1375 082-785-6354
5
Simela
& others v MEC for Education, Province of the Eastern Cape &
Another
(2001) 22
ILJ
1688 (LC)
6
Liberty
Life Association of Africa v Kachelhoffer NO & Others
(2001)
22
ILJ
2243 (C), at
7
Plascon-Evans
Paints Ltd v. Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A),
at 634 – 635
8
(2003)
24 ILJ 931 (LAC).
9
Lifecare
Special Health Services
at 936 E – H
para 17.
10
See
Papane v Van Aarde NO and Others
(2007) 28
ILJ
2561 (LAC), at 2574 G – H.
11
Department
of Justice v Hartzenberg
(2001) 22
ILJ
1806 (LAC), at 1811 C.
12
S
v Whitney and Another
1975 (3) SA 453
(N).
13
S
v Joubert
[1990] ZASCA 113
;
1991 (1) SA 119
(A);
S
v Quali
1989 (2) SA 581
(E).
14
See
Bundle D: p. 40.
15
See
letter from Applicant dated 28 October 2004: Bundle D: p. 37.
16
Bundle
D: pp. 86 – 87.
17
Bundle
A: pp. 79 – 87.
18
103
of 1994.
19
Bundle
A, page 110.
20
Bundle
A: pages 111 – 2.
21
Bundle
D, p. 50.
22
Brassey,
Employment and Labour Law
(Juta vol. 1, 1999): §D2: 31.
23
Brassey,
supra
,
§D2: 33 – 34.
24
(1989)
10
ILJ
311 (IC).
25
Commercial
Catering & Allied Workers Union
at 314H –
I.
26
Grogan,
Workplace Law
(Juta,
2009) p. 51.
27
(1988)
9 ILJ 877 (IC).
28
Commercial
Catering & Allied Workers Union
at 315A –
G.
29
See
the third bullet point in paragraph 109 of the award.
30
See
paragraph 118 of the award.
31
Cuppan
v Cape Display Supply Chain Services
(1995)
16
ILJ
846
(D);
Hamata and Another v Chairperson,
Peninsula Technikon Internal Disciplinary Committee and Others
(2002) 23
ILJ
1531 (SCA).
32
Hamata
,
supra.
33
(2004)
25
ILJ
2311
(SCA).
34
Mahumani
at 2315 F – H para 12.
35
Mahumani
at 2315 H – I at para 13.
36
Section
162(1) of the LRA.