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[2013] ZALCJHB 2
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Ndwanya v South African Local Government Bargaining Council and Others (JR853/2011) [2013] ZALCJHB 2 (7 January 2013)
THE REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case no: JR853/2011
In the matter between:
MTHUTHUZELI
GEORGE NDWANYA
.....................................................................
Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL
.............................................................................
First
Respondent
ABRAHAM NTHAKO N.O
......................................................................
Second
Respondent
POLOKWANE
LOCAL MUNICIPALITY
....................................................
Third
Respondent
Heard: 30 October 2012
Delivered: 07 January 2013
Summary: Review applications - Gross insubordination - disobey
instruction by Municipal Manager to hand over laptop.
JUDGMENT
MOLAHLEHI J
Introduction
This is an application to review and set aside the arbitration award
made under case number NDC 090809, dated 24 March 2011,
in terms of
which the dismissals of the applicant was found to have been for a
valid and fair reason.
The application was unopposed. The picture that emerges from the
reading of the founding papers of the applicant is, as will
also
appear from his argument later, that his dismissal was motivated by
ulterior motives. The converse, however, emerges on
the closer
reading of the transcript of the arbitration proceedings.
Background facts
The applicant who was employed as the legal officer by the third
respondent was dismissed for misconduct concerning gross
insubordination.
The charges of insubordination arose from the
refusal by the applicant to hand over a laptop to the municipal
manager.
The charge against the applicant read as follows:
‘
1. On
the 2
nd
of April 2008 you grossly insubordinate in that you and the
intentionally refused to clearly out in law and reasonable order to
hand over the laptop belonging to the municipality as instructed by
the Municipal Manager, and have thereby contravened clause
1.2.4
annexure "A" to the South African local government
disciplinary procedure collective agreement.
2. On the 2
nd
of
April 2008 you prejudice the administration, discipline and
efficiency of the Municipality in that you conducted yourself in
an
improper disgraceful and acceptable manner when officials, security
of the municipality and the members of the South African
Police
Services requested him to hand them a laptop belonging to the
Municipality, and have thereby contravened clause 1.2.9 of
annexure
"A" to the South African local government disciplinary
procedure.’
The applicant was found guilty and dismissed at the disciplinary
hearing. He, thereafter, referred a dispute concerning an alleged
unfair dismissal to the first respondent where the matter was
arbitrated upon and the dismissal confirmed as being fair.
The third respondent in support of its case, that its reason for
dismissal was for a fair reason, presented evidence from four
witnesses. For the purposes of contextualising and looking at the
totality of the circumstances within which the dismissal occurred,
the essential aspects of the testimony of the witnesses, is
summarised below.
The first witness of the third respondent, Mr Ntswana, who at the
time was the operating services manager, confirmed that the
applicant informed him that he had received the instruction from the
municipal manager to return the laptop, and that he had
difficulties
in implementing the instruction because there were documents he
needed to download.
Mr Ntswana did not deny that he may have said, to the applicant,
that he would speak to the municipal manager, as he thought
there
might have been misunderstanding between the two of them. He further
conceded that the applicant did file a grievance and
that although
he was not sure of what was expected to be the outcome, he thought
it would have been dealt with in terms of the
grievance procedure.
During cross examination, Mr Ntswana stated that he informed the
applicant that the laptop should be handed over and the matter
can
be discussed at a later stage. He indicated that, from his
understanding, the reason for requesting the applicant to return
the
laptop was because there was suspicion that the laptop was being
used not for the purposes than those it was intended.
The second witness of the third respondent, Mr Ramuthele, who at the
time was personal assistant to the municipal manager, testified
that
she delivered the letter to the applicant from the municipal
manager, instructing him to return the laptop. The applicant
did not
give him the laptop and therefore he returned later to him to ask
for the laptop.
According to Mr Ramuthele, the applicant told him when he went to
him the second time that he needed to speak to the municipal
manager
before he could hand over the laptop. He further stated that, during
that conversation, the applicant informed him that
he would only
hand the laptop to the municipal manager only in the presence of the
police.
On receipt of the report about the attitude of the applicant, the
municipal manager called the police. On arrival, the municipal
manager explained to the police that he required them to open a
case. One of the police officer tried to grab the laptop from
the
applicant's hands.
During the course of the engagement with the police officers about
the laptop, the police superintendent arrived but the problem
could
not be resolved.
Mr Ramuthele testified further that the manner in which the
applicant spoke to the municipal manager, was unacceptable as he
raised his voice and shouted at him. According to him, the applicant
was shouting when he arrived at the office of the secretary
of the
municipal manager.
The second witness of the third respondent was Ms Mwali, who at the
time was the secretary to the municipal manager. She testified
that,
on the day in question, the applicant arrived at the reception area
very angry and after entering the municipal manager’s
office,
she heard the applicant speaking at the high voice in an angry
manner.
The fourth witness Mr Tshethabo, the municipal manager, testified
that he is the administrator and an accounting officer of the
third
respondent. He testified about the charges which were proffered
against the applicant and that he had asked his personal
assistant
to deliver a letter to the applicant requiring him to hand over the
laptop. He confirmed that Mr Ntswana informed him
that the applicant
said he would only return the laptop in the presence of the police.
He also confirmed having instructed the
security officer not to
allow the respondent to leave the premises unless he handed over the
laptop.
The municipal manager confirmed that the applicant was furious and
aggressive when he came to his office saying that the security
officer was limiting his rights by refusing him to leave the
premises. The other complaint raised by the applicant was that the
two police officers were abusing their powers and that their
superintendent should be called. At that stage, the police indicated
that they would open a case and one of them left the office to
collect a file from the vehicle, which had been parked outside.
According to the municipal manager, the applicant attempted to run
out of the office but was grabbed by one of the police officers
who
remained in office while the other went to collect a docket.
The superintendent was then contacted by one of the police officers
who indicated that he (the superintendent) was on his way.
At that
point, the applicant indicated that he was willing to hand over the
laptop and requested time to download his documents
from the laptop.
On his arrival, the superintendent indicated to the police that the
laptop can only be returned if a case was opened. After the
explanation by the superintendent as to what was to happen if the
case was open, the municipal manager, testified that he told
the
police that he would deal with the matter internally. The applicant
then left the office of the municipal manager, without
handing over
the laptop.
In his testimony, the municipal manager, explained that the reason
for requiring the applicant to return the laptop was because
he was
no longer doing the municipality’s secretarial work as
somebody else was doing that aspect of the work.
The municipal manager denied during cross examination that he wanted
to have the laptop back so that he could check whether the
applicant
was not responsible for a report that had been made to the
specialised criminal investigating unit of the police, which
was
known as the “Scorpions”. He indicated that the
Scorpions started the investigation after the dismissal of the
applicant. He explained further that the other investigation
conducted by Scorpions concerned someone who was arrested concerning
a tender and had been approached by Scorpions for information
regarding that investigation. He testified that he was not
investigated
but was simply required to provide information.
The applicant, in testifying on his own, indicated, firstly, that
the relationship between him and the municipal manager was
cordial
until December 2007. According to him, the relationship between the
two of them changed after he advised the municipality
about the
allocation of land to a company which was owned by a friend of the
municipal manager.
The applicant further testified that he needed the laptop for
purposes of typing legal opinions and communicating with
stakeholders
like attorneys and advocates who were doing work for
the municipality. He also uses the laptop for his assignment with
the University
of Pretoria.
The applicant did not dispute having received the instruction from
the municipal manager that he should return the laptop but
says that
he did not comply because Mr Ntswana, his immediate manager, had
told him not to return the laptop as he would discuss
the matter
with the municipal manager.
The applicant testified that he told the municipal manager at his
office that he was still discussing the issue of handing over
the
laptop, with Mr Ntswana. The municipal manager told him that Mr
Ntswana would never be able to reverse his decision.
The applicant testified further that while speaking to the municipal
manager the two police officers instructed him to hand a
laptop to
the municipal manager. According to him, the two police officers
were not interested in listening to him even after
he told them that
he was still discussing the matter with the municipal manager. He
told them that what they were doing was illegal
and that he would
report the matter to the superintendent.
During the exchange with the two police officers, the applicant took
out this voice recorder and recorded the conversation. He
threatened
to submit the recording to their superiors.
The applicant says because his phone was in his office, he told the
police officers that he needed to go to his office to collect
his
diary so that he could call the superintendent. One of the police
officers grabbed him as he opened the door of the municipal
manager's office and this was in the process of him exiting to go to
his office. He says he was pushed back into the office.
After the police pushed him back into the office, he told the
municipal manager that he was willing to hand over the laptop but
needed time to download some of his documents. He sat at a table and
downloaded his documents onto a memory stick, which he says
because
of its capacity, could not take all the documents.
The superintendent arrived while the applicant was busy downloading
the documents from the laptop. After some discussion the
superintendent told both the municipal manager and the applicant
that they should resolve the dispute themselves. After that,
the
applicant left with the laptop. He returned the laptop the following
day.
The case of the applicant at the arbitration hearing was that,
initially, his relationship with the municipal manager was cordial
but changed after he made a report during December 2007 concerning
land which had been allocated to a certain company that did
not
apply for land allocation. The applicant testified that soon after
making that report, he received a letter instructing him
to return
the laptop. This surprised him because he used the laptop for legal
documents, correspondence and reports for the municipality.
He also
indicated that he uses the laptop for his studies.
On receipt of the letter instructing him to return the laptop, the
applicant approached the manager corporate services about
the
matter. According to him the manager corporate services told him not
to return the laptop and that he would speak to the
municipal
manager about it.
After speaking to the manager corporate services, the employee was
approached by one of the employees who told him that he had
been
sent by the municipal manager to collect the laptop.
At some point during the course of that commotion, the applicant was
stopped by the security officer when he was leaving the
workplace.
He was told he could not leave unless he handed over the laptop. The
applicant then approached the municipal manager
in his office
apparently to enquire as to what the problem was. The respondent
informed him that he instructed the security officer
to collect the
laptop. According to him, as he was speaking to the municipal
manager, the police arrived and tried to use force
to get the laptop
from him. He told them that what they were doing was unlawful.
Grounds of review
.
In his founding affidavit, the applicant complains about the fact
that the arbitrator ignored his complaint that the disciplinary
enquiry was nothing but a sham. In this regard, the applicant
contends that his dismissal was because the municipal manager
suspected him of passing information to the police which resulted in
the Scorpions investigating him.
The other complaint of the applicant is that the arbitrator arrived
at the conclusion as he did without having regard to the
evidence of
a number of witnesses who should have testified on behalf of the
third respondent. He in particular says that the
third respondent
failed to call the security officer who stopped him from leaving the
workplace and sought to take the laptop
from him. His contention in
this respect is that it was never the evidence of the third
respondent that he wanted to leave with
the laptop when he was
stopped by the security officer. His contention is that he did not
have the laptop with him at the time
he was stopped by the security
officer as he had left the laptop in his office.
It is on the basis of the above that the applicant contends “that
there was no basis in law or fact for the arbitrator,
to ignoring
the fact that the third respondent(s) failed to call these important
witnesses."
The applicant further question the finding of the arbitrator, that
he forcefully entered the office of the municipal by manager.
In
this respect, the applicant contends that he approached the
personnel assistance and requested to see the municipal manager
and
was given the permission. It would appear that the ground upon which
the applicant seeks to challenge the arbitration award
is that the
arbitrator failed to apply the rules of evidence. In this respect,
the applicant states that the arbitrator accepted
the evidence of a
single witness, as opposed to evidence in his favour which was
corroborated.
Another point raised by the applicant is that the arbitrator
accepted the unsubstantiated and contradictory evidence of the
personnel assistant to the municipal manager who claimed in his
testimony that the applicant was aggressive but could not describe
his aggressive manner, except to say that his voice was high. The
personal assistance contradicted himself in that he claimed
that the
applicant spoke loud and was shouting but could not hear what he
said when he was speaking to the municipal manager.
The applicant, further, complains that the arbitrator ordered costs
when neither party asked for the same.
The arbitration award
After a detailed summary of the evidence by the respective witnesses
of the parties, the Commissioner in analysing the evidence
which was
before him start by noting that in terms of section 192 of the
Labour Relations Act the third respondent has the onus
of sowing
that the dismissal was for a fair reason. He then set out that for a
dismissal to be fair the employer has to prove
that the dismissal
was for a fair reason in terms of section 188 of the LRA.
Turning to the legal principles governing what constitutes an
offence of insubordination, the Commissioner at paragraph 68 of
the
arbitration award and relying on the decision in
National Union
of Metal Workers of South Africa v Schnaier Industries (Pty) Ltd,
1
said the following:
‘
68. In
terms of common law and employees are obliged to show respect to want
his/her employer. Rudeness, disrespect and undermining
of authority
of the employer are acts of misconduct and may invite disciplinary
action. Insubordination is a more severe form of
misconduct and
displaced an element of disobedience, such as wilfully refusing to
obey a lawful instruction, or a challenge to
the employer's
authority. It has been held by the Courts that insubordination may
exist in the form of verbal defiance, degrees
of disrespect or
defiance and use of the reasonable and lawful instructions.’
The critical aspects, as concerning the facts is that the arbitrator
made the following findings:
the applicant, indicated that he would give the laptop to the
municipal manager only in the presence of the police.
Inferred that had the security officer not stopped the applicant
from leaving the workplace he (the applicant) would have left
with
the laptop. The applicant was unhappy about the security officer
stopping him from leaving the workplace.
The applicant had no intention of handing over the laptop to the
municipal by manager.
The municipal manager gave his laptop to the secretary, because the
applicant had left with the laptop. He had been instructed
to hand
over.
The arbitrator further found that the municipal manager
is
the administrator and accounting officer of the municipality and
therefore
he had the authority
to give instructions to all those other employees including the
applicant. And as concerning the instruction
given to the applicant,
the arbitrator found that the laptop was needed to be given to
another employee so that she could do
the work.
As concerning the conduct of the employee in relation to the
instruction given to him, the arbitrator found it to have been
disrespectful and that he behaved in an unprofessional manner. The
instruction was found to have been reasonably and lawful.
The legal principles governing
insubordination
The broad principles governing what constitutes insubordination that
would justify a dismissal is set out in
Lynx Geosystem (Pty) Ltd
v
CCMA and Others,
2
a judgment which the applicant relied on in his heads of arguments.
This court in that judgment (at paragraph 28) held that as
a general
rule, for insubordination to constitute misconduct justifying a
dismissal, it is to be shown that the employee deliberately
refused
to obey a reasonable instruction by the employer. The court
proceeded to quote with approval what was said in
Ntsibande v
Union Carriage and Wagon Co (Pty) Ltd,
3
where it was held that:
‘
As a
general principle it may be stated that the breach of rules laid down
by an employer or the refusal to obey and employers lawful
and
reasonable order is to be viewed in a serious light and may even
given circumstances even justify dismissal. However, the presence
of
certain prerequisites is required. In the first place, it should be
evident that an order, which may even be in the form of
the warning,
must infect have been given… In the second-place, it is
provided that order must be lawful; an employee is
therefore not
expected to be an unlawful order such as work if you go over time.
Thirdly, the reasonableness of an order should
be beyond reproach and
will be enquired into: in cases before the court that order or
request has sometimes been found to be reasonable
and at other times
to be unreasonable. In addition, it is required… that the
refusal to obey must have been serious enough
to warrant a
dismissal.’
Evaluation
In relying on a number of judgments referred to in his heads of
argument he applicant argued that:
‘
(1) a
refusal to follow a direct, valid work order – The order must
be clear, it must come from someone authorised to issue
directives,
and the employee must understand it as an order.
(ii) a clear and prior warning
of the consequence- The supervisor must clearly state the penalty for
continued refusal to carry
out the order. An employees’ failure
(as opposed to refusal) to carry out an order, or protest while
carrying out the order,
may justify a lesser charge than
insubordination and, consequently, a lesser form of discipline, but
would not, by itself, constitute
insubordination.’
In applying the reasonable decision maker test as set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Other,s
4
on the facts and the circumstances of this case, I find no basis to
fault the arbitrator in the decision he reached. The reasonable
decision maker test as set out in
Sidumo
requires that in
considering an application for review of an arbitration award, the
enquiry to conduct is that of determining
whether the decision
reached by the arbitrator is one which a reasonable decision maker
could not have reached. In applying this
test, the totality of the
facts and circumstances of the case has to be taken into account.
This guideline was formulated as
follows in the
Sidumo
matter:
5
‘
[78]
In approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or
she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record. This is not an exhaustive list.’
Whilst in the heads of argument, the applicant suggests that the
municipal manager, was not authorised to issue the instruction;
that
is not the case he made during the arbitration hearing. It was also
not his case that the instruction given was not clear.
If the
instruction was not clear from the letter and from when it was
communicated to him the second time by the personal assistant,
it
must have come abundantly clear when he went to the municipal
manager’s office what was exactly expected of him. He
was told
by the municipal manager that he was not intending to change his
mind even if his immediate manger was to seek to persuade
him
otherwise.
On the facts and the circumstances of this case, considering also
the level at which the applicant operated at, there can be
no doubt
that the applicant ought to have appreciated that the conduct of
challenging the his superior in front of not only other
employees
but the police, and for that matter the superintendent, was totally
unacceptable and absolutely undermined the authority
of his employer
over him. At the disciplinary and the arbitration hearing, the
applicant showed no remorse for his conduct.
It is apparent from the reading of the arbitration award that the
arbitrator found no merit in the complaint that the disciplinary
hearing was nothing but a sham. It seems that the applicant says
that the hearing was a sham because according to him the municipal
manager suspected him of being responsible for allegedly leaking out
information to the Scorpion about investigating the alleged
irregularity by the municipal manager. The findings made by the
arbitrator indicate that this allegation was rejected by the
arbitrator. The record of the proceedings take the case of the
applicant in this respect no further than the allegation he made.
That allegation was not substantiated. The investigation it would
appear from the version of the applicant arose from the alleged
allocation of land to a company whose manager had a personal
relationship with the municipal manger. The report which forms the
subject matter of this allegation was not presented neither did the
applicant lead any evidence of any of the council members
who were
present when he made the report, neither did he make available the
minutes of the meeting where the report was made.
There is therefore
no causal connection between his disciplinary hearing and the
underhand motive he sought to use to support
his proposition that
the disciplinary hearing was nothing but a sham.
In my view, taking into account the totality of the facts and the
circumstances of the case, it cannot be said that the arbitrator
committed and irregularity or that his arbitration award is no which
reasonable decision maker could have reached.
Award as of costs
The issue that remains for consideration is the issue of the
complaint that the arbitrator made an award as to costs even though
neither of the parties asked for costs. The issue of costs in Local
Government disputes is governed by rule 39 of the Rules of
the South
African Local Government Bargaining Council (SALGBC).
It is generally accepted that arbitrators in
labour disputes will not readily grant costs orders and if they are
to do so they
are guided by the requirements of law and fairness.
The exception to this broad principle is provided for in rule 39 of
SALGBC,
which gives arbitrators discretion to award costs where
there it found that a party has in either instituting the
proceedings
or defending them acted in
a frivolous or vexatious manner.
The exception to the general rule
is introduced into the rules of the SALGBC through rule 39(1)
through the incorporation of section
138(10) of the Labour Relations
Act. The rule reads as follows:
‘
(1)
The basis on which an arbitrator may make an order as to costs in an
arbitration, is regulated by section 138(10) of the Act
(LRA).’
Section 138(10)
of the LRA reads as follows:
'The
commissioner (the arbitrator) may not include an order for costs in
the arbitration award unless a party, or the person who
represented
that party in the arbitration proceedings, acted in a frivolous or
vexatious manner-(a) by proceeding with or defending
the dispute in
the arbitration proceedings; or (b) in its conduct during the
arbitration proceedings.’
In arriving at the conclusion that the
applicant was to pay the cost the arbitrator reasoned that the
applicant had acted in a
frivolous and vexatious manner in
instituting the arbitration proceedings.
Except for contending that none of the parties before the arbitrator
asked for costs, the applicant does not challenge the finding
of the
arbitrator that he acted in a frivolous and vexatious manner in
instituting the arbitration proceedings. In other words,
the essence
of the arbitrator’s finding is that the applicant instituted
the arbitration proceedings even when there were
clearly no
prospects of succeeding. On the facts and circumstances of this
case, there was no basis for the applicant to institute
the
arbitration proceedings.
Accordingly, I find no basis for faulting the arbitrator in his
finding concerning the conduct of the applicant and the conclusion
he reached that the he should pay the costs.
Order
In the premises, the applicant’s application to review
arbitration award made under case number NDC 090809 dated 24 March
2011 is dismissed with no order as to costs.
_______________
Molahlehi J
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant: In person
For the Respondent:
No
appearance
1
(1992)
13 ILJ 112 (LAC).
2
(JR1935/05)
[2010] ZALC 154
(22 October 2010) at para 28.
3
(1993)
14 ILJ 1566 (IC) at 1569I-1570A.
4
(2007)
28 ILJ 2405 (CC).
5
Ibid
at para 78.