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[2014] ZALCCT 59
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Thorne v Commission for Conciliation Mediation And Arbitration and Others (C832/08) [2014] ZALCCT 59 (3 November 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case no: C 832/08
Not reportable
In
the matter between:
GRAHAM
FREDERICK
THORNE
APPLICANT
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
CARLTON
JOHNSON,
N.O.
SECOND
RESPONDENT
ITHEMBA
LABS
THIRD
RESPONDENT
Heard:
16 April 2013
Delivered:
03 November 2014
Summary:
(Review – failure to obey a lawful and reasonable instruction –
basis for allegedly unlawful nature of instruction
not properly
placed before the arbitrator – award not reviewable)
JUDGMENT
LAGRANGE, J
Introduction
[1]
The applicant in this matter, Mr G Thorne,
was dismissed after being found guilty of two charges arising out of
an incident in mid-
August 2007, namely:
1.1
Refusing to carry out a reasonable and
lawful instruction (falling within the parameters of his job
description) issued by management.
1.2
Failing to carry out a reasonable and
lawful instruction which resulted in an actual work stoppage.
[2]
In September 2001, the applicant was
employed as a fitter and turner by the respondent, a division of the
National Research Foundation
performing medical research in the
accelerator-based sciences field.
[3]
In the arbitrator’s award, he rightly
found that the second charge concerned the consequences of the
misconduct in the first
charge and as such might amount to an
aggravating factor but should not constitute a substantive charge in
its own right.
[4]
The applicant was dismissed after an
extensive disciplinary process which included a hearing over three
days chaired by an external
chairperson and a full appeal hearing.
The arbitration hearing itself took place over three days.
The arbitration award
[5]
For the purposes of this judgement it is
unnecessary to repeat all the arbitrator’s findings or the
factors he considered
save to outline his conclusions and reasoning.
In so far as further detail needs to be addressed that will be done
in the course
of considering the grounds of review.
[6]
Having decided that the fairness of the
applicant’s dismissal had to be assessed with regards to the
first charge, the arbitrator’s
reasoning was as follows:
6.1
It was undisputed that the applicant had
been instructed to weld certain aluminium frames and had refused to
do so and consequently
the fundamental and decisive issue was whether
the instruction was valid, reasonable and lawful.
6.2
The applicant was not formally qualified to
perform aluminium welding, but had done aluminium welding in the past
and the employer
had never complained of work performance in respect
of such work.
6.3
Despite the applicant’s contention
that welding was not part of his responsibilities and duties it was
contained in his job
description.
6.4
Even though the applicant did not have code
certification for aluminium welding, that was not a legal requirement
to perform the
welding in question but merely a matter of best
practice. As such, the respondent was not bound to comply with the
standard and
the applicant was adequately qualified to do the welding
in question.
6.5
The arbitrator accepted that the applicant
suffered from an eye condition, but he was receiving treatment for it
and it was not
advanced as the reason he could not do the welding.
[7]
In
view of the considerations above, the arbitrator concluded that the
applicant was indeed guilty of the misconduct with which
he was
charged. In deciding if dismissal was fair, the arbitrator made
reference to the criteria mentioned in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
.
[1]
He decided that the dismissal was substantively fair because his
misconduct was deserving of “the most severe sanction”
in
light of the following factors in particular:
7.1
The arbitrator acknowledged that the
sanction described in the respondent’s disciplinary code for
the offence of refusing
to carry out an instruction was a final
written warning, but that, such a penalty had to be regarded as a
guideline and the case
had to be judged on its own merits.
7.2
In the circumstances of the case, the
applicant had no valid reason for refusing the instruction and
dismissed his attempts to diminish
the significance of his refusal by
trying to justify on the basis of his concern about the quality of
their work and his eye condition.
7.3
It was only nearly a month after refusing
the instruction that the applicant further sought to justify his
refusal by claiming that
he was not a welder but a fitter and turner,
which showed that even at that stage he was not willing to comply
with his obligation
to perform welding work, and he had apparently
adopted the stance that he was not obliged to do any welding work
pending the outcome
of the disciplinary hearing, which was clearly
incorrect.
[8]
However, the arbitrator did find that the
applicant’s dismissal was procedurally unfair because the
chairperson of the disciplinary
hearing had not consulted the full
committee constituting the disciplinary tribunal in determining his
findings and sanctions,
which was contrary to the provisions of the
third respondent’s own disciplinary code. The arbitrator
awarded one month’s
remuneration to be paid to the applicant as
compensation for this procedural unfairness.
Background
[9]
For the purposes of the review, it is
useful to set out in summary some of the evidence bearing on the
substantive issues in dispute.
[10]
According to the applicant’s detailed
job description as a Fitter and Turner, his task descriptions
included the following:
Key Performance Area
Inputs (Method Used)
OUTPUTS (Expected
Results)
1.
Machining
…
..
…
..
2. Welding/Sheet Metal
Work
i.
Apply welding techniques to fabricate
components and structures (including bellows)
ii.
Manufacture and install cooling
manifolds, vacuum components and piping systems.
a)
Component manufactured to drawing and
maintaining accuracy.
b)
Time, cost and quality constraints are
met.
[11]
Mr Paulsen, the foreman of the main
workshop where the applicant worked and his immediate superior,
testified that the quality of
the applicant’s aluminium welding
was ‘fine’ and brought an example of it to the hearing to
demonstrate that.
He further confirmed that the particular type of
welding the applicant was required to do was not limited but could be
any type
of welding. As far as he was concerned, the applicant had
demonstrated in the past that he was more than capable of doing
welding
with aluminium.
[12]
Paulsen also testified that the particular
task he had been asked to perform on that occasion was to weld
aluminium frames for computer
monitors in the control room which was
a ‘run of the mill job’ for the applicant considering his
skills as a welder.
He dismissed the applicant’s contention
that his refusal to do the job was because he was incompetent to do
it and because
he was concerned that it would create difficulties for
the employer if something went wrong with what he had welded. Paulsen
doubted
that a medical reason was a real reason as it was not the
reason he had refused to weld.
[13]
Mr Wyngaard, the divisional head to whom Mr
Paulsen reported, testified that in 2004 the applicant and a
colleague had motivated
for a reassessment of their packages in view
of the commitment and knowledge of work they had displayed in the
past few years and
the contribution they had made “without even
being skilled by the company”. The motivation also requested
that they
be given “extensive training” to enhance their
skills. He had supported the recommendation because of the
applicant’s
welding work and he was the most experienced welder
in the Department and the only one who could do plasma welding at
that time.
[14]
When Wyngaard was told by Paulsen told that
the applicant would not weld the monitor frames, he called the
applicant in and asked
him why he would not do so. The applicant told
him he was not a welder and therefore could not do the job.
Wyngaard’s response
was that that it was a lawful and
reasonable instruction and unless it affected his health he was
expected to do it. At that, the
applicant said it did affect his
health but did not elaborate. As far as Wyngaard was concerned the
‘bottom line’ why
the applicant was refusing to do the
work was that his claim that he was not a welder, but a fitter and
Turner.
[15]
From that date onwards, Wyngaard said the
applicant would not do any welding. Consequently, a few weeks later
the applicant refused
to weld bellows, which were critical for the
functioning of the entire plant. His refusal to do that welding made
it necessary
to urgently send two other employees on a course to
learn how to do stick welding so that they could effect the repair.
On that
occasion the material being used was stainless steel.
According to him, applicant had done more training courses than any
other
fitter and turn on the workshop, including welding courses.
Another
area of focus in the applicant’s job description was
performance to ISO 9001:2000 in terms of which the applicant
was
expected to work to those standards, to recommend improvements to
system procedures to highlight problems that had to be prevented
or
corrected and to submit a report if there was any nonconformity with
the standard. The expected results listed for this key
performance
area were that there should be no deviations from the quality
management system, that quality would not be compromised
and quality
would be improved by correcting and preventing problems. Wyngaard
said that the respondent itself was not accredited
for those
standards, but was striving to achieve them.
[16]
Regarding the applicant’s contention,
that he was not given a new job prescription for the work he was to
perform in the main
workshop after he returned from a brief
secondment to the Medical Radiation division (Medrad), Wyngaard said
that the applicant’s
previous job description in the main
workshop remained current, and the job description he had been given
at Medrad was simply
for the different work that he performed there.
The reason why another fitter and turner in the workshop did not have
welding described
in his job description was that he had not been
trained as a welder at that time. The respondent had started training
the fitters
and turners in welding in 2002, beginning with the
applicant, then subsequently training others over time.
[17]
In explaining why the agreed 2006 training
plan for the applicant, as set out in the applicant’s
performance evaluation in
May 2006 indicated that the applicant
should go on an aluminium welding course by the end of that year, Mr
Wyngaard said there
was always something that he might learn from an
official welding course, but that did not mean the applicant was
incompetent in
welding. Further, Wyngaard stated that when the
applicant had been approached to attend the course provided at
Sampson’s
School of Welding he was not keen because he wanted
to attend a course at the South African Institute of Welding which
would have
cost significantly more. Wyngaard only had a training
budget of approximately R800 per person, whereas the course the
applicant
wants to attend would have cost about R 2 500. Although the
applicant subsequently testified that he hadnever been approached to
attend such a course at the Sampson School of Welding, Wyngaard’s
evidence that such an offer being made was not challenged
when
Wyngaard was cross-examined.
[18]
Wyngaard also testified that it was only a
month later, after the incident on 17 August 2007 that the applicant
specifically raised
the question of suffering from an eye condition.
A certificate for one day’s absence from work from an
ophthalmologist in
March 2007 was introduced as evidence of the
applicant’s dry eye condition. Wyngaard testified that they
only became aware
of the applicant suffering from an eye condition in
September 2007 when the applicant visited the respondent’s
doctors. Wyngaard
did not dispute that the certificate had been
handed in but the applicant had never alerted them to the fact that
he had a problem
with his eyes. This only came to light when the
applicant sent an email to Mr M Jakoet, the Group Head, in which most
of the letter
was dedicated to explaining that he was a qualified
fitter and turner but not qualified as a welder and that he was
denied the
opportunity to do other training. In the letter he also
did raise his eye condition as a problem which had been diagnosed a
few
months before which prevented him from doing welding and welding
could exacerbate his condition.
[19]
On Friday 18 July 2008, an unsigned
affidavit of Mr Nell, a welding expert, from the South African
Institute of Welding was sent
to the respondent, prior to the hearing
which was due to resume on 21 July 2008. The applicant had previously
announced his intention
to call an expert witness, but no details of
the witness’s identity or the nature of his evidence was
provided until that
Friday. As a result of the short notice, the
respondent applied for a postponement to consider the ramifications
of Nell’s
statement and whether it needed to call its own
expert witness. The postponement was granted and this necessitated an
alternative
arrangement be made for Nell to testify as he could not
come to Cape Town on a second occasion. The arrangement made was that
he
would testify by means of a video conferencing facility at the
respondent’s attorney’s offices.
[20]
When the postponed hearing resumed, there
was a debate about whether it was necessary for Nell to testify at
all. The respondent
had agreed it was not disputing the contents of
an affidavit setting out the expert evidence Nell intended to lead,
on the basis
that the real thrust of the testimony was that worldwide
best practice construction standards required a welder to be
qualified
to perform in accordance with an approved welding
procedure, but that it was not a legal requirement in order to
perform a particular
kind of welding to have the a specific
qualification for that. The affidavit also stated that apart from the
best practice requirement
of a welder having a Welder’s
Performance Qualification Record, this requirement was reinforced by
Section 9 of the Occupational
Health and Safety Act (‘OHSA’)
and regulation 9 of that OHSA, which placed a duty on employers to
ensure persons receive
the necessary training.
[21]
The arbitrator reasoned with the
applicant’s representative that there was little point in
calling Nell if his evidence was
going to be the same as what he had
set out in his affidavit and given that the employer accepted it on
the basis mentioned above.
In the interchange which followed, the
arbitrator confirmed with the parties that the employer’s case
was that the applicant
was technically competent to do the welding
work in question, which was a matter the Nell could not comment on,
and that the applicant’s
case was that he could not do the
welding because he was not certified to do so.
Despite
the arbitrator’s cautionary words and his categorisation of the
nature of the parties’ respective cases, which
was not
disputed, the applicant initially decided he would still call Nell to
give oral testimony.
[22]
When the time came to hear the expert
testimony an arrangement had been made to hear Nell’s evidence
using a video conferencing
facility at the respondent’s
attorneys’ offices, but at the time this was due to take place
there had been a power
cut in Johannesburg. The applicant’ s
representative announced that they were going to abandon the use of
the video conference
or other avenue and the arbitrator then
confirmed that the witness would not be called. The arbitrator then
confirmed that Nell’s
statement could be relied on subject to
the understanding of the import of his affidavit mentioned above.
[23]
The applicant testified that he was able to
do stick welding or, more colloquially, ‘arc welding’.
His understanding
was that you had to be ‘coded’ to do a
specific type of welding, which meant you had to pass a test for that
particular
method or technique. Without passing the test a person
could not do a particular weld ‘properly’. However, he
did agree
that he had done stick, tig, aluminium and gas welding for
the respondent.
[24]
His explanation for not welding the
aluminium frames was that he did not feel competent to do that
particular job and that is what
he told Mr Paulsen. The reason he did
not feel competent was because of the thinness of the material. The
applicant claimed that
when he told Paulsen he did not feel competent
and would damage the job, Paulsen said he would work around it, but
the following
day he was told to go and see Wyngaard.
[25]
As far as the applicant remembered, the
aluminium material was thinner than the 3 mm mentioned by Mr Paulsen.
Regarding the second
incident in which he was about not welding the
bellows, the applicant said he had explained that he had not been
given that job
to do. He claimed it was then that he told Paulsen and
Wyngaard that he was not a welder and that since his training
assistant,
Leon Adams, had received extensive training on aluminium
and advanced tig welding techniques he could do the job. Although he
denied
having the skill to weld aluminium he did not dispute that the
welding sample presented by Paulsen was not his. He said it could
have been done better, but that Paulsen had said ‘as long as it
did not fall apart’ it was fine.
[26]
Although it had been agreed that he would
do advanced training in December 2006 it did not happen. Altogether,
he had only received
two weeks training on welding. He also gave
evidence of a document he had handed in containing criticism of his
performance agreement
assessment for the period ending 31 March 2006
in which he had complained that he was told there was no funding to
send him on
training but subsequent to that others were sent on
training.
[27]
The applicant also elaborated that he had
concerns about the job because there was a big difference welding
something like the burglar
bars and the welding something that would
carry a great amount of weight. He regarded the welding of the frames
as something that
required a ‘coded’ welder.
[28]
In April 2007, the applicant was seconded
to the medical radiation group within the respondent’s
organisation for one year
because of great unhappiness between
himself and workshop management. The situation was to be reviewed
thereafter. However the
secondment was revoked by the middle of July
and he returned to the main workshop prematurely. He said he had been
given a new
job description at Medrad but basically was doing fitting
and turning work. When he was asked to do some welding he objected
because
he told them that he was not a welder and Mr Adams could do
the work.
[29]
Although the applicant did allude to his
eye condition it was apparent from his evidence that the reason he
refused to do the welding
he had been asked to do was not because of
that. He was also challenged that despite the fact he had started
diarising issues at
work because of prior incidents such as when he
made a request for a ventilated facemask, he had not even mentioned a
medical reason
in his recording of why he would not weld the
aluminium that day. The relevant entry in his diary on 15 August
reads:
“
PP ASK ME TO WELD
ALUMINUIUM. ISAY I WOULD REFRAME FROM THAT BECAUSE L.A. IS WELDER”
[2]
(
sic
)
[30]
Although he explained that the reason the
diary entry does not mention other reasons for not doing the work was
because it was just
a note to remind him, the gist of the note does
identify the core reason for his refusal which dovetailed with
Paulsen’s
evidence.
[31]
The applicant denied that he had refused to
go to the Sampson School of Welding, where Adams had undergone
training. He also confirmed
his evidence to that effect which he had
given in the disciplinary enquiry. Under cross-examination he said
that he had simply
suggested that he be trained at the South African
Institute of Welding (‘SAIW’) but nobody came back to him
and said
he could not go there and nobody told him to go to the
Sampson school. It is only at his disciplinary enquiry hearing that
he heard
for the first time that he had not been sent on training
because the training he had suggested at SAIW was too expensive.
[32]
The applicant believed he should have been
sent on training because he was having difficulties with his welding
which was cracking
and Mr Paulsen could not help him with it. Under
cross-examination, he agreed that he had the ability to do aluminium
welding but
not the knowledge of how to apply his ability properly,
and he was concerned because of the type of work he was doing could
affect
people’s lives if it was defective. His evidence about
Paulsen been unable to assist him with his welding was not something
put to Paulsen when he testified.
[33]
When the applicant was asked whether, if he
came back to work at the respondent, he would still not do welding
until he had been
sent on a course, he confirmed he would still
refuse because the welding he would be asked to do would not be of a
proper quality
according to “legislation”. He claimed
that he only came to know about the legal requirement governing his
work
after
the event, namely the Occupational Health & Safety Act and the
national standards for welding. He understood that, in terms
of those
instruments it was a legal requirement that the employer had to make
sure the person doing the job was competent.
Grounds of Review and
evaluation
Grounds relating to
the failure of the applicant’s expert witness to testify in
person
The arbitrator’s
postponement of the hearing after the applicant gave notice of who he
intended to call as an expert and the
evidence he would give
[34]
In his founding affidavit, the applicant
complained about the alleged prejudice he suffered in being unable to
call his expert witness
because of the problems encountered with the
video conferencing. Without specifying the particular form of
misconduct committed
on the part of the arbitrator in this respect,
the thrust of the complaint was that even though the matter was
scheduled to continue
on 21 and 22 July 2008 and the applicant had
made arrangements for Nell to attend on 22 July 2008, the arbitrator
granted the respondent
the postponement causing grave prejudice to
him because at the following hearing the video conferencing problem
arose.
[35]
The reason why the respondent’ s
representative had requested a postponement was that a signed version
of the applicant’s
expert had not been received and that it had
only been given one day’ s notice of whom he intended to call,
giving the respondent
no time to consider if it needed to call its
own expert. The applicant had adopted the view that it was not
necessary to have the
statement signed as the expert would be giving
evidence in person.
[36]
Nonetheless, in his replying affidavit the
applicant rightly withdrew any reliance on the granting of the
postponement as a basis
for the review application.
Procedural
irregularities limiting the material evidence before the arbitrator
[37]
Despite abandoning the abovementioned
ground of review based on the postponement ruling, in his
supplementary affidavit the applicant
advanced another related ground
of review arising from the chain of events following the
postponement. More specifically, the applicant
took the arbitrator to
task for allowing the respondent’s legal representative to
argue for a postponement of the matter
after the arbitrator had
already made a ruling refusing the respondent legal representation.
The arbitrator also supposedly acted
irregularly in allowing the
legal representative to tender an offer of arranging for a video
conference to be held at the attorneys’
premises to ensure that
the applicant’ s expert could be given an opportunity to
testify. He argued that as a result of allowing
the postponement, the
applicant was deprived of an opportunity to lead his expert witness
in person on the substantive issues which
were in dispute.
[38]
The applicant accused the arbitrator of
deciding that no further opportunity would be afforded to him for
Nell to present his evidence
viva voce
.
The applicant regarded this as critical because the expert would have
been able to explain the nature of what his job description
entailed
and the relevance of his refusal to do aluminium welding. This
failure had a direct impact on the arbitrator’s
misunderstanding of Nell’s evidence.
[39]
I agree that the arbitrator as a matter of
procedural regularity should have excluded the respondent’s
attorney, Mr Ellis,
from the proceedings once he had ruled against
legal representation. However, the attorney’s input was
essential in explaining
why a postponement was being sought as he had
been dealing with the applicant’s attorney at the stage when
the applicant
advised of his intention to call Nell. Moreover, in his
replying affidavit the applicant did not dispute that neither he nor
his
representative had objected to Ellis’ continued involvement
on that issue. In so far as it was irregular, the question is
whether
it prejudiced the applicant.
[40]
If
one has regard to the circumstances on which the application for
postponement was based, it was not an obviously unfair decision
to
grant the postponement based on the applicant’s late
notification both of Nell’s identity as his expert witness
and
of the nature of his testimony. These were proper considerations
which the arbitrator ought to have taken into account as a
basis for
postponing the hearing whether argued by Mr Ellis or not. I do not
think the applicant can say he was
unfairly
prejudiced by these matters being tabled in the postponement
application. So, even if there are instances in which procedural
irregularities can cause substantive prejudice, this was not one of
them. In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[3]
,
the LAC said:
The
court in Sidumo was at pains to state that arbitration awards made
under the Labour Relations Act 4 (LRA) continue to be determined
in
terms of s 145 of the LRA but that the constitutional standard of
reasonableness is 'suffused' in the application of s 145 of
the LRA.
This implies that an application for review sought on the grounds of
misconduct, 5 gross irregularity in the conduct of
the arbitration
proceedings, 6 and/or excess of powers 7 will not lead automatically
to a setting aside of the award if any of
the above grounds are found
to be present. In other words, in a case such as the present, where a
gross irregularity in the proceedings
is alleged, the enquiry is not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends to whether
the result was unreasonable, or
put another way, whether the decision that the arbitrator arrived at
is one that falls in a band
of decisions to which a reasonable
decision maker could come on the available material. “
[4]
Failure to consider
that the applicant had a grievance pending
[41]
The second ground of review raised in the
founding affidavit is that the arbitrator failed to consider that the
applicant had filed
a grievance about the fact that he had failed to
receive training in aluminium welding and that he ignored all the
evidence that
he never refused to attend any welding jobs he was
instructed to do. It was never put to any of the respondent’s
witnesses
that the applicant should not have been disciplined when he
had a grievance pending over the employer’s failure to send him
on further training. The arbitrator can hardly be faulted for not
giving any weight to this factor. It is true that after the
applicant’s pointed refusal to weld the monitor frames, that
the respondent did not cite specific instances of his subsequent
refusal to perform specific work, but it is clear enough from the
evidence that on 13 September he was instructed to perform welding
work and made it unequivocally clear that as things stood he would
not do so, this time citing his medical condition as the primary
reason, but still mentioning that he was a qualified fitter and
turner, not a welder. Even though his subsequent refusal was not
formulated as a charge, it was obvious he was not relenting on his
stance.
Failure to appreciate
that the respondent had not fulfilled its duties and responsibility
to the applicant to provide him with training.
[42]
Thirdly, the applicant criticised the
arbitrator for failing to see that the third respondent had failed in
its duties and responsibilities
towards him as an employee and the
difficulty could have been overcome simply h by granting him the
proper training. The applicant
did not specify which responsibilities
or duties he was referring to in his affidavit and, in reply to the
respondent’s denial,
he insisted that if the employer had paid
due regard to his concerns and his grievance about not being sent on
training, he would
have been able to carry out the specific
instruction. I take this to be a re-emphasis of his original reason
for not doing the
welding work, namely that he was not qualified to
do so because he had not done the necessary formal training. The
criticism of
the arbitrator I infer from this is that the arbitrator
should have realised that it was simply the employer’s
obstinacy
in not sending the applicant to the formal training that
had created the crisis. This relates to the central issue in the
case,
namely whether he could be instructed to perform aluminium
welding work in the absence of having done the necessary formal
training
if the employer was satisfied with the actual standard of
his work.
Alleged
misinterpretation of OHSA
[43]
In the form this ground of review was
expressed, no specific reference was made to OHSA, but the applicant
also claimed that the
arbitrator had committed a gross irregularity
in misinterpreting OHSA. The respondent retorted that in the
arbitration proceedings
the applicant had not made out a case that
the reason for his refusal to carry out the instruction was on
account of the requirements
of that Act. It must be mentioned that
when the employer’s witnesses were questioned, none of them was
confronted with an
argument that it was unlawful for the employer to
insist on the applicant performing the welding work in question
because it was
contrary to OHSA or OHSA Regulations.
[44]
Throughout his own testimony, when
explaining why he had refused to perform the work in question, the
applicant kept reiterating
that he did not feel he was competent to
do the job without having been certified for that work. At one stage
during his cross-examination
the applicant was asked whether he would
refuse to do the welding until he had been sent on the courses he had
been requesting.
The following appears at this point in the
transcript:
“
Mr Thorne: I will
have to be qualified first.
Mr Msiza: no, but you are
not answering my question. My question to you is would you do
welding? Would you still refuse until you
have been sent to the
courses?
Mr Thorne: I have to
refuse because (intervention)
Mr Msiza: so you will
refuse?
Mr Thorne: because the
welding that they want me to do is not of a proper quality in my
opinion because it is not being, according
to legislation it is not
proper.”
[45]
A little later, the applicant was referred
to the email he had sent to Jakoet on 13 September 2007, in which he
had tried to explain
his reasons for not accepting the directive to
perform welding work. The transcript reflects the following exchange:
“
Mr Msiza: you also
refer you know to your eye problem there, but there is nothing you
mention about the instruction been unlawful.
Can you tell me why is
that?
Mr Thorne: Because I did
not know it was not lawful. Mr Harry Gargan brought it to my
attention (indistinct). All I knew about welding
was that it is a
trade on its own and that you get trained properly in doing the job.
But the legal aspects I did not know at that
time.”
[46]
Further on in his cross-examination, when
he was asked why he said the instruction was unlawful when it had
been agreed that Nell’s
affidavit merely reflected best
practice, he referred to OHSA. The transcript of that portion of the
evidence reads as follows:
“
Mr Msiza: …
Mr Thorne what I want to put to you is the fact that it has been
accepted by both parties you know the fact that
in terms of the
affidavit that was put to us by your witness, expert witness, that
this is purely a best practice which is why
we have sought to have
accepted it, but then now why-how do you then say this was not a
legal instruction? (Indistinct) I mean
as a welder you have to be
expected to be coded welder legally, but your experts testimony in
the expert witnesses saying that
is just a best practice.
Mr Thorne: And that is
covered with legislation. Best practice.
Mr Msiza: Which
legislation is this?
Mr Thorne : The Act.
Mr Msiza: There are lots
of (indistinct) (intervention)
Mr Thorne : Occupational
Health and Safety Act, and The Labour Relations Act also covers that
(indistinct). I think it is section
9 if I am not mistaken in
Occupational Health & Safety Act.”
[47]
Still later, when asked again why he said
the instruction was unlawful he said that the company was obliged to
‘skill and
get the person competent’ in the job in terms
of OHSA and the National Standards for Welding.
[48]
Can the arbitrator be blamed for not having
regard to the provisions of the Occupational Health & Safety act
in determining
whether or not the instruction to the applicant to
perform the welding work in question was lawful? In terms of the
evidence before
him, it is apparent that the reason why the applicant
had refused to do the welding work was not because he believed it
would be
in contravention of any statute or regulations. As
mentioned, such a ground for contending that the instruction was
unlawful was
not put to the employer’s witnesses.
[49]
I accept that it was open to the applicant
to raise a new ground of unlawfulness at the arbitration proceedings
even if he did not
know of that particular basis at the time of his
dismissal because those proceedings are proceedings
de
novo.
However, if that was the
intention it was not clearly expressed in the conduct of the
applicant’s case at the arbitration
and has only become
apparent in the course of this review application.
[50]
It is true that OHSA was mentioned in
Nell’s affidavit, but at the outset of the arbitration it was
confirmed that the status
of the evidence in the affidavit was
confined to being a description of best practice, and the relevance
of the OHSA provisions
to determine the lawfulness of the instruction
was not made a central issue in the case. The applicant’s
representative had
confirmed in an email before the arbitration
commenced that certification of persons for each particular form of
welding was best
practice and not a legal requirement. The
applicant’s representative also did not give any indication to
the respondent’s
witnesses or at the commencement of the
arbitration that he would be arguing the unlawfulness of the
instruction based on a contravention
of OHSA or the regulations,
notwithstanding the qualified nature of Nell’s evidence.
[51]
Had
the applicant’s expert witness not made the concession that was
accepted by the respondent, and had the applicant gone
on to make out
a case in the arbitration that the instruction was unlawful because
it was in contravention of OHSA or the regulations
under that Act,
the outcome might have been different.
[5]
However, it is not open to the applicant to use review proceedings to
make out a case that was never properly put before the arbitrator
and
blame the arbitrator for not inferring the existence of a ground of
unlawfulness that he now wishes to argue is a central pillar
of his
case but failed to raise in the those proceedings except in the most
oblique and vague way at best and then only during
his own
cross-examination.
Failure to keep a
record of proceedings
[52]
The applicant also said that the arbitrator
was guilty of gross irregularity in the conduct of proceedings in
failing to keep a
record thereof in terms of an implied duty on him
to do so. The respondent claims that insofar as there was no digital
recording
of what occurred on 15 May 2008,that is of no moment
because all that occurred was an adjournment in order to allow the
applicant
to file opposing papers to the respondent’s
application for legal representation. Further, the respondent submits
that the
absence of any recording of events on 21 July 2008 is not
material to the issue of whether or not the award should be set aside
since no testimony was given by any witnesses on that date and the
postponement of proceedings was considered. Even if I take account
of
the applicant’s account of the alleged missing portion of the
testimony which is attached to his supplementary affidavit,
the only
point which arises from that, is that, Paulsen indicated that he did
not have a problem with the applicant’s refusal
to do the work
when the applicant said he was not competent and Paulsen decided ‘to
work around’ that, but Wyngaard
did not find this acceptable
this very portion of the applicant’s reconstruction was
disputed by the respondent and the parties
have not agreed on it.
[53]
I
accept that there were portions of the record missing, but even if I
take the applicant’s unilateral reconstruction into
account, I
do not think the missing portions seriously affect the court’s
ability to determine the substantial points of
review. It is not
clear that in the efforts to reconstruct the missing portions of the
record, the arbitrator was either unwilling
to provide his notes, or
that he had none which could have assisted in the reconstruction.
Moreover this was not a case like
UEE-Dantex
Explosives (Pty) Ltd v Maseko & others
[6]
or
Doornpoort
Kwik Spar CC v Odendaal & others
[7]
in which there was a
complete failure to maintain or provide a record.
[54]
In
this regard, even allowing for the fact that the prevailing authority
on review of procedural irregularity at the time the matter
was
argued was the LAC decision in
Herholdt
v Nedbank Ltd
[8]
,
to succeed a process related review still had to establish that the
irregularity was such that a commissioner failed to apply
their mind
to material facts or issues which had the potential for prejudice to
the extent that a different outcome might have
been possible.
[9]
I
do not believe the process related points in this application even
met that threshold.
Failure of video
conferencing arrangement.
[55]
A further point raised by the applicant was
an insinuation that, in effect, the respondent’s attorneys of
record had misrepresented
that video conferencing facilities had been
arranged. In relation to this issue there is a dispute of fact in the
founding supplementary
and replying affidavits which cannot be
resolved. In any event, this evidence was not before the arbitrator
and, if it was material
to the outcome of the arbitration, the
applicant’s recourse would have been to rescind the award. As
such, it is not a proper
ground of review.
Alleged
misconstruction of Nell’s affidavit
[56]
The applicant maintains that the arbitrator
incorrectly understood that the evidence of the expert witness was
based purely on best
practice and not on the legal requirements for
performing welding work of a particular kind. The applicant contends
that Nell’s
evidence would have been that no person could
perform production welding unless qualified with an approved welding
procedure and
that a welder could only use those processes for which
he holds a valid code certification in production. Nell’s
evidence
would also been to the effect that section 9 of the
Occupational Health & Safety Act and the associated Regulations
placed
a duty on employers to ensure that persons receive the
necessary training. Consequently, the arbitrator’s conclusion
that
the applicant was adequately qualified to carry out the specific
welding instruction shows that he gravely misunderstood the evidence
presented by the applicant.
[57]
The basis on which the respondent was
willing to admit Nell’s affidavit as uncontested was subject to
the order that it was
a statement of best practice rather than a
statement about legal pre-requisites for performing certain welding
work. This point
was made more than once during the arbitration and
the applicant did not object to this qualified basis on which Nell’s
statement
was to be admitted, even though on the face of the
statement the reference to the Occupational Health and Safety Act in
the affidavit
gave an indication that there was some statutory
regulation of qualifications for the performance of welding work.
[58]
Moreover, even though the applicant might
have felt frustrated by the failure of the planned video-conferencing
arrangement, it
was not the arbitrator who then ruled that the
evidence of Nell would not be heard: it was the applicant’s own
representative
who indicated that the efforts to hear Nell’s
oral testimony would be abandoned: the arbitrator simply confirmed
this. In
the circumstances, it is disingenuous of the applicant to
try and shift responsibility to the arbitrator for the lack of Nell’s
oral testimony.
Ground of review
advanced in applicant’s heads of argument
[59]
Perhaps realising the difficulty of
over-reliance being placed on the arbitrator’s purported
refusal to hear the applicant’s
expert’s oral testimony,
the applicant sought to introduce a substantially new ground of
review in supplementary heads of
argument. This version argued that
the arbitrator was not in a position to determine the dispute
properly because he did not have
enough evidence before him to
understand certain issues and therefore was not able to reach a
conclusion on whether there was a
good or sufficient reason for the
applicant to refuse the welding instruction. As the respondent bore
the onus of proving the dismissal
was fair, it had to prove the
instruction was lawful and reasonable and the refusal to obey it was
unjustified. Given the applicant’s
explanation for not
complying, the commissioner was obliged either to obtain enough
evidence to evaluate it, or find that the employer
had failed to
discharge the onus it carried.
[60]
For the sake of completeness, I will assume
that these grounds of review do fall to be considered, despite not
being set out in
the founding or supplementary affidavits.
[61]
It was contended that the arbitrator could
not determine if the applicant was able to weld aluminium without the
necessary technical
evidence about the differences between welding
different materials. I am satisfied on the evidence that it was
perfectly plausible
for the arbitrator to conclude that the applicant
was capable of welding aluminium to a standard which was satisfactory
to the
employer. To the extent that there was a real risk that the
applicant would have been unable to weld the aluminium frames
properly
without causing damage or doing so without a material defect
that was an issue for the parties to lead evidence on. I do not think
an arbitrator is obligated to solicit evidence on such issues, even
if that might yield a more scientifically sound result.
[62]
It
was also argued that the arbitrator needed to have regarded to
so-called ‘artisan protocol’, namely whether a person
in
the applicant’s position would normally consider himself
entitled to decide what jobs he could and could not do. However
the
existence of such a discretion was never part of the applicant’s
case. For instance, no evidence was led to suggest that
it was not
unusual for such a person to refuse to perform certain tasks if, in
their judgment, it would be unsafe to do so. By
contrast in the case
relied on by the applicant, there was extensive evidence on the work
practices of a tug master.
[10]
[63]
Lastly, it was submitted that the
arbitrator needed to consider the regulatory framework governing the
acquisition and application
of technical skills in South Africa and
in this regard failed to have regard to OHSA and the regulations. I
have already dealt
with the fact that the applicant did not
pertinently contend that the lawfulness of the instruction depended
on compliance with
these regulations, but in determining the
seriousness of the applicant’s infraction, they might well have
played a part.
In any event, this is an issue to be considered under
one of the grounds of review still be dealt with below.
[64]
In relation to the alternative argument
that the employer had not discharged the onus of showing that the
instruction was lawful
and reasonable, I think the criticism is
wrong. Apart from evidence of the applicant’s contract, there
was the evidence of
the applicant’s job description which
showed that welding was part of his functions and it was not confined
to a particular
type of welding. There was also sufficient evidence
for the arbitrator to conclude that the applicant could perform
aluminium welding
as he had done so in the past. This evidence was
enough in my view for the arbitrator to conclude the instruction had
been both
lawful and reasonable. If the applicant wished to raise a
special defence that the instruction was in breach of a statute or
regulations
then it was for the applicant to place
prima
facie
evidence of that contravention
before the arbitrator. The employer would then have to satisfactorily
rebut such evidence to discharge
the onus.
Failure to consider
the seriousness of the applicant’s refusal
[65]
The applicant lastly contends that the
arbitrator failed to consider whether the insubordination was serious
persistent and deliberate.
The applicant’s refusal to perform
an instruction which he did not feel qualified to perform did not
constitute insubordination
according to the applicant and the
arbitrator failed to consider this, thus rendering his decision
unreasonable.
[66]
In argument, it was submitted that the
applicant’s refusal to perform the aluminium welding was not
insubordinate because
he made reasonable and measured attempts to
explain his situation to the employer and tried to negotiate a
workable solution. Further,
it was argued that his refusal to comply
was made in the
bona fide
belief that his conduct was justified and not as a snub to managerial
authority.
[67]
The
respondent contends there is no difference between refusing to obey
an instruction and insubordination. In making this point
the
respondent refers to J Grogan’s,
Dismissal
.
[11]
However, the reference is misplaced because the learned author was
not comparing a refusal to obey an instruction with insubordination,
but was comparing insubordination and insolence. He makes the point
that nothing turns on the distinction between the two latter
terms.
Nevertheless in identifying what constitutes insubordination, the
learned author writes:
“
It is generally
accepted that, to constitute insubordination, an employee’s
refusal to obey an instruction must be deliberate,
and the
instruction must be reasonable and lawful.”
[12]
In
this instance, there is no real dispute that the applicant
deliberately refused the instruction to weld the aluminium frames.
The arbitrator not unreasonably concluded, on what was before him,
that the instruction was a reasonable and lawful. The respondent’s
own code describes insubordination as “an unwillingness to
submit to authority, i.e. direct challenging of the authority
of a
supervisor.”
[68]
In terms of the respondent’s
disciplinary code a wilful refusal to obey a reasonable and lawful
instruction could normally
be expected to result in a final written
warning followed by dismissal and the same approach is recommended
for insubordination,
though probably in error the code refers to a
written warning rather than a final written warning as precursor to
dismissal. It
should also be remembered that the applicant was not
dismissed for insubordination as such but for refusing to carry out
an instruction.
In the circumstances, it seems it cannot be said that
the arbitrator somehow arrived at an unreasonable decision based on
some
confusion between the two closely related and often overlapping
forms of misconduct.
Failure to arrive at a
reasonable conclusion on the appropriate sanction
[69]
The arbitrator was clearly mindful of what
he ought to have considered because he referred in some detail to the
relevant case authorities.
He decided dismissal was appropriate
because:
69.1
The suggested written warning as a
precursor to dismissal in the respondent’s disciplinary code is
a guideline, which can
be deviated from if the gravity of the offence
warranted it.
69.2
The applicant had no valid reason for
refusing the instruction and instead of accepting responsibility for
his decision tried to
justify his action with reference to medical
reasons and concerns about the quality of his work.
69.3
Despite having a month to reflect on his
actions, the applicant still persisted in insisting that he was a
fitter and turner not
a welder a month after the initial refusal to
do the aluminium welding and was not willing to comply with his
obligations as an
employee.
[70]
The applicant contends that arbitrator
failed to consider the applicant’s long service history and
other mitigating factors.
The applicant concluded that in the light
of all these factors the conclusion that the sanction of dismissal
was appropriate was
unreasonable and one that no reasonable
Commissioner would have reached on the evidence.
[71]
The
applicant submits that it runs counter to the Code of Good Practice:
Dismissal which states it is generally not appropriate
for an
employee to be dismissed for a first offence. This principle the LAC
in
Wasteman
Group v SA Municipal Workers’ Union & others
accepted
also is applicable also in the case of insubordination.
[13]
Further, the applicant argued that in finding that there was no
reason to interfere with the employer’s decision to dismiss
him, the arbitrator had failed to consider that the employer’s
decision had been based on finding him guilty of three charges
of
misconduct, whereas in the arbitration he had been found guilty of
one.
[72]
The
applicant argues that the arbitrator failed to justify his decision
that the applicant’s conduct ‘was deserving
of the most
severe sanction’ as he put it. In this regard, the applicant
points out that there is nothing to indicate that
the employer
considered if some other corrective action might have provided a
solution, nor that his clean disciplinary record
was taken into
account. Lastly, the applicant contends the arbitrator was unduly
deferential to the employer’s decision contrary
to
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[14]
[73]
I agree with the respondent that merely
because the arbitrator expresses the view that he finds ‘no
reason to interfere with
the respondent’s decision’ to
dismiss the applicant, that does not mean that he actually deferred
to the employer’s
reasoning in arriving at his own decision. It
can mean nothing more than he came to the same outcome, but based on
his own assessment.
[74]
Although the commissioner does not
expressly deal with the argument that this was a first offence, it is
clear that he was perturbed
by the fact that a month after the frame
welding incident the applicant appeared obdurate in his insistence
that he was not obliged
to weld. In my view, there is nothing
impermissible in considering the applicant’s subsequent conduct
where it is appropriate
to consider if the conduct complained of was
a once-off event or was of a continuing nature.
[75]
The applicant says the arbitrator
unreasonably failed to consider other alternatives to dismissal.
Whilst seeking to fault the arbitrator
on this issue, it must be said
that in challenging the fairness of his dismissal, it was never part
of the applicant’s case
that if he had correctly been found
guilty, a lesser sanction would have been appropriate. His attack was
focussed entirely on
the finding of guilt and procedural
deficiencies. The respondent’s witnesses were not tackled on
why a less serious sanction
would have been appropriate even if he
was found guilty. Moreover, this was not a case of an illiterate
unrepresented employee,
who might not have been alive to the need to
deal with this issue in evidence. In the circumstances, I do not
think that it was
unreasonable of the arbitrator not to find that
some alternative sanction would have been appropriate, when this was
not even suggested
by the applicant.
[76]
Lastly, I accept that it is conceivable
that another arbitrator may, in spite of the features of the
applicant’s conduct which
troubled second respondent, have
found that the applicant should not have been dismissed, it cannot be
said that the second respondent’s
assessment of the sanction
was an untenable one on the evidence.
Conclusion
[77]
In light of the reasoning above, I am not
satisfied the applicant has made out a case to review and set aside
the arbitrator’s
award. The fact that a proper case might have
been made out in the arbitration that the instruction to perform the
welding in question
was unlawful because it was contrary to statute
cannot assist the applicant in these review proceedings.
[78]
Although there is no ongoing relationship
between the parties the review application was not frivolous and the
nature of the applicant’s
misconduct was not of an inherently
dubious character such as misconduct involving dishonesty but was
motivated by a genuine belief
that it was justified even if he was
unable to establish sufficient reasons to refuse the instruction.
Order
[79]
Accordingly, the review application is
dismissed and no order is made as to costs.
________________
Lagrange, J
Judge of the Labour Court
of South Africa
APPEARANCES
For the Applicant:
Advocate S Harvey
Instructed by: Parker
Attorneys
For
the First Respondent: H Rossouw of Edward, Nathan Sonnenbergs Inc.
[1]
(2007) 28 ILJ 2405 (CC)
[2]
“PP” seems to have been a reference to Paulsen and
“L.A.” was apparently a reference to the applicant’s
colleague, Leon Adams, who had received training in aluminium
welding.
[3]
(2014) 35 ILJ 943 (LAC)
[4]
At 948, para [14].
[5]
A good example of a case where this properly placed before the
arbitrator is
National
Union of Metalworkers of SA on behalf of Williams and Gold Sun
Industries (Pty) Ltd
(2013)
34 ILJ 469 (BCA) .
[6]
(2001) 22 ILJ 1905 (LC)
[7]
(2008) 29 ILJ 1019 (LC)
[8]
(2012) 33 ILJ 1789 (LAC)
[9]
At 1801-1802, paras [38]-[40]
[10]
MITUSA
obo Clarke / National Ports Authority
[2006] 9 BALR 861 (TOKISO)
[11]
Juta, 2010
[12]
Op cit at 196-197
[13]
(2012) 33 ILJ 2054 (LAC) at 2058I-J
[14]
2008 (2) SA 24
(CC );(2007) 28 ILJ 2405 (CC ) at 2461-2 at paras
[178] – [182].