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[2015] ZALCCT 46
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Thorne v Commission for Conciliation Mediation And Arbitration and Others (C832/08) [2015] ZALCCT 46 (26 June 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGEMENT
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
JUDGMENT ON LEAVE TO
APPEAL
LAGRANGE,
J
Introduction
[1]
Owing to difficulties in locating the court
file due to renovations in the Cape Court, the consideration of this
application for
leave to appeal was unfortunately delayed.
[2]
The applicant appeals against the judgment
handed down in this matter on 3 November 2014 dismissing his review
application of an
arbitration award in which the arbitrator found
that he had been fairly dismissed for refusing to carry out a
reasonable and lawful
instruction.
Grounds
of appeal
[3]
Firstly, the applicant claims that the
court failed to appreciate that the applicant’s conduct in not
performing welding work
he was instructed to do amounted to a mere
failure to obey an instruction and did not amount to gross
insubordination which might
justify dismissal. On the evidence before
the arbitrator, this characterisation does not do justice to the
wilful nature of the
applicant’s failure, which underpins the
ethical explanation he belatedly advanced as his reason for
non-compliance with
the instruction to perform certain welding work,
nor does it fairly reflect that it was not a once off refusal but an
ongoing state
of affairs. I do not think it is likely that another
court would see the arbitrator as having acted unreasonably in not
seeing
it the way the applicant does.
[4]
Secondly, the court erred in not finding
that the arbitrator failed to perform his duty because he failed to
discern an ethical
basis for the applicant’s failure to perform
the welding work in question, or to call for more evidence to
determine the
true nature of the dispute.
[5]
The court erred in finding that the
commissioner was not obliged to enquire into the basis for his
refusal to perform the instruction,
which was purely ethical. In
relation to the last two grounds mentioned, the duty which the
applicant seeks to burden the arbitrator
with is to discern a defence
he could not even present himself by the time he got to arbitration
despite being an articulate individual
and despite being an
arbitrator. I am satisfied that it is unlikely another court would
impose the kind of interrogative burden
on an arbitrator that the
applicant would like to see imposed. An employee is obviously
entitled to refuse to obey an unlawful
or unreasonable instruction
but the applicant’s ‘ethical’ basis for his refusal
which he did not articulate clearly
until he reviewed the
arbitrator’s award was not on a par with the authorities he
cites.
[6]
The court erred in not appreciating that
the applicant was not challenging the employer’s authority as
he had lodged a grievance
and had tried to find a workable solution
with the employer and that the commissioner had not acted in
consonance with the purpose
and values of the LRA which would have
required him to adopt a remedy other than dismissal. The workable
solution sought by the
applicant was to be sent on expensive training
which the employer was not prepared to incur, having refused to
accept an offer
of other training. He sought a solution only on his
own terms and persisted in refusing to do welding work he had
previously performed.
[7]
The court failed to realise that the
arbitrator’s alleged failure to consider the following issues
made his award reviewable
:
7.1
The minimal impact of the applicant’s
refusal to perform the welding working in question;
7.2
The applicant’s long record of clean
service against the gravity of the misconduct;
7.3
Whether further training could have
resulted in him not repeating the misconduct.
[8]
In relation to the last mentioned ground,
there was no basis on the evidence that the applicant would have
obeyed the instruction
in question in the future unless he got the
training that he insisted on, not the one offered by the employer.
Further, the applicant’s
refusal necessitated the employer to
allocate other less skilled employees to do the work which is an
inconvenience and disadvantageous
arrangement the employer was not
obliged to put up with. The applicant also failed to take up
the issue of why a less severe
sanction might have been appropriate
with the employer’s witnesses at the time and I cannot see how
another court is likely
to conclude that just because the applicant
had long service, the employer was obliged to put up with his refusal
to perform work
he had previously performed until it agreed to send
him on the training he had decided was appropriate. What the
applicant failed
to appreciate is that he gave no indication that his
attitude would change if he was reinstated and it is difficult to say
that
the commissioner acted unreasonably in not finding that his long
service somehow should have offset his obduracy.
[9]
In the circumstances, I am not satisfied
that there is a reasonable prospect of another court reaching a
different conclusion in
reviewing the arbitration award.
Order
[10]
The application for leave to appeal is dismissed.
[11]
No order is made as to costs.
_______________________
R
LAGRANGE, J
Judge
of the Labour Court
26
June 2015
(In
chambers)