About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2016
>>
[2016] ZALCJHB 80
|
|
City of Johannesburg v Swanepoel NO and Others (JR2316/12) [2016] ZALCJHB 80; (2016) 37 ILJ 1400 (LC) (26 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
No: JR2316/12
In the
matter between:
CITY
OF
JOHANNESBURG
APPLICANT
and
A H
SWANEPOEL
NO
FIRST RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
SECOND RESPONDENT
DUMISANI
JOB
SITHOLE
THIRD RESPONDENT
Heard:
10 July 2015
Delivered:
26 February 2016
JUDGMENT
LEPPAN,
AJ
Introduction
[1]
A pre-dismissal
arbitration award ("the Award") was issued by the First
Respondent on 6 August 2012. The Third Respondent
was found not
guilty of gross insubordination. The Applicant has applied to this
Court to have an award reviewed and set aside
in terms of
section 145
of the
Labour Relations Act, 66 of 1995
, as amended ("the LRA").
[2]
Since 1 June 2009, the
Third Respondent held the position of Director of the Alexandra
Renewal Project ("the ARP") which
was listed as one of the
Presidential priorities funded by National Government through the
Gauteng Provincial Government. The aim
of the ARP was to develop
Alexandra Township with emphasis placed on high density housing. The
ARP had been an ongoing project
since 2001.
[3]
The Third Respondent
was employed on a fixed term contract but later employed on the same
terms but in a full time capacity. He
was required to manage and
execute the objectives of the ARP. From January 2010, the Third
Respondent reported to his immediate
supervisor, Mr Christian Ehlers
("Ehlers") who was the then Acting Executive Director:
Development Planning and Urban
Management.
[4]
When tensions arose
between the Applicant and members of the Alexandra community, led by
the ANC Youth League ("the ANCYL"),
the Applicant sought to
transfer the Third Respondent to a different position in its
organisation. The Third Respondent refused
and was subsequently
disciplined for gross insubordination as a consequence of such
failure to carry out reasonable and lawful
instructions.
[5]
In terms of the Third
Respondent's contract of employment, should there be allegations of
misconduct, then the parties would opt
for the pre-dismissal
arbitration option in terms of
section 188A
of the LRA. Hence the
reason that the matter came before the First Respondent, as
aforesaid.
The
facts
[6]
The MMC Councillor, Mr
Ruby Matoung ("Matoung"), whose jurisdiction covered the
Alexandra area, played a key liaison role
between functionaries
employed by the Applicant and community leaders. This was described
as a form of political oversight relevant
to the work of the ARP.
[7]
It is common cause that
Matoung requested Ehlers to attend a meeting on 11 November 2011 to
discuss community grievances in respect
of the ARP. This meeting was
attended by representatives of the ANCYL. This meeting was
precipitated by the issuance of a petition
which centred upon
dissatisfaction with the lack of progress of the ARP and its failure
to deliver timeously on its objectives.
Some examples were that
poverty remained “the order of the day” and why the very
slow progress of the ARP given that
it had been in existence for more
than 10 years. This petition claimed that “one person”
stood in the way of such progress,
namely, the Third Respondent. At
that meeting with the ANCYL, the demand for the removal of the Third
Respondent was voiced. Later
that evening, another meeting followed,
referred to as the "zonal leadership" meeting, with a much
broader and larger
audience. The issue of the Third Respondent
remaining in his job was also raised but there were some community
members advocating
that he should stay in office. The Third
Respondent called as a witness the chairperson of the Civic
Association (SASCOV), Mr T
Seetane, who testified to this effect,
which evidence was not disputed by the Applicant.
[8]
Importantly, this was
not the first sign of dissatisfaction within the community as there
had been previous demonstrations and a
march on 27 October 2011.
Ehlers testified that an "arson attempt" had occurred which
was directed at the home of an
official working with the Third
Respondent. There was also a subsequent sit-in at the office of the
Mayor.
[9]
It
is evident that there were concerns for the safety of the Third
Respondent and others with whom he worked. It was the aim of
the
Applicant to "stabilise" matters and "calm"
emotions down so that the Applicant could not only deliver
on matters
for which it was responsible but also get to the bottom of the
community's grievances which would naturally take some
time. Hence
the motivation for the transfer of the Third Respondent to Region B
as an alternative to him remaining at the ARP.
This would constitute
a lateral transfer
[1]
but on the
same or similar terms and conditions of employment. The move was
supported by Matoung.
[10]
Ehlers testified that
the Mayor had approached both him and Matoung and indicated that:
‘
The
department (the Applicant) must do something about this instability
these dynamics that's taking place there, so, we had an
engagement
with Mr Sithole (the Third Respondent) and we said to Mr Sithole, we
are not accusing him of anything but the dynamics
are so sensitive
and there (sic) are other threats as well that Mr Sithole has
forwarded to us as well in terms of certain threats
that he has
received himself as well and based on that we said to them that for
us to be responsible we suggest we move him sideways
to another
equivalent office position and that he takes that office up and that
we remove him as a person in that particular office
to calm the
environment down in order so we can restore the order of the
programme and make sure we achieve our objectives…’
[2]
[11]
It
is also evident from Ehlers’ testimony, at the arbitration,
that safety was pivotal and that the Applicant was aware of
its
onerous obligations to maintain a safe working environment in
accordance with the objectives and spirit of the
Occupational Health
and Safety Act, 85 of 1993
, as amended ("the OHS Act").
[3]
[12]
The
decision to seek the Third Respondent's lateral transfer was not an
arbitrary one. Ehlers suggested one of the reasons for the
tension
was that the Third Respondent had been dealing with ‘some
fraudulent and corrupt matters in that office and he was
exposing
some of these things… He laid charges against certain
people…’
[4]
It was
evident before the First Respondent that during 2012, an article
appeared in The Star newspaper in which the Third Respondent
was
quoted as saying he had received death threats from local ANC members
following his decision to suspend 12 employees from the
ARP project
on allegations that they had possibly committed fraud.
[5]
The Applicant did not want to lose the Third Respondent's services
but sought to utilise them elsewhere for reasons immediately
not
within its control.
[13]
The Third Respondent
sent a letter to Ehlers on 13 December 2011 requesting information to
enable him to give positive input and
respond to the proposed
transfer. In particular, he sought the minutes of the meetings held
on 11 November 2011.
[14]
Ehlers replied on 14
December 2011 stating that it is in the best interests of the Third
Respondent and his family if he was redeployed
to Region B and that
he should report there from 1 January 2012.
[15]
On 21 December 2011,
the Third Respondent emailed Ehlers advising that he still had not
received the information that he had requested
and that:
‘
The
City has not even disclosed to me what are the details of the tasks
that need to be undertaken should I consider the forced
relocation.
Do I have the requisite skills to perform that task
[6]
and further "the planning HR has not even ascertained that I
know where those offices are located… how do you expect
the
employee to comply with an instruction if you have not empowered him
with the necessary tools.’
[7]
Without
an explanation and documentation as requested, the Third Respondent
claimed he was not in a position to make any decisions
about the
transfer. He said he would not carry out the instruction if not
provided with the information sought.
[16]
The
Third Respondent was on leave from between mid-December 2011 until
early and January 2012. Once he and Ehlers returned from
leave after
the festive season, Ehlers contacted the Third Respondent to set up a
meeting with the City Manager for them to discuss
the outstanding
issues surrounding the move to Region B.
[8]
The meeting was scheduled for 30 January 2012 but later postponed to
6 February 2012 due to Ehlers' unavailability.
[9]
On 2 February 2012, Ms Karen Britz ("Britz"), the secretary
to Mr Trevor Fowler ("Fowler"), the City Manager,
contacted
the parties informing both Ehlers and the Third Respondent that the
City Manager wanted to see them urgently.
[10]
Ehlers and the Third Respondent attended at the City Manager's
offices for the meeting. The meeting was initially conducted between
the City Manager and the Third Respondent.
[11]
[17]
Once
the Third Respondent left the offices, Ehlers had a further meeting
with the City Manager. Ehlers was instructed to send the
Third
Respondent a letter requesting him to provide written reasons why he
should not move to Region B as instructed.
[12]
The letter is dated 3 February 2012. The Third Respondent did not
take up that opportunity. Instead, on 6 February 2012, the legal
representative of the Third Respondent addressed a letter to Ehlers,
requesting the reasons for the transfer and the information
previously requested by the Third Respondent for him to make an
informed decision.
[13]
A
further letter dated 9 February 2012, was addressed by Ehlers to the
Third Respondent and contained a request for him to report
for duty
at Ehlers office on 13 February 2012 at 09h00.
[14]
The Third Respondent emailed Ehlers on 12 February 2012 requesting a
postponement of the meeting on 13 February 2012 at 09h00 due
to him
needing to first consult with his legal representatives. The request
was duly granted and the meeting was set for 12h00
that day. On 13
February 2012, the Third Respondent contacted Ehlers to state that he
had met with his legal representative and
the meeting could be
accelerated and hence why it took place at 10h30 that day.
[15]
[18]
The meeting of 12
February 2012 which was attended by Mr Domonic Zondo ("Zondo")
the head of Human Resources, the Third
Respondent and Ehlers. The
Third Respondent communicated to Ehlers that:
18.1
He
could not make a decision about his transfer because he did not have
the information which he had repeatedly requested, namely
the minutes
of the meetings and the attendance register.
[16]
However, it was apparent during the arbitration that no formal
minutes of these meetings were ever kept.
18.2
He
did not believe he had done anything wrong or that there was valid
reason to transfer him to Region B.
[17]
18.3
He did not believe his
life or that of his family was in danger;
18.4
He
contended that the move was politically motivated.
[18]
[19]
The Third Respondent
attended a meeting with the City Manager. The City Manager asked him
whether he still wanted to pursue a political
career and when he said
"no", the City Manager suggested that he rather focus on
building a career in administration
and move to Region B. The Third
Respondent continued with his refusal to transfer.
[20]
Subsequent to the Third
Respondent's suspension, on 19 March 2012, an arbitration hearing in
terms of section 188A of the LRA was
held. The charges against the
Third Respondent were that in the period December 2011 to 13 February
2012, the Third Respondent
had allegedly failed or refused to obey a
lawful and reasonable instruction by Ehlers to be transferred from
the ARP to Region
B on the same or similar terms and conditions of
employment. It was further alleged that the Third Respondent had
ignored lawful
instructions from "his superior" and that
this misconduct constituted gross insubordination.
[21]
The Third Respondent
testified that he told the City Manager that he had no problem to
move to Region B but wanted to be given a
guarantee that whatever
situation led him to being moved would not prejudice him. The City
Manager advised that he could not give
those guarantees. This was a
new version which the Third Respondent gave for his unwillingness to
transfer. This version regarding
why he would not move, as
instructed, was never put to any of the Applicant's witnesses.
[22]
The Third Respondent
could have followed the instructions of Ehlers and taken up
redeployment at Region B but he stalled by repeatedly
asking for
reasons why he should be moved. After the Third Respondent was told
what the reasons were, he continued with his refusal
to transfer.
[23]
During January 2012 and
February 2012, various meetings were held with the Third Respondent
in order to persuade him to move to
Region B but he continued to
refuse.
[24]
This led to the Third
Respondent's superior suspending him and charging him with the
misconduct described.
[25]
The Third Respondent
was subsequently found not guilty of gross insubordination by the
First Respondent and that he should report
for duty on 13 August 2013
at the Alexandra offices. The Applicant further suspended the Third
Respondent pending the outcome of
this review application.
The
award
[26]
The First Respondent
made certain key findings, namely:
26.1
there was no good
reason to seek the Third Respondent's transfer where he was not a
poor performer;
26.2
there was no evidence
that his transfer to Region B was a similar job to that which the
Third Respondent had carried out in respect
of the ARP project;
26.3
the Third Respondent
should have been commended for taking strong action to root out
corruption;
26.4
the handwritten notes
of the meetings of 11 November 2011, kept by Ehlers, should have been
made available to the Third Respondent
, so that he could understand
the rationale for his proposed transfer;
26.5
the municipal manager
was not called to testify why he had ordered Ehlers to pursue the
redeployment of the Third Respondent;
26.6
the decision to
redeploy the Third Respondent was based purely on "political
issues", unrelated to the Third Respondent's
performance, and
hence could not be a fair basis to effect the Third Respondent's
transfer;
26.7
an honest employee
should not be redeployed "to fuel the fraudulent activities of
those elected to serve the community";
26.8
that the allegations of
threats on the life of the Third Respondent were not relevant, SAPS
intervened and an ANCYL member who was
misbehaving was "subsequently
brought to book". The First Respondent found that the threats
made in 2009 were of a less
serious nature and accepted the Third
Respondent's version that anonymous threats should be treated with
"disdain".
26.9
I now turn to analyse
the test for review as seen against these findings.
Grounds
for review
[27]
Section
145 of the Labour Relations Act
[19]
("LRA") provides as follows -
‘
145
Review of arbitration awards:
(1)
Any party to a dispute who alleges a defect
in any arbitration proceedings under the auspices of the Commission
may apply to the
Labour Court for an order setting aside the
arbitration award:
…
..
(2)
A defect referred to in subsection (1),
means:
(a)
that the Commissioner;
(i)
committed misconduct in relation to the
duties of the commissioner as an arbitrator;
(ii)
committed a gross irregularity in the
conduct the arbitration proceedings; or
(iii)
exceeded the commissioner's powers.’
[28]
The
general principle is that a gross irregularity should concern the
conduct of the proceedings rather than the merits of the
decision.
[20]
A qualification
to that principle is that a gross irregularity is committed when a
decision-maker misconceives his/her mandate
or his/her duties in
conducting the enquiry.
[21]
[29]
When
a commissioner fails to have regard to material facts, this may
constitute a gross irregularity in the conduct of the arbitration
proceedings because the commissioner may have unreasonably failed to
perform his or her mandate and thereby prevented the aggrieved
party
from having his/her case fully and fairly determined.
[22]
A review of CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings to amount to
a gross irregularity, as contemplated in section 145(2)(a)(ii),
the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. The result will only be
unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that was before the arbitrator.
[23]
Material areas of fact, as well the weight and relevance to be
attached to particular facts, are not in and of themselves sufficient
for an award to be set aside, and are only of any consequence if
their effect is to render the outcome unreasonable.
[24]
Analysis
of the findings
[30]
The Applicant and Third
Respondent concluded a contract of employment which regulated the
Applicant's right to give effect to a
transfer. Clause 9.4 thereof
provides that:
‘
The
employee's normal place of work shall be the Pentaid House, 55
Andries Street, Wynberg. The City may, however, require the employee
to work at such other places within the City's
boundary / jurisdiction and within the Republic of South
Africa, whether
on a temporary or permanent basis, as the City may
from time to time require, and may require the employee to travel
internationally
in performance of his duties when necessary.’
[25]
[31]
It is so that in
seeking to give effect to clause 9.4 of the contract of employment,
the Applicant sought to do so in a fair and
justifiable manner by
considering the complexities of the developments in the community. It
was community members who were dissatisfied
with the progress of the
ARP project, there were serious levels of tension that had arisen and
which needed to be investigated
and addressed. Ultimately, what
weighed on the mind of the Applicant was the need to ensure the
safety of the Third Respondent
and that of his family in so far as it
was reasonably practicable to do so.
[32]
There was no ulterior
motive for the proposed transfer of the Third Respondent. It was
acknowledged by Ehlers that the Third Respondent
was a good
performer. Ehlers likewise testified that there were no issues of
incompatibility. He conceded though that the Third
Respondent's
obstinacy in refusing to take up a redeployment to Region B caused
tension as it left the Applicant in an invidious
position.
[33]
The
merit in the transfer lay in the Applicant's legal duty of care that
it owed to its employees and, in this instance, the Third
Respondent.
The duty to provide a safe working environment rests upon the
employer under both common law and statute. It is the
working
environment that must be safe and not just the actual place where
work is rendered. Where the working environment is unsafe
the
employer would be in breach of its obligations in that regard. See:
NUM
& others v Chrober Slate (Pty) Ltd
[26]
and
Oosthuizen
v Homegas
.
[27]
It is common cause that there had been ongoing disruption in the
Alexandra community. There was dissatisfaction in the inordinately
slow progress made in delivering on the objectives of the ARP. There
was disgruntlement about the work and the role of the Third
Respondent. There were divisions within the community about whether
the Third Respondent was a hindrance or an advantage to the
ARP
project. When death threats emerged and there was a reasonable
apprehension of harm to the Third Respondent, which could have
eventuated, the Applicant was duty bound to take all reasonable steps
to eradicate or mitigate the potential for such harm. A lateral
move
of the Third Respondent was indeed a reasonable alternative.
Importantly, as Ehlers testified, the community needed to see
progress on the project, the Applicant needed to deliver, it needed
to identify and address the root causes of the dissatisfaction
and
antagonism in some quarters of the community that sought the Third
Respondent's removal. A workshop was mooted as a tool to
identify and
address such causes. This could not be readily achieved with the
Third Respondent
in
situ
and hence the proposed transfer.
[34]
The gravity of the harm
that could have befallen the Third Respondent was not appreciated by
the First Respondent. The fact that,
at a later stage, one errant
ANCYL member was arrested by the SA Police Services for alleged
unlawful behaviour is commendable
but not a reason for the Applicant
to recline in a supine state and take no reasonable steps to
safeguard the safety of the Third
Respondent in the meantime.
[35]
The
Third Respondent conceded in cross-examination that the Applicant had
a statutory duty to take those steps and could not be
expected to
"fold its arms" and do nothing.
[28]
The origins of that duty of care reside in the OHS Act which was not
disputed by the Third Respondent other than to state that
the
Applicant should not "bend to political pressure".
[36]
The Third Respondent
conceded that the Star publication in question recorded him saying
that he had received death threats. However,
during his
cross-examination, the Third Respondent was not convincing when he
testified that the issue of safety was contrived
and conveniently
used by the Applicant against him. Clearly that line of argument was
devoid of truth. Whether the Applicant had
not taken proper steps to
manage the Third Respondent's safety in 2009 did not mean it could
adopt the same attitude to the threats
in 2012. The First Respondent
made much of this issue but it was clearly not relevant to the then
recent threats of 2012, which
the Applicant chose to manage
differently and more responsibly.
[37]
It is apparent from the
award that the First Respondent paid scant attention to the
Applicant's statutory duty of care and, in so
doing, committed an
irregularity by misconstruing the nature of the enquiry. In so doing,
the First Respondent arrived at a decision
that no reasonable
decision make would have reached.
[38]
It is also evident from
the Third Respondent's testimony that he held the view that it was
within his prerogative to decide whether
to transfer to Region B. It
was not up to him to decide this when in terms of clause 9.4 of his
contract of employment, he had
voluntarily consented to a transfer if
determined necessary by his employer. This required the Third
Respondent to adhere to his
employer's instructions and transfer to
Region B.
[39]
If
a transfer to Region B turned out to be unreasonable and unfair, the
Third Respondent would have had other options such as the
lodging of
an internal grievance or pursuit of his Constitutional right not to
be subjected to an unfair labour practice. It is
so that the LRA
provides no express remedy for employees who are unfairly
transferred. However, the Labour Appeal Court has brought
such
actions within the bounds of the LRA. An example is to be found in
Nxele
v Deputy Chief Commissioner, Corporate Services, Department of
Correctional Services and Others
.
[29]
[40]
Employers are required
to ensure that any transfer must accord with the provisions of
sections 186(1)(e) and (2)(a) of the LRA –
the transfer must
not render the employment relationship intolerable; it must not
constitute a demotion. In this particular case,
the transfer served a
public interest given the very sensitive and unique dynamics that
were interwoven with the Third Respondent's
duties and functions.
[41]
There was no evidence
to suggest that such transfer was meant to be an absolutely permanent
one. What was apparent is that the Applicant
wanted to reduce the
temperature in its relationship with the community, conduct
workshops, address the issues and take matters
from there. In fact,
there was no evidence before the First Respondent that the Third
Respondent could not be returned to Region
B in the near future. The
Third Respondent endeavoured to claim that he heard for the first
time on 22 July 2012 that the move
may be temporary. This was a
disingenuous attempt on his part to distance himself from such a
possibility.
[42]
The Third Respondent
was ambiguous about the issue of a transfer. He kept emphasising that
he was entitled to access what transpired
at the meetings in order
for him to make a decision whether to agree to the transfer; this was
despite what I have indicated regarding
his contractual obligations
on that score, although he was not disciplined for a breach thereof.
[43]
The
Third Respondent was aware of the reasons for the transfer. Ehlers
testified that the discussions with the Third Respondent
commenced in
December 2011. The aim of which was to explain why a move to Region B
was necessary. At one stage, the Third Respondent
was prepared to
move to Region B provided he was given certain assurances that he was
"starting from a clean slate".
These were guarantees that
the Applicant could not furnish. It would have needed all the facts
from its investigations into the
community dissatisfaction before
making any such commitment. The Third Respondent later contended that
he could not move to Region
B because he did not know what the job
entailed; yet the Applicant was putting in place a transfer to a
comparable position on
the same or similar terms and conditions of
employment. It was disingenuous for the Third Respondent to contend
that he needed
all the information from the meetings of 11 November
2011 before deciding what he wanted to do. He was informed of what
was discussed.
He knew there were no formal minutes taken but this
did not stop the Applicant informing him of the issues. The Third
Respondent
was the author of a detailed memorandum to the Applicant,
dated 3 November 2011, where he articulated the possible reasons for
the friction in the relationship between the Applicant and the
community.
[30]
[44]
At the heart of this
matter is that the Third Respondent was not prepared to transfer to
Region B and then endeavoured to seek an
agreed settlement as an exit
strategy. It is common cause that no agreement on that score was
concluded but the Third Respondent
never took positive steps to move
to Region B. He claimed not to know where to tender his services even
though he had been informed
to report to Ehlers' office for the
arrangements to be made and that a Ms Gina Sonte of the Applicant was
on hand to take him to
the venue. In this regard, the inescapable
conclusion was that in the absence of a transfer on the Third
Respondent's terms, he
was not prepared to go there and tender his
services. This evidence was lost on the First Respondent. This is an
inescapable conclusion
given that even the City Manager met with the
Third Respondent for a lengthy period and explained why he should
move to Region
B but the Third Respondent again refused.
The First
Respondent was critical about why the City Manager was not called by
the parties to testify to corroborate the evidence
of Ehlers. The
redeployment issue was not in dispute between the parties more
particularly given the terms of the Third Respondent's
contract of
employment. There was also no factual dispute that City Manager had
met at length with the Third Respondent.
The
findings on the reasonableness of the instruction
[45]
The instruction was
reasonable in that it was based on the following irrefutable
evidence:
45.1
There were death
threats against the Third Respondent because of his role in the
project.
45.2
There were threats
against the employer and its other employees.
45.3
The programme was being
destabilised as a result of disaffection by certain members of the
community who challenged the role played
by the Third Respondent.
[46]
The First Respondent
made the following finding:
‘
[127]
I do understand the delicate situation Ehlers found himself in –
after all, he was a paid city employee
and I can imagine the amount
of undue influence the politician would be able to exhort on him.’
[47]
There was no evidence
presented to suggest that Ehlers was unduly influenced by any
politician. Ehlers testified that he was the
acting executive
director in charge of the project at that time. He took a decision
that it was in the best interest of the Third
Respondent, his
co-employees and the safety of the property of the Applicant to
transfer the Third Respondent. This was in order
to defuse the
volatile political situation in Alexandra and to enable the Applicant
to investigate the matter further.
[48]
The
First Respondent dealt with the evidence and concluded that the
instruction to the Third Respondent did not meet the requirement
of
it being a fair and just instruction based on the performance of his
designated duties,
[31]
yet
poor performance was not an issue in this matter.
[49]
Her conclusion is not
one that a reasonable maker could have reached in the light of the
evidence and the issue she was called upon
to decide.
Gross
insubordination
[50]
The
Labour Court has distinguished between insolence (repudiation by an
employee of his duty to show respect) and insubordination
(refusal to
obey an employer's instructions).
[32]
Both forms of misconduct are properly embraced by the terms of
'insubordination' as used in Schedule 8 Code of practice: dismissal
in the Labour Relations Act of 1995 ("the Code of good
practice").
[51]
Insubordination is
possibly a more serious offence because it presupposes an intentional
breach by the employee of the duty to obey
the employer's
instructions. The Code requires that defiance must be 'gross' to
justify dismissal. This means that the insubordination
must be
serious, persistent and deliberate, and that the employer should
adduce proof that the employee was guilty of defying an
instruction.
This the Applicant succeeded in proving.
[52]
Grogan,
in Employment Law, states the following:
[33]
‘
The
best measure of the gravity of insubordination and/or 'insolence' is
the effect it has on the employment relationship. Other
things being
equal, an isolated refusal to carry out an instruction is less likely
to destroy the relationship between the employer
and the employee
than sustained and deliberate defiance of authority. The latter form
of insubordination is well illustrated by
Theewaterskloof
Municipality v SALGBC
(Western Cape Division). The Labour Court held that a senior manager
who accepted payment of an allowance well knowing that he
was not
entitled to it, then offered to repay the amounts in derisory
instalments, had deliberately breached the trust relationship.
Given
the destruction of the employment relationship and his total lack of
remorse, the employee could not reply on either the
general right to
progressive discipline or on his long and previously unblemished
service record. The court upheld the employee's
dismissal.’
[53]
In
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others,
[34]
the Labour Appeal Court held that ‘[t]he offence of
insubordination in the workplace has, in this regard, been described
by the courts as a wilful and serious refusal by an employee to obey
a lawful and reasonable instruction or where the conduct of
an
employee poses a deliberate (wilful) and serious challenge to an
employers' authority’ and in that regard, the Labour
Appeal
Court referred to the decision of
Commercial
Catering and Allied Workers' Union of SA and Another v Wooltru Ltd
t/a Woolworths (Randburg)
.
[35]
[54]
The Third Respondent
was insubordinate in a serious manner. He was asked since December
2011 to transfer to Region B but repeatedly
and defiantly refused.
Even when he was given a last opportunity to make representations why
he should not be suspended for such
repeated refusal to carry out his
employer's instructions, he failed to do so. He could have relented
and followed the instructions
of the Applicant and moved to Region B.
The Third Respondent refused to transfer.
[55]
The Third Respondent
made excuses, including that he did not know where Region B was.
Others were prepared to assist him in that
regard, yet he ignored
this opportunity.
[56]
The redeployment did
not alter the Third Respondent's terms and conditions of employment
in so far as benefits and salary were concerned
and it was at the
same level with the same status because it was a director position.
He was not being prejudiced in that regard
either.
[57]
The First Respondent's
award cannot stand. She arrived at a decision that a reasonable
decision maker could not have reached.
[58]
Further, the impact of
the Third Respondent's misconduct prevented the Applicant from being
able to carry out and comply with its
statutory duty of care.
Condonation
[59]
The replying affidavit
was filed late and condonation was sought. It is so that condonation
is not for the asking, however, this
Court can have regard to the
fact that the progress of the dispute was far advanced at that stage
when the delay happened and it
occurred in part over the festive
season. If one has regard to the content of the replying affidavit,
much of it deals with argument.
In the interests of this matter
reaching finality, there is no prejudice to the parties in these
circumstances.
Order
[60]
In the premises, I make
the following order:
1.
Condonation for the
late filing of the replying affidavit is granted.
2.
The Award is reviewed
and set aside and substituted with:
“
The
dismissal of the Third Respondent is substantively fair”
3.
There is no order as to
costs.
________________
Leppan,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For the
Applicant: F J Nalane (Advocate)
Instructed
by:
Nozuko Nxusani Inc
For Third
Respondent: F A Darby
(Advocate)
Instructed
by:
D and K Attorneys Inc
[1]
Transcript
page 97.
[2]
Transcript
page 86.
[3]
Transcript
pages 86.
[4]
Transcript
pages 95-96.
[5]
Transcript
page 149 lines 1-11.
[6]
Annexure
"A" – Bundle to CCMA Hearing, page 48.
[7]
Annexure
"A" – Bundle to CCMA Hearing, page 48.
[8]
Transcribed
record page 113 paragraph 12 to 14; Annexure "A" –
bundle to CCMA hearing page 48.
[9]
Report
prepared by Ehlers page 7 paragraph 1.
[10]
Report
prepared by Ehlers page 7 paragraphs 3 and 5.
[11]
Report
prepared by Ehlers page 7 paragraph 6.
[12]
Report
prepared by Ehlers page 7 paragraph 8.
[13]
Report
prepared by Ehlers page 9; Annexures "A" – Bundle to
CCMA hearing, page 45.
[14]
Report
prepared by Ehlers page 8 paragraph 1.
[15]
Report
prepared by Ehlers page 9 paragraph 6.
[16]
Report
prepared by Ehlers page 9 paragraph 9 to 11.
[17]
Transcribed
record page 113 paragraph 24.
[18]
Report
prepared by Ehlers page 10 paragraph 1; transcribed record page 113
paragraph 12.
[19]
Act 66 of
1995
[20]
Herholdt
v Nedbank Limited (COSATU as Amicus Curiae)
2013 (6) SA 224
(SCA) at para 10.
[21]
Herholdt
(supra)
;
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24 (CC).
[22]
Herholdt
at para 16.
[23]
Herholdt
(
supra
)
at para 25.
[24]
Herholdt
(
supra
).
[25]
Bundle at
page 18.
[26]
(2008) 3
BLLR 287 (LC).
[27]
(1992) 3 SA
463
(O).
[28]
Transcript
page 146 at lines 15-20.
[29]
(2008) 29
ILJ
2708 (LAC).
[30]
Bundle at
pages 70-75.
[31]
Award
paragraph 137.
[32]
J Grogan
Workplace: Juta (11
th
edition) at pages 251-255.
[33]
Grogan page
253.
[34]
(2015) 5
BLLR 484
(LAC) at para 19.
[35]
(1989) 10
ILJ 311 (IC) at 314H-J.