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[2016] ZALCD 6
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SAMWU and Another v Ethekweni Municipality and Others (D881/12) [2016] ZALCD 6 (8 April 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case
no: D881/12
SAMWU
First Applicant
AA
DAWOOD
Second Applicant
and
ETHEKWINI
MUNICIPALITY
First Respondent
SALGBC
Second Respondent
COMMISSIONER
NDABA
N.O.
Third Respondent
Heard:
11 February 2016
Order
delivered: 11 February 2016
Judgment
delivered: 8 April 2016
JUDGMENT
WHITCHER
J
[1]
This
is an application to review and set aside “part” of an
arbitration award by the Third Respondent (the Commissioner).
The
First Respondent (the Respondent) opposes the application.
[2]
The
Second Applicant (the Applicant) was employed as a faults man for
more than 20 years with the Respondent. In June 2009 the Respondent
introduced a new formatted running sheet (NFRS), which had to be
completed to assist among other things, collecting information
for
the purposes of an outage management system.
[3]
The
Applicant was given a recorded verbal warning on 21 October 2009 for
insubordination, as he refused to fill in the NFRS.
[4]
He
continued to refuse to complete the NFRS and in March 2010 he was
suspended and charged with gross insubordination. He was dismissed
for same in August 2010.
[5]
The
Commissioner found that the dismissal was substantively unfair on the
basis of inconsistency in that the Respondent had not
disciplined two
other employees, Majozi and Kumalo, who had failed to complete the
NFRS on certain dates in October 2009 and March
2010, and awarded the
Applicant compensation.
[6]
The
review is directed at the Commissioner’s refusal to grant the
Applicant’s request for retrospective reinstatement.
It is
contended that the Commissioner wrongly concluded that a
reinstatement order was not appropriate because, as found by him,
the
dismissal of the Applicant was substantively unfair on the basis of
inconsistency in the application of discipline and there
was no
evidence before the Commissioner to justify him finding that the
misconduct of the Applicant amounted to gross insubordination.
The
Applicant performed his other daily duties as expected and never
received a written or final written warning.
[7]
As
correctly submitted by Ms Naidoo, on behalf of the Respondent,
i
nconsistency
is not a rule unto itself. It is not a separate principle which is
determinative of the fairness of a dismissal. Consistency
is simply
an element of disciplinary fairness. The
finding
that the Respondent applied discipline inconsistently does not render
irrelevant factors justifying exception to reinstatement
as listed in
section 193 (2) of the LRA; in this case whether the circumstances
surrounding the dismissal were such that a continued
employment
relationship would be intolerable.
[1]
[8]
On
my assessment, the Commissioner’s finding that reinstatement
was not appropriate and would not be fair to the Respondent,
is
reasonably supported by the following materially relevant evidence
that was before the Commissioner.
[9]
From
June 2009 to November 2009, the Applicant was repeatedly instructed
by his superiors to complete the new running sheets; a
lawful and
reasonable instruction.
[10]
In
October 2009 the Applicant received a recorded verbal warning for
failing to comply with the instruction.
[11]
In
November 2009 and pursuant to various complaints from his superiors,
the Applicant was summoned to a meeting with a senior manager,
Laban,
who instructed him to complete the new running sheets. He was warned
that his conduct constituted gross insubordination.
[12]
The
Applicant actually testified that he had no intention of complying
with Laban’s instruction.
[13]
In
November 2009, the Applicant was called to a further meeting with two
of his managers, Moodley and Nayager, and once again instructed
to
complete the new running sheets, failing which he would be
disciplined. The Applicant’s response was “Go ahead,
do
whatever you want to do. I’m not even worried”
[14]
Moodley
testified that the Applicant was rude, belligerent and disrespectful
during the meeting. His attitude was that he was untouchable
with the
protection of the union.
[15]
Notwithstanding
the threat of disciplinary action, the Applicant persisted with his
refusal to comply with various instructions
from his superiors.
[16]
The
Applicant’s testimony at the arbitration that that he had no
intention of complying with Laban’s instruction and
his
response to the threat of disciplinary action (as described above)
makes nonsense of his contention that he should have been
issued with
a series of written warning prior to dismissal.
[17]
All
the above demonstrates a wilful and serious refusal by an employee to
obey a lawful instruction and a direct challenge to the
employer’s
authority; such conduct amounts to gross insubordination.
[18]
In
addition, Moodley and Laban testified that they could not work with
the Applicant. The manner in which he had articulated his
refusal to
comply and his continuous refusal to submit to their authority had
resulted in a breakdown in the trust relationship.
[19]
The
inconsistency factor was not such that it outweighed the above
factors and displaced the reasonableness of the outcome on relief.
The Applicant’s case was distinguishable from Majozi and
Khumalo. Moodley testified that the lapses in respect of Majozi
and
Kumalo were sporadic as opposed to a consistent and deliberate
refusal not to comply by the Applicant. The Applicant moreover
conceded at the arbitration that other faultsmen were complying with
the instruction.
[20]
In
the result, on the broad merits of the dispute, the outcome is not so
unreasonable that no reasonable commissioner could have
come to the
same decision.
Order
[21]
The review application is dismissed with no order as to costs.
________________________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: Tomlinson Mnguni James Attorneys
For
the First Respondent: Adv L R Naidoo, instructed by Hughes-Madondo
Inc
[1]
See
SACCAWU & Others v Irvin & Johnson Ltd
(1999) 20
ILJ 2302 (LAC) at para [29].