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[2017] ZALCJHB 117
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4 PL Fleet (Pty) Ltd v Mabaso and Others (JR1867/15) [2017] ZALCJHB 117 (19 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1867/15
In
the matter between:
4
PL FLEET (PTY)
LTD
Applicant
and
JIM
MBUYISELLWA
MABASO
First Respondent
DANIEL
H
BAKANI
Second Respondent
NATIONAL
BARGAINING COUNCIL FOR
THE
ROAD FREIGHT
INDUSTRY
Third Respondent
PRINCE
KEKANA
Fourth Respondent
Heard:
11 January 2017
Delivered:
19 January 2017
Summary:
Disciplinary Penalty – Dismissal – Arbitrator finding
misconduct not amounting to gross insubordination
and thus sanction
of dismissal too harsh – On the totality of evidence finding
reasonable – Arbitrator’s failure
to consider valid final
written warning unreasonable.
JUDGMENT
Beckenstrater
AJ:
Introduction
[1].
This is an unopposed review
application in which the Applicant employer (Applicant) seeks to
review and set aside an arbitration
award of the Fourth Respondent,
an arbitrator of the National Bargaining Council for the Road Freight
Industry (Arbitrator). The
Arbitrator found that the dismissal of the
First and Second Respondent employees by the Applicant was not an
appropriate sanction
for the offence of which the Arbitrator found
them guilty. He ordered their re-instatement together with partial
(five months)
back pay. The Applicant seeks to review the award
challenging the finding relating to the appropriate sanction.
Background
[2].
Two previous employees of the
Applicant, the First and Second Respondents, had been engaged by it
as drivers of ultra-heavy trucks.
It was alleged that on 6 October
2014 both the First and Second Respondent had been instructed to park
the trucks they were operating
outside of the Applicant’s yard,
next to a company called Scania, in Heyneke Street, Nelspruit.
Instead of doing this they
had driven those trucks to a shopping mall
near Pirtek, a few kilometers away, without authorization.
[3].
Consequent on these allegations
the First and Second Respondents were charged with misconduct which
was categorized as follows:
“
Charge:
Gross
Misconduct including but not limited to:
1.
Gross
Insubordination
a.
Failure
to adhere to common and well established rules and regulations
established by the employer by not parking the vehicle at
Scania.
and/or
2.
Unauthorized
use, possession and abuse of the company vehicle for personal use by:
a.
instead of parking the vehicle at Scania you took the vehicle out of
the yard
and drove to Pirtek and went shopping;
b.
using
company fuel to drive to the mall and purchase your personal
groceries without permission.
and/or
3.
Being
in breach of the key principle of the Code of Conduct as described in
Schedule 8(1)(3) of the Labour Relations Act being the
right of the
employer to reasonable conduct and proper performance.
”
[4].
Pursuant to disciplinary
hearings both the First and Second Respondents were found guilty of
the allegations against them and dismissed.
They then referred an
unfair dismissal dispute to the Third Respondent Bargaining Council.
After an initial default award in favour
of the employees was
rescinded, the matter came before the Arbitrator for determination.
[5].
The transcript of the
arbitration reveals that on 6 October 2014 the Applicant’s
depot manager for Nelspruit, one Jan Venter
(Venter), had not been at
the premises as it was a weekend and he was working from home. Venter
telephoned Meshack Khanye (Khanye),
the Applicant’s mechanic
and foreman and, because the Applicant’s yard at the time was
full, told him to instruct the
First and Second Respondents to park
their trucks next to Scania. The advantage of parking trucks near
Scania was that those trucks
would be visible from the Applicant’s
yard and within 20 meters of it, although to get to that point one
would have to drive
about 500 meters around the back of the
Applicant’s yard. Khanye duly instructed the First and
Second Respondents to
park the trucks next to Scania. The First and
Second Respondents, however, then drove the two trucks they were
operating to Pirtek,
an alternative place about 4 kilometers from the
Applicant’s depot.
[6].
Venter later saw that the
trucks were not parked at Scania when he checked their location via
the Applicant’s truck tracking
system. He telephoned Khanye to
confirm whether the instruction had been given. When Khanye confirmed
this he phoned both the First
and Second Respondent confirming with
them that they were parked at Pirtek and instructing them immediately
to move the vehicles
and park them next to Scania. This they then
did. By the end of the arbitration both the First and Second
Respondents accepted
they had been given instructions by Khanye and
had not complied with those instructions. They both however contended
that the parking
space near Scania had been full and this is why they
had driven to Pirtek, a place which they contended was an alternative
parking
area used by the Applicant from time to time.
[7].
At the arbitration, the First
Respondent, Jim Mbuyisellwa Mabaso (Mabaso), stated that when he was
in the Applicant’s yard
he could see that the parking in Scania
was full. Thus when Khanye gave him the instructions he told Khanye
that he was not going
to park at Scania because it was full. He then
took the truck and went to Pirtek. Khanye admitted being told this
when he gave
the First and Second Respondents the instruction but
thought Mabaso was joking because there was parking available outside
Scania.
The Applicant furthermore led evidence to indicate that there
was parking space all along Heyneke Street near Scania such that up
to 20 trucks could park there at any one time. Beyond simply stating
that the parking outside Scania was full Mabaso did not seriously
challenge this evidence of the Applicant.
[8].
The Second Respondent, Daniel
Bakani did not repeat the version about seeing that the parking was
full and advising Khanya of this.
He stated that he had driven around
the front of the Applicant’s premises (rather than the back way
to Scania). That route
took him down Wolfaard
Street
which also
intersects Heyneke Street. From there he said he could see the
parking was full. He admitted that he did not stop the
truck at that
stage but simply drove past slowly and, after seeing that the parking
was full, drove to Pirtek. On arrival at Pirtek
he found the First
Respondent already parked there.
[9].
The First Respondent admitted
that if he had difficulty going to any place or parking at any place
he had been instructed to, he
would normally communicate with Venter
about this. On the day in question he did not do so because his phone
had run out of battery
life.
[10].
It was also undisputed at the
arbitration that the First Respondent was, at the time, subject to a
final written warning given to
him on 6 December 2013 and effective
for 12 months for —
“
gross
misconduct including dereliction of duties by being in breach of the
company rules and regulations by being guilty of:
1.
Careless
and reckless driving.
2.
Damage
to company vehicle.
3.
Causing
major financial loss to the company.”
[11].
By the end of the arbitration
the Arbitrator was grappling with the issue of the appropriate
sanction. The closing discussion in
argument records the Arbitrator
mentioning to the parties that he would be considering the matter
before issuing a written award,
having particular regard to the
following concerns:
“
I
have listened to the evidence and I have got concerns you know and I
think I will go and do some research. The problem that I
have with
both of you [talking to the employees] is that there is no remorse .
. . the evidence is clear that you did not follow
an instruction . .
when I give you an opportunity, you still say, I love my job, I
didn’t do anything wrong . . . which means
if I take you back
to work, you will do the same thing . . . and which is a problem for
me because I looked at what the company
is saying. The company is
saying, you breached the trust you know that the Labour Relations Act
is very clear… you know
an employee should be dismissed for
gross insubordination if it is a serious misconduct, alright. And I’m
battling, I’m
battling because when I listened to the evidence
of all the witnesses, they did not convince me that the misconduct,
it’s
so serious that it deserves misconduct (sic –
clearly meaning dismissal). And that is why I’m going to do
research
. . .”
[12].
In the award the Arbitrator
then reasoned as follows:
“
[29]
I have to determine whether dismissal was an appropriate sanction for
this contravention,
The
Code
of Good Practice: Dismissal
Item 3 clause 4 stipulates that dismissal would be appropriate where
the misconduct was serious and the code gave gross insubordination
as
an example.
Grogan
,
his book
Dismissal
,
Juta 2013 on page 197 stated that for insubordination to be
considered gross it must be serious, persistent and deliberate. These
employees conduct was not serious because they were asked to park in
a public street and they parked in a different public street.
Their
conduct was not persistent because they complied immediately Venter
called them, which is what he ought to have done in the
first place.
The employees conduct was not deliberate because they argued that the
trucks were going to obstruct traffic. I take
full guidance from
these authorities and find that the employees’ conduct was
insubordinate but not gross.
[30]
The Labour Appeal Court in
Wasteman
Group v South African Municipal Workers’ Union –
(2012)
8 BLLR 778
(LAC)
held
that there was a clear distinction between insubordination which did
not warrant dismissal and gross insubordination which
attracted
dismissal. The Labour Appeal Court found that the decision of the
Labour Court to reinstate an employee who was insubordinate
was
appropriate because he complied immediately he was alerted that he
was insubordinate. I am bound by this judgment and find
it
appropriate to the facts before me.
[31]
I therefore find that dismissal was not an appropriate sanction for
this contravention. I further
find that the dismissal of these two
employees was substantively unfair.”
The
Review
[13].
The Applicant’s challenge
to the Arbitrator’s finding is simply expressed in the founding
affidavit (where no supplementary
affidavit has been filed) in the
following terms:
“
15.
The arbitrator failed to take the seriousness of the transgression
into consideration and also
failed to take into consideration the
value of the property that was put at risk.
16.
The arbitrator further failed to take into consideration that the
re-instatement could cause
that other drivers also take unnecessary
and irresponsible chances with company vehicles by going off route
and insubordinately
ignore a direct lawful instruction. This will
result in the total breakdown of discipline amongst drivers that will
have serious
financial implications for the business.
17.
The arbitrator therefore failed to understand the seriousness of the
transgression the Respondents
had to be dismissed.”
[14].
While the Applicant’s
challenge has not been detailed it is clear that it seeks to review
the award on the basis of what has
become known as a “
penalty
review
”.
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
still
sets out the appropriate test in considering penalty reviews in the
following terms:
“
In
approaching the dismissal dispute impartially a Commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The Commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record. This is not an exhaustive list.
To
sum up, in terms of the LRA, a Commissioner has to determine whether
a dismissal is fair or not. A Commissioner is not given
the power to
consider afresh what he or she would do but simply to decide whether
what the employer did was fair. In arriving at
a decision a
Commissioner is not required to defer to the decision of the
employer. What is required is that he or she must consider
all
relevant circumstances”.
[15].
The
Sidumo
judgment then continues at paragraph 115 to record:
“
However,
the Commissioner was wrong to conclude that the relationship of trust
may have not been breached. Mr Sidumo was employed
to protect the
mine’s valuable property which he did not do. However, this is
not the end of the enquiry. It is still necessary
to weigh all the
relevant factors together in light of the seriousness of the breach…
To
my mind, having regard to the reasoning of the Commissioner based on
the material before him, it cannot be said that his conclusion
was
one that a reasonable decision maker could not reach. This is one of
those cases where the decision makers acting reasonably
may reach
different conclusions. The LRA has given that decision – making
power to a Commissioner”.
[16].
The
facts of this matter seem to fit into the facts and principles dealt
with in the above passages of the
Sidumo
judgment. The Arbitrator indeed appears to have either not understood
or downplayed the seriousness of the contravention but in
the final
analysis I do not think this made his finding one no reasonable
commissioner could make.
[17].
The
Arbitrator records in the award that the parking at
Scania
was on a public road 500 meters from the Applicant’s yard while
the parking at Pirtek was on a public road 4 kilometers
from the
Applicant’s yard. The award does not show the significant
benefit of parking near Scania – which is that that
parking is
at the back of the Applicant’s yard and within sight thereof.
[18].
The Arbitrator also saw fit to
record that—
“
Khanye
did not show the employees the parking that was available. There was
no dispute that the Pirtek parking was used previously.
There was no
written rule stating when they stopped using it. There was no
evidence to show that they were aware that Pirtek parking
was now
outlawed. The version of the employer is weakened by these factors”.
I
do not agree with the Arbitrator’s conclusion that somehow the
Applicant’s version is “
weakened
”
by these factors. As set out above, despite initial denials at the
arbitration, both the First and Second Respondents eventually
conceded that they had been given a direct instruction to park near
Scania and had not done so. The real relevance of the previous
use of
the parking near Pirtek and the dispute about whether parking there
had been totally outlawed is to perhaps suggest that
it was not a
high risk parking area.
[19].
Notwithstanding these errors in
the Arbitrator’s analysis I cannot fault his conclusion that on
all the evidence before him
the conduct of the First and Second
Respondents did not amount to gross insubordination. While they may
not have obeyed a lawful
instruction there is nothing on record that
suggests that they parked the Applicant’s vehicle at Pirtek
with any intent to
challenge the employer’s authority. As noted
in
Palluci Home Depot (Pty)
Ltd v Herchowitz and Others
[2]
“
.
. . [A]cts of mere insolence and insubordination do not justify
dismissal unless they are serious and willful. The failure by
an
employee to comply with a reasonable and lawful instruction of an
employer or an employee’s challenge to or defiance of
the
authority of the employer may justify dismissal, provided it is
willful (deliberate) and serious. Likewise, insolent or disrespectful
conduct towards an employer will only justify dismissal if it is
willful and serious. The sanction of dismissal should be reserved
for
instances of gross insolence and gross insubordination as respect and
obedience are implied duties of an employee under contract
law, and
any repudiation thereof will constitute a fundamental and calculated
breach by the employee to obey and respect the employer’s
lawful authority over him or her.”
[20].
The Arbitrator in considering
Wasteman Group v Sambou
[3]
was keenly aware of this
situation and I believe came to the correct and certainly a
reasonable conclusion that the First and Second
Respondents’
conduct did not amount to gross insubordination.
[21].
Advocate Froneman, on behalf of
the Applicant, argued that the test for ascertaining whether
misconduct amounted to gross insubordination
rather than simple
insubordination was whether the conduct was serious, persistent and
deliberate. Firstly, however, it cannot
be said that the First and
Second Respondents’ conduct was persistent. As soon as they
were confronted by Venter they moved
the trucks to Scania. Secondly,
my understanding of the authorities is that the requirement for the
conduct to be “
serious,
persistent and deliberate
”
in order to amount to gross insubordination is a requirement that the
conduct which is taking place (in this matter the
refusal to obey an
instruction) is shown to be defiant. There is no evidence that what
the First and Second Respondents intended
(in the
dolus
directus
or
dolus
indirectus
meaning of the
word) to undermine the employer’s authority. It is rather more
likely that the First and Second Respondents
took their trucks to
Pirtek for their own purposes while they were not immediately
required by the Applicant. This most certainly
amounts to misconduct,
but to my mind does not constitute gross insubordination. The conduct
of the First and Second Respondents
is thus distinguishable from the
cases relied upon by Mr Froneman. In
SAMWU
& Others v Ethekwini Municipality & Others
[4]
the employees had
intentionally locked the employer’s gate preventing its
operations. The Court found that this conduct
was not only
intentional, but indeed malicious. In
City
of Johannesburg v Swanepoel
N.O
& Others
[5]
the employee’s
refusal to obey an instruction to transfer to a different department
had persisted for several months and through
several meetings.
[22].
I do not accept the Applicant’s
argument that to reinstate the First and Second Respondents, after
they had been found guilty
of not obeying an instruction, would
undermine authority at the workplace. The question the Arbitrator had
to consider was whether
it was fair to have dismissed them in the
first place. The Arbitrator clearly thought that progressive
discipline would have been
more appropriate. The evidence before the
Arbitrator showed the long service of the First and Second
Respondents, that no financial
loss was suffered by the Applicant and
that the Respondents immediately moved the trucks to Scania when
Venter contacted them.
Subject only to the observation I make below,
on the evidence before the Arbitrator I do not think that the award
on sanction is
one that a reasonable decision maker could not reach.
[23].
There is however a material
factor which the Arbitrator appears to have overlooked and that is
the valid final written warning which
had been issued to the First
Respondent. While it did not relate to exactly the same type of
offence it is relevant because it
was also categorized as an offence
relating to “
being in
breach of the company rules
”.
During the arbitration itself the Arbitrator had been aware of its
relevance and had debated it with the First Respondent.
By the time
the award came to be written however no reference was made to it. In
this regard the Arbitrator failed to consider
a material fact before
him. Moreover, the Arbitrator was of the view that some lesser
sanction would have been appropriate. Then,
on his own reasoning,
previous progressive discipline such as the final written warning
would have had a material impact. In my
view no reasonable Arbitrator
would have found the sanction of dismissal in relation to the First
Respondent to be unfair had he
or she taken into account all the
factors set out above and the final written warning. The outcome of
the matter in relation to
the First Respondent consequently falls to
be reviewed and set aside.
[24].
Finally and once again
accepting the Arbitrator’s finding that the Second Respondent
had been guilty of misconduct but that
misconduct did not warrant
dismissal it appears that the Arbitrator omitted to make an
appropriate award in that regard. It would
be unreasonable in the
circumstances to reinstate the Second Respondent with no progressive
disciplinary measure being recorded.
Order
[25].
In the above circumstances I
make the following order:
1.
The arbitration award of the
Fourth Respondent under the Third Respondent’s case number
GPRFBC 32503 of 27 August 2015 (the
award), insofar as it relates to
the First Respondent, Mr Jim Mbuyisellwa Mabaso is reviewed and set
aside.
2.
The dismissal of Mr Jim
Mbuyisellwa Mabaso was procedurally and substantively fair.
3.
The award, insofar as it
relates to the Second Respondent, Mr
Daniel
Bakani is amended by the addition thereto of the following: “
The
reinstatement of Daniel Bakani is subject to the imposition of a
final written warning valid for a period of twelve months
”.
4.
There is no order as to costs.
__________________
Beckenstrater AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate L S Froneman
Instructed
by:
Viljoen & Meek Attorneys
[1]
[2009] 12 BLLR
1097
(CC) at paras 78-9. (
Sidumo
judgment)
[2]
[2015] 36 ILJ 1511 (LAC) at para 22.
[3]
[2012] 8 BLLR 778 (LAC).
[4]
(2017) 38 ILJ 158 (LAC).
[5]
(2016) 37 ILJ 1400 (LC).