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[2017] ZALCJHB 439
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Air Tech Aviation Maintenance (Pty) Ltd v Ramafole and Others (JR2267/13) [2017] ZALCJHB 439 (21 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2267/13
In
the matter between:
AIR
TECH AVIATION MAINTENANCE (PTY) LTD
Applicant
a
nd
RAMATLOTLO
GIBSON RAMAFOLE
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second
Respondent
MABEL
SEKITI
N.O.
Third
Respondent
Heard:
12 JULY
2017
Delivered
:
21 November 2017
JUDGMENT
THOMPSON,
AJ
Background
[1]
This is an application to review and set aside the arbitration award
dated 19 September 2013 determined under the auspices of
the
Commission for Conciliation, Mediation and Arbitration (CCMA). The
application was filed on 18 August 2014. The notification
was
undersigned on 29 October 2013 and served on the First Respondent by
registered post on 30 October 2013. The First Respondent’s
answering affidavit was filed on 6 May 2015.
[2]
On 14 November 2013 the
employee lodged an application in terms of Section 158(1)(c) of the
Labour Relations Act
[1]
(LRA) to declare the arbitration award an order of court and case
number J2474/13 was issued. On 17 February 2014 the arbitration
award
was made an order of court. On 26 May 2014, the employer lodged an
application in terms of Rule 16A and Rule 11 seeking an
order
rescinding the order granted in terms of Section 158(1) (c) to make
the arbitration award an order of court.
[3]
The parties were ordered to file supplementary heads of argument and
address the crisp point whether the court is able to hear
a review
application once the arbitration award has been made an order of
court.
Merits
[4]
The First Respondent argued
that the Court had determined in the matter of
Blue
Marine
(Pty)
Ltd v Commission for Conciliation, Mediation and Arbitration and
Others
[2]
that
an arbitration award that has been elevated to an order of court
would be impossible to review. It further argued that the
res
iudicata
approach was
correct and that the review application is doomed to fail bar for the
successful rescission application. Counsel for
the First Responded
conceded that an agreement had been reached with the Applicant that
he would not oppose the rescission application.
[5]
Counsel for the Applicant conceded that the review application cannot
proceed whilst the rescission application is pending.
The First
Respondent was aware of the review application at the time of lodging
the Section 158(1)(c) application on 14 November
2013. The court file
does not reveal whether the notice of set down was served on the
Applicant. The court file does not reveal
that at the hearing of that
matter, before Van Niekerk, J in chambers that the pending review was
brought to the court’s
attention. The Applicant states that it
filed a Notice of Intention to Oppose and opposing papers on 18
November 2013. After filing
the opposing papers, it received no
further correspondence from either the First Respondent or the
Registrar of this Court.
[
6]
I am inclined to accept that the Judgement was erroneously granted in
the Applicant’s absence and consequently it is not
required to
show just cause.
[3]
Rescission is hereby granted. I shall now deal with the merits of the
review application.
[7]
Mr Ramafole is an Aircraft Maintenance Engineer and was employed in
May 2010. He was charged with gross insubordination in that
he
disobeyed a reasonable and lawful instruction to travel to Chad on 25
May 2013. He was found guilty and dismissed. At arbitration,
it was
found that his dismissal was substantively unfair and reinstatement
was ordered.
[8]
From the papers it is clear that there is a prelude to the First
Respondent’s dismissal. The First Respondent arrived
in Chad on
26 March 2013. Soon after his arrival he received word that his
mother had been hospitalised and it later turned out
that she had a
broken ankle. He sought a loan from the Applicant and permission to
return to South Africa which was declined. Nevertheless,
he left the
workplace and returned to the Republic. As a consequence, he attended
a disciplinary hearing and received a final written
warning and an
amount of R14 357.92 deducted from his salary constituting damages.
This sanction was contested as an unfair labour
practice which
resulted in the sanction being reduced to a written warning.
[9]
The second incident involved an instruction to the First Respondent
to travel to Chad on the 9 or 10 May 2013. On this occasion
the First
Respondent did not travel. At the internal disciplinary hearing he
stated that he could not travel as he was ill. At
the conclusion of
the internal disciplinary hearing he provided a medical certificate.
Consequently, he was found not guilty.
[10]
The medical certificate was received on 16 May 2013 after the
internal disciplinary hearing on the same day. He was instructed
to
travel to Chad on the 9 and on 10 of May 2013 and later to travel to
Chad on 25 May 2013. He was on suspension until 21 May
2013. The
evidence suggests that the First Respondent was on suspension until
the outcome of the second disciplinary hearing, from
14 May 2013 to
21 May 2013 and was requested to report for duty on 23 May 2013. The
Applicant sent a short message system (SMS)
to the First Respondent
stating that he had to travel to Chad on 25 May 2013, he denied
receiving this. The First Respondent sent
a SMS on 22 May 2013
stating that he would be late for the meeting on 22 May 2013. On the
23 May 2013 the First Respondent directed
an email to the Applicant
in which he raises 6 reasons for not wishing to travel. These reasons
range from life cover, accident
and disability cover, an agreement to
pay all medical costs, an agreement to provide S and T for three
meals a day, and a demand
to be paid a danger allowance.
[11]
Under item 4 the employee states “
should the need for
family responsibility arise whilst on deployment, Air Tech agrees to
fly me out within 24 hours of reporting
to avoid similar past cases
”
I disagree with Mr Nel that the text referred to above illustrates
that the employee’s refusal is based on short notice.
Clearly
this is a demand to be returned home in the event of family
responsibility emergency on giving the company 24 hours’
notice. The employees aim is clearly an attempt to prevent the
earlier difficulties he experienced in March 2013, when his mother
was hospitalised.
[12]
It is clear, from the email, that the First Respondent does not take
issue with short notice. The email, seen as a whole, suggests
that
the First Respondent is laying down a number of demands relating his
conditions of employment, before he agrees to travel.
In fact, the
email is concluded with a threat to the employer by stating: “
Till
such time we reach favourable conditions am sorry to let Air Tech
that I won’t be leaving for CHAD
”. The email also
seems to contain a barrage of allegations about unfair labour
practices and violation of his basic conditions
of employment,
constitutional and human rights. The First Respondent conceded at
arbitration that it is ‘now industry.’
The Applicant
responded to the email on the same day warning the First Respondent
that his conduct is viewed as gross insubordination.
Of crucial
importance is the employees’ response: ‘
If air Tec is
not willing to come into terms &
amend
my
contract
… ( my emphasis.)
Clearly no request is
made by the employee for additional time to make arrangements
.
[13]
The Applicant argues that the First Respondent was informed in the
beginning of May 2013 that he would be travelling albeit
for an
earlier date. The employee refused to travel and later submitted a
medical certificate resulting in a finding of not guilty.
An SMS was
sent to the First Respondent stating that he must travel on 25 May
2013, the First Respondent denied receipt of this.
The First
Respondent was also informed when he reported for duty on 23 May 2013
that he should travel on 25 May 2013. The First
Respondent’s
evidence is that he was not afforded sufficient time to make
preparations to travel.
[14]
I have difficulty with this evidence as the First Respondent’s
email makes no mention of the short notice but rather
sets out a list
of demands. It is probable that the employment relationship soured
due to the preceding circumstances. These are
inter alia: The
Applicant’s refusal to provide a loan, refusal to allow
premature departure from Chad due to the First Respondent’s
mother’s hospitalisation, the deduction of a sum of R14 357.92
as well as the issuing of a final written warning, and his
suspension. This treatment clearly gave rise to the barrage of
demands articulated in his emails seeking to amend his conditions
of
employment. The first Respondent is forewarned that the employer
views his actions as gross insubordination and reserves the
right to
take disciplinary action. Of significant importance is that the First
Respondent does not raise the short notice issue
in a response. The
First Respondent decides to leave the matter at that, with the demand
to amend his conditions of employment.
The documentary evidence on
page A79, 80, and 81 does not support the employee’s evidence.
[15]
The Third Respondent in her award in paragraph 24 finds that the
First Respondent never hesitated to do his job as he had to
travel.
He wrote an email hoping that the Applicant would give him time, at
least 4 days, to sort himself out. The reason for this
refusal to
travel was short notice. Although this was the evidence it is
not borne out by the contents of the email. As l
pointed out earlier,
no mention is made in the email of a time problem or a request to fly
at a later stage.
[16]
A further point of concern is the Third Respondent’s view that
the warning he received for leaving the workplace in Chad
without the
necessary permission and his failure to travel are not similar. I am
of the view that both transgressions are in fact
failure to obey a
lawful instruction. Both have a strong element of insolence.
[17]
The Third Respondent correctly considers the fact that First
Respondent had failed to put to the Applicant’s witness,
in
cross examination that the reason for his refusal to travel was short
notice. The Third Respondent’s conclusion that the
First
Respondent did not refuse to travel but would have considered
travelling at a later date and that in the Third Respondent’s
view “
the Applicant was not considerate and flexible because
they had considered the Applicant’s request
…”
demonstrates that the Third Respondent reached the wrong conclusion
which is not supported by the documentary evidence.
As stated
previously, the contents of the email amounts to a barrage of demands
and a refusal to travel. Crucially The Third Respondent
does not seek
an extension of time after been confronted with a threat of
disciplinary action.
[18]
The Third Respondent’s conclusion that the First Respondent did
not refuse to travel and would have considered travelling
at a later
date and that the Applicant was not considerate and flexible is
clearly the wrong conclusion. Having said this I am
not convinced
that the transgression was of such gravity that it warrants a
dismissal. There is no evidence led on a breakdown
of a trust
relationship. The primary sanction is reinstatement but I am of the
view that reinstatement is not the suitable remedy.
I must consider
the time delay finalising this matter particularly the apparent
failure of the Third Respondent not to inform the
court at the
hearing of the default judgement stage that a review application was
pending.
[19]
I am of the view that the Arbitrator’s decision was obviously
wrong and stands to be reviewed and set aside.
[20]
I am also mindful of the fact that the Applicant’s single
witness failed to address the issue of a deterioration or a
breakdown
of the trust employment relationship and whether the misconduct
constitutes a dismissible offence. I take cognisance
of the valid
first written warning.
Order
[19]
In the premises, the following order is made:
1.
The arbitration award dated 19 September 2013 under case number
SS4589-13 is hereby reviewed and set aside and replaced by the
following order;
1.1
The dismissal of the Applicant is substantively unfair and the
Respondent is
ordered to re-employ the Applicant within 30 days from
the date of this order and the Applicant shall receive a final
written warning
for insubordination valid for a period of 6 months.
1.2
There is no order as to costs.
______________
THOMPSON
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Advocate: L A Roux
Instructed
by:
C Dell Attorneys
For
the Respondent: Advocate: AJ NEL
Instructed
by:
Andrew Goldberg Attorneys
[1]
Act 66 of 1995 as amended.
[2]
(2003) 9
BLLR 853 (LC)
[3]
see
Sizabantu Electrical Construction v Guma & Others (1999) 3 bllr
253 (LC)