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[2017] ZALCJHB 473
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NTM obo Dikgale v Commission for Conciliation, Mediation and Arbitration and Others (JR809/15) [2017] ZALCJHB 473 (18 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JR 809/15
Not
Reportable
In
the matter between:
NTM
obo HERBERT DIKGALE
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First
Respondent
TEBOGO
MAFUJANE
N.O.
Second Respondent
HOTEL
AMENITIES SUPPLIER (PTY) LTD
Third
Respondent
Heard:
30 November 2017
Order:
30 November 2017
Reasons:
18 December 2017
JUDGMENT
WHITCHER,
J:
[1]
On
30 November 2017 I dismissed this review application to set
aside the second respondent’s arbitration award that
the
applicant’s dismissal was substantively and procedurally fair.
[2]
The
applicant has failed to demonstrate any material misdirection on the
part of the Commissioner. The applicant’s complaint
is simply
and improperly that the Commissioner was wrong and should have
determined the issue in his favour.
[3]
The
applicant was accused of gross insubordination. It was common cause
that his superior, Van Tonder asked him to offload stock,
but he
refused to do so claiming that he does not work in the receiving
section and that he is busy. The applicant thus failed
to adhere to
an instruction issued by his superior.
[4]
The
next step in the arbitration was to determine whether the instruction
was lawful and reasonable. The undisputed evidence was
that the
instruction was given in circumstances where it was busy and the
receiving section was short staffed. Although there was
a dispute of
fact as to whether the applicant was busy or not at the time, the
answer to the question as to whether the instruction
was lawful and
reasonable did not turn on a proper resolution of this dispute. I say
this because a claim of being busy is not
a proper defence to
refusing to obey the instruction of a superior, particularly in the
circumstances in which the instruction
was given. Moreover, the
applicant conceded that he was obliged to obey the instruction of his
superior. The Commissioner’s
finding that the instruction was
reasonable and lawful is thus an entirely reasonable conclusion.
[5]
The
Commissioner then considered the next aspect of the enquiry, namely
whether the sanction of dismissal was fair. In this regard
it was
common cause that the applicant had previously been issued with a
final written warning for a striking similar offence
(insubordination) which was still in effect when he committed the
offence. Based on this evidence and case law, the commissioner
reasonably concluded that progressive discipline seemed to have
failed to have the desired effect and that dismissal was fair.
[6]
In
Transnet
Freight Rail v Transnet Bargaining Council and others
[1]
it
was stated that:
An
employee on a final written warning for the same offence will
normally be regarded as irredeemable, and dismissal will be justified
if the employee commits a similar offence during the currency of the
warning… Usually, the presence of a valid final written
warning at the time of the commission of the same or similar form of
misconduct should be properly interpreted as aggravating in
nature.
The principles of progressive discipline require such a re-offending
employee usually to be considered irredeemable…
I accept that
the purpose of the warning is to impress upon the employee the
seriousness of his actions as well as the possible
future
consequences which might ensure if he misbehaves again…
[2]
[7]
The
applicant’s complaint against the Commissioner’s finding
that the chairperson was not biased is also rejected. The
applicant
led no evidence that the chairperson was biased and it was common
cause that the chairperson found him not guilty of
the charge of
incitement.
[8]
Even
if there are aspects of the Commissioner’s award that could be
open to criticism the eventual conclusions he reached
cannot be
interfered with. They all fall within a band of reasonable
conclusions that could have been reached on the evidence before
him.
Order
[9]
In
the premises, the followin
g
order is made:
1.
The review
application is dismissed with no order as to costs.
_______________________
Benita
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicant:
M Raphetha, union official from NTM
For
the third respondent:
Snyman Attorneys
[1]
(2011) 32 ILJ 1766 (LC)
[2]
At para 39; See
also
Timothy
v Nampak Corrugated Containers
(Pty) Ltd (2010) 31 ILJ 1844 (LAC) at 1850A-C