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[2017] ZALCCT 32
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Thorburn Security Solutions Southern Region (Pty) Ltd t/a Thorburn Armed Response v Mdletye and Others (C131/15) [2017] ZALCCT 32 (2 August 2017)
Not
reportable
Of interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 131/15
In
the matter between:
THORBURN
SECURITY SOLUTIONS
SOUTHERN
REGION (PTY) LTD t/a
THORBURN
ARMED RESPONSE
Applicant
and
MDLETYE,
SITHEMBELA
First Respondent
CCMA
Second Respondent
MOSES,
ORLANDO N.O.
Third Respondent
Heard
:
21 June 2017
Delivered
:
2 August 2017
Summary:
Review – misconduct – insubordination. LRA s 145.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The applicant, Thorburn Armed Response, dismissed the first
respondent, Sithembela Mdletye, for insubordination. He referred
an
unfair dismissal dispute to the CCMA (the second respondent).
Commissioner Orlando Moses (the third respondent) found that the
dismissal was unfair and ordered the company to reinstate the
employee. The company seeks to have the award reviewed and set aside.
Background
facts
[2]
The company provides security services in terms of the Professional
Security Industry Regulations Act (“PSIRA”)
to its
customers in the Western Cape. The employee was an armed response
officer as provided for in terms of PSIRA. He started
working for the
company on 29 October 2013. He was dismissed on 7 November 2014. When
he was dismissed, he was on a valid final
written warning for
insubordination. The chairman of the disciplinary hearing found that
he had committed misconduct in these terms:
‘
Insubordination: Not following
a reasonable instruction from your manager in that on 30th October
your manager instructed you not
to attend either Saturday, Sunday or
Monday night shifts, as you were to start on Tuesday the 4th November
to cover another shift.
You failed to follow this instruction
by working on Saturday and Sunday night directly disobeying the
direct instruction.’
The
award
[3]
The arbitrator found that:
3.1 The
company had not proven that the employee had received an instruction
on 30 October 2014 to
not to work night shift on 1, 2 or 3 November
2014;
3.2 he
would only be required to work a different shift if an agreement was
reached to such effect
and no such agreement was reached between him
and his direct manager, Gerhard Claasen; and
3.3 the
company denied him the right to be represented at the disciplinary
hearing.
Evaluation
: Procedural fairness
[4]
In concluding that the chairman, Rood, denied the employee the right
to be represented at the disciplinary hearing, the arbitrator
had
regard to the minute of the disciplinary hearing and specifically the
fact that Rood recorded that the employee’s representative
was
not available and that the employee had failed to ensure his
availability.
[5]
The arbitrator formed the view that this fact corroborated the
version of the employee, i.e. that his elected representative
was on
duty on that date and the company informed him at the disciplinary
hearing that he would solely be entitled to use a representative
who
is off duty.
[6]
Rood’s version was that the employee’s representative was
not on duty on the date of the hearing. The reason why
he was not
present at the disciplinary hearing was simply that the employee had
failed to secure his attendance.
[7]
It was the duty of the employee to secure the attendance of his
representative. That representative was not in attendance
at
the onset of the hearing. There is thus no indication that the
employee’s representative attended the disciplinary
hearing and
was then told that he could not be in attendance as only off-shift
employees were allowed to represent a fellow employee.
[8]
This is a factor which a reasonable commissioner would have
considered in weighing up the directly conflicting versions of the
employee and the company’s witness, Rood. In failing to do so,
the arbitrator committed a reviewable irregularity.
Evaluation:
Substantive fairness
[9]
The employee was dismissed for failing to adhere to a repeated
reasonable instruction. An audio record of the conversation
between him and his superior, Claasen, used at the arbitration, reads
as follows:
‘
G. CLAASEN: Tuesday
morning 6 o’clock do you copy.
S. MDLETYE: The instruction.
G. CLAASEN: Yes it was Tuesday
morning when I spoke to you.
S. MDLETYE: You never told me
that you never told me that you never told me I mustn’t come
today.
G. CLAASEN: Okay I will give you
another instruction today that you mustn’t come to work
tomorrow and Monday night so
Tuesday morning 6 o’clock.
S. MDLETYE: I hear you what is
the reason?
G. CLAASEN: The reason is that
you must start on a Tuesday morning.
S. MDLETYE: Just tell me what is
the reason that made you say I mustn’t come tomorrow?
G. CLAASEN: Because I’m
your operational manager and I’m not going to discuss it
further you mustn’t come
to work tomorrow night or Monday you
must start on Tuesday morning 6 o’clock thank you. That is all.
S. MDLETYE: What time is that?
You don’t have something to say to a person or I need to know
what is the reason?
G. CLAASEN: Because there is
somebody on leave on the other shift so you must start on Tuesday
morning and I said you must
come on Thursday and you acknowledged it
and you said it was fine.
S. MDLETYE: That is why you
never told me you suppose to tell me I know about that story.’
[10]
Claasen further replied in cross examination that:
‘
..it was a reasonable time I
instructed you not to come in to work yes in your contract it says
that carry out the employer’s
lawful instructions conveyed from
time to time so from time to time I can ask you please do this
reasonable please do that.’
[11]
The employee refused to work the changed shift.
[12]
Mr
Nel
referred to the Constitutional Court’s judgment in
National
Union of Public Service & Allied Workers obo Mani and Others v
National Lotteries Board
[1]
where “insubordination” was defined by Dambuza AJ as ‘...
when an applicant refuses to accept the authority
of a person in a
position of authority over him or her. Insubordination is misconduct
because it assumes a calculated breach, by
the applicant, of the duty
to obey the respondent‘s lawful authority’. And
Froneman J described it as ‘...
the disregard of …
authority or lawful and reasonable instructions’.
[13]
On the facts before the arbitrator, the employee was guilty of
insubordination. Yet the arbitrator concludes that, as the employee
worked two shifts, i.e. 2 and 3 November 2014, before being charged
with insubordination, the company in effect accepted his conduct.
[14]
There isno rational or reasonable basis for such conclusion,
specifically given the short time period between the transgression
and the employee being charged. He was charged on 4 November 2014,
i.e. the date upon which he was supposed to commence working
day
shift, which he did not do.
Conclusion
[15]
A reasonable commissioner would have agreed with the disciplinary
hearing chairperson’s finding of insubordination and
the
fairness of the dismissal, moreso as the employee was on final
written warning for the same type of misconduct.
Order
The
arbitration award dated 5 February 2015 under CCMA case number WECT
17731-14 is reviewed and set aside. It is replaced with
an award that
the dismissal of the employee, Mr Sithembela Mdletye, was
substantively and procedurally fair.
_______________________
A
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT: Adv A J
Nel
[1]
2014 (3) SA
544
(CC) par 213 and 57.