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[2018] ZALCJHB 247
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Jonker v Commission for Conciliation, Mediation and Arbitration and Others (JR326/16) [2018] ZALCJHB 247 (10 July 2018)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not Reportable
Case no: JR 326/16
In the matter between:
PETER
TEBOGO JONKER
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
ARBOTRATION
First
Respondent
COMMISSIONER
THEMBAKAZI MLINDAZWE
N.O
Second
Respondent
ESKOM
HOLDINGS SOC LIMITED
Third Respondent
Heard:
10 July 2018
Delivered:
10 July 2018
Edited:
16 July 2018
EX-TEMPORE
JUDGMENT
ENGELBRECHT.
AJ
Introduction
[1]
This
is an
application to review and set aside an arbitration award issued by
the second respondent (the Commissioner) on 21 December
2015.
[2]
The
applicant (Mr Jonker) had been employed by the third respondent
(Eskom) as a senior high voltage engineer in the Eastern Cape
Operating Unit (ECOU) when, in November 2014, he attended training
offered by Eskom in Johannesburg, although he had not been given
approval to attend the training.
[3]
In
2013, Mr Jonker had been invited to attend the (then compulsory)
training course. The course did not take place and by
2014,
attendance at the course was no longer compulsory. Mr Jonker’s
superior, Mr Ralph Reddy (Mr Reddy) was informed
of this change, and
he declined permission for Mr Jonker to attend the course offered in
December 2014. Indeed, he had instructed
Mr Jonker on several
occasions not to attend, in circumstances where Mr Jonker sought over
time to persuade him (and others) to
allow him to attend the course,
at Eskom’s cost.
a.
In
October 2014, Kerry Nel (Ms Nel) had informed Mr Jonker that he had
not been selected for attendance in the December 2014 intake.
Mr
Reddy made it clear that he would not authorize attendance on 27
October 2014. This, because Eskom’s (and the ECOU’s)
financial
[ME1]
circumstances
were not such as to allow for the expenditure on the training course
to be attended in Johannesburg (although Mr Jonker
asserts that this
was a fabrication, and inconsistent with the fact that other
employees were allowed to attend the training course).
b.
Ms
Cikizwa James (Ms James) had also, in October 2014, suggested that Mr
Jonker take annual leave if he wished to attend the training
course
and ‘
pay
his own way’
(which
he had himself suggested as a solution to the alleged financial
constraints that militated against his attendance).
On 27
October 2017, she explained that ‘
I
have been very clear on this and I will not make any further
comments’
,
when Mr Reddy asked her whether Mr Jonker’s attendance could be
motivated for in any way.
[4]
Mr
Jonker refused also to obey the instruction that he capture annual
leave for his absence (issued by way of a text message of
28 November
2014). He had made it clear that he would attend the course
despite Mr Reddy’s refusal to give him permission
to do so.
Mr Jonker expressed the view that he would deal with the consequences
of his defiance in due course, and continued
to attend the training
course, despite being in receipt of a further message of 1 December
2014 reading ‘
Tebogo
you do not have permission to be in Johannesburg, Megawatt Park
attending MMP’
.
Mr Jonker sent a message saying ‘…
as
per forms signed by yourself and emails received from EAL and from
myself making you aware that I was going on a course this
week.
There’s been an objection about expenditure but not about
attending the course. Let’s deal with this
matter on my
return next week Monday’
.
It is Mr Jonker’s case that the instructions were issued,
because Mr Reddy was dictated to by others, who insisted
upon him
issuing the instructions, in light of the uncovering of corruption by
Mr Jonker. It is Mr Jonker’s view that
he had been
selected for attendance and that Mr Reddy could not lawfully instruct
him not to attend and/or to take annual leave
if he wished to attend
the course.
[5]
On
12 December 2014, Mr Jonker was served with a notice of intention to
suspend him without pay. Prior to this, and also in response
to the
request for submissions on why he ought not to be suspended, Mr
Jonker also made allegations that the ECOU in which he was
employed,
was ‘
rotten
to the core’,
that
people like him ‘
are
victimized and ill-treated’
and that ‘
shallow
minded black managers’
oppress him and others so as to achieve their narrow personal
interests and so that ‘
they
can sell our souls
’.
This, in the context of defending himself.
[6]
On
14 December 2014, he apologized for his ‘
heavy
language’
and asked for the dates of his absence to be recorded as annual
leave. By this stage he wished the matter to be resolved
‘
amicably’
.
In the same communication he expressed the view that he ought
possibly to leave the ECOU and/or report to another manager,
since
‘
things
have not been palatable to anyone’
.
In argument before me, it was submitted that the apology followed
upon advice he had received.
[7]
Mr
Jonker was suspended on 8 January 2015.
[8]
In
February 2015, Mr Jonker was charged with the following acts of
misconduct:
8.1 various counts of
misconduct relating to insubordination and insolence (given his
attendance at the training course in defiance
of the instruction
issued, which instruction was said to have been reasonable); and
8.2 for conducting
himself in a manner that was inconsistent with the values and ethics
espoused by Eskom (on the basis of the statements
concerning the ECOU
and allegations of ill-treatment informed by racial considerations,
which were said to be false and racist
in nature).
[9]
An
internal disciplinary enquiry followed, and on 23 February 2015, Mr
Jonker was dismissed, having been found guilty of all charges
(except
to the extent that the charges amounted to ‘
splitting’
).
Dismissal is a valid outcome of a guilty founding on these charges,
under the Eskom Disciplinary Code. The internal
appeal (lodged
by his trade union, the National Union of Mineworkers (NUM)) was
unsuccessful.
The arbitration award.
[10]
Mr
Jonker (assisted by NUM), referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration
(CCMA),
challenging both the substantive and procedural fairness of the
outcome of the disciplinary enquiry.
[11]
Both
Eskom and Mr Jonker led evidence, and Eskom was allowed to re-open
its case, in order to deal with facts arising from Mr Jonker’s
evidence. What is clear from the record, is that there was very
little factual dispute on the conduct of Mr Jonker that led
to the
charges being levelled against him. Such factual disputes as
there were centered around additional issues, such as
whether there
were finances available to fund Mr Jonker’s attendance and the
cost centre from which costs were to be recovered.
These
disputes were not central to the determination of the case before the
Commissioner.
[12]
The
record shows that the Commissioner acted diligently throughout.
She made meticulous notes, and clarified issues as they
arose.
The record is comprehensive.
[13]
In
a reasoned award, the Commissioner concluded that Mr Jonker’s
dismissal had been both procedurally and substantively unfair.
The evidence of the various witnesses and procedural matters are
summarised, and the Commissioner offered the legal reasoning for
her
conclusion, by reference to the facts before her. It is this finding,
issued on 21 December 2015, that is the subject of the
present
review.
The review.
[14]
The
review was initiated through the service upon the respondents of a
notice of motion on 3 March 2016. It was not accompanied
by a
founding affidavit, but the CCMA nonetheless complied with the duty
to file with the Registrar of the court a copy of the
record of
proceedings before it (although access to the record was plagued by
what can only be described as a comedy of errors,
which led to
delays, given that the record went to Port Elizabeth and later to
Johannesburg). It was only on 12 August 2016, that
Mr Jonker filed
the notice of motion with the court. Then, on 20 June 2017, Mr Jonker
filed a fresh notice of motion in these proceedings,
seeking the same
relief, but this time with the benefit of the record which had not
become available. The second notice of motion
was accompanied by a
founding affidavit. Notably, Mr Jonker was no longer being assisted
by NUM at this stage.
[15]
The
founding affidavit sets out lengthy allegations of corruption and/or
maladministration within Eskom and/or the ECOU. Under the
heading
‘
Grounds
for review’
,
Mr Jonker raises procedural grounds, based on the Commissioner’s
decision to allow Eskom to re-open its case, but also relies
on
inconsistencies in evidence (which ought appropriately to be
considered in the context of the substantive grounds, and which
are
also raised under the heading of substantive unfairness). The further
substantive grounds raised for the review are that the
Commissioner
had failed to interrogate the reasons for declining permission to
attend the training course, which Mr Jonker now
says was an unfair
labour practice. Extensive reliance is placed on allegations of
victimization and corporate bullying, and the
right of a
whistleblower to be protected. Mr Jonker advances the case that the
Commissioner had failed in her duties when she had
not interrogated
these. He also raises as a complaint that Eskom’s policy did
not provide for him to take annual leave if
he wished to attend a
training course.
[16]
For
purposes of this judgment, I shall treat the grounds for review as:
16.1 alleged procedural
unfairness on the basis that Eskom had been allowed to re-open its
case, when no proper case for this existed;
and
16.2 alleged substantive
fairness on the basis that the Commissioner:
16.2.1 failed to
adjudicate on the corruption allegations, and their consequence for
the assertion that the instruction
given had not
been lawful;
16.2.2 failed to properly
bring into account inconsistencies in the treatment of Mr Jonker and
other employees; and
16.2.3 failed to bring
into account that Eskom had no policy in place to allow for the
taking of annual leave whilst attending a
training course; so that
her finding that dismissal had been warranted was unreasonable in the
circumstances of the case.
Points
in limine.
[17]
Eskom
has raised various points
in
limine
,
which I am required to decide prior to engaging with the merits of
the review. I deal with these in turn.
First point in limine
– alleged irregularity in instituting the review application
[18]
Eskom
argues that, in terms of Rule 7A(2)(
c
)
of the Rules for the Conduct of Proceedings in the Labour Court (the
Labour Court Rules), a notice of motion in a review must
be supported
by an affidavit setting out the factual and legal grounds upon which
the applicant relies to have the arbitration
proceedings set aside.
That requirement was not complied with, because the notice of motion
initiating proceedings had not been
accompanied by an affidavit. A
second notice of motion, accompanied by an affidavit as required, was
only filed more than a year
after the service of the original notice
of motion. According to Eskom, the filing of the second notice of
motion and the accompanying
affidavit constituted an irregular step,
and Mr Jonker ought to have withdrawn the initial notice of motion or
to have filed an
amended notice of motion.
[19]
The
complaint is raised as a jurisdictional issue, on the basis that
there is no clarity on the date by which the review application
was
instituted. Moreover, Eskom advances the case that it is not clear
whether this Court ought to consider the affidavit that
was filed
together with the second notice of motion and/or whether the time
limits have been complied with.
[20]
On
the basis of the alleged non-compliance, Eskom prays for dismissal of
the review application.
[21]
My
attention was drawn to the judgment of this Court in
Agulhas
v Dispute Resolution Centre and Others
[1]
where a review was struck
from the roll on the basis that the notice of motion had not complied
with Labour Court Rule 7A. There,
it was considered that
non-compliance with Labour Court Rule 7A(2)(
a
)
and (
b
)
may be condoned, but that non-compliance with Labour Court Rule
7A(2)(
c
)
was ‘
fatal
’.
[22]
In
my view, the facts underpinning the judgment in
Agulhas
[2]
are distinguishable for the following reasons:
22.1 the applicant,
having been ordered to take steps to comply with the requirements of
Labour Court Rule 7A(2), failed to do so.
Notably, no affidavit had
been attached to the amended notice of motion issued in that case,
and the second notice of motion did
not contain the required
particulars. What is clear, is that the applicant had been given an
opportunity to rectify the shortcomings
in the review prior to the
decision to strike the application from the roll.
22.2 In the present case,
the point
in limine
is premised on the fact that a second
notice of motion was filed, together with a founding affidavit
setting out the requisite
facts. By the time of the hearing of this
review, Mr Jonker has brought his house in order, so to speak, so
that the situation
is not analogous to the
Agulhas
case.
Notably, the second notice of motion asks for the same relief, and,
in effect, Mr Jonker has simply filed a founding affidavit
in support
of the notice of motion, as he had been required to do.
[23]
Importantly,
an order striking a review application off the roll does not amount
to a dismissal of the review. The difference between
striking a
matter off the roll and dismissing it, is that in the case of
dismissal the matter is disposed of and cannot be set
down on the
roll again. An applicant who wishes to proceed will have to start the
matter
de
novo
.
On the other hand, when a matter is struck off the roll, the
applicant can, after remedying the defect arising from the incomplete
or inadequate record, have the matter re-enrolled and set down for
hearing.
[3]
[24]
In
review proceedings, the dismissal option ought only to be followed
only where an applicant has failed to explain why, despite
ample
opportunity, an applicant has failed to take appropriate steps to
remedy the shortcomings in the review application.
The
ultimate determination as to whether or not to dismiss or strike a
matter from the roll should be based on fairness and justice
after an
assessment of the conduct of the applicant and the circumstances of
the case.
[4]
[25]
I
conclude that
Agulhus
provides no precedent for me to dismiss a review application on the
basis of non-compliance with Labour Court Rule 7A(2)(
c
).
At best for Eskom, the judgment provides a basis for arguing that an
applicant in a review must bring its house in order before
the matter
can be enrolled and heard. This has been done, and the applicant has
explained the reason the defects arose in the first
place. I bring
these allegations into account in the interests of fairness. To
dismiss the review application prepared by an unrepresented
respondent on the basis that such applicant had initially not
complied with the requirement that a founding affidavit be filed,
would not be in the interests of justice and fairness in the
circumstances of the case.
[26]
In
these circumstances, the first point
in
limine
is dismissed.
Second point in limine
– no condonation for the late filing of the review application
[27]
Eskom
relies on section 145(1)(
a
)
of the Labour Relations Act
[5]
(the LRA), which provides that a review application must be launched
within six weeks of the date on which the award was served
on the
applicant. It says that the review application was launched 28 days
late, even accepting the date of the issue of the first
notice of
motion (3 March 2016). No application for condonation was made and
that therefore Eskom submits that the review must
be dismissed
accordingly.
[28]
In
support of its argument, Eskom relies on
SATAWU
v Tokiso Dispute Settlement and Others
[6]
where the Labour Appeal Court (LAC) confirmed that compliance with
the time period for institution of a review was a jurisdictional
requirement and that the court cannot come to a party’s
assistance if that party is out of time and there is no application
for condonation. This Court is bound by the judgment in
SATAWU
,
and it accordingly enjoys no jurisdiction to entertain the review in
the absence of a condonation application, if the factual
underpinning
for Eskom’s submission stands.
[29]
The
award of the Commissioner is dated 21 December 2015, but Mr Jonker
asserts that he was only informed of the outcome of the arbitration
proceedings on 27 December 2015, by way of a text message. He thus
became ‘
aware’
of it in a general sense, but did not have a copy. Efforts to obtain
a copy of the award from the NUM representative through other
means,
came to nothing until the end of January 2016 when the award ‘
was
printed while I was waiting’
.
This allegation is not disputed by Eskom, although in argument it was
explained to me that Eskom finds it difficult to believe
that Mr
Jonker struggled to obtain the award.
[30]
Mr
Jonker asserts that it is only from the end of January 2016 that the
calculation of the time period for review ought to run,
since he only
received a copy of the award by then. His submission finds some
support in the case of
G4S
Secure Solutions (SA) (Pty) Ltd v Gunqubele NO and Others
[7]
,
where the LAC considered that an appellant had become ‘
aware’
of an award when it ‘
received
the award’
.
Fairness dictates that this approach be followed, so as to not
preclude an applicant from pursuing a review application when such
applicant was unable to obtain a copy of an award in time.
[31]
Unfortunately,
Mr Jonker did not plead the precise date in January 2016 when he
became ‘
aware’
of the award in this sense. Counting backwards from 3 March 2016
(when the notice of motion was issued), Mr Jonker’s review
would have been in time if he received a copy of the award on 22
January 2016, or thereafter. Given that Mr Jonker is an unrepresented
individual, I shall accept for present purposes that the review was
launched in time, since I take the reference to ‘
end
of January’
to be something later than 22 January 2016. It was put to me in
argument that the ‘
end
of January’
meant the last week of January.
[32]
In
these circumstances, I dismiss the second point
in
limine
.
Even if I am wrong in my conclusion, Eskom is not prejudiced, given
my judgment on the merits. It is for this reason that I am
treating
the absence of a definite allegation on a clear date by which the
award had been received as leniently as I do. My decision
in this
respect ought not to be read as precedent for allowing applicants in
review applications to be imprecise in their assertion
of the date by
which they become aware of an award.
Third point
in
limine
– deemed withdrawal of the review application,
archiving of the file and late filing of the record
[33]
In
terms of Labour Court Rule 7A(6), the applicant in a review must
furnish the Registrar and each of the parties with a copy of
the
record in arbitration proceedings. The Practice Manual of the Labour
Court
[8]
(the Practice Manual)
requires records to be filed within 60 days of the date on which the
applicant is advised by the Registrar
that the record has been
received. Failure to do so will result in the applicant being deemed
to have with withdrawn the application,
unless the applicant has
asked and been granted consent for an extension by the respondent, or
been given such consent in consequence
of an application to the Judge
President.
[34]
Eskom
relies on
Mchunu
v Rainbow Farms (Pty) Ltd, In re: Rainbow Farms (Pty) Ltd v CCMA
[9]
,
where it was held that the respondent in a review proceeding was
entitled to bring a Rule 11 application to have the review dismissed
when the record was not filed timeously, and in the absence of an
extension being sought or granted.
[35]
In
this case, the applicant complied with the requirement to file the
full record only about 15 months after the filing of the notice
of
compliance with Labour Court Rule 7A(3) by the CCMA on about 10 June
2016. On Eskom’s version, no steps in pursuit of
the review
were taken in the period between the filing of the original notice of
motion in March 2016 and the filing of part of
the record and a
supplementary affidavit on 4 April 2017.
[36]
The
consequence of this, Eskom says, is that the archiving had the same
effect as the review having been dismissed, and that the
applicant is
required to make an application to have the matter revived before it
can be entertained. In the absence of an application
to remove the
matter from the court’s archives and to reinstate it, the
matter cannot be entertained and must be struck.
[37]
It
contends, further, that, in the absence of an application for
condonation of the late filing of the record, the record is not
properly before me.
[38]
In
the present case, Mr Jonker has explained on affidavit his various
difficulties with production of the record. He also explained
that he
had been unaware of the practices and procedures of the Labour Court,
as an unrepresented applicant. Although no notice
of motion was filed
in an application for condonation, or in respect of an application
for reinstatement, the applicant dealt with
the issue in his reply,
and Eskom did not ask for permission to file a further affidavit to
deal with these allegations. Moreover,
Eskom has brought no
application to dismiss the review, and my brother Coetzee AJ set the
matter down for hearing by way of a directive
issued on 23 February
2018. This differentiates the matter from
Butana
v South African Local Government Bargaining Council and others
[10]
,
where no explanation had been offered, and where an application for
dismissal had been launched on the basis of non-compliance
with the
Practice Manual.
[39]
In
these circumstances, I dismiss the point
in
limine
that is based on non-compliance with the Practice Manual. Given my
judgment on the merits of the review, Eskom is not prejudiced,
even
if this conclusion were wrong. Again, my decision in this regard is
not to be read as a basis for the applicants in reviews
to flout the
requirements of the Practice Manual.
Fourth point in limine
– introduction of documents not used in the arbitration
proceedings
[40]
Eskom
argues that, since the relevant test in a review is reasonableness,
the Court is confined to consider the evidence that had
served before
a Commissioner in arbitration proceedings to assess whether the
standard was met. The Court, so Eskom argues, cannot
make a fair
assessment if new evidence is brought into account.
[41]
In
the present case, additional documents were filed by way of a
document described as a supplementary affidavit although constituting
correspondence. None of these documents had served before the
Commissioner.
[42]
In
Xorile
v CCMA
[11]
it was held that it is not permissible to introduce in the review
proceedings evidence that had not served before the Commissioner
hearing the arbitration. Such additional evidence was accordingly
disregarded in the assessment of the review application. I am
bound
by the judgment, and accordingly I am not at liberty to bring into
account any of the evidence submitted to this Court and
which had not
served before the Commissioner. I shall adjudicate this review on the
basis of an evaluation of the evidence that
had served before the
Commissioner.
Merits
of the review.
Substantive
grounds for review
[43]
This
Court is only entitled to interfere with the award of Commissioner
Mlindazwe if her decision is one that a reasonable commissioner
could
not have reached, as
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[12]
makes
plain. This would be the case if –
43.1
Commissioner
Mlindazwe misconstrued the true nature of the enquiry (see
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as
amicus
curiae
)
[13]
);
or
43.2
The result was unreasonable (see
Herholdt
supra
),
in the sense of it being disconnected with the evidence, unsupported
by the evidence and/or involved speculation (
Quest
Flexible Staffing Solutions (Pty) Ltd, a Division of Adcorp
Fulfilment Services (Pty) Ltd v Legobate
[14]
[44]
There
is no evidence before this Court suggesting that the Commissioner
misconstrued the nature of the enquiry before her. The Commissioner
was confronted with the referral of an unfair dismissal dispute, not
an unfair labour practice dispute. This much is clear from
Mr
Jonker’s own belated attempt to bring an unfair labour practice
matter to the attention of the Court. It is Mr Jonker
that is seeking
to misconstrue the nature of the enquiry that the Commissioner was
embarked upon, when he seeks to make out an
unfair labour practice
case. The Commissioner clearly recorded the basis for her not
entertaining the unfair labour practice case.
[45]
In
consequence, the only question before me is whether the substantive
result was unreasonable in the sense defined above.
[46]
The
factual underpinnings of Commissioner Mlindazwe’s finding are
largely undisputed, and the legal standard applied is
uncontroversial,
as follows.
[47]
As
regards the instruction not to attend the training course –
47.1 It is common cause
between the parties that Mr Jonker had been given an instruction not
to attend to the training course in
Johannesburg, and that he had
travelled to Johannesburg and attended the course nonetheless. On Mr
Jonker’s version, his
superiors had only denied financial
backing from Eskom and not denied attendance altogether. But,
properly interpreted, the explanation
that was given was that he
could not attend the training course, because there was no funding. A
reading of Mr Jonker’s own
founding affidavit in the review,
provides the basis for the conclusion –
47.1.1
he explains, for example, that he became ‘
adamant
to attend in Megawatt Park’
in October 2014, suggesting that he had been made aware that he would
not be able to;
47.1.2
he
asserts that, also in October 2014, he was ‘
begging’
for approval to attend;
47.1.3
he
described how, at the end of October 2014, he explained that he would
not take annual leave, since there was no policy underpinning
such an
instruction, indicating that he knew at that stage that his absence
would not be authorised without him taking leave;
47.1.4
his
explanation in the affidavit is that Mr Reddy had sent him an ‘
sms
turning around on his verbal approval’
on the Friday afternoon before he left for Johannesburg, which can
only mean that Mr Jonker left for the course knowing full well
that
such approval as may have been given, had been withdrawn.
47.1.5
on
his own version, Mr Reddy informed the course organizer that he was
not authorized to attend.
47.2
It
is also common cause that Mr Jonker had indicated that he would deal
with the consequences of his actions upon his return from
attending
the week-long course. In doing so, he had defied a clear instruction.
Mr Jonker did this, because he claimed that he
was being treated
differently from other employees who had been granted leave to attend
the training course. The suggestion is
that the instruction had not
been lawful, on the basis that it resulted in inconsistent treatment
of employees of Eskom in the
ECOU. He also relied on the fact that,
after he had travelled to Johannesburg to attend the course in the
face of the instruction
of Mr Reddy, Mr Reddy had instructed him to
capture his absence as annual leave. This, he argued, introduced
doubt over the submission
that the instruction not to attend had been
clear. But these submissions only introduce supposed justification
for the conduct
of Mr Jonker; they do nothing to undermine the common
cause conclusion that he knew of an instruction, chose to disobey it
and
did so in the full knowledge of the consequences might attach to
that election.
47.3
The
argument that the instruction not to attend the training course had
not been clear, is unpersuasive, and it was reasonable for
the
Commissioner to have come to the conclusion that the instruction had
indeed been clear. Mr Reddy’s offer of the alternative
solution
(taking leave) was after the fact, when Mr Jonker had already given a
clear indication that he intended to travel to Johannesburg
and
attend the course (showing once more that he was ‘
adamant
’
that he would attend, whatever his superior said). In a sense, Mr
Reddy was giving Mr Jonker an opportunity to avoid the
severe
consequences of his failure to follow a lawful instruction. Had Mr
Jonker followed the instruction to capture leave in order
to justify
his absence from work, he might have been able to rely on this as a
consideration. He did not. He rejected this alternative,
and thus
disobeyed yet another instruction. This, because he wanted to have a
policy proving why he had to capture leave. But the
point of
capturing leave was that he wanted to do something for his own
benefit for which he was not authorized to be away from
work for. The
only basis on which he could be absent was to capture leave. No
policy direction was required for this.
47.4
Even
if it is accepted as true that employees were not treated the same
(on the basis that some were selected to attend training
courses and
others not), this did not provide a basis for willful disobedience of
the direct instructions given. The proper way
of dealing with this
complaint would have been to take it up with Eskom through internal
procedures that were available to Mr Jonker,
in the hope that he
might be selected to attend training on another occasion.
Alternatively, he could have accepted the alternative
solution (to
attend the course during annual leave) whilst reserving his right to
challenge this after the fact, and might have
then, upon his return,
made submissions to Eskom on why those leave days were to be written
back to him and/or that the costs occasioned
by his travel and
attendance at the course were to be borne by Eskom.
47.5
What
appears to escape Mr Jonker is that the inconsistency in treatment
between him and other employees did not provide a basis
for him to
disobey an instruction. An employer might approve attendance for some
employees and not for others, and there is nothing
before me to
suggest that Mr Jonker had a ‘
right’
to attend the training course, as he seeks to assert. In any event,
the solution was not to disobey an instruction. He might have
instituted unfair labour practice procedures at the time, if he
considered that that he was being victimized, but he did not. It
was
too late for him to rely on his alleged victimization by the time he
had already disobeyed instructions. What he did, was to
disregard a
lawful instruction, thereby making himself guilty of gross
insubordination as defined in
National
Union of Public Service and Allied Workers Union obo Mani and Others
v National Lotteries Board
[15]
and
Palluci
Homes Depot (Pty) Ltd v Herskowitz and Others
[16]
47.6
The
Commissioner correctly applied the judgment in
Slagment
(Pty) Ltd v Building Construction and Allied Workers Union and
others
[17]
,
where it was held that dissatisfaction or frustration with working
conditions do not constitute a sufficient ground for an employee
to
claim that an instruction is not reasonable. She also, correctly,
placed reliance on
Johannes
v Polyoak Industries
[18]
which confirms that an employee takes a risk when disobeying an
instruction pending resolution of a grievance. Dismissal as a
legitimate outcome followed from the consideration that the
instruction had been issued repeatedly, and that Mr Jonker knew full
well that he was acting in direct contravention of an instruction
issued.
47.7
The
Commissioner’s conclusions on this charge are entirely
reasonable in the circumstances.
[48]
As
regards the statements made –
48.1
It
is not disputed that Mr Jonker made the statements about ECOU being
‘
rotten
to the core’
and that its ‘
black
managers’
acted
oppressively. Indeed, there is a written record of this. Again, the
statements were sought to be justified by reference to
Mr Jonker’s
frustration, but the justification sought to be advanced is based on
the recognition that the statements were
made.
48.2
The
Commissioner concluded that the statements were derogatory and
racist, and therefore not in compliance with Eskom’s values
and
ethics. She did not offer any analysis for her conclusion that the
statements were racist, but it appears from the award that
she, in
any event, based the sanctioning of the dismissal on the gross
insubordination evidenced by the refusal to comply with
the
instructions given.
48.3
In
any event, I am guided by the judgment of the Constitutional Court in
Rustenburg
Platinum Mine v SAEWA obo Meyer Bester and others
[19]
where language referencing race was, in the context, held to be
racist. Mr Jonker might well have expressed his views on
the
Eskom management without coupling his statements with a reference to
the race of the managers. That Mr Jonker himself is black
does not
alter the position: given South Africa’s past of
institutionalized racism and unacceptable associations between
race
and competence, his association of alleged corruption and/or
incompetence with the race of the managers, fell to be sanctioned
severely. There was no justification in this case to use race as a
signifier (even if it were true that all of the managers were
black,
which they are not, when regard is had to the submissions on alleged
corruption raised by Mr Jonker).
[49]
This
Court accepts that an employee must not be dismissed for raising
genuine concerns of corruption. But there is a manner in which
to do
this, and it is not through disobedience and the making of
derogatory, even racist, remarks.
49.1
If Mr Jonker considered his position to be that of a whistleblower
that revealed widespread corruption within Eskom,
or the ECOU, in
accordance with the Protected Disclosures Act
[20]
(PDA), and who had been victimized for this reason (by not granting
him the opportunity to go to the training course he wished
to attend,
in circumstances where others who were similarly situated were
granted such an opportunity), he might have referred
an unfair labour
practice case at the time. He did not, although he has sought
to do so after the fact, by way of an application
for condonation of
June 2017. He disregarded instructions and then made derogatory
and/or racist remarks that did nothing
to advance his alleged pursuit
of uncovering corruption.
49.2 Furthermore,
if an employee suspects that he is being victimized for having
revealed corruption in an organisation, he
might be expected not to
behave in a manner that would provide fuel to the employer’s
alleged intention to ‘
get rid of him’
. Even if
Eskom wanted to dismiss Mr Jonker for fear that he might expose
corruption, it would not have been able to do so lawfully
had Mr
Jonker not disobeyed an instruction and/or made remarks that exposed
him to disciplinary procedures.
49.3 It was not for
the Commissioner (nor is it for this Court) to establish whether
there was any truth in the allegations
made by Mr Jonker in relation
to corruption; rather the question was whether Mr Jonker had acted in
a manner that warranted a finding
that he be dismissed. She correctly
confined herself to a finding on the derogatory and/or racist nature
of the statements made.
[50]
The
arbitration award of the Commissioner reveals that she was fully
aware of her duties, and that she applied the available case
law to
come to the conclusion that Mr Jonker had made himself guilty of
gross insubordination, which warranted dismissal. She accordingly
concluded that there was no reason to interfere with Eskom’s
decision to dismiss Mr Jonker. Her conclusion is entirely reasonable,
and there is no basis for this Court to interfere with the award.
Procedural unfairness
as a ground for review
[51]
The
only true basis for the allegation of procedural unfairness raised is
that Eskom was allowed to re-open its case. However, Mr
Jonker’s
team had not objected to the re-opening of the case. Mr Jonker’s
case was not prejudiced as a result of the
re-opening of the case,
since the finding had not hinged on whether there had been a budget
available to send Mr Jonker on the
training course or other evidence
introduced upon the re-opening of the case. The simple basis for the
award was the gross insubordination,
which was unrelated to the
question whether the reasons for declining permission to attend the
course were good, bad or indifferent.
[52]
In
these circumstances, no basis for review lies in the allegation that
the proceedings were unfair.
[53]
In
the circumstances, the following order is issued –
Order.
1.
The
first to third points
in
limine
raised by the third respondent are dismissed.
2.
The
fourth point
in
limine
is upheld, and the documents not serving before the second respondent
are not treated as forming part of the record on review.
3.
The
application for review is dismissed.
4.
There
is no order as to costs.
__________________
G. Engelbrecht
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
applicant:
P.T. Jonker
Instructed by:
In
Person
For the respondents:
T Rapuleng
Instructed
by:
Cliff Dekker Hofmeyr
Inc
[1]
[2014] ZALCPE 36
(12 December 2014),
[2]
S
upra.
[3]
See
Solidarity
obo Botha v CCMA
(2009)
30 ILJ 1363 (LC) at para 16.
[4]
See
Solidarity
obo Botha supra
at paras 17 – 21.
[5]
Act 66 of 1995 as
amended.
[6]
[2015] 8 BLLR 818
(LAC)
[7]
(2018) 39 ILJ
131 (LAC) at para 19.
[8]
April 2013.
[9]
[2017] ZALCD 17
(12 June 2017).
[10]
[2016]
5 BLLR 469 (LC).
[11]
[2014] ZALCJHB 512
(8 December 2014),
[12]
(2007) 18
ILJ
2405 (CC).
[13]
(2013)
11 BLLR 1074
(SCA) at para 25.
[14]
(2015)
36
ILJ
968 (LAC).
[15]
[2014] ZACC 10
at
para 57.
[16]
(2015) 5 BLLR 484
(LAC).
[17]
(1994) 15
ILJ
979 (A).
[18]
[1998] 1 BLLR 18
(LAC),
[19]
[2018] ZACC 13
(judgment of 17 May 2018),
[20]
No 26 of 2000.
[ME1]
Check
numbering please.