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[2018] ZALCJHB 325
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Supreme Poultry (Pty) Ltd v Mokgethi and Others (JR1345/14) [2018] ZALCJHB 325 (13 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 1345/14
In
the matter between:
SUPREME
POULTRY (PTY)
LTD
Applicant
and
LEBOGANG
PETRUS
MOKGETHI
First
Respondent
COMMISSIONER
MABEL
SIKITI
Second
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Third
Respondent
Heard:
19 April 2017
Delivered:
13 September 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The first respondent (Mr Mokgethi), was employed by the applicant
(Supreme) in October 1998 and was dismissed on 3 April 2014
on the grounds of misconduct related to gross insubordination. Having
referred an alleged unfair dismissal dispute to the third
respondent,
the Commission for Conciliation and Arbitration (CCMA), the dispute
came before the second respondent (Commissioner)
for arbitration, who
had found that the dismissal was procedurally and substantively
unfair. Supreme was ordered to reinstate Mokgethi,
and to further pay
to him, an amount of R22 500.00 in back-pay.
[2]
Supreme seeks an order reviewing and setting aside the Commissioner’s
arbitration award. Mokgethi, through the assistance
of the SASLAW Pro
Bono office has opposed the review application.
Background:
[3]
Supreme conducts business in the poultry industry. Mokgethi was
employed as a stock controller/supervisor, and the allegations
against him were that he used foul language towards a senior employee
at the Viljoenskroon Cold Store site, by uttering words to
the effect
that: “
jy is nie my fokken speel grond en jy is nie my
fokken baas nie.”
[4]
A disciplinary enquiry convened found Mokgethi guilty, and he was
dismissed. At the arbitration proceedings, he challenged both
the
substantive and procedural fairness of his dismissal. Three witnesses
had testified on behalf of Supreme before the Commissioner.
Ettienne
Erwee, Supreme’s Section Head at the site where the incident
took place testified that on 19 March 2014,
an argument had
ensued between Mokgethi and the Despatch Coordinator, Hornsby. When
Erwee intervened, Mokgethi in an aggressive
manner and with an
attitude, in return uttered the verbal abuse attributed to him. Erwee
further testified that Mokgethi had over
the years developed an
‘attitude’ and had been disciplined for his conduct.
[5]
The second witness. Willem Hornsby’s testimony was that
Mokgethi reported to him. He had known Mokgethi for two months
before
the incident that led to his dismissal. He testified that the
argument with Mokgethi was related to warnings he had issued
to him
on 18 and 19 March 2014 in regard to work performance.
Mokgethi had confronted him as he sought to have the warning
of
18 March 2014, which was to be valid for 12 months,
reviewed or reduced. It appeared that Mokgethi did not understand
what Hornsby was attempting to convey to him. When Erwee intervened
and attempted to explain to Mokgethi what was being said to
him,
Mokgethi uttered the words attributed to him.
[6]
Supreme’s Section Supervisor, Thabo Mnyaka also confirmed that
he was present and had heard the argument between Erwee
and Mokgethi.
He testified that Mokgethi, whilst Erwee was attempting to explain
something to him, hurled abusive language at him
in a raised and
disrespectful voice. This was at the time that Erwee was attempting
to tell him that he was talking to Hornsby
and not him. Mnyaka’s
view was that Mokgethi’s behaviour was unacceptable and
contrary to company rules which were
well known to all employees.
[7]
Mokgethi’s testimony was essentially that on 18 March 2014,
he was busy performing his tasks. He made an error
by writing a wrong
date on a pallet. Hornsby called him to an office and informed him
that he was to be ‘charged’.
He was then issued with a
warning valid for twelve months.
[8]
The following day he had worked on pallets, wrote on them and loaded
them on a truck. Hornsby again called him to his office
and told him
that he was to be ‘charged’ for incomplete work. Mokgethi
protested that he was working alone, was overworked
and also expected
to train another driver. Nonetheless, Hornsby at a later stage called
him again to his office where he was issued
him with a further final
written warning in the presence of Mnyaka and Erwee. He then
attempted to address Hornsby but Erwee had
intervened. It was when
Erwee continued to intervene despite his attempts to address Hornsby
that Erwee told him in Afrikaans that
he was his boss. Mokgethi
responded by saying that ‘
ek is nie jou speelgrond en jy is
nie my bass’
. He had denied using foul language when
speaking to Erwee.
[9]
Mokgethi further denied that there was any argument between him and
Hornsby, or that he was angry, aggressive or had raised
his voice
when addressing him. He further denied that his body language
displayed disrespect. He testified that he was merely discussing
the
issue of the warnings with Hornsby, and contended that all the
witnesses had lied and the allegations against him were all
a set-up
to get him dismissed, so that Mnyaka could take over his position as
supervisor.
The
award:
[10]
In regards to substantive fairness of the dismissal, the Commissioner
having heard the evidence and considered Item 7 of the
Code of Good
Practice, found that there was indeed a rule regulating conduct in
the workplace. However since there was never an
instruction issued to
Mokgethi by his superiors, the charge of gross insubordination was
misplaced. The Commissioner’s reasoning
was that there was a
difference between insubordination and insolence, with the
former being a more serious offence.
[11]
According to the Commissioner, Supreme did not show or prove that
Mokgethi ‘deliberately insulted the Respondent’,
and the
charge of insolence would not have warranted a dismissal as there was
further no evidence to suggest that the continuation
of the
employment relationship was impossible. Since Supreme failed to prove
on a balance of probabilities that Mokgethi was guilty
of
insubordination, the dismissal was not only substantively unfair but
was also harsh.
The
grounds of review and evaluation:
[12]
Supreme contends that the Commissioner’s award is reviewable on
various grounds including that she committed a gross
irregularity by
failing to apply her mind to the evidence of its three witnesses in
respect of the charge that led to the dismissal;
failed to appreciate
that the offence in question was serious and thus dismissible; failed
to take into account that Mokgethi had
previous warnings against his
employment record, and failed to make credibility findings. It was
submitted that the Commissioner
made findings that were not of a
reasonable decision maker, and which were irrational.
[13]
In opposing the review, it was submitted on behalf of Mokgethi that
the findings made by the Commissioner in regards to the
alleged
offence were legally and factually correct; that there was no need
for the Commissioner to make a credibility finding in
the light of
the correct recordal of the evidence of each witness, and further
since the charge of insubordination was found to
be misplaced; that
the Commissioner’s analysis of the applicable law was correct,
and that there were no grounds presented
to indicate why the decision
of the Commissioner was unreasonable.
Evaluation:
[14]
The test on
review is well established, and it is
whether
the decision under review is one that a reasonable decision-maker
could not reach on the evidential material available
[1]
.
Central to the determination of the dispute before the Commissioner
was whether Supreme had discharged the onus of proving that
Mokgethi
was insubordinate as a result of uttering the words attributed to
him, and if so, whether the sanction of dismissal was
appropriate.
[15]
The Commissioner’s starting point was to
make a distinction between the offences of gross insolence and gross
insubordination.
She had regard to Grogan’s
Workplace
Law
(no full citation), and concluded
that to justify a dismissal, the insubordination must be serious,
persistent and deliberate,
and that the employer should adduce proof
that the employee had in fact defied an instruction. Insolence
according to the Commissioner
justified dismissal only if it was
wilful and serious. The Commissioner concluded that Supreme had
failed to prove on a balance
of probabilities that Mokgethi was
guilty of the offence of insubordination, and since it had also
failed to prove that Mokgethi
had ‘deliberately insulted the
Respondent’, the charge of insolence would not warrant a
dismissal.
[16]
To
the extent that there may have been uncertainty created by the fine
line between offences related to insolence and insubordination,
the
matter received attention in
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
[2]
,
where
Kathree-Setiloane
AJA
stated the following;
“
[19] It is clear
from this finding that the Labour Court failed to appreciate that the
refusal to carry out an instruction is not
the only basis upon which
to found a charge of insubordination. The offence of insubordination
in the workplace has, in this regard,
been described by our courts as
a wilful and serious refusal by an employee to obey a lawful and
reasonable instruction or where
the conduct of an employee poses a
deliberate (wilful) and serious challenge to the employer’s
authority.
Whereas in some cases defiance of an
instruction may indicate a challenge to the authority of the
employer, this is not so in every
case.
Insubordination may also
be found to be present where disrespectful conduct poses a deliberate
(wilful) and serious challenge to,
or defiance of the employer's
authority, even where there is no indication of the giving of an
instruction or defiance of an instruction.
It is, therefore, not
essential for an instruction to be given or disobeyed to found a
challenge to the employer's authority.
(My emphasis)
[20]
The refusal by an employee to carry out an employer's instruction is,
therefore, not always required for a finding of insubordination.
However, the failure of the Labour Court to recognise this did not,
in my view, influence its characterisation of the conduct of
the
first respondent, on the evidence led at the arbitration hearing in
relation to charge A, as constituting “insolence”
as
opposed to “insubordination”. In characterising the first
respondent's conduct as “insolence”, the Labour
Court
relied upon the decision of
Wooltru
,
which
emphasises the importance of distinguishing insubordination from
insolence simply because they are different offences.
Wooltru
equates
the offence of insolence with conduct which is offensive,
disrespectful, impudent, cheeky, rude (disrespectful in
speech or
behaviour), insulting or contemptuous, and insubordination with
“resistance to or defiance of authority; disobedience,
and
refusal to obey an order of a superior”.
Wooltru
makes
it clear that although an employee can be both insolent and
insubordinate at the same time, he or she can be insolent without
necessarily being insubordinate.
Notably, the Court
in
Wooltru
held that a mere disrespect for the
employer (or insolence, impudence, cheekiness or rudeness) cannot, on
its own, constitute
insubordination which by its very nature requires
disobedience or an outright challenge to authority. Insubordination
it observed:
“
can manifest
itself in the refusal to obey a reasonable and lawful command or in
the challenge (or resistance) to or defiance of
(see especially The
Shorter Oxford Dictionary above) the authority of the employer.
It is of course required that insubordination
must be deliberate
(wilful) and serious (above). This is not to say contemptuousness of
authority (insolence, impudence, cheekiness,
disrespect or rudeness)
cannot constitute a ground of dismissal (provided, of course, that it
is wilful and serious). One should,
however, always distinguish
between insubordination on the one hand and insolence on the other
hand because they are definitely
not the same kind of offence.”
(footnotes omitted)
And,
“
[22] As
demonstrated, there is a fine line between insubordination and
insolence, and insolence may very well become insubordination
where
there is an outright challenge to the employer’s authority.
However acts of mere insolence and insubordination do not
justify
dismissal unless they are serious and wilful. A failure of 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 a dismissal, provided
that it
is wilful (deliberate) and serious. Likewise, insolent or
disrespectful conduct towards an employer will only justify dismissal
if it is wilful 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.
Thus,
unless the insolence or insubordination is of a particularly gross
nature, an employer must issue a prior warning before having
recourse
to the final act of dismissal.(footnotes omitted)
[17]
In this case, it was common cause that no particular instruction was
issued or disobeyed in the strict sense of a typical insubordination
scenario. Having made the distinction between the two offences, the
Commissioner had concluded that the charge of insubordination
was
either misplaced or not proven, on the basis that there was no proof
of an instruction having been issued. Clearly as stated
in
Palluci,
that should not have been the end of the enquiry, in
that the standing principle is that insubordination can be present
even in
the absence of a refusal to obey an instruction, where it is
found that the disrespectful conduct complained of, posed a
deliberate (wilful) and serious challenge to, or defiance of the
employer's authority.
[18]
The
Commissioner’s approach should however be excused in that it
could not have been expected of her to be mindful of the
judgment in
Palluci,
since
it was heard on 02 September 2014, and judgment delivered
on 12 December 2014, whilst the matter before
the
Commissioner was heard on 20 June 2014. Be that as it may,
the principle that the offence of insubordination encompasses
conduct
by the employee which poses a deliberate and serious challenge to the
employer’s authority is not novel
[3]
.
[19]
Even if the
Commissioner can be criticised for treating the two offences as
distinct in coming to her findings, the issue is whether
that
approach should be sufficient to have the award set aside. It is
trite that it is not sufficient for an award to be set aside
simply
to establish a gross irregularity in the conduct of the arbitration
proceedings, as it is incumbent upon the applicant to
also establish
that the result was unreasonable.
[4]
[20]
In determining whether the outcome arrived at by the Commissioner was
reasonable or not, the facts of the case before the Commissioner
were
that Mokgethi was issued with a warnings on 18 and 19 March 2014
in respect of work performance. On Hornsby’s
and Mokgethi’s
versions, the latter sought to have the warning for 18 March 2014
reviewed, or at least reduced
from 12 months. That issue also arose
within the context of allegations surrounding the performance of his
duties. It is further
not in dispute that upon being called to sign
for the two warnings in Hornsby’s office, Erwee and Mnyaka were
present, and
whilst Mokgethi was addressing himself to Hornsby, Erwee
had intervened, resulting in Mokgethi saying to him words to the
effect
that; “
ek is nie jou speelgrond en jy is nie my
bass”.
What is in dispute is whether the words uttered were
accompanied by foul language.
[21]
The
Commissioner was therefore required to
consider
the credibility of the various witnesses, the reliability of their
observations and the inherent probabilities of their
versions in
determining whether Mokgethi had used foul language
[5]
.
The Commissioner’s findings in this regard are either not clear
or confusing in that she merely concluded that it was not
proven that
Mokgethi had ‘deliberately insulted the Respondent’ for
the purposes of the offence of insolence.
[22]
Thus, to the extent that the Commissioner had found that there were
‘insults’, even if not ‘deliberate’,
the
conclusion to be reached is that she had accepted that Mokgethi had
used the foul language in question. Even if I might be
incorrect in
my assessment, it is indeed improbable that three witnesses could
corroborate each other’s version in that regard,
as opposed to
Mokgethi’s denials and conspiracy theory that there was a plan
designed by Supreme to see him dismissed, as
the company wanted
Mnyaka to assume his position of supervisor. Mokgethi’s
theories as to why the allegations were made against
him were
far-fetched, more particularly in circumstances where he had conceded
to having uttered other words attributed to him,
except the foul
language towards Erwee.
[23]
Having made that conclusion, the next issue for determination would
have been whether the insults/foul language constituted
disrespectful
conduct that posed a deliberate (wilful) and serious challenge to, or
defiance of the employer's authority. It is
appreciated that Mokgethi
was clearly aggrieved after having been issued with warnings on two
subsequent days. He may have been
aggravated by the intervention of
Erwee but even then, his conduct of addressing him in an aggressive
expletive laden manner and
tone was clearly disrespectful, and should
be characterised as conduct posing a deliberate and serious challenge
to the employer's
(Erwee’s) authority. The mere fact that
Mokgethi deprecated Erwee’s position as his superior by saying
to him that
he was not his ‘
fokken bass’
when the
latter was merely intervening in a workplace issue between Mokgethi
and Hornsby is sufficient to reach that conclusion.
[24]
The next issue for determination is whether the conduct in
question was gross enough to warrant a dismissal. It is trite
that
acts of insolence and insubordination do not in themselves justify a
dismissal, unless they are gross, serious and wilful.
The
Commissioner had found that the foul language used by Mokgethi did
not constitute insolence as the ‘insults were not
deliberate’,
and thus did not warrant or justify a dismissal. In my view, if
addressing a senior employer in an aggressive,
offensive,
disrespectful, impudent, cheeky, rude, contemptuous and foul mouthed
manner is not insolence, coupled with a clear repudiation
of his
status in the organisation or challenge of his authority as in this
case, I fail to appreciate what could possibly constitute
conduct
equivalent to insolence or insubordination within the principles
established in
Palluci
.
[25]
The evidence of Erwee, Hornsby and Mnyaka was that Mokgethi was
aggressive, had an attitude (whatever that means) and was
disrespectful when addressing Erwee, and clearly the conclusion by
the Commissioner that the offence in question did not amount
to
insolence or insubordination within the context of the principles set
out in
Palluci
is unsustainable. The fact that it was a once
off incident does not make Mokgethi’s conduct less
objectionable.
[26]
It had also
been held in
Palluci
that provocation by an employer prior to the act of insubordination
or insolence may be a mitigating factor when determining the
seriousness of the offence and in such circumstances dismissal may be
too harsh a sanction
[6]
. In this
case however, despite conceding that there was an argument between
him and Erwee and Hornsby, Mokgethi did not raise a
defence of
provocation. In any event, he had denied that they had used the
foul language attributed to him, and it follows
that a defence of
provocation cannot be sustainable where there is a denial of a
commission of an offence.
[27]
It is further trite that in determining the appropriateness of a
sanction of a dismissal, all circumstances must be looked
at,
including but not limited to the employee’s personal
circumstances, length of service, and disciplinary record, the nature
of the misconduct, whether there was a show of remorse, and the
effect of the misconduct on a sustained employment relationship.
[28]
The
Commissioner had concluded that the dismissal was substantively
unfair and/or too harsh a sanction. That conclusion came about
in
circumstances where Mokgethi had conceded that other than the
warnings issued on 18 and 19 March 2014, he
had
previously been issued with other warnings related to his work
performance (Written warnings dated 31 July 2012 and
8 March 2012), and also that he was previously promoted and
demoted. The Commissioner had also concluded that there was
no
evidence suggesting that the continuation of the employment
relationship was impossible. This conclusion nonetheless is a
misapplication
of legal principles subsequent to the decision in
Edcon
Limited v Pillemer NO and others
[7]
. The legal position now is that is that it must be implied from the
gravity of the misconduct that the trust relationship had
broken
down
[8]
.
[29]
In these proceedings, it was submitted on behalf of Mokgethi that
even if the conclusions of the Commissioner were susceptible
to
criticism, at most, the transgression in question called for a final
written warning. The submission made on behalf of Supreme
was that
because of the abusive nature of the language used towards Erwee who
was a superior, at most, and to the extent that it
was found that a
dismissal was not appropriate, the Court could order the
re-employment of Mokgethi rather than retrospective
reinstatement.
[30]
I have had regard to the circumstances of this case and it is
apparent that the nature of the foul language used by Mokgethi
towards Erwee, constituted of conduct that posed a challenge to his
authority. It is accepted that Mokgethi had long service with
Supreme, and I agree with the submissions made on behalf of Supreme
in these proceedings that even if the sanction of dismissal
was
deemed to have been harsh, at most, a re-employment would have
sufficed. The inference to be drawn from this submission is
that the
Commissioner’s conclusion that the sanction may have been too
harsh is validated. I further agree with that
submission,
particularly when it is taken into account that despite the
conduct in question, it was indeed nonetheless precipitated
by
Mokgethi being aggrieved of the fact that he was issued with warnings
( a 12 month warning and a subsequent final written warning)
on two
successive days, and in circumstances where those warnings were
issued without a benefit of a hearing, and worst still,
where he was
simply expected to sign acknowledgement of their receipt without
questioning them. I am mindful of the fact that these
factors were
not issues raised by Mokgethi or on his behalf before the
Commissioner or in these proceedings. Be that as it may,
this being a
Court of equity, it would be iniquitous for it to completely ignore
those factors. This is particularly so since it
was common cause that
Mokgethi represented himself in both the internal disciplinary
hearing and the arbitration proceedings.
[31]
Furthermore, given the context within which the disrespectful conduct
took place, it is doubted whether it can be classified
as serious
defiance of the employer's authority within the context of a strict
application of the charge of insubordination. Consequently,
some
severe sanction was appropriate, but not a dismissal. For the
Commissioner to therefore have reinstated him with full retrospective
effect and backpay, that is not a decision that a reasonable decision
maker would have made. In the circumstances, I am persuaded
by
Supreme’s alternative submissions in regards to sanction, and
the acknowledgements made on behalf of Mokgethi that he
was deserving
of some sanction.
[32]
In regards to procedural fairness, the Commissioner had concluded
that Mokgethi’s dismissal was procedurally unfair in
that in
terms of the notice of a disciplinary enquiry issued on
19 March 2014, the enquiry was to be held on 31 March 2014
and subsequently rescheduled for 3 April 2014. The
chairperson’s refusal to address Mokgethi’s complaints
that his representative was not available was unfair, and that
Supreme acted hastily in refusing a postponement, as it would not
have suffered any prejudice.
[33]
Supreme attacked the Commissioner’s conclusions on the basis
that she failed to take into account that Mokgethi had not
sought a
postponement of the hearing, as supported by a checklist, which
Mokgethi had acknowledged and signed, and which further
indicated
that his rights were explained to him by the chairperson. Mokgethi’s
evidence was however that having been
notified that the hearing
would be held on 31 March 2014, he had attended on that
date accompanied by his representative.
The hearing did not proceed
as the chairperson was not available and he was informed to come back
on 3 April 2014 for
the hearing. On the latter date he did
not have his representative with him and he was told that he had
sufficient time to arrange
for one. He testified that the hearing had
proceeded in his absence.
[34]
Under cross-examination, it was put to him that he might have
confused the events of 3 April 2014 with those of another
instance previously where he was called to attend another hearing, to
which he had conceded that he might have been confused. Upon
being
referred to a checklist completed at the hearing, where it was
indicated that he had agreed to proceed despite the absence
of his
representative and to which he had attached his signature, his
response was that he had nonetheless made a request for a
postponement, but that the chairperson told him that he was
proceeding with the matter, hence he had signed the checklist. Upon
it being put to him that he had in any case three days within which
to arrange for a representative, his response was that he did,
but on
the date of the hearing.
[35]
The
Commissioner in making her findings had concluded that based on the
copy of the notice to attend the internal enquiry, that
enquiry was
initially scheduled for 31 March 2014, and the date was
subsequently changed to 3 April 2014. During
the
arbitration, there was a submission from the bar by Supremes’
representative (Mr HH Spamer, its HR Manager), to the effect
that
there were logistical problems related to arrangements of
disciplinary hearings, a change of dates where necessary, and what
employees ought to do when they sought a postponement where dates had
been changed
[9]
. This however
did not amount to evidence, and it was common cause that the
chairperson of the enquiry was not called upon to testify.
In my
view, the Commissioner’s conclusions that there was a request
for a postponement which was declined cannot be faulted,
irrespective
of attempts by Spamer at the arbitration proceedings to portray that
Mokgethi might have confused the latest disciplinary
enquiry with
another one previously held.
[36]
A fundamental principle of a fair procedure prior to dismissing an
employee is to afford him an opportunity of representation.
In this
case, Mokgethi had on 31 March 2014, brought a
representative with him hoping that the enquiry would be held.
Supreme’s reliance on the fact that Mokgethi had signed the
disciplinary enquiry checklist to indicate a waiver of his rights
to
representation is not sufficient in the absence of confirmation from
the chairperson of that enquiry, and in my view, the conclusion
reached by the Commissioner that the chairperson acted hastily in
proceedings with the matter in the absence of Mokgethi’s
representative when Supreme would have suffered no prejudice by
postponing the proceedings cannot be faulted.
[37]
In the light of the conclusions reached in regards to the procedural
and substantive fairness of the dismissal, and further
having had
regard to the material before the court, it follows that no purpose
would be served by remitting this matter back to
the CCMA. Further
having had regard to the requirements of law and fairness, it is my
view that a cost order is not warranted in
this case. Accordingly,
the following order is made;
Order:
1. The arbitration award
dated 20 June 2014 issued by the second respondent is
reviewed and substituted with an order
that;
i.
The dismissal of Mr Lebogang Petrus Mokgethi was substantively and
procedurally unfair.
ii.
Supreme Poultry (Pty) Ltd is ordered to retrospectively reinstate Mr
Mokgethi in its employ, on terms and conditions of employment
as
applicable to his employ as at 3 April 2014.
iii.
Notwithstanding the retrospective reinstatement, Mr Mokgethi, shall
not be entitled to any back-payment.
2. There is no order as
to costs.
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant: L Pillay
Instructed
by: Yusuf Nagdee Attorney
For
the 3
rd
Respondent: Ludwig Frahm-Arp of Fasken Martineau
(
Pro
Bono
)
[1]
See
South
African Breweries (Pty) Ltd v Hansen and Others
(2017) 38 ILJ 1766 (LAC);
[2017] 9 BLLR 892
(LAC), where the review
test was summarised as follows;
“
[10]
The test that the Labour Court is required to apply in a review of
an arbitrator’s award was settled by the Constitutional
Court
in
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others (Sidumo)
.
It is that an arbitration award
is reviewable if the decision reached by the arbitrator was one that
a reasonable decision-maker
could not reach. Essentially, this test
requires the Labour Court, sitting as a court of review, to enquire
whether the decision
under review is one that a reasonable
decision-maker could not reach on the evidential material available.
On this test, an arbitration
award based on defective reasoning by
an arbitrator may still pass the muster required in reviews,
provided that the result is
one that a reasonable decision-maker
could have reached. This was clarified by the Supreme Court of
Appeal in
Herholdt v Nedbank Limited (Congress of
South African Trade Unions as amicus curiae)
as
follows:
‘
For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s 145(2) (a) (ii) …the
Arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be
unreasonable if it is one that a reasonable Arbitrator could not
reach on all the material that was before the Arbitrator. Material
errors of fact, are not in and of themselves sufficient for an award
to be set aside, but are only of any consequence if their
effect is
to render the outcome unreasonable.’
[11] In
Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
(Gold Fields),
this Court refined the
Sidumo
test by introducing
a
two-stage
enquiry
.
In short, this requires the Labour Court to
consider two issues: The first is whether the applicant has
established an irregularity.
This irregularity could be a material
error of fact or law, the failure to apply one’s mind to
relevant evidence, or misconceiving
of the enquiry or assessing
factual disputes in an arbitrary fashion. The second is whether the
applicant has established that
the irregularity is material to the
outcome by demonstrating that the outcome would have been different
having regard to the
evidence before the arbitrator. An arbitration
award will, therefore, be considered to be reasonable when there is
a material
connection between the evidence and the result.”
[2]
[2015] 5 BLLR 484
(LAC) ; (2015) 36 ILJ 1511 (LAC). See also
Sylvania
Metals (Pty) Ltd v Mello N.O. and Others
(JA83/2015)
[2016] ZALAC 52
(22 November 2016), where it was held that;
“
[17]
Insubordination in the workplace context generally refers to the
disregard of an employer’s authority or lawful and
reasonable
instructions. It occurs when an employee refuses to accept the
authority of a person in a position of authority over
him or her
and, as such, is misconduct because it assumes a calculated breach
by the employee of the obligation to adhere to
and comply with the
employer’s lawful authority. It includes a wilful and serious
refusal by an employee to adhere to a
lawful and reasonable
instruction of the employer, as well as conduct which poses a
deliberate and serious challenge to the employer’s
authority
even where an instruction has not been given.
[18]
This
Court in
Palluci Home Depot (Pty)
Ltd v Herskowitz and Others,
discussed
the “
fine
line”
between insubordination
and insolence, with the latter being conduct that is offensive,
disrespectful in speech
or behaviour, impudent, cheeky, rude,
insulting or contemptuous. While the Court noted that insolence may
become insubordination
where there is an outright challenge to the
employer’s authority, “
acts
of mere insolence and insubordination do not justify dismissal
unless they are serious and wilful
”.
The sanction of dismissal is reserved for instances of gross
insolence and gross insubordination or the wilful flouting
of
the instructions of the employer”. (footnotes and citations
omitted)
[3]
CWIU
and Another v S A Polymer Holdings (Pty) Ltd t/a Megapack
(1996) 8 BLLR 978 (LAC)
[4]
See
Belloord
28 CC v CCMA Johannesburg and Another (JR1499/17) [2018] ZALCJHB 112
(15 March 2018)
at
para 8, where it was held that;
“
The threshold for
review is fairly well-established. Section 145 permits the review of
an arbitration award, amongst other grounds,
where the arbitrator
commits a gross irregularity. This extends to latent gross
irregularities or, put another way, instances
where an arbitrator
fails to apply him or herself to the available evidence, makes
defect of factual findings and the like. In
these instances, a party
seeking to set aside an award or ruling must establish both the
irregularity or defect relied on and
that the
Sidumo
threshold
is met.
In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine)
v CCMA & others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC), the Labour Appeal Court noted that it is not sufficient for
an award to be set aside simply to establish a gross irregularity
in
the conduct of the arbitration proceedings; it is incumbent on an
applicant to establish that the result was unreasonable
or
‘
put another way, whether the decision that the arbitrator
arrived at is one that falls outside the band of decisions to which
a reasonable decision-maker could come on the available material
’.
In other words, the review court must consider whether despite the
arbitrator’s reasoning, the result is nevertheless
capable of
justification on the available material. Thus, material errors of
fact on the part of the arbitrator, as well as the
weight and
relevance to be attached to particular facts or a failure to have
regard to particular facts are not in themselves
sufficient grounds
for review; their effect must be to render the outcome
unreasonable.”
[5]
See
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell Et Cie and
Others
(2003)
1 SA (11) SCA at paragraph 5
[6]
At
para [33], where it was held that;
“
Whether
misconduct amounts to insubordination depends on a number of factors
including the wilfulness of the employee’s
defiance, the
reasonableness of the order that was defied and the actions of the
employer prior to the purported act of insubordination.
Provocation by an employer prior to the act of insubordination
by an employee, is thus an important factor that must be considered
in assessing its gravity. The same principle in my view would apply
to the act of insolence or gross insolence. If the employee
was
provoked into insolence or insubordination, it may have a
considerable mitigating effect on the seriousness of the offence
and
may render the dismissal inappropriate.”
[7]
[2010]
1 BLLR 1 (SCA).
[8]
Impala
Platinum Ltd v Jansen
[2017]
4 BLLR 325
; (2017) ILJ 896 (LAC)
[9]
Page
51 of the record of proceedings at lines 7 - 15