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[2018] ZALCJHB 327
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Anglo Operations (Pty) Ltd (Goedehoop Colliery) v National Union of Mineworkers and Others (JR903/16) [2018] ZALCJHB 327 (14 September 2018)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case
no: JR 903/16
In
the matter between:
ANGLO
OPERATIONS (PTY) LTD (GOEDEHOOP
COLLIERY)
Applicant
and
NATIONAL
UNION OF MINEWORKERS
First
Respondent
SOLOMZI
MPIKO (
N.O.
)
Second
Respondent
NOZIPHO
FELICIA PENNISTON
Third
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION AND
ARBITRATION
Fourth
respondent
Heard
:
06 September 2018
Delivered
:
14 September 2018
Summary:
(Review – insubordination and failure to obey a reasonable
instruction – arbitrator’s failure to contextualise
conduct led to failure to appreciate gravity of misconduct and to
consider relevant evidence leading to findings which cannot be
sustained on the evidence)
JUDGMENT
LAGRANGE
J
Background
[1]
The third respondent, Ms N Penniston (‘Penniston’) was
found guilty and dismissed for failing to carry out and disregarding
an instruction to bring her copy of her letter of appointment to the
company, as the company had lost its copy. The letter reappointed
her
with effect from 17 February 2015 as an Instrument Mechanician at the
Goodehoop Colliery’s Simunye Shaft under s 7(4)
of the Mine
Health & Safety Act, 29 of 1996 (‘MHSA’). The
appointment is a statutory one in terms of which a person
with
qualifications can be appointed under
regulation 2.9.2
of the
Mine
Health and Safety Regulations (Minerals
Act) to perform health and
safety functions imposed by the MHSA on the employer and the mine
manager.
[2]
The arbitrator concluded that Penniston had failed to carry out an
instruction given by the engineering manager of the colliery,
Mr R
Youell (‘Youell’), to submit her copy of the appointment
letter.
[3]
Before the return of her copy of the letter of appointment became a
bone of contention, Penniston had made a major issue about
signing
the letter of appointment in the first place. It was only after the
intervention of the union, the acting engineering manager
and the HR
manager that she could be persuaded to sign the letter nearly six
weeks after it should have been signed. The reason
for her reluctance
was a clause in the letter stating that the appointment cancelled and
superseded all previous letters of appointment.
It was only when the
HR manager issued her with a separate document confirming that the
appointment did not affect her contract
of employment that she agreed
to sign the letter. The same clause was in the previous appointment
letter she had signed in 2014
as well.
[4]
Unfortunately, soon after signing it, the general manager’s
secretary appears to have lost the company’s copy. This
led to
the requests being made to Penniston to return her copy. For a long
time, she maintained that she could not find her copy,
which she
explained was partly owing to her moving house. It was her persistent
failure to produce her copy which ultimately led
to senior managers
issuing her with instructions to do so. Her non-compliance with those
instructions led to her dismissal.
[5]
Prior to Youell issuing the instruction described below, there had
been various other instructions issued to Penniston, none
of which
she complied with, namely:
5.1 On 23 April 2015, Ms
J Olivier, the mine’s Human Resources Business Partner, who
occupied a managerial position, instructed
Penniston to bring a copy
of the letter in as quickly as possible.
5.2 On 30 April 2015,
Olivier followed up this instruction with an email to Penniston
repeating the instruction and proposing that
if she did not have her
copy anymore they would reprint one for her to sign. There was no
response from Penniston. Penniston claimed
that she did not have
access to her company email at the time.
5.3 On 7 May 2015,Ms K
Antwerp (‘Antwerp’), Penniston’s line supervisor,
instructed her to bring a copy of the
letter. Penniston agreed this
was a reasonable request. It was never suggested at that stage that
Penniston could not locate it.
5.4 At a meeting on 4
June 2015, the Human Resources Manager, Mr M Dugmore, orally
instructed her to bring the copy by lunchtime
the following day.
[6]
There was also evidence that the section engineer where Penniston
worked, Mr M Nefale, had sent an email to Olivier on 7 May
2015
stating that despite speaking to Penniston, she was still refusing to
provide the letter of appointment. Youell also testified
that he
became aware in May 2015 that the mine did not have a copy of the
appointment letter and that Antwerp and Nefale had asked
Penniston to
provide her copy.
[7]
Youell spoke to her informally about it on 8 May and asked her if he
could not provide her with a copy to sign if she had perhaps
mislaid
her copy, but she said it was not necessary as she still had her
copy. Penniston denied he offered to provide another copy
for her to
sign but never challenged his evidence on this point under
cross-examination. Nor did she put her version to him that
it was
difficult for her to look for her copy because of all her
responsibilities at home. She also did not put her version that
he
threatened her with dismissal if she did not bring it.
[8]
Youell testified that Penniston had refused or was unwilling to
submit her copy of the letter to the HR department. On 5 June
2015,
he instructed her to bring the copy to work on 8 June, but she was
absent on leave that day and only returned on 11 June.
On her return,
she still did not provide the copy, nor did she even attempt to
contact Youell. In essence, her explanation for
not attending to the
instruction was that, she was too busy on her return to work to do
so. The arbitrator noted that she did find
time to lodge the
grievance, but did not have time to revert back to Youell. In his
view, it was reasonable for Youell to expect
that she would report
back to him at the earliest opportunity, which was 11 June.
[9]
On 12 June, having received nothing from Penniston, Youell lodged a
complaint against her for not complying with his instruction.
On the
same day, she lodged a grievance against him for the instruction he
gave her a week earlier, on 5 June. Her complaint was
that the
instruction given to her by Youell ‘had nothing to do with my
job as a mechanician’ and that it was unfair
to ‘victimise’
her for someone else’s mistake, namely the General Manager’s
secretary apparently having
lost the company copy of the contract.
As a solution to her grievance, she wanted Youell to stop giving her
with ‘unlawful
instructions’.
[10]
On 2 July 2015 the General Manager, Mr E Becht (‘Becht’)
presided over the grievance hearing. He summonsed Youell
to the
grievance hearing and learned that Penniston had disregarded previous
instructions to submit the copy. He repeated the instruction
saying
she should either bring it in or sign a new copy by the following
day. He offered to have another copy printed for her to
sign but she
declined the offer saying she would fetch her copy. Despite this, she
only brought the document a week later.
[11]
The arbitrator concluded that since the applicant had already been
charged with misconduct by the time Becht repeated the instruction,
the charge could not have incorporated her refusal to obey his
instruction. He concluded that the only charge she was facing was
that of not complying with the instruction of the engineering
manager.
[12]
The arbitrator also rejected the suggestion that previous requests by
various HR personnel to the third respondent could constitute
instructions because those staff were not in her line management
structure. He accepted too that, she could not have responded
to
instructions on email because she had no access to email. In that
regard, he accepted that even though her evidence in this
regard was
challenged, her claim could not be shown to be improbable. Lastly, he
found that in the absence of direct evidence from
her line managers
that they also instructed her to hand in the letter, the claim that
they did so was unsubstantiated, even though
he accepted that they
could have engaged with her concerning her letter of appointment.
[13]
The arbitrator also considered the argument that, deliberate failure
to comply with the instruction was considered to be an
act of gross
insubordination. However, he noted that Penniston was only found
guilty of failing to comply with an instruction or
disregarding it.
Having regard to the disciplinary code, the fact that she had a clean
record and that the recommended sanction
was a severe warning in the
absence of any reasons why the employer was justified in deviating
from those guidelines, the sanction
of dismissal was inappropriate.
[14]
He further found on the basis that the employer had not suspended
Penniston pending the enquiry and therefore it could not
be said that
the trust relationship had broken down.
[15]
Accordingly, he found that Penniston’s dismissal was
substantively unfair and reinstated her with retrospective effect
to
the date of her dismissal.
[16]
He also found that her dismissal was procedurally unfair on the basis
that:
16.1 The employer had
failed to consult the union before instituting disciplinary charges
against her.
16.2 The employer had
deviated from the disciplinary code in allowing the engineering
manager to be the complainant when the code
only provided for the
line manager to make a complaint.
16.3 The general manager
who chaired the appeal hearing could not have been neutral and
was probably biased the appeal when
he heard the appeal, because in
his capacity as the chair of her grievance hearing he had also
reissued the instruction to hand
in the letter and thereby had become
a participant in the dispute.
Grounds of review
[17]
The applicant seeks to review the award on the grounds of
reasonableness and submits the following reasons:
17.1 The arbitrator
failed to consider the seriousness of her failure to provide a signed
letter of appointment because it was obliged
to have such a letter in
order for the applicant to work on the mine in her appointed capacity
in terms of the Mine Health and
Safety Act 29 of 1996 (‘the
MHSA’).
17.2 In finding that the
applicant did not have justifiable reasons for deviating from the
recommended sanction in the disciplinary
code, the arbitrator ignored
the fact that Penniston had committed gross insubordination by
failing to provide the letter and that
in the absence of having such
a letter she could not work on the mine. Moreover, the arbitrator
failed to appreciate that she had
wilfully refused to provide the
document and there could have been serious consequences if she was
found to be performing her duties
without it. He also ought to have
had regard to the fact that she had been requested to provide the
letter on numerous occasions
over a period of four months and had
failed to give adequate explanation for not doing so. As such, her
conduct amounted to a serious,
persistent and deliberate challenge to
the employer’s authority.
17.3 In relation to the
finding that her dismissal was procedurally unfair on account of the
employer failing to consult with the
union before instituting
disciplinary action, it simply ignored the uncontested evidence that
hearing was postponed when it became
apparent that there might have
been a need to consult with the union. Despite being fully aware of
this, the arbitrator simply
ignored this when he reached his
conclusion.
17.4 The arbitrator
failed to consider that all the other employees who had instructed
her to submit her copy of the letter were
in managerial positions and
had the necessary authority to instruct her to return the letter.
17.5 By interpreting the
failure to suspend the third respondent as evidence that there was no
breakdown in the relationship, the
arbitrator misconstrued the
purpose of a suspension which is a separate issue, to be determined
on its own merits. Instead, the
arbitrator should have focused on the
effect the third respondent’s conduct had in undermining the
trust that managers could
have in her that she would follow
instructions.
17.6 The arbitrator
ignored evidence that even when she filed her grievance, she defended
her failure to comply with the instruction
of the engineering manager
to bring the letter of appointment as it had nothing to do with her
duties.
Evaluation
[18]
Penniston’s counsel characterised the matter as a “storm
in a teacup”. Certainly, that is how the saga began.
It could
have been resolved simply by Penniston agreeing to sign another copy
of the letter. Instead, Penniston’s persistent
failure to
produce the letter caused the matter to escalate and the proverbial
storm in a teacup grew into a mini tornado, which
sucked in
management at different levels until eventually the general manager
himself became involved.
[19]
The review is one based on reasonableness and the current test is now
well established, viz:
Mere errors of fact or
law may not be enough to vitiate the award. Something more is
required. To repeat: flaws in the reasoning
of the arbitrator,
evidenced in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material
factors etc must be
assessed with the purpose of establishing whether the arbitrator has
undertaken the wrong enquiry, undertaken
the enquiry in the wrong
manner or arrived at an unreasonable result. Lapses in lawfulness,
latent or patent irregularities and
instances of dialectical
unreasonableness should be of such an order (singularly or
cumulatively) as to result in a misconceived
enquiry or a decision
which no reasonable decision maker could reach on all the material
that was before him or her.
[33] Irregularities or
errors in relation to the facts or issues, therefore, may or may not
produce an unreasonable outcome or provide
a compelling indication
that the arbitrator misconceived the enquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator's conception of the enquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will ex
hypothesi be material to the determination of the dispute. A material
error of this order would
point to at least a prima facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision
in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted upon by the decision;
and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question
was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity
or error material to the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead
to no fair trial of the issues,
with the result that the award may be set aside on that ground alone.
The arbitrator however must
be shown to have diverted from the
correct path in the conduct of the arbitration and as a result failed
to address the question
raised for determination.
[1]
[20]
Accordingly, the court must ultimately be satisfied that the
conclusions reached by the arbitrator are ones that could not
have
been arrived at by any reasonable arbitrator if the material errors
in the reasoning of the arbitrator were corrected.
First and second and
sixth grounds of review
[21]
Both these grounds relate to the arbitrator’s appreciation of
the gravity of Penniston’s misconduct. The arbitrator
treated
Penniston’s failure to provide her copy of the letter in an
extraordinarily rigid and narrow way, by discounting
all instructions
issued by anyone other than Penniston’s direct line management
and by excluding consideration of the mine
manager’s
instruction from consideration. This narrow appreciation of the
events was reflected in his failure to appreciate
that being able to
provide a copy of the letter of appointment was vital in the event of
an inspection by the DMR and that operations
could be halted if such
a letter could not be produced.
[22]
By narrowing down the misconduct to a single failure to comply with
one instruction by Youell, entailed a completely misleading
characterisation of that conduct which occurred in the context of
prolonged and repeated efforts to get Penniston to co-operate
in
submitting her copy over a period of almost four months, in
circumstances where she never sought to justify or explain her
failure for doing so at the time and where, more than once, she
declined the obvious alternative of simply signing another copy.
Moreover, even if she had been charged before Becht issued the
instruction, the fact that she didn’t even respond to that
instruction from the general manager promptly ought to have been
considered by the arbitrator as an aggravating factor and also
indicative of her lack of commitment to remedying her previous
non-compliance. She might not have been charged with gross
insubordination,
but she never put a coherent explanation to the
mine’s witnesses for her non-compliance other than not
receiving some of
the email instructions, and it is difficult to
understand how the arbitrator could not have appreciated that her
conduct could
not be interpreted as anything less than persistent and
deliberate challenge to the employer’s authority. The way she
framed
her grievance against Youell exemplifies her attitude at the
time: she simply did not accept the legitimacy of his instruction on
a highly technical basis. It is also telling that, if she had told
him she had been unable to obtain the certificate because of
all her
other domestic responsibilities, as she claimed in her evidence, that
she did not even give the slightest hint of this
in her grievance.
Third ground
[23]
I agreed that the arbitrator simply ignored the fact that the hearing
was postponed when the objection was raised that the
union had not
been consulted before instituting disciplinary action against
Penniston, even though it is highly debatable that
her status in
union structures entitled her to be treated as a shop steward when it
came to disciplinary action.
[24]
However, this was not the only ground of procedural unfairness and I
cannot say the arbitrator was unreasonable in finding
that the
general manager ought not to have chaired the appeal hearing owing to
his direct involvement in the matter in issuing
a further instruction
to Penniston after she had been charged. In any event, in the
circumstances of this matter, that would not
warrant any compensation
in my view as the primary enquiry was not impugned and Penniston in
any event walked out of the enquiry.
Fifth ground
[25]
The arbitrator based his conclusion that trust had not been destroyed
entirely on the employer’s failure to suspend Penniston
pending
her enquiry. By contrast, there was Youell’s evidence that she
could still perform her duties as he knew she had
been validly
appointed and he had been advised not to suspend her. On the other
hand, he felt that her persistent refusal to comply
with the simple
and reasonable instruction, compromised the trust relationship that
should have existed.
[26]
The implication of the arbitrator’s logic is that, even though
the reasons for a suspension are quite independent of
determining the
guilt of an employee, an employer should anticipate the ultimate
question to be determined in a dismissal enquiry,
namely the
intolerability of the employee remaining at work because of the
gravity of their misconduct and its impact on the employment
relationship. A failure to do so and to suspend the employee would
otherwise lead to a presumption of trustworthiness irrespective
of
the outcome of the enquiry. This is clearly a misdirection and the
arbitrator failed to consider the impact of the Penniston’s
recalcitrant conduct, which was established in the hearing, on the
integrity of the trust relationship going forward.
[27]
It is true Penniston had a clean record before she was dismissed, but
the arbitrator’s failure to contextualise her non-compliance
with the instructions against the build up to Youell’s first
instruction after she declined to sign a copy and her refusal
to
accept his authority and consequent unwillingness to comply promptly
with the mine manager’s instruction even when she
was facing
the disciplinary charge. The conclusion on the evidence before the
arbitrator is inescapable that the matter escalated
to a various
serious level because of Penniston’s obdurate attitude over a
considerable period. Moreover, it was conduct
displayed by a
qualified person in a responsible position in the mine, not a junior
employee, who might be more easily excused
a failure to appreciate
the implications of non-compliance. Penniston had herself to
blame for the way it escalated and the
serious ramifications it had.
[28]
In light of the above, I am satisfied the review should succeed in
respect of the finding of substantive unfairness.
Order
[1] The arbitration award
of the second respondent issued under case number MP 8024-15 dated 3
March 2016 is reviewed and set aside,
save for his finding that her
dismissal was procedurally unfair.
[2] The second
respondent’s finding that Penniston’s dismissal was
substantively unfair is substituted with a finding
that Penniston’s
dismissal was substantively fair.
[3] Insofar as
Penniston’s enquiry was procedurally unfair, it did not warrant
any award of compensation.
[4] No order is made as
to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
Van As instructed by Cliffe Dekker Hofmeyr Inc
FIRST
AND THIRD RESPONDENTS:
E
J Steenkamp instructed by Du Toit Attorneys
[1]
Head of
Department of Education v Mofokeng & Others
(2015)
36
ILJ
2802 (LAC) at 2812-3