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[2020] ZALCJHB 29
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Bearing Man Group (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR552/17) [2020] ZALCJHB 29 (11 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR 552/17
In the matter between:
BEARING
MAN GROUP (PTY) LTD Applicant
And
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
ERIC
MYHILL
N.O
Second Respondent
GRAIG
GRAHAM SLATER Third
Respondent
Heard:
9 October 2019
Delivered:
11 February 2020
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The
applicant (BMG) seeks an order in terms of the provisions of section
145 of the Labour Relations Act (LRA)
[1]
,
reviewing and setting aside the arbitration award dated 13 March 2017
issued by the first respondent (the Commissioner),
acting under the
auspices of the Commission for Conciliation Mediation and Arbitration
(CCMA). The Commissioner had found that
the dismissal of the third
respondent (Slater) was substantively unfair and had ordered his
retrospective reinstatement together
with backpay in the amount of
R286 838.70, less certain deductions.
[2]
The background to this dispute is fairly common cause. Slater was
employed
as a Projects Engineer. On 15 July 2016, he was
issued with a notice to appear before a disciplinary enquiry to
answer
to allegations of gross insubordination (failure to
follow/carry out a direct and reasonable instruction from a line
manager);
and bringing the company’s name into disrepute by not
attending site as requested in writing by his Line Manger. He was
found
guilty and dismissed in terms of an outcome issued on
18 July 2016.
[3]
Subsequent to the dismissal, Slater referred a dispute to the CCMA
which
ultimately came for arbitration before the Commissioner. At
those proceedings, BMG did not persist with the charge of bringing
the company’s name into disrepute, and Slater only challenged
the substantive fairness of the dismissal.
[4]
At the arbitration proceedings, evidence on behalf of BMG was led by
Slater’s Line Manager, Dustin Pereira, which was essentially
that;
4.1
At the time of his employment, Slater was paid the same salary that
he was paid
at his previous employ, subject to a review after six
months period of probation.
4.2
After six months of employment, Slater had requested a salary
adjustment from
the Managing Director (Pelser). When there was no
immediate response to Slater’s request, Pereira had followed up
the matter
with Pelser.
4.3
A meeting was ultimately scheduled for 1 July 2016 between Pelser,
Slater and
Pereira. At that meeting, Slater indicated that he was not
prepared to perform extra duties outside his job description. Pereira
had warned him not to hold the company to ransom as that could have
consequences for him.
4.4
The end result of the meeting was that Pelser had agreed to give
Slater a 25%
salary increase, and adjustment documents in that regard
were signed and handed over to the Human Resources department for
processing.
The adjustment would have taken effect from end of
July 2016.
4.5
On or about 7 July 2016, Pereira had sent an email to
Slater requesting
him to go to a site to assist a customer with an
electrical engineering problem. Pereira later received a report from
another Line
Manager, Cooper, that Slater had said he would not go to
the site until he had received an updated contract of employment.
4.6
Pereira had telephonically contacted Slater, and the latter had
confirmed that
he would not go to the site. Pereira informed Slater
that his contract had been submitted to the Human Resources
department and
again asked him to go to the site. Slater had then
agreed to go to the site, and had indeed done so in the afternoon.
4.7
Notwithstanding the fact that Slater had ultimately obeyed the
instruction,
Cooper was upset by his initial refusal to obey the
instruction and had initiated disciplinary proceedings against him.
4.8
Pereira’s contention was that Slater was dismissed on account
of his grossly
insubordinate conduct, which in accordance with BMG’s
disciplinary code called for instant dismissal. Furthermore, the
dismissal
followed because the issue of salary adjustment had been
resolved on 1 July 2016, yet Slater had refused to go to
the
site when instructed to do so.
4.9
Under cross-examination, Pereira had conceded that Slater had
not at the
time the instruction was issued, received written
confirmation of his salary adjustment. He further accepted that
Slater’s
initial response to the instruction could have been in
a heat of the moment. He further conceded that Slater had regretted
his
actions and had subsequently complied with the instruction issued
on the same day.
[5] Slater’s
evidence before the Commissioner was that;
5.1
The dismissal was harsh after he had conceded at the internal
disciplinary enquiry
that he had acted incorrectly by responding in
the manner he had to the instruction. He was frustrated by the
non-resolution of
the requests to have his salary adjusted for over 6
months, and that even though he had reacted in a heat of the moment,
the issue
was resolved within five minutes with Pereira.
5.2
Even though he was not informed on 1 July 2017 of the 25%
increase
in his salary, he only discovered on 12 July 2016
that the adjustment had been effected, and that prior to then, there
was no communication on the issue between him and Cooper.
5.3
He denied having persistently and deliberately refused to obey the
request.
He acknowledged that the company’s disciplinary code
called for instant dismissal in cases of gross insubordination. He
conceded
to having over-reacted even though he contended that he had
every intention of complying with the request.
[6] The
Commissioner in concluding that the dismissal was substantively
unfair held that;
6.1
It was common cause that Slater initially responded to the request
by
Pereira by email in which he had stated that he was still waiting
for his updated contract, and that as soon as he had heard
something he would attend to the site;
6.2
BMG failed to prove the charge of gross insubordination. Even though
Slater
was initially insubordinate, once Pereira had assured him that
the contract was being adjusted, he had then attended to the site.
6.3
Slater’s conduct was not grossly insubordinate or serious
enough to warrant
a summary dismissal. BMG’s disciplinary code
recommended a final written warning for the first offence of
insubordination,
and this was consistent with the concept of
corrective discipline endorsed by the Courts.
6.4
Slater had conceded in the internal disciplinary enquiry that he had
made a
mistake by initially responding to Pereira in the manner he
did, and this indicated that he was remorseful and amenable to being
corrected. Thus, his conduct was not of such a gravity that it made
the employment relationship intolerable.
6.5
Slater’s frustrations were justified in the light of the
inordinate delays
in adjusting his salary and updating his contract,
and this should have served as a mitigating factor, which the
Chairperson of
the enquiry failed to take into account prior to
recommending a summary dismissal
[7] BMG
seeks to have the arbitration award reviewed and set aside on a
variety of grounds,
including that;
7.1
The Commissioner’s findings were irrational, irrelevant and
irregular,
resulting in an award which is not one which a reasonable
decision maker could have arrived at;
7.2
The Commissioner failed to appreciate the nature of the enquiry
before him and
committed a material misdirection as regards an
understanding of the evidence before him;
[8]
Slater defended the Commissioner’s award on the basis that what
BMG seeks is an appeal instead of a review. It was submitted on his
behalf that taking into account his concession and the definition
of
gross insubordination as contained in the disciplinary code, a final
written warning would have sufficed in the circumstances.
This was
particularly so since there was justification for his conduct. He had
further contended that the conduct did not constitute
gross
insubordination as he was not required to do the job in any event;
had expressed remorse and attended to the tasks, and that
the
incident was resolved within five minutes.
[9]
The test on
review is trite. An applicant in review proceedings must establish
that the decision arrived at by the Commissioner
was one that falls
outside the band of decisions to which a reasonable decision-maker
could come on the available material. Furthermore,
it is now accepted
that the enquiry is whether despite the Commissioner’s
reasoning, it can be said that the result is nonetheless
capable of
justification on the available material. In the end, material errors
of fact on the part of the Commissioner, 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 as such as to render the outcome
unreasonable
[2]
.
[10]
At the core
of an enquiry into the substantive fairness of a dismissal is the
nature and essence of the allegations of misconduct
levelled against
an employee. In this case, the allegations related to ‘gross
insubordination’. In
TMT
Services and Supplies (Pty) Ltd v Commission for Conciliation
Mediation and Arbitration and Others
,
[3]
it was held that the enquiry
into the gravity of the specific insubordination considers three
aspects: the action of the employer
prior to the deed, the
reasonableness of the instruction, and the presence of wilfulness by
the employee.” Furthermore, the
LAC held that to the extent
that insubordination involves a defiance of authority, such a
defiance
can
be proven by a single act of defiance, and that the employer’s
prerogative to command its subordinates is the principle
that is
protected by the class of misconduct labelled “insubordination”,
and addresses operational requirements of
the organisation that
ensure that managerial paralysis did not occur.
[4]
[11]
In
Sylvania
Metals (Pty) Ltd v M.C Mello N.O & others
[5]
,
the Labour Appeal Court further 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.
And,
“
[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.
”
[12]
In this case, it was common cause that an instruction was issued to
Slater to attend to
a client’s site. It is further common cause
that he had initially refused to obey the instruction unless his
contract of
employment and salary were adjusted, but had subsequent
to speaking to Pereira, carried out the instruction. The issue of his
salary
had been discussed at the meeting held on 1 July 2016,
and it is common cause that although there was an agreement that
the
adjustment would be done, as at 7 July 2016 it had not been
done.
[13]
I agree with the Commissioner’s conclusions that the
insubordination in question
was not gross to warrant a dismissal to
the extent that Slater had ultimately complied with the instruction.
However, the Commissioner’s
further conclusions that there were
mitigating factors that justified Slater’s frustrations cannot
be deemed to be reasonable
in the circumstances of the case. Even if
there was cause for Slater to be aggrieved at the non-implementation
of the salary adjustment,
the first issue is that Pereira was
attending to the issue, which he also assumed to have been resolved.
Second, if Slater was
aggrieved, nothing prevented him from carrying
out the instruction and then lodging a formal grievance in accordance
with MBG’s
internal procedures to have the matter resolved,
instead of reacting in the manner he did. Third, Slater had been
warned at a meeting
of 1 July 2016 not to hold the company
to ransom over the issue, as that may have dire consequences for him.
[14]
In a nutshell, Slater had been insubordinate, and had sought to hold
BMG to ransom over
the salary adjustment.
Accordingly,
there is nothing in the prior actions of BMG that justified Slater’s
response. Even if there was, Slater’s
conduct
cannot in my view be justified, especially in circumstances where the
refusal to attend to a client at a site might have
had prejudicial
results for BMG, and where his grievance over the salary adjustment
could have been dealt with and resolved by
other means, other than a
refusal to obey a reasonable and lawful instruction.
[15]
BMG is correct in submitting that Slater effectively got away
‘scot-free’ despite
his misconduct, which in any event
was calculated in view of the outstanding adjustment. I agree with
the submissions made on its
behalf that Slater was a senior employee
and ought to have been aware of his obligations, and the importance
of being exemplary
to his subordinates. The mere fact that Slater was
remorseful and had immediately carried out the instruction does not
detract
from the fact that he was insubordinate in the first
instance, which conduct deserves censure.
[16]
In the end, it was submitted on behalf of BMG that at most, Slater
should have been reinstated
with a Final Written Warning. This
proposition was equally supported by Slater’s counsel, who had
submitted that the sanction
would have been appropriate in the light
of his (Slater’s) concessions. I agree with these submissions.
[17]
In summary, Slater’s conduct of refusing to obey a lawful and
reasonable instruction
issued by Pereira constituted insubordination,
which however on the facts, cannot be deemed to have been serious or
gross to call
for a summary dismissal. BMG’s disciplinary code
and procedure provided that ordinary insubordination was to be met
with
a final written warning, and the Commissioner’s
conclusions therefore to reinstate Slater retrospectively without any
form
of sanction are not conclusions that fall within a band of
reasonableness in the light of the material served before him.
In
the end however, these material errors of fact on the part of the
Commissioner (insofar as the reliance on mitigating factors),
did not
have the effect of rendering the entire outcome unreasonable.
[18]
I have further had regard to the issue of costs. Upon a consideration
of the requirements
of law and fairness, and given the nature of the
order below, it is deemed that a costs order is not warranted in
these circumstances.
[19] Accordingly,
the following order is made;
Order:
1. The arbitration award
dated 13 March 2017 issued under case number GAJB17588-16
by the Second Respondent is reviewed
only to the extent that an
amendment and addition is made to its paragraph 56 to read as
follows;
‘
56.1 BMG is
ordered to reinstate Mr Craig Graham Slater as an Electrical Engineer
with retrospective effect to his date of dismissal
(20 July 2017)
on the same terms and conditions that applied at the time of his
dismissal.
56.2 Mr Craig Graham
Slater is to be issued with a Final Written Warning in accordance
with BMG’s applicable Disciplinary
Code upon resumption of his
duties’
2. There is no order as
to costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Qudsiyyah Majam of Mcgregor Erasmus Attorneys
For
the Third Respondent: Adv. M Meyersowitz, instructed by Gittins,
Youngman & Associates
[1]
Act 66 of 1995 (as amended)
[2]
Gold
Fields Mining
Gold
Fields (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2014]
1 BLLR 20 (LAC)
[3]
(JA32/2017)
[2018] ZALAC 36
; (2019) 40 ILJ 150 (LAC);
[2019] 2 BLLR
142
(LAC) at para 4
[4]
At
para 19
[5]
(JA83/2015)
[2016] ZALAC 52
(22 November 2016)