THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no. JR2096/21
In the matter between:
PIONEER FOODS (PTY) LTD t/a
AEROTON BAKERY Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER NZWISISAL L DANDADZI Second Respondent
THABANI SIBUSISO KHUMALO Third Respondent
Date heard: 03 September 2024
Date delivered:13 February 2025 This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be 13 February 2025.
JUDGMENT
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BALOYI , AJ
Introduction
[1] The second respondent’s finding that the dismissal of the third respondent
is substantively unfair coupled with an order for the third respondent’s retrospective
reinstatement is the source of the applicant’s discontent with the second
respondent’s arbitration award. The applicant is thus seeking its review and set ting
aside based on the grounds set out in its papers. The third respondent opposes the application and maintains that there is no basis for the review and set ting aside of
the arbitration award.
Background
[2] The applicant dismissed the third respondent on 29 December 2020
following a guilty finding on charges of :
“Gross negligence, in that on Thursday 15
th October 2020 your actions of
deliberately not manually blending brown bread flour with white bread flour, resulted in the business incurring losses of at least R39 853.00 (@R3.60
average revenue/loaf).
Failure to follow a reasonable instruction, in that on 16
th of October 2020
you did not follow instructions to manually blend white bread flour with brown bread flour in order to prevent throughput losses, which resulted in massive losses being incurred.
Gross insubordination in that on Friday 15
th October 2020 you
ignored/failed to follow an instruction that was i ssued to all supervisors to
blend white flour with brown flour.”
[3] T he third respondent referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration ( CCMA ) to challenge the
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termination of a 16 year employment relationship between himself and the applicant.
He was at the time of his dismissal a Production Supervisor stationed at the
applicant’s Aeroton Bakery. The circumstances that led to the institution of
disciplinary action against the applicant arose out of the poor quality of the brown bread flou r which compromised the final product at the end of the baking process.
The problem was discovered on 12 October 2020.
[4] The applicant operated on a three- shift system and each shift had its own
Production Supervisor . The two other Production Supervisors were Robert
Sekomane and Ben Nxumalo. They all reported to the Production Manager . Mr
David Madim atswana was at all material times to the dispute an Acting Production
Manager. He was reporting to Mr Jos hua Mphahlele, who was the Operations
Manager. The brown bread f lour problem came to the attention of the Acting
Production Manager and this resulted in a management meeting being held on 14
October 2020. Mr. Mphahlele, Mr. Madima tswana, and the applicant’s Regional
Technical Manager, Ms. Thoko Radebe were part of the meeting.
[5] At the end of the meeting, it was resolved that in order to restore the quality
of the brown bread flou r, certain amount of the white bread flou r should be added to
the brown bread flower . The blend ing should be conducted manually as the
automatic mixing would cause a drop to the throughput. Mr. Mphahlele directed Mr. Madim atswana to instruct all the Production Supervisors to get the white bread flour
from the old production plant and act accordingly . The primary reason behind the
applicant taking disciplinary steps against the third respondent is the failure to carry
out the instruction. According to the applicant, the third respondent’s failure resulted
in the applicant incurr ing a loss of R39 853-00 due to the poor production of 11070
loaves.
[6] Evidence adduced by both parties’ witnesses during arbitration proceedings
was largely common cause, most particularly on the events that unfolded between
12 and 15 October 2020. The dispute between the parties is centered not only
around the instruction being issued to the Production Supervisors to whether it was
fully communicated as such. The evidence revealed that there were two legs to the
instruction. Firstly , that the white flour must be blended with the brown bread flour to
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restore the quality of the brown bread they were baking at that point. Secondly, that
blending should be done manually instead of using the machine.
[7] The third respondent and Ben Nxumalo blended the brown bread flour with
the white flour , but did that automatically. Mr.Sekolone carried out the very blending
but manually. The essence of t he applicant’s case throughout the arbitration
proceedings , the reason for the third respondent’s dismissal was that he failed to
follow a reasonable instruction by not blending the white flour with brown flour
manually. It appears that by default charges two and three were somehow presented as one during the arbitration proceedings before the second respondent. The first
charge of negligence that resulted in a loss of R39 853-00 is actually a consequence
of the alleged third respondent’s failure to follow a reasonable instruction and gross insubordination.
[8] Following the meeting of 14 October 2020, the Acting Production Manager
had to convey the instruction to the three Production Supervisors who were rostered
to head three different shifts. Mr M adimatswana conveyed the instruction to Mr
Sekomane after bumping i nto him within the workplace. Mr Sekomane indicated that
he did not know how to get the flour from the old factory. Mr R amadimatswana
assisted him in that regard and the mixing of the two flours manually in the buckets
and pots was carried out.
[9] Relevant to this dispute is that he conveyed the instruction to the third
respondent on 15 October 2020 around 10h00 whilst the third respondent started his
shift at 6h00. When he arrived at the third respondent’s point of production in the
plant, he found the third respondent having already moved to the baking of white
bread which was not subject of the instruction. Since Mr Sekoma ne did the correct
blending in manual format , according to the applicant it means that all the Production
Supervisors were correctly instructed by Mr Madimatswana. The Production
Supervisors had at all times obeyed the instructions from management. The third respondent disputed the existence of the instruction to mix manually being received
from Mr Maditswana. He only learnt about it later from his fellow Productive
Supervisor, Mr Sekomane.
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[10] During the evidence in chief of Mr Madimatswana the f ollowing came to
record regarding the communication of the instruction to the third respondent:
“MR MADIMATSWANA: Yes, prover. I instructed him to go collect the flour
in the old factory so that they will be able to come mix it in the new factory.
Mr Khumalo had reported for duty in the morning and the other supervisor reported around 2, so the afternoon. I had spoken to him as well … [intervenes]”
[11] It appeared that the applicant’s representative was not satisfied with the
above piece of evidence and took this direction:
“MR MORAPELI : Okay. So what was the actual instruction that you gave
to your supervisors, let’s just focus on that.
MR MADIMATSWANA: I instructed them to go get the flour at the old
plant, the factory, so that we can be able to come mix it in the new factory to be able to save time.
MR MORAPELI:
Okay, so you used the word “mix” it, how was the mixing
going to happen?
MR MADIMATSWANA: So w e pour it into the buckets and then into the pot
then there’s water. So there are small buckets so we put - we pour the flour
into the small bucket, oh manual mixing, it’s called manual mixing.”
[12] During cross -examination, this unfolded:
“MR RAKHOMA: And you didn’t call him either before the shift telling him
that no, move manual – when you entered the shift, when you started the
shift.
MR MADIMATSWANA: No, I didn’t call him.”
[13] The second respondent after having considered various aspects of
evidence placed before her came to a conclusion that the applicant’s witnesses gave
conflicting versions . She noted the abse nce of an explanation on why the third
respondent was only informed of the manual mixing at 10h00 on a n issue which the
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applicant views as critical. It was probable that Mr M adimatswana did not convey
such instruction in view of his failure to make a follow -up on the implementation of
the manual mixing as he was aware that same was not carried out on 15 Oc tober
2020. She found the allegations against the third respondent not satisfying the
elements of the offence of insubordination.
The review application
[14] Now before this Court, the applicant’s grounds for the review of the
arbitration award are heavily rested on the award not been reasonable. Firstly, the
second respondent ought to have found that the dismissal was fair in view of the
existence of a reasonable instruction which the third respondent had failed to follow
and this resulted in an undisputed loss. Secondly, she misinterpreted and or misconceived the legal principles and tests related to the determination of the
conflicting versions and relied on Stellenbosch Farmers Winery Group Ltd and Another v Martell et cie and Others
1 in support of its argument. Thirdly, the third
respondent pleaded guilty at the disciplinary hearing where his version was different
to that presented at arbitration and he has admitted that he started mixing manually
on 17 October 2020.
Evaluation
[15] G iven that the instruction to a certain extent was placed in dispute, the nub
of the issue for determination is firstly, what constitutes failure to follow a reasonable
instruction to blend white bread flour with brown bread flour manually on 16 October
2020. Secondly, what constitutes insubordination for having ignored/failed to follow
an instruction issued to all supervisors to blend white bread flour with brown bread flour on 15 October 2020. Two charges came out of this even though the material
placed before the second respondent reveals that Mr Madimatswana conveyed instruction only once, that is, on 15 October 2020 at about 10h00. The applicant’s crafting of the charges creates an impression that at least two instructions were issued over a two-day period whilst the evidence suggests otherwise. Palluci Home
1 2003 (1) SA 11 SCA .
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Depot v Herskowitz and others2 is the leading decision in which insubordination was
unpacked and expanded to include other forms of misconduct in addition to the
refusal to obey an instruction. The Labour Appeal Court held as follows at paragraph
19:
“[19] It is clear from this finding that the Labour Court failed to
appreciate that the refus al 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.9 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. ”
[16] Based on the applicant’s own case as extracted from the part of the
relevant part of the record above, the applicant failed to prove the issuing of the latter
part of the instruction. To mix the white bread flour with the white bread flour manually a critical step to res tore the quality of the brown bread.
[17] It deserves to be stressed that t he test for review does not entail the
rehearing of the matter by the review Court as if it was tasked with the role of determining the fairness of the dismissal. The test is well settled, hence the Labour
Appeal Court in Fidelity Cash Management services v CCMA and Others
3 following
2 (2015) 36 ILJ 1511 (LAC) .
3 (2008) 29 ILJ 964 (LAC) .
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the decision in Sidumo and Another v Rustenburg Platinum Mines Ltd and others 4
had this to say at para 98:
“[98] It will often happen that, in assessing the reasonableness or
otherwise of an arbitration award or other decision of a CCMA
commissioner, the Court feels that it would have arrived at a different
decision or finding to that reached by the commissioner. When that happens, the Court will need to remind itself that the task of determining the fairness or otherwise of such a dismissal is in terms of the Act primarily given to the commissioner and that the system would never work if the Court would interfere with every decision or arbitration award of the CCMA simply because it, that is the Court, would have dealt with the matter
differently. Obviously, this does not in any way mean that decisions or
arbitration awards of the CCMA are shielded from the legitimate scrutiny of
the Labour Court on review.”
[18] In Bestel v Astral Operations Ltd5 the Labour Appeal Court went further
regarding the test for review and held as follows at paragraph 18:
“[18] It is important to emphasise, as is exemplified from Carephone,
and in Schwartz, supra, that the ultimate principle upon which a review is
based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.”
[19] The evidence of Mr Madimatswana revealed that he communicated the first
part of the instruction, which was communicated some four hours after the third respondent commenced his shift. In the midst of the crisis, h e saw it necessary to
4 [2007] 12 BLLR 1097 (CC) at paragraph 110 the Constitutional Court confirmed the reasonableness
test as the most acceptable approach in the review of arbitration awards as the review court has to
consider whether the decision reached by the commissioner one that a reasonable decision maker
could not reach?
5 [2011] 2 BLLR 129 (LAC) .
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focus on compiling his reports whilst the losses were happening in the plant and later
attributed the losses to the third respondent. After becoming aware that the other
Production Supervisor, Mr Nxumalo , was not mixing manual ly, he did not take steps
to correct the situation and allowed same to happen in the third respondent’s case.
[20] That the second respondent failed to deal with mutually destructive
versions is immaterial in view of the limited scope of insubordination which relates to
failure to do manual mixing. Based on the material placed before the second
respondent, the existence of the latter point of the instruction could not be proved. Mr
Madimatswana conceded to this in respect of the third respondent.
[21] It does not appear that t he applicant accepted that communication went
wrong this time around as Mr Madimatswana had clearly pointed out that the
Production Supervisors were always following the instructions. It only came out
during cross -examination of Mr Madimatswana that he was more focused on less
pressing issues on the morning of 15 October 2020 and only gave the instruction
some four hours after the shift. Even after getting to know that his instruction was not fully complied with, he did not make an effort to intervene and emphasize the
missing part of the communication of the instruction.
[22] That the third respondent pleaded guilty at the disciplinary hearing as
alluded to in the applicant’s grounds of review, seem to be a newly introduced issue
at the level of the review application as none of the applicant’s witnesses had
testified on this i t. The disciplinary hearing chairperson notes are inscribed on the
template which required the chairperson to complete by making a mark on whether the third respondent pleaded “guilty ” or “innocent ”. The chairperson placed an “X”
next to “ innocent ”. This certainly takes the applicant’s review of the arbitration award
nowhere as the third respondent was not afforded an opportunity to challenge this
and the second respondent was not called upon to determine the dispute on this
footing.
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[23] It is of utmost importance that in terms of section 192(2) of the Labour
Relations Act6 (LRA) the employer must prove the fairness of the dismissal once the
existence of dismissal is established. The long- standing principle in interpretation of
this piece of legislation in Marapula v Consteen (Pty) Ltd7 still serve s as a helpful
instrument when coming to the employer’s discharge of its onus to establish the
fairness of the dismissal. The Court held as follows at paragraph 33:
“The onus is on the employer to prove that the dismissal was fair (s 192 of
the LRA) on a preponderance of probability. In my opinion, the onus is
discharged if the employer can show by credible evidence that its version is
the more probable and acceptable version. The credibility of witnesses and
the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single
investigation into the acceptability or otherwise of the employer's version, an investigation where questions of demeanour and impression are measured against the content of the witnesses' evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts which cannot be disputed and against
the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and
that therefore the other version is false and may be rejected with safety”.
[24] I find it difficult not to align myself with the above dicta . With the totality of
factors placed before the second respondent being taken into account , the second
respondent cannot be seen as having committed an error of fact or law that calls for
the review of the arbitration award. The applicant has failed to discharge its onus as
set out in section 192(2) of the LRA. The arbitrator’s finding based on variety of
factors including the incoherent statements from the applicant’s witnesses cannot be
faulted. The decision made in her award is within the standards of reasonableness.
On this note, the application for the review of the arbitration award is bound to fail.
6 No. 66 of 1995, as amended.
7 (1999) 20 ILJ 1837 (LC) .
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[25] Regarding costs, it will not be in the interest of law and fairness to make a
cost order in circumstances where the employment relationship is facing restoration
in view of a reinstatement order.
[26] In the premise the following order is therefore made:
Order
1. The application for review of the arbitration award under case
number GAJB1565- 21 is dismissed.
2. There is no order as to costs.
MM Baloyi
Acting Judge of the Labour Court of South Africa
Appearances :
For the applicant : Ms L Macfarlane of Norton Rose Fullbright SA Inc
For the third respondent: Mr S K hanya of Ismael and Dahya Attorneys