THE LABOUR COURT OF SOUTH AFRICA , GQEBERHA
Not Reportable
Case No: PR201/22
In the matter between:
MABOKO VICTOR HLUN GWANE Applicant
and
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT First Respondent
THE DIRECTOR -GENERAL: JUSTICE
AND CONSTITU TIONAL DEVELOPMENT Second Respondent
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL (GPSS BC) Third Respondent
THABO MARUPING N.O. Fourth Respondent
Heard: 29 January 2025
Delivered: 4 February 2025
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This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date for hand -down is deemed to be 4 February
2025.
JUDGMENT
MAKHURA , J
[1] In these opposed motion proceedings brought in terms of section 145 of the
Labour Relations Act1 (LRA) , the applicant seeks to review and set aside the
arbitration award which found his dismissal by the first respondent (respondent)
to be procedurally and substantively fair. He further asks the Court to reinstate
him retrospectively from 13 September 2021, being the date of his dismissal , or
to re mit the unfair dismissal dispute to the Government Public Service Sector
Bargaining Council (GPSSBC) for arbitration de novo .
[2] The applicant was charged with and dismissed for the following allegation of
misconduct:
‘On or about 31 January 2020, at or near Kimberly Regional Office , you were
instructed by the Regional Head that you report on or before 05 February 2020,
to your head -quarters at the De Aar Magistrates Office where you are appointed
as a Financial Operations Manager, consequently you failed to comply with
lawful and reasonable instructions, thereby committing the misconduct of “Gross
Insubordination”, as contained in Annexure A of PS CBC Resolution 2 of 1999 as
amended by PS CBC Resolution 1 of 2003, Disciplinary Code and Procedure for
the Public Service .’
[3] The material facts of the unfair dismissal dispute are uncontroversial and largely
common cause . On 19 April 2007, the applicant accepted an offer of employment
with the respondent as a Financial Operations Manager (FOM) : De Aar Cluster.
1 Act 66 of 1995, as amended.
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His employment was effective 1 May 2007. His place of work was at the De Aar
Magistrates Office.
[4] On 18 March 2013, the applicant prepared a memorandum with the following
subject - “Request for the approval to change base as from 01 April 2013 ”. This
memorandum was addressed to the R egional Head Director . The applicant
motivat ed for a request to change the base so that he could work from the
Kimberley Regional Office . The reasons for his request were that his wife was
sick, that she was staying alon e with the children and that his presence in
Kimberley would assist h er with emergency issues. Further, he s tated that this
would assist him to attend to any problems which in turn would prevent stress on
his part.
[5] His req uest to change the base was approved by Rodney Isaacs (Isaacs) in his
capacity as the Regional Head: Northern Cape Region . The approval reads as
follows :
‘This approval is subject to your performance as this must not deter you to be in
your cluster area. Please do discuss with the new director finance on the 1st June
2013. Please take not e that this is not a transfer at all .’ [Own emphasis]
[6] On 6 September 2018, the respondent’s Director: Human Resources , Charlene
Adams (Adams) addressed an email to the applicant recording that he was
appointed to the De Aar Cluster . Adams requested the applicant to provide her
with a copy of the letter in respect of his request for a “permanent transfer ” from
De Aar to Kimberley . The applicant was further informed that his appointment,
together with three others, was raised and flagged by the auditors .
[7] On 7 September 2018 , the applicant responded to Adams’ email . He stated that
he would obtain the letter regarding his transfer. The applicant also requested the
auditors’ findings for the past five years. In reply on the same day, Adams
clarified that there were no findings by the auditors but that the human resource
division (HR) was request ed by the auditors why h e was working from Kimberley
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when h is letter of appointment indicated that he was appointed for the De Aar
Cluster based in De Aar . Adams further explained that HR was directed by
National Office to address all HR related matters and that they are correcting
matters such as his where an employee was appointed for a position in one area
but was carrying out his duties from another area or office. The applicant was
also reminded that this issue was previously discussed with him. Adams also
informed the applicant that she had found the letter or memorandum of 13 March
2013 which dealt with his request for ‘ transfer ’. The applicant then requested a
copy of th e memorandum.
[8] On 28 November 20 18, the Acting Regional Head: Northern Cape, De-Alto
Plaatjies (Plaatjies), addressed a letter to the applicant. The letter recorded that
the applicant was appointed as FOM: De Aar Cluster, based in De Aar
Magistrates Office . It further recorded that the approval in March 2013 for him to
work from Kimberley office was not a transfer , and that there was no record of
approval of a permanent transfer to Kimberley . The applicant was:
‘requested to indicate and/or provide a detailed motivation specifically based on
operational considerations within [his] scope of Financial Operations Manager:
De Aar Cluster as to why [he] should not be compelled to return to the office
where [he was] appointed.’
[9] The applicant was given until 6 December 2018 to submit the motivation. On 6
December 2018, the applicant again requested a copy of the memorandum of 13
March 2013 . The memorandum was provided to him on 12 December 2018. The
applicant was informed that management would finalise the matter on 14
December 2018. He did not comply with the request to provide representations
or motivation as to why he should not return to De Aar.
[10] On 25 January 2019, Plaatjies sent a letter to the applicant dated 18 January
2019 . The letter noted the applicant’s failure to substantively respond to the
request f or motivati on why he should not return to De Aar, and informed him t hat
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he was required to report at the De Aar Magistrates Office by no later than 1
February 2019.
[11] In response, the applicant questioned the content of the memorandum which
approv ed his move to Kimberley . He question ed what in his view were
discrepancies in the handwriting notes of Issacs on the memorandum and
requested to be furnished with the original memorandum . He then argue d that
the rules of natural justice require that both sides be heard before any decision is
taken, and that the fact that he performed his work from Kimberley had never
hampered his pe rformance . He concluded that:
‘Further be informed that it won’t be possible for me to report at De Aar on the
date mentioned in your letter, also take note that I have handed over the matter
to my union and lawyer.’
[12] On 4 February 2019, the applicant lodged a grievance . He raised the same
alleged discrepancies in Isaacs’ handwriting on the memorandum , questioned
why the respondent was only raising the issue at that stage and not prior and
argued again that his performance had not been affected by his move to
Kimberley . The applicant continu ed:
‘It is impossible for me to report to De Aar magistrate office on the 1st February
2019 as instructed due to budgetary constraints.
My family now resides in Kimberley and I have a bonded property and on top of
that I have also two children at the University plus other debts, so I don’t have a
budget to rent another place in De Aar.
Also take note that I have a sickling wife and alone with the children that is why I
requested to change base so that I can attend to any problems and prevent
stress which may lead to poor performance.’
[13] The outcome sought was that he should be allowed to continue working from
Kimberley because this had not affected his performance.
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[14] The applicant held a meeting with Ronel de Klerk (De Klerk), the Director:
Finance, on 4 February 2019 . On 7 February 2019, De Klerk addressed a letter
to the applicant advising him that she would not approve the use of a government
vehicle to transport him to his headquarters or place of work no r approve any
accom modation and meals at his headquarters or cluster offices within a 300km
return trip radius . In response, the applicant responded that considering his
circumstances, it would be impossible for him to fulfil his dutie s. He argued that
his grievance suspends the respondent’s decision for him to report to De Aar
Magistrates Office , his place of work.
[15] On 4 September 2019, Plaatjies addressed a letter to the applicant informing him
that his grievance was finalised. The applicant was informed that the finding s
were that his placement at Kimberley was not approved as a perma nent transfer,
that this was a temporary transfer approval based on humanitarian grounds at
the time and that there was no substance in his grievance. Further, h e was
informed that his continued placement in Kimberley was “not in the operational
and financial interest” of the respondent . In conclusion, the applicant w as
requested to report at De Aar Magistrates Office with effect from 1 December
2019.
[16] The applicant did not report at the De Aar Magistrates Office as requested. On 3
December 2019, the respondent addressed another letter to the applicant ,
recording that h e had not reported at De Aar as instructed . The respondent
however decided to extend the period for him to report at De Aar. Accordingly,
the applicant was requested to report at De Aar on or before 13 January 2020
and was warn ed that “failure to comply may leave the Department with no option
but to consider further action” . The applicant failed to adhere to the request .
[17] On 31 January 2020, the respondent issued a letter of alleged misconduct
against the applicant. The letter recorded that the applicant failed or refused to
report for duty at his headquarters with effect from 13 January 2020 per the letter
dated 3 December 2019 , that this was viewed by the respondent in a serious
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light as it was regarded as a failure to adhere to a legitimate instruction . He was
requested to provide written reasons why he should not be charged and/or
suspended. The applicant responded on 7 February 2020. H is response was:
‘It is impo ssible for me to relocate to De Aar as instructed considering that my
family now resides in Kimberley since 2013, in order to have a stable family I had
to look for accommodation and school for my kids. I have a bonded property and
on top of that also two children at the University plus other debts , so such sudden
relocation is detrimental not only to my family but also financially as I don’t have
a budget to rent another place in De Aar.
I am appointed as Financial Oper ations Manager in the De Aar Cluster whereby I
am serving thirteen offices, six in close proximity of Kimberley . I applied for
relocation of base from De Aar to Kimberley and it was approved by the Regional
Head.
There was no meaningful consultation on the matter considering that I have been
based in Kimberley on an approved application for more than six years .’
[18] The applicant was charged on 1 July 2020 and called to attend a disciplinary
hearing on 17 July 2020. The hearing was concluded in December 2020 . The
applicant was dismissed on 12 February 2021. His appeal was dismissed on 13
September 2021. He referred an unfair dismissal dispute to the GPSSBC .
[19] The arbitration proceedings were held between March and June 2022 . At
arbitration, the respondent called Isaacs, De Klerk and Adams, all of whom
participated in the attempts to get the applicant to move back to his place of work
in De Aar per his appointment letter and/ or contract of employment. The
applicant testified and called another witness , Molefi Ndweni .
[20] The evidence led by the witnesses is not different to the summary of the material
facts above. The respondent’s material evidence was that the applicant was
appointed t o work at De Aar Cluster, based in De Aar Magistrates Office, that in
March 2013, he requested, for reasons relating to his wife who was allegedly
sick, to be based in Kimberley, that his request was approved based on
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humanitarian grounds and that the approval for him work in Kimberley was
temporary and did not amount to a transfer. Further, the respondent’s evidence
was that despite numerous requests, the applicant refused to report for duty at
De Aar.
[21] The applicant ’s case was that he was permanently transferred to Kimberley and
that the respondent was required to c onsult him before it takes the decision to
transfer him back to De Aar . Further, the applicant expressed that it was
impossible for hi m to move back to De Aar because his performance was not
affected by his placement in Kimberley , he had purchased a house in Kimberley
in 2019 which he was paying a bond for and he did not have the budget to move
to De Aar and rent another house. The applicant also repeated the reasons he
used in 2013, that his wife was sick and they ha d two children.
[22] On 8 July 2022, the commissioner dismissed the applicant’s unfair dismissal
claim. The applicant takes no issue with the procedural fairness findings in these
proceedings . He challenges the decision that his dismissal was substantively fair.
In summary, the challenge against the award is that he is not guilty of the
misconduct of insubordination and that the commissioner failed to take his
personal circumstances into account when considering sanction. Mr Van den
Berg, appearing for the applicant, submitted that even if the applicant is guilty,
the insubordination is not gross or sufficiently serious to warrant a sanction of
dismissal.
[23] Insubordination is defined as a wilful and serious refusal to obey a lawful and
reasonable instruction or where the conduct of an employee poses a deliberate
or wilful and serious challenge to the employer's authority.2 It is trite that n ot
every case of insubordination automatically lea ds to dismissal.3 Therefore,
whether the act of insubordination is serious or gross to warrant a sanction of
2 Palluci Home Depot (Pty) Ltd v Herskowitz and others (2015) 36 ILJ 1511 (LAC) ; [2015] 5 BLLR 484
(LAC) (Palluci) at para 19; Masscash (Pty) Ltd t/a Jumbo Cash & Carry v Mtsotsoyi and others (2023) 44
ILJ 162 (LAC) ; [2022] ZALAC 117 (Masscash) at para 27.
3 Wasteman Group v SAMWU [2012] ZALAC 10; [2012] 8 BLLR 778 (LAC) ; Palluci at para 22.
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dismissal is a question of fact, to be established and determined from the facts
and evidence of each case.
[24] The evidence overwhelmingly established that the applicant was guilty of
insubordination. This insubordination was, based on the documentary and oral
evidence, persistent and gross. The applicant at times ignored the respondent’s
letters. However, despite the respondent’s overly sympathetic approach, the
applicant was undeterred in his defiance, raising unnecessarily technical issues
which delayed the finalisation of th e issue by more than one year.
[25] The issue of a possible move back to De Aar was clearly within the
contemplation of the applicant as early as September 2018 (if not at the time
when he requested to work from Kimberley) when the respondent enquired into
the circumstances of his apparent indefinite or unexplained continued work from
Kimberley. The respondent made attempts in November and December 2018 f or
the applicant to motivate why he should not move back to De Aar. These
attem pts were in vain.
[26] On 25 January 2019, the respondent issued an instruction for the applicant to
move to his headquarters and report at De A ar on 1 February 2019 . The
applicant’s response was a suggestion that the respondent ha d manufactured
the memorandum of 13 March 2013 which approved his move to Kimberley.
[27] The applicant later lodged a grievance claiming that the move back to De Aar
was impossible due to his commitments , budgetary constraints , sick wife ,
children and bond house . The applicant had no regard to the operational and
financial challenges that were brought about by his continued stay in Kimberley .
He was specifically informed that his continued stay in Kimberley was not in the
operational and financial interest of the respondent. His continued stay in
Kimberley required the respondent to pay for his transportation to De Aar where
he is required to be in terms of his contract of employment , and to pay for his
accommodation and meals. When the respondent refused to cover these
wasteful expenses in February 2019, the applicant said that he would not be able
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to carry out his duties. The applicant expected the respondent to continue
incurring all these expenses for him to report for duty in accordance with the
terms of his contract of employment.
[28] The grievance was lodged simply to delay his move back to De Aar. When the
grievance was dismissed, the respondent was still in my view overly sympathetic
when it decided to give the applicant three months to report for duty in De Aar.
This was again ignored by the applicant. Once again, without any request from
him, the respondent extended the period until 13 January 2020 to comply with its
request . Once again, the request or instruction was ignored and disregarded .
[29] The respondent issued a letter of misconduct against the applicant and invited
him to make written representations why he should not be charged. The
applicant responded on 7 February 2020. At this stage, the insubordination had
already happened on 1 December 2019 and 13 January 2020. This was after he
was given three months from September 2019 to 1 December 20 19 and another
month and half to 13 January 2020 .
[30] The above facts established a wilful , deliberate and persistent defiance of a
reasonable and lawful instruction. The applicant was a Financial Operations
Manager. The operational and financial difficulties were explained to him and as
a manager, with full knowledge that he was appointed to render services in De
Aar Magistrates Office and that his move to Kimberley was temporary, the
respondent should not have been placed in the position that it was placed by the
applicant’s defiance. The applicant was aware that his temporary relocation did
not even appear on the respondent ’s official record as it was not a transfer .
[31] One of the applicant’s main criticisms of the award is that the commissioner d id
not engage in an analysis of the evidence to show how he arrived at his ultimate
decision that the dismissal was fair. The commissioner had comprehensively
summarised the evidence of each witness. He has analysed the evidence though
it would appear not to the satisfaction of the applicant. In my view, t he applicant’ s
criticism ignores the fact that the review test is outcome based. Regardless, the
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applicant did not show how the commissioner’s failure to engage in an analysis
of the evidence as suggested would have changed the ultimate decision that the
dismissal was fair. In Masscash , the Labour Appeal Court (LAC), dealt with a
similar argument as follows:
‘In the context of the established facts that Mr Mtsotsoyi wilfully and persistently
defied a reasonable instruction of his employer over a period spanning some six
weeks, the Labour Court’s conclusion that Mr Mtsotsoyi complied with the
instruction and was not grossly insubordinate is clearly wrong.
The Labour Court furthermore held that in concluding that the dismissal was an
appropriate sanction, the arbitrator only had regard to the fact that Mr Mtsotsoyi
did not accept his wrongdoing and show any remorse and ignored other relevant
factors such as that Mr Mtsotsoyi had a clean record. While the arbitrator does
not mention this fact in the award, it is not clear from the Labour Court’s
reasoning how this omission would have changed the outcome of the arbitration
award, having regard to the totality of the evidence that served before the
arbitrator. ’4
[32] The record that served before the commissioner establishes that the
insubordination was gross . The applicant had persisted with this defiance for an
unreasonably long period and had sufficient time to reconsider his decision . His
seniority , the nature of the position , the failure to show remorse further
heightened and aggravated the misconduct and overshadowed his clean record
and l ong service .
[33] The commissioner had identified the issue, considered the evidence and
determined the issue that was before him. Whatever defects the applicant
alleged, he has failed to show that they had a distorting effect on the
commissioner’s ultimate decision. Applying the trite and stringent test for review
of arbitration awards5, I am not persuaded that the applica nt has made out a
4 Masscash at paras 4 1 - 42.
5 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (Sidumo) [2007] ZACC 22; ( 2007) 28
ILJ 2405 (CC) at para 110 ; Fidelity Cash Management Service v Commission for Conciliation, Mediation
and Arbitration and others (2008) 29 ILJ 964 (LAC) ; [2008] 3 BLLR 197 (LAC) at para 100 ; Herholdt v
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case to upset the award. The commissioner’s decision falls within the band of
reasonableness . The review application stands to be dismissed . The respondent
did not press the issue of costs . I will therefore not award costs.
[34] In the premises, the following order is made :
Order
1. The review application is dismissed .
2. There is no order as to costs.
____________________
M. Makhura
Judge of the Labour Court of South Africa
Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA); [2013] 11
BLLR 1074 (SCA) at para 25; Head of Department of Education v Mofokeng and Others (2015) 36 ILJ
2802 (LAC); [2015] 1 BLLR 50 (LAC) at paras 31 – 33.
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Appearances:
For the Applicant : Mr JP van den Berg
Instructed by : Haarhoffs Incorporated
For the 1st & 2nd Respondent s: Ms MP Olivier of The State Attorney, Kimberley