THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR380/24
In the matter between:
PHUMUDZO RAKGOGO Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL (SALGBC) First Respondent
SEELE MOKWENA Second Respondent
COLLINS CHABANE LOCAL MUNICIPALITY Third Respondent
Heard: 12 March 2025
Delivered: 31 July 2025
JUDGMENT
MAFA-CHALI, AJ
2
Introduction
[1] This is an application brought by the Appli cant, Phumudzo Rakgogo in terms
of section 145 of the Labour Relations Act 1 (LRA) to review and set aside an
arbitration award issued by the Second Respondent (the arbitrator) under the
auspices of the Third Respondent , the South African Local Government Bargaining
Council (SALGBC), in case no LDP102311 issued on 1 February 2024. The
Applicant prayed that the matter be remitted back to the Third Respondent to be
started de novo under a different arbitrator/ commissioner other than the Second
Respondent; and to reinstate the Applicant to her work under similar terms and
conditions with effect from 19 October 2023 with all benefits, including back salary
pending the finalisation of the arbitration proceedings de novo.
[2] In terms of the award, the arbitrator found that the dismissal of the Applicant
was substantively fair and dismissed her claim. The Applicant furthermore prayed for
costs if the application is opposed.
[3] The review application is opposed by the Third Respondent with a prayer to
dismiss the application with costs.
Background
[4] The Applicant was employed by the Third Respondent as a supply chain
clerk since 01 July 2021, working in procurement reporting to the manager in the
finance department. Her manager reported to the chief f inancial officer, and the chief
financial officer reported to the municipal manager.
[5] The contract of employment the Applicant entered into is between her and
the then acting municipal manager Shilenge Risenga Richard on 1 July 2021.
[6] It is common cause that around September 2022, the municipal manager
initiated a transfer of employees including the Applicant in the f inance supply chain
1 Act 66 of 1995, as amended.
3
management and budget and treasury sections. The affected employees were called
for a consultation meeting by management, but the Applicant did not attend as she
did not report for work that day.
[7] On 4 November 2022, another meeting was called to consult with the
Applicant and thereafter her transfer was implemented. According to the Applicant,
she was instructed to transfer, and when she asked why she was reshuffled, she
was told that there were allegations against the employees for fraud and/or collusion
with the service providers and /or corruption in her division. The Applicant did not
comply with the written transfer instruction dated 14 April 2023.
[8] The A pplicant wrote a letter to the municipal m anager on 2 May 2023
indicating that she did not want to be transferred because there was a case of sexual
harassment she referred t o the Labour Court against the municipal m anager. On 18
May 2023 the Applicant was again instructed by the municipal manager in writing to
immediately report at the unit she was transferred to and to provide an explanation
why she failed to report at that unit. On 22 May 2023, the Applicant responded to the
municipal manager’s letter of 18 May 2023 and referred to the contents of her initial
letter of 2 May 2023 with reasons for her non- compliance with the transfer
instruction.
[9] The Applicant told the municipal m anager that her transfer was not part of
her employment contract and she could not be transferred to wherever he liked. She
further told the municipal m anager that she was not involved in acts of fraudulent or
corrupt or collusion activities and it must b e her immediate line manager or the chief
financial officer who could reshuffle her and as such she views her reshuffling as
baseless and illegal.
[10] It is common cause that the Applicant refused to be transferred. She was
charged for insubordination misconduct and attended a disciplinary hearing. A t the
charged for insubordination misconduct and attended a disciplinary hearing. A t the
disciplinary hearing she was found guilty for insubordination and subsequently
dismissed on 19 December 2023.
4
[11] The Applicant then referred a dispute of unfair dismissal to the First
Respondent, which was heard before the Second Respondent who issued an
arbitration award on 1 February 2024, finding that the Applicant’s dismiss al was
substantively fair.
Arbitration proceedings and award
[12] The arbitrator in paragraph six of his award stated that from the evidence,
the Applicant did not dispute that she did not comply with the instruction issued to
her in writing by the municipal manager to report at expenditure section of the
finance department on 1 May 2023; and that the instruction followed representations
she made why she could not adhere to the instruction.
[13] The arbitrator concluded:
‘I am of the view that if the transfer of the whole suppl y chain staff
compliment was for allegations of soliciting bribes from service providers, the
respondent would have a reasonable justification to remove the employees
form that unit to as a risk management measure. This is even so if the
respondent did not have evidence that implicated specific employees in the
unit. There is no evidence to suggest causal nexus between the transfer and
the applicant’s sexual harassment case which she referred against the
municipal manager. That probability appears even remote considering that
about fifteen employees were transferred, and the applicant was the only
one who found a reason not to be transferable’.
[14] The arbitrator further found that:
‘the Municipal Manager, being its accounting officer, is the respondent’s
most senior manager and is not only obliged to make decisions to protect the
interest of the municipality but was also entrusted with the authority to
enforce that decision. The arbitrator reasoned that he found nothing unlawful
or unreasonable about the decision. In addition to the above, the applicant’s
contention that the staff regulation made provision for an affected employee
to give consent to the transfer, was read selectively, in isolation to the whole
to give consent to the transfer, was read selectively, in isolation to the whole
provision related to transfer of officials and consequently, is incorrect.’
5
[15] The arbitrator found the Applicant’s conduct a sheer defiance as if she was
not happy with the instruction which he viewed it as an administrative action. He
further held that the Applicant had a recourse to challenge it through the grievance
procedure or approaching the Council for resolution, and the fact that the Applicant
continued to report elsewhere other than where she was instructed to report from the
date of the instruction to date of her dismissal demonstrates that the defiance was
deliberate and persistent.
[16] Regarding the sanction, the arbitrator reasoned that in the circumstances,
contrary to the Applicant’s contention, he was cognisant of the corrective and
progressive nature of discipline and that a corrective action must fit the
transgression, that the misconduct of the Applicant was of a serious nature,
exacerbated by her defiance of the authority of the most senior manager of the
respondent, demonstration of lack of remorse in praying reinstatement to the same
positon from which she was transferred, he found the dismissal sanction to be
appropriate.
Grounds of review
[17] The Applicant’s first ground of review is that the municipal m anager did not
lead any evidence at the arbitration hearing, whereas the Third Respondent alleged
that she disrespected the municipal manager or showed insubordination towards the
municipal manager.
[18] The second ground of review is that the arbitrator relied on the inadmissible
evidence of the labour relations officer of the Third Respondent who was the only
witness, whereas the labour relations officer was not the one whose instruction she
allegedly refused to carry out.
[19] The third ground of review is that the award is not consistent with the
evidence tendered.
6
[20] The last ground of review is that the arbitrator ignored the glaring
improbabilities and contradictions in the evidence of the witnesses of the Third
Respondent.
Evaluation
[21] The test for review is fairly settled. The principal enquiry is whether the
arbitration award sought to be reviewed, can be said to fall within a range of
reasonableness.
[22] In South African Municipal Workers Union obo Mosomo v Greater Tubatse
Local Municipality
2,it was held:
‘The test that the Labour Court is required to apply in a review of an
arbitrator’s award is this: Is the decision reached by the commissioner one
that a reasonable decision- maker could not reach?” To maintain the
distinction between review and appeal, an award of an arbitrator will only be
set aside if both the reasons and the result are unreasonable. In determining
whether the result of an arbitrator’s award is unreasonable, the Labour Court
must broadly evaluate the merits of the dispute and consider whether, if the
arbitrator’s reasoning is found to be unreasonable, the result is,
nevertheless, capable of justification for reasons other than those given by
the arbitrator. The result will, however, be unreasonable if it is entirely
disconnected with the evidence, unsupported by any evidence and involves
speculation by the arbitrator.’
[23] The A pplicant challenged the arbitrator ’s award on grounds, that the
municipal manager did not lead any evidence at the arbitration hearing, to show that
the Applicant disrespected him or showed insubordinatio n towards him, that the
arbitrator relied on the inadmissible evidence of the labour relations officer of the
Third Respondent who was the only witness, whereas the labour relations officer
was not the one whose instruction she allegedly refused to carry out, and lastly that
the award is not consistent with the evidence led, as the arbitrator ignored the glaring
2 (JA 64/2019) 2020 JDR 2826 (LAC) at para 27.
7
improbabilities and contradictions in the evidence of the witnesses of the Third
Respondent.
[24] The Labour Appeal Court (LAC) in Fidelity Cash Management Services v
CCMA & Others3 (Fidelity Cash) held that:
‘It seems to me that even if there may have been a debate under Carephone
and prior to Sidumo on whether a commissioner’s decision for which he or
she has given bad reasons could be said to be justifiable if there were other
reasons based on the record before him or her which he or she did not
articulate but which could sustain the decision which he or she made, there
can be no doubt now under Sidumo that the reasonableness or otherwise of
a commissioner’s decision does not depend – at least not solely – upon the
reasons that the commissioner gives for the decision. In many cases the
reasons which the commissioner gives for his decision, finding or award will
play a role in the subsequent assessment of whether or not such decision or
finding is one that a reasonable decision- maker could or could not reach.
However, other reasons upon which the commissioner did not rely to support
his or her decision or finding but which can render the decision reasonable
or unreasonable can be taken into account. This would clearly be the case
where he commissioner gives reasons A, B and C in his award but, when
one looks at the evidence and other material that was legitimately before him
or her, one finds that there were reasons D, E. and F upon which he did not
reply but could have relied which are enough to sustain the decision.’
[25] The LAC in Fidelity Cash
4 concluded that:
‘Whether or not the arbitrator award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively with due regard
to all the evidence that was before the commissioner and what the issues
were that were before him or her. There is no reason w ay an arbitration
award or finding or decision that, viewed objectively, is reasonable should he
award or finding or decision that, viewed objectively, is reasonable should he
held to be unreasonable and set aside simply because the commissioner
3 [2008] 3 BLLR 197 (LAC) at para 102.
4 Id at para 103.
8
failed to identify good reasons that existed which could demonstrate the
reasonableness of that decision or finding or arbitration award.’
[26] The Supreme Court of Appeal (SCA) in Herholdt v Nedbank Ltd & Another 5
(Herholdt) concluded as follows:
‘In summary, the position regarding the review of CCMA awards is thi s: A
review of a CCMA award is permissible if the defect in the proceedings falls
within one of the grounds in s 145 (2) (a) of the LRA. 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
material that was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached to the particular facts, are not in and of
themselves sufficient for an award to be set aside but are only of
consequence if their effect is to render the outcome unreasonable.’
[27] I will deal with the two first grounds of review together as they are
intertwined.
[28] The Applicant submitted that the municipal manager did not lead evidence
during the arbitration proceedings to show that the Applicant disrespected and
showed insubordination towards him.
[29] The Applicant was dismissed for gross insubordination in that she failed
and/or refused to take the instructions of the municipal manager . During the
arbitration proceedings, the Third Respondent called one witness, Hlulani Cecil
Mabunda, the labour relations officer who testified that the municipal m anager
initiated the transfer of employees in the supply chain management unit and
instructed the chief financial officer to do consultations in October 2022, which was
done by the management team with the affected employees on 21 October 2022.
5 (2013) 34 ILJ 2795 (SCA) at para 25.
9
[30] However, the Applicant was consulted in a separate meeting on 4 November
2022, as she was not in attendance in the initial consultation meeting held with other
employees. The witness further testified that the transfer was effected in terms of the
Third Respondent’s staff provisioning policy, staff regulation and employee’s contract
of employment.
[31] The record of the arbitration proceedings further reflects the testimony of the
Third Respondent with reference to the minutes of the consultation meeting with the
Applicant as a follow -up meeting held with other employees on 21 October 2022,
with sub stantiated operational reasons given by the m unicipal manager, further
reference to the policy giving the municipal manager such authority to transfer
employees, as well as the benefits that would accrue to the employees as a result of
those transfers. This witness testified that he was also present in the consultation
meetings when the municipal manager made presentations to the affected
employees.
[32] To this extent there was a concession by the Applicant in her testimony
during the arbitration proceedings according to the record that she refused to take
the instructions from the municipal m anager to be transferred to another unit twice
and even in writing giving various reasons for such refusal.
[33] Firstly, according to her, there was a case of sexual harassment she referred
to the Labour Court against the municipal m anager. Secondly, as the municipal
manager told her that there were employees in her unit who solicited bribes from the
service providers and according to her the municipal manager should have dealt with
those employees who committed the alleged misconduct. Thirdly , she was not
consulted regarding the transfer. Lastly , that her transfer was not part of her
employment contract and she could not be transferred to wherever the municipal
manager liked.
[34] The record of the arbitration proceedings indicates that the Third
manager liked.
[34] The record of the arbitration proceedings indicates that the Third
Respondent’s witness presented evidence of the Staff Provisioning Policy,
specifically clause10.13 which reads as follows:
10
‘The Municipal Manager, as head of the administration, have authority to
transfer, or rotate any municipal employee to any equivalent post for
operational requirements of the municipality.’
The witness presented evidence of the Applicant’s contract of employment she
signed on 1 July 2021, and specifically clause s 4.3 and 7.3. Clause 4.3 thereof
states that:
‘The employer, in accordance with the operational requirements, and after
consultation with the employee, may place or transfer her or him to other
geographical areas.’
Clause 7.3 of the same contract reads:
‘In accordance with operational requirements, and after consultation with the
employee, the employer may require the employee to perform other work for
which she or he is qualified or capable.’
[35] The evidence of the labour relations officer cannot be regarded as hearsay
evidence at all. This argument is misplaced. His evidence was never that he was told
by the municipal manager that the Applicant refused to take an instruction by the
municipal manager. It is in writing by the Applicant in her letters that she consistently
refused to take an instruction by the municipal manager and in her letters, she gave
reasons why she refused to comply with the instruction of transfer. In anyway.
[36] It became clear at the arbitration hearing that there was no dispute of fact
that the Applicant was given an instruction by the municipal manager and she did not
comply with it . There was no need for the municipal manager to be called as a
witness to come to testify on a common cause issue. It can therefore not be said that
the arbitrator accepted inadmissible hearsay evidence in this matter as the principles
of hearsay evidence are not applicable here.
[37] I will also deal now with the third and fourth grounds of review together as
well as they are also very closely related.
[38] The Applicant contended that the job she was transferred to perform was not
[38] The Applicant contended that the job she was transferred to perform was not
within her job description. It is immaterial that the in structions must fall within the job
11
description of the Applicant. What is critical is whether the instruction is reasonable
and lawful.
[39] Most employees are appointed in a specific position which contains a
description of their duties. It is, however, difficult, or almost impossible, to list and
specify all the duties of an employee. It is at this point where an employee will
usually refuse an instruction in defence that the type of work he/she is instructed to
perform, is not contained in their job des cription or that it constitutes a unilateral
change in their terms and conditions of employment. This defence will, however, not
always hold water.
[40] In A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA & O thers
6 (Mauchle),
the employees were normally operating one machine. Due to an urgent order, the
employer instructed the employees to operate two other machines to dispose of the
urgent order. The employees refused the instruction in that they were appointed to
operate only one machine and that this instruction constitutes a unilateral change of
the terms and conditions of their employment contracts.
[41] The Court noted the following:
‘On those facts, it was not a term of the contract of employment that the
applicants would operate only one machine. A description of the work to be
performed as that of “operator” should not, in my view, be construed
inflexibly provided that the fundamental nature of the work be performed is
not altered.” (Wallis Labour and Employment Law para 45 at 7 -9). I agree
with the view expressed by the learned author at 7- 23 n9 that employees do
not have a vested right to preserve their working obligations completely
unchanged from the moment when they first begin work. It is only if changes
are so dramatic as to amount to a requirement that the employee undertakes
an entirely different job that there is a right to refuse to do the job in the
required manner.’
7
6 [1995] 4 BLLR 11 (LAC).
7 Id at p 18.
12
[42] In addition to the above case, it was also emphasised in National Union of
Metalworkers of SA on behalf of Members v Lumex Clipsal (Pty) Ltd8 that as long as
the instruction given to perform work did not alter the nature of an employees’ work
to such a degree that it was no longer work that the employees had agreed to
perform under the terms of their contracts, it will constitute a reasonable instruction.
The court further s tated that if the nature of an employee’s work is changed to a
large degree, it will amount to a unilateral change in terms and conditions of the
employment contract.
A reasonable instruction depends on when it falls outside the employee’s job
description, namely: the terms and/or conditions of the employee’s contract; the
nature of the task to be performed; t he circumstances in which the instruction is
given; and the employer’s operational requirements.
[43] In her testimony , the Applicant conceded that she did not agree to her
transfer as it was unreas onable even if provided in the m unicipality staff regulations
merely because she did not understand what the operational requirements meant
She was instructed twice in writing by the municipal m anager to transfer, on 14 April
2023 and again on 18 May 2023 but in both occasions she refused to comply with
the instruction in her letters of 2 May 2023 and 22 May 2023. The tone of the
language used by the Applicant with demands in her response is not an acceptable
one between such a junior employee in the municipality to the municipal manager,
the accounting officer and administrator of the organisation. The Applicant was not
singled out of the other employees in the unit for transfer . The whole unit was
transferred but she was the only one who refused the transfer after the consultation
process.
[44] It is apparent from her response letter of 2 May 2023 that the Applicant had
a legal team that advised her to refuse her transfer due to the labour court sexual
a legal team that advised her to refuse her transfer due to the labour court sexual
harassment case. If that was the advice, she was clearly ill-advised. The letter said:
‘Kindly note that I have been advised by my legal team to write this
correspondence to you regarding my unlawful transfer from my current
position to Expenditure Payroll Clerk. At the outset, I wish to advise that
8 (2001) 22 ILJ 714 (LC).
13
myself and my legal team…. I am advised that it will be unlawful for the
municipality to effect any transfer whilst my case is still being litigated by the
courts.’
This Court really finds no relevance of the pending court litigation and the Applicant’s
transfer. The two are distinguishable processes and her legal team should have
been observant of that and advised her correctly.
[45] It is clear that the Applicant did not agree with the reason the Third
Respondent gave for the transfer regardless of whether it was supported by the
policies and her own contract of employment. She did not raise a defence that she
was perhaps transferred to a position that she was not capable of performing its
tasks nor provided any reasons how the transfer would disadvantage or prejudice
her in any manner. It is clear that the Applicant was to be transferred to the position
of expenditure payroll clerk in another unit but still in the f inance department on the
same salary level , same benefits and conditions of service. Her refusal was not
backed by any valid reasons taking into account that all of her colleagues in the unit
agreed to the transfer after the consultation meeting.
[46] However, it appears clearly from the record of the proceedings t hat there
was a concession by the Applicant that she was given an instruction by the municipal
manager. The Applicant had issues with the person who gave her instructions due to
her sexual harassment case against him and the reasonableness of the transfer. It is
on record that during the arbitration proceedings, the Third Respondent’s witness
presented the minutes of 21 October 2022 and 4 November 2022 respectively for the
consultation meeting with the affected staff and the Applicant , Titled : ‘Minutes.
Transfer rotational staff meeting’.
[47] The meeting of 21 October 2022 excluded the Applicant as she was
consulted alone regarding her transfer on 4 November 2022. This piece of evidence
consulted alone regarding her transfer on 4 November 2022. This piece of evidence
was not challenged by the Applicant during the arbitration proceedings. It does not
need the municipal m anager’s evidence to show that the Applicant refused his
instruction and it amounts to a misconduct.
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[48] The Applicant herself has indicated in writing the reasons she refused to
take the instruction, and the Third Respondent presented the evidence of the labour
relations officer, who was tasked by the Third Respondent to investigate whether the
Applicant’s actions amounted to misconduct, and the labour relations officer testified
during the arbitration hearing to that effect . that his investigations found that the
Applicant refused to comply with the instruction of hen municipal manager and he
recommended that the Applicant be subjected to a disciplinary hearing for
misconduct charges as he found that the Applicant’s transfer w as fair and
reasonable, governed by the Third Respondent’s prescripts.
[49] On the third ground that that the arbitrator ’s reasoning is not consistent with
the evidence tendered and he ignored improbabilities and contradictions in the
evidence of the witnesses of Third Respondent not the witness of the Third
Respondent. The Applicant has not even indicated in details which were those
material contradictions and on which witnesses . For that matter, the Third
Respondent only called one witness during the arbitration hearing, and therefore
there cannot be any contradictions and improbabilities of witnesses of the
Respondent. On that basis, the evaluation of this ground becomes unnecessary.
[50] The Court observed that the arbitrator in the analysis of the evidence
presented by the parties, was alive of the onus that rested on the Third Respondent
to prove the fairness of the dismissal of the Applicant on substantive grounds and he
made findings based on the evidence presented, and found that the evidence of the
Third Respondent was aligned with the Applicant’s evidence that she was issued
with an instruction, which the arbitrator found was a reasonable justification to
remove the employees from the unit as a risk management measure even if the
Third Respondent did not have evidence that implicated specific employees in the
Third Respondent did not have evidence that implicated specific employees in the
unit; and the arbitrator found furthermore that there was no evidence to suggest
causal nexus between the transfer and the Applicant’s sexual harassment case she
referred against the municipal manager.
[51] This Court finds it reasonable that the arbitrator based his findings on the
evidence presented that the municipal manager as the accounting officer is the Third
Respondent’ s most senior manager and is not only obliged to make decisions to
15
protect the interest of the municipality but also entrusted with the authority to enforce
those decisions, and that the Applicant’s view that that the transfer can only be made
with her consent was selectively read in isolation of the provision related to transfer
of officials.
[52] It is apparent that the Applicant’s reasons for refusal to be transferred was
based on her view on how the municipal m anager should have managed the
allegations of certain employees soliciting bribes from the services providers. The
Applicant may not be happy that the Third Respondent has not dealt with the
implicated employees but rather opted to do the transfer, but it is clearly not within
the Applicant’s authority to dictate how the municipal m anager should deal with the
operational issues and it was management’s prerogative to handle the matter in the
manner they deemed it fit.
[53] The totality of the evidence presented showed that the Applicant refused to
obey a lawful and reasonable ins truction and her view that the municipal m anager is
not her direct superior and has no authority to give her instruction is very much
misplaced and has no basis. Section 55 of the Local Government Municipal Systems
Act
9 empowers the municipal m anager with such authority to administer the
municipality as the head of Administration, which includes issuing instructions to
employees at all levels.
[54] The cross-examination of the Third Respondent’s witness did not challenge
the transfer powers or authority of the Municipal Manager in terms of the staff
provisioning policy and the Applicant’s contract of employment but it was rather put
to the witness that an ordinary employee would not understand what operational
requirements means, and that the contract does not explain the process the
employer has to follow in consulting the employees.
[55] The transfer of the municipality employees was furthermore in compliance
with the provisions of the Local Government Municipal Systems Act . Local
with the provisions of the Local Government Municipal Systems Act . Local
Government: Municipal Staff Regulations, specifically clause 25 that the Municipality
9 Act 32 of 2000.
16
may transfer any staff member in the service of that municipality to an equivalent
post in the municipality in the absence of consent by the employee, and such must
be fair taking into cons ideration the operational requirements of the affected
institution, including whether the transfer or staff member will address such
requirements, taking into account written representations of the staff member and
the extent to which the interests and circumstances of the staff member any be fairly
accommodated, salary and other conditions of the staff member may be adversely
affected by the transfer and lastly the staff member may not be demoted, promoted
or transferred in a positon at a level which is lower or higher than staff member’s
current post level. The arbitrator took cognisant of those provisions in his findings.
[56] Regarding the sanction for insubordination, it must be emphasi sed that
Insubordination may be described as resistance to or defiance of authority,
disobedience, refusal or failure to obey reasonable and lawful instructions. The
characteristics present in insubordination would be a wilful, verbal or written refusal
of instructions, wilful disregard and or disrespect of management authority. The
disciplinary sanction will normally depend on the severity of the offence. Every
employee not only has the duty to come to work and be on time, but also the duty to
obey all reasonable and lawful instructions of the employer and to do as he/she is
told, within the parameters of what is accepted as being a reasonable and lawful
instruction.
[57] In TMT Services and Supplies (Pty) Ltd v CCMA and Others 10 the LAC
clarified the issue of when dismissal would be appropriate for acts of insubordination.
The LAC held that the employer’s managerial prerogative to issue instructions to its
employees is a principle that is protected by the misconduct known as
insubordination. This principle ensures that the operational requirements of the
insubordination. This principle ensures that the operational requirements of the
organisation are not weakened by insubordination on the part of employees. The
LAC further held that the foundation of the employer and employee relationship is
premised on the employer’s instructions being followed by the employee and that it is
intolerable that an employer is forced to engage in negotiations regarding day -to-day
organisational arrangements with employees. The LAC stated that the effect of the
10 [2019] 2 BLLR 142 (LAC).
17
employee’s refusal to attend the meeting was to undermine the working relationship
with her manager. The LAC upheld the appeal and confirmed the Commissioner’s
finding that dismissal was fair.
[58] In this instance, the evidence proved that the Applicant deliberately and
intentionally failed or refuse to carry out the instruction in writing twice and she also
continued to sign the attendance registers at her old workplace, and despite the two
letters written with the transfer instruction, she persisted with her refusal. This
misconduct constituted a wilful, deliberate and persistent of the most senior
manager’s instruction by the Applicant and it makes it a serious of fence under the
circumstances because it u ndermines the Respondent’s authority. It is therefore t his
Court’s considered view that the arbitrator’s finding that the Applicant’s conduct was
correctly meted out with a dismissal for this offence as well is a reasonable finding.
This Court fully agrees with the contentions made on behalf of the Third Respondent,
and further adds that the findings and conclusions of the Commissioner on the issue
of the appropriateness of the sanction and the relief granted, are entirely connected
with the evidence that was placed before the arbitrator, thus cannot make the award
reviewable.
[59] This Court has also observed that the arbitrator properly analysed the
appropriateness of the dismissal sanction, took cognisance of the purpose of the
corrective and progressive discipline, the seriousness of the misconduct and that it
paralysed management’s authority as it demonstrated the deliberate and persi stent
defiance of the instruction, and in particular of the most senior manager of the Third
Respondent by continuing to sign the attendance registers in the original unit even
after her transfer, lack of remorse by the Applicant for her conduct an d continued
defiance with her prayer to be reinstated in the same position as a supply chain
clerk.
defiance with her prayer to be reinstated in the same position as a supply chain
clerk.
[60] The arbitrator made a fair and proper assessment of the nature of the
misconduct in question, determined whether, combined with other factors and the
evidence led together with the gross nature of the misconduct. His assessment and
the conclusion reached is that the misconduct in question is of such gross nature
that it attracts the sanction of dismissal as appropriate is a reasonable one that a
18
reasonable arbitrator could have arrived at having been presented with the material
evidence before him.
[61] In the end, t he Commissioner took into account the totality of circumstances
as stated in Sidumo 11, when considering the appropriateness of the sanction of
dismissal in this case . To this end, the sanction of dismissal in this case was
appropriate in considerations of the stated factors under the circumstances. The
gross nature of the Applicant ’s conduct is such that trust and a good working
relationship between her and the Third Respondent , cannot by all accounts be
sustainable. It follows that a dismissal was indeed an appropriate sanction.
[62] In the end however, in the light of the evidence led at the arbitration
proceedings, the egregious nature of the Applicant ’s conduct, and its impact on the
Respondent, the arbit ration award of the arbitrator completely fal ls the bounds of
reasonableness. It is in the light of all of t hese considerations that an order must be
made to confirm the arbitrator’s award that the dismiss al of the Applicant was
substantively fair. The arbitrator has applied his mind to the evidence presented
before him, and I find no irregularity in his award. The arbitrator has arrived at an
outcome that is reasonable under the circumstances.
Costs
[63] In so far as costs are concerned, the rule that costs follow the result does not
apply in labour matters. This Court has a broad discretion in terms of section 162 of
the LRA to make orders for costs according to the requirements of the law and
fairness.
11 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); it was held
at para 78: ‘In approaching the dismissal dispute impartially, a commissioner will take into account the
totality of circumstances. He or she will necessarily take into account the importance of the rule that
had been breached. The commissioner must of course consider the reason the employer imposed the
sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to
the dismissal. There are other factors that will require consideration. For example, the harm caused
by the employee’s conduct, whether additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on the employee and his or her long- service record.
This is not an exhaustive list.’
19
[64] The requirement of law has been interpreted to mean that the costs would
follow the result. In considering fairness, the conduct of the parties should be taken
into account and mala fides , unreasonableness and frivolousness are factors
justifying the imposition of a costs order.
[65] The Court should seek to strike a fair balance between unduly discouraging
parties from approaching the Labour Court to have their disputes dealt with and, on
the other hand, allowing those parties to bring to this Court cases that should not
have been brought to Court in the first place, whether opposed or not.
[66] In my view, this is a case where the interests of justice will be best served by
making no order as to costs.
[67] In the premises, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
Grace Mafa-Chali
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: S Sikhwari SC
Instructed by: M K Mulaudzi Attorneys Inc
For the Third Respondent: G Mohlabi of GSM Mohlabi Incorporated Attorneys