Association of Mineworkers and Construction Workers Union obo Mzamo and Others v Metal and Engineering Industries Bargaining Council and Others (C128/2020) [2025] ZALCCT 111 (11 November 2025)

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[2025] ZALCCT 111
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Association of Mineworkers and Construction Workers Union obo Mzamo and Others v Metal and Engineering Industries Bargaining Council and Others (C128/2020) [2025] ZALCCT 111 (11 November 2025)

THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
No: C128/2020
In
the matter between:
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
WORKERS UNION (AMCU)
obo
MZAMO AND 14
OTHERS

Applicant
and
THE
METAL AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL

First Respondent
GAIL
MCEWAN
N.O.
Second Respondent
SA
STEELWORKS,
A
DIVISION OF SA METAL (PTY)
LTD

Third Respondent
Heard:
26 June 2025
Delivered:
11 November 2025
JUDGMENT
VAN
VOORE, AJ
Introduction
[1]
This
is an application in terms of section 145 of the Labour Relations
Act
[1]
(“the
LRA”). The applicant is the Association of Mineworkers and
Construction Workers Union (“AMCU”) acting
on behalf of
Mr Mzamo Mkhangeli and 14 other members.
[2]
The applicant launched an application to,
inter alia
,
review and set aside an arbitration award of Ms Gail McEwan (“the
commissioner”), the second respondent. The commissioner

presided over arbitration proceedings under the auspices of the Metal
and Engineering Industries Bargaining Council (“the
bargaining
council”), the first respondent.
[3]
The relief sought by the applicant includes
that this Court reviews and sets aside or corrects the commissioner’s
arbitration
award under case number MWEC11939 (the arbitration award)
dated 1 February 2020, substitutes the decision of the commissioner
with
a finding that the dismissal of the individual members is
substantively unfair and that they are retrospectively reinstated
without
any loss of any benefits from the date of their dismissal,
alternatively referring the matter back to the first respondent for a

hearing
de novo
before
a commissioner other than the second respondent.
[4]
The application is opposed by SA
Steelworks, a division of SA Metal (Pty) Ltd, the third respondent.
[5]
The third respondent took disciplinary
action against Mzamo Mkhangeli (Mkhangeli) and 14 other employees who
comprised the Blue
team. A disciplinary hearing was convened on
written notice to the employees. The employees were found guilty of
allegations of
misconduct, including unauthorised absence from work,
breach of company policy and gross insubordination. The employees
were dismissed.
[6]
An alleged dispute was referred to the
bargaining council. Following arbitration proceedings, the
commissioner issued the arbitration
award. In the arbitration award,
the commissioner determined that the dismissal of the 15 employees
who comprised the Blue team
was substantively and procedurally fair.
The arbitration award records the following:
“
[40]
I find on a balance of probabilities that the dismissal of the
fifteen employees in this matter is
fair on procedural and
substantive grounds. Consequently, this case is dismissed.”
[7]
In the arbitration award, the commissioner
further determines,
inter alia
,
the following:
“
(34)
In terms of the contracts of employment for all the employees in this
case there is a clause headed normal
working hours which in summary
confirms a forty-four hour week from a Tuesday to a Monday; there is
a requirement to work continuous
rotating shifts; the manager/
supervisor would advise of their actual working hours and shifts; a
ten percent shift allowance is
included in your weekly wage; the
actual working hours may differ from department to department and is
dictated by the operational
requirements; actual working hours may be
extended beyond the normal working hours due to operational
requirements and objectives
and deadlines. Nothing is stated that
would bind the employer to retain the shift times or cycles. The
introduction of the new
shift roster, in light of the above, is a
work practice and does not constitute terms and conditions of
employment but in terms
of the contract entered into between the
parties is a work practice. No other documents regulating the
relationship such as collective
agreements containing such a
provision was placed before me. No additional terms that can be
implied from the parties’ conduct
or from the custom and
practice in the workplace was placed before me. A shallow attempt was
make a case that because the blue
team had been working the same
shift pattern since 2016 a practice had developed. As such the
employer had the right to change
the practice which they did over an
extended period of time. There was no vested right for the employees
to retain their shift
times in perpetuity.
(35)
In light of the above I find on a balance of probabilities that the
employer was not compelled
to reach agreement with the employees
regarding the introduction of the new shift rosters on 9 January
2019. It was, as stated,
a prudent courtesy to have spent time in
consultation and discussion with the employees and their
representatives. It was not disputed
that there is more than one
union at the employer none of which unions had a recognition
agreement with the employer. It should
never have taken over a year
to introduce the shift changes which after research done, showed that
on a slower rotational shift
there was more rest time for the
employees. The change was also made due to the high injury and high
absenteeism rates. There is
no contractual right for the employees to
work a specified shift in perpetuity. The changing of the shift is a
work practice and
the employer was entitled to have unilaterally
introduced such changes although much consultation and discussions
took place. The
employees were not able to demonstrate that the
changes affect their contractual rights.
(36)
The blue team (all the employees in this case) returned to work on 9
January 2019 and due to
the circumstances prevailing on that day had
not been required to work their scheduled night shift. The blue team
worked the night
shift on 10 January 2019 at which stage, after the
discussions held, the employer had the view that like the other teams
the blue
team would be working on the new shift rosters from 10
January 2019 onwards. The testimony of Mzamo was that the blue team
intended
not to comply with the new rosters and hence were absent on
11 and 12 January 2019 without permission and without notifying the

employer. Their absence was due to a refusal to work the new shifts
as rostered. Such absence was unauthorised and uncommunicated
as is
required by the company policy. Hence the employees were in breach of
the policy of the employer. In the circumstances, the
employees are
found on a balance of probabilities to be guilty of charges 1, 2 and
3.
(37)
The instruction to work the 2019 shift roster was a legal instruction
from the employer, who
gave the employees sufficient time to raise
concerns in this regard. The concerns raised were dealt with and
absurdly included
considerations for other jobs to be worked in their
spare time, which is also contrary to the policies of the employer.
The refusal
to abide that instruction in the workplace practice
change amounts to gross insubordination. This is so given the number
of times
the employees were instructed to work according to the new
rosters effective from 1 January 2019. The employer had also given
all
workers the opportunity to raise any concerns they had with the
change in the shift cycles and those concerns which were raised
had
been addressed. From the data provided on the impact of slower
rotational shifts (which was in operation and is already showing
that
absenteeism and injuries on duty had been significantly reduced) the
change in the shift pattens had been required based on
the
operational requirements of a plant where it was not disputed there
are some dangerous operations over which additional care
needed to be
taken by the workers in such areas. The actions of the employees and
their approach towards the changes being made,
which were lawfully
allowed to be changed for a very valid reason, amount to gross
insubordination. In the circumstances I find
on a balance of
probabilities that all of the employees in this case are guilty of
charges 4 and 5.
(38)
I have found on a balance of probabilities that the shift roster
change amounted to a work practice
over which no agreement with the
employees was required. The blue team who are the employees in this
matter, have been found guilty
of the 5 charges which they
individually faced. In the circumstances I find on a balance of
probabilities that the dismissal of
the employees in this matter is
fair on substantive grounds.
”
[8]
The grounds of review include the
following:
8.1
The commissioner did not properly apply the then-applicable Schedule

8 of the Code of Good Practice in determining,
inter alia
,
whether dismissal is an appropriate sanction;
8.2
The commissioner failed to properly consider length of service and

that a final written warning would have been a more appropriate
sanction as dismissal was too harsh;
8.3
The commissioner did not properly consider the evidence that one

member undertook to work the new shift subject to ‘
the go
ahead from the Union’
;
8.4
The commissioner failed to properly consider that there was no
intimidation
during the attendance of EFF members at the company
premises and placed too much emphasis on such attendance in
determining that
dismissal was an appropriate sanction;
8.5
The commissioner did not properly consider the applicant's closing

argument, as her findings were issued a short time after receiving
the closing argument;
8.6
The commissioner arrived at an unreasonable outcome;
8.7
The commissioner misconceived the nature of the inquiry;
8.8
The commissioner, in the manner in which he dealt with the dispute,

failed to consider the central dispute, which was key to the
determination of the matter. The key issue that needed to be
determined
was whether the individual Applicants were guilty of the
misconduct they had been charged with and had been found guilty by
the
employer;
8.9
The commissioner misconstrued the concept of insubordination;
8.10
The commissioner did not even enquire as to whether the individual
applicants were guilty
of insubordination or gross insubordination. A
reasonable decision-maker in the position of the commissioner would
have been alive
to the difference between insubordination
per se
and gross insubordination, which must give rise to the ultimate
sanction of dismissal;
8.11
The commissioner failed to apply her mind to the legal requirement of
insubordination.
Accordingly, the commissioner committed a material
error in fact and law by failing to apply her mind to the requirement
of insubordination
and/or gross insubordination upon which the
employer based its decision to dismiss the individual applicants;
8.12
The commissioner failed to consider whether the refusal to obey the
instruction amounted
to insubordination at all, and further, the
commissioner failed to assess the gravity of the insubordination;
8.13
The commissioner ignored the reasons why the individual applicants
failed to report for
work. It is submitted that this was crucial to
the determination of the matter. The evidence quite clearly
demonstrated that the
individual applicants were of the genuine
belief that the employer could not unilaterally change the shift
pattern, and if they
wished to change the shift pattern, it would
have to be by way of agreement;
8.14
The commissioner clearly failed to take into consideration that the
individual applicants
were not in wilful disobedience, but that the
individual applicants’ refusal to work in accordance with the
shift pattern
was based on a genuine belief that the instruction was
unreasonable and unlawful;
8.15
The commissioner found further that on a balance of probabilities the
shift roster change
amounted to a work practice of which no agreement
with the employee was required;
8.16
The commissioner, without any further consideration, found the
individual applicants guilty
of gross insubordination merely upon the
fact that, in the view of the commissioner, they were wrong in their
understanding of
the law in respect of unilateral changes to terms
and conditions of employment;
8.17
The commissioner did not analyse one bit of evidence. It is clear
that the commissioner
decided this matter not on the evidence, but
solely on the narrow issue of whether the employer was entitled to
change the shift
pattern or not;
8.18
The commissioner overlooked and ignored the facts of the matter and
the reasons why the
individual applicants did not follow the
instruction to work in accordance with the new shift pattern;
8.19
The commissioner came to the unreasonable finding that the manner in
which the employees
approached this situation was adversarial and
confrontational when the facts of the matter showed that the
individual applicants
were acting in the mistaken belief that the
changes were unilateral and therefore unlawful;
8.20
The commissioner ignored the fact that the individual applicants
lacked legal knowledge
in relation to the law in respect of changes
to the shift patterns and unilateral changes to terms and conditions;
8.21
The commissioner failed to consider and take into account the
totality of the circumstances
when determining whether the individual
applicants were guilty of gross insubordination;
8.22
The commissioner did not give sufficient weight to the fact that it
had been the practice
of the employer and the employees to work on
the old shift pattern for many years and that it had not been
changed;
8.23
The commissioner also failed to properly consider the reasonableness
of the shift pattern
and merely concluded that because the employer
had the right to change the shift pattern that this made the
instruction reasonable;
8.24
The commissioner ignored the fact that certain individual applicants
returned to work on
9 January 2019 and were prepared to work in
accordance with the old shift pattern. The commissioner ignored that
the individual
applicants did not have the intention not to work, but
always displayed an intention to work, but in terms of the
long-established
shift pattern;
8.25
The commissioner did not properly consider the evidence of Mkhangeli;
and
8.26
The decision reached by the commissioner is not one that a reasonable
decision-maker could
not have reached.
Background
[9]
The third respondent is in the business of
recycling metal. The third respondent produces steel billets and
steel reinforcing bars
from recycled material. The third respondent
employed 1255 employees in different divisions.
[10]
Due to the nature of the third respondent’s
operations, the Melt Shop operates 24 hours a day, seven days a week.
Until 2019,
the Melt Shop operated a six-day shift cycle: 07h00 to
19h00 day shift, two night shifts from 19h00 to 07h00, and those
employees
then got two days off.
[11]
Three different teams of 15 employees work
various shifts in the Melt Shop. Those teams are the Blue team, the
Orange team and the
Purple team. The employees who were dismissed
formed the Blue team.
[12]
The third respondent had engaged the
employees in relation to changes to the shift pattern since early
2018.
[13]
In
a memorandum dated 4 December 2018, issued to Melt Shop employees,
the third respondent informed employees of changes to the
shift
patterns.
[2]
The memorandum of 4
December 2018 records,
inter
alia
,
the following:
“
Please
note that with effect from 9 January 2019 the proposed shift system
will be implemented.”
[3]
[14]
The 4 December 2018 memorandum informs the
employees that the new shifts would be four-day shifts, two days off,
four-night shifts
and two days off.
[15]
The operations of the third respondent shut
down for the year-end on 12 December 2018 and recommenced operations
on 9 January 2019.
On 9 January 2019, and following further
engagement with the employees, the third respondent again informed
the employees that
the new shift system (pattern) had been
implemented with effect from 9 January 2019. Other than one night
shift on 10 January 2019,
employees forming the Blue team did not
work the new shift system.
[16]
The
employees comprising the Blue team informed the third respondent that
they would be working in accordance with the prior shift
pattern. On
13 January 2019, the Blue team employees presented themselves at the
workplace purportedly to work in accordance with
the prior shift
pattern. The employees were refused entry to the workplace.
[4]
[17]
A disciplinary hearing was convened on
written notice to employees who formed the Blue team. The
disciplinary hearing notice records
inter
alia
the following:
“
DETAILS
OF YOUR ALLEGED OFFENCES:
It is alleged that you
have committed the following misconduct:
1.
Unauthorised absence in that you
refused to work your shift starting Friday, 11 January 2019.
2.
Unauthorised absence in that you
refused to work your shift starting Saturday, 12 January 2019.
3.
Breach of company policy in that you
failed to notify your employer of your absence as required.
4.
Gross insubordination in that you
have refused to abide by the 2019 Shift Structure.
5.
Gross insubordination in that you
refused to abide by your employer’s instructions regarding the
Shift Structure and addressing
concerns regarding the structure, as
contained in the SA Steelworks’ letter of 10 January 2019.
You
are required to attend a formal disciplinary hearing which is being
convened to investigate whether or not you are guilty of
the alleged
offences.
”
[5]
[18]
The
employees were found guilty of various allegations of misconduct,
including unauthorised absence in that they refused to work
certain
shifts and gross insubordination, and were dismissed. The employees
were informed of the termination of their employment
in a letter
dated 29 January 2019.
[6]
[19]
As
noted above, an alleged dispute was referred to the bargaining
council. The presentation of the evidence at the arbitration
proceedings took place over several days. On day one of the
arbitration proceedings, the commissioner observed that the dispute

before her was ‘
an
alleged unfair dismissal’
dispute.
[7]
The commissioner further informed the parties that the third
respondent bears the onus, on a balance of probabilities, to prove

that the dismissal of the applicants was fair.
[8]
[20]
Mr
Mashologu (Mashologu), on behalf of the employees, informed the
commissioner that the employees were not challenging the procedural

fairness of their dismissal.
[9]
[21]
Mashologu further informed the commissioner
that the employees were challenging the substantive fairness of their
dismissal, stating:
“
COMMISSIONER
:
and in terms of substance?
MR.
M. MASHOLOGU
:
Ja, we, this is what we’re challenging Commissioner, because

the Employees, we feel very strongly that they didn’t commit
any of those acts. Employees think
COMMISSIONER
:
Insubordination, you mean?
MR. M.
MASHOLOGU
:
Yes, the Employees were working the shift they knew, they have agreed

with the Company to work that shift, that’s what they were
involved in. this other shift, the new shift, the implementation
is
what we’re disputing.
COMMISSIONER
:
You’re saying they
were not consulted on the new shifts?
MR. M.
MASHOLOGU
:
Yes, they were no -, they were consulted via correspondences but
there
weren’t any agreements, only saw the memo.
”
[10]
[22]
The evidence before the arbitration
proceedings included that of Marike Aaris (Aaris). Aaris is the third
respondent’s Head
of Human Capital. Aaris’ evidence
included the following:
22.1
The third
respondent recycles metal. It has a big operation at SA
Steelworks.
[11]
22.2
The
operations of the Melt Shop include melting with furnaces. In the
Rolling Mill, the third respondent produces rolled billets.
The
individual applicants all come from the Melt Shop.
[12]
22.3
The Melt
shop is a 24/7 operation. The melting of material is a very high cost
for electricity involved. The machines involved in
those processes
cannot handle stop/start processes from a maintenance point of view
in that ‘
when
you melt a material it is more of a liquid form, which takes time, so
we cant stop and start because there is a lot of money
involved in
running those processes
’.
[13]
22.4
The
operation is run continuously in order to avoid stop/start processes
and unnecessary costs and damage to the machines.
[14]
22.5
In 2018,
employees in the Melt Shop worked a six-day shift cycle, two days day
shift from 07h00 until 19h00, followed by two days
night shift from
19h00 to 07h00.
[15]
22.6
The third
respondent consulted the Melt Shop employees during the week of 15
January 2018.
[16]
22.7
The third
respondent initiated discussions about changing the shifts from the
fast-rotating shift to the nine-day cycle, being in
line with the
Rolling Mill within the same part of the business.
[17]
22.8
With
reference to the memorandum dated 19 January 2018: “
Representatives
informed management that all Melt Shop staff downed tools on 11
January at around 4 o'clock as they do not agree
with the nine-day
shift proposal”.
[18]
22.9
Management
met with all employees, all shifts present, “
in
the cloak room with all shifts present, that for that point in time
we would not make any changes”
.
[19]
22.10
The
employees had engaged in ‘
down
tools
’
on 11 January 2018. The third respondent advised employees that in
the event of further ‘
down
tools’,
it would take disciplinary action.
[20]
22.11
Engagements
continued during March 2018 and April 2018.
[21]
22.12
The third
respondent issued a memorandum dated 12 November 2018.
[22]
The 12 November 2018 memorandum reads as follows:
“
Shift
change due to operational requirements
Please note that after
careful consideration of its operational requirements and also taking
the interests of employees into account,
the company hereby advises
all Meltshop employees at SA Steelworks that as per the first day of
working week in 2019 the shift
cycle will be changing.
Currently the Meltshop
runs on a 6 day shift cycle.
As per January 2029
Meltshop will run on a 9 day shift cycle.
In general, the 9 day
shift cycle will be as follows for all employees:
3 days day shift,
followed by 3 days night shift, followed by 3 days off.
Should you have any
concerns about this change of the shift-cycle, you are hereby invited
to submit these in writing to HR by no
later than 23 November 2018.
Yours
faithfully
”
22.13
Employees
were invited to respond or submit any other ideas to HR within a
certain timeframe.
[23]
The
timeframes afforded the employees sufficient time and an opportunity
for the three teams of shifts to communicate with each
other.
[24]
22.14
Employees
responded to the memorandum, recording concerns.
[25]
The concerns raised by employees related to the impact of the new
shift pattern on overtime pay and fatigue.
[26]
22.15
Employees
in the various teams all responded to the third respondent’s
internal memorandum dated 12 November 2018.
[27]
22.16
On 21
November 2018, the third respondent issued an internal memorandum
responding to the comments received from the employees on
16 November
2018.
[28]
22.17
The company
sought to accommodate the employees’ concerns at the same time
as achieving a slow-rotating shift. The company
proposed a four-day
shift followed by two days off, as well as a four-day night shift
followed by two days off, making no change
to the employee’s
wages in any way or to the pay cycle. In addition, the actual hours
worked per week would remain 44 hours
per week.
[29]
22.18
The Melt
Shop employees rejected the shift system as recorded in the internal
memorandum of 21 November 2018. The Melt Shop employees
‘
want
to carry on the way they are working’.
[30]
22.19
On 4 December 2018, the third respondent issued a further internal
memorandum to the employees. The memorandum
sought to address the
concerns of the employees. The 4 December 2018 memorandum records,
inter alia
:
“
Therefore
with the new system there will be
fewer
changes
from dayshift to
nightshift and back, and there will
always
be days off in between the changes
from dayshift to nightshift and back.
Therefore employees
will
get more rest
with the new shift system.
Please
note that with effect from 9 January 2019 the new proposed shift will
be implemented.
”
[31]
22.20
Before the
annual shutdown, all employees were informed of the new shift roster.
The new shift roster to be implemented from 9 January
2019 was placed
on notice boards.
[32]
22.21
Following
the memorandum of 4 December 2018, the third respondent received
communication from the trade union about “
some
requests last minute for a general meeting to take place prior to the
shutdown, when/where the company was unable to accommodate

them/it”.
[33]
22.22
On 9
January 2019, the company reopened after the shutdown. The Purple
team was meant to be on the day shift, the Blue team would
be on the
night shift, and the Orange team would be off. What transpired was
that both the Purple team and the Blue team in their
entirety were at
the workplace on the morning of 9 January 2019. A few members of the
Orange team were also present. All the employees
remained in the
cloak room and were not at their workstations.
[34]
22.23
The
employees indicated that the reason they are not working, and that
they are at work, was because they do not agree with the
new shift
roster.
[35]
22.24
Management
met with the representatives of the employees and discussed their
concerns. No new concerns that had not already been
raised and
responded to were raised by the employees. Management informed the
representatives of the employees that the new shift
roster of 2019,
as placed on the notice boards, was applicable. Management also
informed the employees that a failure to adhere
to the new shift
roster would result in disciplinary action.
[36]
22.25
Employees
were also informed that if they were still unhappy, they should use
the right forum, put their concerns and suggestions
in writing, ‘
in
order to have a constructive discussion to remedy the situation’
.
[37]
22.26
Members of
the Blue team were present even though they were not allocated to
work the day shift on 9 January 2019 and had been at
the company
premises all day. The Blue team indicated that they felt too tired to
attend to the night shift on 9 January 2019,
and the Divisional
Director of SA Steelworks “
then
used his discretion and stated that the Blue Team does not have to
work the nightshift that night, they will not be disciplined
but no
work, no pay applies”
.
The Divisional Director also informed the employees that the ‘no
discipline’
would
‘only apply if it was agreed that everybody would adhere from
that date onwards to the 2019 shift structure’
.
[38]
22.27
The
feedback from the representatives following the intervention by the
Divisional Director was that the employees agreed.
[39]
22.28
On 10
January 2019, all shifts were worked by the teams, including the Blue
team, ‘
as
per the new 2019 shift structure’
.
[40]
22.29
As from 10
January 2019, the Orange and Purple Teams have continuously worked
the 2019 shift structure ‘
without
fail
’.
[41]
After the meeting that took place on 9 January 2019, the third
respondent issued a letter to employees who comprised the Blue Team.

That letter is dated 10 January 2019. The 10 January 2019 letter
again records the new six-day shift structure for 2019.
22.30
The 10 January 2019 letter also records,
inter alia:
“
As
per communication before shutdown 2018/2019 you were scheduled to
report for dayshift at 07:00 on 9 January 2019 as per the shift

structure 2019.
Some of employees of
the Blue Team chose to report to work on 09 January 2019 at 07:00
without being booked for a shift. The Divisional
Director has
approved that those employees who decide not to report for their
scheduled shift at 19:00 on 09 January will not be
disciplined for
being absent, however, the basic rule of no work, no pay will apply.
…
We urge you to apply
constructive, recognised and lawful methods by which your concerns
may be addressed. We are happy to engage
with yourselves and the
union in the proper manner and forums.
You are expected to
assume your duties as per the 2019 shift schedule on 10 January 2019.
Not adhering to the 2019 shift schedule
with regard to dates and
times will result in disciplinary action.
If
you have any queries please feel free to contact the HR
Department.
”
[42]
22.31
If
employees attend to a shift after 18h00, the company provides
transport.
[43]
22.32
On 11 and
12 January 2019, the employees refused the arranged transport, they
were not adhering to the new shift structure.
[44]
22.33
On 13
January 2019, some members of the Blue Team arrived at work. Security
informed them that the correct team was on duty for
the day shift,
that the Blue Team was not scheduled to work the day shift on 13
January 2019 and asked them to return home.
[45]
22.34
When a team
does not arrive to work their shift, “
there
is no production happening, so that has an incredible impact on
costs, on productivity, Health and Safety wise and on our
machinery
as I explained earlier, when there is a stop-start process, it has a
very negative impact from a cost point of view,
as well as our
machinery”.
[46]
.
22.35
The impact
of the employees’ conduct was significant; the company made a
great financial loss in the region of R 2 million.
[47]
22.36
After the
employee’s dismissal, they attended at the company’s
premises with members of the EFF on two occasions. On
the second
occasion, and in the reception area, they were threatening and
intimidating office staff.
[48]
Evidence of Aaris
under cross-examination
[23]
The evidence under cross-examination
included the following:
23.1
The
employment contracts do not stipulate shifts. The employment
contracts specifically record “
the
actual hours of work may differ from Department to Department and as
indicated by operational requirements”
.
The employment contract further records that “
your
Manager/Supervisor will inform you of your actual working hours and
shift that you will be required to work”
and
that the employment contract “
doesn’t
state the actual hours or the actual days because that might change
and therefore, they will be informed by their
Manager as and when
their shift roster needs to change for operational reasons”.
[49]
23.2
In relation
to a note within the bundle of documents which records that ‘
Aaris
confirmed that various things were discussed but there was no
agreement. Agreement is not required’
,
Aaris testified that she was not disputing that ‘
no
agreement was required’
and that ‘
No
agreement is required, no changes were made to conditions of
employment’
.
On 9 January 2019, management met with the employees, and it was
‘
agreed
that the employees would adhere to the new shift roster, as also…
seen in how the Employees from thereon behaved’
.
[50]
[24]
The evidence before the arbitration
proceedings included that of Mr Willem Van Schalkwyk (Van Schalkwyk).
Van Schalkwyk’s
evidence included the following:
24.1
He looks
after Operations and is also involved in engineering and most aspects
of the business on the SA Steelworks side of the
plant.
[51]
24.2
In the Melt
Shop, the business runs a steel smelter. The machines must be kept
running for as long as possible to make it viable
for the business.
If the furnaces are cooled down earlier than they should be, then it
adversely impacts the operation of the furnace,
and this has an
‘
impact
on the profitability of the Company
’.
[52]
24.3
If a shift
of employees does not arrive, there are also safety concerns; the
business cannot leave the factory unattended.
[53]
24.4
If a shift
does not arrive for duty, the cost implications include ‘
a
fixed cost of about forty thousand rand per hour production
loss’
.
[54]
24.5
Over two
shifts, the production loss would be approximately R 960 000 or
R480 000 per shift.
[55]
24.6
The Blue
Team was allocated to work the night shift on 10 January 2019, and
‘
the
Blue Team did come to shift, they did adhere to the shift cycle and
they carried on with the production’.
He
testified:
[56]
“
MR. W VAN
SCHALKWYK:
Correct, it seems like after the meeting that we had on the 9
th
of January, that they adhere to the shift roster because they
followed, we (inaudible), them off on the 9
th
,
on the evening of the 9
th
and because of the complaints that they might be tired and it was
taken into account that it might have created a unsafe working

scenario. Where, by the next day the Purple Team was booked for the
shift, they did arrive. On the 10
th
of January the Blue Team was booked nightshift and they also arrived
as scheduled, that’s what I said, and as per that, it
seems
like they adhered to the shift roster.
”
[57]
24.7
The failure
of the Blue team to arrive for the shifts as scheduled had a knock-on
effect on production. There was lost production
for the shifts that
were not worked. The knock-on effect includes the time taken to
reheat furnaces.
[58]
The costs
per shift would include electricity. In relation to losses, “
it’s
very difficult exactly to say how much money you lose because of the
amount of power that you need to run for the duration
of the shift,
that we don’t run production because its different power
ratings that you use… so it’s, you know,
it’s
approximately fifty thousand, I cant guarantee that it is fifty
thousand. We work on a fixed rate of forty thousand,
that’s
excluding electricity and furnace equipment damage”
.
[59]
Evidence of Mzamo
Mkhangeli (Mkhangeli)
[25]
The evidence of Mkhangeli includes the
following:
25.1
Employees
met with the third respondent in January 2018, “
when
they were changing the roster from this two days dayshift and two
days nightshift to three days dayshift and three days nightshift,
we
met with them and we stated clear to them”
.
[60]
25.2
Employees
received the memorandum dated 12 November 2018,
[61]
and they responded to that memorandum.
[62]
25.3
The
employees received the memorandum dated 21 November 2018. The
employees responded to the memorandum.
[63]
25.4
Mkhangeli
returned to work on 9 January 2019. They reported for the day shift:
‘
all
of us, Orange, Purple Team and the Blue Team plus a few guys of the
Orange Team’
,
and they waited until the induction started. They had a caucus
discussing this matter. Management approached them ‘
it’s
where we went to them and discussed the new changes with them’
.
[64]
25.5
No
agreement was reached with the management; according to management,
they were supposed to be on the night shift. The employees
(Blue
team) told management that they cannot be on the night shift, “
but
we are here for the whole day. We will go to nightshift according to
the we’ll follow that old roster of us that we used
to work…
there was no agreement and then we go home… the following day
we came for nightshift and worked that nightshift
on the 10
th
.
Then on the 11
th
according to the roster that we used to work of two days and two
nights, we go off
...
on the
11
th
and
12
th”
.
[65]
25.6
The Blue
team employees came back on 13 January 2019, in the morning. The
security denied them access to the premises, ‘
they
gave us the roster that we must follow according to the
management’
.
[66]
25.7
He and
other employees arrived at the company premises on 15 January 2019.
There was a mass meeting, and after the mass meeting,
the employees
went back to the plant. They were called by management and they were
suspended.
[67]
25.8
Mkhangeli’s evidence included the following:
“
MR
M MASHOLOGU
:
and can you tell us, what was the exact reason for you, as Employees,
not
to work those shifts?
MR.
M MKHANGELI:
Our
reason, we wanted them to reach an agreement with us with, regarding
with the proposal that we made for them because we proposed
to them
to get more rest, and instead of if they want to change us from this
two days dayshift, two days nightshift, we’re
rather work eight
hours’ shift, that was one of our proposals, ‘cause one
of the reasons that we requested more day
off, it’s because of
the injuries that were happening. Now, we, in one of these memos our
response, we stated clear that
we reject this new roster because we
won’t get more rest because in this new roster, you will see
there is a time whereby
we work four nightshift without getting any
allowances because we thought maybe they would come to us with
promises that at least,
financially we will get adjustment because
now instead of working two days night, or two nightshift, we will be
working more nightshift,
which means it will be more complicated than
the two nightshift that we used to work because during that two
nightshift, there
were also a lot of injuries that were
happening.
”
[68]
Mkhangeli under
cross-examination
[26]
Mkhangeli’s evidence under
cross-examination included the following:
26.1
His
employment contract records that he will be required to work
continuous rotating shifts, that his manager or supervisor will

inform him of his actual working hours on shifts that he will be
required to work and that the actual hours of work may differ
from
department to department and are dictated by operational
requirements. Mkhangeli confirmed that to be the case.
[69]
26.2
The
employment contract records that he agrees to work 44 consecutive
hours per week, and that he will work continuous rotating
shifts,
which is a combination of day and night shifts.
[70]
26.3
The transcript also records the following:
“
MR.
B GUY
:
Yes Mzamo, and that’s what the company
(inaudible), we’re
saying the same thing. We’re also concerned about the incidents
on the Blue Team, about the injuries
in duty, and that is why they
proposed the change in the structure because they believe and they
can argue this much, is that this
is a better system, it’s a
safer system, there’s more rest on the new system than on the
old system and I think you
know that.
MR.
M MKHANGELI
:
The problem with that is that you are saying it here now but while
you have a time to go to explain this to the guys, you didn’t

do so, you just wrote a memo. When we called you to come and explain
the advantage of this new roster and disadvantage, you never
came to
us, that is my point of departure because if the Company, at least
one of them, did they come to us and explained clearly,
maybe the
outcomes of this should have been better.
”
[71]
26.4
Mkhangeli
was referred to the document titled ‘
Summary
of meeting 9 January 2019. Time 11:15am
’”
[72]
.
Mkhangeli confirmed that he attended the meeting of 9 January 2019.
Mkhangeli confirmed that the summary of the meeting records
certain
interventions by him. The summary specifically records:
“
Mzamo
states that the Employees’ rights were ignored by not
consulting with staff prior to the implementation of the new shift

structure. He states that staff never agreed to the new shift
structure and the staff only received notification, only that staff

only received a notification of the shift roster.
”
[73]
26.5
Mkhangeli was referred to the part of the
summary that records his intervention in the following terms:
“
Mzamo
responded by saying that letters sent back and forth was not a form
of consultation and once again staff never agreed to the
new shift.
Staff only received a notice of the new shift roster.
Marike
explained that if his statement was true, then management would not
have responded to the staff proposals and that there
was in fact a
formal consultation process adhered to, Marike encouraged a further
discussion in a constructive manner where employees
must use and
engage in the company process in place to resolve matters. She stated
that the tools down action was a disruptive
process of reaching a
resolution.
”
[74]
26.6
Mkhangeli
confirmed that the summary does record his intervention at the
meeting on 9 January 2019.
[75]
26.7
Mkhangeli further confirmed that the
summary of the meeting at page 87 was accurate:
“
Mzamo
said the Blue Team will not be able to report for nightshift because
the staff were at work from 07:00am. They will not be
able to get
enough rest to report for nightshift
.”
[76]
26.8
The summary of the meeting of 9 January
2019 concludes by recording the following:
“
The
company gave workers every opportunity to raise any concerns about
the new shift structure after workers were advised of the
proposed
new shift structure on 12 November 2018.
The company responded
to all concerns raised. If employees have additional concerns about
the new shift structure which have not
already been raised they
should deal with them through the correct process.
The company promotes
constructive communication in order to avoid unnecessary escalation
of the situation.
We urge staff to apply
constructive, recognised and lawful methods by which your concerns
may be addressed. Management is happy
to engage with staff members
and the union in the proper manner and forums.
All staff are expected
to assume their duties as per the 2019 shift schedule and not
adhering to the 2019 shift schedule with regard
to dates and times
will result in disciplinary action.
Meeting
adjourned at 14:00.
”
[77]
26.9
The transcript further records the
following:
“
MR.
B GUY
:
…Do you honestly believe today that
you did the right thing by
not arriving to work?
MR.
M MKHANGELI
:  yes
MR.
B GUY
:
Do you think that was the right to have
done?
MR.
M MKHANGELI
:
According to my understanding, if there was no agreement, I was doing
the right thing because on our first roster, the one
that we’re
working, there was agreement.
”
[78]
26.10
During
the visits to the company premises, accompanied by members of the
EFF, ‘
they
were never rude
’.
They were there to resolve an issue concerning monies due to
them.
[79]
Relevant legal
principles
[27]
The
relevant legal principles are well known. Those principles were
restated in
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[80]
.
In that matter, the court held:
“
In
summary, the position regarding the review of CCMA awards is this: 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 the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
to particular facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable.
”
[28]
In
Nyathikazi
v Public Health & Social Development Bargaining Council &
others
[81]
,
the court held:
“
After
the decision in Sidumo & another v Rustenburg Platinum Mines Ltd
& others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC) and the
further explication in Herholdt v Nedbank Ltd (Congress of SA Trade
Unions as Amicus Curiae)
2013 (6) SA 224
(SCA); (2013) 34 ILJ 2795
(SCA), it is clear that our law dictates that an award delivered by
an arbitrator will only be considered
to be unreasonable if it is one
that a reasonable arbitrator could not reach on all the material that
was before him or her. A
material error of fact and the particular
weight to be attached to a particular fact may in and of itself not
be sufficient to
set aside the award but will only be done if the
consequence thereof is to render the ultimate outcome unreasonable.
”
[29]
In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mining) v CCMA and Others
[82]
,
the
court held:
“
Where
the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable
decision.
Where the arbitrator fails to follow proper process he or she may
produce an unreasonable outcome (see Minister of Health
and another v
New Clicks SA (Pty) Ltd and others (Treatment Action Campaign and
Innovative Medicines SA as amici curiae)
2006 (2) SA 311
(CC) [also
reported at
2006 (1) BCLR 1
(CC) – Ed]). But again, this is
considered on the totality of the evidence not on a fragmented,
piecemeal analysis. As soon
as it is done in a piecemeal fashion, the
evaluation of the decision arrived at by the arbitrator assumes the
form of an appeal.
A fragmented analysis rather than a broad-based
evaluation of the totality of the evidence defeats review as a
process. It follows
that the argument that the failure to have regard
to material facts may potentially result in a wrong decision has no
place in
review applications. Failure to have regard to material
facts must actually defeat the constitutional imperative that the
award
must be rational and reasonable – there is no room for
conjecture and guesswork.
”
[30]
In
CUSA
v Tao Yang Metal Industries and Others
[83]
,
the
court held:
“
Consistent
with the objectives of the LRA, commissioners are required to “deal
with the substantial merits of the dispute
with the minimum of legal
formalities”. This requires commissioners to deal with the
substance of a dispute between the parties.
They must cut through all
the claims and counter-claims and reach for the real dispute between
the parties. In order to perform
this task effectively, commissioners
must be allowed a significant measure of latitude in the performance
of their functions. Thus
the LRA permits commissioners to “conduct
the arbitration in a manner that the commissioner considers
appropriate”.
But in doing so, commissioners must be guided by
at least three considerations. The first is that they must resolve
the real dispute
between the parties. Second, they must do so
expeditiously. And, in resolving the labour dispute, they must act
fairly to all the
parties as the LRA enjoins them to do.
”
[31]
In
Securitas
Specialised Services (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & Others
[84]
,
the
Court held:
“
[19]
The test for review is this: “Is the decision reached by the
arbitrator 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 be unreasonable
if it is entirely disconnected with the evidence, unsupported by any
evidence
and involves speculation by the arbitrator.
[20]
This court has eschewed a piecemeal approach to a review application
by the Labour Court. The
proper approach is for the Labour Court to
consider the totality of the evidence in deciding “whether the
decision made by
the arbitrator is one that a reasonable decision
maker could make”.
[32]
The
review test has been recently restated in the matter of
Makuleni
v Standard Bank of SA (Pty) Ltd & others
[85]
(
Makuleni
)
as follows:
“
[4]
The import of these remarks demands reflection in order to digest the
essence of the exercise
that a commissioner embarks upon. The court
asked to review a decision of commissioner must not yield to the
seductive power of
a lucid argument that the result could be
different. The luxury of indulging in that temptation is reserved for
the court of appeal.
At the heart
of the exercise is a fair reading of the award, in the context of the
body of evidence adduced and an even-handed assessment
of whether
such conclusions are untenable. Only if the conclusion is untenable
is a review and setting aside warranted
.
…
[13]
The Labour Court’s view of the case differed from that of the
commissioner. As shall be
addressed hereafter there are serious flaws
in the reasoning articulated in the judgment. However, what is
immediately deserving
of emphasis is that, even if the perspective of
the Labour Court is plausible and reasonable, that is an insufficient
reason to
displace the award in terms of the review test addressed
above.
To meet the review test,
the result of the award has to be so egregious that, as the test
requires, no reasonable person could reach
such a result.
In our view, no material criticism can be advanced of the award that
meets the threshold test for review.
”
(emphasis
added)
[33]
It is in light of these principles that the
commissioner’s award and the arbitration proceedings ought to
be assessed.
The arbitration award
[34]
In the arbitration award, the commissioner
records,
inter alia
,
the following:
“
(30)
I am required to determine on a balance of probabilities whether the
dismissal of the employees who were
in the Blue Team was fair, AMCU
confirmed there are no procedural challenges in this dispute.
…
(33)
The obvious critical issue to be decided in the present case is
whether the employer, by seeking
to introduce a new roster system, is
implementing a change to the terms and conditions of employment of
the individual applicants
or whether it amounts to no more than a
work practice.
(34)
In terms of the contracts of employment for all the employees in this
case, there is a clause
headed ‘Normal working hours’
which in summary confirms a forty-four hour week from a Tuesday to a
Monday; there is
a requirement to work continuous rotating shifts;
the manager/supervisor would advise of their actual working hours and
shifts;
a ten percent shift allowance is included in your weekly
wage; the actual working hours may differ from department to
department
and is dictated by operational requirements; actual
working hours may extend beyond the normal working hours due to
operational
requirements and objectives and deadlines. Nothing is
stated that would bind the employer to retain the shift time or
cycles. The
introduction of the new shift roster, in light of the
above is a workplace practice and does not constitute terms and
conditions
of employment but in terms of the contract entered into
between the parties is a work practice. No other document regulating
the
relationship such as collective agreements containing such a
provision was placed before me. No additional terms can be implied

from the parties’ conduct or from custom and practice in the
workplace was placed before me. A shallow attempt was make a
case
that because the Blue Team had been working the same shift pattern
since 2016 a practice had developed. As such, the employer
had the
right to change the practice, which they did over an extended period
of time. There was no vested right for the employees
to retain their
shift times in perpetuity.
(35)
In light of the above, I find on a balance of probabilities that the
employer was not compelled
to reach agreement with the employees
regarding the introduction of the new shift rosters on 9 January
2019. It was, as stated,
a prudent courtesy to have spent time in
consultation and discussion with the employees and their
representatives. It was not disputed
that there was more than one
union at the employer, none of which unions had a recognition
agreement with the employer. It should
never have taken over a year
to introduce the shift changes which after research done showed that
on a slower rotational shift,
there was more rest time for the
employees. The change was also made due to high injury and
absenteeism rates. There is no contractual
right for the employees to
work a specific shift in perpetuity. The changing of shift times is a
work practice and the employer
was entitled to have unilaterally
introduced such changes although much consultation and discussions
took place. The employees
were not able to demonstrate that the
changes affect their contractual rights.
”
[35]
The evidence that served before the
arbitration proceedings established that the third respondent engaged
the employees over a protracted
period of time in respect of a new
shift pattern. In the course of those engagements, the parties also
dealt with absenteeism rates,
the incidence of injury on duty, as
well as rest time between shifts on a new shift system. The evidence
established that the new
shift system involved more rest time for the
employees, and the early signs (data) indicated fewer injuries in a
slow-rotating
shift system relative to a fast-rotating system.
[36]
In the arbitration award itself, the
commissioner, in her summary of the evidence, refers to the evidence
of Mkhangeli and the claims
that the employees had not agreed to the
new shift pattern.
[37]
The
commissioner at paragraph 32 of the award records “
Much
was said at arbitration regarding the workers / AMCU not having
agreed to the new shift patterns introduced with effect from
9
January 2019”.
The commissioner determined that the third respondent was not
compelled “
to
reach agreement with the employees regarding the introduction of the
new shift rosters on 9 January 2019”
.
[86]
[38]
The evidence before the commissioner
included the employment contracts of the employees, the testimony of
Aaris and Mkhangeli as
to the provisions of the employment contracts
and the version of Mkhangeli that the employees had been working a
shift system for
several years, that the third respondent needed the
agreement of the employees to change the shift system and that the
employees
had not agreed.
[39]
The established facts include that:
39.1
The employees had no contractual or other
basis to insist on working a particular shift pattern.
39.2
The third respondent was not precluded by
the employment contract or any collective agreement from introducing
a new shift pattern.
39.3
The introduction of a new shift pattern
with effect from January 2019 did not amount to a change in material
terms and conditions
of employment.
39.4
The third respondent had the right to
change the shift pattern.
39.5
No agreement (as alleged by the employees)
is required to introduce a new shift pattern.
39.6
The introduction of the new shift pattern
was prompted by the third respondent’s operational
requirements.
[40]
Against the weight of those established
facts is the version of Mkhangeli and the contention on behalf of the
employees that no
agreement had been reached between the third
respondent and the employees and their representatives in relation to
the new shift
pattern and that such an agreement was required. The
evidence that served before the commissioner establishes that no such
agreement
was required and that the introduction of a new shift
pattern with effect from January 2019 did not amount to a change in
the material
terms and conditions of employment.
[41]
The commissioner’s observations and
findings on this score, as recorded in the arbitration award, are
properly grounded in
and supported by the evidence that served before
the arbitration proceedings.
[42]
The commissioner in the arbitration award
further records the following:
“
(36)
The blue team (all the employees in this case) returned to work on 9
January 2019 and due to the circumstances
prevailing on that day they
had not been required to work their scheduled nightshift. The blue
team worked the nightshift on 10
January 2019 at which stage, after
discussions held, the employer held the view that like the other
teams the blue team would be
working on the new roster from 10
January 2019 onwards. The testimony of Mzamo was that the blue team
intended not to comply with
the new rosters and hence were absent on
11 and 12 January 2019 without permissions and without notifying the
employer. Their absence
was due to a refusal to work the new shifts
as rostered. Such absence was unauthorised and uncommunicated as is
required by the
company policy. Hence employees were in breach of the
policy of the employer. In the circumstances, the employees are found
on
a balance of probabilities to be guilty of charges 1, 2 and 3.
”
[43]
The established facts in the evidence that
served before the arbitration proceedings include that:
43.1
Prior to the annual shutdown on 12 December
2018, all Melt Shop employees were informed of the new shift roster
and that it would
be implemented from 9 January 2019.
43.2
On the morning of 9 January 2019, the
employees who comprised the Blue team, along with other employees,
returned to the third respondent’s
premises but did not work.
The employees informed the management that the reason they were not
working was that they did not agree
with the new shift roster.
43.3
On 9 January 2019, management yet again met
with the representatives of the employees and discussed their
concerns. No new concerns
that had not already been raised and
responded to were raised by the employees. Management informed the
representatives of the
employees that the new shift roster of 2019
was applicable and that a failure to adhere to the new shift roster
would result in
disciplinary action.
43.4
Following those engagements and subject to
certain conditions, the employees comprising the Blue team were not
required to work
the night shift on that day, as they had been at the
premises since 07h00 and had been too tired to commence the night
shift at
19h00.
43.5
The third respondent had instructed the
employees who comprise the Blue team to comply with the new roster,
had done so again on
9 January 2019 and had informed them that
disciplinary action would be taken in the event that they did not
comply.
43.6
On 10 January 2019, all shifts were worked by the teams, including
the Blue team, ‘
as per the new 2019 shift structure’
.
43.7
As from 10
January 2019, the Orange and Purple teams have continuously worked
the 2019 shift structure ‘
without
fail
’.
[87]
43.8
In a letter dated 10 January 2019 and
issued to the Blue team, the third respondent yet again recorded,
inter alia
,
the new shift structure for 2019 and the respects in which the 2019
shift structure is beneficial to employees.
43.9
The 10 January 2019 letter advised the
employees that not adhering to the 2019 shift schedule would result
in disciplinary action.
43.10
In respect of employees who work a shift
after 18h00, the third respondent provides transport to the
workplace. Such transport was
arranged for employees comprising the
Blue team on 11 and 12 January 2019. On both those days, the
employees refused the transport
arranged.
43.11
The employees who comprised the Blue team
did not adhere to the new roster and did not present themselves for
duty in accordance
with the new roster on 11 and 12 January 2019.
43.12
Notwithstanding the third respondent’s
instruction, the Blue team refused to work on 11 and 12 January 2019.
[44]
In the circumstances, the observations and
findings of the commissioner that the employees are guilty of
unauthorised absence in
that they refused to work the shifts on 11
and 12 January and a breach of company policy, are well grounded in
the evidence that
served before the arbitration proceedings and are
properly supported by that evidence.
[45]
The commissioner in her arbitration award
also records the following:
“
(37)
The refusal to abide by the instruction in the workplace practice
change amounts to gross insubordination.
This is so given the number
of times the employees were instructed to work according to the new
rosters effective from 1 January
2019. The employer had also given
all workers an opportunity to raise any concerns they had with the
change in the shift cycles
and those concerns which were raised had
been addressed… the actions of the employees and their
approach towards to the
changes being made, which were lawfully
allowed to be changed for a very valid reason, amount to gross
insubordination. In the
circumstances I find on a balance of
probabilities that all the employees in this case are guilty of
charges 4 and 5.
”
[46]
The established facts in evidence that
served before the arbitration proceedings include that:
46.1
The third respondent had, over time,
addressed various concerns raised by the employees in relation to the
new shift pattern and
by December 2018, no new concerns that had not
been addressed were raised.
46.2
The benefits of the new system were
demonstrated and documented.
46.3
The third respondent had on a number of
occasions informed the employees that they were required to work the
new shift pattern.
46.4
The third respondent did so prior to the
shutdown in December 2018 and specifically during November 2018, on 4
December 2018 and
did so again on 9 January 2019.
46.5
On 9 January 2019, the employees were
advised that non-adherence would lead to disciplinary action.
46.6
On 10 January 2019, the employees were
again advised that non-adherence would lead to disciplinary action.
46.7
Notwithstanding the repeated instructions,
the employees who comprised the Blue team refused to abide the
instruction to work the
new shift system and did so repeatedly.
46.8
The instruction to work the new shift
system was not in breach of the employees’ employment contracts
or the terms and conditions
of their employment more generally.
46.9
The third respondent’s instruction to
work the new shift pattern was clear, documented and repeatedly
communicated.
46.10
The employees were steadfast in their
refusal to work the new shift system, and that refusal was
perpetrated with an awareness that
disciplinary action would follow.
46.11
The employees disregarded the third
respondent’s instruction and authority; this disregard included
the refusal of the transport
provided by the third respondent on 11
and 12 January 2019.
46.12
The employees’ disregard of the third
respondent’s instructions went further. On 13 January 2019,
being a day that they
were not scheduled to work, the employees
arrived at the workplace purportedly to work in accordance with the
prior shift pattern.
46.13
By 13 January 2019, the employees knew that
the third respondent had discontinued the prior shift pattern and had
implemented a
new shift pattern.
[47]
The employees’ conduct was
deliberate, willful and sustained. On any reasonable assessment, the
characterisation or determination
as to gross insubordination is not
one untethered from the established facts as to the conduct of the
employees who comprised the
Blue team. In the circumstances, the
commissioner’s finding, including paragraph 37 of the
arbitration award, that the conduct
of the employees amounts to gross
insubordination is properly grounded in and supported by the evidence
before the arbitration
proceedings.
[48]
The contention that the dismissals were
unfair on the basis that the new shift pattern had not been agreed
with the employees and
that the refusal to work the new shift pattern
did not amount to misconduct is not sustainable.
Personal circumstance
and mitigation
[49]
At the arbitration proceedings, the
applicants elected not to present oral evidence beyond that of
Mkhangeli. Mashologu explained
the reason for this. In this respect,
the transcript records the following:
“
MR
M MASHOLOGU
:
Ja, exactly, they have the same version. I cant run away from
that,
they have the same version that look, we didn’t agree with this
roster. We had a roster that was agreed with, we’ve
agreed with
the Employer that we will carry on working this roster and then we
carried on working that roster, nothing has change
in each every,
what we were just coming here for each year, is what they’ve
said but what I am trying to say is that, they
all have one version,
they all have one version, they, whereas there’s some
differences where you find that Mzamo’s
testimony was like, I
can’t answer for those and/or that.
”
[88]
[50]
Before the commissioner, the employee’s
case did not include evidence as to the personal circumstances of the
employees who
comprised the Blue team. The sole witness, Mkhangeli,
did not give evidence as to his personal circumstances or such
evidence which
could be considered mitigatory factors. The
applicant’s submissions in argument in the arbitration
proceedings also do not
canvass the personal circumstances of the
individual employees.
[51]
The date on which the employees commenced
employment is recorded in the table at paragraph 5 of the arbitration
award. This does
indicate length of service. However, length of
service in and of itself is not mitigatory.
[52]
In the arbitration proceedings, the
employees do not acknowledge any wrongdoing. The evidence does not
include any factors which
would indicate remorse. On the facts before
the arbitration proceedings, an alleged genuinely held belief that
the third respondent
could not change the shift system without
agreement is not mitigatory.
[53]
In these circumstances, the commissioner
can hardly be criticised for failing to have regard to the individual
circumstances of
the employees and for failing to have regard to
mitigating factors.
[54]
The evidence that served before the
commissioner included the impact of a disruption, such as employees
not reporting for a shift,
on the third respondent’s
operations. The Blue team, in defiance of the third respondent’s
instruction, refused to
work two consecutive night shifts. The
consequences of the employees’ refusal to work the allocated
shifts were hardly neutral.
On the evidence, in addition to the
obvious and severe disruption of operations, the consequences of the
employees’ unauthorised
absence and gross insubordination
included significant financial loss suffered by the third respondent.
On any reasonable assessment,
this serves to underscore the impact of
the grave misconduct of the employees.
[55]
Absent any acknowledgement of wrongdoing,
no evidence which indicates remorse and no evidence as to mitigation,
the commissioner’s
determination that the dismissals were fair,
in other words, that dismissal was a fair sanction, is properly
grounded in and supported
by the evidence before the arbitration
proceedings.
Assessment of the
grounds of review
[56]
The
commissioner was required to determine whether the dismissal of the
employees was fair. As noted above, on day one of the arbitration

proceedings, the commissioner observed that the dispute before her
‘
is
an alleged unfair dismissal’
[89]
dispute
and
further informed the parties that the third respondent bears the onus
of proving that the dismissal of the applicants was fair.
The
arbitration award specifically records that the commissioner was
“
required
to determine on a balance of probabilities whether the dismissal of
the employees who were in the Blue team was fair”
.
[90]
[57]
The
commissioner was indeed required to determine whether the employees
who comprised the Blue team were guilty of the misconduct
alleged
against them and in respect of which they were dismissed. The
commissioner did so. The commissioner expressly refers to
the
allegations of misconduct against the employees, including
unauthorised absence from work and gross insubordination.
[91]
The
commissioner determined that the employees were guilty of the
misconduct, including unauthorised absence from work and gross

insubordination. In the circumstances, it cannot reasonably be
contended that the commissioner ‘
failed
to consider the central dispute …’ ‘whether the
Individual Applicants were guilty of the misconduct alleged
against
them and whether they had been found guilty by the employer
’.
[58]
It
is contended that the commissioner misconceived the nature of the
enquiry. The dispute before the commissioner was an alleged
unfair
dismissal dispute. Oral and documentary evidence (including video
footage) was presented over several days. The parties
made
submissions in argument.
[92]
The
commissioner considered the evidence that served before the
arbitration proceedings and the parties’ submissions in
argument.
The commissioner then issued an arbitration award. The
contention that the commissioner misconceived the nature of the
enquiry
is not sustainable.
[59]
The
commissioner surveyed the evidence and determined that the employees
who comprised the Blue team were guilty of unauthorised
absence in
that they refused to work on 11 and 12 January 2019, breach of
company policy and gross insubordination. In her arbitration
award,
the commissioner and in dealing with her determination that the
conduct of the employees amounts to gross insubordination,

specifically records “
this
is so given the number of times the employees were instructed to work
according to the new shift roster effective from 1 January
2019. The
employer had given all workers the opportunity to raise any concerns
they had with a change in the shift cycles and those
concerns that
were raised had been addressed. … the actions of the employees
and their approach towards changes being made,
which were lawfully
allowed to be changed for a very valid reason, amount to gross
insubordination”.
[93]
It
is readily apparent that the commissioner appreciated the difference
between insubordination and gross insubordination. As noted
above,
the commissioner’s determination as to gross insubordination is
firmly rooted in the established facts in the evidence
before the
arbitration proceedings.
[60]
The contentions that the commissioner
misconstrued the concept of insubordination, that ‘
the
commissioner did not even enquire as to whether the individual
applicants were guilty of insubordination or gross insubordination’
are not sustainable.
[61]
As demonstrated above, the evidence that
served before the arbitration proceedings established that the
conduct of the employees
in refusing to abide by their employer’s
instruction to work in accordance with the new shift pattern was
willful, deliberate
and persisted in. In addition, the evidence
established that the conduct of the employees was severely disruptive
and caused the
third respondent to suffer significant financial loss.
An alleged
bona fide
belief that the employer could not change the shift pattern without
agreement does not serve to undo or disturb the weight of the

established facts. Accordingly, the contentions that the commissioner
did not assess the gravity of the insubordination and that
the
commissioner committed a material error in fact and law in relation
to the determination of gross insubordination are not sustainable.

The commissioner’s determination as to gross insubordination is
properly grounded in the evidence and is consistent with
the ordinary
principles of our law.
[62]
The
commissioner in the arbitration award records,
inter
alia
,
that: “
A
shallow attempt was make a case that because the blue team had been
working the same shift pattern since 2016 a practice had developed.

As such the employer had the right to change the practice which they
did over an extended period of time. There was no vested right
for
the employees to retain their shift times in perpetuity”.
[94]
[63]
The
commissioner determined,
inter
alia
,
that “
There
is no contractual right for the employees to work a specific shift in
perpetuity’
and that ‘
The
employees were not able to demonstrate that the changes affected
their contractual rights”
.
[95]
As
noted above, these findings are properly grounded in and supported by
the evidence that served before the arbitration proceedings.
[64]
In
the arbitration award and when summarising the evidence, the
commissioner refers expressly to the version that the employees
and
their representatives had not agreed to the new shift roster.
[96]
In
addition, when summarising the evidence of Mkhangeli, the
commissioner includes the version that the employees did not agree
to
work the new shift system.
[97]
The
fact that the commissioner determines that the employees were indeed
guilty of the misconduct (including unauthorised absence
from work
and gross insubordination) does not have the consequence that the
commissioner ignored ‘
the
reasons why the individual applicants failed to report for work’
.
In the commissioner's assessment, the employees were consulted, and
such concerns as the employees had raised during the consultations

were addressed; the employees had no contractual right to a specific
shift system.
[98]
The
commissioner’s assessment, as recorded at
inter
alia
paragraph
37 of the arbitration award, is properly grounded in and supported by
the evidence that served before the arbitration
proceedings. As is
evident from the arbitration award, the commissioner did not accept
the version and contentions on behalf of
the employees comprising the
Blue team that the third respondent had to reach agreement with them
and their representatives on
a new shift system. The established
facts in the evidence provided every proper basis for the
commissioner to do so.
[65]
It is contended that the commissioner
‘
overlooked and ignored the facts
of
the
matter
and the reasons why the individual applicants did not follow the
instruction to work in accordance with the new shift pattern’
.
[66]
The established facts include that the employees’ employment
contracts do not stipulate shifts, specifically record
“
the
actual hours of work may differ from department to department and as
dictated by operational requirements’
, that ‘
Your
Manager or Supervisor will, inform you of your actual working hours
and shifts that you will be required to work”.
As
demonstrated, the commissioner considered the version and contentions
that no agreement had been reached between the third respondent
and
the employees and their representatives in relation to the new shift
pattern and that such an agreement was required. The commissioner

determined that no such agreement was required. That determination is
properly supported by the evidence. The contention that the

commissioner ‘
overlooked and ignored the facts of
the
matter and the reasons why the individual applicants did not
follow the instruction to work in accordance with the new shift
pattern
’ is not sustainable.
[67]
It is also contended that the commissioner
ignored the fact that certain individual applicants returned to work
on 9 January 2019
and were prepared to work in accordance with the
old shift system, and yet further that the commissioner ignored that
the individual
applicants did not have the intention not to work but
always displayed an intention to work but in terms of the long
established
shift pattern. This contention is not sustainable.
Properly put, on the evidence that served before the arbitration
proceedings,
the persistence in wanting to work in accordance with a
shift pattern that the third respondent had discontinued underscores
the
employees’ refusal to abide by the third respondent’s
instruction and their disregard for the third respondent’s

authority. On the evidence before the arbitration proceedings, the
fact that certain individual employees were apparently prepared
to
work in accordance with the discontinued shift pattern is not
exculpatory.
[68]
Similarly, the contention that the
commissioner failed to give sufficient weight to the fact that it had
been the practice of the
third respondent and the employees to work
on the old shift pattern for several years is unsustainable. The
established facts in
the evidence that served before the arbitration
proceedings include that the third respondent had a valid operational
requirement
to introduce a new shift system, had consulted the
employees, including the employees who comprised the Blue team, over
a protracted
period of time, had documented the reasons for the new
shift system, had documented the benefits to the employees including
more
rest time and the early data as to fewer injuries on duty and
reduced absenteeism of a slow rotating shift system, that the
employees
had no contractual or other basis to insist on working a
particular shift pattern and that the introduction of a new shift
pattern
with effect from January 2019 did not amount to a change in
material terms and conditions of employment. On any reasonable
assessment,
the weight of the established facts arising from the
evidence, which evidence included the provisions of the employment
contracts,
quite properly displaced any notion that the employees had
some basis in ‘established practice’, let alone a right,

to work the prior shift system in perpetuity. An alleged
bona
fide
belief does not serve to undo or
disturb the weight of the established facts.
[69]
The
commissioner determined that the ‘
manner
in which the employees approached the situation was adversarial and
confrontational
’.
[99]
As
noted above, the evidence that served before the arbitration
proceedings established that the conduct of the employees in refusing

to abide their employer’s instruction to work in accordance
with the new shift pattern was willful, deliberate and persisted
in.
That conduct was severely disruptive and caused the third respondent
to suffer significant financial loss. In the context of
protracted
consultation and the provisions of the employment contracts, that
conduct evidenced a disregard for the third respondent
as the
employer. The commissioner’s determination that the employees
were adversarial and confrontational is supported by
and grounded in
the evidence that served before the arbitration proceedings.
[70]
There is simply no proper basis for the
contention that the commissioner failed to properly consider the
reasonableness of the shift
pattern.
[71]
It cannot reasonably be contended that the
commissioner’s determination as to the employees being guilty
of misconduct, including
gross insubordination, is one that no
reasonable decision-maker would reach.
[72]
The issue is not whether this court would
come to a conclusion different to that of the commissioner. Rather,
the issue is whether
the commissioner’s determination that the
employees were indeed guilty of misconduct, including unauthorised
absence from
work and gross insubordination, is properly grounded in
the evidence before the arbitration proceedings. As noted above, the
commissioner’s
determination is indeed supported by and
grounded in the evidence that served before the arbitration
proceedings.
Dismissal as an
appropriate sanction
[73]
It is contended that the commissioner did not properly apply the
then-applicable Schedule 8 of the Code of Good Practice
in
determining,
inter alia
, whether dismissal is an appropriate
sanction and that the commissioner failed to properly consider the
length of service and that
a final written warning would have been a
more appropriate sanction, as dismissal was too harsh.
[74]
In
De
Beers Consolidated Mines Ltd v CCMA & Others
[100]
(
De
Beers
),
the Court held that:
“…
Long
service does not lessen the gravity of the misconduct or serve to
avoid the appropriate sanction for it.
”
and
“
Long
service is not as such mitigatory. Mitigation, as that term is
understood in the criminal law, has no place in employment law.

Dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be, a sensible operational

response to risk management in the particular enterprise.
”
[101]
[75]
Further, the court held that:
“
It
would in my view be difficult for an employer to re-employ an
employee who has shown no remorse. Acknowledgement of wrong doing
is
the first step towards rehabilitation. In the absence of a
recommitment to the employer’s workplace values, an employee

cannot hope to re-establish the trust which he himself has
broken.
”
[102]
[76]
In
Theewaterskloof
Municipality v SALGBC (Western Cape Division) & Others
[103]
(
Theewaterskloof
),
the Court noted that, whilst item 3 (2) of the Code of Good Practice:
Dismissal, contained at Schedule 8 of the LRA, endorsed
the concept
of corrective discipline:
“…
progressive
discipline is premised on a corrective purpose and outcome. If no
correction is likely to be obtained or if the employment
relationship
is in any event irretrievably broken down, the scope for graduated
discipline will likewise fall away.
”
[104]
[77]
The Court in
Theewaterskloof
found in this instance that, because the employee had:
“…
elected
to hold himself on a confrontational course. There can be very little
room for the notion of corrective discipline in this
situation. Where
an employee refuses to demonstrate any acceptance of wrongdoing,
indicates no degree whatsoever of remorse, makes
no move to correct
what he has done, and stands firm with an attitude of opposition
towards his employer, then such employee through
his own conduct
undercuts the applicability of corrective or progressive
discipline.
”
[105]
[78]
The evidence before the commissioner did
not include any acknowledgement of wrongdoing, nor did the evidence
include matters that
are genuinely mitigatory.
[79]
As noted above, the confrontational and
adversarial approach of the employees relates to the established
disruptive conduct, prior
to their dismissal, in willfully
disregarding their employer’s instructions and authority. The
contention that the commissioner
failed to consider “
that
there was no intimidation during the attendance of the EFF members at
the company premises and placed too much emphasis on
such attendance
in determining that dismissal was an appropriate sanction”
is simply not sustainable.
[80]
The commissioner’s determination that
the dismissals were fair (an appropriate sanction) is entirely
consistent with the ordinary
principles of our law. Accordingly, it
cannot reasonably be contended that the commissioner’s
determination that the dismissals
were fair was one that no
reasonable decision-maker could reach.
[81]
An assessment or ‘
fair
reading’
of the commissioner’s
award against the backdrop of the evidence that served before her, as
contemplated in
Makuleni
,
does not yield the result that the commissioner’s conclusions
are ‘
untenable’
.
[82]
In the circumstances, the commissioner’s
arbitration award is not susceptible to review, whether on the
grounds contended
for by the applicant or at all.
Order
1.
The application is dismissed.
2.
There is no order as to costs.
R
Van Voore
Acting
Judge of the Labour Court Of South Africa
Appearances:
For the
Applicant:

Adv A Cook
Instructed
by:

LDA Incorporated Attorneys
For the Third
Respondent:      Adv G Leslie SC
Instructed
by:

Guy & Associates
[1]
Act 66 of 1995, as amended.
[2]
Record, pages 62 - 63
[3]
Record,
page 63
[4]
Transcript,
page 142, lines 14 – 19
[5]
Record,
pages 64 – 65
[6]
Record,
pages 212 - 213
[7]
Transcript,
page 9, lines 10 - 13
[8]
Transcript,
page 48, lines 14 – 17
[9]
Transcript,
page 48, lines 16 - 18
[10]
Transcript,
page 49, lines 1 - 12
[11]
Transcript,
page 54, lines 8 -15
[12]
Transcript,
page 55, lines 9 - 19
[13]
Transcript,
page 56, lines 10 - 17
[14]
Transcript,
page 56, lines 20 - 22
[15]
Transcript,
page 64, lines 7 – 18 and page 65, lines 1 - 7
[16]
Transcript,
page 84, lines 7 – 17; Record, page 68
[17]
Transcript,
page 85, lines 14 – 20, page 86, lines 1 - 12
[18]
Transcript,
page 87, lines 1 - 3
[19]
Transcript,
page 87, lines 1 - 16
[20]
Transcript,
page 89, lines 1 – 9
[21]
Transcript,
page 89, lines 15 - 22
[22]
Record,
page 69
[23]
Transcript,
page 94, lines 15 - 20
[24]
Transcript,
page 95, lines 1 - 7
[25]
Transcript,
page 97, lines 1 - 19
[26]
Transcript,
page 98, lines 7 - 10
[27]
Record,
pages 70 – 73
[28]
Record,
pages 74 – 76
[29]
Transcript,
page 100, lines 1 - 22
[30]
Transcript,
page 101, lines 7 - 15
[31]
Transcript,
page 105, lines 1 – 22; Record, pages 79 – 80
[32]
Transcript,
page 106, lines 1 – 7; Record, pages 81 – 83
[33]
Transcript,
page 106, lines 10 – 12
[34]
Transcript,
page 112, lines 9 - 19
[35]
Transcript,
page 113, lines 1 - 10
[36]
Transcript,
page 114, lines 5 – 19; page 115, lines 2 – 18; Record,
page 88
[37]
Transcript,
page 116, lines 1 - 4
[38]
Transcript,
page 116, lines 8 – 18; Record, pages 85 - 88
[39]
Transcript,
page 121, lines 1 – 3
[40]
Transcript,
page 124, lines 1 – 10
[41]
Transcript,
page 124, lines 15 - 18
[42]
Transcript,
page 129, lines 5 – 21and page 130, lines 1 – 4; Record,
pages 89 – 91
[43]
Transcript,
page 137, lines 1-8
[44]
Transcript,
page 138, lines 1-8
[45]
Transcript,
page 142, lines 14 – 19
[46]
Transcript,
page 143, lines 15 – 21
[47]
Transcript,
page 189, lines 1-14
[48]
Transcript,
pages 227-230
[49]
Transcript,
page 258, lines 3 – 20
[50]
Transcript,
page 310, lines 3 – 20; Transcript, page 311, lines 1 –
5, Record, page 360
[51]
Transcript,
page 365, lines 1 - 13
[52]
Transcript,
page 367, lines 8 – 18; page 368, lines 1- 21
[53]
Transcript,
page 370, lines 6 - 10
[54]
Transcript,
page 376, lines 12 – 17
[55]
Transcript,
page 377, lines 7 – 19
[56]
Transcript,
page 431, lines 4 – 8
[57]
Transcript,
page 434, lines 10 – 18
[58]
Transcript,
page 375
[59]
Transcript,
page 380, lines 1 – 20
[60]
Transcript,
page 528, lines 1 – 6
[61]
Transcript,
page 530, lines 9 – 15, Record, page 69
[62]
Transcript,
page 530, lines 9 – 15, Record, pages 70 – 73
[63]
Transcript,
page 531, lines 1 – 9
[64]
Transcript,
page 535, lines 1 – 10
[65]
Transcript,
page 536, lines 13 – 20; page 537, lines 1 – 7
[66]
Transcript,
page 537, lines 6 – 13
[67]
Transcript,
page 538, lines 2 – 18
[68]
Transcript,
page 539, lines 6 – 22
[69]
Transcript,
page 564, lines 1 – 20; Bundle of documents, pages 448 –
452
[70]
Transcript,
page 565, lines 1 – 11
[71]
Transcript,
page 587, lines 1 – 13
[72]
Record,
pages 85 – 88
[73]
Transcript,
page 625, lines 17 – 22; Record, pages 85 – 88
[74]
Transcript,
page 627, lines 14 – 21 and page 628, lines 1; Record, page 86
[75]
Transcript,
page 627, lines 14 – 21 and 628, line 1
[76]
Transcript,
page 632, lines 9 – 14
[77]
Record,
pages 87 – 88
[78]
Transcript,
page 646, lines 19 – 22; page 647, lines 1 – 3
[79]
Transcript,
pages 663-664
[80]
2013 (6) SA 224
(SCA) at para 25.
[81]
(2021) 42 ILJ 1686 (LAC) at para 21.
[82]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 21.
[83]
[2009] 1 BLLR 1
(CC) at para 65.
[84]
(2021)
42 ILJ 1071 (LAC).
[85]
(2023)
44 ILJ 1005 (LAC).
[86]
Arbitration
award, paragraph 35
[87]
Transcript,
page 124, lines 15 - 18
[88]
Transcript,
page 687, lines 13 to 21
[89]
Transcript,
page 9, lines 10 - 13
[90]
Arbitration
award, paragraph 6
[91]
Arbitration
award, paragraph 6
[92]
Arbitration
award, paragraph 8
[93]
Arbitration
award, paragraph 37
[94]
Arbitration
award, paragraph 34
[95]
Arbitration
award, paragraph 35
[96]
Arbitration
award, paragraph 32
[97]
Arbitration
award, paragraphs 23 and 26
[98]
Arbitration
award, paragraph 35
[99]
Arbitration award, paragraph 39
[100]
[2000] 9 BLLR 995
(LAC) at para 22.
[101]
Ibid at 22.
[102]
Ibid at 25.
[103]
[2010] 11 BLLR 1216 (LC).
[104]
Ibid
at paras 17 – 19.
[105]
Ibid
at 20.