IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO.
J3721/00
In the matter between:
NATIONAL UNION OF MINEWORKERS First
Applicant
LEFU NOOSI Second Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION, AND ARBITRATION First
Respondent
J HEIMSTRA, N.O. Second
Respondent
MATLA COAL LIMITED Third Respondent
JUDGMENT
_____________________________________________________________
___
NDLOVU AJ
Introduction
[1] This is a review application served in terms of section
145 of the Labour Relations Act 66 of 1995 (“the LRA”).
The First Applicant (“the Union”) was the collective
bargaining agent of the Second Applicant (“Noosi”) who
was formerly employed by the Third Respondent (“the
employer”).
[2] Noosi commenced his employment with the employer
on 8 March 1991. He was dismissed in or about February
2000 (exact date not stated) upon a conviction for
misconduct by the internal disciplinary hearing. The
misconduct involved Noosi’s refusal to carry out a
reasonable and lawful instruction given to him by his
superior, in violation of the employer=s Disciplinary Code.
His appeal against the dismissal failed. Hence, he referred
the dispute to the First Respondent (“the CCMA”), which
culminated in the arbitration proceedings, being conducted
before the Second Respondent (“the Commissioner”) on 7
July 2002.
[3] On 19 July 2002 the Commissioner issued his award in
terms of which Noosi’s dismissal was declared to be
procedurally and substantively fair. It is this award
which the employer seeks to be reviewed and set aside.
The Facts
[4] Whilst employed by the employer, Noosi was engaged
as a qualified or licensed continuous miner operator at
the employer’s coal mine, since 1 June 1995. The
continuous miner was described as a huge mine coal-
cutting machine, which was driven or operated by two
operators - being the first operator (“the operator”) and
the second operator (“the assistant”).
[5] Each continuous miner operator was subjected to
training and evaluation for the purpose of obtaining the
operator’s licence. This licence was renewable
periodically after further evaluations which were
conducted from time to time by the appropriate
evaluation authority of the employer or its agent, called
Joy Mining Machinery (“Joy”). It would appear,
however, that Noosi disputed the averment that Joy was
undertaking the training and evaluation of operators.
According to him this was done only internally by the
employer’s instructors.
[6] Evidence was led at the arbitration hearing that on 29
September 1998 Noosi was evaluated by the internal
instructor and found to be competent, albeit a remark
was made in the evaluation report that he required to
improve on his cutting tempo. The cutting tempo was
described as “the performance that a machine operator
for the available time can produce during a shift”.
(See: Transcript of Arbitration record, at page 33 line
18 of the court bundle) . It was about how many tons
per minute an operator cut during a particular shift.
The average cutting tempo was 3.25 tons per minute.
(See: page 34 line 18 of the Transcript). To the
employer the cutting tempo was, therefore, a very
important production factor and it was ensured that
each operator’s cutting tempo was monitored regularly.
[7] During the period 4 to 10 January 2000 it was noted
that Noosi’s cutting tempo had dropped significantly.
As a result, his immediate supervisor, a Mr Pretorius,
decided to relieve him of the operator’s duties and
relegated him to the position of assistant. Another
employee, known only as James, was elevated to the
status of operator and operated Noosi’s machine. An
improvement was soon noted in the cutting tempo after
James had taken over. At that time Noosi was working
as James’s assistant.
[8] On 18 and 19 January 2000 were the days when a Joy
instructor was expected by the employer to visit the
mine for the evaluation of operators. All other
operators were evaluated without any objection or
problem. When the Noosi’s turn for evaluation came,
he refused to be evaluated. The employer’s evidence
(before the Commissioner) was that Pretorius instructed
Noosi to get onto the continuous miner and operate it
for the purpose of his evaluation and training. Noosi
declined to obey the instruction, holding that since he
had, a few days earlier, been instructed not to touch
the machine, he would not operate it. Thereupon,
Pretorius reported the matter to his (Pretorius’s) own
supervisor a Mr du Plooy, who held the position of shift
boss.
[9] Du Plooy then confronted Noosi with the same
instruction. Twice du Plooy instructed Noosi and twice
Noosi defied the instruction. When du Plooy threatened
Noosi with disciplinary action the latter simply retorted :
“I don’t care”.
[10] It was this behaviour by Noosi which led to him being
brought before a disciplinary enquiry and charged with
refusing to carry out a reasonable and lawful instruction
given to him by a superior. He was found guilty and
summarily dismissed. He took the matter on appeal,
which failed.
[11] Noosi denied that on the day in question he was ever
instructed by Pretorius to operate the machine. He
said that he was instructed only by du Plooy whom he
(Noosi) did not consider to have had the authority to
give him instructions. As far as he was concerned the
only person who had the authority to instruct him was
his supervisor, Pretorius, who however, a few days
earlier had instructed him not to operate the machine.
[12] Further, Noosi contended that he had never been
evaluated by a Joy instructor before. In this regard, the
Union also argued that if there was to be any change in
its member’s evaluation process it had to be first
consulted by the employer on the matter.
The Law
[13] The Court would not lightly interfere with a
commissioner’s award unless it was satisfied beyond a
balance of probabilities that the award was not
rationally justifiable in relation to the reasons the
commissioner gave therefor taking into account the
material properly made available to the commissioner.
(See: Carephone (Pty) Ltd v Marcus NO and
Others [1998]19 ILJ 1425 (LAC), at 1434 B-E;
1435 A-B), Shoprite Checkers (Pty) Ltd v Ramdaw
NO and Others [2001] 22 ILJ 1603 (LAC) at
paragraph 82 D-E; Toyota Motors SA (Pty) Ltd v
Radebe and Others [2000] 3 BLLR 243 (LAC), at
paragraphs 52 - 53; Rustenburg Platinum Mines
Ltd (Rustenburg Section) v CCMA and Others
[2003] 7 BLLR 676 (LAC) at paragraph 19.
[14] In Carephone, supra, the Labour Appeal Court noted
that an arbitration award, albeit resembling a judicial
decision, was infact an administrative decision, taken
by a public functionary (a commissioner) in the
performance of a public function and in the exercise of
a public power, assigned to and conferred upon the
functionary by relevant Legislation or the Constitution
(at page 1430 D-G and 1431 E - G). (See also:
sections 133 - 150 of the LRA and section 32 of
the Constitution of the Republic of South Africa
Act 108 of 1996).
[15] In Basson v Provincial Commissioner (Eastern
Cape) Department of Correctional Services
[2003] 24 ILJ 803 (LC) at 820 C - F; [2003] 4 BLLR
341 (ILC) at 355 I - J/356 A - B, the Court held that:
“The courts are, generally, wary and reluctant to
interfere with the executive or other
administrative decisions taken by the executive
organs of government or other public
functionaries, who are statutorily vested with
executive or administrative power to make such
decisions.
These administrative decisions shall only fall
within the purview of judicial review and be
set aside, where they are found to be
patently arbitrary or capricious, objectively
irrational, or actuated by bias or malice, or by
other ulterior or improper motive “
Application of the Law to the Facts and
Evaluation of the Application
[16] In terms of Item 6 of the Employer’s Disciplinary
Code (of which the Union was a co-signatory) the
sanction for the misconduct of “ Refusal to obey
any reasonable instructions which fall within
the scope of the employee’s duties” may be a
“Dismissal” even for a first offender. However,
the Code further provides that “it does not
mean that the suggested penalty is
mandatory”, and that the “ Code should (only)
serve as a guideline”.
[17] The Applicant’s founding affidavit listed a total of
some 26 points of criticism of the Commissioner’s
award. However, virtually all of these points do
not allege any grounds for review in terms of
section 145 of the LRA, nor do they comply with
Rule 7A(2)(c) read with Rule 7(3)(b) and (c) of the
Rules of the Court. For instance, some, if not
most, of these allegations are couched in such
generalised form as to render the other party
unable to respond thereto. Other allegations
would appear to have relevance only in appeal
procedure and not reviews. As such they are
irrelevant to the present proceedings. As the
Labour Appeal Court noted in Shoprite Checkers,
supra, that “[o]ne must … bear in mind the
importance of maintaining the distinction between
appeals and reviews” (at paragraph 82 F - G).
[18] The Commissioner accepted the employer’s
evidence that on the day in question Noosi was
instructed by both Pretorius and du Plooy. As
alluded to earlier, Noosi disputed that he was
instructed by Pretorius. He acknowledged only
being instructed by du Plooy, which instruction he
declined to carry out. The Commissioner’s
decision to accept the employer’s version in this
regard involved a factual finding by him on a
credibility issue. Such finding would not, to my
mind, be subject to judicial scrutiny, unless there
was sufficient evidence to show that the
Commissioner was clearly wrong, as to be
misdirected, or committed a gross irregularity
when he made the finding. There is no evidence
in the present case pointing to either of these
occurrences. I am accordingly inclined to accept
the Commissioner’s finding that both Pretorius and
du Plooy gave the same instruction to the
employee, which the employee blatantly defied.
In any event, du Plooy, being Pretorius’s
supervisor, would, in my view, have had the
authority ex officio to issue instructions to
Pretorius’s subordinates (including the Applicant)
which Pretorius would have lawfully given.
[19] It is not clear, in the first place, why Noosi
objected to being evaluated by the Joy instructor
on 19 January 2000. Evidence was adduced (for
the employer) that Joy had started as early as in
1998 to train and evaluate the employer’s
continuous miner machine operators. The
evidence had further established that, indeed, in
1998 Noosi himself was evaluated by a Joy
instructor, Mr Nxumalo and he (Noosi) had not
objected thereto. This aspect came up clearly
during the evidence-in-chief of the employer’s
witness at the arbitration hearing (du Plooy).
Documentary evidence was produced ( at page
134 of the bundle ), of a “Field Service Report”
issued in the printed letterheads of “Joy Mining
Machinery”, on 16 October 1998, to the effect that
on that date Noosi (Company No. 5837) was
evaluated by Joy instructor, Ernest Nxumalo. It
was therefore beyond my understanding why
Noosi persistently denied any knowledge of Joy
instructors being involved in the training and
evaluation of the continuous miner machine
operators.
[20] Obedience and loyalty on the part of an employee
constitute the core and nucleus of a successful
and sustainable working relationship between
employer and employee. Flagrant defiance by an
employee of a reasonable and lawful instruction
given by a competent authority of the employer,
within the ambit and scope of the employee’s
employment, is therefore both abhorrable and
untenable. Indeed, such behaviour also
constitutes resentment and insubordination of the
employer’s authority.
[21] It is clear however that, in terms of the
Disciplinary Code, the employer had discretion
either to dismiss an offending employee or to
impose any other penalty short of dismissal. In
this regard, the employer should be expected to
exercise its discretion in a manner which is
objectively fair and just, each case being be
treated on its own merits.
[22] It was submitted on behalf of Noosi that he (Noosi)
was a 62 year-old man who had worked for the
employer for almost 9 years. However, it did not
appear that the issue of Noosi’s age was a factor
which was brought to the attention of the
Commissioner. It cannot therefore be considered
at the review stage.
[23] The employer submitted that Noosi had previously
been convicted of a similar transgression and
given a final written warning. During the
arbitration proceedings, however, Noosi appeared
to dispute the alleged previous conviction, or, at
least, not to be aware of it as described. The onus
was on the employer to prove that Noosi did have
such previous conviction and the final warning.
[24] In the attempt to prove the previous conviction
aforesaid, it was submitted on behalf of the
employer that in terms of paragraph 2.3 of the
pre-arbitration minutes it was recorded as a
common cause issue that on 6 January 2000 Noosi
was served with a “Final Warning” for a
misconduct conviction involving “ Neglect to
carry out a reasonable instruction “and
“‘Non-adherence to Policy, Regulations and
Standards”. This was less than 2 weeks before
the date of the incident under consideration
(which occurred on 19 January 2000). It was,
according to the employer, surprising therefore
how Noosi should not know about it. (The pre-
arbitration minutes concerned appeared at pages
154 and 155 of the court bundle). What was
remarkable, however, was that the minutes were
not signed by the parties to it or their
representatives. It appeared that the page which
would have borne the parties’ signatures was
missing or simply not included in the court file.
[25] Furthermore, elsewhere in the court file, the final
warning aforesaid was recorded to have been
issued to Noosi on 2 February 2000, which was a
date already after Noosi had committed the
present misconduct, in respect of which he was
dismissed. It seems this could not possibly have
been an inadvertent clerical error on the part
employer because the entry appeared at two
separate places in the court file . (see: pages 26
and 33 of the court bundle).
[26] This apparent confusion as to the alleged Noosi’s
previous conviction, coupled with his denial of that
conviction, was a matter which, in my view,
mitigated in his favour, in the sense that he
thereby deserved to be treated as a first offender.
It would appear, however, that the Commissioner
merely focused on the fact that the Code
permitted the sanction of dismissal even for a first
offender. That being so, it did not appear from the
Commissioner’s award that he ever took into
account the fact that the sanction of dismissal was
not mandatory, but discretionary. This, it seems
to me, was a misdirection on the Commissioner’s
part.
[27] Another consideration which, in my view, deserved
to have been taken into account was the timing of
the incident in question. The state of affairs in
relation to Noosi’s working condition was not
normal at the time. A few days earlier he had been
taken out of the more senior position of operator
and relegated to the lower position of assistant.
James had then been placed in his position. In
other words, Noosi’s charge of the machine (an
apparently high profile position in the employer’s
workplace) was deprived of him. Even if this was
meant to be a temporary measure (which there
was no evidence it was), Noosi probably regarded
it as a demotion or punishment. If he did so, it
would be understandable. He had not been
accorded any proper hearing, if at all, before a
decision was taken to remove him and replace him
with James. He clearly felt aggrieved about it and,
as I have observed already, his concern was
understandable.
[28] Further, there did not seem to be any evidence before
the Commissioner that the trust and work relationship
between Noosi and the employer had irretrievably broken
down to the extent that the sanction of dismissal was the
only option.
[29] At this juncture it may be mentioned that the
transcript of the record of arbitration proceedings
was interspersed with a lot of “inaudible”
recording. It would appear some crucial aspects of
the record may have been omitted. For instance,
the transcript reflects, among others, an
incomplete sentence: “ The second applicant was
dismissed .......... (inaudible) (at page 24 line 26 of
the bundle). This apparently related to the
employee’s date of dismissal, which, as a result of
the inaudible part of the cassette, remained
unrecorded.
[30] Whilst the evidence before the Commissioner
appeared to support Noosi’s conviction of
misconduct as charged, the sanction of dismissal
was not, in my view, rationally justifiable in
relation to the evidence and material properly
before the Commissioner. It seems to me fair and
equitable to remit the dispute to the CCMA for the
Commissioner to reconsider the question of
sanction in the light of this Judgment.
Order
[31] In the result, the Court makes the following order:
(1) The arbitration award issued by the
Commissioner on 19 July 2000 under Case
No. MP15742 is hereby reviewed and set
aside.
(2) The dispute between the Second Applicant
(the employee) and the Third Respondent
(the employer) is referred back to the CCMA
for the Commissioner to reconsider the
question of sanction in the light of this
Judgment.
(3) There is no order as to costs.
______________
NDLOVU AJ
Appearances:
For the Applicants : Ms T H Sethosa
c/o Nomali Tshabalala
Attorneys
Johannesburg
For the Respondents : Adv A T Myburgh
Instructed by : Leppan Beech Attorneys
Johannesburg
Date of Hearing : 12 September
2003
Date of Judgment : 25 September
2003