AMCU obo Mkhonto and Others v Commission For Conciliation, Mediation And Arbitration and Others (JR 2266/17) [2023] ZALCJHB 23; (2023) 44 ILJ 1046 (LC); [2023] 5 BLLR 403 (LC) (13 February 2023)

AMCU obo Mkhonto and Others v Commission For Conciliation, Mediation And Arbitration and Others (JR 2266/17) [2023] ZALCJHB 23; (2023) 44 ILJ 1046 (LC); [2023] 5 BLLR 403 (LC) (13 February 2023)

The court found that the instruction to work overtime was unlawful as there was no agreement in terms of section 10(1)(a) of the BCEA, and any contractual obligation to work overtime had lapsed for most applicants. The commissioner erred in finding an implied agreement and failed to consider the lawfulness of the instruction. The applicants' refusal did not constitute wilful or malicious insubordination, and the sanction of dismissal was disproportionate, especially as this was a first offence and not accompanied by insolence. Progressive discipline should have been applied. The dismissal was therefore substantively unfair, and reinstatement with full back pay was ordered.

Citation
[2023] ZALCJHB 23
Parties
Applicant: Association of Mineworkers and Construction Workers Union obo Mkhonto and Others; Respondent: Commission For Conciliation, Mediation And Arbitration; Respondent: Solly Mashego N.O.; Respondent: Andru Mining (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 February 2023
Case Number
JR 2266/17
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application succeeded. The arbitration award was set aside and substituted with an order of reinstatement and full back pay for the applicants.
Judges
Nkutha-Nkontwana
Legal Topics
Insubordination, Refusal to Work Overtime, Basic Conditions of Employment Act, Progressive Discipline, Unfair Dismissal
Labour Law Civil Procedure Insubordination Refusal to Work Overtime Basic Conditions of Employment Act Progressive Discipline Unfair Dismissal

Case Brief

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Parties

Association of Mineworkers and Construction Workers Union obo Mkhonto and Others

Applicant

Commission For Conciliation, Mediation And Arbitration

Respondent

Solly Mashego N.O.

Respondent

Andru Mining (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the instruction to work overtime was lawful and enforceable under section 10(1)(a) of the BCEA.
  2. 2 Whether the applicants were guilty of gross insubordination for refusing to work overtime.
  3. 3 Whether the sanction of dismissal was appropriate given the circumstances.

Ratio Decidendi

The court found that the instruction to work overtime was unlawful as there was no agreement in terms of section 10(1)(a) of the BCEA, and any contractual obligation to work overtime had lapsed for most applicants. The commissioner erred in finding an implied agreement and failed to consider the lawfulness of the instruction. The applicants' refusal did not constitute wilful or malicious insubordination, and the sanction of dismissal was disproportionate, especially as this was a first offence and not accompanied by insolence. Progressive discipline should have been applied. The dismissal was therefore substantively unfair, and reinstatement with full back pay was ordered.

Court Disposition

The review application succeeded. The arbitration award was set aside and substituted with an order of reinstatement and full back pay for the applicants.

Orders

  • The arbitration award under case number MP 4577-17 dated 13 August 2017 is reviewed and set aside.
  • The dismissal of Messrs Mbulelo Mkhonto, Themba Shongwe, David Nthako and Ms Ethel Nkebe is declared substantively unfair.