Association of Mineworkers and Construction Workers Union obo Maeyane v Mello NO and Others (JR101/19) [2023] ZALCJHB 138 (2 May 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR101/19

In the matter between:

ASSOCIATION OF MINEWORKERS AND CONSTRUCTION WORKERS UNION (“AMCU”) OBO ANDRIES MAEYANE Applicant And MOHLOMELELE CHRISTOPHER MELLO N.O. First Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent MARULA PLATINUM (PTY) LTD Third Respondent

Heard: 26 April 2023

Delivered: 2 May 2023

JUDGMENT

MAKHURA, AJ

[1] This is an application in terms of section 145 of the Labour Relations Act[1] (LRA), to review and set aside the arbitration award issued by the first respondent (arbitrator) dated 4 December 2018. In terms of the award, the arbitrator found the dismissal of the individual applicant (employee) to be procedurally and substantively fair and dismissed his unfair dismissal claim.

[2] On 12 December 2017, the employee was charged with the following allegations of misconduct:

‘Gross Insubordination in that between 30th November and 5th December 2017, despite numerous attempts to convince you by HRD and HR officials, you allegedly refused to carry out a reasonable and lawful instruction to sign training centre assessment documents and passed out forms(s) following your refresher training course “Drill Rig 282”.

Gross Dishonesty in that from the 01.12.2017 until 05.12.2017, you clocked in for pay but did not proceed to your workplace.’

[3] The employee was found guilty of the charges and dismissed on 23 January 2018. After an unsuccessful appeal, he referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), the second respondent in these proceedings.

[4] The facts leading up to the dismissal of the employee are, to a significant degree, common cause. After the third respondent

(company) concluded its restructuring process, the employee was required to perform drilling work so that he could relieve the Drill Rig Operator (DRO) when he goes on leave. The employee was a qualified DRO and was employed as an instructor at the company’s

training centre.

[5] However, before he could be allocated any drilling work, it was necessary that he be given a refresher training. On 15 August 2017, he signed a document titled “authorisation to operate self-propelled mobile machinery, Rig 282”. This document provides, inter alia that he had completed a satisfactory course of training, site-specific training and has been found competent to operate the machinery by an actual test by the engineer or another competent person. He was then granted authorisation to drive the machine (Rig 282) as a learner driver under supervision.

[6] He started his refresher or retraining as a DRO from 30 October to 10 November 2017, whereafter, he was sent for trauma counselling between 11 and 26 November 2017. He resumed his retraining on 29 November 2017 to 30 November 2017.

[7] Justice Mahlakwana (Mahlakwana) was the instructor responsible for retraining the employee. On 30 November 2017, Mahlakwana declared the employee competent to perform the duties of a DRO. The employee signed the declaration form confirming his competency. However, the employee refused to sign the pass-out form, which is a form that would enable Human Resource department to release him from training and be allocated work as a DRO. His refusal meant that he could not be released from training and could not be allocated work as a DRO.

[8] The arbitrator recorded that the employee had previously worked as a DRO at his erstwhile employer, that he was a Rig Master and that all Drill Rig Operators were reporting to him. He found that the employee had completed his training and was declared competent on 30 November 2017. The employee admitted that he signed the documents declaring him competent to perform his job as a DRO. Although the employee claims to have not read the documents, Shai testified that the employee read the declaration documents.

[9] After successful completion of the training, the employee was required to sign a pass-out form to be allocated a workstation. The employee admitted that he refused to sign this document. The reason for his refusal was that contrary to the declaration of competency which he also signed, he was not competent because his colleague, Medupi Shai (Shai), assessed and found him incompetent.

[10] Between 30 November and 5 December 2017, the company made attempts to persuade him to sign the pass-out form. On or about 1 December 2017, the company called a meeting with the employee and the union. The company explained the reason for him to sign the pass-out form and the consequences of his refusal. The employee persisted with his refusal.

[11] On 5 December 2017, the company addressed a letter to the employee. In addition to recording the employee’s refusal to sign the pass-out form, the letter served as an instruction to the employee to sign the form within 24 hours and warned him of the consequences of his refusal, which was that he would face a disciplinary hearing. The employee did not adhere to the instruction.

[12] The arbitrator found that the employee could not assess himself. His colleague, Shai, could not and was not authorised to assess the employee. He found that Mahlakwana was an authorised assessor with competency to assess the employee. Having considered that the employee was a qualified DRO, that he was a Rig Master and that he attended a refresher training to operate the machine, the arbitrator rejected the employee’s claim that he was incompetent as untrue, opportunistic and an excuse to avoid working as a DRO. He concluded that the employee’s refusal to sign the pass-out form was unreasonable and unjustifiable. He found that the employee’s conduct was serious, persistent and deliberate and undermined the company’s authority and found his dismissal substantively fair.

[13] The arbitrator did not deal with the second charge and considered it as academic. This finding was not challenged. Accordingly, it is not necessary for this Court to deal with the second charge of gross dishonesty.

[14] Regarding procedural fairness, the arbitrator considered the claim made by the employee that the chairperson did not allow him to ask questions during the disciplinary hearing. He found that there was insufficient evidence to support this claim and dismissed the claim for procedural unfairness.

[15] The employee advances numerous grounds of review. He argues that the arbitrator committed an irregularity in that he denied him an opportunity to present his case (the procedural ground).

[16] Secondly, he argues that the arbitrator erred in failing to acknowledge that his refusal to obey the instruction was in his best interest, in the interest of the company and his fellow employees (the duty of care).

[17] Thirdly, the employee argues that the arbitrator failed to consider the accountability and duty of care that the company owed to the employee and all its employees as it is bound by the health and safety standards and regulations. In this regard, the arbitrator is accused of unreasonably finding the company to be harmless and without fault (the company’s gross negligence).

[18] The fourth ground is that the arbitrator erred in that he failed to consider the provisions of Schedule 8 of the Code of Good Practice: Dismissal (Code of Good Practice), more specifically an enquiry into whether dismissal was the appropriate sanction (sanction).

[19] The legal test is whether the decision reached by the arbitrator is one that a reasonable decision-maker could not reach.[2] The Labour Appeal Court has observed that this is a stringent test, one which ensures that the awards are not lightly interfered with.[3] Accordingly, if the decision of the arbitrator is one that could not be reached by a reasonable decision-maker, it would be liable to be reviewed and set aside.

[20] The employee was charged and dismissed for gross insubordination. Insubordination is described as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate and serious challenge to the employer’s authority.[4]

[21] In the present matter, the employee was instructed more than once over a period of at least 5 days to sign the form. He was later issued with a letter and warned of the consequences of his deliberate defiance of the instruction. He had sufficient time to reflect on his conduct but was steadfast and deliberate in his refusal. The arbitrator has considered and dealt with the evidence regarding his refusal. He rejected the employee’s claim that he was not competent. The employee could not assess and declare himself competent or incompetent, neither could Shai do that.

[22] The review grounds relating to the duty of care and the compliance with health and safety regulations are intended to suggest that the instruction was unlawful and unreasonable. There is nothing unlawful or unreasonable with the instruction. The employee signed the declaration of competency documents and

thereafter refused to sign the pass-out form. The onus was on him to prove that, despite his qualification, refresher training and the declaration of his competency signed by him and the company, he was not competent. The company correctly submitted that the issue relating to the employee’s competence became academic after both parties signed the declaration of competency assessment form.

[23] Regarding the procedural fairness ground, the employee argued that the arbitrator prevented his representative from cross-examining the company’s witnesses. This is also the same argument he advanced at arbitration proceedings, that he was prevented from asking questions. Having considered the record, I do not agree that the arbitrator prevented the employee from asking questions to the company’s witnesses. For example, the line of questioning about whether the employee operated the machine on 30 November 2017 was not only exhausted but is in fact irrelevant to the charge of gross insubordination. The employee did not claim any prejudice, nor did he demonstrate that the alleged conduct of the arbitrator had a distorting effect. Regardless, the award is reasonable. This ground must therefore fail.

[24] The ground relating to the appropriateness of the sanction of dismissal is premised on the argument that the arbitrator failed to apply the provisions of the Code of Good Practice. The employee also argued that demotion and/or a final written warning were alternative options to dismissal.

[25] The disciplinary code provides for a sanction of a final written warning or dismissal. The company elected to dismiss based on what it considered serious and persistent insubordination.

[26] The argument that because demotion was an alternative to dismissal 5 days before the employee was charged and why it was not considered as an alternative at the disciplinary and arbitration proceedings, is respectively misplaced. Five days prior to the issuing of the charge sheet, the company was still persuading the employee to reconsider his conduct and comply with the instruction. He was unbothered. A final opportunity, this time in writing, was extended on 5 December 2017, but he remained defiant. At this point, the defiance has been aggravated.

[27] It is apparent from the award that the arbitrator considered the seriousness of the employee’s conduct as central to his finding that dismissal was substantively fair. The arbitrator said that the employee’s conduct was “serious, persistent and deliberate” and undermined the company’s authority and on that basis, his dismissal was substantively fair. This, in my view, shows that the arbitrator considered the appropriateness of sanction and on the strength of the seriousness of the misconduct, found the employee’s dismissal to be appropriate. The award is unassailable. The review application therefore falls to be dismissed.

[28] Regarding costs, both parties agreed during the hearing that no costs order should be made.

[29] In the premises, the following order is made:

Order

1. The application is dismissed.

2. There is no order as to costs.

M. Makhura

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. AL Cook Instructed by: LDA Incorporated For the Third Respondent: Adv. V Mndebele Instructed by: Webber Wentzel

[1] Act 66 of 1995, as amended.

[2] Sidumo and another v Rustenburg Platinum Mines and others (2007) 28 ILJ 2405 (CC) at para 110.

[3] Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others (2008) 29 ILJ 964 (LAC) at para 100.

[4] Palluci Home Depot (Pty) Ltd v Herskowitz and others (2015) 36 ILJ 1511 (LAC) at para 19; Masscash (Pty) Ltd t/a Jumbo Cash & Carry v Mtsotsoyi and others (2023) 44 ILJ 162 (LAC) at para 27.