Mathamaga v CCMA and Others (JR1455/20) [2021] ZALCJHB 104 (26 May 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1455/20

In the matter between:

MAPOGO

A

MATHAMAGA Applicant

and

THE

CCMA First Respondent

COMMISSIONER E HLUNGWANI N. O Second Respondent

PHILLIMON

KELATLHIWE Third Respondent

Heard: 25 May 2021

Delivered: 26 May 2021

Summary: An unopposed review application – where an award falls outside the bounds of reasonableness, it is reviewable in law. Held: (1) The award is reviewed, set aside and replaced with an order of Court. Held: (2) No order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This is an unopposed application seeking to review and set aside an award issued by the second respondent, in terms of which it was found that the dismissal of Phillimon Kelatlhiwe (Kelatlhiwe) was substantively unfair. The second respondent ordered the applicant to reinstate Kelatlhiwe retrospectively and to pay him backpay. Aggrieved thereby, the applicant launched the present application. Although Kelatlhiwe did not file any opposing papers, he made an appearance in Court. He did not seek a postponement of the matter.

Background facts

[2] Kelatlhiwe was employed as a site manager by the applicant. The onset of this dispute was that due to salary disputes, Kelatlhiwe stopped reporting at a site. Owing to that dispute, a meeting was arranged in order to resolve the dispute. On 22 October 2019 such a “grievance” meeting took place. Present was Ms Nel; Mr Van der Merwe; Mr Vermeulen; Mr Cronje and Kelatlhiwe. The issues of Kelatlhiwe were that since he was relocated from Rustenburg to Randfontein, he was failing to meet his financial obligations and was looking forward to be assisted by the applicant financially. After the meeting a written instruction was issued by the Human Resources Official, Ms Nel (Button at the time) to the effect that Kelatlhiwe must report for duty and commence with his duties. In the written instruction, Kelatlhiwe was informed that he shall not be assisted financially.

[3] Kelatlhiwe did not report for duty as instructed. On the subsequent days he fell ill and reported back after his sick leave. On 5 November 2019, he received notification to attend a hearing in order to answer to the allegations of gross insubordination for failing to heed the written instruction of 22 October 2019. After a disciplinary hearing he was found guilty and dismissed. Aggrieved by his dismissal, he referred a dispute to the CCMA alleging unfair dismissal. As indicated above, he was issued with a favourable award. The applicant was aggrieved thereby hence this application.

Grounds for review

[4] The applicant raised various grounds of review which demonstrates that the second respondent ignored material evidence tendered before him. His conclusion that the instruction was not reasonable is one that a reasonable decision maker may not reach, it was contended.

Evaluation

[5] Insubordination is a form of misconduct and it happens when an employee refuses to accept the authority of his employer or of a person in a position of authority over the employee. In this matter there is no dispute that because of his gripes, Kelatlhiwe did not report at the allocated site. It is also not in dispute that the Human Resources Manager issued a clear written instruction for Kelatlhiwe to report at the site after the grievance meeting. It is undisputed that Kelatlhiwe failed to follow that instruction and only returned to work on 28 October 2019.

[6] Kelatlhiwe testified that he could not follow the instructions for two reasons; namely; that (a) he did not bring his uniform (PPE) and (b) he would have knocked off late to still travel to Rustenburg as he no longer resided at Randfontein. The Commissioner turned these two reasons into the basis that the instruction was unreasonable. The question whether an instruction is reasonable or not is a question of fact to be determined on a case by case basis. Ordinarily, the reasonableness is determined on the basis of the contents of the instruction and not on how an employee feel about the instruction. In other words, the test is objective as opposed to being subjective. Objectively viewed, there is nothing unreasonable with an instruction to report for duty and perform the duties contracted for. That is what employees are employed to do.

[7] It is apparent that the real reason why Kelatlhiwe failed to heed the instruction on the day is the refusal of the employer to assist him financially. He had certain demands and he felt that the employer is not coming to his aid by accepting his demands. This conduct also fits a strike action as defined in the LRA.[1]

[8] Returning to the review test, a finding that the instruction was unreasonable is not one that a reasonable decision maker may reach regard being had to the evidence presented before the Commissioner. A reasonable decision maker would have concluded that the instruction is reasonable. It is one thing to suggest that an instruction is unreasonable, it is yet another thing when an employee provides an excuse or some justification why the instruction was not followed. A palpably unreasonable instruction can simply be ignored. In this instance the reasons advanced by Kelatlhiwe were flimsy excuses more than anything. The Commissioner accepted those excuses at the altar of reasonableness of the instruction.

[9] Having concluded that Kelatlhiwe did not breach any rule, which conclusion is patently inconsistent with the evidence tendered by the applicant’s two witnesses, for some inexplicable reasons, the Commissioner considered the issue of the appropriateness of the sanction of dismissal. Where a finding is reached that a rule has not been broken, such simply entails that an employee is not guilty of a misconduct. An employee who is not guilty of a misconduct cannot be sanctioned let alone be dismissed. That being the case, the issue of the appropriateness of a sanction does not emerge where a not guilty verdict is returned.

[10] The conclusion reached by the second respondent on this issue of appropriateness of sanction remains convoluted. He concludes that what Kelatlhiwe did was not gross. It is unclear as to what it was that Kelatlhiwe did. If it is insubordination, then Kelatlhiwe had breached a rule. The Commissioner concludes that because Kelatlhiwe did not breach the rule, then his “unidentified actions” are not gross, thus dismissal was not appropriate. With respect, this circuitous reasoning does not command itself to clarity. It is in fact nonsensical in my view. The applicant charged Kelatlhiwe with “gross” insubordination. The usage of the word “gross” simply implies that it was viewed as a serious disregard of authority.

[11] Where an employee obdurately challenge the authority of his or her employer, that is a serious misconduct which affects the continuation of employment relationship. An employee has a contractual duty to obey lawful and reasonable instructions of his or her employer.[2] As indicated earlier it seem perspicuous that Kelatlhiwe refused to carry-out the instruction in order to remedy his loan or financial assistance grievance. That makes the insubordination gross[3].

[12] For all the above reasons, the award issued by Hlungwani is not one that a reasonable decision maker may reach. Accordingly, the review application must succeed.

[13] In the results the following order is made:

Order

1. The arbitration award issued by Commissioner E Hlungwani under case number NWRB4195-19 dated 8 August 2020 is hereby reviewed and set aside.

2. It is replaced with an order that the dismissal of Phillimon Kelatlhiwe is substantively fair.

3. There is no order as to costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Ms T Cooper.

Instructed by: Len Dekker Attorneys, Pretoria.

The third Respondent: In Person.

[1] See Mndebele v Xstrata SA Pty) Ltd t/a Xstrata Alloys [2016] 37 ILJ 2610

[2] See Palluci Home Depot (Pty) Ltd v Herskowirtz [2015] 36 ILJ 1511 (LAC)

[3] See Johannes v Polyoak Industries [1998] 1 BLLR 18 (LAC).