National Lotteries Commission v CCMA and Others (JR835/19) [2021] ZALCJHB 102; (2021) 42 ILJ 2001 (LC) (4 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR835/19

In the matter between:

NATIONAL LOTTERIES COMMISSION Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION First Respondent

COMMISSIONER DAVID MAREI SELLO N.O Second Respondent

TSHILILO CORDELIA NDONYANE Third Respondent

Heard: 19 May 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 04 June 2021.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] What serves before me is a review application in terms of section 145 of the Labour Relations Act[1] (LRA). The applicant, the National Lotteries Commission (NLC) impugns the arbitration award issued by the second respondent (Commissioner) under case number GATW17356-17 dated 17 April 2019 under the auspices of the first respondent, the Commission for Conciliation Mediation and Arbitration (CCMA). The Commissioner found the dismissal of the third respondent, Ms Tshililo Cordelia Ndonyane (Ms Ndonyane) substantively unfair and reinstated her with full back pay.

[2] The NLC argues that the Commissioner committed reviewable irregularities by the reason of rendering unreasonable findings. Ms Ndonyane is the only respondent defending the award.

Pertinent facts

[3] The facts in this matter are mostly common cause. In 2016, the NLC embarked on a process of restructuring. Pursuant to the restructuring process, there were several employees that were affected and had to be placed to the new structure. The process of placement saw some employees being deployed to other provinces outside of Gauteng. The restructuring was a consultative process involving the trade unions, NUPSAW and NEHAWU. Ms Ndonyane was a member of NEHAWU. To guide the process, the parties adopted the Terms of Reference and the Redeployment Plan. The reprocess was undertaken in three phases:

‘Phase 1

Volunteers who are direct match will be placed in their preferred Provincial Choices. Appointment letter to be issued and deployment process to start with employees.

Phase 2

One to Multiple – Where there are more than one volunteers per position in the specific Province interviews will be conducted in 2 weeks. Unsuccessful employees will have an opportunity for consideration of their mapping and selection. An aggrieved party can Appeal the outcome of the process through the NLC Disciplinary and Grievance Policy.

Phrase 3

Unplaced employees will be mapped to Provincial structure and deployed’[2]

[4] On 18 March 2016, the NLC addressed a memorandum to all affected employees, including Ms Ndonyane, officially commencing with phase one of the process by calling for voluntary deployment. Those willing to volunteer for redeployment to the provinces were required to list three preferred provinces to be deployed to. Ms Ndonyane volunteered to be deployed to Gauteng as her first preferred province and gave a brief motivation. The second and third preferred provinces were Limpopo and Free State, respectively.

[5] Considering that there were more than one employees who volunteered to be deployed to Gauteng, phase two was triggered. The interviews took place in August 2016 and Ms Ndonyane unsuccessfully competed for deployment to Gauteng.

[6] During the very same period the employee who had been successfully placed in Gauteng left the department, resulting in a vacant position for deployment to Gauteng. In September 2016, the NLC advertised the vacant position in Gauteng externally without considering Ms Ndonyane for placement in that position. Ms Ndonyane applied for the advertised position but she was not shortlisted. In December 2016, she lodged a formal grievance which was finalised in February 2017. The outcome was in her favour and she was afforded an opportunity to be considered for the vacant position. In April 2017, she was duly interviewed, together with external candidates.

[7] On 09 June 2017, the NLC informed Ms Ndonyane that the position of Grant Agreement Officer: Gauteng Province would no longer be filled due to the new alignment of the Grant Funding structure. Ms Ndonyane was then directed to relocate to the Limpopo Provincial office and take-up her deployment position. She had to liaise with Human Capital for logistical arrangements relating to her relocation to be able to report to the provincial office by 1 October 2017.

[8] On 17 July 2017, there was a follow-up communication from the NLC addressed to Ms Ndonyane as regards her relocation to Limpopo. She responded on 19 July 2017, indicating that since she hadn’t receive a formal letter deploying her to the Limpopo Provincial office, she found it difficult to relocation as she had some outstanding questions on the relocation process and what position she was deployed to since her position then had been declared redundant.

[9] On 27 July 2017, the NLC addressed a communication to Ms Ndonyane formally advising her that had been placed per the realigned structure to the position of a Monitoring and Evaluation Officer, located in the Limpopo Provincial office effective from 1 August 2017.

[10] On 11 August 2017, Ms Ndonyane responded by accepting the placement to the position but declining the relocation to the Limpopo Provincial office, stating the following in her acceptance letter:

‘I have received letter dates the 25th of July 2017 informing me that I have been moved to the newly established Monitoring and Evaluation department from 1 August 2017. This exiting news for me and I believe that it will add value and opportunities to my careers and development within the organisation.

It is however a concern that I have been allocated to work at the Limpopo province. I would like to request the organisation to consider me for the position of Monitoring and Evaluation in Gauteng province. I have personal circumstances as explained below that will make the move to Limpopo province extremely difficult, I would you to conifer my circumstances and prove me with an opportunity to remain in the Gauteng province…’[3]

[11] Since Ms Ndonyane was persistently challenging the fact that she had never received a formal letter of deployment, the NLC issued her with one on 21 November 2017 and directed her to accordingly report for duty by 2 January 2018. Notwithstanding, Ms Ndonyane still did not relocate to the Limpopo Provincial office. On 08 March 2018, she formally appealed her deployment on the basis of technical procedural irregularities and medical reasons. The appeal was unsuccessful and she was directed to report for duty at the Limpopo Provincial office on 30 April 2018.

[12] Instead of relocating to the Limpopo Provincial office as directed, on 03 May 2018, Ms Ndonyane sought to be place in one of the positions that became available in Gauteng Province. Her request was rejected because those positions were lower than her position in terms of level and were earmarked for unplaced employees.

[13] On 24 May 2018, the NLC sent a final correspondence to Ms Ndonyane as a warning and instruction to report for duty at the Limpopo Provincial Office by 1 June 2018 and that her failure to do so shall be taken as repudiation of contract which the NLC shall accept and invoke provisions of the LRA. On 31 May 2018, her access to the Gauteng Provincial office was deactivated and activated in the Limpopo Provincial office from 1 June 2018. Still, Ms Ndonyane remained obstinate.

[14] On 22 June 2018, Ms Ndonyane was served with a notice to attend a disciplinary enquiry on charges of gross insubordination and continued absenteeism. She was found guilty and dismissed on 4 December 2018.

[15] Displeased with her dismissal, Ms Ndonyane referred a dispute to the CCMA. Following a failed conciliation, the matter proceeded to arbitration hence the impugned award.

Gross insubordination

[16] As regards the charge of gross insubordination, the Commissioner, inter alia, found that, in the light of Ms Ndonyane’s refusal to agree to the deployment to the Limpopo Provincial office, the NLC ought to have treated her as an unplaced employee and dealt with her in accordance with the Redeployment Plan by offering her an option of a ‘Separation with Support’ as it had done in relation to two other employees who also refused redeployment.

[17] That it so, the Commissioner opined, because the Redeployment Plan, which took the status of a collective agreement, did not provide for termination of employment in any other form than that provided in terms of the Unplaced Employee Assistance Plan. In essence, the Commissioner found that the NLC should not have disciplined Ms Ndonyane for her failure to adhere to the instruction to report for duty at the Limpopo Provincial office on 1 June 2018, but should have been offered an option of Separation with Support.

[18] It is apparent forum from the Redeployment Plan that Separation with Support entailed an agreement between the affected employee and the NLC, after they had exhausted all retention options and separation was found to be the only option. The following benefits were applicable:

18.1. Cash statement – payment of cash statement amount determined on the basis of one month’s salary for every completed year of service.

18.2. Pension Fund Payment – Payment by the NLB Pension Fund per NLB Policy.

18.3. Study related loans – The Company will write off the employee’s obligation in respect of study loans.

[19] In the event the affected employee unreasonably decline, inter alia, a deployment, separation would be without support.

[20] It is common cause that there was no agreement between the parties to part ways in terms of the Separation with Support option. Conversely, Ms Ndonyane was unwavering in her belief that she should be placed in the Gauteng Province despite the fact that the she had already been placed to a position that was located in the Limpopo Provincial office as early as 9 June 2017, a position she happy accepted on 11 August 2017 but rejected the relocation.

[21] Instead of availing herself to the Separation with Support option, Ms Ndonyane lingered at the Gauteng office doing nothing, a fact she conceded in cross examination. In my view, all the processes that she triggered during the intervening time, e.g. applying for vacant positions, logging an appeal, are indicative of her defiant stance not to agree to a separation package nor relocate to Limpopo per her deployment. She successfully dragged the process for almost 18 months while not being gainfully employed and to the detriment of the NLC’s operational requirements in the Limpopo Provincial office. Obviously, she demanded to be placed in Gauteng by hook or by crook.

[22] While it is understandable that not every employee would easily relocate to another province, as was the case in this instance due to ill-health and other personal circumstances, it was then incumbent upon Ms Ndonyane to be upfront and unequivocally reject the placement. That would have triggered the exits phase and discussions over the option of Separation with Support.

[23] Given that Ms Ndonyane was vacillating, the NLC kept the position in Limpopo for her and was even offered to her during the arbitration proceedings. Still, she blatantly turned it down without offering to be allowed to access the benefits of Separation with Support. In essence, it was not her evidence that she wanted to access the Separation with Support option. On the contrary, her attorney, Mr Mnisi, submitted that she was even willing to mop the floors for her to stay in Gauteng.

[24] The NLC was very patient with Ms Ndonyane and went out its way to reasonably accommodate her pursuant to the restructuring. To my mind, Ms Ndonyane’s deployment concluded when she was successfully placed and directed to report to the Limpopo Provincial office, her own second preferred province. All the subsequent engagements fell outside the process of deployment and were simply undertaken in good faith.

[25] Oddly, Ms Ndonyane dug in her heels even when her job was on the line. She went through the disciplinary enquiry without reconsidering her position or opting for a Separation with Support. It is therefore opportunistic of her to contend in these proceedings that the NLC ought to have invoked the provisions of the Redeployment Plan and offered her a Separation with Support instead of taking disciplinary action against her for not accepting to be redeployed. I agree with Ms Saunders’, counsel for the NLC, submission that there is no evidence on the record that supports this contention. Conversely, Ms Ndonyane was adamant that she wanted to remain in the employ of NLC and specifically in the Gauteng Province, hence she was reinstated as such.

[26] The Commissioner’s finding that Ms Ndonyane should have been offered a Separation with Support option is indeed odds with the evidence that was before him and accordingly unreasonable.

[27] The NLC referred to the decision of the LAC in Mampane NO and others v National Union of Public Service and Allied Workers and another,[4] where the court was confronted with the impugn of the same restructuring and deployment process by the NLC involving another employee who was a member of NUPSAW. It was stated that:

'Finally, there is merit in the submission of the appellants that Mokgatlha was bound by a collective agreement to relocate to KwaZulu-Natal. NUPSAW agreed not only to the process in the engagement forum close out report in December 2015 but also to the final outcome report in February 2016, which constituted a collective agreement as defined in section 213 of the LRA and thus was binding on Mokgatlha in terms of section 23(1)(b) of the LRA. In these circumstances, there was an agreement and not a unilateral administrative decision or exercise of public power. It is conceivable that a collective agreement could be reviewed where it is extended by the Minister of Labour in terms of section 32 of the LRA to a non-party to the agreement, but it is inconceivable that a collective agreement to which a person is bound as a party can constitute a decision capable of review. The Labour Court erred in finding that the decision to deploy Mokgatlha was reviewable in such circumstances.’

[28] The LAC, similarly, found that the Terms of Reference concluded between the NLC and the trade unions during the restructuring and deployment process to constitute collective agreements in terms of section 32(1)(b) of the LRA which provides that ‘each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them’. Still, it is apparent that from the Redeployment Plan that the NLC never envisaged a situation of forced retrenchment and as such endeavoured to place all the affected employees. Once the employee was placed and redeployed, that concluded the process. Of course appeals were entertained but were never meant to reopen the process. As stated above, it was incumbent upon Ms Ndonyane to unequivocally reject her placement and engage with the NLC as regards the Separation with Support option.

[29] Whilst I agree with the Commissioner that the parties never intended that the non-deployment of employee would lead to a misconduct termination, the present instance presented a unique state of affairs. Ms Ndonyane intractably held a view that she should be kept in the Gauteng office despite a concession that the position became redundant and having accepted a position located in the Limpopo Provincial which was, by the way, her second preferred choice. It certainly seems illogical that Ms Ndonyane was expecting the NLC to perpetually engaged with on a process that had already concluded while she remained on its payroll without being gainfully employed and adversely affecting it operations in the Limpopo Provincial office.

[30] It follow that the finding of the commission in this regard is untenable.

Review test

[31] The review test is trite and well expounded in Department of Education v Mofokeng & Others Mofokeng,[5] referred to with approval in Palluci Home Depot (Pty) Ltd v Herskowitz & Others,[6] that:

‘…for a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii) of the LRA, the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result'. Thus, as recognised in Mofokeng, it is not only the unreasonableness of the outcome of an arbitrator's award which is subject to scrutiny, the arbitrator 'must not misconceive the enquiry or undertake the enquiry in a misconceived manner', as this would not lead to a fair trial of the issues.’

Continued absenteeism

[32] Likewise, the finding insofar as the charge of continued absenteeism is concerned is untenable. Ms Ndonyane had never been to the Limpopo Provincial office ever since her deployment and despite various instructions. She knew before 1 June 2018 that she had been issued with a final instruction to report for duty in the Limpopo Provincial office. Nothing much turns on the fact that her access to the workplace in Gauteng was deactivated and that she was only informed on 11 June 2018.

[33] As stated above, what is anomalous with Ms Ndonyane’s conduct throughout, notwithstanding her decision to reject the relocation she continued to report to the Gauteng Office just loitering and without engaging the NLC on the option to accept Separation with Support. Even after she was served with the charge sheet, she seemed strangely impervious to the threat of being dismissed for absenting herself from the workplace she had been officially placed to.

Conclusion

[34] In all the circumstances, the Commissioner patently undertook the enquiry in a misconceived manner and consequently there was no fair trial of the issues. The award accordingly falls to be reviewed and set aside.

[35] Nonetheless, I deem it superfluous to remit that matter back to the CCMA in the interests of justice and in line with the LRA imperative that labour disputes must be resolved expeditiously. I also note that the adequacy of the record is not put in question.

[36] Given the deductions I have made above, I am satisfied that Ms Ndonyane was guilty as charged. As regards the sanction, I have considered of the totality of circumstances and pertinently the fact that Ms Ndonyane flagrant disdained to the NLC’s attempts to provide her with job security by placing to its operations in the Limpopo Provincial office. Ms Ndonyane was adamant that she would never have relocated to the Limpopo Provincial office even if she has been served with the letter to deployment to her satisfaction.

[37] To make matters worse, she was also not willing to engaged the NLC on the option of a Separation with Support but rather manoeuvre a way to remain in Gauteng at all costs. In my view, the sanction of dismissal is accordingly warranted.

Costs

[38] It is well accepted that costs do not follow the result in this Court in keeping with the dictates of law and fairness, especially in a case involving an individual litigant, unless it can be shown that her/his conduct was patently unreasonable.

[39] In the premises, I make the following order:

Order

1. The arbitration award issued by the Commissioner under case number GATW17356-17 dated 17 April 2019 is reviewed and set aside and substituted with the following order:

‘The dismissal of the third respondent, Ms Tshililo Cordelia Ndonyane, is substantively fair.’

2. There is no order as to costs.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Advocate S Saunders

Instructed by: Cliff Dekker Hofmeyr Inc

For the third respondent: Mr S Mnisi of T.S Mnisi Attorneys

[1] Act 66 of 1995, as amended.

[2] See: Redeployment plan, pare 79 of Bundle A.

[3] See: page 48 of Bundle A.

[4] [2020] 2 BLLR 115 (LAC)

[5] [2015] 1 BLLR 50 (LAC) paras 31 – 33

[6] (2015) 36 ILJ 1511 (LAC) at paras 15 – 16; see also Aquarius Platinum (SA)(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2020] ZALAC 23; (2020) 41 ILJ 2059 (LAC); [2020] 11 BLLR 1071 (LAC) at para 10.