NTM obo Dikgale v Commission for Conciliation, Mediation and Arbitration and Others (JR809/15) [2017] ZALCJHB 473 (18 December 2017)
The court found that the applicant failed to demonstrate any material misdirection by the Commissioner. The instruction to offload stock was lawful and reasonable under the circumstances, and the applicant's refusal constituted gross insubordination. The existence of a final written warning for a similar offence...
Source-derived case information.
- Citation
- [2017] ZALCJHB 473
- Parties
- Applicant: NTM obo Herbert Dikgale; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Tebogo Mafujane N.O.; Respondent: Hotel Amenities Supplier (Pty) Ltd
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR809/15
- Procedural Posture
- Review Application / Judgment on Review of Arbitration Award
- Outcome
- Review application dismissed with no order as to costs.
- Judges
- Whitcher
- Legal Topics
- Dismissal for Insubordination, Progressive Discipline, Arbitration Review, Procedural Fairness, Bias in Chairperson
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
NTM obo Herbert Dikgale
Applicant
Commission for Conciliation, Mediation and Arbitration
Respondent
Tebogo Mafujane N.O.
Respondent
Hotel Amenities Supplier (Pty) Ltd
Respondent
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Legal Issues
- 1 Whether the Commissioner materially misdirected himself in finding the dismissal substantively and procedurally fair.
- 2 Whether the instruction given to the applicant was lawful and reasonable.
- 3 Whether the sanction of dismissal was fair in light of a prior final written warning.
Ratio Decidendi
The court found that the applicant failed to demonstrate any material misdirection by the Commissioner. The instruction to offload stock was lawful and reasonable under the circumstances, and the applicant's refusal constituted gross insubordination. The existence of a final written warning for a similar offence aggravated the misconduct and indicated that progressive discipline had failed. The Commissioner’s conclusion that dismissal was fair was reasonable and supported by the evidence. Allegations of bias against the chairperson were unfounded, as no evidence was led to support this claim and the chairperson had acquitted the applicant on the charge of incitement. The Commissioner’s...
Court Disposition
Review application dismissed with no order as to costs.
Orders
- The review application is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
44 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 809/15
Not Reportable
In the matter between:
NTM obo HERBERT DIKGALE
Applicant
and
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION First
Respondent
TEBOGO MAFUJANE N.O.
Second Respondent
HOTEL AMENITIES SUPPLIER (PTY) LTD
Third Respondent
Heard: 30 November 2017
Order: 30 November 2017
Reasons: 18 December 2017
JUDGMENT
WHITCHER, J:
[1] On 30 November 2017 I dismissed this review application to set aside the second respondent’s arbitration award that the applicant’s dismissal was substantively and procedurally fair.
[2] The applicant has failed to demonstrate any material misdirection on the part of the Commissioner. The applicant’s complaint is simply and improperly that the Commissioner was wrong and should have determined the issue in his favour.
[3] The applicant was accused of gross insubordination. It was common cause that his superior, Van Tonder asked him to offload stock, but he refused to do so claiming that he does not work in the receiving section and that he is busy. The applicant thus failed to adhere to an instruction issued by his superior.
[4] The next step in the arbitration was to determine whether the instruction was lawful and reasonable. The undisputed evidence was that the instruction was given in circumstances where it was busy and the receiving section was short staffed. Although there was a dispute of fact as to whether the applicant was busy or not at the time, the answer to the question as to whether the instruction was lawful and reasonable did not turn on a proper resolution of this dispute. I say this because a claim of being busy is not a proper defence to refusing to obey the instruction of a superior, particularly in the circumstances in which the instruction was given. Moreover, the applicant conceded that he was obliged to obey the instruction of his superior. The Commissioner’s finding that the instruction was reasonable and lawful is thus an entirely reasonable conclusion.
[5] The Commissioner then considered the next aspect of the enquiry, namely whether the sanction of dismissal was fair. In this regard it was common cause that the applicant had previously been issued with a final written warning for a striking similar offence (insubordination) which was still in effect when he committed the offence. Based on this evidence and case law, the commissioner
reasonably concluded that progressive discipline seemed to have failed to have the desired effect and that dismissal was fair.
[6] In Transnet Freight Rail v Transnet Bargaining Council and others[1] it was stated that:
An employee on a final written warning for the same offence will normally be regarded as irredeemable, and dismissal will be justified
if the employee commits a similar offence during the currency of the warning… Usually, the presence of a valid final written
warning at the time of the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature. The principles of progressive discipline require such a re-offending employee usually to be considered irredeemable… I accept that the purpose of the warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensure if he misbehaves again…[2]
[7] The applicant’s complaint against the Commissioner’s finding that the chairperson was not biased is also rejected. The applicant led no evidence that the chairperson was biased and it was common cause that the chairperson found him not guilty of the charge of incitement.
[8] Even if there are aspects of the Commissioner’s award that could be open to criticism the eventual conclusions he reached cannot be interfered with. They all fall within a band of reasonable conclusions that could have been reached on the evidence before him.
Order
[9] In the premises, the following order is made:
1. The review application is dismissed with no order as to costs.
_______________________
Benita Whitcher
Judge of the Labour Court of South Africa
APPEARANCES:
For the applicant:
M Raphetha, union official from NTM
For the third respondent:
Snyman Attorneys
[1] (2011) 32 ILJ 1766 (LC)
[2] At para 39; See also Timothy v Nampak Corrugated Containers (Pty) Ltd (2010) 31 ILJ 1844 (LAC) at 1850A-C