SAMWU obo Felicia v Commission for Conciliation, Meditation and Arbitration and Others (JR2195/14) [2016] ZALCJHB 338 (26 August 2016)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR2195/14

In the matter between:

SAMWU obo LUNGILE FELICIA

Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

First Respondent

ERIC MYHILL N.O.

Second Respondent

TMT SERVICES AND SUPPLIES (PTY) LTD

Third Respondent

Heard: 8 July 2016

Delivered: 26 August 2016

SCHENSEMA, AJ

[1] This is an opposed review application in which the applicant seeks to set aside the arbitration award of the second respondent (hereinafter referred to as "the Commissioner") in which the Commissioner held that the applicant's dismissal was substantively

fair. In so issuing the arbitration award under review, the Commissioner was acting under the auspices of the first respondent,

the Commission for Conciliation, Mediation and Arbitration ("the CCMA").

[2] The application for review is brought in terms of section 145 of the Labour Relations Act 66 of 1995 ("the LRA") alternatively

in terms of section 158(1)(g) of the LRA.

Factual background

[3] I do not intend to repeat the evidence in great detail, it is sufficient for present purposes to record that the applicant was

employed on a five year fixed term contract in 2011 initially in the position of Team leader and at the termination of the applicant's

fixed term contract the applicant held the position of Training Co-ordinator. The applicant's termination date in accordance with her fixed term contract was 30 June 2016.

[4] The applicant was charged with two acts of misconduct firstly negligence in respect of her duties and responsibilities and secondly

gross insubordination in that the applicant had blatantly refused to comply with an instruction received from her line manager.

[5] The reasons for the aforementioned charges are briefly as follows. Late on 25 April 2013, the applicant during a telephone discussion

with Yolanda Soden ("Soden") was informed of a meeting to be held on 26 April 2013 regarding the outcome of an audit performed in relation to the applicant's performance.

[6] Subsequent to the telephone call, the applicant contacted her line manager, Natalie Stols ("Stols") to confirm whether or not the meeting was in fact taking place and the purpose of the meeting. Stols confirmed that a meeting had been arranged. In response thereto the applicant informed Stols that she was not comfortable with attending a meeting in which her performance was to be discussed in front of another colleague and further requested that she be given an opportunity to prepare. The applicant however reiterated that she was not refusing to attend the meeting but was requesting that it be postponed for the purpose of providing the applicant with an opportunity to prepare for the meeting.

[7] Later that evening the applicant sent an email to Stols in which she recorded the discussion and once again reiterated her request based on her discomfort. No response was received that evening and at 04h38 on 26 April 2013, Stols sent an sms and email in which she instructed the applicant to attend the meeting.

[8] The applicant denies having received the aforementioned correspondence at 04h38 as she had failed to charge her phone overnight resulting in her phone being off and secondly she had only gained access to the email upon her arrival at the office at 07h00.

[9] Approximately at 07h09 the applicant received a telephone call from Stols enquiring as to her whereabouts. In response the applicant

explained the reasons for her not being present. Stols was not satisfied with the reasons provided and escalated the matter to Mrs Kumm ("Kumm") the third respondent's human resources director. A subsequent teleconference was held between the applicant,

Stols and Kumm in which both were provided with an opportunity to explain what had occurred.

[10] Kumm then requested that the meeting be re-arranged. This was subsequently done and the applicant was of the view that the issues had been resolved. Subsequent to the meeting, the applicant was issued with a notice to attend a disciplinary enquiry for the aforementioned charges on 15 May 2013. The enquiry was held on 21 May 2013 and the applicant was found guilty and dismissed.

Proceedings at the CCMA

[11] Aggrieved with the outcome of the disciplinary enquiry, the applicant referred an unfair dismissal dispute to the CCMA.

[12] It was agreed at the commencement of the proceedings that the Commissioner was only required to determine the fairness of the

dismissal in relation to charge 2, namely gross insubordination.

[13] Evidence was led and the Commissioner dismissed the applicant's referral and determined that the applicant's dismissal was

substantively fair.

The Commissioner's reasons

[14] The Commissioner in his arbitration award inter alia held that the applicant did not have to state that she was not coming to the meeting on 26 April 2013 to be guilty of failing to obey a reasonable and lawful instruction. The applicant's conduct in not attending the meeting on 26 April 2013 constitutes a refusal to obey a reasonable and lawful instruction from her line manager. Furthermore that the applicant's objections to attending the meeting were not reasonable and accordingly the applicant was "at least" guilty of refusing to comply with a lawful instruction and was therefore guilty of an offence in terms of the third respondent's disciplinary code.

[15] With reference to the charge, the Commissioner held that he was required to determine whether in fact the third respondent had proven on a balance of probabilities that the applicant was guilty of gross insubordination.

[16] The Commissioner was further of the view that in light of the fact that once the third respondent had proven it had sent the sms and email to the applicant that the onus shifted to the applicant to disprove that she did not receive the sms and email at the time contended to by the third respondent.

[17] The Commissioner makes reference to Grogan in support of a reverse onus and further made reference to two cases in support of his reasoning. The Commissioner was of the view that it was improbable that the applicant had not seen the sms or email prior to leaving for work on 26 April 2013 and that he reasonably expected the applicant to have checked her phone prior to leaving for work as it was not confirmed that the meeting had been postponed. In light of the above, the Commissioner was of the view that the applicant had 'wilfully and persistently' defied the authority of her line manager by not attending the meeting on 26 April 2013.

[18] The Commissioner was further of the view that the applicant had failed to provide valid reasons for her failure to attend the meeting on 26 April 2013 and that no purpose would have been served in issuing the applicant with a written warning as no remorse had been shown by the applicant and accordingly rendering any continued employment intolerable.

The Review Application

[19] Upon receipt of the arbitration award, the applicant filed a review application in which the applicant inter alia raised the following in respect of the award.

[20] The Commissioner had misconducted himself in determining that the applicant bore the onus to prove as to when she had actually read the sms and email. In so doing the applicant is of the view that the Commissioner has misinterpreted the decisions referred to in the arbitration award. Ultimately the applicant had provided a reasonable explanation for her failure to attend the meeting at 07h00 on 26 April 2013 and accordingly there was no shifting of the onus required.

[21] The applicant has submitted that the Commissioner has committed an error in applying the law to the facts as the third respondent had not proven that the sms and email had been received and read prior to 07h00 and accordingly the Commissioner had been misguided in his interpretation of the law as provided in both judgments referred to by the Commissioner in his award.

[22] The applicant further submits that the Commissioner committed a gross irregularity in the form of a material error in law which resulted in the Commissioner misconceiving the nature of the enquiry and addressed the wrong issue therefore the decision falls to be reviewed and set aside.

[23] In respect of the charge of insubordination, the Commissioner found that the applicant's failure to attend the meeting constituted gross insubordination, which findings were incorrectly made by the Commissioner and accordingly the findings are incapable of justification based on all the material that was before him.

Analysis

[24] Section 145 of the Labour Relations Act19 ("LRA") provides as follows –

‘145 Review of arbitration awards:

(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award:………

(2) A defect referred to in subsection (1), means:

(a) that the Commissioner;

(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;

(ii) committed a gross irregularity in the conduct the arbitration proceedings; or

(iii) exceeded the commissioner's powers.’

[25] The general principle is that a gross irregularity should concern the conduct of the proceedings rather than the merits of the decision.[1] When a commissioner fails to have regard to material facts, this may constitute a gross irregularity in the conduct of the arbitration

proceedings because the commissioner may have unreasonably failed to perform his or her mandate and thereby prevented the aggrieved party from having his/her case fully and fairly determined.[2] A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in section 145(2)(a) of

the LRA.

[26] For a defect in the conduct of the proceedings to amount to a gross irregularity, as contemplated in section 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. The result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator.[3] Material areas of fact, as well the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, and are only of any consequence if their effect is to render the outcome unreasonable.[4]

[27] My analysis commences with a review of the record and the evidence that was submitted during the arbitration proceedings. It is common cause that during the afternoon of 25 April 2013, the applicant had a telephone conversation with Soden in which the applicant was advised of the meeting. There is no evidence to suggest that the purpose of this call was to inform the applicant of the meeting. Accordingly there is further no evidence led and/or enquiry made by the Commissioner as to why the applicant was only notified of the meeting at such a late stage.

[28] Secondly upon receiving this information, the applicant made contact with Stols to ascertain whether a meeting had in fact been scheduled. Upon confirmation that a meeting was to take place, the applicant requested that the meeting be postponed to allow her to prepare adequately for the meeting and she further informed Stols of her discomfort in relation to Soden's presence during the meeting. The aforementioned was subsequently recorded in an email later that evening.

[29] On 26 April 2013 at 04h38 an email and sms were sent to the applicant instructing her to attend the meeting. The applicant was subsequently contacted telephonically at 07h09 in which Stols demanded an explanation as to why the applicant was not present for their meeting. In response to this, the applicant advised Stols that she had not received the email and sms at 04h38.

[30] The Commissioner is of the view that the applicant's conduct as aforementioned constitutes a persistent and wilful refusal by the applicant to comply with a lawful instruction. I do not agree. It is apparent from the award that the Commissioner paid little or no attention to the applicant's reasons for her request to have the meeting postponed and furthermore that this request was a reasonable one given the nature of the meeting and in so doing the Commissioner arrived at a decision that no reasonable decision maker would have reached.

[31] It is my view that in order for an employee's conduct to constitute gross insubordination that evidence is required to demonstrate a persistent and wilful refusal to comply with an instruction, which constitutes gross insubordination. Our Courts have described

insubordination 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 (wilful) and serious challenge to the employer's authority." [5]

[32] In Polyoak Packaging (Pty) Ltd v Siquibo NO and Others[6], it was said that:

“As a general principle it may be stated that the breach of rules laid down by an employer or the refusal to obey an employer's lawful and reasonable order is to be viewed in a serious light and may in given circumstances even justify summary dismissal. However, the presence of certain prerequisites is required. In the first place:

[a] it should be evident that an order, which may even be in the form of a warning, must in fact have been given. . . . In the second place;

[b] it is required that the order must be lawful; an employee is therefore not expected to obey an unlawful order such as to work illegal overtime; and thirdly,

[c] the reasonableness of an order should be beyond reproach and will be enquired into: in cases before the court the order or request has sometimes been found to be reasonable and at other times to be unreasonable. In addition, it is required . . . that the refusal to obey must have been serious enough to warrant dismissal.”

[33] The Labour Court has distinguished between insolence (repudiation by an employee of his duty to show respect) and insubordination (refusal to obey an employer's instructions).[7] Both forms of misconduct are properly embraced by the terms of 'insubordination' as used in Schedule 8 Code of practice: dismissal

in the Labour Relations Act of 1995 ("the Code of good practice").

[34] Insubordination is possibly a more serious offence because it presupposes an intentional breach by the employee of the duty to obey the employer's instructions. The Code requires that defiance must be 'gross' to justify dismissal. This means that the insubordination must be serious, persistent and deliberate, and that the employer should adduce proof that the employee was guilty of defying an instruction. [8]

[35] Grogan, in Employment Law, states the following:[9]

‘The best measure of the gravity of insubordination and/or 'insolence' is the effect it has on the employment relationship. Other things being equal, an isolated refusal to carry out an instruction is less likely to destroy the relationship between the employer and the employee than sustained and deliberate defiance of authority. The latter form of insubordination is well illustrated by Theewaterskloof Municipality v SALGBC (Western Cape Division). The Labour Court held that a senior manager who accepted payment of an allowance well knowing that he was not entitled to it, then offered to repay the amounts in derisory instalments, had deliberately breached the trust relationship. Given the destruction of the employment relationship and his total lack of remorse, the employee could not rely on either the general right to progressive discipline or on his long and previously unblemished service record. The court upheld the employee's dismissal.’

[36] In Palluci Home Depot (Pty) Ltd v Herskowitz and Others,[10] the Labour Appeal Court held that ‘[t]he offence of insubordination in the workplace has, in this regard, been described by the courts 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 (wilful) and serious challenge to an employers' authority’ and in that regard, the Labour Appeal Court referred to the decision of Commercial Catering and Allied Workers' Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg).[11]

[37] In Commercial Catering & Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg)[12] the Industrial Court held that:

"the offence of insubordination is constituted by the following: When the employee refuses to obey a lawful and reasonable command or request and the refusal is wilful and serious (wilful disobedience), or when the employee's conduct poses a deliberate (wilful) and serious challenge to the employer's authority."[13]

[38] This view has been endorsed by Grogan who, citing the above authorities, noted that ‘employees are obliged to respect and obey their employers because lack of respect renders the employment relationship intolerable and disobedience undermines the employer's authority’.[14]

[39] It is trite that by its very nature the employment relationship places certain obligations upon the employee, two aspects of which are generic duties of the employee to maintain a harmonious relationship and to co-operate with the employer. [15] Brassey has further noted that the employee’s obligation to ensure a harmonious relationship with the employer and other staff requires that s/he should do nothing to undermine it.[16]

[40] I have further considered the matter of Head of Department of Education v Johanes Mohale Mofekeng[17] which has stated that the first enquiry is whether the facts or considerations ignored were material, which will be the case if a consideration of them would have caused the commissioner to come to a different result. If this is established, the result arrived at by the commissioner is prima facie unreasonable. A second enquiry must then be embarked upon, to determine whether there exists a basis in the evidence overall to displace the prima facie case of unreasonableness and if the answer to this enquiry is in the

negative, then the decision stands to be set aside on the basis of unreasonableness.

[41] In applying the above to the current matter, I am of the view the Commissioner's award is one that a reasonable decision maker could not make. This is based on the following.

[42] I am of the view that the Commissioner's findings that the applicant's failure to comply with a lawful instruction amounts to a wilful and persistent failure to comply with the line manager's instruction is incorrect. There is no evidence to suggest that that the applicant's failure to attend the meeting poses a deliberate and serious challenge to her line manager's authority. The applicant was at pains to inform her line manager that she was not refusing to attend the meeting but was making a request to have the meeting postponed. This in my view does not constitute a deliberate or serious challenge to the line manager's authority.

[43] Furthermore the Commissioner had failed to consider the evidence in relation to the meeting and the reasons why the applicant had requested the meeting be postponed. The applicant had not been directly requested (prior to the telephone conversation with Soden) by Stols to attend the meeting. It was only once the applicant had made telephonic contact with Stols that she was instructed to attend at meeting the very next morning.

[44] The Commissioner's findings in respect of the reverse onus further impacts the outcome of the arbitration proceedings and I am not in agreement with the submissions made in the third respondent's heads of argument, that even were the Commissioner's application of the case law in relation to the reversal of onus to be incorrect this would not rendered the award unreasonable. The findings as to whether or not the applicant had received the sms and email at 04h38 is intricately linked to whether or not the applicant refused the instruction to attend the meeting on 26 April 2013 on more than one occasion.

[45] The basis for the dismissal is one in which the third respondent relies on a "persistent" refusal to obey a lawful

instruction. Accordingly it was imperative to determine whether or not the applicant had received the sms and email at 04h38, alternatively at 07h00 as testified to by the applicant. Upon being advised that the applicant had only received the sms and email at 07h00, I am of the view that the onus rested on the third respondent to disprove this evidence. This the third respondent failed to do and therefore its reliance that the applicant's refusal to comply with the lawful instruction was persistent is therefore questionable. The third respondent's defence of its dismissal is entirely based on the fact that in its view the applicant's refusal was persistent and therefore rendered the employment relationship intolerable.

[46] I am not convinced that the applicant's refusal to attend the meeting was persistent and I am further of the view that were this meeting of such grave importance to the third respondent, the request for the meeting would have been issued earlier. These questions were not raised by the Commissioner in his assessment of the evidence.

[47] I am further of the view that at best for the third respondent, the applicant was guilty of failing and/or refusing to comply with a lawful instruction as set out in its disciplinary code at number 24, therefore rendering the sanction of dismissal unfair. There is no evidence (without proving that the applicant did in fact receive the sms and email at 04h38) that the applicant's refusal constitutes gross insubordination. Furthermore had it been found that the applicant did in fact receive the sms and email at 04h38 given the applicant's request and the reasons submitted it would have been unreasonable in my view for the employer to have persisted with the meeting.

[48] The Commissioner's findings that a dismissal was appropriate given the applicant's lack of remorse and refusal to accept that her conduct constituted misconduct, warranted a dismissal in that progressive discipline would serve no purpose in my view is also

unreasonable. It is trite that dismissal is the last resort and upon consideration of the record there is no evidence to support that the employment relationship had been rendered intolerable. In fact to the contrary, given the time line in which the applicant was permitted to continue working prior to being issued with the notice to attend the disciplinary enquiry, demonstrates that the employment relationship has not been rendered intolerable. It is my view that were the third respondent of the view that the applicant's actions were so egregious, a response thereto would have been immediate. This too the Commissioner failed to consider therefore rendering the arbitration award unreasonable.

[49] In conclusion in light of the fact that the applicant's contract terminated on 30 June 2016, I am of the view that due to the

effluxion of time it would serve no purpose to reinstate the applicant to the position she held at termination and accordingly the applicant should be compensated for the remainder of the fixed term contract.

Order.

[50] I, accordingly, make the following order:

[50.1] the Commissioner's arbitration award is hereby reviewed and set aside;

[50.2] the dismissal of the applicant is declared substantially unfair and the applicant is to be compensated for the remainder of the fixed term contract of employment from date of termination; and

[50.3] there is no order as to costs.

_______________________

Schensema AJ

Acting Judge of the Labour Court of South Africa.

Appearances

For the Applicant:

Mr Msomi

Instructed by:

Madlela Gwebu Mshamba Incorporated

For the Third Respondent: Mr Posthuma

Instructed by:

Snyman Attorneys

[1] Herholdt v Nedbank Limited (COSATU as Amicus Curiae) 2013 (6) SA 224 (SCA) at para 10.

[2] Herholdt at para 16.

[3] Herholdt (supra) at para 25.

[4] Herholdt (supra).

[5] See Commercial Catering & Allied Workers Union of South Africa & another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ (IC at 314 H-J

[5] See Commercial Catering & Allied Workers Union of South Africa & another v Wooltru Ltd t/a Woolworths (Randburg) (1989)

10 ILJ (IC at 314 H-J

[6] (unreported) case number 236/2008

[7] J Grogan Workplace: Juta (11th edition) at pages 251-255.

[8] City of Johannesburg v Dumisani Job Sithole JR2316/12

[9] Grogan page 253

[10] (2015) 5 BLLR 484 (LAC) at para 19

[11] (1989) 10 ILJ 311 (IC) at 314H-J.

[12] (1989) 10 ILJ 311 (IC

[13] Commercial Catering & Allied Workers Union at 314H – I

[14] Grogan, Workplace Law (Juta, 2009) p. 51

[15] Public Servants Association of South Africa obo Khan v Tsabadi and another (2012) 33 ILJ 2117 (LC)

[16] Brassey, Employment and Labour Law (Juta vol. 1, 1999): §D2: 31

[17] (2015) 36 ILJ 2802 (LAC) (1 October 2014)