Spartan Truck Hire (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (J1984/20) [2023] ZALCJHB 264 (13 September 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: J1984/20

In the matter between:

SPARTAN TRUCK HIRE (PTY) LTD

Applicant

and

NATIONAL BARGAINING COUNCIL FOR THE ROAD

FREIGHT AND LOGISTICS INDUSTRY

First Respondent

COMMISSIONER MATHABO MAKWELA

Second Respondent

JESSY MAJOLA

Third Respondent

Heard: 07 September 2023

Delivered: 13 September 2023

Summary: Application seeking to review and set aside an arbitration award. The outcome reached by the arbitrator is completely disconnected to the uncontested testimony tendered before her. It is an outcome that is not capable of justification when regard is had to the testimony tendered before her. Based on the trite test on review, the outcome falls outside the bands of reasonableness. Held: [1] The arbitration award is reviewed and set aside. Held: [2] It is replaced with an order that the dismissal is substantively fair. Held: [3] There is no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This is an application for review brought by the applicant, Spartan Truck Hire (Pty) Ltd (Spartan) in terms of the provisions of section 145 (1) (a) of the Labour Relations Act (LRA)[1]. The learned madam Commissioner, Mathabo Makwela (Makwela) found that the dismissal of the third respondent, Ms. Jessy Majola (Majola) was substantively unfair. She ordered Spartan to reinstate Majola retrospectively and to pay her backpay equaling twelve months’

salary within a stated period. Spartan was aggrieved by the outcome and launched the present application. Majola opposes the present

application.

Background Facts

[2] Majola was employed by Spartan as a general worker/cleaner. Majola was responsible to clean communal areas at the offices of Spartan. On or about 3 October 2019, the Human Resources Manager, Mrs. Ayanda Maseko (Maseko), noticed dust on the floor left over by a maintenance worker who had drilled two holes in the wall. In her capacity as Majola’s superior, she issued an instruction

to her to clean the dust. Majola threw down the gauntlet and refused to clean. She told her superior that the person who made the mess must come and clean it up.

[3] The following day, on 4 October 2019, Maseko summoned Majola and her union representative, one Paulos Gumbi (Gumbi) to her office. Maseko narrated to Gumbi what her instructions to Majola were the previous day. She stated to him that she will be taking disciplinary steps against Majola. It was at this point that Majola stood up and threatened Maseko. Gumbi had to intervene. The threatened Maseko intimated to call the police, at which point Gumbi stated it was not necessary to do so.

[4] Following these two incidents, Majola was placed on a precautionary suspension pending a disciplinary hearing. On or about 9 October 2019, Majola was issued with a disciplinary notice in order to answer the following allegations:

“Charges

Assault/Threatening behaviour

On Friday the 4th of October 2019 you threatened to assault the Human Resources Manager Mrs. Ayanda Maseko in her office when she discussed your refusal to obey an instruction she gave you on the 3rd of October 2019.

The shop steward that was with you in the office Mr. Paulus Gumbi had to restrain you to stop you from “striking” her.

That you also refused to obey a reasonable instruction on the 3rd of October 2019 when Mrs. Ayanda Maseko instructed you to clean the dust that was left behind where Mr. Joe Moketi did maintenance work.”

[5] Following a disciplinary hearing Majola was found guilty as charged and dismissed. Dissatisfied with her dismissal, Majola, duly assisted by her trade union, referred a dispute to the bargaining council and alleged an unfair dismissal. As indicated above, Makwela resolved the dispute in her favour.

Grounds for review.

[6] Spartan contends that Maseko committed a gross irregularity and/or misconduct and/or exceeded powers invested in her by the LRA, in that (a) she failed to apply her mind properly to the material facts and evidence placed before her; (b) she failed to understand or to appreciate the true nature of the issue and dispute; (c) she dealt with the evidence tendered selectively to the prejudice

of Spartan; (d) she conducted the proceedings in a partial manner; and (e) she arrived at an unreasonable conclusion regard being had to the material placed before her.

Evaluation

[7] When a commissioner arbitrates a dismissal dispute predicated on misconduct, such a commissioner is tasked to first establish whether the dismissed employee was indeed guilty of the misconduct that led to his or her dismissal. Having done so, the second issue to determine is, on application of his or her own sense of fairness, whether dismissal as a sanction is an appropriate and fair sanction for the misconduct committed.

[8] In dealing with the first issue, Maseko was off the mark by a proverbial mile. She clearly ignored the uncontested testimony to the effect that Majola refused to clean as instructed by her superior. Such a refusal is nothing but an act of insubordination. As a general rule, employers should not negotiate with employees when issuing instructions to employees under their control. Majola insolently stated to her superior that the person who made the mess must clean. This perspicuous throwing down of the gauntlet evinces gross or serious disregard of authority. Indeed, as alleged, Makwela failed to apply mind. A failure to apply mind entails consideration of irrelevant facts and ignoring the relevant ones. Taking into account the irrelevant memos, Makwela reached a conclusion, which is completely diametrically opposed to uncontested testimony, that Majola did not refuse to clean the dust. On her own version, Majola testified before her as follows:

“MAJOLA: 3 October 2019. Ayanda came to me on 3 October while I was cleaning the office of Lindiwe and Bathandwa. She even could not greet me, she just further said to me that you did you the dust in the passage? And I answered to her, I said I did already called Joe. Joe said that he is still busy having tea and then he will come and clean. And then Ayanda said to me that the cleaning is not part of Joe’s work, it is part of your duties.”

[9] On the other hand, Maseko unwaveringly testified as follows:

“MASEKO: Okay. Then when I came in I saw that there is dust and I called Jessy and I told her about the dust. I told her that well where we had been drilling there is dust on the floor and I asked her to please clean up that dust… what I had said to her was not welcomed she was not very happy with what I asked her to do and it just went off from there....”

[10] During her cross-examination, the transcript reveals that Majola unequivocally accepted that cleaning was part of her duties and the memos she sought to rely on did not state that she is prevented from cleaning where another worker messed up. She sought to rely on verbal directives given to her in 2012. Insubordination is constituted by (a) instruction from a superior to a junior; (b) a refusal by the junior to carry out the instruction. In light of the above testimony, there can be no doubt that Majola (junior) received a lucid and reasonable instruction to perform her cleaning duties from Maseko (superior) and Majola did not carry out the instruction.

[11] Makwela ambivalently shied away from performing her arbitrating duties. She failed to definitively conclude that Majola was guilty of insubordination. Instead for reasons that are not apparent from her award, she, in a rather convoluted and contradictory manner reached the following finding:

“I therefore, find that the refusal by Jessy to clean the mess created by Joe was in order in terms of the established respondent’s rules and that it did not constitute an offence of insubordination.

Put differently, even if Jessy refused to follow a reasonable instruction, Jessy was charged with insubordination. The company did not view her refusal as gross insubordination. According to the company’s disciplinary code, an employee would be given a final written warning for the first offence of insubordination. Dismissal will follow gross insubordination or an offence that is viewed as a serious offence.”

[12] With due respect to Makwela, this finding evinces non-application of mind. In this finding, she seems to have nonchalantly confirmed that Majola is indeed guilty of the offence of insubordination, however in line with the second enquiry, she found the dismissal to be an inappropriate sanction. To that end, even though a commissioner applies his or her own sense of fairness, a commissioner is not entitled to interfere with the sanction of the employer unless the sanction is unfair. Insubordination, challenges the authority of an employer and it is serious enough to justify a dismissal.

[13] This Court reaches a conclusion that based on the uncontested testimony, a reasonable decision-maker would have reached a conclusion that Majola was indeed guilty of insubordination, which is serious enough to justify her dismissal. Accordingly, on this one charge alone, the dismissal of Majola was substantively fair.

[14] Turning to the second charge of threatening Maseko. The evidence overwhelmingly demonstrated that indeed Majola threatened Maseko. Maseko testified as follows and she was not challenged in any manner:

“MS MASEKO: …Until it got to a point well when she was reiterating her length of service and how long she had been here and all of that she got extremely upset and stood up, and when she stood up that is when the shop steward held her and told her not to do. I do not know what she wanted to do I think she wanted to strike me and then the shop steward held her and said do not do that and I said immediately to the shop steward I am going to call risk manager and I am going to call the police because you guys are threatening me. So at that time I was afraid because I was not sure what she was capable of and I took my phone and I started dialing the risking (sic) manager and the shop steward was saying please do not call the cops we can try and resolve this and I said I think this is it I tried to communicate and you guys are not communicating or fighting with me…”

[15] Surely, if Majola did not threaten Maseko, as she claimed that she was standing up to leave, the question is why was the shop steward saying to her do not do that? On the preponderance of probabilities, if she was upping to leave, the shop steward had no reason to say to her do not do that. That which she was to do was clearly a possible unlawful act, which ignited Gumbi to restrain her.

Another key question is that why would Maseko think of the police and the risk manager when the situation was not threatening? When Majola and Gumbi arrived in the office, they were offered seats and they were seated. That being the case, why would Majola simply stand up in the middle of a discussion? It became common cause that Majola and Gumbi did not want to leave the office of Maseko, hence she intimated to call the police. To this, Majola testified as follows:

“MR MTHEMBU: The reason why Ayanda called the police, was because you would not go out with the shop steward and you wanted some clarity. Is that true?

MS MAJOLA: Yes

[16] A finding by Makwela that although Majola was angry, the evidence before her did not prove that Majola had assaulted or threatened to assault Maseko, is disjointed with the uncontested testimony availed to her. In common law an assault also occurs when one inspires belief in another person that impairment in bodily integrity is immediately to take place. On the uncontested testimony, Maseko believed that when Majola stood up and was restrained by Gumbi she wanted to strike her. She was afraid and resorted to calling the risk manager. A reasonable decision-maker, based on this uncontested evidence, would have reached a conclusion that indeed, Majola threatened Maseko with assault.

[17] As I conclude, there was overwhelming evidence before Makwela that Majola is guilty of the misconducts that she was dismissed for. Thus, a dismissal for reasons of misconduct is a fair one in terms of section 188 of the LRA. The misconduct that Majola was dismissed for is serious enough to render a continuation of employment intolerable. Makwela was not at large to simply replace the sanction imposed by Spartan, when the sanction is one that is fair. In terms of the disciplinary code of Spartan threatening with assault, if serious, as a first offence, it carries a sanction of summary dismissal. In light of the evidence that served before Makwela, the conclusion that the dismissal of Majola was substantively unfair is one that evinces a serious disconnect between the evidence and the outcome. Thus, the decision of Makwela does not fall within the bands of reasonableness and ought to be reviewed and set aside.

[18] Given the material placed before this Court, this Court is in as good a position as Makwela was in order to determine the dispute in terms of section 145 (4) of the LRA. It will serve no purpose for this Court to remit the dispute. Having had regard to all the evidence an appropriate determination to make is that the dismissal of Majola is substantively fair. This Court do state in passing that section 193 (1) (a) of the LRA, empowers an arbitrator only to order reinstatement, which order if accepted by Spartan restores an employment contract, and not payment of back pay. Payment of back pay is a contractual claim, which accrues to Majola once the employment contract is restored.[2] When Makwela ordered payment of an amount of R104 899.92, she acted ultra vires. On application of the principle of legality as well as section 145 (2) (a) (iii) of the LRA, the award of payment of money is a nullity.

[19] For all the above reasons, the arbitration award issued by the learned Makwela is one that a reasonable decision maker may not issue. Accordingly, the review application must succeed.

Order

[20] In the results, I make the following order:

1. The arbitration award issued by Commissioner Mathabo Makwela under the aegis of the National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) dated 25 October 2020 is hereby reviewed and set aside.

2. It is replaced with an order that the dismissal of Jessy Majola is substantively fair.

3. There is no costs order.

GN Moshoana

Judge of the Labour Court of South Africa

Appearances

For the Applicant: Ms. L Govender of Vermeulen Attorneys, Ruimsig. For Respondent: Mr. C Higgs of Higgs Attorneys, Johannesburg.

[1] Act 66 of 1995 as amended.

[2] See Kubeka and Others v Ni-Da Transport (Pty) Ltd [2021] 4 BLLR 352 (LAC).