Unilever South Africa (PTY) Ltd v NASA Workers obo Ndwambi (JR 1093/20) [2022] ZALCJHB 196 (26 July 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1093/20

In the matter between:

UNILEVER SOUTH AFRICA (PTY) LTD

Applicant

and

NASA WORKERS obo IRENE NDWAMBI

Respondent

Heard : 26 May 2022

Delivered : 26 May 2022

Edited : 26 July 2022

EX TEMPORE JUDGMENT

MOSHOANA, J

Introduction

[1] This is the judgment of the Court. I earlier heard argument from the parties’ representative and the matter was stood down for the purposes of the Court considering its judgment in the matter.

[2] This is an application seeking an order to review and set aside the arbitration award issued by Commissioner Isaac Kekana under the auspices of the CCMA. The trade union on behalf of Ms Ndwambi opposes the application. The relevant facts pertinent to this application are to a large degree common cause and less complicated.

[3] The applicant, Unilever South Africa, employed Mr Ndwambi as a machine operator. On 30 July 2020, Ndwambi approached her line manager, Sambo, with a request not to work nightshift since she will be too tired to work nightshift after attending to a CCMA hearing that was scheduled for the following day. To the request, Sambo unequivocally said she should report for duty because the company’s productivity requirements demanded so. Having been so instructed to report for duty irrespective, Ndwambi approached the line manager’s

superior and sought leave of absence on the day when the conciliation proceedings would be taking place. That leave of absence was declined.

[4] On 1 August 2019, Ndwambi’s shift was to commence at 18:00. At around 17:20, Ndwambi texted her line manager informing her she will not be able to report for duty. Owing to that failure to report and despite being instructed by the superior to report, Ndwambi was charged, found guilty of insubordination and dismissed. Aggrieved by her dismissal she referred a dispute to the CCMA and alleged unfair dismissal.

[5] Commissioner Kekana was assigned to resolve the dispute through arbitration. He concluded that the dismissal of Ndwambi was substantively unfair and ordered the applicant company to reinstate Ndwambi and pay her back pay. Aggrieved by this outcome the applicant lodged the present application and based it effectively on the following grounds –

5.1 That a finding that no instruction was given is one that a reasonable decision maker would not make.

5.2 That the Commissioner ignored common cause evidence that Ndwambi was expected to report for duty at 18:00.

5.3 The finding that Ndwambi is not guilty is materially faulty.

5.4 The finding that there was inconsistency in itself constituted a reviewable irregularity.

5.5 Above all, that the decision is not one that a reasonable decision maker may reach.

[6] The test for reviews is by now crystallized. It is whether the decision is one that a reasonable decision maker may not reach? Where an employer dismisses an employee on account of misconduct, when challenged that employer must prove –

a. The existence of the misconduct that led to the dismissal, in other words the guilt on the part of the employee.

b. The appropriateness of a dismissal as a sanction.

[7] Ndwambi was dismissed for insubordination. Insubordination as an act of misconduct happens when an employee disobeys an instruction that is lawful and reasonable.

[8] The first error that Commissioner Kekana commits is to say that there was no instruction issued to Ndwambi. Mr Marweshe, who appeared on behalf of Ndwambi, conceded that that error is inconsistent with the evidence that was presented before Kekana. The finding that there was no instruction is inconsistent with the evidence that was presented. Marweshe conceded that it was actually an error by Kekana. That was a concession well made, because the evidence unequivocally demonstrated that Sambo issued an instruction to Ndwambi to report for night duty.

[9] There was also clear evidence that demonstrated disregard of that instruction, because at 18:00, being the time at which the shift was to commence, Ndwambi did not report for duty as instructed. Instead, she texted the line manager and indicated that she would not be arriving. Classically, this is a pure case of insubordination.

[10] Firstly, there was an instruction. Secondly, that instruction was disobeyed and thirdly, that instruction can never be unlawful and/or unreasonable even at the time when it was issued. I will return to the third issue later, because the argument subsequently moved into the unreasonability of the instruction based on the circumstances that had arisen later according to Ndwambi.

[11] Thus, on the evidence presented at the arbitration a reasonable decision maker would conclude that the misconduct of insubordination was present. Ndwambi was charged with gross insubordination. Generally when the word gross is attached to any form of misconduct, it is simply a suggestion that it is a serious misconduct.

[12] On the facts of this case, there was clearly a serious insubordination. Ndwambi initially approached Sambo and Sambo, applying her authority, made it clear that that request cannot be accommodated given the productivity requirements of the employer. Of course, it seems to me that Ndwambi did not believe what her supervisor was saying and that is proven by the fact that she then escalated the request. That is a clear indication that effectively Ndwambi threw down the gauntlet on Sambo’s authority. However, the fact that even a higher authority denied or rather refused the request is an added factor demonstrating the seriousness of the misconduct.

[13] Now when Ndwambi attended to the proceedings at the CCMA in that morning, she knew that her supervisor and a senior in the department that she is employed, are expecting her not only because she is an employee, but are expecting her because of the productivity requirements for that period. Yet again, she decided at twenty past five to simply text the supervisor and say, I am not going to carry out the instruction.

[14] Now all of that points to the seriousness of the misconduct. It is not a situation where Ndwambi was at a conciliation meeting and an unfortunate event arose which would have made her to request that she be excused. She knew from the day before that she is not being excused. She knew from the day before that she is required because of the operational requirements. Now having ignored all of that, it can only mean one thing, which is the seriousness of the insubordination that she displayed.

[15] During argument, Mr Marweshe developed an argument that seeks to suggest that the instruction was unreasonable. Strangely, the basis of the unreasonableness arose after the instruction has been issued. When the instruction was issued the day before as Mr Marweshe conceded, the instruction was perfectly reasonable. It only became unreasonable because Ndwambi at a point felt very tired having been sitting in the proceedings of the CCMA for the whole day.

[16] Mr Nieuwoudt correctly argued that that is something that she brought unto herself and cannot be used as a basis for challenging the reasonability of the instruction. The fact that the reasonability only arose at a later stage also speaks volumes. When an instruction is assessed as to its reasonability and lawfulness, it is assessed at the time when it is given, not at the time when it has to be carried out. When the instruction is to be carried out and certain factors creeps in, that then becomes a justification not to comply with an instruction that is lawful and reasonable. Thus, it appears that Ndwambi at the time, somewhat told herself that she has a justification not to comply with an instruction that was issued to her.

[17] The difficulty with that belated argument is that Kekana did not find any justification or lack of justification for the dismissal based on that fact. Nowhere in the arbitration award is it indicated that the instruction later on morphed into being unreasonable. Of course, based on what I had said earlier that would have been a strange approach. An instruction is either reasonable or unreasonable at the time of it being issued. It cannot acquire unreasonability or illegality as it were after it has been issued. Nevertheless, as I have pointed out, a novis actus may serve as a justification not to comply with the instruction. Unfortunately, Kekana had already pinned his colours to the mast. He had already concluded that there was never an instruction, so it would be completely illogical for him to say the instruction was unreasonable. As far as Kekana is concerned, his finding was and it remained to be that there was no instruction, which as Mr Marweshe correctly conceded, is an error, fundamental enough, to disturb whatever outcome since there can never be a finding of guilt of insubordination if the very foundation of the misconduct itself is absent. That is the issuing of an instruction by a superior.

[18] Therefore, the belated argument is unhelpful to the respondent’s case. The employer, the applicant before me, imposed the sanction of dismissal because of the said misconduct. As indicated earlier, when an employer is being challenged to show the fairness of a dismissal, the other leg to be proven is the appropriateness of the sanction of dismissal. The Sidumo judgment made it very clear that when an arbitrator considers the appropriateness of sanction of dismissal, the arbitrator is not

starting on a clean slate, the arbitrator is starting on the basis that there is a dismissal as a sanction already imposed by an

employer.

[19] Now applying own sense of fairness an arbitrator would consider whether it is fair to dismiss an employee for that misconduct. Now as I have pointed out earlier, the insubordination that Ms Ndwambi made herself guilty of was of a serious nature and as such, it is one that justifies dismissal as a sanction. Therefore, there was no basis in law for Kekana to have interfered with the sanction of the employer. The only time that a Commissioner may lawfully interfere with a sanction of an employer is when it can be demonstrated that that sanction is unfair. There is absolutely no basis for interfering with the sanction.

[20] Strangely, Kekana in his award refers to cases of the Labour Appeal Court that had dealt with the issue of insubordination. He pointed out that insubordination justifies a dismissal. Now in this instance, there was no basis to interfere with the sanction of the employer.

[21] Given my views above, it is unnecessary to consider in any details the issue of inconsistency. It suffice to state the following. If Kekana has concluded that there was no instruction, naturally what ought to have followed is that Ndwambi is not guilty of insubordination. Now, if that is a finding that ought to have been arrived at, there was no need to look at inconsistency because in that process you would be comparing apples with bananas. Ndwambi is not guilty of any misconduct, how would Ndwambi be compared with somebody who is guilty. Nevertheless, it was demonstrated in evidence that the employer had taken certain steps against the alleged comparator.

[22] Now that argument of inconsistency is one that a reasonable decision maker would not have entertained in the circumstances of this matter.

[23] Therefore, in the result the order I make is the following.

Order

1. The arbitration award issued by Isaac Kekana under case number GAEK14558/19 on 29 June 2020 is hereby reviewed and set aside.

2. It is replaced with an order that the dismissal of Irene Ndwambi is substantively fair.

3. No order as to costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

Appearance for the Applicant

: Adv Nieuwoudt

Appearance for the Respondent : Mr Marweshe