---

FLYNOTES: LABOUR – Dismissal – Gross insubordination – Instruction to go to office – When found in civilian clothing before knock-off time – Witness evidence – Company not establishing that instruction given – Practice at workplace to change into private clothes 15 minutes before knock-off time – Corroborated by employees who were clocking out before 5pm when the interaction with employee occurred – Arbitrator found dismissal substantively unfair – Review application dismissed.

 

 

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

Case No: JR713/22

 

 

In the matter between:

 

STRADO REMANUFACTURING (PTY) LTD                           Applicant

 

and

 

SAME DIPHOKO N.O.                                                              First Respondent

 

THE DISPUTE RESOLUTION CENTER FOR THE

MOTOR INDUSTRIES BARGAINING COUNCIL                     Second Respondent

 

NASECGWU obo SA MATLALA                                             Third Respondent

 

 

Heard:           13 April 2023

Delivered:     24 April 2023

 

 

JUDGMENT

 

 

MAKHURA, AJ

 

 

Introduction

 

[1]       This is an application in terms of section 145 of the Labour Relations Act[1] (LRA), brought by Strado Remanufacturing (Pty) Ltd (company) to review and set aside the arbitration award issued under case number MINT 74467A and served on the parties on 28 February 2022. The company also seeks the award to be substituted with an order declaring the dismissal of the individual third respondent (employee) procedurally and substantively fair, alternatively remitting the matter to the second respondent for a hearing de novo. The application is unopposed.

 

The charge and evidence

 

[2]       On 6 November 2020, the company served the employee with a charge sheet calling him to attend a disciplinary hearing on 10 November 2020 to answer the following allegation of misconduct:

 

‘Gross insubordination and/or Gross Insolence in that on the 20th of October 2020, you refused to obey a reasonable and lawful instruction by refusing to go to Flippie’s office as you were instructed. You merely ignored Flippie and continued to walk away thereby, showing disrespect to management.’

 

[3]       The employee was found guilty and dismissed. Aggrieved by the decision, the employee referred an unfair dismissal dispute to the second respondent for conciliation and later arbitration.

 

[4]       At the arbitration proceedings, the company called Willem Scholtz (Scholtz) as its first witness. Scholtz was the chairperson of the disciplinary hearing. His evidence was focused on his reasons for finding the employee guilty and recommending a sanction of dismissal. His evidence is therefore of no value to these proceedings.

 

[5]       The second witness was Phillip James Wall (Flippie). His evidence was that at around 16h30 on 20 October 2020, he went to do the rounds at the workshop to monitor or check the progress of production. At around 16h45 or 16h50, he arrived at the paint shop where he found very few workers and he decided to investigate and walked through towards the workshop. He went to the top floor of the building and found three paint shop workers in the clothing room already dressed in their private clothes ready to go home. He asked them if they had permission to get changed before knock-off time. Whilst questioning them, he then decided to leave the clothing room to go look for their direct supervisor, Nico Venter (Venter).

 

[6]       He then went to call Venter. On their way back to the top clothing room, the employee came out of the bottom clothing room. Flippie then clarified his evidence from the time he found the three workers at the top clothing room and how he met the employee:

 

‘PHILLIP JAMES WALL: Okay, if I may explain, I first went upstairs and I saw three candid [sic] I saw three people in the top clothing room, I addressed them so I couldn’t get answers from them so I went back to find the supervisor in the workshop.

…

PHILLIP JAMES WALL: So I found Mr. Nico Venter and we went to them… on our way back the… the on the bottom floor Mr. Andrew came out from one of the clothing room there and we stopped and we addressed Mr. Andrew and asked him the same question, who gave him permission to get dressed before knockoff time.’

 

[7]       Mr Andrew is the employee in this matter. Flippie testified further that the employee ignored his question, proceeded to walk towards the door and he then called him to his office. The employee was with a colleague, John Mohlomi (Mohlomi). They proceeded to walk towards the gate and Flippie followed them. He asked them to come to his office, but they continued ignoring him and when the 17h00 bell rang to signal knock-off time, they clocked out. He engaged them to come to his office, but they ignored him in front of the other workers who were lining up to clock out. Flippie’s testimony was that the practice was that it is only after the 17h00 bell rang that employees would proceed to the change room. He said that he was angry after he found employees already in their private clothes before 17h00.

 

[8]       Under cross-examination, Flippie testified that out of the three workers he found at the top clothing room, after he addressed them, two of them showed that they were sorry and put back their overalls immediately and returned to the paint shop. He said that when he met the employee, it was already around 16h55. When he asked the employee and Mohlomi if they had permission to dress in civil clothes before 17h00, the employee and Mohlomi stood there for a minute without speaking and started walking. He was cross-examined about a practice that was implemented by the previous Human Resources Manager (Vusi Khumalo) to the effect that the employees could change into their private clothes and leave their tools at 16h45. Flippie’s response was that he was not aware of the practice and that in any event, that practice or agreement as they referred to it, was not valid because the previous HR Manager had left the company.

 

[9]       The employee continued to work and Flippie testified that he was subsequently given instructions by his supervisor, and he followed them.

 

[10]    The third witness was Venter. He was the employee’s foreman or direct supervisor. He testified that Flippie fetched him at around 16h50 to 16h55. Further, that when Flippie asked the employee why he was in his private clothes before 17h00, the employee kept quiet. Asked if Flippie issued an instruction to the employee, he responded that Flippie repeatedly asked the employee and Mohlomi why they were dressed in their private clothes before the bell rang. Thereafter:

 

‘NICOLAS JACOBUS VENTER: Uhm they started to walk towards the, the uh exit and Flippie was following them uhm asking him come to talk to me, why did you get dressed earlier so they went and I went back to the Paint shop.’

 

[11]    Venter continued his testimony as follows:

 

‘RESPONDENT’S REPRESENTATIVE: Do you know if he gave them any instructions, to do anything?

NICOLAS JACOBUS VENTER: Uh no he just kept on asking why did you get dressed before time, he wanted an answer why did they do it, so they start walking away and uhm Flippie was following them and he kept on asking uhm please lets solve this why, why would they do that …’

 

[12]    After some leading questions directing him to say that an instruction was issued, Venter agreed that an instruction was issued, but that it was at the time that they started walking out when he was going back to the paint shop and that he was not there. However, he concluded his testimony in chief by stating that Flippie eventually asked the employee and Mohlomi to go to his office when they were walking away and that he heard this instruction.

 

[13]    Under cross-examination, he said that he overhead Flippie telling the employees to “come to my office, why did you get dressed before time, so that we can solve this problem”. Venter testified that he worked with the employee for a long time, that he was a good worker, never had a problem with him and that he listened and followed his instructions.

 

[14]    The employee testified that at 16h45 on 20 October 2020, he returned the tools to the storeroom. He said that they had an existing practice to return the tools at 16h45. At around 16h55, he had just changed into his private clothes when Flippie entered the dressing room and found him with his colleague. He said that Flippie did not say anything to them. He said that had he received the instruction to go to Flippie’s office, he would have gone to his office. He said that he clocked out around 17h10.

 

[15]    Under cross-examination, the employee conceded that he stopped working at 16h45. He conceded further that his working hours are from 07h30 to 17h00 and that he was already in his private clothes before 17h00. He denied that Flippie issued them with the instruction to go to his office. He stated that previously, the employees met with the HR Manager (who is no longer in the company’s employ) and requested to be released at 16h45 to allow them to catch the 17h00 bus and that this was a rule or practice.

 

The award

 

[16]    The arbitrator recorded the facts that were common cause, which were that the employee had changed into his private clothes before 17h00 and that he clocked out just after 17h00, which meant that he stopped working before 17h00.

 

[17]    She accepted the evidence that there was a practice to change into private clothes 15 minutes before knock-off time. The arbitrator also noted that at the time Flippie confronted the employee, other employees were already clocking out. The arbitrator questioned why Flippie would single out the employee and Mohlomi to report to his office when other employees had committed the same offence.

 

[18]    As she was confronted with the company’s version that an instruction was issued on the one hand and the employee’s version that there was no such instruction on the other, the arbitrator proceeded to refer to the CCMA guidelines and the judgment of Stellenbosch Farmers’ Winery Group Ltd and another v Martell Et Cie and others[2] on the approach used to resolve factual disputes.

 

[19]    The arbitrator found that the company’s witnesses appeared to be coached and that there were contradictions in their evidence. She accepted the employee’s version. Ultimately, she found that the company failed to prove that the employee is guilty of the offence. She found the dismissal to be substantively unfair and ordered reinstatement, with limited backpay.

 

The grounds of review

 

[20]    The company raised one ground of review relating to the arbitrator’s evaluation of evidence. The argument is that she ignored and failed to apply her mind to the evidence and erred in not accepting the evidence or version of its witnesses.

 

[21]    In the alternative, if this Court is not with the company on its ground of review above, the company seeks an order amending the amount of backpay, to reflect 6 months backpay as opposed to 10 months.

 

Analysis

[22]    The review test is well established. The question before this Court is as follows –

“Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”[3]

[23]    The Supreme Court of Appeal clarified the test as follows:

‘In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A 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. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’[4]

[24]    The Labour Appeal Court in Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others, held that this is a stringent test:[5]

‘The [Sidumo] test… is a stringent test that will ensure that such awards are not lightly interfered with. It will ensure that, more than before, and in line with the objectives of the Act and particularly the primary objective of the effective resolution of disputes, awards of the CCMA will be final and binding as long as it cannot be said that such a decision or award is one that a reasonable decision maker could not have made in the circumstances of the case. It will not be often that an arbitration award is found to be one which a reasonable decision maker could not have made.’

[25]    The upshot of the company’s submission is that the arbitrator should have found that there was an instruction issued that the employee defied, making him grossly insubordinate. The company submits that evidence of the instruction is corroborated by its two witnesses. It argues that the employee has presented two mutually destructive versions – one, that he did not hear the instruction and two, that he did not respond to Flippie as a sign of respect.

[26]    I have referred to the material evidence of Flippie and Venter above. Flippie said that he found three employees and asked them why they were in their private clothes, they did not answer and that is when he went to find their supervisor, Venter. Under cross-examination, his evidence was that after he asked the three employees why they were in private clothes, two of them immediately changed back into their work uniforms.

[27]    When he met the employee at about 16h55, he asked him who gave him permission to put on his private clothes before knock-off time. His evidence was that the employee kept quiet for a minute before he started walking off to the door and the gate. That is when he started asking him to come to his office. The 17h00 knock-off bell rang and the employee joined the other employees who were already queuing to clock out.

[28]    Venter’s direct response to the question of whether Flippie issued an instruction to the employee was that he repeatedly asked the employee why he dressed in his private clothes or who gave him permission to dress in private clothes before knock-off time. It took leading questions for Venter to say that he went back to the paint shop when Flippie was following the employee asking him why he was dressed in private clothes and finally agreeing that Flippie issued such an instruction.

[29]    Insolence is defined as conduct that is considered offensive, disrespectful, impudent, cheeky, rude, insulting or contemptuous. Insubordination, on the other hand, constitutes willful and serious refusal by employee to obey lawful and reasonable instruction or deliberate and serious challenge to employer's authority.[6]

[30]    The genesis of the charge is the employees’ decision to dress in private clothes before 17h00. Flippie gave contradicting versions regarding his first encounter with the first group of three employees, casting doubt on his credibility. On his evidence, there were other employees already queuing to clock out by the time the employee got to the clocking machine. These employees were not called to Flippie’s office to attempt to resolve the issue. Venter’s evidence started more like there was no instruction issued, shifted to not being around when the instruction was issued because he went back to the paint shop then to hearing Flippie issuing the instruction. The employee said he was not issued with the instruction. In any event, the evidence suggests that if indeed there was an ‘instruction’, this amounted to no more than a question whether the employee had the authority to change into private clothes before 17h00 and later on, a request for him to report to Flippie’s office.

[31]    The company did not even establish the instruction allegedly issued nor did it establish any offensive or disrespectful conduct on the part of the employee. There is no evidence to suggest the employee challenged or defied the authority of Flippie, directly or indirectly. The arbitrator found the employee not guilty after consideration of the contradictory, coached and unreliable versions advanced by the company’s witnesses. Further, the practice of leaving before 17h00 was not in dispute, and was in fact corroborated by the employees who were already clocking out before 17h00. There is no evidence that these employees were disciplined for leaving work early. I am unable to find anything unreasonable with the arbitrator’s findings. Her ultimate decision, that the dismissal was unfair, falls within the bounds of reasonable decisions and should not be interfered with.

[32]    The company’s criticism of the arbitrator’s award essentially amounts to an attack on her evaluation of the evidence, nothing more. I do not agree that the arbitrator committed any reviewable irregularity. The award demonstrates that the arbitrator applied her mind to the issues and evidence before her. She understood the nature of the enquiry and issued an award that is reasonable. The company has failed to make out a case on review.

[33]    Although the arbitrator stated that the employee should be awarded 6 months’ backpay, she calculated the amount of backpay based on 10 months. The company seeks this Court to ‘correct’ the calculation to reflect 6 months. In essence, this Court is asked to vary the award. This Court is not clothed with the necessary jurisdiction to vary the award. There is no evidence to support the company’s version that the arbitrator wanted to award 6 months and not 10 months. Although she referred to 6 months, the reference to 6 months could have been an error on her part. This Court is not in a position to determine the alleged error or mistake. I find no basis to interfere with the calculation. Unless there was an error of law such as granting backpay that is more than the period that the employee remained out of employment since his dismissal, the company’s remedy in this regard is to apply for a variation of the award.

[34]    In the premises, the following order is made:

 

Order

 

1.     The application is dismissed.

 

 

M. Makhura

Acting Judge of the Labour Court of South Africa

 

Appearances:

 

For the Applicant:             Ms. T Moyo of Snyman Attorneys

For the Respondents:       No Appearance

---