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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

Case No: JR 2624/18

 

 

In the matter between:

 

BERYL NOMAWETHU TSHAKA                          Applicant

 

and

 

SOUTH AFRICAN PROPERTY OWNERS ASSOCIATION

(SAPOA)                                                               First Respondent

 

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION (CCMA)                               Second Respondent

 

COMMISSIONER J MASHABA N. O                   Third Respondent

 

Heard:        19 July 2023

 

Delivered:  The judgment was handed down electronically by circulation to the applicant and respondent’s legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down is deemed to be 11H00 on 20 July 2023.

 

Summary:  Application to review and set aside an arbitration award. The impugned award falls within the bands of reasonableness. Held: [1] The application for review is dismissed. Held: [2] There is no order as to costs.

 

 

JUDGMENT

 

 

MOSHOANA, J

Introduction

 

[1]         This is an application brought in terms of section 145 (1) of the Labour Relations Act (LRA)[1]. The applicant before me is seeking to review and set aside an arbitration award issued by Commissioner J Mashaba (Mashaba) on 24 October 2018. Mashaba found that the dismissal of the applicant, Beryl Nomawethu Tshaka Patience (Tshaka) was both procedurally and substantively fair. Tshaka was aggrieved by the arbitration award and launched the present application. The application is duly opposed by the South African Property Owners Association (SAPOA).

 

Background Facts

 

[2]         Tshaka was employed as a Membership Relations Officer (MRO) effective from 1 January 2012. On or about 30 November 2017, Tshaka was given an instruction to attend a meeting scheduled for 4 December 2017 with a prospective client, Prime Furnishers. The prospective client had indicated that it was interested in also becoming a member of SAPOA. Tshaka refused both in writing and verbally to attend the scheduled meeting. She indicated that she had another meeting set up for the same time; that she was not part of previous discussions as regard the prospective client; that she was notified on a short notice; that she does not ordinarily attend face-to-face meetings; and that SAPOA had not implemented the project run by an advising company.

 

[3]         Despite all the above reasons, the manager of Tshaka insisted that the meeting should be attend. On 1 December 2017, Tshaka attended the office of her manager and advised her that she will not attend the said meeting. As a result, an altercation[2] ensued between Tshaka and her manager. Allegedly, Tshaka was rude to her manager and the HR officer. As a result, she was subsequently issued with a pre-suspension letter calling on her to provide the HR officer with the reasons as to why she should not be suspended. On 4 December 2017, Tshaka was placed on suspension with full pay.

 

[4]         Ultimately, she was charged with acts of misconduct (gross insubordination; dereliction of duties; insolence and threating her manager). She was found guilty and dismissed. Aggrieved by her dismissal, she referred a dispute and alleged unfair dismissal to the CCMA. As indicated above, Mashaba was appointed to arbitrate the dispute. After listening to the evidence, Mashaba reached the conclusion already outlined above. She was aggrieved by the conclusion and launched the present application.

 

Grounds of review

 

[5]         Tshaka bemoans the fact that Mashaba was unable to properly consider the facts before him and committed some gross irregularities which includes, (a) failure to consider relevant facts before him in coming to the decision he came to with regard to his award; (b) he relied on a clear exception to prove the existence of a rule that she attended external meetings; (c) he failed to correctly discern that nature of the charges brought against me by the first respondent and therefore the type of sanction that should have been appropriate in the circumstances; (d) he prejudged the matter in that he encouraged her to accept an offer of settlement that SAPOA had not even made to her legal representatives before hearing all the evidence; (e) he failed to observe material inconsistencies; and (f) he failed to consider clear bias of Moshia.

 

Evaluation

 

[6]         This Court is clothed with review powers as opposed to appeal powers. The grounds punted for by Tshaka are nothing but appeal grounds. A gross irregularity arises in an instance where a party is not afforded a fair trial of issues. It is clear to this court that Tshaka was indeed afforded a fair trial of issues. The fact that Mashaba decided the dispute against her does not imply that she did not have a fair trial of issues.

 

[7]         It is by now settled law that in a review the test is whether the decision is one that a reasonable decision-maker would reach. It is common cause that Tshaka received an instruction from her superior to attend a specific meeting. It is also common cause that the employee refused both verbally and in writing to attend such a meeting. Undoubtedly, the employee failed to carry out what was clearly a reasonable instruction from the employer. That conduct amounts to insubordination. The Labour Appeal Court (LAC) has already concluded that employers should not negotiate instructions with employees[3]. Regard being had to the reasons advanced by Tshaka, she clearly required her manager to negotiate the instruction with her. It was also common cause that the employee had stated to the HR officer that he must shut up. Clearly, this is a conduct that displays insolence and disrespect to authority.

 

[8]         Having carefully considered the supposed grounds of review, this Court takes a firm view that the arbitration award of Mashaba is one that falls within the bands of reasonableness. That being the case, this Court has no powers to interfere with the decision of Mashaba. In the circumstances, the application for review falls to be dismissed.

 

Order

 

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

 

1.      The application for review is dismissed.

2.      There is no costs order.

 

 

GN Moshoana

Judge of the Labour Court of South Africa

 

Appearances

For the Applicant:             In Person (her attorney was fired by her)

 

For the Respondent:        Mr. P Le Roux Theron

 

Instructed by:                  Salijee Govender Van der Merwe Inc, Parktown.

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