Msunduzi Municipality v Hoskins (DA14/15) [2016] ZALAC 61; [2017] 2 BLLR 124 (LAC) ; (2017) 38 ILJ 582 (LAC) (2 September 2016)

Principle:

There is nothing unlawful or unreasonable about an employer's instruction to an employee who is part of management, that s/he may not represent employees against disciplinary action taken by management.

Facts:

A municipal employee in a management position defied the municipal manager's instruction to stop representing employees in disciplinary enquiries instituted by the municipality. After a disciplinary hearing he was dismissed for refusing to comply with the instruction to recuse himself from and ceasing to represent fellow employees in disciplinary proceedings instituted by the municipality; he was also found guilty of gross misconduct for failing to act in good faith, not acting in the best interest of the municipality and bringing the municipality into disrepute and one charge of gross insolence by being rude, disrespectful, sarcastic, abusive, insulting and provocative to the Municipal Manager.

In arbitration at the South African Local Government Bargaining Council (SALGBC) the arbitratorfound that the dismissal was fair and that there was no need for progressive discipline as the insubordination was a serious transgression. There had been a complete breakdown of the employment relationship and it was clear that the employee could no longer work with the employer.

On review at the Labour Court the arbitration award was set aside and substituted with an order that the dismissal of the employee was unfair on the basis that the sanction of dismissal was inappropriate. The Labour Court substituted the dismissal award with an order reinstating the employee to his employment retrospectively but limited to a period of six months. In addition, the court ordered that the respondent be issued with a final written warning.

On appeal, the LAC confirmed that the instruction was lawful and reasonable and that the employee's conduct amounted to gross insubordination. In addition, the employee had blatantly and public challenged the authority of the municipal manager, had dared him to take action and had shown no remorse. In these circumstances, dismissal was the appropriate sanction.

Extract from the judgment:

(Tlaletsi AJP)

[26]   It cannot be disputed that the respondent was found guilty of serious instances of insubordination and insolence. His insubordination was a direct challenge to the authority of the Municipal Manager. He without any doubt intended to seriously undermine the authority of the Municipal Manager and in so doing humiliated him. By posting the letter on the notice board, he wanted his feelings about the Municipal Manager known by other employees and any other person who reads the letter. The publication, also, has a potential to influence the reader not to respect the head of the institution. To further aggravate the situation, he distributed copies of the letter to other employees of the municipality and a union which he was not even a member of. This act could only have been intended to make the Municipal Manager lose the respect of his subordinates and the trade union.

[27]   The contents of the letter are in my view a reflection of one of the most classical examples of gross disobedience that one can find. The respondent made it clear that he was not going to obey the instruction and even dared the Municipal Manager to take further steps he had warned would be taken should he continue with his conduct. He warns him that he is due to fail against him like his predecessors he named in the letter. He further refers to his fellow employees as faceless, spineless and nameless advisors.

[28]   In line with his resolve, the respondent continued to represent the employees in blatant disregard of the instruction. When the Municipal Manager issued a further instruction, he chose not to respond to the letter and ignored its contents by continuing to represent the employees. The respondent had an opportunity to reflect on his decision to refuse to obey the instruction; and on the contents of his letter to the Municipal Manager. He squandered the opportunity to repent when warned by the Municipal Manager; and to heed the advice by his colleagues. His further conduct towards the Municipal Manager at the arbitration showed a lack of remorse. For his counsel to now submit from the bar that the respondent is remorseful, is nothing else but to regret what he has done because of the situation he now finds himself in. He dared the Municipal Manager and he took up the dare. Put differently, the respondent got what he called for.

[29]   In my view, the arbitrator correctly applied his mind to all the material that was placed before him. He took into account the seriousness of the insubordination, the respondent's blatant well-publicised challenge to the authority of the Municipal Manager, that he showed no remorse when he appeared at the arbitration and found the dismissal to be an appropriate sanction. The fact that the arbitrator did not make specific reference to Schedule 8 of the LRA does not detract from the fact that factors relevant to sanction were in this matter taken into account. The arbitrator considered progressive discipline and found that given, inter alia, the seriousness of the transgression, lack of remorse and instead being defensive, the complete breakdown in the employment relationship between the respondent and the Municipal Manager, as well as the responsibility of the municipality to deliver services, it would not be practicable to restore the employment relationship. I also find no merit in the submission made on behalf of the appellant that the respondent was three management levels below the Municipal Manager and as such contact between the two in the course of the daily operations of the municipality would be either non-existent or minimal Contact between the two will not be avoidable because the respondent is part of the management team led by the Municipal Manager. Furthermore, since it is the respondent who published his gross insubordination and insolence to be known by all and sundry towards him, it would send a wrong message to the entire staff to hide the respondent from the Municipal Manager or create a no-go zone or an enclave for him in order to keep the respondent in employment.

[30]   The proper test to be applied in a review of an arbitration award on sanction is whether the decision of the arbitrator about the fairness of the sanction imposed by the employer is a decision that a reasonable arbitrator could not reach. The simple answer to this question in the circumstances of this case is that the decision is reasonable. The decision is indeed justified by the material placed on record. It was therefore not open to the court a quo to consider whether the sanction was harsh and impose a sanction that in its opinion is not harsh. It is the call of the arbitrator and not that of the Labour Court to assess the fairness of the sanction of the employer. The court a quo further misdirected itself by finding that the arbitrator should have found that the respondent deserved a second chance without advancing any reason why a second chance would be appropriate in the circumstances. As pointed out already, the respondent was given an opportunity to reflect on his conduct. He instead proceeded to do precisely what he was warned not to do. He would have continued to do so even if given a further chance as he was not open to any persuasion. The arbitrator, in my view, complied with what was required of him to do, in order to meet the standard set by the Constitutional Court, namely:

'In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.

To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances'.

[31]   For the above reasons, there was no reason to interfere with the award. The appeal should succeed and the order of the Labour Court falls to be set aside. It would be in accordance with the requirements of the law and fairness that no order as to costs should be made...

[32]   In the result the following order is made:

  1. The application for condonation for the late filing of the notice of appeal as well as the record of the appeal is granted and the appeal is reinstated.
  2. The appeal is upheld and the order of the Labour Court is set aside and replaced with the following:
    "The application for review is dismissed with no order as to costs."
  3. There is no order as to costs on appeal save for the wasted costs of 10 May 2016 which are to be paid by the appellant.