SAMWU and Others v Ethekwini Municipality and Others (DA5/13) [2016] ZALAC 47; [2016] 12 BLLR 1208 (LAC) (2 September 2016)

Principle:

  1. Being shop stewards does not detract from the fact that employees still remain subordinate to their employer, and under an obligation to comply with lawful and reasonable instructions given by the employer.

  2. Insubordination concerns the wilful refusal to comply with an employer's lawful and reasonable instruction. Where the insubordination is gross, in that it is persistent, deliberate and public, a sanction of dismissal would normally be justified.

Facts:

2 shop stewards were employed by Ethekwini Municipality at its South Western depot in Chatsworth, Durban. They were both dismissed in 2008 for misconduct involving gross insubordination, following an incident at the employer's premises. It was alleged that they 'illegally' locked the gate at the depot, preventing staff and contractors from entering and leaving the depot to perform their duties and thereby disrupting the employer's operations. It was also alleged that they were insolent, provocative and intimidatory towards the maintenance manager during this incident.

It was not disputed that the locking of the gate was unauthorised and that this caused a disruption to the employer's operations. The maintenance manager gave evidence that he ascertained from the security guard that the 2 shop stewards had taken the gate keys from him and locked the gate. He then called a meeting attended by, amongst others, the 2 shop stewards. He instructed the 2 shop stewards to open the gate, which they refused to do, informing him that it would only be opened if he went to the lecture room to address the general staff on certain employee grievances that had been raised. Even when he went to the lecture room to address employees, they still did not open the gate and it remained closed for some 2 1/2 hours. The maintenance manager said they defied him in front of other employees and that their refusal to comply with his instructions constituted gross insubordination.

The shop stewards denied taking the gate keys from the security guard and locking the gate, submitting that it was locked by disgruntled employees demanding a meeting with the maintenance manager. They said that they at all times were acting in their capacity as shop stewards and on instructions given by employees.

A disciplinary hearing found them guilty and they were summarily dismissed on 13 March 2009. Dissatisfied with their dismissal, they referred the matter to arbitration. The arbitrator found them guilty of gross insubordination and that their dismissal was substantively fair. He found however that their dismissal was procedurally unfair, on the basis that a presiding officer had been appointed to chair the hearing who was not qualified to do so in terms of the employer's disciplinary procedure. As a result he awarded compensation of R6 289 to the one shop steward and R15 866 to the other.

Dissatisfied with the outcome, they took the matter on review to the Labour Court. In the Labour Court proceedings, the shop stewards submitted that their dismissals were unfair given their many years of service and clean records, and they disputed whether their actions constituted insubordination, let alone gross insubordination. The LC did not agree, and found that there had been a deliberate and serious challenge to management's authority. On the issue of their role as shop stewards, the LC said a shop steward is meant to lead by example and remains an employee. It can never be right for a shop steward to advance as an excuse the argument that what was done was whilst pursuing the interests of members.

The LC accordingly dismissed the shop stewards' review application and they appealed to the LAC. On appeal they failed to convince the LAC that there were grounds to review the arbitrator's award. On the distinction between mere insubordination and gross insubordination, the LAC said it is well settled that where insubordination was gross, in that it was persistent, deliberate and public, a sanction of dismissal would normally be justified.

Regarding their role as shop stewards, the LAC commented that it would appear from their actions that they laboured under a serious misconception that being shop stewards gave them the power and latitude to domineer and bully management as they pleased. The LAC said that being shop stewards does not detract from the fact that employees still remain subordinate to their employers and under the obligation to obey and comply with lawful and reasonable instructions given by the employer.

The LAC found that their dismissals were justified.

Extract from the judgment:

(Ndlovu JA)

[15]   The employees' grounds of review are not clearly and tersely laid out as one would have expected. However, gleaning from their founding affidavit, I can summarise their grounds of review as follows:

  1. That the arbitrator's award upholding the employees' dismissal was not warranted given the employees' many years of service and clean disciplinary record;

  2. That no evidence was led by the Municipality which justified the finding by the arbitrator that the employees' conduct constituted insubordination, let alone gross insubordination.

[16]   Having considered the matter, the Labour Court concluded that the arbitration award was not reviewable. The learned Review Judge referred, with approval, to the findings of the arbitrator:

'[30]   Based on this evidence, the second respondent [the arbitrator] in the award reasonably concluded as follows:

'The question then is did the applicants open or get the gate opened on receiving the instructions? Evidence led is that this did not take place but Dalton was merely informed that the gate would only be opened if he attended the meeting with staff at the lecture room. It was also evidence that the gate was opened after Dalton said again at the lecture room that the gate must be opened before he commences the meeting as he had then heeded staff call to the meeting. His instruction to the applicants was still not carried out when he arrived at the lecture room.

Insubordination requires either disobedience or challenge to authority which is deliberate and serious. In this case I find that the instruction was reasonable and lawful. I also find that there was a challenge to authority which was deliberate and serious. I therefore in the circumstances conclude that the respondent's version that the applicants committed gross insubordination is more probable than that of the applicants that they did not.'

And:

'[45]   The [arbitrator] did take into account the fact that the [appellants] were shop stewards. A shop steward is meant to lead by example and furthermore, he or she remains an employee and the employer is entitled to expect conduct appropriate of that relationship. It can never be right therefore for a shop steward to advance as an excuse the argument that what he or she did was done whilst pursuing the interests of its members.'

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[22]   In the decision of this Court in Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters and Others, the distinction between insubordination and gross insubordination was restated:

'It is trite that an employee is guilty of insubordination if the employee concerned wilfully refuses to comply with a lawful and reasonable instruction issued by the employer. It is also well settled that where the insubordination was gross, in that it was persistent, deliberate and public, a sanction of dismissal would normally be justified.'

....................................

[27]   It would appear from their actions that the employees laboured under a serious misconception that being in the position of shop stewards, as they were, gave them the power and latitude to domineer and bully the management and as they pleased, with impunity. Being affiliated to organised labour does not detract from the fact that employees still remain subordinate to their employers and to obey and comply with lawful and reasonable instructions given by the employers. In the present instance, the employees ought to have been aware and mindful of their responsibilities and limitations in the workplace, in their capacities as shop stewards. The collective agreement made it clear, inter alia, that: "Except as otherwise provided for in this agreement, or any other agreement between the parties, the shop stewards will be subject to the same rules, regulations and other conditions of employment as other employees of the employer." One of these is that "an employee...should obey all lawful and reasonable instructions given by a person having authority to do so". (Emphasised)

[28]   It was part of the employer's essential operational requirements that the gate be opened' and thus the instruction issued by Mr Dalton for the gate to be opened was a lawful instruction. Further, the instruction was a reasonable one - on the basis that Mr Dalton had credible information received from Mr Ndlazi that the employees had taken the gate keys; and the fact that the employees, when confronted about the matter by Mr Dalton, they did not expressly deny having taken the keys from Mr Ndlazi, but they simply told Mr Dalton that the gate would be opened only after Mr Dalton had addressed the staff on their grievances.

[29]   For a period of some 2 1/2 hours, the employer's productive operations had come to a standstill, having been sabotaged by the employees by their actions. They had no legal or moral justification to conduct themselves in that manner. They deliberately and maliciously defied a lawful and reasonable instruction given to them by Mr Dalton, their maintenance manager, who was authorised to give such instruction to them. In the circumstances, I am inclined to hold that the finding of the arbitrator, that the employees committed gross insubordination by refusing to comply with Mr Dalton's lawful and reasonable instruction, was a reasonable finding. Their dismissal was, therefore, justified.