- June 26, 2023
- |Concise Law Reports (CLR), Labour Law
The first respondent was employed by the appellant as a multi-skilled operator in the Ore Processing Department – in the material re-handling section – from 1 June 20004 until he was dismissed on 30 April 2019. In September 2018, the appellant suspended operations at the mining department discussing proposals of merging the Ore Processing Department with the Mining Pit Operations within the mining department. With this said, on 3 April 2019, the first respondent and his other co-workers were verbally briefed by their acting superintendent to work at the AN16 section to which they refused to work there without authorisation letters hence operations at AN16 were suspended until the written authorisation letter were to be handed over.
On 5 April 2019 the memo – specifying the merging of these two units – was distributed amongst the employees which also constituted a written authority for the relevant employees to work at AN16. On the contrary, they were informed to conduct a mini risk assessment to load materials from AN16 to the CIP crusher. The first respondent refused to accept the memo as the written authority as well as refused to conduct the mini risk assessment at AN16 so as to commence with the production of work on the site as instructed. Therefore, he was reported by a certain Mr Bauleth of refusing to obey a legitimate instruction. On 8 April 2019, the first respondent was provided with a notice of suspension and on 11 April 2019 was notified of a disciplinary hearing set down for 16 April 2019 on one count of refusal to obey a legitimate instruction. He was thus found guilty of refusing to obey a legitimate instruction and was subsequently dismissed.
On 8 April 2019, an appeal was lodged by the first respondent on the basis of unfairness and that the penalty was too harsh of which the result was that there was no evidence presented on appeal regarding the grounds he raised. The matter was then referred to the arbitrator and his finding was that the employment contract was terminated fairly on procedural lack (sic) but failed to succeed on the substantive leg. On the contrary, the arbitrator’s decision was that the first respondent was unfairly dismissed thus he should be reinstated by the appellant on 1 July 2020 and paid for loss of income.
It is because of the arbitrator’s award that the appellant appealed. The appeal was against the arbitration award issued on 20 May 2020 by the second respondent (the arbitrator) against the appellant (a private company with limited liability). The second respondent found, in the arbitration award, that the first respondent’s (Petrus Namondi) dismissal on charges of insubordination was substantively unfair all because he refused to obey a legitimate instruction by his superiors.
SCHIMMING-CHASE J considered the facts above and stated that:
Discussion
The court had to decide whether it should interfere with the decision of an employer to impose a sanction of dismissal. According to the general principles of reasonableness and fairness, it is accepted that employers are entitled to set standards of conduct for their employees and to decide how these standards should be enforced. As held in Kroon JA in County Fair Foods (Pty) Ltd v CCMA and Others [1999] 11 BLLR 1117 (LAC) at 1121E – F:
‘It remains part of our law that it lies in the first place within the province of the employer to set the standard of conduct by its employees and to determine the sanction with which non-compliance will be visited, interference therewith is only justified in the case of unreasonableness and unfairness.’
The test is whether the decision to dismiss an employee can be regarded as so excessive that no reasonable person – or employer – would have taken such a step. SCHIMMING-CHASE J adopted this test which was approved by the Labour Court in Model Pick ‘n Pay Family Supermarket v Mwaala 2003 NR 175 (LC) at 179F-180 C. The court had to decide whether the decision to dismiss the respondent is one that no reasonable person would possibly regard as reasonable or fair. Was it ‘perverse or ‘dramatically wrong’?
The first respondent had knowledge of the appellant’s policies because he was employed there for a long time. One of the appellant’s Code of Conduct specifically highlights that the intention is to encourage and promote disciplined behaviour among all employees, which is also applied equally among all employees.
‘[56] It is clear from a perusal and consideration of QKR’s policies that QKR reserved the right to take appropriate disciplinary action where an employee is insubordinate or refuses to obey a lawful instruction unless the nature of the work environment is unsafe. Where an employee is found guilty of insubordination, disciplinary action is warranted, and dismissal may be justified.
[57] An employee is defined in the Labour Act as someone, who works for another person and who receives remuneration for that work, or someone who in any manner assists in carrying or conducting the business of an employer. In Namdeb Diamond Corporation (Pty) Ltd v Gaseb 2019 (4) NR 1007 par 65 the Supreme Court held that an employee has an implied fiduciary duty which involves an obligation not to work against his or her employer’s interest.
[58] The court in Dominikus v Namgem Diamonds Manufacturing LCA 4/2016) [2018] NALCMD 5 (23 March 2018) para 21 held:
‘[21] Substantive fairness means that a fair and valid reason for the dismissal must exist. In other words, the reasons why the employer dismisses an employee must be good and well-grounded; they must not be based on some spurious or indefensible ground. This requirement entails that the employer must, on a balance of probabilities, prove that the employee was actually guilty of misconduct or that he or she contravened a rule. The rule, that the employee is dismissed for breaking, must be valid and reasonable. Generally speaking, a workplace rule is regarded as valid if it falls within the employer’s contractual powers and if the rule does not infringe the law or a collective agreement.’
[59] It is also clear from the record that Mr. Bauleth gave Mr. Nambondi a lawful instruction. It is certain that no rule and/or policy existed that entitled Mr. Nambondi to request for specific authorisation to do work at the AN16 section. Despite this, QKR endeavoured, through its Acting Ore Processing Manager, to provide the employees with a written authorisation and explanation for the instruction.
[60] QKR distributed three memos to the employees setting out the importance of the restructuring within the mine and requesting all employees’ assistance in this process, specifically considering the financial constraints placed on QKR. From a perusal and consideration of the memos, it is quite apparent that the said memos constituted written authority to do work at the different sections, especially since these memos were authored by the Managing Director and Acting Ore Processing Manager, who are authorised to give access to different sites within the mine.
[61] Mr. Nambondi had a duty not to work against the interest of QKR as envisaged in his employment agreement, but he did just that when he refused to do work for approximately four days. It cannot be said that Mr. Nambondi did not have the authority to do the work at the AN16 section as he obtained verbal briefs from Mr. Kamajova, Mr. Matsika, and Mr. Bauleth, coupled with the memos. This constituted enough authority. In fact, it was not disputed that Mr. Nambondi had access to his superiors to at least confirm the instruction.
[62] What is more interesting is that upon receipt of the memo of 4 April 2019, the rest of the employees commenced work at the AN16 section as instructed, but Mr Nambondi remained steadfast to refuse to do any work. The reason for his refusal was that he wanted to be covered in case any hazards occurred is rejected given that he was requested to do a mini risk assessment at the AN16 section by Mr. Bauleth prior to doing any work. No risk and/or hazards existed at the time that he point blank refused to accept the verbal authority and/or instruction from his superiors and the written memos giving him the authority to commence work at the AN16 section.
[63] In my respectful view, the arbitrator erred in finding that Mr. Nambondi was in the above circumstances, still entitled to an individual authorisation letter, in light of the change of working environment, and that he was justified, effectively, in not following the instructions contained in the memo of 4 April 2019, which his colleagues complied with. This is borne out by the testimony of two of Mr Nambondi’s witnesses. I also do not see any facts in the record justifying the finding that QKR did not handle Mr. Nambondi’s plight with the urgency it deserved. It would appear that the finding was that Mr. Nambondi was not insubordinate, given that he was justified to refuse to work.
[64] This finding is in dramatic contradiction to the facts. I cannot see that QKR was, in the circumstances, dramatically wrong in dismissing Mr. Nambodi, given his actions and QKR’s disciplinary policies. His insubordination was flagrant and unjustifiable. Effectively, and on the facts, there could be no finding either that, Mr Nambodi was not insubordinate, or that QKR did not prove on a balance of probability that his dismissal was justified. In the circumstances, the award falls to be set aside.
[66] In terms of s 89 (10) of the Labour Act, if an award is set aside, the Labour Court may, in the case of an appeal, determine the dispute in the manner it considers appropriate. In this instance, it would be appropriate to set aside the entire award of the arbitrator.’
It was accordingly held that:
a) An employment agreement creates a fiduciary relationship between an employer and employee which requires the conduct of utmost good faith. It is a reciprocal obligation, whereby an employee is to act in the best interest of his or her employer.
b) Where an employee is found guilty of insubordination, disciplinary action is warranted, and dismissal may be justified as per the appellant’s company policies.
As a result, the appeal was upheld. The decision of the arbitrator is set aside in its entirety. The parties did not address the court on costs hence the court could not deviate from the general principles regarding costs.