ELRC 28-20/21
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ELRC 28-20/21
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Award Date:
31 March 2021
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Commissioner: VEESLA SONI
Case No.: ELRC 28-20/21 Date of Award: 31 March 2021
In the ARBITRATION between:
G RAMDASS APPLICANT
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT
Union/Applicant’s representative: Mr Makhanya
Anand Nepaul Attorneys
Telephone: 031 327 4600
Respondent’s representative: Mr Makhooe
Telephone: 081 3233262
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 186 (1) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on 5 October 2020, via zoom. The matter was part heard and was finalized on 10 March 2021.
2. The Applicant, Ms Ramdass was present and was represented by Mr Makhanya from Anand Nepaul Attorneys. Mr. Makhooe represented the Respondent.
ISSUE TO BE DECIDED
3. The issue in dispute was whether the dismissal of the Applicant was substantively and procedurally fair and in particular whether the instruction issued to the Applicant was a lawful one.
BACKGROUND AND SURVEY OF EVIDENCE
4. The Applicant commenced employment in 13 February 1989, as an educator. At the time of the dispute she was in the same position, earning approximately
R 423 609-00 per annum. The Applicant was an educator at Solvista Secondary School.
5. She was charged for misconduct on 18 July 2018 and was dismissed on 18 March 2020. The Applicant faced the following charges:
Charge 1: Count 1: Contravened section 18 (1) (i) of the Act in that you failed to carry out a lawful instruction by the authorities. The contravention took place in one and or some and or all manner/s described hereunder.
Count 1.1: On or about 7 February 2017 you wrongfully and unlawfully refused placement at Palmview Secondary School, hereby contravening the sub section of the Act referred to above.
Count 1.2 On or about 17 January 2018 you wrongfully and unlawfully refused report for duty at Foresthaven Secondary School, hereby transgressing the sub section of the Act referred to above.
Count 1.3 On or about 31 January 2018 you wrongfully and unlawfully refused to assume duty at Brookdale Secondary School, hereby contravening the sub section of the Act referred to above.
Charge 2: On or about 23 January 2018 at or near Solvista Secondary School, you displayed disrespect and demonstrated insolent behavior towards authority in that you unlawfully reported at the aforesaid school in total disregard of a lawful directive to do so, thus contravening S 18 (1)(t) of the Act.
6. The Respondent’s case was that the Applicant failed to abide by a lawful order from the employer.
7. The Applicant’s case was that she did not contravene the sections of the Act as cited in the charge sheet as there was no lawful instruction for her to obey. The instruction given to her was unlawful on the basis that it was not based on the recognized section dealing with transfer of educators in terms of the Employment of Educators Act No 76 of 1998. As such the dismissal was unfair and she requested reinstatement to Solvista Secondary School, with back pay.
RESPONDENT’S CASE
8. M E Mabaso testified he was the deputy director in employee relations from 2003 and attended to all types of disciplinary matters from hearings to arbitrations. He spoke of his extensive experience and said he found her guilty of charge 1 and 2, in that she failed to follow the instructions. The sanction of dismissal was reasonable as the employment relationship had irretrievably been broken down.
9. A Preethpaul testified he was the labour relations practitioner for the Respondent. He knew the Applicant as he was involved in her disciplinary enquiry. She was found guilty and suspended for 3 months without pay. It was recommended that she be transferred to another school. She referred the matter to the ELRC as an unfair labour practice and the award was in her favour. The matter went in her favour as the witnesses were not available and the arbitrator only had hearsay evidence.
10. D R Naidoo testified he was the principal of Solvista Secondary School and he knew the Applicant as she was an educator at his school. She was suspended from school and thereafter dismissed. He was aware the Applicant was charged for insubordination. The sanction of her previous charge recommended that she be placed at a different school and she was accordingly placed at Foresthaven for about a year. This occurred in 2017. In January 2018 she reported for duty at Solvista and he requested for a letter authorizing her to report to the school. She said she could not obtain same and the matter was reported to the circuit manager. The sanction on the first charge stated that she be placed at another school, hence when she reported at Solvista, he asked for a letter authorizing it. She reported at Solvista for about 5 days during which time she would sit in the staff room or her car for the entire day. Her returning to school created unhappiness. He denied that she reported for 3 months in 2018 and affirmed that she attended Solvista from 23 to 28 January 2021. The matter was reported to Dr K Naidoo, circuit manager.
11. Sthembiso Lushozi was employed by the department of education and knew the Applicant. The Applicant was charged in 2015 and her sanction was a three-month suspension. It was recommended that she be transferred to another school as there was an estranged relationship with the management of the school. After her suspension she reported to his office and she was offered Brookdale Secondary School, which was nearby, actually across the road. She did not accept this school and provided no reasons. This process was carried out in a manner of mutual settlement. She was then offered Palmview Secondary, which she also refused. She was then offered Foresthaven, and after intense engagement, she accepted the offer and reported to the said school.
12. At the beginning of 2018, she reported at the circuit office and said she did not want to return to Foresthaven and indicated she wanted to return to Solvista. She said a teacher insulted her and she no longer felt comfortable. There was no formal complaint of such an insult. They could not accede to her reporting to Solvista. She defied the instruction when she reported to Solvista. They learned of same via the principal. They called the Applicant and asked her to return to Foresthaven. She refused. They instructed her to report to Brookdale. She refused. The matter was reported to the district director and she was charged for insubordination as she defied the instructions.
APPLICANT’S CASE
13. The Applicant testified that in 2016 she was found guilty of misconduct and was sanctioned to three months without pay. She returned to work in December 2016. She was instructed by the principal, Naidoo, to report to Lushozi at the circuit office. She met with him on 6 December 2016. She was offered a position at Palmview Secondary, which she declined, on the basis that her sanction was overturned. She was treated badly by Lushozi and was not informed why she was being transferred. She was simply ordered to transfer to Palmview, which she turned down. She accepted a placement at Foresthaven as she was assured by her union that it was for a temporary basis. She spent almost a year at that school in 2017.
14. She did not return to Foresthaven as she was insulted and to maintain her self-respect she returned to her original school, Solvista, from 23 to 29 January 2018. She spent a week at the school and then reported to the circuit office on 29 January for a meeting with Lushozi. He asked her to report to Brookdale Secondary which she refused and gave her a five-day ultimatum. She returned to Solvista from 7 February 2019 to 21 May 2018. During this period, she sat in the staff room on a daily basis. She was not given any allocation of work. On 21 May 2018, Dr Naidoo came to the school and handed her a suspension letter.
15. She stated the transfer to the other schools were unlawful as it was a recommendation in the sanction and not the sanction. She said that she was treated poorly by Lushozi who violated her rights and dignity. There was no discussion regarding her transfer but rather an order. She asked to be reinstated back to Solvista Secondary. Her last salary was in March 2020.
ANALYSIS OF EVIDENCE
16. The matter was referred as an unfair dismissal dispute. The charge against the Applicant was serious and if found guilty it could accompany a sanction of dismissal. The onus rested on the Respondent to prove that the dismissal was substantively fair and called four witnesses in an attempt to discharge the onus.
17. I am tasked to weigh the evidence of the witnesses and make a determination on credibility and probability of evidence. This is not an easy task but as an arbitrator I am required to make such a finding. Where there are material disputes of facts it raises issues of credibility and reliability, and whether the evidence is “flagrant, frivolous and vexatious”. Sangoni AJA stated as follows in Edcon Ltd v Pillemer NO &Others (2008) 29 ILJ 614 (LAC) at par 21 :
“If the commissioner made a decision that a reasonable decision maker could not reach, he/she would have acted unreasonably which could then result in interference with the award. This, in my view, boils down to saying the decision of the commissioner is to be reasonable. To my understanding the dictum in Sidumo is not about shifting from the ‘reasonable employer test’ in favour of the so-called reasonable employee test. Instead, meaningful strides are taken to refocus attention on the supposed impartiality of the commissioner as the decision maker at the arbitration whose function it is to weigh up all the relevant factors and circumstances of each case in order to come up with a reasonable decision. It is in fact the relevant factors and the circumstances of each case, objectively viewed, that should inform the element of reasonableness or lack thereof”.
18. I am therefore required to make a determination based on all the relevant factors that will direct me to a reasonable finding. In this regard an arbitrator is required to have regard to the principles applicable to resolving disputes of fact, as described in Stellenbosch Farmers' Winery Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA),. Nienaber JA (supra at para 5): stated
“To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a) the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (iii) the quality, integrity and independence of his recall thereof. As to (c) this necessitates an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court’s credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail”.
CHARGE 1
19. Accordingly, I must analyse the evidence and focus on the credibility of the witnesses, their demeanour, reliability and truthfulness. The Applicant was charged for failure to obey lawful instructions and insolence. Employees who fail to obey lawful and reasonable instructions of their employers may be charged with 'insubordination', which if serious can even lead to a dismissal. Insubordination may result from a deliberate disregard of authority without valid reasons.
20. Mabaso found the Applicant guilty of the charges and said the sanction of dismissal was fair. He averred that the instruction to report to a different school was a reasonable and lawful instruction which she refused. He found that dismissal was the appropriate sanction as the relationship had irreparably broken down. The Applicant was found guilty of charges relating to having a relationship with a learner. The transfer of the Applicant to another school was based on the fact that her presence at the school would disrupt its smooth flow. She was placed at another school for a valid reason. She simply refused the instructions to report to three different schools, without reason or justification.
21. At this junction it is noteworthy to set out what type of misconduct was committed by the Applicant. Insubordination may be described as resistance to or defiance of authority, disobedience, refusal or failure to obey reasonable and lawful instructions, insolence, cheekiness, rudeness, bringing the employer's name into disrepute, and rebellious or mutinous behaviour resulting in an actual work stoppage. The characteristics present in insubordination would be a wilful verbal refusal of instructions, wilful disregard of management authority, disrespect, rudeness, rebelliousness or disobedient gestures, manner or attitude etcetera.
22. The Applicant faced two main charges: charge 1 had 3 counts, each of which related to failure to obey a reasonable instruction and charge 2: insolence. Failure to do as she was told, within the parameters of what was accepted as being a reasonable and lawful instruction, would amount to insubordination. An instruction that can be carried out without breaking any statute, common law or company policy is regarded as "a lawful instruction". Equally obviously, this would also be the first requirement of a "reasonable" instruction. But for the instruction to be reasonable, there are other elements required. An instruction can quite easily be lawful, but at the same time it can be unreasonable. The instruction must be capable of performance and the employee must have the necessary knowledge, skill, capability and ability to carry out the instruction. The instruction must fall within the ambit of the job. In other words, a reasonable and rational judgment must be applied. In this case the instruction was capable of performance.
23. Preethpaul stated that he represented the Applicant at the disciplinary hearing for her previous charge. She was sanctioned to a three-month suspension without pay. It was recommended that she be transferred to another school. The matter was referred to the ELRC and the award was in her favour which found that the Respondent committed an unfair labour practice. The recommendation to be moved to another school, was exactly that, and not a sanction. In any event she was found not guilty of the main charge but found guilty of having an undesirable interaction with a learner. The Applicant was found not guilty of misconduct pertaining to sexual misconduct with a learner.
24. It is undisputed that she was found not guilty of the charge. She was indeed found guilty of the alternative charge, relating to an undesirable relationship with the learner. I accept that the chairperson at the disciplinary hearing found against her and she was suspended. I further accept that it was not a sanction that she be transferred. It is the employer’s prerogative to furnish instructions to employees, especially when it’s with the intention to create harmony in the workplace. It may not have been the finding of the chairperson and she may have been successful in her unfair labour practice arbitration, but that did not sterilise the authority in an instruction.
25. Naidoo was the principal of Solvista and he testified that in January 2018 the Applicant reported to Solvista. He said she was transferred to Foresthaven as there was a strain on the relationship and the previous charge, that related to sexual relationships with a learner, created tension. I must accept that such a charge will create an undesirable atmosphere. In this case that Applicant was at Foresthaven for many months, and simply returned to Solvista, without authorisation. She should have obtained the necessary consent and authorisation to do so. She reported at Solvista for about 5 days and remained in the staff room for the whole day. She deliberately, without authority and permission reported to Solvista. Naidoo confirmed she had no authority to so nor did he furnish any. He further confirmed her returning to school created unhappiness. The Applicant must have been aware of the situation and should have been aware that the instruction to report to another school, was justified. Even if she was not guilty of the charges, there was a lawful instruction furnished by her superiors, which she completely, without justification, disobeyed.
26. It was the Applicants case that she reported to Solvista for 3 months in 2018 but this version was denied by Naidoo, who said she was there for only 5 days, from 23 January to 28 January 2018. The Applicant claimed that during this period of three months there were no complaints about her presence. This version was denied by Naidoo, who re-affirmed that it was 5 days, and there were indeed complaints and concerns regarding her presence. I have two completely different versions regarding the period the Applicant reported to Solvista. In this regard I find that Naidoo may have been confused or possibly could not recall the time period. On the Applicants own version of three months, it was clear she persisted in reporting there, knowing full well, she had no work allocated, and would simply sit all day.
27. Naidoo emphatically stated that there were always concerns raised by parents. This reinforced the lawfulness and reasonability of the instruction. Lushozi was a clear and concise witness, who gave his evidence in a forthright and direct manner. He said the outcome of her internal hearing was a recommendation that she be transferred to another school as there was an estranged relationship with the management of the school. After her suspension she reported to his office and she was offered Brookdale Secondary School, which was nearby, but she plainly refused. She was then offered Palmview Secondary, which she also refused. Foresthaven was offered and after intense engagement, she accepted the offer and reported to the said school, till the end of 2017.
28. At the beginning of 2018, she reported at the circuit office and said she did not want to return to Foresthaven and indicated she wanted to return to Solvista. She claimed she was insulted but there was no formal complaint of such an insult. They did not accede to her reporting to Solvista but she defied the instruction. They asked the Applicant to return to Foresthaven, but she refused. They instructed her to report to Brookdale and Palmview but she plainly refused. It was clear that she disobeyed both instructions and despite being informed that she could not return to Solvista, she reported to the school. This was clearly insubordinate. It displayed defiant conduct and was deliberate and persistent. In Motor Industry Staff Association and another v Silverton Spraypainters and Panelbeaters (Pty) Ltd and two others [2012] ZALAC 42 (LAC) theLabour Appeal Court held that:
"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."
29. The Labour Appeal Court also referred to the case of Mauchle (Pty) Ltd t/a Precision Tools v National Union of Metalworkers of South Africa and Others (1995) 16 ILJ 349 (LAC) where it was held that:
"I agree with the view expressed by the learned author … that employees do not have a vested right to preserve their working obligations completely unchanged as from the moment when they first begin work. It is only if changes are so dramatic as to amount to a requirement that the employee undertakes an entirely different job that there is a right to refuse to do the job in the required manner."
30. Labour Appeal Court dismissed the employee's appeal and found that:
"…the Company's instruction was a lawful and reasonable one which (the employee) was obliged and obligated to carry out. His blatant, persistent and public refusal to comply with this lawful and reasonable instruction constituted gross insubordination on his part. He seriously and inexcusably undermined the authority of management. In my view, he was correctly convicted of the misconduct as charged and his dismissal was, therefore, substantively fair." The Labour Appeal Court concluded by stating that the employee's conduct resulted in the irretrievable breakdown of the employment relationship between him and the employer and made his dismissal justified.
31. In this case the instruction was reasonable and lawful, as there were serious concerns regarding her return to Solvista. Despite the efforts to address the concerns and keep the Applicant in gainful employment, she remained obstructive. There was no justification for her to refuse the lawful instructions, by Lushozi, to report to Palmview or Foresthaven. In addition, despite her request to return to Solvista being denied, she proceeded to report to the school. This was insubordinate conduct.
32. I accept that the outcome of the disciplinary hearing and the finding on the charges, served as a background to the matter. It set the platform for why the instruction was furnished and shed light on her relationship with the teachers, learners and parents at the school. The finding of the charges by the previous chairperson was not directly relevant but it had an impact on their relationship. Based on this, the instruction was furnished, which was not unlawful. Lushozi confirmed that the formal process for transfer was not followed as the circumstances in this case were peculiar to the Applicant. The transfer was never intended to be permanent or formal and the transfer was an administrative managerial process aimed to mitigate against the prevailing circumstances. It did not render the instruction unlawful. To the contrary it was done to accommodate the Applicant whilst the internal issues at the school were being resolved. The circumstances demanded such a process. The instructions furnished to her was a mitigating measure against the situation at Solvista and not permanent. If she was satisfied at the new school, then such a transfer would have been made formal. As such I reiterate this process, though not done in terms of the transfer policy, still rendered the instruction valid and lawful.
33. Lushozi and Dr Naidoo, as representatives of the department, furnished instructions to the Applicant. That was the crux of the mater. The previous charges were referred to in detail wherein she was charged and found guilty of misconduct as she conducted herself in an improper / disgraceful / unacceptable manner by having an undesirable interaction with learner of said school. Charge 4 related to her conduct on 10 February 2015 where whilst on duty she conducted herself in improper/ disgraceful / unacceptable manner and behaving in a rude and unprofessional manner towards Mrs K Naidoo, HOD. The sanction was 3 months’ suspension without pay and final written warning. At arbitration the Applicant was found not guilty. Even though the transfer was a recommendation, and not a sanction, Naidoo confirmed that the parents of the learners were extremely unhappy with her return. This resulted in an administrative decision that she be placed at another school. That led to the instructions being furnished to her. She disobeyed all those instructions, and simply sat at the school and did nothing. She earned a salary for the entire period. I accept section A of Employment of Educators Act 76 of 1998 dealt with the transfer, but that was not the subject of this dispute. As such I find the Applicant guilty of charge 1, in respect of all three counts.
CHARGE 2
34. I find that charge 2 did not amount to insolence but insubordination. It was not a case where she was insolent. Insolence is an employee’s disrespectful behavior towards the employer. I do not find her to be disrespect but instead find her to be insubordinate. She was placed at another school, and she should have remained there. The Labour Appeal Court in CWIU and another v SA Polymer Holdings Pty (Ltd) t/a Megapack (1996), defined insubordination as “a wilful and serious refusal to obey a lawful and reasonable command, or conduct by the employee which poses a deliberate and serious challenge to the employer’s authority”. As such I find her conduct to be insubordinate and not insolent.
35. I find the Applicant guilty of insubordination in that she refused the lawful instruction as set out in count 1, without reason or justification. Such behavior amounted to gross misconduct as it displayed defiance. I find here not guilty of insolence on charge 2, but guilty of insubordination.
SANCTION
36. The issue of sanction has as its focal point the underlying notion of fairness between the employer and the employee which ought to be assessed objectively on the facts of each case bearing in mind that the core value of the LRA is security of employment. It is well established that the relationship between employer and employee is in essence one of trust and confidence. It is therefore important to determine whether or not the trust relationship between the parties has indeed been destroyed beyond repair. Courts have stated that employees must serve with diligence, integrity and single-mindedness and generally in such a way as to show that the confidence was still in tact. In this case the evidence established that the relationship had irretrievable broken down as the Applicant appeared defiant to authority and considering her conduct holistically, it amounted to gross misconduct. The appropriate sanction is one of dismissal, as her conduct created a hostile working relationship and caused an irretrievable breakdown.
Award
I make the following award:
37. The application is dismissed
ELRC Commissioner : VEESLA SONI
Date : 31 March 2021
Case No.: ELRC 28-20/21 Date of Award: 31 March 2021
In the ARBITRATION between:
G RAMDASS APPLICANT
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT
Union/Applicant’s representative: Mr Makhanya
Anand Nepaul Attorneys
Telephone: 031 327 4600
Respondent’s representative: Mr Makhooe
Telephone: 081 3233262
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 186 (1) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on 5 October 2020, via zoom. The matter was part heard and was finalized on 10 March 2021.
2. The Applicant, Ms Ramdass was present and was represented by Mr Makhanya from Anand Nepaul Attorneys. Mr. Makhooe represented the Respondent.
ISSUE TO BE DECIDED
3. The issue in dispute was whether the dismissal of the Applicant was substantively and procedurally fair and in particular whether the instruction issued to the Applicant was a lawful one.
BACKGROUND AND SURVEY OF EVIDENCE
4. The Applicant commenced employment in 13 February 1989, as an educator. At the time of the dispute she was in the same position, earning approximately
R 423 609-00 per annum. The Applicant was an educator at Solvista Secondary School.
5. She was charged for misconduct on 18 July 2018 and was dismissed on 18 March 2020. The Applicant faced the following charges:
Charge 1: Count 1: Contravened section 18 (1) (i) of the Act in that you failed to carry out a lawful instruction by the authorities. The contravention took place in one and or some and or all manner/s described hereunder.
Count 1.1: On or about 7 February 2017 you wrongfully and unlawfully refused placement at Palmview Secondary School, hereby contravening the sub section of the Act referred to above.
Count 1.2 On or about 17 January 2018 you wrongfully and unlawfully refused report for duty at Foresthaven Secondary School, hereby transgressing the sub section of the Act referred to above.
Count 1.3 On or about 31 January 2018 you wrongfully and unlawfully refused to assume duty at Brookdale Secondary School, hereby contravening the sub section of the Act referred to above.
Charge 2: On or about 23 January 2018 at or near Solvista Secondary School, you displayed disrespect and demonstrated insolent behavior towards authority in that you unlawfully reported at the aforesaid school in total disregard of a lawful directive to do so, thus contravening S 18 (1)(t) of the Act.
6. The Respondent’s case was that the Applicant failed to abide by a lawful order from the employer.
7. The Applicant’s case was that she did not contravene the sections of the Act as cited in the charge sheet as there was no lawful instruction for her to obey. The instruction given to her was unlawful on the basis that it was not based on the recognized section dealing with transfer of educators in terms of the Employment of Educators Act No 76 of 1998. As such the dismissal was unfair and she requested reinstatement to Solvista Secondary School, with back pay.
RESPONDENT’S CASE
8. M E Mabaso testified he was the deputy director in employee relations from 2003 and attended to all types of disciplinary matters from hearings to arbitrations. He spoke of his extensive experience and said he found her guilty of charge 1 and 2, in that she failed to follow the instructions. The sanction of dismissal was reasonable as the employment relationship had irretrievably been broken down.
9. A Preethpaul testified he was the labour relations practitioner for the Respondent. He knew the Applicant as he was involved in her disciplinary enquiry. She was found guilty and suspended for 3 months without pay. It was recommended that she be transferred to another school. She referred the matter to the ELRC as an unfair labour practice and the award was in her favour. The matter went in her favour as the witnesses were not available and the arbitrator only had hearsay evidence.
10. D R Naidoo testified he was the principal of Solvista Secondary School and he knew the Applicant as she was an educator at his school. She was suspended from school and thereafter dismissed. He was aware the Applicant was charged for insubordination. The sanction of her previous charge recommended that she be placed at a different school and she was accordingly placed at Foresthaven for about a year. This occurred in 2017. In January 2018 she reported for duty at Solvista and he requested for a letter authorizing her to report to the school. She said she could not obtain same and the matter was reported to the circuit manager. The sanction on the first charge stated that she be placed at another school, hence when she reported at Solvista, he asked for a letter authorizing it. She reported at Solvista for about 5 days during which time she would sit in the staff room or her car for the entire day. Her returning to school created unhappiness. He denied that she reported for 3 months in 2018 and affirmed that she attended Solvista from 23 to 28 January 2021. The matter was reported to Dr K Naidoo, circuit manager.
11. Sthembiso Lushozi was employed by the department of education and knew the Applicant. The Applicant was charged in 2015 and her sanction was a three-month suspension. It was recommended that she be transferred to another school as there was an estranged relationship with the management of the school. After her suspension she reported to his office and she was offered Brookdale Secondary School, which was nearby, actually across the road. She did not accept this school and provided no reasons. This process was carried out in a manner of mutual settlement. She was then offered Palmview Secondary, which she also refused. She was then offered Foresthaven, and after intense engagement, she accepted the offer and reported to the said school.
12. At the beginning of 2018, she reported at the circuit office and said she did not want to return to Foresthaven and indicated she wanted to return to Solvista. She said a teacher insulted her and she no longer felt comfortable. There was no formal complaint of such an insult. They could not accede to her reporting to Solvista. She defied the instruction when she reported to Solvista. They learned of same via the principal. They called the Applicant and asked her to return to Foresthaven. She refused. They instructed her to report to Brookdale. She refused. The matter was reported to the district director and she was charged for insubordination as she defied the instructions.
APPLICANT’S CASE
13. The Applicant testified that in 2016 she was found guilty of misconduct and was sanctioned to three months without pay. She returned to work in December 2016. She was instructed by the principal, Naidoo, to report to Lushozi at the circuit office. She met with him on 6 December 2016. She was offered a position at Palmview Secondary, which she declined, on the basis that her sanction was overturned. She was treated badly by Lushozi and was not informed why she was being transferred. She was simply ordered to transfer to Palmview, which she turned down. She accepted a placement at Foresthaven as she was assured by her union that it was for a temporary basis. She spent almost a year at that school in 2017.
14. She did not return to Foresthaven as she was insulted and to maintain her self-respect she returned to her original school, Solvista, from 23 to 29 January 2018. She spent a week at the school and then reported to the circuit office on 29 January for a meeting with Lushozi. He asked her to report to Brookdale Secondary which she refused and gave her a five-day ultimatum. She returned to Solvista from 7 February 2019 to 21 May 2018. During this period, she sat in the staff room on a daily basis. She was not given any allocation of work. On 21 May 2018, Dr Naidoo came to the school and handed her a suspension letter.
15. She stated the transfer to the other schools were unlawful as it was a recommendation in the sanction and not the sanction. She said that she was treated poorly by Lushozi who violated her rights and dignity. There was no discussion regarding her transfer but rather an order. She asked to be reinstated back to Solvista Secondary. Her last salary was in March 2020.
ANALYSIS OF EVIDENCE
16. The matter was referred as an unfair dismissal dispute. The charge against the Applicant was serious and if found guilty it could accompany a sanction of dismissal. The onus rested on the Respondent to prove that the dismissal was substantively fair and called four witnesses in an attempt to discharge the onus.
17. I am tasked to weigh the evidence of the witnesses and make a determination on credibility and probability of evidence. This is not an easy task but as an arbitrator I am required to make such a finding. Where there are material disputes of facts it raises issues of credibility and reliability, and whether the evidence is “flagrant, frivolous and vexatious”. Sangoni AJA stated as follows in Edcon Ltd v Pillemer NO &Others (2008) 29 ILJ 614 (LAC) at par 21 :
“If the commissioner made a decision that a reasonable decision maker could not reach, he/she would have acted unreasonably which could then result in interference with the award. This, in my view, boils down to saying the decision of the commissioner is to be reasonable. To my understanding the dictum in Sidumo is not about shifting from the ‘reasonable employer test’ in favour of the so-called reasonable employee test. Instead, meaningful strides are taken to refocus attention on the supposed impartiality of the commissioner as the decision maker at the arbitration whose function it is to weigh up all the relevant factors and circumstances of each case in order to come up with a reasonable decision. It is in fact the relevant factors and the circumstances of each case, objectively viewed, that should inform the element of reasonableness or lack thereof”.
18. I am therefore required to make a determination based on all the relevant factors that will direct me to a reasonable finding. In this regard an arbitrator is required to have regard to the principles applicable to resolving disputes of fact, as described in Stellenbosch Farmers' Winery Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA),. Nienaber JA (supra at para 5): stated
“To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a) the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (iii) the quality, integrity and independence of his recall thereof. As to (c) this necessitates an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court’s credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail”.
CHARGE 1
19. Accordingly, I must analyse the evidence and focus on the credibility of the witnesses, their demeanour, reliability and truthfulness. The Applicant was charged for failure to obey lawful instructions and insolence. Employees who fail to obey lawful and reasonable instructions of their employers may be charged with 'insubordination', which if serious can even lead to a dismissal. Insubordination may result from a deliberate disregard of authority without valid reasons.
20. Mabaso found the Applicant guilty of the charges and said the sanction of dismissal was fair. He averred that the instruction to report to a different school was a reasonable and lawful instruction which she refused. He found that dismissal was the appropriate sanction as the relationship had irreparably broken down. The Applicant was found guilty of charges relating to having a relationship with a learner. The transfer of the Applicant to another school was based on the fact that her presence at the school would disrupt its smooth flow. She was placed at another school for a valid reason. She simply refused the instructions to report to three different schools, without reason or justification.
21. At this junction it is noteworthy to set out what type of misconduct was committed by the Applicant. Insubordination may be described as resistance to or defiance of authority, disobedience, refusal or failure to obey reasonable and lawful instructions, insolence, cheekiness, rudeness, bringing the employer's name into disrepute, and rebellious or mutinous behaviour resulting in an actual work stoppage. The characteristics present in insubordination would be a wilful verbal refusal of instructions, wilful disregard of management authority, disrespect, rudeness, rebelliousness or disobedient gestures, manner or attitude etcetera.
22. The Applicant faced two main charges: charge 1 had 3 counts, each of which related to failure to obey a reasonable instruction and charge 2: insolence. Failure to do as she was told, within the parameters of what was accepted as being a reasonable and lawful instruction, would amount to insubordination. An instruction that can be carried out without breaking any statute, common law or company policy is regarded as "a lawful instruction". Equally obviously, this would also be the first requirement of a "reasonable" instruction. But for the instruction to be reasonable, there are other elements required. An instruction can quite easily be lawful, but at the same time it can be unreasonable. The instruction must be capable of performance and the employee must have the necessary knowledge, skill, capability and ability to carry out the instruction. The instruction must fall within the ambit of the job. In other words, a reasonable and rational judgment must be applied. In this case the instruction was capable of performance.
23. Preethpaul stated that he represented the Applicant at the disciplinary hearing for her previous charge. She was sanctioned to a three-month suspension without pay. It was recommended that she be transferred to another school. The matter was referred to the ELRC and the award was in her favour which found that the Respondent committed an unfair labour practice. The recommendation to be moved to another school, was exactly that, and not a sanction. In any event she was found not guilty of the main charge but found guilty of having an undesirable interaction with a learner. The Applicant was found not guilty of misconduct pertaining to sexual misconduct with a learner.
24. It is undisputed that she was found not guilty of the charge. She was indeed found guilty of the alternative charge, relating to an undesirable relationship with the learner. I accept that the chairperson at the disciplinary hearing found against her and she was suspended. I further accept that it was not a sanction that she be transferred. It is the employer’s prerogative to furnish instructions to employees, especially when it’s with the intention to create harmony in the workplace. It may not have been the finding of the chairperson and she may have been successful in her unfair labour practice arbitration, but that did not sterilise the authority in an instruction.
25. Naidoo was the principal of Solvista and he testified that in January 2018 the Applicant reported to Solvista. He said she was transferred to Foresthaven as there was a strain on the relationship and the previous charge, that related to sexual relationships with a learner, created tension. I must accept that such a charge will create an undesirable atmosphere. In this case that Applicant was at Foresthaven for many months, and simply returned to Solvista, without authorisation. She should have obtained the necessary consent and authorisation to do so. She reported at Solvista for about 5 days and remained in the staff room for the whole day. She deliberately, without authority and permission reported to Solvista. Naidoo confirmed she had no authority to so nor did he furnish any. He further confirmed her returning to school created unhappiness. The Applicant must have been aware of the situation and should have been aware that the instruction to report to another school, was justified. Even if she was not guilty of the charges, there was a lawful instruction furnished by her superiors, which she completely, without justification, disobeyed.
26. It was the Applicants case that she reported to Solvista for 3 months in 2018 but this version was denied by Naidoo, who said she was there for only 5 days, from 23 January to 28 January 2018. The Applicant claimed that during this period of three months there were no complaints about her presence. This version was denied by Naidoo, who re-affirmed that it was 5 days, and there were indeed complaints and concerns regarding her presence. I have two completely different versions regarding the period the Applicant reported to Solvista. In this regard I find that Naidoo may have been confused or possibly could not recall the time period. On the Applicants own version of three months, it was clear she persisted in reporting there, knowing full well, she had no work allocated, and would simply sit all day.
27. Naidoo emphatically stated that there were always concerns raised by parents. This reinforced the lawfulness and reasonability of the instruction. Lushozi was a clear and concise witness, who gave his evidence in a forthright and direct manner. He said the outcome of her internal hearing was a recommendation that she be transferred to another school as there was an estranged relationship with the management of the school. After her suspension she reported to his office and she was offered Brookdale Secondary School, which was nearby, but she plainly refused. She was then offered Palmview Secondary, which she also refused. Foresthaven was offered and after intense engagement, she accepted the offer and reported to the said school, till the end of 2017.
28. At the beginning of 2018, she reported at the circuit office and said she did not want to return to Foresthaven and indicated she wanted to return to Solvista. She claimed she was insulted but there was no formal complaint of such an insult. They did not accede to her reporting to Solvista but she defied the instruction. They asked the Applicant to return to Foresthaven, but she refused. They instructed her to report to Brookdale and Palmview but she plainly refused. It was clear that she disobeyed both instructions and despite being informed that she could not return to Solvista, she reported to the school. This was clearly insubordinate. It displayed defiant conduct and was deliberate and persistent. In Motor Industry Staff Association and another v Silverton Spraypainters and Panelbeaters (Pty) Ltd and two others [2012] ZALAC 42 (LAC) theLabour Appeal Court held that:
"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."
29. The Labour Appeal Court also referred to the case of Mauchle (Pty) Ltd t/a Precision Tools v National Union of Metalworkers of South Africa and Others (1995) 16 ILJ 349 (LAC) where it was held that:
"I agree with the view expressed by the learned author … that employees do not have a vested right to preserve their working obligations completely unchanged as from the moment when they first begin work. It is only if changes are so dramatic as to amount to a requirement that the employee undertakes an entirely different job that there is a right to refuse to do the job in the required manner."
30. Labour Appeal Court dismissed the employee's appeal and found that:
"…the Company's instruction was a lawful and reasonable one which (the employee) was obliged and obligated to carry out. His blatant, persistent and public refusal to comply with this lawful and reasonable instruction constituted gross insubordination on his part. He seriously and inexcusably undermined the authority of management. In my view, he was correctly convicted of the misconduct as charged and his dismissal was, therefore, substantively fair." The Labour Appeal Court concluded by stating that the employee's conduct resulted in the irretrievable breakdown of the employment relationship between him and the employer and made his dismissal justified.
31. In this case the instruction was reasonable and lawful, as there were serious concerns regarding her return to Solvista. Despite the efforts to address the concerns and keep the Applicant in gainful employment, she remained obstructive. There was no justification for her to refuse the lawful instructions, by Lushozi, to report to Palmview or Foresthaven. In addition, despite her request to return to Solvista being denied, she proceeded to report to the school. This was insubordinate conduct.
32. I accept that the outcome of the disciplinary hearing and the finding on the charges, served as a background to the matter. It set the platform for why the instruction was furnished and shed light on her relationship with the teachers, learners and parents at the school. The finding of the charges by the previous chairperson was not directly relevant but it had an impact on their relationship. Based on this, the instruction was furnished, which was not unlawful. Lushozi confirmed that the formal process for transfer was not followed as the circumstances in this case were peculiar to the Applicant. The transfer was never intended to be permanent or formal and the transfer was an administrative managerial process aimed to mitigate against the prevailing circumstances. It did not render the instruction unlawful. To the contrary it was done to accommodate the Applicant whilst the internal issues at the school were being resolved. The circumstances demanded such a process. The instructions furnished to her was a mitigating measure against the situation at Solvista and not permanent. If she was satisfied at the new school, then such a transfer would have been made formal. As such I reiterate this process, though not done in terms of the transfer policy, still rendered the instruction valid and lawful.
33. Lushozi and Dr Naidoo, as representatives of the department, furnished instructions to the Applicant. That was the crux of the mater. The previous charges were referred to in detail wherein she was charged and found guilty of misconduct as she conducted herself in an improper / disgraceful / unacceptable manner by having an undesirable interaction with learner of said school. Charge 4 related to her conduct on 10 February 2015 where whilst on duty she conducted herself in improper/ disgraceful / unacceptable manner and behaving in a rude and unprofessional manner towards Mrs K Naidoo, HOD. The sanction was 3 months’ suspension without pay and final written warning. At arbitration the Applicant was found not guilty. Even though the transfer was a recommendation, and not a sanction, Naidoo confirmed that the parents of the learners were extremely unhappy with her return. This resulted in an administrative decision that she be placed at another school. That led to the instructions being furnished to her. She disobeyed all those instructions, and simply sat at the school and did nothing. She earned a salary for the entire period. I accept section A of Employment of Educators Act 76 of 1998 dealt with the transfer, but that was not the subject of this dispute. As such I find the Applicant guilty of charge 1, in respect of all three counts.
CHARGE 2
34. I find that charge 2 did not amount to insolence but insubordination. It was not a case where she was insolent. Insolence is an employee’s disrespectful behavior towards the employer. I do not find her to be disrespect but instead find her to be insubordinate. She was placed at another school, and she should have remained there. The Labour Appeal Court in CWIU and another v SA Polymer Holdings Pty (Ltd) t/a Megapack (1996), defined insubordination as “a wilful and serious refusal to obey a lawful and reasonable command, or conduct by the employee which poses a deliberate and serious challenge to the employer’s authority”. As such I find her conduct to be insubordinate and not insolent.
35. I find the Applicant guilty of insubordination in that she refused the lawful instruction as set out in count 1, without reason or justification. Such behavior amounted to gross misconduct as it displayed defiance. I find here not guilty of insolence on charge 2, but guilty of insubordination.
SANCTION
36. The issue of sanction has as its focal point the underlying notion of fairness between the employer and the employee which ought to be assessed objectively on the facts of each case bearing in mind that the core value of the LRA is security of employment. It is well established that the relationship between employer and employee is in essence one of trust and confidence. It is therefore important to determine whether or not the trust relationship between the parties has indeed been destroyed beyond repair. Courts have stated that employees must serve with diligence, integrity and single-mindedness and generally in such a way as to show that the confidence was still in tact. In this case the evidence established that the relationship had irretrievable broken down as the Applicant appeared defiant to authority and considering her conduct holistically, it amounted to gross misconduct. The appropriate sanction is one of dismissal, as her conduct created a hostile working relationship and caused an irretrievable breakdown.
Award
I make the following award:
37. The application is dismissed
ELRC Commissioner : VEESLA SONI
Date : 31 March 2021
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