In the case of AMCU obo Mkhonto and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR 2266/17) [2023] ZALCJHB 23 the employees were charged and dismissed for gross insubordination because they refused to obey the instruction from their site manager to work overtime meet production targets. This conduct allegedly resulted in a loss of production.
Disgruntled with the dismissal of the employees, the union referred a dispute to the CCMA which remained unresolved at conciliation and proceeded to arbitration.
The union sought an order to review and set aside the arbitration award issued by the Commissioner. He found the dismissal of its members, (applicant employees) by the employer substantively fair and dismissed their claim.
The employees conceded that they were aware of the instruction but did not agree to work overtime.
The union contended that the employees could not have been guilty of insubordination because the instruction to work overtime was unlawful.
The employer relied on the overtime clause in the employees’ contracts of employment. However, it was further contended that the clause had lapsed a year after the conclusion of those contracts and thus was not enforceable.
The Labour Court (LC), based on the evidence that was before the commissioner, stated that the finding that the employees were guilty of gross insubordination was apparently unreasonable as that they been employed for more than a year and the overtime clause in their contracts of employment had lapsed.
The LC found that the sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law.
The LC also found that the commissioner failed to apply his mind to the fact that the insubordination was the first offence and was not accompanied by insolence. A progressive disciplinary sanction in the form of a warning or final written warning could have been enough.
The dismissal of the employees was found to be substantively unfair.
The employer had to reinstate the employees retrospectively with full back pay.
There was no order as to costs.
* In this weekly column, labour lawyer Jonathan Goldberg, chair of Global Business Solutions, looks at various aspects of labour law
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