On 31 July 2015, the Johannesburg Labour Court, in Shoprite Checkers v CCMA & 2 Others handed down a judgment in which it set aside an arbitration award issued by the CCMA.
In brief, the facts of the matter were as follows:
- The employee was employed as a Manager and was dismissed for not obeying an instruction (to lock the store in which she worked) and for refusing to work her contractual hours, despite having previously worked these hours for two years.
- The circumstances surrounding the employee's refusal to obey her employer's instructions appears to have been motivated by advice the employee allegedly received from the Department of Labour and the CCMA, which advice was wrong.
- Subsequent to her dismissal, the employee referred an unfair dismissal claim to the CCMA.
- The matter was arbitrated by the CCMA, following which an arbitration award was issued in favour of the employee.
- Although the CCMA commissioner found the employee guilty of the charges levelled against her, he was of the opinion that dismissal, in the circumstances, was too harsh. As a consequence, the CCMA commissioner awarded the employee 4 months compensation (given that she did not seek to be reinstated).
- Aggrieved by the outcome of the arbitration, Shoprite Checkers approached the Labour Court with an application to review and set aside the award with a view to replacing the CCMA's award with an order that the employee's dismissal was fair.
The Labour Court, for the following reasons, found that the arbitration award should be set aside and replaced with an order that the employee's dismissal was fair:
- The CCMA commissioner failed to undertake a proper enquiry into whether the sanction of dismissal was appropriate, in particular, he failed to take into account, the following evidence:
7.1 the seniority of the employee's position;
7.2 the fact that the employee's conduct amounted to gross insubordination which warrants dismissal for a first offence;
7.3 the employee's conduct was planned and orchestrated;
7.4 the employee's conduct was not a once off offence;
7.5 the employee was, at the time of her dismissal, already in receipt of a warning for the same offence;
7.6 at no stage did the employee display any form of remorse for her conduct; and
7.7 the trust relationship had broken down.
What is important about this judgment is that it serves as a reminder that dismissal is typically warranted for a first offence where an employee refuses to obey a reasonable and lawful instruction. The judgment also neatly summarises the test on review and what is expected of an applicant who seeks to set aside an arbitration award