I

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO.:  576/2012
Not Reportable

In the matter between:

NATIONAL UNION OF PUBLIC SERVICE &
ALLIED WORKERS UNION (‘NUPSAWU’)
obo MANI AND NINE OTHERS
Appellant

and

NATIONAL LOTTERIES BOARD
Respondent

Neutral citation:
National Union of Public Service and Allied Workers
obo Mani & Others v National Lotteries Board (576/12)
[2013] ZASCA 63 (24 May 2013)

Coram:

NUGENT, PONNAN, THERON and PILLAY JJA and
WILLIS AJA

Heard:

7 May 2013

Delivered:

24 May 2013

Summary:

Labour Law - Dismissal for insubordination – Whether
dismissal of employees automatically unfair in terms
of s 187(1)(d) of the Labour Relations Act 66 of 1995,
as amended, alternatively whether it was otherwise
unfair.

______________________________________________________________

ORDER
______________________________________________________________
On appeal from: Labour Court, Johannesburg (Basson J sitting as a court of
first instance):
The appeal is dismissed with costs.

______________________________________________________________

JUDGMENT
______________________________________________________________

WILLIS AJA (NUGENT, PONNAN and THERON and PILLAY JJA
concurring):

Introduction
[1] This appeal concerns the dismissal of ten employees by the
respondent on 25 August 2008. The ground for dismissal was misconduct in
the form of insubordination. The decision to dismiss was taken after a
disciplinary enquiry conducted by Professor André Van Niekerk, who is now a
member of the Labour Court. Having been specifically appointed by the
respondent to chair the disciplinary enquiry as an independent person, he
found dismissal to be the appropriate sanction. The respondent is a juristic
person established in terms of s 2 of the National Lotteries Act 57 of 1997(‘the
Lotteries Act’). Professor van Niekerk’s decision was reconsidered in an
internal appeal. An attorney, Mr George Negota, dismissed that appeal on 19
September 2008.

[2] On 23 September 2008 the appellant, a trade union acting on behalf of
the ten dismissed employees, referred a dispute relating to the alleged unfair
dismissal of these employees to the Commission for Conciliation Mediation
and Arbitration (‘the CCMA’). The relief sought by the appellant was the
reinstatement of the ten employees. The process of conciliation was
unsuccessful. The appellant thereupon referred the dispute directly to the

Labour Court in terms of s 191 (5)(b)(i) of the Labour Relations Act 66 of
1995, as amended (‘the LRA’). The appellants alleged that the dismissal had
been ‘automatically unfair’ in terms of s 187 of the LRA. The appellants relied
on the provisions of section 187(1)(d) of the LRA which provides that a
dismissal is automatically unfair if the reason for the dismissal is that:
‘the employee took action, or indicated an intention to take action, against the
employer by-
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act.’

[3] The appellant has alleged that the dismissal was ‘automatically unfair’
in terms of s 187(1)(d) of the LRA because the employees were dismissed for
participating in lawful union activities, viz. supported their trade union’s
petition for the removal from office of the respondent’s chief executive officer
(‘CEO’), Professor Vevek Ram. In the alternative the appellant submitted that
the dismissal of the employees was, in any event, unfair because it was
inappropriately severe in all the circumstances and, moreover, there had been
no irretrievable breakdown in the relationship between the employees and the
respondent. The appellant claimed the reinstatement of the employees.

[4] The parties consented, in terms of s 158(2)(b) of the LRA, to the
Labour Court having jurisdiction to determine whether the dismissal had been
ordinarily (as opposed to automatically) unfair, even though that dispute had
not been referred to arbitration in terms of  s 115 (1)(b) of the LRA.

[5] On 3 February, 2011, the Labour Court (per Basson J) found that the
dismissal of the employees had been both substantively and procedurally fair.
The learned judge dismissed an application for leave to appeal on 31 May
2011. The appellant then petitioned the Labour Appeal Court (‘the LAC’). The
LAC dismissed the petition on 22 September 2011.This appeal, against the
decision of the Labour Court1is before us with the leave of this court.

1 See Republican Press (Pty) Limited v Ceppawu 2008 (1) SA 404 (SCA); (2007) ILJ 2503
(SCA) at para [14], read with National Union of Metalworkers of South Africa v Fry’s Metals
(Pty) Limited 2005 (5) SA 433; (2005) 26 ILJ 689; [2005] 5 BLLR 430 (SCA) at para [42] and
NUM & Another v Samancor Limited & Others [2011] 11 BLLR  1041 (SCA) at para [14].

[6] The relief sought by the appellant is accordingly that the order of the
Labour Court (the court a quo) be set aside and the following substituted
therefore:
(1)
the dismissal of the applicants was procedurally and substantively unfair;
(2)
the respondent is ordered to retrospectively reinstate the applicants to the
positions they occupied before their unfair dismissals, alternatively to similar or
equivalent positions without any loss of remuneration and benefits.
(3)
the respondent is ordered to pay the applicants’ costs.
The appellant also seeks an order for costs in this appeal.

The relevant facts
[7] The relevant facts are largely common cause. Various employees were
dissatisfied with the fact that Professor Ram held the position of CEO. On 20
March 2008 three of the appellant’s shop stewards, Messrs Kelebogile
Mokgatlha, Mzikayise Mani and Ms Zinzi Ramatseba, using the appellant’s
letterhead, wrote a letter to Mr Sikonela (then the respondent’s Manager of
Human Resources and Administration) in which they raised  complaints about
‘the leadership style and modus operandi’ of Professor Ram and said they
were ‘no longer prepared to bear his style of leadership any longer’. In that
letter the shop stewards expressed demanded sight of Professor Ram’s
contract of employment. On the same day these three shop stewards similarly
addressed a letter to Mr Sikonela on the appellant’s letterhead in which they
expressed their discontent at not being invited by the respondent’s board to
attend interviews for the appointment of the Chief Operations Officer (‘COO’).
In that letter they said:
‘We shall therefore not recognize the person appointed and further not give him or
her any kind of cooperation and assistance in whatever way. We will isolate such a
person and ensure that he or she does not feel welcome until due processes are
followed with the union involved.’

[8] Mr Sikonela replied on 1 April 2008 in a letter wherein he said that the
shop stewards had ‘no right to demand the contract’ of the CEO and ‘no right
to determine the manner in which the CEO carries out his functions’. In that

letter Mr Sikonela drew attention to the fact that ‘any employee has the right to
follow the grievance procedure if such an employee has a grievance’. The
respondent has a grievance procedure set out in its Staff Policy document
which commenced on 1 May 1999, the stated purpose of which policy
document is to implement the purposes for which the respondent had been
established. The grievance procedure in this document  recognizes the right
of employees to avail themselves of the remedies provided for grievances in
‘labour legislation’. On 1 April 2008, in a separate letter, Mr Sikonela advised
the appellant that it had no right to attend the interview for the position of COO
and warned it that it faced the risk of disciplinary action being taken against its
members for insubordination, which disciplinary action could include
dismissal.

[9] On 16 April 2008 the appellant thereupon referred a dispute to the
CCMA over its claim that it had a right to obtain a copy of Professor Ram’s
contract of employment. The appellant categorized the nature of the dispute
as one relating to the disclosure of information. Ultimately, the parties were
unable to resolve this narrowly defined dispute through conciliation. This was
referred in terms of s 135(5) of the LRA to arbitration under the auspices of
the CCMA. After a hearing on 24 July 2008, CCMA commissioner Mr Khotjo
Matji delivered an award on 1 August 2008 in which he dismissed the
appellant’s claim for information pertaining to the contract of employment of
Professor Ram. During the conciliation first session held under the auspices
of the CCMA on 9 May 2008 the parties reached an interim agreement in
terms of which the union would send a letter to the board of the respondent in
which it would attempt to justify its claim that it was entitled to a copy of this
contract and ‘to specify in writing the expectations of the staff in terms of
overall organizational performance and delivery’. The parties formally
extended the period for the conciliation process to 11 June 2008. This
agreement was recorded by a commissioner of the CCMA, Ms Ann Hofmeyr.

[10] The appellant addressed its letter to the respondent on 23 May 2008.
In that letter the appellant complained that Professor Ram had failed to
ensure that the following Human Resource Policies were in place:

‘Performance Appraisal, Promotions, HIV/AIDS, Skills Development, Staff
Training, Relocation, Employment Equity, Health and Safety’. After
remonstrating that he had failed to allocate study bursaries to staff, the
appellant expressed its dissatisfaction about the fact that he had allegedly
introduced restricted areas for staff in certain sections of the respondent’s
building and had given ‘preferential treatment to certain departments by
allowing them to appoint friends without advertising the vacancies and further
not applying consistent contractual terms’. The Mail and Guardian, a news
publication having a national circulation, received a copy of this letter. After
inviting the respondent to respond, the Mail and Guardian published an article
– A whole Lotto nothing going on –  in which it described Professor Ram as
having been ‘hauled before the CCMA by his own staff’. The article said that
Professor Ram had been accused of ‘treating staff and board members
autocratically and of routinely failing to meet delivery deadlines for the hand-
over of more than R2-billion in annual grants to sports, arts and charities’.

[11] The facts upon which the case turns are that, on 3 June 2008, 41
employees of the respondent, including the shop stewards Mokgatlha, Mani
and Ramatseba, addressed a letter to Mr Sikonela in which they said had
submitted a ‘vote of no confidence’ in Professor Ram and urged the board of
the respondent ‘to ensure that June 30th, 2008 is the last day of his
employment’. The employees said in that letter that ‘we are no longer
prepared to spend a day with Professor Ram in the same building with him at
the helm of this organisation’. This letter of petition had been prepared for
signature by 48 employees but seven of those whose names appeared
thereon did not sign it. This petition was followed up by a letter of 5 June 2008
addressed by Mr Maurice Makatu, the provincial organizer of the appellant, to
Mr Sikonela in which the appellant called upon the respondent to resolve ‘the
current impasse’. In the letter the appellant also asserted its right, as a trade
union, to ‘communicate the contents of its correspondence to the public
through the media without any fear from the Board’.

[12] Acting through its attorneys, the respondent then sent a letter dated 6
June 2008 to the appellant in which it referred to the history of the matter

since 20 March 2008 and described the ultimatum concerning the
employment of Professor Ram as constituting ‘an act of insubordination by all
individuals who have signed the petition’. The letter went on to describe the
ultimatum as being ‘subversive of the integrity and authority of the Board and
its capacity to perform its statutory functions’. The letter further alludes to the
fact that in terms of s 7(1)(a) of the Lotteries Act the CEO is ‘solely
accountable to the board [of the respondent] for the performance of all
financial, administrative and clerical functions of the board and any duties
which may be delegated to him or her in terms of subsection (4)’. Subsection
4 provides that: ‘Any function of the board in terms of this Act may be
delegated to the chief executive officer, and any such delegation shall be in
writing’. The letter by the respondent’s attorneys described the conduct of the
employees concerned as accordingly being unlawful and called upon all those
who had signed the petition to withdraw it unequivocally by 9 June 2008.
Three of the employees who had signed the petition then retracted their
support for it.

[13] Acting on behalf of the appellant, Mr Makatu responded to the letter of
the respondent’s attorneys by way of correspondence dated 9 June 2008. In
that letter, he raised certain points upon which the appellant has continued to
rely throughout the dispute. The appellant invoked the constitutional right of
both it and its members to ‘freedom of expression, assembly, demonstration,
picket and petition’, the ‘freedom of the press and other media’ and the
‘freedom to receive and impart information’. The letter asserted the right of
everyone ‘peacefully and unarmed to assemble, to demonstrate, to picket and
to present petitions’. In that letter Mr Makatu submited that the ‘collective
agreement’ which was entered into between the parties on 17 September
2007- more commonly known as a ‘recognition agreement’ within the labour
relations community - prohibited neither the appellant nor its members from
‘making reference to the performance of the CEO’. Subsequently, the
appellant lost its representivity and, accordingly, its recognition by the
respondent as the bargaining representative of the employees. Mr Makatu
said that the letters sent to the respondent on behalf of the appellant’s
members on 23 May and 3 June 2008 had not referred to any strike or work

stoppage after 30 June 2008. He also protested that the signing of the petition
by employees of the respondent had not been unlawful.

[14] On 17 June 2008 Mr Sikonela sent a notice of the disciplinary enquiry
to each of the thirty-eight employees who had signed the petition but not
retracted his or her support. This was the disciplinary enquiry which was
chaired by the Professor Van Niekerk. The enquiry commenced on 23 June
2008.  The notice of enquiry referred to the history of the matter since 20
March 2008. The charges in the notice read as follows:
‘Charge 1: Insubordination and disrespectful behavior making the continued
employment relationship intolerable by associating yourself with and supporting-
1)
the contents of the union’s letter dated 23 May 2008 and the petition dated
2008 in which the CEO is grossly defamed by the false accusations of ineptitude,
favoritism, racial bias, unlawful acts and mismanagement;
2)
the statement that you are not prepared to continue working with the CEO in
the same building with him at the helm;
3)
the call to the NLB2 to relieve the CEO of his duties.
Charge 2: Bringing the name and integrity of the NLB and the CEO into disrepute
and making the continued relationship intolerable by associating with and supporting-
1.
the contents of the union’s letter dated 23 May 2008 and the petition dated
2008 in which the CEO is grossly defamed by the false accusations of ineptitude,
favoritism, racial bias, unlawful acts and mismanagement;
2.
the publication of that letter in the media;
3.
the union’s stated intention in its letter dated 5 June 2008 to make the
contents of its correspondence with the NLB available to the media whenever it
deems fit.
Charge 3: The material breach of the general duty to act in good faith, to cooperate
with and the refusal to work under the supervision and control of the duly appointed
CEO.’

The notice of the disciplinary enquiry informed the affected employees that if
found guilty they could be dismissed from employment with the respondent.

2 ie the National Lotteries Board.

The findings of the disciplinary enquiry
[15] The disciplinary enquiry before Professor Van Niekerk as the
chairperson lasted several days. In his written reasons for making his findings
in the disciplinary enquiry, he considered the provisions of s 7(1)(a) of the
Lotteries Act, which made the CEO ‘solely accountable’ to the board of the
respondent to be a relevant consideration. The chairperson relied on the fact
that the so-called ‘collective agreement’ entered into between the parties
contained a clause in which the appellant ‘recognizes management’s authority
and responsibility to plan organize and manage’. He also found that ‘the vast
majority of the allegations made concern archetypal workplace grievances,
which ought appropriately to be addressed and if possible resolved by the use
of internal procedures’. The chairperson noted that the affected employees
had failed to use the grievance procedures provided for in both the LRA and
the Staff Policy document – even if the structures  which were provided for the
in the latter were amenable to criticism.

[16] The chairperson emphasised that neither Professor Ram’s conduct nor
his performance was a relevant issue in the disciplinary proceedings in
question. The chairperson was mindful of the fact that the issue he had to
consider was whether the continued employment relationship between the
respondent and the affected employees had been rendered intolerable by
reason, inter alia, of their insubordination. He found that he could make a
finding on the issues in question regardless of the merits of any of the
accusations levelled against Professor Ram. Professor Ram resigned as CEO
of the respondent on 20 January 2012.

[17] The chairperson referred with approval to John Grogan’s definition of
‘insubordination’ in Dismissal, Discrimination and Unfair Labour Practices3 as
occurring ‘when an employee refuses to accept the authority of his or her
employer or of a person in a position of authority over an employee’.

3 Grogan, J. Dismissal, Discrimination and Unfair Labour Practices, (2007), 2nd Edition, Juta’s:
Cape Town. The same definition appears in his more recent Dismissal  (2010), Juta’s: Cape
Town at p196.

Professor Van Niekerk found that ‘by stating that they “were no longer
prepared to spend a day with Professor Ram in the same building with him”
and that the Board is urged “to ensure that June 30th, 2008 is the last day of
his employment”, the individual employees made themselves guilty of
insubordination and disrespectful behaviour’.

[18] The chairperson also found that by associating themselves with the
making public of their grievances concerning Professor Ram, more
particularly in the manner to which they resorted, ‘the individual employees
associated themselves with a campaign clearly designed to bring the Board
and its CEO into disrepute’. Accordingly, a finding of guilt with respect to the
misconduct alleged in count 2 was made against each of the affected
employees. They were found not guilty on count three.

[19] In his concluding remarks before the chairperson, Professor Ram had
said that not all of the affected employees may have realised the seriousness
of their actions. With this in mind, Professor Van Niekerk afforded all 38 of
those whom he found guilty of misconduct the opportunity to sign a formal
acknowledgement and undertaking, on or before 13 August 2008, in which
they (i) dissociated themselves from the letters addressed by the appellant to
the respondent on 23 May and 3 June 2008; (ii) accepted their wrongdoing,
(iii) apologised to Professor Ram, (iv) undertook in future to use the grievance
procedures provided for in both the Staff Policy document and the LRA and
(v) agreed to receive a final written warning, valid for 12 months for a similar
offence. At the request of the appellant the deadline was extended to 20
August 2008. Of the 38 affected employees, 28 signed the acknowledgement
and received the warnings accordingly.

[20] The ten employees with whom this appeal is concerned did not sign
this undertaking. Instead, they relied on a ‘collective submission’ recorded in
writing which was handed to the chairperson at the hearing on 20 August
2008. In that collective submission, signed by each of the ten employees and
their union representative, they recorded that ‘in the light of your findings on
charge 1 and 2 we sincerely apologise insofar as our actions constituted

misconduct of insubordination and brought the name of the Board and its
CEO into disrepute’.

[21] In his written reasons for the sanction of dismissal imposed on the ten
employees on 25 August 2008, the chairperson referred to the fact that three
of the original 41 petitioners had recanted very soon afterwards and that 28 of
the remaining 38 had responded positively to the opportunity to make
amends. He said that:
'In these circumstances, the belated statement of apology proferred in the
submissions, qualified as it is, is too little, too late and the question of sanction must
necessarily be addressed in the absence of a sincere and timeous apology.’

The chairperson went on to say that:
‘(t)he fact that the employees in this instance have been offered the opportunity to
recant on terms that the majority of their colleagues considered reasonable must
weigh against any salutary effect of a warning, and seriously calls into question the
prospects of a continued employment relationship on the necessary terms of mutual
trust and confidence.’

The judgment of the Labour Court (the court a quo)
[22] The learned judge in the court a quo was unimpressed with the
submission that the threats contained in the petition were not serious and
were merely strategic in order to catch the attention of the respondent. She
described the notion that the respondent should not have taken the words in
the petition seriously as ‘ridiculous’.

[23] The court a quo agreed with Professor Van Niekerk’s findings of
misconduct in respect of counts 1 and 2.  The learned judge held that the
employees’ acts of insubordination and bringing into disrepute the reputation
of both the respondent and its CEO were not ‘legitimate’ activities. She found
that these activities were neither constitutionally protected nor protected under
the LRA. She found that no constitutionally enshrined right had been infringed
by finding the employees guilty of misconduct and dismissing them. The

learned judge found that there had been no ‘automatically unfair’ dismissal in
terms of s 187 (d) of the LRA.

[24] The court a quo found that, against the background of events, more
especially the ‘olive branch’ extended to them by both Professor Ram and the
chairperson of the disciplinary enquiry, the dismissals could not otherwise be
found to have been unfair. She found that there was no inconsistency in the
fact the chairperson had dealt differently with those who had signed the
undertaking and those who had not.  Different facts call for different
measures. The learned judge also found that there was nothing procedurally
unfair in coming to the conclusion to dismiss. On the contrary, she found that
the chairperson of the disciplinary enquiry had acted with exemplary fairness.

The appellant’s banner as unfurled in this Court
[25] Mr Ngalwana SC,  who appeared for the appellant, summoned from his
artillery the judgment of Froneman DJP who delivered the judgment of the
LAC in South African Chemical Workers Union v Afrox Ltd.4 In SACWU v
Afrox the learned judge emphasised the constitutionally enshrined character
of rights and freedoms enjoyed by trade unions and their members in
contemporary South Africa. Mr Ngalwana also referred to Kroukam v SA
Airlink (Pty) Ltd5  where the appellant had been dismissed primarily as a result
of activities which had been undertaken by him on behalf of the union. The
LAC  held that it therefore followed, as a matter of law, that in terms of s
187(1)(d), read together with ss 4(2)(a) of the LRA, his dismissal had been
‘automatically unfair’ and he was entitled to reinstatement. Mr Ngalwana
submitted, correctly, that trade unions and their members are entitled to
engage in robust exchanges with management.  The decorum of a bourgeois
tea party is not expected of angry employees. He contended that, in the
present case, this is all that had occurred and that the dismissed employees
had been doing no more than exercise their constitutionally enshrined right to

4 South African Chemical Workers Union v Afrox Limited (1999) 20 ILJ 89; [1998] 12  BLLR
1209 (LAC).
5 Kroukam v SA Airlink (Pty) Limited 2005 26 ILJ 2153; [2005] 12  BLLR 1172 (LAC).

petition their employer. Accordingly, so he submitted, the dismissals had been
automatically unfair in terms of the LRA.

[26] In the alternative to his submissions that the dismissals had been
automatically unfair, Mr Ngalwana referred to the fact that the employer’s
disciplinary code lists ‘deliberate rudeness to a divisional manager or general
manager’ as examples of ‘minor offences’. While accepting that the code is,
as it expressly mentions, merely a guide, he advanced the proposition that, as
the code did not make insubordination a first order act of misconduct, it was
accordingly unfair to dismiss the employees on this account. Mr Ngalwana
also contended that in dismissing the ten employees and not the others who
had committed a similar offence, the respondent had been inconsistent and
that this, too, had been unfair.

[27] Mr Maenetje SC, who appeared for respondent, agreed that the pivotal
issue in this case is whether the conduct of the dismissed employees on 3
June 2008 when they petitioned Mr Sikonela, expressed a ‘vote of no
confidence’ in Professor Ram, urged the board of the respondent ‘to ensure
that June 30th, 2008 is the last day of his employment’ and said in that letter
that ‘we are no longer prepared to spend a day with Professor Ram in the
same building with him at the helm of this organisation’ amounted to unlawful
conduct or, put differently, was protected activity in terms of the employees’
constitutionally enshrined right to petition. Mr Maenetje agreed that the issue
of whether the appellant had, in fact, communicated the contents of its petition
to the media and, if so, what the implications of this may be, was essentially
ancillary to the main issue of the insubordination alleged to have been
inherent in the petition and the circumstances surrounding it.

[28] Mr Maenetje also agreed that, if the dismissal was not found to have
been automatically unfair in terms of the LRA, the next questions that need to
be considered were whether the dismissals had been unfair on the basis that:
(i)
the acts of misconduct were insufficiently serious to justify dismissal;
and

(ii)
the respondent had been inconsistent in dismissing the ten affected
employees and not others.
Mr Maenetje supported the judgment of the court a quo.

Conclusions
[29] Mr Ngalwana’s initial submission was that the employees had been
dismissed because they had joined in petitioning the respondent, which was a
legitimate trade union activity. That submission is not factually correct. That
the affected employees supported a petition was not, by reason of this fact
alone, the cause of their dismissal. As correctly found by the disciplinary
enquiry, and the court a quo, the cause of their dismissal was what they said
in the petition, which is a different matter. No doubt it is correct, as was
submitted by Mr Ngalwana, that they would not have been dismissed had the
petition not been sent, but that is because the offensive material therein would
not have been conveyed. It was the communication of the offensive material
that caused their dismissal, not the act of petitioning in itself.

[30] As far as this submission, advanced on their behalf of the affected
employees is concerned, murder and arson, would, for example, remain
unlawful even if the conspiracy hatched to commit them had been formed
during a meeting of a trade union, scrupulously convened in terms of the
formal organisational rights conferred upon trade unions by the provisions of
the LRA and affirmed in the Constitution. When these vivid hypothetical
illustrations were presented to Mr Ngalwana by the court, he was compelled
to concede that it could never have been intended by the legislature that the
rights to petition and to organise in terms of the LRA and the Constitution
were unqualified. A meeting of trade union officials and shop stewards cannot,
for example, be convened to plot and plan the murder of a disagreeable
employee at the work place or to burn down the buildings of the employer, no
matter how justified the participants may believe such action to be. So too,
pickets, protests, meetings, pamphleteering cannot, as the court a quo also
mentioned by way of illustration, be organized contrary to our law of
defamation. Trade union activities which constitute unlawful acts of

insubordination are not protected. The law does not dissemble unlawful acts
through the invocation of a constitutional banner.

[31] The court a quo referred to Acrylic Products (Pty) Ltd v CWIU and
Another;6 Slagment (Pty) Ltd v Building Construction and Allied Workers
Union;7 Johannes v Polyoak Industries8  and Air Products (Pty) Ltd v CWIU9
to consider the meaning of ‘insubordination’ and the consequences that may
flow therefrom. The conclusions of the learned judge cannot be faulted. No
reasonable person could come to any other conclusion from the conduct of
the employees than that they were serious in their threat willfully to defy their
employer and its CEO. This constitutes insubordination. There would be no
logic in requiring an employer first to wait to see whether the threat was acted
upon before it can invoke disciplinary proceedings against the employee
concerned. Provided the threat is credible an employer may act upon it
forthwith.

[32] Correctly construed, the affected employees were dismissed not for
petitioning their employer but for their acts of insubordination. Neither the
Constitution
nor
the
LRA
protects
employees
from
dismissal
for
insubordination. The affected employees were not dismissed in contravention
of s 187(1)(d) of the LRA. There was no automatically unfair dismissal.

[33] As Grogan notes in his Dismissal,10 the LRA’s Code of Good Practice
encourages employers to adopt disciplinary measures other than dismissal
and, in the case of less serious offences to follow a system of ‘graduated’
discipline.11 This principle was applied when Professor Ram recognised that
not all of the affected employees may have realised the seriousness of their
actions and Professor Van Niekerk, against this background gave all of those
whom he found guilty of misconduct the opportunity to dissociate themselves

6 Acrylic Products (Pty) Limited v CWIU and Another [1997] 4 BLLR 370 (LAC).
7 Slagment (Pty) Limited v Building Construction and Allied Workers Union 1995 (1) SA 742;
(1994) 15 ILJ 979 (A).
8 Johannes v Polyoak Industries [1998] 1 BLLR 18 (LAC).
9 Air Products (Pty) Limited v CWIU [1998] 1 BLLR 1 (LAC).
10 Op.cit.
11 At p168.

from the petitions, accept their wrongdoing, apologise to Professor Ram and
to undertake that they would, in future, use the grievance procedures provided
for in both the Staff Policy document and the LRA. This opportunity was
extended at the request of the appellant. Professor Van Niekerk acted in a
procedurally fair manner.

[34] There is no inconsistency in giving, on the one hand, written warnings
to those who acknowledged their wrongdoing and, on the other, dismissing
those who did not. The dismissed employees persisted, right to the end, in
protesting that they had done nothing wrong in seeking to hound Professor
Ram out of his office. On the contrary, they insisted that they were merely
exercising their rights in terms of the LRA and the Constitution. This
unrepentant intransigence rendered the continued employment relationship
between the parties intolerable. The relationship between them had
irretrievably broken down.

[35] Section 185 of the LRA gives employees the right not to be subject to
unfair labour practices. These include ‘unfair conduct relating to the
promotion, demotion, probation or training or the provision of benefits to an
employee’.12 Section 191 of the LRA provides mechanisms for the resolution
of such disputes. Section 193 provides remedies for such disputes. Sections
133 to 135 provide for the resolution of disputes of mutual interest.  Whatever
criticism may have been leveled at the respondent’s own internally provided
grievance procedures, the LRA provides avenues down which the affected
employees could have walked and even marched. They failed to use these at
their peril.

[37] It is irrelevant to the determination of this appeal that, subsequent to
the events that gave rise to the dismissals, the appellant lost its recognition by
the respondent and Professor Ram resigned. The appeal must be decided on
the facts that were germane at the time of the dismissals.

12 s186(2)(a)of the LRA.

[38] The appeal is dismissed with costs.

_________________
N.P. Willis
Acting Judge of Appeal

APPEARANCES:
For the Appellant:
N. V. Ngalwana SC (with him N. Mbelle)
Instructed by:
Ndumiso Voyi Incorporated, Johannesburg
Webbers Attorneys, Bloemfontein

For the Respondent:
N.A. Maenetje SC
Instructed by:
Cheadle Thompson & Haysom, Johannesburg
McIntyre & Van der Post, Bloemfontein