Labour Court overturns reinstatement of worker fired for shouting at team leader

Acting Judge Motshekga found that South Ocean Electric Wire had been justified in dismissing Ntsoana after a confrontation over his request to leave an overtime shift early. The court held that the conduct amounted to gross insubordination and replaced the arbitration outcome with a finding that the dismissal was substantively fair.

Dispute began with request to leave an overtime shift

Ntsoana worked as an operator on the company’s E28 extrusion machine. The judgment said he had signed an overtime requisition committing him to work from 6am to 6pm on June 3 and 4, 2023. A trial run was being conducted on his machine on the Sunday at issue.

Employees who wanted to leave before the end of an overtime shift were required to obtain a pass-out. These passes were reserved for emergencies.

The company’s version was that Ntsoana first asked superintendent Anthony Mission to sign his pass-out. Mission declined and directed him to approach his superior. At about 2.30pm, Ntsoana told team leader Nomthandazo Kubayi that he wanted to leave at 3pm to buy groceries and do his laundry.

The request was referred to production manager Danie Delport, who confirmed that pass-outs were intended for emergencies. The company alleged that Ntsoana later returned after changing out of his protective clothing and demanded the pass-out.

When he was told that the request had been refused, Ntsoana allegedly shouted at Kubayi and pointed his finger at her. The company said the confrontation took place first in the team leaders’ office and later on the shop floor in front of other operators.

A second team leader, Diana Manuel, intervened. Ntsoana allegedly told her that he did not work with her. The confrontation was eventually moved back to the office as the situation escalated.

Delport then authorised the pass-out and indicated that the matter would be addressed the following day. The court later found that granting permission at that stage did not amount to accepting or condoning the alleged conduct.

Employee disputed the company’s version

Ntsoana gave a different account of the incident. He maintained that he had approached Kubayi earlier that morning and that they had agreed he could leave at 3pm.

He denied being rude, shouting or pointing his finger at anyone. His account placed the dispute at the centre of conflicting evidence about what had happened and how serious his conduct had been.

Ntsoana was charged with gross insubordination, found guilty at a disciplinary hearing on June 12, 2023, and dismissed. His internal appeal was unsuccessful.

The National Union of Metalworkers of South Africa, which represented Ntsoana, referred the unfair dismissal dispute to the Metal and Engineering Industries Bargaining Council.

Arbitration award ordered reinstatement

During arbitration, the company called Kubayi, Manuel and Mission to testify. Ntsoana gave evidence in his own defence.

The commissioner ruled in Ntsoana’s favour, finding that the company had not proved that he had refused to obey a lawful and reasonable instruction. The commissioner also concluded that the evidence did not establish that Ntsoana had been rude, finding that the competing versions were evenly balanced.

The commissioner further reasoned that the conduct described by the company’s witnesses amounted to insolence rather than insubordination. Under the company’s disciplinary code, the commissioner found, that type of conduct would have called for progressive discipline rather than dismissal.

On that basis, the commissioner found that the employment relationship remained intact and ordered Ntsoana’s retrospective reinstatement with five months’ remuneration.

South Ocean then approached the Labour Court to review the award. The company argued that the commissioner had failed to properly assess the conflicting versions and had ignored material evidence from its three witnesses.

Court criticises assessment of evidence

In reviewing the arbitration award, the Labour Court found that the commissioner had moved from Ntsoana’s denial directly to the conclusion that the evidence was evenly balanced. The court said the commissioner had not properly evaluated the credibility and reliability of the witnesses or considered which version was more probable.

The judgment noted that Kubayi, Manuel and Mission had testified that Ntsoana shouted and pointed his finger at Kubayi. Their evidence on those points had not been challenged during cross-examination.

The court also found that Ntsoana’s denial and his reliance on closed-circuit television footage had not been properly put to all the company’s witnesses during their testimony.

Mission had been standing about three metres away during the confrontation and had witnessed the exchange. He testified that he intervened because Ntsoana’s body language suggested that someone could be hurt.

Mission also said that he had worked with Ntsoana for a long time and had no personal animosity towards him. The court considered that evidence when assessing whether his account was reliable.

The judge found that the commissioner’s conclusion that Ntsoana had been insolent rather than insubordinate contradicted the separate finding that the allegation of rudeness had not been proved. The court ruled that the commissioner’s assessment could not reasonably be justified.

Gross insubordination is wider than refusing an instruction

A central issue was whether an employee could be found guilty of gross insubordination without proof that he had refused to obey a specific instruction.

The commissioner had approached the matter on the basis that the company needed to prove that Ntsoana had received a lawful and reasonable instruction and had refused or failed to comply with it.

The Labour Court found that this applied the requirements of a different disciplinary offence. Referring to previous Labour Appeal Court judgments, it explained that insubordination can also arise when an employee’s conduct amounts to a deliberate and serious challenge to, or defiance of, an employer’s authority.

That means the offence does not necessarily depend on a clearly identified instruction being disobeyed. The nature of the conduct and whether it seriously challenges workplace authority are also relevant.

In this case, the court found that the evidence showed Ntsoana had indicated that he would leave with or without management’s permission. It also found that he had challenged Delport’s authority, refused to return to work or put his protective clothing back on, and continued shouting at Kubayi in front of other employees.

The judge said the conduct went beyond discourtesy. It amounted to a serious challenge to the authority of both the team leader and the production manager.

The eventual authorisation of the pass-out did not change that conclusion. The court found that the pass-out had been granted to defuse the situation and restore order, while management intended to address the incident afterwards.

Dismissal found to be an appropriate sanction

The court also considered whether dismissal was an appropriate sanction, particularly because the union argued that the company’s disciplinary code did not provide for dismissal for a first offence of gross insubordination.

The court interpreted the code as recommending dismissal for a first offence of gross insubordination, given the serious nature of the misconduct. It also emphasised that the code was a guideline rather than an inflexible set of rules, meaning that each matter had to be assessed on its own facts.

The court found that the confrontation was not a brief outburst. According to the evidence, the conduct continued from shortly after 3pm until between 3.30pm and 4pm, despite attempts by the team leaders and production manager to calm the situation.

The incident took place in front of operators supervised by Kubayi while a trial run was being conducted on Ntsoana’s machine. Kubayi testified that she was afraid and did not wish to work with Ntsoana again.

The judge found that the commissioner had dismissed her concerns as being motivated by ego without any evidential basis. The court held that her testimony established that the trust relationship had broken down.

It also found that there were no sufficient mitigating circumstances to justify a lesser sanction. In the circumstances, dismissal was appropriate.

Arbitration award set aside

The Labour Court consequently set aside the arbitration award and substituted it with a finding that South Ocean Electric Wire had acted fairly in dismissing Ntsoana.

The ruling underscores that workplace misconduct can involve more than refusing a direct instruction. Where conduct is found to seriously undermine a supervisor’s authority, a court may consider whether it amounts to gross insubordination, even if the dispute began with a particular workplace request.

No order was made as to costs.