An employee of the South African Property Owners Association who apparently refused to follow instructions from her employer and is said to have told a human resources officer to “shut up”, lost her application to have her dismissal overturned.
Beryl Nomawethu Tshaka turned to the Labour Court in Johannesburg to review and set aside an arbitration award issued against her in October 2018 after she was fired by her employer.
The CCMA commissioner, however, found that her dismissal was both procedurally and substantively fair. Tshaka was aggrieved by the arbitration award and subsequently launched the review application.
Tshaka has been employed as a membership relations officer at Sapoa since January 2012.
At the end of November 2017, she was given an instruction to attend a meeting scheduled for about four days later with a prospective client.
The court was told that Tshaka refused both in writing and verbally to attend the scheduled meeting.
She said she had another meeting set up for the same time and that she was not part of previous discussions regarding the prospective client.
She said she was notified on short notice of the meeting and that she did not ordinarily attend face-to-face meetings.
Despite all these objections, her manager insisted that she should attend the meeting.
Tshaka subsequently went to her manager’s office and told her that she would not attend the said meeting.
A verbal altercation ensued between Tshaka and her manager and the latter claimed that Tshaka was rude to her and to the HR officer who was present.
While it is not clear from the judgment what she said to her manager, it is said that she told the HR officer to “shut up”.
She was subsequently issued with a pre-suspension letter calling on her to provide the HR officer with the reasons as to why she should not be suspended.
A few days later she was placed on suspension with full pay.
Ultimately, she was charged with acts of misconduct (gross insubordination, dereliction of duties, insolence, and threatening her manager).
She was found guilty and dismissed.
Tshaka complained that the arbitrator who confirmed her dismissal failed to consider all the facts and her side of the story. She said she did nothing wrong and should have never been dismissed.
Judge Graham Moshoane said the grounds out forward by Tshaka are nothing but appeal grounds.
“A gross irregularity arises in an instance where a party is not afforded a fair trial of issues.
“It is clear to this court that Tshaka was indeed afforded a fair trial of issues,” the judge said.
He said it was by now settled law that in a review the test is whether the decision is one that a reasonable decision-maker would reach.
“It is common cause that Tshaka received an instruction from her superior to attend a specific meeting.
“It is also common cause that the employee refused both verbally and in writing to attend such a meeting.
“Undoubtedly, the employee failed to carry out what was clearly a reasonable instruction from the employer. That conduct amounts to insubordination,” the judge said.
He said the Labour Appeal Court has already concluded that employers should not negotiate instructions with employees.
“Regarding the reasons advanced by Tshaka, she clearly required her manager to negotiate the instruction with her.
“It was also common cause that the employee had stated to the HR officer that he must shut up.
“Clearly, this is a conduct that displays insolence and disrespect to authority,” the judge said in turning down her application.
Pretoria News