- The Labour Court found that the commissioner’s decision to award compensation instead of upholding the dismissal was unreasonable.
- The court confirmed that refusing a lawful instruction can justify dismissal where it undermines operations.
- The arbitration award was replaced with a finding that the dismissal was substantively fair.
The Labour Court has overturned an arbitration award that had reduced a dismissal to a compensation payout, finding that the employee’s refusal to follow a lawful instruction was serious enough to justify dismissal.
The case involved Ram Transport South Africa and its former employee, KR Mkhize. His dismissal followed a failed delivery that the employer said was caused by a deliberate refusal to carry out a lawful instruction. The commissioner had accepted that misconduct occurred but still concluded that dismissal was too harsh. That conclusion did not survive review.
What happened on the night of the delivery
Mkhize had worked at Ram Transport South Africa since December 2011 as a driver’s assistant, helping with parcel deliveries. His role sat at the heart of the company’s operations, where delivering on time had a direct bearing on client relationships.
On 22 May 2019, a parcel that had already missed one delivery attempt needed to reach a client. Branch Manager Angus Allagan gave a clear instruction that the delivery had to be completed that evening. When concerns were raised about the timing, Allagan went a step further and offered to personally escort the delivery team so the job could be done safely.
The delivery did not take place. According to the employer, Mkhize refused to carry out the instruction even after that offer of support. The refusal led to yet another service failure and put the client relationship at risk.
Mkhize was charged with gross negligence and bringing the company into disrepute. He was dismissed on 11 June 2019 following a disciplinary process.
The employee’s side of the story
Mkhize denied refusing a lawful instruction. He maintained that he had not been part of the discussions between the driver and management and had no knowledge of the delivery arrangements. He also suggested that there was confusion about whether the matter involved a delivery or a collection.
He also pointed out that the driver, B Memela, had not been disciplined at all, which he argued raised serious questions about fairness and consistency.
Even so, it was not in dispute that the delivery had not been completed and that management had issued a clear instruction for it to happen.
What the arbitrator decided
The dispute went to arbitration before Commissioner W Stephens. The commissioner found that the dismissal was procedurally fair and accepted that Mkhize had breached workplace rules.
He accepted that the instruction was lawful and reasonable, that the workplace rules were valid and known to the employee, and that the misconduct had contributed to a breakdown in the employment relationship.
Despite these findings, the commissioner concluded that dismissal was too harsh. In explaining this outcome, he stated, “Taking the totality of the circumstances into account, including the fact that there was no element of dishonesty in the misconduct, I accept that corrective and progressive discipline would have had the desired effect of modifying the Applicant’s behaviour in the workplace.”
On that basis, he found the dismissal substantively unfair and awarded Mkhize five months’ compensation.
Why the employer took it on review
Ram Transport South Africa challenged the award in the Labour Court in Durban, arguing that the commissioner’s conclusion sat at odds with his own findings. The company submitted that once the misconduct had been accepted as serious and damaging, there was no justification for replacing dismissal with a lesser sanction.
The employer also argued that the commissioner had failed to properly consider its disciplinary code, which prescribed dismissal for this type of misconduct, and that he had misdirected himself when assessing the evidence.
Mkhize opposed the review application and maintained that the commissioner had properly exercised his discretion.
How the court saw it
Acting Judge GC Phakedi focused on whether the commissioner’s decision was one that a reasonable decision-maker could have reached.
The court emphasised the applicable test, stating, “A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator.”
The court found that although the commissioner correctly identified the legal principles and made findings of serious misconduct, his conclusion did not follow from those findings. It held, “Despite having summarised the issues correctly and applying the authorities correctly, the Second Respondent arrived at a decision which no reasonable decision-maker could arrive at.”
The court further criticised the substitution of the sanction. It stated, “The Second Respondent was wrong to substitute a sanction of dismissal when the disciplinary code prescribes penalties for misconduct.”
Looking at the reasoning as a whole, the court found that the outcome was disconnected from the evidence and could not be justified on the record that had been before the commissioner.
The final outcome
The Labour Court found that the arbitration award could not stand and set it aside. In its place, the court substituted a finding that the dismissal of Mkhize was substantively fair.
Each party was ordered to pay its own costs.
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