09/12/2018
Case Alerts: Antoine v Koch's Cut & Supply: Arbitrator: Luster
Metal & Industries Bargaining Council, Durban: MEKN 868
The applicant, a welder, was dismissed after informing the supervisor that he could not perform work assigned to him without the assistance of a qualified boilermaker. He claimed that he never did that particular work before without assistance. However, he then decided to try it before he was told to go home pending the disciplinary hearing against him. The respondent conceded that no charges had been given to the applicant before his disciplinary hearing, but claimed that he knew what the hearing was about.
Held: That, although the applicant had been charged with gross insubordination for failing to carry out the work assigned to him, an incident in which the applicant had been taken to task for his car in a reserved bay had loomed large in the respondent's mind. That had influenced the approach of the manager concerned when he learned of the applicant's reluctance to perform the work. Since the applicant had decided to do the job before he was given his marching orders, his initial reluctance could not be classified as gross insubordination. Furthermore, the applicant was justified in regarding the instruction as unreasonable, because he was not trained to perform it.
Noted: Turning to the relief, the Commissioner noted that the incident demonstrated that the respondent's senior managers had all lost confidence in the applicant.
Held: That there was no point in ordering reinstatement, since the applicant bore some responsibility for the events leading to his dismissal. It would also be unfair to the respondent to order the maximum compensation permitted by LRA.
The applicant was awarded compensation equivalent to eight months wages.
