Hendrik Van Wyk Vervoer (Pty) Limited v National Bargaining Council for the Road Freight and Logistics Industry and Others

The applicant, a transport company, employed Mr Mkhwanazi (third respondent) as a driver of Tautliner trucks on long distance trips. On 6 March 2017, he attended a disciplinary hearing for reckless driving and received a written warning. After the hearing, he was asked to drive or accompany a side tipper truck driver, which he refused, stating he didn't have his driver's licence as he hadn't expected to drive that day. The following day, he was again asked to become familiar with the side tipper truck operation and refused. This refusal led to his dismissal for insubordination. There were significant differences between Tautliner and side tipper driving positions: Tautliner drivers were paid monthly with higher remuneration and received sleep-out allowances for overnight trips, while side tipper drivers were paid weekly at lower rates for local trips. Mr Mkhwanazi alleged the employer intended this as a punitive change to his conditions of employment without his agreement. The employer's owner allegedly told Mr Mkhwanazi he would be forced to drive the local truck and would not be allowed to sleep in the truck, requiring him to return home daily despite living far away.

• Whether the commissioner committed a gross irregularity in finding the dismissal substantively unfair under section 145(2)(a) of the Labour Relations Act
• Whether the employer's instruction to change from Tautliner to side tipper driving was reasonable
• Whether the employee's refusal to comply with the instruction was justified
• Whether the commissioner had jurisdiction to award outstanding salary and annual leave in an unfair dismissal dispute

1. The application is dismissed; 2. The applicant is ordered to pay the third respondent's costs.

For a dismissal for insubordination to be substantively fair, the employer's instruction must be reasonable. An instruction that fundamentally alters an employee's terms and conditions of employment (particularly remuneration and work patterns), lacks legitimate operational justification, and appears punitive in nature is unreasonable. An employee's refusal to comply with such an unreasonable instruction is reasonable and dismissal in such circumstances is substantively unfair. A commissioner hearing an unfair dismissal dispute has jurisdiction under section 74(2) of the BCEA to determine and order payment of amounts owing to an employee under the BCEA (such as outstanding salary and annual leave), provided the claim has been properly referred under section 191 of the LRA, the amount has not been owing for more than one year prior to dismissal, no compliance order has been made, and no other legal proceedings have been instituted to recover the amount. Such payments are distinct from compensation under section 193(1) of the LRA.

The court observed that the instruction to change roles appeared to have "an element of abuse of power about it" given the context of it occurring immediately after a disciplinary hearing and the alleged threatening manner in which it was communicated by the employer's owner. The court noted that while costs do not generally follow the result in labour cases, there are circumstances where departure from this principle is justified - particularly where a person of limited means must defend against a review application that is clearly without merit and seeks to overturn an award remedying a manifest injustice. In such cases, requiring the successful party to bear their own legal costs would be unjust.

This case is significant for establishing that: (1) An employer's instruction that fundamentally changes an employee's conditions of employment (including remuneration and work patterns) without legitimate business justification and appearing punitive in nature may be unreasonable, justifying an employee's refusal and rendering dismissal for insubordination substantively unfair; (2) The test for review of arbitration awards under section 145(2)(a) of the LRA requires showing the arbitrator misconceived the enquiry or reached an unreasonable result that no reasonable arbitrator could reach on the available material; (3) Commissioners have jurisdiction under section 74(2) of the BCEA to determine claims for outstanding salary and leave in unfair dismissal proceedings, provided statutory conditions are met - such awards are distinct from compensation and constitute enforcement of contractual obligations; (4) Costs may be awarded in labour matters departing from the general rule where a review is clearly without merit and would otherwise burden an employee of limited means who successfully defended against a manifest injustice.