About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2020
>>
[2020] ZALAC 46
|
|
AMCU obo Rantho and Others v SAMANCOR Western Chrome Mines (JA62/19) [2020] ZALAC 46; (2020) 41 ILJ 2771 (LAC); [2021] 3 BLLR 236 (LAC) (1 October 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA62/19
In the matter between:
AMCU obo LS RANTHO AND
158 OTHERS
First Appellant
TEBOGO MOSES
MATHIBA
Second Appellant
and
SAMANCOR WESTERN
CHROME MINES
Respondent
Held:
18 August 2020
Delivered:
01 October 2020
Summary:
D
ismissal—Strike
context—Illegal strike—Employer issued ultimate employees
to return to work before certain time---Striking
employees complying
with ultimatum to return to work but nevertheless dismissed—Employer
waiving its right to discipline
employees by issuing
ultimatum----Dismissal unfair as employees returned to work as
instructed in the ultimatum.
Coram:
JUDGMENT
MURPHY AJA
[1]
The first appellant (“AMCU”) appeals against the judgment
of the Labour
Court (Tlhotlhalemaje J) delivered on 17 April 2019, as
well as two interlocutory rulings, one a point
in limine
and
the other granting absolution from the instance in its rectification
application. AMCU maintains that the Labour Court erred
in finding
that the dismissal of 159 AMCU members (“the individual
appellants”) for participating in an unprotected
strike on 25
November 2013 was substantively and procedurally fair. It contends
further that the Labour Court erred by not allowing
the individual
appellants to challenge the validity of their previous final written
warnings for participating in an unprotected
strike in May 2013 and
to rectify a settlement agreement to permit them to dispute those
warnings.
[2]
The first respondent, Samancor, operates two chrome mines, the
Millsell Mine and the
Mooinooi Mine, (“the Western Chrome
Mines”) in the North West Province. AMCU and the National Union
of Mineworkers
(“NUM”) enjoy collective bargaining rights
in terms of a recognition agreement which Samancor concluded with NUM
and
AMCU (“the recognition agreement”). AMCU wanted to
amend the recognition agreement so as to change the definition of
the
workplace or bargaining unit (defined to be the Western Chrome Mines
and the Eastern Chrome Mines near Groblersdal in Limpopo)
and thereby
secure majority union status at the Western Chrome Mines.
[3]
During May 2013, AMCU members participated in an unprotected strike
in pursuance of
a demand that Samancor change the recognition
agreement so as to recognise AMCU as the sole union for collective
bargaining purposes
at the Western Chrome Mines. Samancor issued a
final written warning (valid for 12 months) to these striking
employees, including
the individual appellants.
[4]
On 25 November 2013, AMCU members again participated in an
unprotected strike partly
in pursuance of the same demand. On 13
December 2013, Samancor dismissed all the employees who participated
in this unprotected
strike, including the individual appellants. AMCU
lodged an internal appeal against the dismissal of its members. Prior
to the
commencement of the internal appeal, Samancor and AMCU
concluded a settlement agreement, in terms of which Samancor agreed
to reinstate
all AMCU members who had not participated in the strike
of 25 November 2013 or who were not on a final written warning for
having
participated in the earlier strike in May 2013. The individual
appellants are the employees who were identified and listed in a
schedule of AMCU members who were on a final written warning for
their participation in the earlier strike and were not reinstated.
[5]
The second appellant, Mr TM Mathiba, (“Mathiba”), also
appeals against
the judgment but on essentially different grounds. He
maintains that he did not participate in the unprotected strike on 25
November
2013, but instead reported for duty. He also denied
participating in the unprotected strike of May 2013 and thus
challenged the
final written warning which was issued subsequent to
his alleged participation.
[6]
At the commencement of the proceedings, the Labour Court consolidated
the applications
of the individual appellants and Mathiba. It also
ruled that the appellants were precluded by the terms of the
settlement agreement
from challenging the validity of the final
written warnings issued in relation to the strike of May 2013 and
leading evidence in
relation to them. In response to this ruling, the
appellants brought an application to rectify the settlement agreement
to permit
a challenge to the warnings, such being the alleged true
intention. The Labour Court granted Samancor absolution from the
instance
in this application on the grounds that the appellants had
not made out a
prima facie
case showing a common mistake
justifying rectification of the settlement agreement. While the
correctness of the Labour Court’s
rulings on these issues took
up much of the argument before us, there is no reason to canvass them
as the appeal falls to be determined
on another basis.
[7]
The facts and circumstances of the strike of 25 November 2013 are for
the most part
not disputed. In the early morning on that day, most
workers on the mine did not work. A memorandum was handed to
management demanding
resolution of the bargaining unit issue and
other issues. One of the primary demands was that one of Samancor’s
human resources
officers be immediately removed from the Mooinooi
mine on the grounds of her being biased against AMCU. The office of
NUM at the
mine was trashed and some workers willing to work were
intimidated. Management, believing there was a safety problem,
ordered the
evacuation of the underground areas of the mine.
[8]
Various meetings were held during the day in an attempt to persuade
the workers to
return to work. Mr Mphahlele, the AMCU General
Secretary, came from Johannesburg to assist in the negotiations. The
last meeting
ended at 15h00, but neither the afternoon shift nor the
night shift reported for work. AMCU members did not return to work
until
the day shift of the next day 26 November 2013, meaning that
the day shift, the afternoon shift and the night shift of 25 November
2013 were not worked.
[9]
At 18h53, on 25 November 2013, Samancor sent an SMS to all Western
Chrome Mines employees
which read:
‘
All
WCM employees to report for duty tomorrow, 26 Nov 2013, as per
normal.’
[10]
A second SMS was sent at 19h58 which read:
‘
All
night shift employees need to report for duty tonight as normal.’
[11]
At 23h00 on 25 November 2013, after the night shift had failed to
report, a written ultimatum on Samancor’s
letterhead was
addressed to “All striking Mooinooi and Millsell Night Shift
Workers” in the following terms:
·
You
commenced on an unlawful/unprotected strike today Monday 25 November
2013 at approximately 22h00.
·
Despite management attempt to engage with
striking workers and their representatives, you have embarked on an
unlawful/unprotected
strike.
·
You are hereby instructed to return to work
at the commencement of the next shift tomorrow, 26 November 2013, at
22h00.
·
The Company will be taking every precaution
at its disposal to ensure your safety, should you wish to return to
work.
·
If you do not intend to return to work, you
and/or your representative are required to provide reasons as to why
the Company should
not issue a final ultimatum requiring you to
return to work, failing which, why the Company should not dismiss
you. These reasons
must be received by the Company on or before 10h00
tomorrow, Tuesday 26 November 2013.
·
You are not permitted to intimidate
employees wanting to return to work.
·
You are encouraged to communicate through
your union representatives to the extent possible.
·
Should you wish to provide written reasons
why the Company should not issue a final ultimatum, these may be
emailed to [the relevant
HR Officer] or delivered by facsimile to
[telephone number provided] or by hand to the security offices at
Mooinooi and Millsell.
You may through your representatives also make
arrangements to meet with management at the mine premises. Management
are available
to meet with your representatives at any time.
·
The Company reserves the right to take
disciplinary action against you for participating in
unprotected/unlawful strike action and
for your conduct during the
strike.
·
The Company also reminds you that you can
also be held liable for any losses suffered as a consequence of this
unlawful/unprotected
strike.
·
The principle of “No Work No Pay”
will apply.
·
UASA, the NUM and AMCU have been provided
with a copy of this ultimatum.
[12]
The next day, 26 November 2013, at 05h30, another ultimatum was
issued to “All striking Mooinooi
and Millsell day and afternoon
shift employees”. The ultimatum was in exactly the same terms
except for the first three paragraphs
which set a different pertinent
timeline for the day and afternoon shifts. These paragraphs read:
·
You commenced on an unlawful/unprotected
strike today Monday 25 November 2013 at approximately 06h00 for day
shift and 14h00 for
afternoon shift.
·
Despite management attempt to engage with
striking workers and their representatives you have embarked on an
unlawful/unprotected
strike.
·
You
are hereby instructed to return to work at the commencement of the
next shift today, 26 November 2013, at 06h30 for day shift
and 14h00
for afternoon shift.
[13]
Thus, in terms of these ultimata, the night shift was given 23 hours
to return to work, the day shift
one hour, and the afternoon shift
eight and a half hours. The ultimata gave the workers a choice. They
had to return to work at
the stipulated times or, alternatively, if
they intended not to return to work at those times, they could
provide reasons as to
why Samancor should not issue another final
ultimatum requiring them to return to work. They were warned that if
they did not heed
the final ultimatum, they would then be dismissed.
One may reasonably deduce from the terms in which they were framed
that the
two ultimata were preliminary in nature; with the threat of
dismissal likely to be realised only after non-compliance with an
intended
further (and final) ultimatum.
[14]
As it turned out, the afternoon and night shift workers fully
complied with the preliminary ultimatum
when all of them returned to
work on 26 November 2013 at the stipulated times applicable to them.
The day shift workers, who were
given only one hour to comply,
substantially complied with the ultimatum by returning to work
between 06h45 and 07h00 on 26 November
2013. The unions offered to
work the day lost, but this proposal was not accepted by Samancor.
[15]
A decision was taken at a management meeting held on 6 December 2013
that all the employees
who had failed to clock-in on 25 November 2013
were to be disciplined on the charge of “gross misconduct”
for participating
in an unprotected/unlawful strike. Three separate
disciplinary hearings were held in respect of members of the three
different
trade unions.
[16]
AMCU did not attend the disciplinary hearing scheduled in respect of
its members on 10 December 2013.
It sent an email to
Samancor advising that it was not available to attend the hearings
and that it would only be available on 16
or 21 January 2014.
Samancor decided that the hearings would proceed as planned and in
AMCU’s absence. The chairperson
of the hearings wrote to
Mphahlele on 11 December 2013 advising him that the hearings had
proceeded in AMCU’s absence; that
the decision on the guilt of
the employees was reserved, and would be handed down on
13 December 2013; and that AMCU
should attend on that date
as the employees would be given an opportunity to plead in
mitigation. AMCU did not attend the hearing
on 13 December 2013
and the chairperson dismissed the individual appellants for
participating in the unprotected strike.
[17]
The disciplinary hearings in respect of the members of other trade
unions were held on 11 December 2013.
The members of these
unions were not found guilty on 13 December 2103.
[18]
Despite it lodging an internal appeal, AMCU did not pursue the
appeals process in the light of the
conclusion of the settlement
agreement. As explained, in terms of that agreement, only the
employees with valid final written warning
were not reinstated. Their
dismissals were confirmed at the conclusion of the settlement
negotiations on 26 January 2014.
[19]
Clause 2.1.4.3 of the settlement agreement records that AMCU
“reserves its rights to refer a
dispute as provided for in
terms of the Labour Relations Act”. Clause 5 provides that the
settlement agreement is entered
into in full and final settlement of
all claims arising from the dismissals on 13 December 2014 except as
provided for in the agreement.
Clause 5.2, in turn, provides that
notwithstanding the generality of Clause 5, “nothing shall
preclude the dismissed employees
from exercising their rights as set
out in 2.1.4.3 above”. Relying on these provisions, the
individual appellants referred
a dispute to the Labour Court
challenging their dismissals.
[20]
In their statement of claim, the individual appellants contested the
substantive and procedural fairness
of their dismissals on various
grounds. The challenge to substantive fairness was based broadly on
the following bases: i) the
work stoppage was for a short duration
and lasted less than a day; ii) the individual appellants heeded the
ultimatum and returned
to work in accordance with it; iii) the
misconduct was not of a nature to warrant the sanction of dismissal;
iv) the final written
warnings were not valid or fair; and v) all the
employees were involved in the same misconduct but not all were
consistently disciplined.
The dismissals were alleged to be
procedurally unfair because: i) the chairperson was misinformed of
the reason for the appellant’s
absence from the disciplinary
hearing; ii) the request for a postponement of the disciplinary
enquiry was unreasonably refused;
and iii) proceeding with the
hearing in the absence of the individual appellants was unfair for
various reasons.
[21]
As mentioned earlier, the Labour Court did not permit AMCU and the
individual appellants to lead evidence
regarding the final written
warnings or to challenge their validity and fairness. It held the
warnings were valid and concluded
that in the face of them
participation in the unprotected strike was serious misconduct
justifying dismissal. It reasoned as follows:
‘
The
question that remains is whether the dismissal on account of
participation in the unprotected strike and the fact that the
employees were on final written warnings was appropriate. It is my
view that questions surrounding the inter-union rivalry between
AMCU
and NUM, or the fact that Samancor’s approach to the
recognition agreement and its amendment was slow or biased cannot
serve as mitigating factors.…Where a union in a workplace is
of the view that it is entitled to more rights of engagement
with
management, legal processes are in place for those ends to be
achieved. ….
A whole range of factors
needs to be looked at in assessing fairness. In this case it is
significant to point out the following:
i) the strike was unprotected
and unprovoked; ii) in terms of the provisions of Samancor’s
disciplinary code, participation
in an unprotected strike was to be
met with a dismissal even if it was a first offence; iii) the strike
was essentially in respect
of the same issues that led to final
written warnings in July 2013, coupled with other impermissible
or unlawful demands;
iv) the final written warnings remained valid as
at the time of the unprotected strike; v) the employees following a
meeting between
AMCU and management, ought to have immediately (at
least the afternoon shift) returned to work and had not done so…;
vi)
aligned to the issues of the gross nature of the misconduct in
question is the conduct of the employees during the strike;
it
was not contested that damage was done to the offices of NUM during
the strike. …; vii) [t]he financial harm caused by
the
unprotected industrial action…. included a loss of R2.3m for
the 25 November 2013, and a loss of R1.3 per
day per mine
on 26 November 2013…….
In this case, I fail to
appreciate what other alternatives were available to Samancor, in
circumstances where the dismissed employees
had failed to heed the
final written warnings issued to them two months earlier, which
ordinarily in terms of Samancor’s
disciplinary code, would have
led to a dismissal.….The conduct of the individual applicants
and the nature of the strike
itself rendered an employment
relationship intolerable, and accordingly, the sanction of dismissal
was appropriate’.
[22]
With regard to the contention that the dismissals were unfair because
the appellants had complied with
the ultimata, the learned judge
stated:
‘
To
the extent that the employees returned to work on 26 November 2013,
it can be accepted that they had heeded the ultimatums,
but this does
not imply that Samancor was not within its rights to institute
disciplinary proceedings against them. After-all,
they had
participated in an unprotected strike.
To
this end, [the] contentions
that management had not in the
meetings
indicated an intention that disciplinary
action would be taken against the employees did not however imply
that management could
not do (sic). The fact that the employees had
resumed their normal duties on 26 November 2013 did not
imply that it was
the end of the matter.
A decision to discipline
employees, who had embarked on an unprotected strike ….even if
they had agreed to return to work,
remains a management prerogative.
Furthermore, the reliance by AMCU on ‘ambiguous/confusing’
messages in the ultimatum,
as to whether management would take
disciplinary action…, does not assist its case in the light of
the prerogative enjoyed
by management. To this end, there is further
no merit in the contention…that Samancor was estopped from
disciplining the
employees by virtue of any impression it had created
through the ultimatums.’
[23]
In our view, the Labour Court misconstrued the legal consequences of
the individual appellants’
compliance with the ultimata.
[24]
Item 6 of Schedule 8 of the Labour Relations Act
[1]
(“the LRA”) offers clear guidance regarding the purpose
and implications of an employer issuing an ultimatum during
an
unprotected strike. While making it clear that participation in a
strike that does not comply with the provisions of the LRA
is
misconduct, Item 6 recognises that such conduct does not always
deserve dismissal. The substantive fairness of a dismissal for
participation in an unprotected strike must be determined in light of
the facts, including the seriousness of the contravention,
attempts
made to comply with the LRA, and whether or not the strike was in
response to unjustified conduct by the employer. Item
6(2) aims at
avoiding precipitate dismissals by means of cooling-off measures. It
provides in relevant part:
‘
Prior
to a dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of action
it
intends to adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of
the employees
and what sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient
time to reflect
on the ultimatum and respond to it, either by complying with it or
rejecting it.’
[25]
The object of an ultimatum is to give striking employees the
opportunity to reconsider their action.
It must, therefore, be clear
and unambiguous and give the employees sufficient time to reflect.
The ultimata issued by Samancor
were not entirely clear but indicated
that dismissal would only follow after non-compliance with a final
ultimatum to be issued
after unjustified non-compliance with the
preliminary ultimatum. Samancor also reserved its right to take
disciplinary action against
the employees for participating in
unprotected strike action and for their conduct during the strike.
[26]
It is well-established in our law that where illegally striking
employees obey an ultimatum and return
to work within the stipulated
time, the employer will not be entitled to dismiss them. To hold
otherwise would render the purpose
of an ultimatum nugatory. Strikes
are functional to the social good of collective bargaining. Thus, the
right to strike is constitutionally
enshrined as a legitimate means
of advancing orderly collective bargaining. A precipitate strike
subverts the process by undermining
the opportunity for resolution of
the collective dispute by negotiation. The misconduct present in
participation in an un-procedural
strike is the subversion of the
process. The purpose of an ultimatum is to put the negotiation
process back on track and to end
the precipitous action. If it
achieves that purpose, dismissal normally should not follow because
that too would be precipitate
action undermining legitimate and
orderly collective bargaining.
[27]
For those reasons, our law regards an ultimatum by the employer as a
waiver of the right to dismiss
for the period of its duration. A
party who has once approbated (waived a right arising under the
contract, including the right
to terminate it) cannot thereafter
reprobate (seek to enforce that right).
[2]
If the employees refuse to return to work, the waiver implicit in the
ultimatum will lapse.
[3]
But if
they comply with the ultimatum, the employer is ordinarily precluded
from dismissing the employees for the act of striking,
but not
necessarily for other misconduct committed during the strike. Where
an employer after issuing an ultimatum wishes to reverse
or amend the
terms of the waiver prior to it expiring, it may do so in appropriate
circumstances provided it has a good reason
and gives the striking
workers timeous notice of the change to prevent them from being
unfairly prejudiced thereby.
[4]
[28]
Samancor did not reverse or amend its waiver in this case. The
ultimatum specified that dismissal would
only follow if after the
preliminary deadline the employees did not justify their refusal to
return to work or did not heed a final
ultimatum, which seemingly
would only have been issued after the deadline to submit reasons for
not returning to work – set
in the ultimatum at 10h00 on 26
November 2013. The employees did not submit reasons for not returning
to work and no final ultimatum
was issued because they all complied
with the preliminary ultimatum.
[29]
However, in the ultimatum the employer expressly reserved the right
to take “disciplinary action”
both for participation in
the strike and for other misconduct committed during the strike. This
provision introduced a measure
of ambiguity which should be
interpreted restrictively so as to advance the constitutional rights
of the employees. Had the employer
wanted to reserve to itself the
right to dismiss the workers, even if they returned to work, it would
have done better to have
worded the ultimatum differently. But, in
any event, a reservation of the right to dismiss would impermissibly
undercut the purpose
of an ultimatum. There would be little incentive
for employees to obey an ultimatum and end an illegitimate power play
if its terms
permitted dismissal despite compliance. The aim of an
ultimatum is to afford a last chance before resorting to the ultimate
sanction.
Hence, at best for Samancor, the reservation in the
ultimatum of the right to pursue disciplinary action for
participation in the
strike must be construed as permitting
disciplinary action short of dismissal.
[30]
In the result, the dismissals of the individual appellants and the
second appellant were substantively
unfair because Samancor had
waived its right to dismiss them if they complied with the ultimatum.
They did comply and dismissal
was accordingly an inappropriate
sanction in the circumstances.
[31]
There is insufficient evidence to conclude that reinstatement would
be intolerable or impracticable,
therefore in terms of section 193(2)
of the LRA the individual appellants are entitled to reinstatement.
However, this is a case
where reinstatement to the date of dismissal
would be inappropriate.
[32]
The primary demand of the striking workers related to a dispute about
the bargaining unit. Demands
of this kind must be dealt with in
sensitive manner, especially in the context of the trade union
rivalry bedevilling the mining
industry in our country. The
legislature has devised a particular process to ensure that disputes
about bargaining units are managed
and resolved on the basis of
comprehensive information and in accordance with legitimate
principles. To that end, section 64(2)
of the LRA, in addition to
requiring prior conciliation before industrial action, obliges the
employees or employer, as the case
may be, to refer a dispute about
bargaining units to advisory arbitration as contemplated in section
135(3)(c) of the LRA.
[33]
The determination of bargaining units is often a difficult matter
requiring meticulous consideration
of interlocking factors such as
methods of pay, seniority, convenience etc. The pre-condition of
advisory arbitration aims at affording
the parties an opportunity to
ventilate the issues in front of an independent party, culminating in
a recommendation hopefully
narrowing the dispute (and possibly
settling it) prior to industrial action. In embarking on and
participating in two wildcat strikes
circumventing these processes,
the individual appellants resorted to precipitate and illegitimate
power plays that led to violence
and most likely added needlessly to
inter-union rivalry, tension and disharmony at the workplace. As the
Labour Court pointed out,
this unnecessary and harmful friction could
have been avoided, or at least minimised, by procedural conduct. The
message must be
brought home to employees that destabilising conduct
of this kind will not be tolerated. Therefore, reinstatement in this
case
should be of limited retrospective effect.
[34]
The situation of Mathiba, the second appellant, is different.
Mathiba denied participating in either of the strikes of May 2013 and
November 2013. He testified that on the day of the November
strike,
he reported for duty and went underground, but was recalled to the
surface by his supervisor. He was with several of his
colleagues, who
he identified. The supervisor informed them that they would not work
due to the strike. He left the mine’s
premises at around noon.
He received his full remuneration for November 2013 with no deduction
being made in respect of the day
of the strike.
[35]
Mathiba’s clock card for 25 November 2013 reflects that he
clocked in at the main gate at 05h53
and clocked out at the main gate
at 11h59. He clocked in at the mining change house at 07h27 and out
at 7h30. He then clocked in
again at the mining change house at 10h43
and out at 11h27 before exiting the mine at 11h59.
[36]
On the days of the first strike in May 2013, Mathiba worked a double
shift on 28 May 2013 and had a
rest day on 29 May 2013. This is
confirmed by his clock-card for that day. He nonetheless received a
warning for participating
in the first strike when he, in fact, had
not. He raised this with human resources at the time and assumed it
had been rectified.
[37]
Mathiba hence argues that he should not have been dismissed; firstly
because he did not have a valid
final warning and secondly he had not
participated in either strike.
[38]
None of Samancor’s witnesses gave any direct evidence
establishing that Mathiba had participated
in the strike. Samancor
failed to present any evidence about his participation, save for
challenging his version about his whereabouts
premised on his
clock-card. Samancor’s General Manager, Mr. Smart, during his
evidence in chief did not testify as to the
whereabouts of Mathiba on
25 November 2013. During re-examination, he was referred to the
clock-card and maintained that it appeared
that Mathiba did not go
underground as other entries would have been reflected on the card.
However, he had earlier conceded that
the clocking card was difficult
to interpret.
[39]
Samancor
’s second witness, Rakoma, also struggled to
interpret the clock card, but he too suggested that it did not
indicate that
Mathiba had gone underground. He confirmed though that
Mathiba received payment for services rendered on 25 November 2013.
During
cross-examination, he was presented with clock cards of
various employees and acknowledged that they had discrepancies and
seemed
unreliable. Rakoma ultimately conceded that there are
occasions when the clocking system does not operate properly, that 25
November
2013 might have been one of those occasions and that
Mathiba’s clocking card contained entries which seemed strange
under
the circumstances. He then went on to concede further that on
the basis of the clocking cards, he had no “idea as to who
left; whether they participated in the strike or not.” It is
accordingly not beyond the bounds of belief that Mathiba was
underground between 07h30 and 10h43, being the period between his
clocking in and out of the mining change house.
[40]
In the premises, Samancor failed to discharge its onus that the
dismissal of Mathiba was for a valid
and fair reason. It adduced
insufficient evidence showing on a balance of probabilities that
Mathiba participated in the strike
of 25 November 2013. He is
accordingly entitled to be reinstated retrospectively to the date of
dismissal.
[41]
Given our findings on substantive fairness and the appropriate
remedies, it is not necessary to determine
whether the dismissals
were procedurally unfair.
[42]
The ongoing relationship between AMCU and Samancor, and the
reprehensible behaviour of the individual
appellants, justify no
award of costs. However, considering the paucity of evidence against
him, equity demands that Mathiba be
awarded his costs before the
Labour Court and on appeal.
[43]
In the result, the following orders are made:
43.1 Orders 4, 5
and 6 of the orders of the Labour Court are set aside and substituted
as follows:
43.1.1
The dismissals of the individual appellants represented by AMCU and
the second appellant were substantively
unfair.
43.1.2.
The respondent is ordered to reinstate the individual appellants
represented by AMCU with effect from 1 June
2020.
43.1.3 The respondent is
ordered to reinstate the second appellant with effect from 13
December 2013.
43.1.4 The respondent is
ordered to pay the second appellant’s costs in the application.
43.2
The respondent is ordered to pay the second appellant’s costs
in the appeal.
_________________
JR Murphy
Acting
Judge of Appeal
I agree
_________________
P Coppin
Judge
of Appeal
I agree
____________________
F Kathree-Setlioane
Acting
Judge of Appeal
APPEARANCES:
FOR THE FIRST APPELLANT:
Adv A Redding
SC
Instructed by LDA
Attorneys
FOR THE SECOND APPELLANT:
Attorney C
Scholtz
FOR THE RESPONDENT:
Adv MJ van As
Instructed
by Solomon Holmes Attorneys
[1]
Act
66 of 1995.
[2]
Administrator,
Orange Free State & others v Mokopanele & others
[1990] ZASCA 69
;
1990 (3) SA 780
(A);
MM
& G Engineering (Pty) Ltd v NUMSA & others
(2005) 26 ILJ 1326 (LAC); and J Grogan
Workplace
Law
(10 ed) 405-406.
[3]
SA
Workers Union (in liquidation) v De Klerk NO
(1992) 13 ILJ 1123 (A).
[4]
Maluti
Transport Corporation Ltd v MRTAWU & others
(1999) 20 ILJ 2531 (LAC).