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[2021] ZALAC 3
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Pailpac (Pty) Ltd v De Beer N.O and Others (DA 12/2018) [2021] ZALAC 3; (2021) 42 ILJ 1038 (LAC); [2021] 6 BLLR 570 (LAC) (1 March 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: DA 12/2018
In the matter between:
PAILPAC
(PTY)
LTD
Appellant
and
LISA
WILLIAMS DE BEER N.O
First Respondent
METAL AND ENGINEERING
INDUSTRIES
BARGAINING
COUNCIL
Second Respondent
THE NATIONAL UNION OF
METAL
WORKERS OF SOUTH
AFRICA
Third Respondent
MDUDUZI SHEZI
Fourth Respondent
MBUSO SHABANE
Fifth Respondent
MIRRIAM NGALIMANE
Sixth Respondent
KHULEKANI MSANE
Seventh Respondent
LINDA
MASUKU
Eight Respondent
THOLISILE
NGCOBO
Ninth Respondent
MTHANDENI
MTOLO
Tenth Respondent
BONKE
TOLBADI
Eleventh Respondent
Heard:
10 November 2020
Delivered:
01 March2021
Summary:
Strike—Protected
strike—Dismissal for misconduct during strike—Employees
carrying sticks during protected strike—Revised
disciplinary
code and picketing policy prohibiting carrying, brandishing or
wielding dangerous weapons—Employees dismissed
for brandishing
or wielding dangerous weapons, but commissioner finding that
employees not aware of the rules—Valid and reasonable
rule of
which employees were aware or could reasonably be expected to be
aware—On appeal, dismissal found to be fair.
Coram: Phatsoane ADJP,
Kathree Setiloane AJA and Savage AJA
JUDGMENT
KATHREE-SETILOANE AJA
[1]
This appeal is against the judgment and
order of the Labour Court (Gush J) dismissing the review
against the arbitration award
of the first respondent (“arbitrator”)
made under the auspices of the second respondent, the Metal and
Engineering
Industries Bargaining Council (“Bargaining
Council”), in which the arbitrator,
inter
alia
, found that the dismissal of the
fourth to eleventh respondents (“dismissed employees) was
substantively unfair and
reinstated them. The dismissed employees are
members of the third respondent, the National Union of Metal Workers
of South Africa
(“NUMSA”). The appeal is with leave of
this Court.
Background
[2]
NUMSA embarked on a national strike in the metal
and engineering industry in July 2014. The dismissed employees, who
were employed
by the appellant, Pailpac (Pty) Ltd (“Pailpac”),
at its factory in New Germany, KwaZulu Natal, participated in
the
strike. They were dismissed for misconduct relating to the
carrying of weapons such as sticks, PVC rods, sjamboks and
golf clubs
during the strike. Pailpac charged them, in terms of its revised
Breaches of Discipline document (“revised
BOD rules”),
for “brandishing and wielding weapons during a strike”.
The dismissed employees were found
guilty as charged at individual
disciplinary hearings and dismissal was recommended. Pailpac
subsequently dismissed all of
them.
[3]
The dismissed employees referred an unfair dismissal dispute to the
Bargaining Council for arbitration. The arbitrator found the
dismissals to be substantively unfair and reinstated the dismissed
employees retrospectively to the date of their dismissal. She
reasoned as follows:
‘
I
do not believe that in the current circumstances that it will be fair
to hold the [dismissed employees] bound to a rule that they
did not
know existed, or which was not effectively communicated to them.’
[4]
Pailpac
challenged this finding on review. It argued, relying on the
constitutional standard of review in
Sidumo
[1]
that the arbitrator’s award is reviewable as the outcome
reached was not one that could reasonably have been reached on the
evidence and other material properly before the arbitrator. The
Labour Court dismissed the review application with no order
as to
costs. In doing so, it reasoned as follows:
‘
[23]
In this matter, it is clear that the [arbitrator] gave the parties a
full opportunity to have their
say, identified the dispute she was
required to arbitrate, understood the nature of the dispute and dealt
with the substantial
merits of the dispute.
…
[28]
In her award, the [arbitrator] clearly analyses the evidence
surrounding the [dismissed employees]
averment that they were not
aware of the rules and whether they reasonably should have been
expected to have been aware of them.
…
[31]
Bearing in mind that this is a review of the [arbitrator’s]
award and not an appeal, I
am not persuaded that the reasons for the
conclusion of the arbitrator that the [dismissed employees] could not
reasonably have
been expected to have known the rule is a decision
that another arbitrator could not have reasonably reached… .
[32]
The [arbitrator has clearly set out the reasons for concluding that
the [dismissed employees]
could not reasonably have been expected to
know the rule despite [Pailpac’s] evidence. The decision
clearly falls within
a band of reasonable conclusions. It cannot be
said that the [arbitrator’s] conclusion is one to which another
arbitrator
could not reasonably have arrived.’
[5]
It is these findings which are appealed against.
Analysis
[6]
The primary issue for determination is whether the employees
knew or could reasonably have been expected to be aware of the
rule.
[7]
Pailpac’s central argument is that the evidence shows that
the
dismissed employees had knowledge of the rule preventing them from,
effectively, carrying sticks, sjamboks and golf clubs in
a hostile
fashion during the strike, but the arbitrator ignored this evidence
which was material to the outcome of the dispute.
It furthermore
argues that the arbitrator ignored material contradictions in the
version of dismissed employees regarding knowledge
of the rules and
sight of the area where the rules were published, yet the Labour
Court simply rubberstamped the arbitrator’s
findings and did
not interrogate the evidence or the material contradictions in the
dismissed employees’ version. It contends
that once it was
established that the dismissed employees had knowledge of the rule or
could reasonably have been expected to have
knowledge of it, there
was no genuine dispute as to its breach; hence their individual
dismissals were justified.
[8]
The dismissed employees contend, to the contrary, that that there
was
no acceptable evidence before the arbitrator that any of the
dismissed employees had actual knowledge of the rule prohibiting
the
carrying of weapons and the sanction for contravening it. In
development of this argument, they contend that Pailpac’s
attitude towards its responsibility to ensure that its employees knew
and understood the import of rules which could result in
their
dismissal was grossly inadequate, both generally in regard to the
revised BOD rules and, specifically, in regard to its Picketing
Policy and Procedure (“picketing policy”) which did not,
in any event, inform employees that contravention was a dismissible
offence). In the circumstances, they argue that it cannot be
concluded that the dismissed employees either knew or should have
known of the rule and sanction, hence the Labour Court did not err in
concluding that the arbitrator’s award is not reviewable.
Knowledge
of the Rule
[9]
Pailpac relied on two sets of rules which were in place on or after
2
July 2014, namely:
(a)
Rule 58 of the “revised
BOD rule” which prohibits “brandishing or wielding
of
dangerous weapons”;
[2]
and
(b)
Clause 14 of the picketing policy which provides:
‘
The
picketers shall at all times conduct themselves in a peaceful manner.
They may carry placards, chant slogans, sing and dance,
but they
may not physically prevent members of the public, other employees or
service providers from entering or leaving the premises,
nor may they
disrupt the normal functioning of the company or engage in unlawful
or violent actions.
No weapons of ANY kind are to be
carried or wielded by the picketers.’
[10]
Neither the validity nor Pailpac’s entitlement to make these
rules is disputed.
[11]
The arbitrator found that the revised BOD rule was affixed to the
notice board at
the entrance to the factory during 2014. She,
nevertheless, held that simply affixing the rule to a notice board
without at least
drawing it to the attention of the employees was
inadequate.
[12]
The evidence established, consistent with the arbitrator’s
finding, that in
February 2014, the revised BOD rules were displayed
on the notice board at the main entrance to the factory, close to the
clocking
station. Ms B Symonds, Pailpac’s Human Resources
Manager, confirmed that the revised BOD rules were put up on the
notice
board at the entrance of the factory by Mr Bongani Mkhize (“Mr
Mkhize”), the HR Business partner, on her instructions.
She
said that it was standard practice for the company to use the notice
board for such communication and that the employees were
well aware
of their obligation to read the communications posted there as they
applied to them.
[13]
Although the dismissed employees denied that the revised BOD rules
were posted on
the notice board at the entrance to the factory, their
version, as put to Pailpac’s witnesses, was that they did read
the
information on the notice board which included the details of
doctors they could not consult, job vacancies, invitations, holiday
work rosters etc.
[14]
Having considered the evidence on this aspect, I am of the view that
the arbitrator
correctly rejected the dismissed employees’
version that the revised BOD rules were not placed on the notice
board. That
finding stands as there is no cross-appeal against it. It
is, however, the arbitrator’s related finding that the
employees
were not given sufficient notice of the rule that is open
to question because it is inconsistent with the proved facts which
indicate
that: (a) the employees (including the dismissed employees)
were notified of the revised BOD rules as they were placed on the
notice
board at the entrance to the factory; (b) the dismissed
employees regularly read notices and other announcements posted on
that
particular notice board; and (c) the employees (including the
dismissed employees) were fully aware of their obligation to read
the
notices and other communications posted on the board.
[15]
Taking into consideration these proved facts, it is probable that the
dismissed employees
were aware of the rule or could reasonably have
been expected to be aware of the rule. Had the arbitrator engaged
fully with the
evidence and evaluated it against the probabilities,
she would have arrived at this conclusion. Accordingly, her finding
on this
aspect is not one that could reasonably have been reached on
the evidence before her.
[16]
In spite of these misdirections which were material to the outcome of
the dispute,
the Labour Court simply paid deference to the
arbitrator’s findings. Crucially, in respect of the revised BOD
rules, the
Labour Court failed to have regard to the evidence that
was placed before the arbitrator. Had it done so, it would have
appreciated
that what was shown was that Pailpac had taken reasonable
steps to draw the revised BOD rules to the attention of its
employees,
and that the dismissed employees were either aware of the
rule or could reasonably have been expected to be aware of the rule.
[17]
Concerning the rule in the picketing policy, Mr Mkhize testified
that, on 2 July
2014, he had personally affixed the policy to the
wall adjacent to gates 1,6, 8 and 10, respectively. These gates
were the
primary access areas for the employees during the strike.
The arbitrator found, correctly so, that Mr Mkhize had affixed the
picketing
policy to the wall adjacent to gates 1,6, 8 and 10, and
that some of the employees who participated in the strike were able
to read it. She also held that clause 14 of the picketing policy
which prohibited the carrying or wielding of weapons of any kind,
became a rule once the picketing policy was put up on the wall
adjacent to gates 1,6, 8 and 10 on 2 July 2014, despite the fact
that
NUMSA had not signed the picketing policy.
[18]
The arbitrator, however, concluded that no evidence was led at the
arbitration proceedings
demonstrating that the dismissed employees
were amongst those who were able to read the picketing policy.
Accordingly, she found
that the dismissed employees could not
reasonably have been expected to be aware of the picketing rule.
[19]
There is an irreconcilable tension in the version of the dismissed
employees on the
question of their knowledge of the picketing rule.
Notably, during cross-examination, counsel for the dismissed
employees had repeatedly
put it to Pailpac’s witnesses that the
dismissed employees would testify that what was posted on the wall,
next to the gates,
was a copy of an SMS message calling on all
employees to return to work. In other words, what their version (as
put to Pailpac’s
witnesses) amounts to, is that they were able
to approach the wall (next to gates 1,6, 8 and 10) and read the
purported SMS message
affixed thereto.
[20]
Their actual testimony at the arbitration hearing was, however,
materially
different. Each of them testified in similar terms
(suggestive of being rehearsed) that the security guards present
prevented them
from approaching the gates where the picketing policy
was displayed. Given the inconsistency between their version as
put
to Pailpac’s witnesses and their actual testimony, a
reasonable decision-maker in the position of the arbitrator would
have rejected the evidence of the dismissed employees as unreliable.
[21]
If other striking employees had managed to approach the wall (next to
the gates)
to read the picketing rule, then the dismissed employees
should have been able to do so as well. The evidence reveals that
they
had, in fact, approached the wall to read the SMS message,
purportedly posted there, calling on all striking employees to return
to work. Surely, if the dismissed workers were able to
read the SMS message on the wall then, as a matter of probability,
they would have also been able to read the rule in the picketing
policy prohibiting the carrying or wielding of weapons of any
kind
during a picket. Thus, on the probabilities, the dismissed employees
would have been aware of the rule or could reasonably
have been
expected to be aware of the rule. The arbitrator’s
finding to the contrary was, as such, not one that could
reasonably
have been reached on the evidence before her.
[22]
In so far as the arbitrator held that there was no positive duty on
the dismissed
employees to approach the wall, that is not the
test. The correct test is whether, on the evidence, the dismissed
employees
were aware of the rule or could reasonably have been
expected to be aware of the rule. The Labour Court not only erred in
endorsing
the application of the wrong test by the arbitrator, but it
also failed to consider the contradictory versions of the dismissed
employees as put to Pailpac’s witnesses and their version as
emerged in evidence.
Contravention
of the rules
[23]
As concerning the contravention of the rules, the Labour Court
endorsed the arbitrator’s
finding that because the dismissed
employees had no knowledge of the rule, the question of breach does
not arise.
[24]
It is not in dispute that each of the dismissed employees was in
possession of items
that are classified as weapons, namely sticks,
PVC rods, sjamboks and golf clubs. They carried, wielded or
brandished these items
during the picket in contravention of the
picketing rule and the revised BOD rule.
[25]
The
arbitrator stated that any item that is improperly used could
constitute a weapon, including a stick, PVC rod, golf club and
sjambok. She, however, concluded that there was little evidence that
the dismissed employees were “brandishing or wielding”
those weapons, as specifically referenced in the charge sheet. In her
view, they were merely carrying these weapons. Rather
than
construing these words in context, the arbitrator adopted an overly
technical and formulaic approach to their interpretation
- as well as
to the framing of the charge - which our courts have consistently
cautioned against.
[3]
[26]
Construed
in context, the words “wielding or brandishing” would
necessarily include the carrying or displaying of weapons
in a manner
that is “aimed at sending out a message that [is], at the very
least threatening”.
[4]
This meaning is consistent with the purpose of both the revised BOD
rule and the picketing rule which is to prevent harm and intimidation
to non-striking employees and protect company property. The
arbitrator, however, excluded the application of the rule in the
picketing
policy because the charge sheet used the terms “brandishing
or wielding” as opposed to “carrying”. A
reasonable arbitrator in the position of an arbitrator would not have
done so.
[27]
There is ample evidence on the record demonstrating that the
dismissed employees
were “carrying” or “wielding”
or “brandishing” weapons in contravention of both
the revised
BOD rule as well as the picketing rule. The photographic
evidence that forms part of the record depicts the fifth, ninth and
eleventh
respondents carrying their sticks above their heads in a
manner that could well be construed as “wielding or
brandishing”.
In fact, the seventh respondent pleaded guilty to
the charge of “brandishing or wielding” a dangerous
weapon during
the strike. His dismissal ought to have been confirmed,
yet the arbitrator omitted to mention him in the arbitration
award.
It is, furthermore, not disputed that each of the remaining
dismissed employees was clearly carrying sticks, golf clubs and PVC
rods in clear breach of the picketing rule. The Labour Court
consequently erred in failing to deal with the question of whether
the dismissed employees were in breach of the rules when the evidence
established that they were.
Sanction
[28]
Notwithstanding that the dismissed employees were in possession of
prohibited weapons
as contemplated in the rule, the arbitrator found
that the sanction of dismissal was inappropriate because the
dismissed employees
desisted from carrying them once NUMSA signed the
picketing policy on 4 July 2014. The arbitrator’s finding on
this aspect
betrays the fact that, by this point, the dismissed
employees were already in breach of the rules.
[29]
The visible carrying or wielding of prohibited weapons at the picket
was clearly
aimed at creating or fostering a hostile and intimidatory
atmosphere. Indeed, the evidence reveals that non-striking employees
were intimidated by the conduct of the strikers who carried or
wielded such weapons and had to be smuggled into work. Even more
concerning is that an employee, who attempted to go to work, was
beaten with sticks by striking employees. The situation was so
grave
that Pailpac had to engage the services of a private security
company. Even these security officers became “rattled”
by
the conduct of the strikers. A truck driver was forced to exit
Pailpac’s premises under armed escort.
[30]
As acknowledged by the arbitrator in her award, any reasonable
employee would know
that bringing a dangerous weapon to work would
not be tolerated. Thus, to do so in flagrant disregard of a clear
workplace rule
which prohibits such conduct during a picket or
strike, and expressly warns that the consequences of the breach is
the sanction
of dismissal. Unlike the revised BOD rule, the picketing
policy does not expressly state this. It does, however, state that
“where
an employee’s actions during a picket are in
breach of the organisation’s Discipline Code [otherwise known
as the Breaches
of Discipline Document]”, the employer may take
disciplinary action. This effectively means that the dismissed
employees
knew or could reasonably have been expected to know that a
breach of the rule could result in their dismissal. Accordingly, the
contention advanced on behalf of the dismissed employees that the
picketing policy did not inform employees that contravention
was a
dismissible offence is unsustainable on the evidence.
[31]
Viewed objectively, the breach of the rule by the dismissed employees
coupled with
the ensuing harm to, and intimidation of, non-striking
employees rendered their continued employment intolerable and made
dismissal
an appropriate sanction. There was, markedly, no challenge
to the evidence demonstrating that their continued employment with
Pailpac
would be intolerable. The sanction of dismissal was fair and
appropriate in the circumstances. Accordingly, the arbitrator’s
finding that the sanction of dismissal was substantively unfair is
reviewable, as it is not a decision that a reasonable decision-maker,
in the position of the arbitrator, could have arrived at on the
material before her. The Labour Court consequently erred in failing
to set aside the arbitration award on review.
Costs
[32]
NUMSA represented the dismissed employees in both the appeal and the
review application.
Taking this factor into account, I consider it
fair and just to order costs against them in both the review
application and the
appeal. Pailpac seeks the costs of two counsel.
Given the nature and complexity of the issues involved, ordering the
costs of two
counsel is unmerited.
Order
[33]
In the result, I make the following order:
1
The appeal is upheld with costs.
2
The arbitration award of the first respondent, dated 19
June 2015, is
reviewed and set aside and substituted with the following award:
“
(a)
The review succeeds with costs.
(b) The dismissal of the
fourth to eleventh respondents is substantively fair.”
__________________________
F
Kathree-Setiloane AJA
Phatshoane
ADJP and Savage AJA concur:
APPEARANCES
FOR THE APPELLANT:
Mr
BA Acker SC with Mr AJ Boulle
Instructed
by Barker’s Attorneys
FOR THE 3
RD
TO
11
TH
RESPONDENTS:
Mr M Pillemer SC
Instructed
by Brett Purdon Attorneys
[1]
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
2008
(2) SA 24
(CC) para 267-8 (“
Sidumo”
).
[2]
Rule
58 of the revised BOD document.
[3]
Pailprint
(Pty) Ltd v Lyster N.O & others
(2019)
40
ILJ
2047 (LAC);
[2019] 10 BLLR 1139
(LAC) at para 18 (“
Pailprint”
).
[4]
Pailprint
at
para 18.