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[2021] ZALAC 13
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NUMSA obo Dhludhlu and Others v Marley Pipe Systems SA (Pty) Ltd (JA33/2020) [2021] ZALAC 13; (2021) 42 ILJ 1924 (LAC); [2021] 9 BLLR 894 (LAC) (23 June 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA33/2020
In
the matter between:
NUMSA
obo AUBREY DHLUDHLU AND 147 OTHERS
Appellants
and
MARLEY
PIPE SYSTEMS SA (Pty) LTD
Respondent
Heard:
18 May
2021
Delivered:
23
June 2021
Coram:
Waglay JP, Savage and Molefe AJJA
Judgment
SAVAGE
AJA
Introduction
[1]
This appeal,
with the leave of the Labour Court, concerns
the
dismissal of 1
48
employees for the serious assault of a manager employed by the
respondent, Marley Pipe Systems SA (Pty) Ltd, during the course
of an
unprotected strike at the respondent’s premises on 14 July
2017. The appeal is pursued by the National Union of Metalworkers
(‘NUMSA’) on behalf of only 41 of the dismissed
employees.
[2]
At the outset
of the appeal, with no opposition raised by the respondent, the late
filing of the notice of appeal was condoned.
In addition, the
respondent indicated that it had abandoned the compensation order
granted in its favour against NUMSA. There was
no appeal raised
against the order granted against the remaining appellants.
[3]
The respondent
undertakes business in the plastics industry and f
alls
under the jurisdiction of the Metal and Engineering Industries
Bargaining Council (‘MEIBC’). It is obliged to bargain
at
sectoral level through the Plastics Negotiating Forum (‘the
PNF’). Employers to the PNF may grant increases
in excess
of the minimum prescribed by sectoral agreement.
During 2017, the respondent proposed to increase wages by 7.5% on
condition that if the MEIBC negotiations resulted in a higher
percentage increase the higher increase would be paid. Dissatisfied
with the respondent’s stance on wages, on 5 July 2017
the
employees engaged in a work stoppage.
[4]
A
wage agreement, to which NUMSA was not party, was finalised in the
PNF on 13 July 2017.
The
same day the respondent met with NUMSA shop stewards and communicated
with employees regarding wages. The following day, on
14 July 2017,
those employees who were NUMSA members (‘the employees’)
engaged in an unprotected strike from 07h00.
The striking employees
moved together from their workstations with placards and written
demands which included the removal of Mr
Ferdi Steffens, the
respondent’s head of human resources.
[5]
Mr Steffens
exited his office to engage with the employees. He was surrounded by
the employees and seriously assaulted. He was pushed
out of a glass
window, had rocks thrown at him and was punched and kicked while he
lay on the ground. He sustained a number of
blows to his body and
head with injuries to his face, his right arm and body. After two
other employees who were not part of the
group on strike came to his
aid, Mr Steffens left the premises to obtain medical attention. The
respondent summoned the police.
The employees left the premises
around 12h00 having been issued with an ultimatum by the respondent
to do so. The same day the
respondent obtained an order from the
Labour Court interdicting the strike and prohibiting acts of
violence, intimidation and harassment.
[6]
Thereafter the
respondent took disciplinary action against the 148 employees, all of
whom were dismissed following a disciplinary
hearing chaired by an
independent chairperson. The employees were found to have
participated in the unprotected strike on 14 July
2017 and to have
acted with a common purpose in the assault of Mr Steffens. The
identity of employees who participated in the misconduct
was
determined from the respondent’s photographic and video
evidence of events on the day; from clock cards used in the
respondent’s payroll system which recorded the names of
employees who had arrived and remained at work; from job cards used
at workstations; and the evidence of the respondent’s
witnesses. In addition, the employees were given the opportunity to
provide information to the respondent via dropbox or whatsapp to
indicate that they had not participated in the misconduct. Those
employees who gave an acceptable explanation did not face
disciplinary action.
[7]
Twelve
employees were identified as having participated directly in the
assault of Mr Steffens. The remaining employees were found
by the
chairperson to have acted with common purpose on the basis that they
had associated themselves with the assault through
their presence on
the scene; encouraged those involved in the assault; failed to come
to the assistance of Mr Steffens; “rejoiced”
in the
assault; and held placards and demanded in writing that Mr Steffens
be removed. In addition, the chairperson took account
of the evidence
of the employees’ own witness that all employees regarded
themselves as leaders in respect of events on the
day. Having been
found guilty of misconduct, the chairperson recommended that the
employees be summarily dismissed and, on 14 August
2017, the
employees were dismissed by the respondent.
[8]
Aggrieved with
their dismissals, the employees, represented by NUMSA, referred an
unfair dismissal dispute to the
MEIBC
and, after conciliation failed,
a claim of unfair dismissal to the Labour Court. The case pleaded was
that no unprotected strike or assault took place and that
the
dismissal of the employees was therefore unfair. The respondent
opposed the claim and filed
a counterclaim in which it sought just and equitable compensation, as
contemplated in section 68(1)
(b)
of
the Labour Relations Act
66 of 1995
(‘the LRA’) for losses incurred that were attributable to
the strike. In the alternative, the respondent sought damages
in
terms of section 77 of the Basic Conditions of Employment Act
75
of 1997
(‘the
BCEA’).
[9]
In
the Labour Court, the evidence for the respondent was that the
employees, all of whom were NUMSA members, had embarked on the
unprotected strike, leaving their workstations and gathering first in
the canteen where they wanted Mr Steffens to speak to them.
When he
did not arrive, the employees moved as a group with placards and
written demands, including that Mr Steffens “must
go”,
towards the respondent’s main gate and administration building.
The employees indicated that they were all in
charge and there were.
An ultimatum issued to employees was ignored. Mr Steffens approached
them to seek their return to work.
As he did so he was attacked,
thrown to the ground repeatedly and pushed through an office window.
In evidence he said he tried
to protect his head, realising that if
he did not get out, he was “going to die”. He was hit a
number of times on his
body by rocks, shoes and fists. Ms Rosaline
Crowie heard breaking glass and Mr Steffens being kicked by striking
employees, none
of whom came to his aid. Following his assault, Mr
Steffens left the premises and obtained medical treatment at
hospital. Video
footage of events showed striking employees
celebrating and chanting after the assault was over. The police
arrived on the scene
shortly thereafter. By 11h35 the employees
started dispersing.
[10]
The
evidence of Mr Klaas Ledwaba, the appellants’ only witness, was
that employees were unhappy with issues related to wages
and wanted
Mr Steffens to explain issues but he did not do so. Mr Ledwaba
accepted that the employees had participated in an unprotected
strike, but denied that they had marched to Mr Steffens’ office
or that Mr Steffens had been assaulted. While they waited
at the
respondent’s main gate, according to Mr Ledwaba, Mr Steffens
left the premises.
Judgment
of the Labour Court
[11]
Only the
substantive fairness of the dismissals was in issue before the Labour
Court. The Labour Court (Phehane AJ) accepted the
evidence
of the respondent’s witnesses as both credible and reliable,
consistent with the video footage and photographic evidence
available. Although the appellants’ only witness, Mr Ledwaba,
accepted that the strike was unprotected, the Court rejected
as
improbable his denial that an assault had occurred.
[12]
It
was
found
that the employees who
were
identified as being on site had
acted
with common purpose in associating themselves with events on the day
.
With reference to the decision of the Constitutional Court in
National
Union of Metalworkers of South Africa obo Nganezi and Others v
Dunlop
Mixing and Technical Services (Pty) Limited and Others (Dunlop)
[1]
it
was noted that it was unnecessary to place each employee on the scene
to prove common purpose which can be established by inferential
reasoning having regard to the conduct of the workers before, during
and after the incident of violence.
[2]
The evidence showed that the employees had taken part in the
unprotected strike, had assembled in the canteen, marched on the
respondent’s premises carrying placards and demanded the
removal of Mr Steffens. The Court found that the employees had acted
with common purpose in the assault of Mr Steffens in what was a “
mob
attack
”.
The employees failed to use the opportunities provided by the
respondent to distance themselves from the events on the
day and
their dismissal was found to be fair. This included
Mr
Sonnyboy Mokoena, a NUMSA shop steward, who entered the respondent’s
premises after 09h00 on 14 July 2017
,
following the assault on Mr Steffens. Since the video footage showed
him to be part of the group of strike leaders and he failed
to
distance himself from the events that had occurred, the Court found
Mr Mokoena
to
have acted with common purpose in the assault of Mr Steffens.
The
respondent’s counterclaim for damages under the LRA was upheld,
with the appellants ordered, jointly and severally, to
pay just and
equitable compensation in the amount of R829 835.00 to the
respondent.
On
appeal
[13]
There
was no dispute on appeal that the strike embarked upon by the
employees had been unprotected. Also undisputed was that 12
employees
had been directly identified as having participated in the assault of
Mr Steffens and that a further 95 employees had
been identified via
photographs and video evidence as having been on the scene and
therefore associated with the assault. In relation
to the remaining
41 employees, in respect of whom the appeal is pursued, it was
contended with reference to
S
v Mgedezi
[3]
and other cases that common purpose in the assault had not been
proved. This was so since there was no evidence that the 41
appellants
had been on the scene of the assault, that they had been
aware of the assault, had intended to make common cause with it, or
that
they had performed an act of association with it. In relation to
Mr Mokoena it was submitted that his dismissal was unfair in that
he
had arrived on the scene after the assault. Furthermore, issue was
taken with the fairness of the dismissal of three employees,
Ms
Hopolang Khumalo, Mr Pomolo Mohale and Mr Sandisile Msibi, given the
evidence of the respondent’s witness, Ms Rosaline
Crowie, that
they were not involved or had not been sufficiently identified in
relation to the misconduct.
[14]
As to sanction
the appellants contended that since the respondent had previously not
dismissed employees who had embarked on similar
unprotected strike
action and the 41 employees had not been shown to have acted with
common purpose in the assault, the summary
dismissal of the 41
employees was unfair.
[15]
The respondent
persisted that the finding of common purpose was sustainable against
all 41 employees. This was so since the appellants’
pleaded
case was proved to be untrue and inconsistency in sanction had not
been in issue until the appeal. The respondent relied
on the fact
that the 41 employees had been placed on the scene of the assault
through clocking records, were absent from their
workstations and
video footage showed the entire crowd moving to the offices where the
assault took place. Apart from Mr Ledwaba,
none of the employees
testified or made use of the dropbox or whatsapp opportunities
provided to explain their conduct or whereabouts.
Furthermore, Ms
Crowie’s evidence regarding the involvement of particular
appellants amounted to opinion evidence which had
to be assessed
against the conspectus of other evidence presented. For these
reasons, it was contended that the Labour Court did
not err in
finding that the 41 employees had acted with common purpose, that
their dismissal was fair and that the appeal fell
to be dismissed.
Evaluation
[16]
The
difficulties inherent in determining the individual culpability of an
employee in the context of collective misconduct were
considered by
the Constitutional Court in
Dunlop.
[4]
In that matter, the Court stated that:
‘
[46]
Evidence,
direct or circumstantial, that individual employees in some form
associated themselves with the violence before it commenced,
or even
after it ended, may be sufficient to establish complicity in the
misconduct. Presence at the scene will not be required,
but
prior or subsequent knowledge of the violence and the necessary
intention in relation thereto will still be required…’.
[17]
The
Court recognised that employees may participate in and associate with
misconduct in many ways, both direct and indirect,
[5]
while cautioning that “
no
one should be held accountable where no evidence can be adduced to
substantiate the claim against individuals, solely on the
basis of
being part of the group
.”
[6]
[18]
In
Food
& Allied Workers Union & others v Amalgamated Beverage
Industries Ltd,
[7]
which predated the current LRA, more than 100 employees emerged from
a room in which a driver was left seriously injured after
an assault.
In that matter, the Court, relying on
R
v Blom
[8]
found that all the evidence presented was consistent with the
inference that all of the employees had been part of the group which
perpetrated the assault. This was so although on an abstract
appreciation of the evidence this inference was not the most probable
in that no alternative inferences had been advanced by the employees
which had a foundation in the evidence. As a result, the Court
had to
select that inference which was the more plausible or natural one
from those that present themselves.
[9]
It was found that the inference drawn that all employees were
involved became the most probable only because none of the
individuals
concerned came forward, either at the individual
disciplinary hearings, or in the Industrial Court, to absolve
themselves, a failure
which was weighed in the balance against them.
With no evidence that it was only a majority of the appellants who
were present,
the Court found that the evidence was equally
consistent with all employees having been present at the scene.
[19]
In
the current matter reliance was placed by the Labour Court on the
doctrine of common purpose to find all of the appellant employees
responsible for the misconduct. All of the employees had embarked on
an unprotected strike. There was direct evidence which proved
that 12
employees had engaged in the assault. The remaining 95 employees were
identified as having been in the group of strikers
and to have
directly associated with the misconduct. The 41 remaining employees,
in respect of whom the appeal is pursued, were
not identified through
direct evidence as having been part of the group. It follows that for
the inference to be drawn that they
had associated themselves with
the assault including before it commenced, or after it ended, whether
through direct participation
or association, such an inference must
be consistent with all the proved facts.
[10]
[20]
The proven
facts were that all employees had reported for duty, left their
workstations and embarked on the strike. All employees,
save for Mr
Mokoena, were on the respondent’s premises and away from their
workstations at the time of the assault. The striking
employees, all
of whom were NUMSA members, moved together towards Mr Steffens’
office, holding placards and presenting written
demands which sought
his removal. The employees sought out Mr Steffens and remained
present on the scene during the course of and
after his assault, with
none of the striking employees coming to his aid. Apart from Mr
Ledwaba no employee took advantage of the
opportunities availed, both
prior to and during the disciplinary hearing or before the Labour
Court hearing, to distance themselves
from the events of the day.
[21]
In
its approach to the circumstantial evidence available to it, it is
the task of the court to select that inference which is the
more
plausible or natural one from those that present themselves.
[11]
In having regard to the possible inferences available to be drawn, it
is noteworthy that, as in
FAWU
,
no alternative inferences founded in the evidence were advanced by
the employees. There was no evidence that it was only 107 of
the
appellants, in respect of whom the appeal is no longer pursued, who
were present on the scene of the assault. The undisputed
evidence was
that all the appellant employees had left their workstations and
participated in the strike. The employees wanted
to speak to Mr
Steffens in the canteen and, when he did not arrive, they moved to
the main gate and towards his office with demands
that included his
removal. There was no evidence that any of the 148 appellant
employees distanced him or herself from the actions
of the group and
the clear evidence was that the assault on Mr Steffens was
perpetrated by members of the group of striking employees.
None of
the employees intervened to stop the assault and assist Mr Steffens,
nor did they disassociate in any way from the assault
before, during
or after it. In fact, the undisputed evidence was that the
striking employees celebrated the assault after
the fact. It followed
in the circumstances, having regard to the proven facts, that the
inference drawn that all employees were
involved in or associated
themselves with the assault became the most probable and plausible.
[22]
In
Association
of Mineworkers and Construction and Others v KPMM Road and Earthworks
(Pty) Ltd
[12]
this Court
took
issue with the failure of the Labour Court to have careful
regard to the established principles of common purpose in the
context
of collective misconduct. In
Makhubela
v S,
[13]
the
Constitutional Court, relying on
S
v
Mgedezi,
[14]
set out the requirements necessary to prove common purpose, namely
that the individual must have been shown to have been present
at the
scene where the assault occurred; to have been aware of the assault;
have intended to make common cause with those who perpetrated
the
assault; have manifested some common purpose with the perpetrators of
the assault by performing an act of association with
the conduct of
the others; and have possessed the requisite
mens
rea
.
These requirements were also considered in
S
v Thebu
s;
[15]
and in
Dewnath v
S
it
was held that:
“
The
most critical requirement of active association is to curb too wide a
liability. Current jurisprudence, premised on a proper
application
of
S
v Mgedezi
,
makes it clear that (i) there must be a close proximity in fact
between the conduct considered to be active association and the
result; and (ii) such active association must be significant and not
a limited participation removed from the actual execution
of the
crime.”
[16]
[23]
In
Dunlop,
the Court stated that association with the misconduct before it
commenced or after it ended may be sufficient to establish complicity
in the workplace context, with it not required that an employee be
present at the scene. However, prior or subsequent knowledge
of the
misconduct and the necessary intention in relation to it is still
required.
[17]
This moves the
requirements to prove common purpose in the workplace outside of the
strict requirements set out in the case law
from
Mgedezi
.
It allows an employee to be held to account for collective misconduct
where the employee associated with the actions of the group
before or
after the misconduct, even if not present on the scene; where the
employee had prior or subsequent knowledge of the misconduct;
and he
or she held the necessary intention in relation to it.
[24]
From the
evidence before the Labour Court, it is clear that the appellant
employees associated with the actions of the group before,
during or
after the misconduct. This included Mr Mokoena who, although he
arrived on the scene after the assault, through his conduct
associated directly with the actions of the group. It also included
the employees who, in Ms Crowie’s opinion, she saw to
be
bystanders. There was no dispute that these employees were present at
the scene and associated with the events of the day. They
too took no
steps to distance themselves from the misconduct either at the time
of, during or after the assault. Instead, they
persisted with the
denial, both in their pleaded case and the evidence of Mr Ledwaba,
that any assault had occurred and refused
the opportunity to explain
their own conduct in relation to it.
[25]
In
S
v Thebus,
it was made clear that a person “
…
must
have intended that criminal result or must have foreseen the
possibility of the criminal result ensuing and nonetheless actively
associated himself or herself reckless as to whether the result was
to ensue
.”
[18]
Within a labour law context the requisite intention exists where it
is proved that an employee intended that misconduct would result
or
must have foreseen the possibility that it would occur and yet,
despite this, actively associated himself or herself reckless
as to
whether such misconduct would ensue. The 41 appellant employees were
proved to have held such intent. In such circumstances,
the Labour
Court cannot be faulted for finding that the appellant employees
committed the misconduct for which they had been dismissed.
Given the
seriousness of such misconduct, dismissal was an appropriate
sanction. The appellants conceded as much in relation to
107 of the
appellants at the outset of the appeal.
[26]
For these
reasons,
the
appeal cannot succeed.
There
is no reason in law or fairness why an order of costs should be made
in this matter, nor did the respondent seek such an order.
Order
[27]
For these
reasons, the following order is made:
1.
The appeal is
dismissed.
__________________
Savage
AJA
Waglay
JP and Molefe AJA agree.
APPEARANCES
:
FOR
APPELLANTS:
H van Nieuwenhuizen and E Sithole
Instructed
by S Mabaso Inc.
FOR
RESPONDENT:
F
A Boda SC
Instructed
by Cliffe Dekker Hofmeyr Inc.
[1]
[2019]
ZACC 25; 2019 (8) BCLR 966 (CC); (2019) 40 ILJ 1957 (CC); [2019] 9
BLLR 865 (CC); 2019 (5) SA 354 (CC);
(2019)
40 ILJ 1957 (CC).
[2]
Id.
at para 46.
[3]
S
v Mgedezi and Others
[1988] ZASCA 135; [1989] 2 All SA 13 (A).
[4]
Dunlop
above n 1.
[5]
Id.
at para 75.
[6]
Id.
at para 48 quoting
Maqutu
“Collective Misconduct in the Workplace: Is ‘Team
Misconduct’ ‘Collective Guilt’ in Disguise?”
(2014) 25
Stell
LR
566
at
568.
See
also
Association
of Mineworkers and Construction Union v KPMM Road and Earthworks
(Pty) Ltd
[2018]
ZALAC 28
; (2019) 40 ILJ 297 (LAC).
[7]
(1994)
15 ILJ 1057 (LAC).
[8]
1939
AD 188
at
202-3.
[9]
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982
(2) SA 603
(A)
.
[10]
R
v Blom
above
n 8
.
[11]
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982
(2) SA 603 (A)
.
[12]
[2018]
ZALAC 28
; (2019) 40 ILJ 297 (LAC);
[2019] 4 BLLR 340
(LAC) at para
13.
[13]
[
2017]
ZACC 36
;
2017 (2) SACR 665
(CC);
2017 (12) BCLR 1510
(CC)
at
paras 36 – 38.
[14]
1989
(1) SA 687(A)
a
t
705I-6C.
[15]
S
v Thebu
s
[2003]
ZACC 12
;
[2003] ZACC 12
;
2003
(6) SA 505
(CC);
2003
(10) BCLR 1100
(CC)
at para 49.
[16]
Dewnath
v S
[2014]
ZASCA 57
at
para 15.
[17]
Dunlop
above
n 1 at para 46.
[18]
Id.
at para 49.