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[2021] ZALAC 32
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Association of Mineworkers and Construction Union and Others v Northam Platinum Mine Limited (JA8/19; JA9/19) [2021] ZALAC 32; (2021) 42 ILJ 2565 (LAC); [2022] 1 BLLR 28 (LAC) (14 September 2021)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA8/19–JA9/19
In the matter between:
ASSOCIATION OF
MINEWORKERS AND
CONSTRUCTION UNION &
OTHERS Appellants
and
NORTHAM
PLATINUM MINE
LIMITED
Respondent
Heard:
11
February 2020
Delivered:
14
September 2021
Coram:
Waglay JP, Sutherland JA and
Murphy AJA
JUDGMENT
MURPHY
AJA
[1] The
appellants, the Association of Mineworkers and Construction Union and
292 of its members (“AMCU”)
and “the individual
appellants” respectively), appeal against the judgment of the
Labour Court (Lallie J) of 14 September
2018. The individual
appellants were dismissed on 5 July 2016 (following a
disciplinary inquiry which they failed to attend)
for unauthorised
and/or un-communicated absence from 17 June 2016 to 24 June
2016. AMCU challenged the dismissals on
the grounds that they
constituted invalid terminations of the individual appellants’
contracts of employment, alternatively
were automatically or
substantively and procedurally unfair, and sought retrospective
reinstatement of the individual appellants.
[2] The
Labour Court dismissed all of AMCU’s claims, save for the claim
that the dismissal was substantively
unfair on the grounds that
dismissal was not the appropriate sanction and in respect of which it
awarded the individual appellants
each 12 months’ remuneration
as compensation. AMCU on appeal seeks to overturn the Labour Court’s
rejection of its
claims that the dismissals were invalid,
automatically unfair dismissals and procedurally unfair. It also
wants the reinstatement
of the individual appellants instead of
compensation. The respondent, Northam Platinum Mine Ltd (“Northam”),
opposes
the appeal for reinstatement and cross-appeals against the
quantum
of compensation. Northam does not cross-appeal against
the Labour Court’s finding that the dismissals were
substantively
unfair.
[3] The
appeal was heard in early 2020. However, later in 2020, while this
judgment was being prepared, the parties
wrote to the Judge President
informing him of a further attempt to settle the matter. They
requested that judgment be delayed until
conclusion of the settlement
negotiations. In July 2021, the parties again wrote to the Judge
President advising that the settlement
negotiations had been
unsuccessful and asked for judgment to be handed down as soon as
possible.
Factual
Background
[4] The
issues in this appeal play out against the backdrop of trade union
rivalry between AMCU and the National
Union of Mineworkers (“NUM”)
on the platinum belt, which has been characterised by violence. In
2016, Northam employed
some 5300 category 2-8 employees at its
Zondereinde Mine (“the mine”) of whom 4600 belonged to
NUM (i.e. 87%). About
2300 of the employees (mainly members of NUM)
resided in the Madiba Hostel. The other employees (“the living
out employees”)
lived in the town of Northam and its surrounds.
Although AMCU was in the minority at Northam, it has a strong
presence in the region
and enjoyed majority representation on other
mines.
[5] Tension
between the two unions began to grow in 2015. Prior to 2015, both NUM
and AMCU members resided at the
Madiba hostel. In January 2015,
members of NUM embarked on an unprotected strike for six days, in
support of various demands. AMCU
members did not participate in the
strike. On 14 January 2015, Northam obtained an urgent interdict from
the Labour Court declaring
the strike by NUM members unprotected. The
next day Northam advised 65 AMCU members occupying the hostel not to
return to the hostel,
because it was not safe for them to do so.
These AMCU members were accommodated by Northam in its Recreational
Hall. During their
absence some of their rooms at the hostel were
vandalised and their belongings destroyed by NUM members. Northam
then placed these
AMCU members on three months’ paid leave, and
provided them with a living-out allowance. No disciplinary action was
taken
against any NUM members. There is a dispute about whether
Northam undertook to compensate those AMCU members who had their
belongings
vandalised.
[6] On
22 March 2015, AMCU’s members embarked on an unprotected strike
for two days in support of demands
to return to the hostel and for
payment of compensation. Northam obtained an interdict against AMCU
and its members and issued
those AMCU members who had embarked on the
unprotected strike with final written warnings for their
participation in the strike.
[7] In
January 2016, tension was exacerbated further by a dispute about
whether AMCU had reached the prescribed
threshold of 15%
representivity for organisational rights within the workplace. In
April 2016, AMCU’s members embarked on
another unprotected
strike for approximately six days, again in support of demands that
they not be precluded from residing at
the hostel and be compensated
for their damaged property.
[8] Although
some NUM members were murdered in the wider region during 2015, no
violence was experienced at the
Northam mine between February 2015
(after the strike called by NUM in January 2015) and June 2016.
[9] On
Sunday 5 June 2016, a NUM shop steward and a member of the hostel
committee, Mr. Somaxhama (known as
Bala), was shot 100 metres
away from where AMCU was holding a mass meeting. NUM members at the
scene immediately formed the view
that AMCU was responsible for the
murder. NUM members on the nightshift (22h00 – 06h00) at the
mine responded by going on
strike. The living out employees reporting
for work were turned back at the boom gate (at the entrance to the
mine), and the shift
was cancelled. It was understood that NUM
perceived that Bala had been killed by AMCU members. There is some
dispute about whether
any violence transpired in the vicinity of the
mine that night, but the situation was undeniably tense.
[11] The
next morning, Monday 6 June 2016, the boom gate remained closed and
the living out employees were denied
access to work. Employees
remained gathered at the gate. Shortly before 08h30, a group of about
80-100 NUM members who had marched
from the mine (accompanied by
members of the South African Police Service – “SAPS”
– in police vehicles)
arrived at the boom gate. There some of
the marchers cast off their blankets revealing weapons (pangas,
spears and knives) and
ran towards and chased after the living out
employees who fled from the open area outside the boom gate. In the
ensuing fray, an
employee, Mr Mhlabeni (who was wearing an AMCU
T shirt) was stabbed to death at a place about 600 metres away
from the
boom gate. Shortly thereafter, the car of a member of the
AMCU interim committee (Mr Sisane) was vandalised and torched.
Members
of NUM were subsequently convicted for the murder of Mr
Mhlabeni and the destruction of Mr Sisane’s car. AMCU members
were
arrested for the murder of Bala but no-one has been convicted of
that offence.
[12] General
Zulu, the Deputy Commissioner of SAPS in Limpopo, intervened on
6 June 2016. The intention had
initially been for a tripartite
meeting of AMCU, NUM and Northam, but NUM refused to meet with AMCU.
General Zulu therefore met
with NUM and Northam alone on 6 June 2016.
Later that day Mr Joseph Mathunjwa, the President of AMCU, wrote
to Mr Smith (a
HR executive at Northam) calling upon management “to
suspend all operations until the situation gets back to normal and
our
members’ safety is guaranteed”. He went on to allege
that the “attack on our members is blamed squarely on the
company”. Initially Northam instructed employees to return to
work. However, in the face of building tension and a call from
NUM
members for all AMCU members to be removed, Northam suspended
operations at the mine until 14 June 2016. It paid all its employees
for that period.
[13] On
7 June 2016, General Zulu met again with NUM and Northam. NUM called
upon Northam to put together a security
plan. On 8 June 2016, General
Zulu convened a meeting with AMCU and Northam. AMCU questioned NUM’s
absence and was informed
that NUM refused to meet jointly with AMCU.
At the meeting, Mr Smith presented to AMCU the security plan
devised by Northam
with the input of SAPS (referred to in evidence as
the “16-point plan”). There is a dispute about whether Mr
Smith
just read out the 16 point plan, as contended by AMCU, or
whether he made an in-depth 30 minute presentation with input
from
SAPS. In circumstances where the intention was to get AMCU’s
buy-in to the security plan, it is likely that the presentation
addressed at least some of the detail.
[14] After
a caucus during the meeting, AMCU proposed that the meeting be
adjourned as the Minister of Mineral
Resources (“the Minister”)
was expected at the mine the next day. Northam maintains that AMCU
was no longer prepared
to participate in the meeting or give input
into the security plan, preferring instead to wait for ministerial
intervention. Mr.
Khoza, a member of the AMCU interim committee who
participated in the caucus, testified that after discussing the
matter with Mr.
Mathunjwa, and being informed that the Minister would
visit the mine the next day, it was decided to withdraw from the
meeting.
He said “we took that decision….that we are no
longer going to engage in the meeting since he will be coming, the
Minister will…” Mr. Mnisi, Northam’s industrial
relations specialist, testified that as far as he was concerned
it
was clear that AMCU was not willing to engage over the 16 point plan.
[15] After
meeting with AMCU, General Zulu convened another meeting with NUM and
Northam at which the security
plan was discussed. NUM undertook to
discuss it with its members at a mass meeting scheduled for later
that day. NUM members accepted
the security plan during the mass
meeting, but indicated that they were not prepared to work with AMCU
members.
[16] On
9 June 2016, the Minister held a meeting with Northam, NUM and SAPS
at the mine. Although AMCU knew of
an anticipated meeting, it did not
receive an invitation from the Minister and accordingly did not
attend it. The upshot of the
Minister’s intervention was that
he required the parties to reach a return-to-work agreement by 14
June 2016, when he intended
returning to the mine.
[17] On
13 June 2016, Mr Mathunjwa addressed a letter to the Minister
recording his disappointment at not being
invited to the 9 June 2016
meeting and seeking his intervention to get Northam “to desist
with compelling AMCU members to
report to work in the unstable and
unsafe environment”, before the perpetrator of the murder was
arrested and before providing
AMCU with the reassurance sought in its
letter of 6 June 2016 requesting a guarantee of safety.
[18] Also
on 13 June 2016, and in preparation for the Minister’s return
to the mine the following day, Mr
Smith sent AMCU an email setting
out the 16-point plan.
[19] On
14 June 2016, Northam addressed a letter to Mr Mathunjwa recording
that it had not received any response
from AMCU on the proposals made
in the 16-point plan, noting that employees’ safety and
security are paramount and requesting
a positive contribution. It
emphasised that it was important for all parties to work together “to
have a peaceful, orderly
and safe return to work as soon as possible
and call upon your encouragement for this to happen”. Mr
Mathunjwa immediately
responded to this letter accusing the company
of arrogance, union bashing and engaging in secret meetings. He
offered no response
to the 16-point plan, and asked for a collective
agreement “that seeks to preserve lives and stability” at
the workplace
–referred to as a “peace pact” during
argument.
[20] Later
on 14 June 2016, the Minister returned to the mine and engaged again
with Northam and NUM. During that
meeting an agreement was reached
that NUM members would return to work. For the first time since the
events of 6 June 2016, NUM
indicated that its members were prepared
to work together with AMCU members and withdrew its demand that the
AMCU workers be removed.
It was agreed further that all employees
would be paid for the period of 6-14 June 2016 when all operations
were suspended. Thereafter
an SMS was sent to all employees informing
them that an agreement had been reached that all employees would
return to work starting
from night shift that day.
[21] Also
on 14 June 2016, AMCU held a mass meeting. It was agreed at the
meeting that certain demands would be
made regarding the return of
AMCU members to work. Northam maintains that AMCU was remiss in not
fully apprising its members of
the contents of the 16 point plan
aimed at securing their safe return to work.
[22] The
next day, 15 June 2016, AMCU addressed a letter to Northam expressing
fear about what took place on 6
June 2016 in the presence of mine
security and the SAPS and requesting the fulfilment of the following
conditions before the return
of AMCU members to work: (i) the closure
of the Madiba Hostel; (ii) the continued payment of full salaries;
(iii) disciplinary
action against security personnel who were
“escorting” NUM members on 6 June 2016 when the attack
occurred; and (iv)
compensation to victims who were subjected to the
attack.
[23] AMCU’s
letter of 15 June 2016 did not list the conclusion of the collective
agreement or peace pact
referred to in its letter of 14 June 2016 as
a pre-condition to the return to work.
[24] Northam
maintains that the demand for the closure of the Madiba Hostel was
unreasonable. Close to half of
the mine’s category 2-8
workforce live in the hostel. Its immediate closure would have
resulted in the closure of the mine,
because those workers would not
have been able to find alternative accommodation.
[25] On
15 June 2016, Northam sent all employees the following SMS:
It has come to our
attention that you have not returned to work since 15 June 2016. You
are urged to return to work by your next
shift to avoid the desertion
process being applied. If you have returned to work, please ignore
this message.’’
[26] The
SMS conveyed that the prospect of dismissal for desertion was being
considered in respect of those employees
who refused to return to
work.
[27] On
Monday, 20 June 2016, AMCU’s attorneys addressed a letter to
the Minister, NUM and Northam setting
out “measures to deal
with and prevent further violence, murder and intimidation” at
the mine. Five demands were directed
at Northam: (i) mine
security should no longer escort workers; (ii) management should
no longer exclude AMCU from meetings;
(iii) the company should
guarantee the safety of AMCU members; (iv) AMCU members should
no longer be banned from occupying
the hostel; and (v) the
hostel should be closed.
[28] The
demands made on NUM were that NUM must: (i) undertake to stop the
organised killings of AMCU members by
NUM members; (ii) refrain from
participating in meetings with the government and/or management
regarding the prevailing situation,
to the exclusion of AMCU; and
(iii) guarantee that AMCU members will not be denied their rights of
movement, association, bodily
integrity and life. Northam has
criticised these demands for failing to appreciate that the
accusations of murder were reciprocal
and not recognising that there
was no easy solution to the problem.
[29] On
21 June 2016, Northam addressed the following letter to AMCU.
Zondereinde mine has been
calm with stability restored on 7 June 2016. This was
communicated to all employees via a request
to report for duty. The
request was eventually complied with on 15 June 2016. The
Ministry of Mineral Resources, National
and Provincial SAPS
leadership, employee representatives, mine security and management
all contributed to restoring calm.
The SAPS and Northam
Platinum have increased both SAPS personnel and mine security on the
Zondereinde operation and Northam town.
A number of preventative
security measures have also been proposed by SAPS and mine
management. For example, a satellite police
station in Northam town,
CCTV cameras in and around Northam town, providing accommodation to
the SAPS POP unit on the mine property
to guarantee improved response
times and increased random searches at strategic locations on the
mine, to name a few.
Under the leadership of
Major General Zulu, Deputy Provincial Commissioner Limpopo, who has
personally overseen SAPS operations,
a number of arrests relating to
5 and 6 June 2016, the murder in Northam town, the murder at the
railway crossing and damage to
property, have been made.
The arrests followed the
in-depth safety and security briefing given to AMCU regional
officials on 8 June 2016. During the
briefing, the AMCU
officials requested the meeting be adjourned as they wanted to
further the discussion with the Minister of Mineral
Resources when he
was scheduled to visit the mine operations on 9 June 2016. A
follow-up meeting is being scheduled by the
SAPS to continue and
conclude the discussion.
The company residence is
not solely occupied by NUM members as stated in your letter of
15 June 2016. Our records reflect employees
(who choose to live
at the residence) affiliated to multiple unions, including AMCU
affiliated employees. Our residence accommodation
process has been
discussed and explained to AMCU affiliated employees and employees
who comply with the procedure, being placed
in residence.
The principle of ‘no
work no pay’ will apply from 15 June 2016. This return to
work date was communicated to all
employees, the majority of whom
have returned to work. There have been no reports of any employee
being prevented from reporting
to work, including AMCU affiliated
employees who have complied with mine management’s return to
work request.’’
[30] During
cross-examination, it was put to AMCU’s regional deputy
chairperson, Mr Ludidi, that the letter
offered some assurance of
safety. His response was that AMCU wanted “a common agreement”
not a letter from “this
side or that side”. This
response, Northam maintained, was an indication that AMCU was not
open to persuasion about the facts
on the ground and the true
security situation but was pursuing its own demands and interests
heedlessly.
[31] The
reference in the letter of 21 June 2016 to the implementation of
increased security measures was to the
16-point plan, which involved
a significant increase in security (both on and off the mine). The
new measures, amongst other things,
included: i) 128 members of SAPS
being stationed on the mine for 45 days commencing on 6 June 2016;
ii) SAPS deploying a dedicated
helicopter and a number of “nyala”
and “soft skin” vehicles on the mine; iii) the number of
on-site reaction
units was increased from one to nine; iv) the
setting up of an intimidation hotline (no reports of intimidation
were received for
the balance of 2016); v) the introduction of
increased random searching; vi) the increase of monthly security
expenditure from
R1-million to R2.5-million and the acquisition of
new sophisticated security equipment; and vii) the establishment of a
satellite
police station for Northam town financed by Northam.
[32] These
measures appear to have had some success. It is common cause that
between 60 and 210 AMCU members returned
safely to work after 15 June
2016. Moreover, Mr Mathunjwa conceded during his testimony that there
had been no incidents of violence
after the return to work by most of
the workforce on 15 June 2016.
[33] On
21 and 22 June 2016, Northam re sent the SMS to employees on 15
June 2016. On 23 June 2016, AMCU’s
attorneys addressed a
further letter to Northam claiming that Northam’s letter of 21
June 2016 was not a satisfactory reply
to their letter of 20 June
2016, and requesting that no action be taken against AMCU members
until all of the issues in our letter
have been addressed. On 24 June
2016, Northam sent another SMS to all workers reading:
You have not returned to
work since 15 June 2016, this is the final reminder to return to work
on your next shift. The desertion
process is now applicable. If you
have returned to work, please ignore this message.’’
[34] On
28 June 2016, Northam sent out another SMS requiring employees to
visit the nearest TEBA office to receive
an “urgent letter”
which was a notification of a disciplinary inquiry scheduled to be
held at the mine on 4 July 2016
on the charge of being absent without
permission and/or failing to communicate the reason for absence from
15 June 2016 to 24 June
2016. The SMS did not explain that the letter
related to a disciplinary enquiry.
[35] The
disciplinary inquiry was held in the absence of the individual
appellants on 4 July 2016 at Northam’s
premises. AMCU maintains
that the individual appellants did not attend the hearing because
they were either not aware of it or
feared for their safety.
[36] On
8 July 2016, Northam sent an SMS requesting the employees to visit
the nearest TEBA to receive a termination
letter from Northam. The
termination letter records that: i) a disciplinary inquiry was held
in the employee’s absence on
4 July 2016; ii) he/she was
found guilty; iii) a recommendation of dismissal was made, which was
ratified; and iv) consequently
the employee was dismissed with effect
from 5 July 2016.
[37] In
addition to the correspondence between Northam and AMCU, Mr Mnisi
interacted with Mr Ludidi at regional
level telephonically and claims
to have met him some five times during the month of June 2016. Mr
Ludidi denied meeting Mr Mnisi
during this time. Mr Mnisi also
interacted with Mr Khoza at branch level during the month of June
2016. The nature and extent of
these interactions are in dispute, but
for reasons that follow there is no need to resolve the matter.
[38] On
8 July 2016, AMCU’s attorneys sent another letter to Northam
tendering the individual appellants’
services immediately
“subject to the employer guaranteeing their safety at the
workplace”, with the company being called
upon to provide its
“commitment and guarantee” by the close of business that
day. On 11 July 2016, Northam’s
attorneys responded to the
letters of AMCU’s attorneys dated 20 June 2016 and 8 July
2016 raising various issues, but
not giving the undertakings sought.
[39] On
14 July 2016, NUM responded to AMCU’s attorney’s letter
of 20 June 2016 stating
inter alia
that NUM was not engaged in
any organised killings, such allegations were spurious and
unsubstantiated and should be withdrawn,
and that AMCU’s rights
are constitutionally guaranteed and no further guarantee was
accordingly required from NUM.
[40] On
18 July 2016, AMCU’s regional office addressed a letter to
Northam, recording that its members were
ready to return to work “if
the safety measures are in place following the killing or Mr
Thembinkosi Mhlabeni”. Asked
about these “safety
measures” during cross-examination, Mr Ludidi testified that
“we have put forward our proposals
as per the request of 15
June, we wanted management and NUM to come and engage us, to engage
us and guarantee that they will not
chase or kill our members
further.”
[41] On
2 August 2016, AMCU referred a dismissal dispute to the CCMA for
conciliation. The required result was
stated as being retrospective
reinstatement. On 3 August 2016, AMCU launched an urgent application
in which it sought the reinstatement
of the individual appellants, as
well as an order that the company “ensure, as far as reasonably
practicable, a workplace
that is safe and without risk to the health”
of the individual appellants. The application was subsequently
withdrawn.
[42] On
or about 22 September 2016, and following an investigation, the
company issued 12 NUM members with a final
written warning for having
participated in an illegal protest march on 6 June 2016. According to
Mr Mnisi, Northam disciplined
everyone that it could identify, and
decided to leave an investigation of criminal activity committed
outside its premises on 6
June 2016 to SAPS. Certain employees were
convicted in the criminal courts for the murder of Mr Mhlabeni,
for public violence
and damage to property. These employees were then
dismissed by Northam.
The
judgment of the Labour Court
[43] After
conciliation failed, AMCU referred a dismissal dispute to the Labour
Court alleging that the dismissals
were invalid, automatically unfair
and, alternatively, substantively and procedurally unfair. The Labour
Court dismissed the claim
that the termination of the individual
appellants’ contracts of employment was in violation of section
82 of the Mine Health
and Safety Act
[1]
(“the MHSA”). AMCU maintains in this regard that the
individual appellants were dismissed for exercising their rights
in
terms of section 23 of the MHSA to leave the Mine and/or not report
for duty at a working place which, with reasonable justification,
appeared to them to pose a serious danger to their health or safety.
The Labour Court also dismissed the alternative claim that
Northam
breached the individual appellants’ contracts of employment by
dismissing them for exercising their common law right
to refuse to
work in an unsafe working environment. It, in addition, dismissed the
appellants’ second claim that the dismissals
were automatically
unfair on the grounds of unfairly discriminating against them on the
basis of their AMCU membership, as envisaged
in section 187(1)
(f)
of the
Labour Relations Act
[2]
(“the
LRA”); their claim for reinstatement; and the claim that their
dismissals were procedurally unfair. The appellants
appeal against
all these findings.
[44] The
Labour Court found the dismissals to be substantively unfair in two
respects. Firstly, it held that dismissal
was not the appropriate
sanction. It stated:
Disciplinary action was
taken against the applicants when the events of 5 and 6 June 2016
were fresh in their memories. The respondent
did not have the benefit
of hind sight of the absence of violence on the mine for an extended
period after 15 June 2016. While
the respondent took significant
steps after 6 June 2016 to ensure the safety of its employees, the
reason for the applicants’
refusal to return to work on 15 June
2017 was not fear of violence by management. They feared NUM members
and NUM had refused to
give an undertaking not to attack them again,
management could not compel NUM to give the undertaking and the
applicants knew from
experience that management did not protect AMCU
members against NUM members. Their conduct of taking care of their
safety by not
returning to work required compassion and understanding
from the respondent. It did not warrant dismissal……The
applicants’
dismissal was substantively unfair. It resulted
from the respondent’s failure to treat them with compassion
after they had
been traumatised by a violent and fatal attack by
members of a rival trade union. Dismissal was not the appropriate
penalty for
the applicants’ absence from work. They were also
victims of the respondent’s inconsistency in exercising
discipline.’’
[45] Regarding
Northam’s inconsistency in the application of discipline, the
Labour Court held:
The applicants submitted
that the respondent’s inconsistency in applying discipline also
rendered their dismissal unfair.
It is common cause that a number of
NUM members who attacked AMCU members at the boom gate and burnt
their cars on 6 June 2016
could be identified from CCTV recordings.
Had the respondent wished to apply discipline consistently, it would
have investigated
the incident with the view to taking disciplinary
action against the perpetrators. The police and the respondent’s
mine security
who escorted NUM members who marched from the hostel to
the boom gate were in a position to identify at least some
perpetrators
– so were the security guards at the boom gate.
Even Mnisi was not far from the boom gate shortly before the attack
started.
He was in a position to identify some perpetrators. No
assistance to identify perpetrators was sought from AMCU members who
survived
the attack. The respondent could not justify its decision
not to take disciplinary action against more NUM members for at least
the incident of 6 June 2016. The respondent also took no disciplinary
action against more NUM members for their absence from work
during
their unprotected strikes. The parity principle precludes an employer
from taking disciplinary action against some and no
other employees
who commit similar misconduct. I am satisfied that it finds
application in this case. Both NUM and AMCU members
were employees of
the respondent. Armed NUM members committed serious misconduct which
involved a brutal attack of unarmed AMCU
members. They exposed AMCU
members to danger, traumatised them and killed one of them. No
disciplinary action was taken against
them. The applicants absented
themselves in circumstances where they were justifiably scared to
return to work. Not only did the
respondent take disciplinary action
against them, it punished them with dismissal. The respondent’s
conduct offended the
parity principle in that it treated AMCU and NUM
members unequally. The inequality constituted inconsistency which
rendered the
applicants’ dismissal unfair.’’
[46] As
mentioned at the outset, neither the appellants nor Northam seek to
appeal against the Labour Court’s
finding that the dismissals
were substantively unfair. However, the parties are in dispute about
the relief granted. The appellants
want reinstatement and Northam a
reduction in the amount of compensation awarded. I will discuss the
findings of the Labour Court
when considering these matters later in
the judgment.
The
first and second grounds of appeal – invalid dismissal and
breach of contract
[47] The
appellants contend that the individual appellants were entitled to
absent themselves and refuse to work
after 15 June 2016 on account of
Northam breaching its statutory and contractual duty to provide and
maintain a safe working environment.
[48] Section
1 of the MHSA includes among its objects the protection of the health
and safety of persons at mines;
the control and minimising of risks
relating to health and safety at mines; and the promotion of a
culture of health and safety
in the mining industry. The obligation
of employers to provide a healthy and safe working environment is set
out in section 5(1)
of the MHSA which requires every employer, as far
as reasonably practicable, to provide and maintain a working
environment that
is safe and without risk to the health of employees
[49] Section
102 of the MHSA defines “reasonably practicable” to mean
“practicable” having
regard to: (a) the severity and
scope of the hazard or risk concerned; (b) the state of knowledge
reasonably available concerning
that hazard or risk and any means of
removing or mitigating that hazard or risk; (c) the availability and
suitability of means
to remove or mitigate that hazard or risk; and
(d) the costs and benefits of removing or mitigating that hazard or
risk.
[50] Section
23(1) of the MHSA deals with an employee’s right to leave a
dangerous working place. It provides
in relevant part that an
employee has the right to leave any working place whenever
circumstances arise at that working place which,
with reasonable
justification, appear to that employee to pose a serious danger to
the health or safety of that employee.
[51] Section
102 defines “safety” to mean “safety at mines”.
A “mine” is defined
to include a “place where a
mineral deposit is being exploited, including the mining area and all
buildings, structures,
machinery, mine dumps, access roads or objects
situated on or in that area that are used or intended to be used in
connection with
searching, winning, exploiting or processing of a
mineral, or for health and safety purposes”. A “working
place”
is defined to mean “any place at a mine where
employees travel or work.”
[52] Section
83 of the MHSA provides
inter alia
that no person may
discriminate against any employee for exercising a right in terms of
the MHSA, for doing anything that the employee
is entitled to do in
terms of the MHSA, or refusing to do anything that the employee is
entitled to refuse to do in terms of the
MHSA. For the purpose of
section 83 of the MHSA “discriminate” is defined to mean
“to dismiss an employee or
to engage in any other conduct which
has the effect of prejudicing or disadvantaging the employee, or
which prejudices or disadvantages
the employee relative to other
employees”.
[53] Section
23(1) of the MHSA thus gives an employee a right to leave any working
place whenever circumstances
arise at that working place which, with
reasonable justification, appear to that employee to pose a serious
danger to the health
or safety of that employee.
[54] In
2016, the Chief Inspector of Mines published the “Guideline for
the compilation of a mandatory code
of practice on the right to
refuse dangerous work and leave a dangerous working place”
(“the Guideline”), in
terms of section 49(6) of the
MHSA.
[3]
The Guideline deals
among other things with the right to leave any dangerous working
place (“the RLDWP”) and the right
of refusal to do
dangerous work (“the RRDW”). Sections 1.2 to 1.4 of the
Guideline read:
‘
1.2 Under common
law employers are required to provide and maintain a work environment
that is safe and without risk to the health
or safety of employees.
This is reflected in section 2 of the MHSA which requires the
employer to ensure, as far as reasonably
practicable, that the mine
is commissioned, operated, maintained and decommissioned in such a
way that employees can perform their
work without endangering the
health and safety of themselves or of any other person.
1.3 Arising from this
entitlement to a safe working environment, employees have the RRDW…
This right entails not only that
the employee is entitled to leave a
working place where he/she has reason to believe that the working
place is unsafe (the RLDWP),
but also that an employee is entitled to
refuse to do work in a working place that is safe, but in which there
is any equipment,
machine, device or thing the employee is required
to use or operate which is likely to endanger himself/herself or any
other employee
(the RRDW). Put differently, the RRDW can be exercised
either by refusing to do the required work but remaining in the
working
place, or by refusing to do the required work and leaving the
working place.
1.4 Section 23(1)(a) of
the MHSA partly reflects the common law mentioned above. It gives
employees the RLDWP if circumstances
arise which, with reasonable
justification, appear to that employee to pose a serious danger to
the health or safety of that employee
or if the health and safety
representative responsible for that working place directs that
employee to leave that working place.
The fact that section 23 does
not mention the RRDW does not mean that employees do not have that
right…’
[55] Section
4 of the Guideline offers an interpretation of the concept of
“reasonable justification”
as required in section 23(1)
of the MHSA. It provides:
‘
Reasonable
justification means that the employee has some objective information
that makes him or her believe that there are unsafe
conditions at the
working place or the work to be done is unsafe to the extent that
there is an imminent and serious danger to
the health or safety of
person at that working place. The employee does not have to be
correct in his or her knowledge or belief,
but such belief should be
reasonable given the information of the employee. These principles
apply to both RRDW and RLDWP.’
[56] Annexure
2 to the Guideline contains a table of examples of major health and
safety hazards, which may give
rise to the right to leave any
dangerous working place which includes “unacceptable and
dangerous behaviour of colleagues”
and “aggressive or
violent behaviour” as instances of such.
[57] Northam
submits that section 23(1)
(a)
of the MHSA does not apply as
matter of law to threats to safety arising from criminal conduct
perpetrated in the course of inter-union
rivalry. The preamble to and
the objects of the MHSA, it argues, reflect that the MHSA regulates
occupational/operational health
and safety at the employees’
working place. Section 2(1)
(a)
and
(b)
provide that the
employer must provide conditions for the safe operation of the mine,
and ensure (insofar as reasonably practicable)
that the mine is
“commissioned, operated, maintained and decommissioned in such
a way that employees can perform their work
without endangering
safety of themselves or any other person”. Safety, Northam
maintains, thus relates fundamentally to the
operation of the mine
and the requirement in section 5 of the MHSA to provide and maintain
“a working environment that is
safe” does not extend
beyond the direct working environment on the mine.
[58] We
do not accept that the MHSA is limited to occupational health and
safety hazards arising in the work process
at the coalface. Section
102 defines “hazard” widely as “a source of or
exposure to danger”, and “risk”
as “the
likelihood that occupational injury or harm to persons will occur”.
There is no justification to restrict the
duty of the employer to
mitigate hazards and risks to narrow occupational safety in the work
process. A “working place”
which an employee may leave in
the face of danger is defined as “any place at a mine where
employees travel or work”.
And a “mine” is defined
to include the access roads to the mine. The intention is to allow
employees to absent themselves
from the broader working environment
when a hazard or risk of harm to their personal safety arises.
[59] The
reference in the table annexed to the Guideline to “unacceptable
and dangerous behaviour of colleagues”
and “aggressive or
violent behaviour” is a contemporaneous exposition and
interpretive aid of what risks and hazards
were in the contemplation
of the legislature. Violence arising from factionalism of one kind or
another is a regrettable feature
of life on the mines in our country.
Parliament has prudently ordained through the mechanisms of the MHSA
that employers should
have policies and procedures in place to deploy
suitable means to mitigate the risk of factionalism in as far as that
is reasonably
practicable.
[60] Section
23(1) of MHSA thus bestows a right upon employees to leave their
workplace where dangerous, aggressive
or violent behaviour by
colleagues reasonably appears to pose a serious danger to their
safety. However, an employee may only exercise
the right if there is
reasonable justification to do so. In terms of section 4 of the
Guideline there must be an objective basis
or reasonable grounds to
believe that there are conditions posing “an imminent and
serious danger” to safety.
[61] In
relation to this issue, the Labour Court noted that the individual
appellants did not raise the exercise
of their rights in terms of
section 23 of the MHSA as the reason for their absence. However,
it appeared to accept that employees
were entitled to exercise that
right in response to a threat of factional violence. It held:
‘
A party relying on
the section 23 has to prove that the section applies to that party’s
circumstances. Section 23 may not
be used as an afterthought by
employees who have absented themselves from work for reasons which
fall outside its realm. The applicants
testified that they did not
return to work because NUM refused to give them the undertaking that
they would not attack them again.
They also sought the respondent to
guarantee their safety at the mine. Their refusal to return to work
leading to their dismissal
therefore went beyond the aggressive and
violent behaviour referred to in the guideline. They wanted NUM and
the respondent to
meet their demands. They led no evidence to the
effect that they refused to return to work after 15 June 2016
only because
they were in danger. For these reasons, the provisions
of section 23 of the MHSA do not apply.’
[62] The
appellants challenge the findings of the Labour Court. Firstly, they
deny that the refusal to return to
work was their holding out for the
meeting of their demands. All of AMCU’s witnesses testified
that the employees feared
for their lives. The appellants contend
that circumstances had arisen on 6 June 2016 which gave rise to
reasonable grounds to believe
that there was a serious danger to
their safety. This situation persisted regardless of whether or not
demands were made and the
employees thus retained the right to
exercise their right to leave the working place in terms of section
23(1) of the MHSA. The
Labour Court recognised that the fears of the
individual appellants were reasonable. In addition, the failure to
specify the specific
legislation in terms of which a right is being
exercised, it was submitted, can never deprive the employee of such
right, or preclude
reliance thereon. However, it did not accept that
there was reasonable justification for the individual appellants to
entirely
withdraw their labour for a sustained period.
[63] Northam
correctly contends that during the period 6-14 June 2016, there was
no question of the individual
appellants having exercised their
rights in terms of section 23(1)
(a)
of the MHSA, because
operations were suspended for that time. The issue is whether there
was reasonable justification to refuse
to return to work in response
to the call to return to work on 15 June 2016 and thereafter. The
evidence suggests that the mine
was safe (as far as reasonably
practicable) at that time. Additional security measures were
implemented, and, as Mr. Mathunjwa
admitted, there were no incidents
or violence after 6 June 2016. A significant number of AMCU members
returned to work without
incident.
[64] The
witnesses who testified on behalf of the appellants were not able to
point convincingly to any objective
information leading them to
reasonably believe that things were so unsafe at the mine after 15
June 2016 that there was an imminent
and serious danger to their
safety if they returned to the mine, such as to justify a complete
withdrawal of their labour. Rather
the evidence strongly supports the
conclusion that the individual appellants placed their fate in the
hands of AMCU after attending
the mass meeting on 14 June 2016 and
simply waited on AMCU to tell them if, and when, they should go back
to work. They had little
knowledge of the conditions at the mine
after 15 June 2016 and some returned to their homes outside of
Northam. From their experience
on the mine, the individual appellants
ought reasonably to have known that there had been no violence on the
mine for a year-and-a-half
before the events of 6 June 2016 and that
there were security measures (including surveillance cameras) in
place to protect employees
at the mine. They also took no steps to
communicate with Northam about the prevailing conditions before
opting to refuse to work.
[65] Although
AMCU may not have properly communicated the 16-point plan to its
members, the enhanced security measures
were in fact implemented and
it was incumbent on AMCU and the individual appellants to assess the
true situation before absenting
themselves on the grounds of safety
concerns. There is no evidence that they did so. Without apprising
themselves of the nature
and extent of the newly implemented security
measures, the individual appellants could not claim reasonable
justification for their
absence. Their subjective fears were not
objectively sustainable. There was in fact no imminent and serious
danger.
[66] The
attempt by AMCU to construct reasonable justification on the basis of
its demands and the failure to accede
to them, must fail. Not only
because there was in fact no demand for a peace pact at the time of
the dismissals but also because
the other demands, such as the
closure of the hostel, were unreasonable. Insofar as the individual
appellants contend that they
were holding out for a peace pact,
AMCU’s demands of 15 June 2016 did not contain a demand for a
peace pact but instead sought
unilateral guarantees from NUM.
[67] Hence,
the individual appellants have failed to bring themselves within the
scope of the section 23(1) of
the MHSA. The defence conferred by the
section was not available in the circumstances of this matter.
Accordingly, there is no
merit that the dismissal was in conflict
with section 82 of the MHSA and invalid for that reason and requiring
reinstatement on
that basis. In the result, the first ground of
appeal must be dismissed.
[68] The
Labour Court rejected the appellants’ contractual claim as
follows:
‘
The respondent’s
evidence of absence of mine violence from 15 June 2016 which was
conceded by Mathunjwa supports the
respondent’s version that
form the date the applicants refused to return to work, (15 June
2016), to the date of their
dismissal (5 July 2016), the
workplace was safe. The respondent did not owe the applicants
guaranteed safety. There is nothing
it could do about the guarantee
the applicants sought from NUM which NUM had no legal objection to
give (sic). The applicants’
testimony is inconsistent with the
argument forwarded on their behalf in that the standard of safety
which the applicants demanded
exceeds the legal one by far. Neither
their contracts of employment nor common law requires the respondent
to guarantee their safety
at the workplace. In argument the
applicants conceded that the respondent owed them no safety
guarantee. The applicants’
claim that their dismissal was
unlawful because their absence from work was justified by the
respondent’s breach of its common
law and contractual duty to
provide a safe workplace cannot succeed.’
[69] At
common law, if the employer fails to provide a reasonably safe
working environment, employees have the
right to refuse to work.
Section 23(1)
(a)
of the MHSA gives effect to this principle.
At common law, if the workplace is objectively safe, then employees
are obliged to work.
It follows from our finding that the mine was
reasonably safe after 15 June 2016 (in view of the enhanced security
measures, no
evidence of violence or intimidation and the safe return
of some AMCU members to work) that Northam did not breach its duty to
provide the individual appellants with a reasonably safe workplace.
The Labour Court accordingly did not err in rejecting the appellants’
common-law claim.
The
third ground of appeal – automatically unfair dismissal
[70] The
individual appellants allege that the reason for their dismissal was
discrimination on the ground of their
trade union membership, and
thus that their dismissal was automatically unfair in terms of
section 187(1)(f) of the LRA. The applicable
test requires
determination of the dominant or most likely cause of the
dismissal.
[4]
The Labour Court
held that the appellants did not prove a connection between their
dismissal and union membership, with the dominant
reason for the
dismissal being the misconduct of being absent.
[71] The
appellants contend that the “anomalous disparity of treatment”
(i.e. inconsistent treatment)
between NUM and AMCU members
demonstrates that the individual appellants would not have been
dismissed had they not been AMCU members
and the disciplinary action
was motivated by the company’s “illegitimate anti-AMCU
animus
”.
[72] AMCU
did not put forward evidence establishing a credible possibility that
the actual reason for the individual
appellants’ dismissal was
their trade union membership (and thus failed to acquit itself of its
evidentiary burden).
[73] The
individual appellants were undeniably in breach of the rule against
unauthorised absence which rule was
consistently invoked by Northam
in its SMS communications in the run up to the dismissal. Moreover,
the many AMCU workers who reported
to work were not dismissed or
disciplined in any way. Northam had a legitimate reason for bringing
disciplinary charges against
the employees on account of their
undisputed absenteeism, and considering that it gave repeated notice
of its intention to do so
on that basis there is no sufficient
evidentiary basis from which to infer that it had an ulterior motive
for the dismissal. The
dominant or most likely cause of the
individual appellants’ dismissal, therefore, was their
unauthorised absenteeism and
not their trade union membership. In the
result, the third ground of appeal also stands to be dismissed.
The
fourth ground of appeal – refusal of reinstatement
[74] Having
come to the conclusion that the dismissal was substantively unfair,
the Labour Court turned to the
question of remedy. Section 193(2) of
the LRA obliges the Labour Court on finding unfairness to order an
employer to re-instate
or re-employ the employee unless: (a) the
employee does not wish to be re-instated or re-employed; (b) the
circumstances surrounding
the dismissal are such that a continued
employment relationship would be intolerable; (c) it is not
reasonably practicable for
the employer to re-instate or re-employ
the employee; or (d) the dismissal is unfair only because the
employer did not follow a
fair procedure.
[75] The
Labour Court declined to order re-instatement for the following
reasons:
‘
The respondent
denied that reinstatement is either due to the applicants or is the
appropriate relief. It submitted that the demands
made by AMCU…which
should precede their return to work had not been met. They are
unreasonable and without legal basis …
An overwhelming
majority of the applicants’ witnesses expressed their
unwillingness to work should an unconditional reinstatement
order be
issued. The conditions most witnesses sought were undertakings from
NUM that its members would not attack them and a guarantee
from the
respondent that they would be safe at the workplace….
Although it was argued on
behalf of the applicants that they sought to be reinstated, the
argument is not consistent with the evidence.
Section 193(2)(c)
provides that reinstatement must be ordered unless it is not
reasonably practicable for the employer to reinstate
an employee.
Although reinstatement is the primary relief for a substantively
unfair dismissal, if circumstances of a case fall
within the
exceptions provided in section 193(2), it may not be granted. The
applicants sought to be reinstated on condition that
the respondent
and NUM guarantee their safety at the workplace. The condition is
incompetent, as neither the respondent nor NUM
has a legal obligation
to provide the guarantee. Reinstatement can in the circumstances not
be granted.’
[76] Hence,
the Labour Court concluded that reinstatement was not reasonably
practicable because the appellants
were insisting on the fulfilment
of unreasonable conditions before they would return to work.
[77] The
appellants contend that the Labour Court erred in refusing
reinstatement, and that it ought to have reinstated
the individual
appellants with back-pay. The individual appellants, they argued,
need not do more than tender their services.
Given that the
duty to maintain and provide a safe workplace rests on the employer,
reinstated employees (as with existing employees)
would be within
their rights to tender on condition that the workplace is safe. The
appellants in any event denied that the evidence
revealed that they
sought reinstatement conditional on NUM and Northam guaranteeing
their safety. But even if it did reveal as
much, this would not
render reinstatement impracticable.
[78] Northam
maintains that the evidence reveals that AMCU and its members did
indeed pose conditions to reinstatement.
[79] While
section 193(2) makes it clear that reinstatement or re-employment is
the primary statutory remedy in
unfair dismissal disputes, the Labour
Court must decide whether it is reasonably practicable to reinstate
in the circumstances
of the case. That determination involves the
exercise of a discretion which is in part a value judgment, and in
part a factual
finding.
[5]
The
Labour Court must make a factual finding about whether there are
reasons, as envisaged in s 193(2) of the LRA, which would
render an
order for reinstatement inappropriate. It is trite that an appeal
court may not lightly interfere with a trial court's
discretion on a
factual finding unless the appeal court is satisfied that such
finding is based on misdirection or is clearly wrong.
[6]
[80] AMCU’s
witnesses generally vacillated in cross-examination when questioned
about whether the demands
set for their return to work had been
abandoned as at the time of them giving evidence. The witnesses who
testified on behalf of
the appellants although at times equivocating
left little doubt that the employees would not tender their services
unconditionally.
They were only willing to accept reinstatement
subject to a peace pact being agreed to by Northam, NUM and AMCU. One
may legitimately
infer that in addition to their concerns about
safety, the appellants were in part motivated to strengthen AMCU’s
bargaining
position at the mine. This, Northam intimated, made
reinstatement impracticable in the face of unpredictable outcomes in
the envisaged
bargaining process.
[81] All
the AMCU witnesses when addressing the issue of the demands gave some
indication that they would abandon
the demands but only if there was
an ongoing negotiation involving AMCU, NUM, SAPS and Northam, which
yielded an outcome to the
satisfaction of AMCU, prior to the
individual appellants returning to work.
[82] Mr
Mathunjwa during his testimony equivocated on the issue. He opined
firstly that reinstatement “is
a process on its own”; but
he quite evidently envisaged that if reinstatement was ordered, there
would need to be a bargaining
process to secure a peace pact prior to
the individual appellants returning to work. When asked about the
proposed engagement,
he replied: “I said the company, NUM, AMCU
and SAPS should meet and discuss the issue and restore peace, then it
will be
possible for us to go back to work”.
[83] This
strategic positioning, premised on the questionable assumption that
the workplace remained unsafe, was
reiterated by the individual
appellants who testified, indicating that the position was probably
shared by the AMCU members aimed
at gaining some tactical advantage.
Thus Ms. Nombale expressed ambivalence about going back to work
because it was unsafe, but
agreed on balance that she would probably
go back “because I believe that there will be negotiations and
engagement regarding
our safety”. When asked what would happen
if NUM did not agree to a collective agreement or peace pact, she
replied: “then
I do not know what must happen”. Likewise,
Mr. Fana stated: “Even if the court gives an order that I must
go to work
now, I will not go M’Lady, until I have seen
safety.” In response to a question whether he meant he would
not go back
until there was an agreement between Northam, NUM and
AMCU, he said that was correct. When asked what he would do if no
agreement
was possible, he answered that he would wait to hear from
AMCU about what he should do. All the other witnesses gave similar
testimony,
some stating unequivocally that they would not return to
work pursuant to an order of reinstatement until a peace pact was
concluded
with NUM and Northam.
[84] The
evidence hence shows that the appellants were holding out for
guarantees beyond the employer’s duty
to provide a reasonably
safe workplace. They sought reinstatement conditional upon the
conclusion of a multilateral collective
agreement that was not within
the gift of the employer; or the Labour Court for that matter. The
Labour Court has no power to set
a condition to reinstatement that a
peace pact must first be reached with non-parties to the litigation
before the employees can
be expected to return to work. In such
circumstances, the Labour Court did not misdirect itself by finding
that it was not reasonably
practicable for the employer to reinstate
the individual appellants who were obstinately holding out for a
peace pact, which, in
all probability, could not be achieved. It was
not feasible to order reinstatement, because it was not reasonably
possible, in
the sense that it was potentially futile.
[7]
Reinstatement would not have guaranteed that the individual
appellants would perform their duties effectively, and hence such an
order would have constituted an excessive operational burden for
Northam.
[8]
[85] In
the premises, the Labour Court did not err in refusing to order
reinstatement.
The
quantum of compensation – the cross appeal
[86] The
Labour Court awarded each individual appellant the maximum amount of
compensation permitted in terms of
section 194 of the LRA, being the
equivalent of 12 months’ remuneration calculated at the
employee’s rate of remuneration
at the date of dismissal. Its
reasoning for awarding the maximum amount was brief. It held:
‘
The applicants’
dismissal was substantively unfair. It resulted from the respondent’s
failure to treat them with compassion
after they had been traumatised
by a violent and fatal attack by members of a rival trade union.
Dismissal was not the appropriate
penalty for the applicants’
absence from work. They were also victims of the respondent’s
inconsistency in exercising
discipline. A number of them had long
service. Their feelings were hurt by the dismissal. The circumstances
of their dismissal
justify the maximum compensation prescribed in
section 194 of the LRA.’
[87] The
determination of the
quantum
of compensation in terms of section 194(1) of the LRA involves the
exercise of a discretion in the strict sense. Such determinations
will be set aside on appeal only if it is shown that the Labour Court
acted capriciously, or upon a wrong principle or adopted
an incorrect
approach.
[9]
[88] In
its cross-appeal, Northam submits that the Labour Court misdirected
itself by failing to consider and give
sufficient weight to the
material facts, and thus acted on wrong principle, by not having
regard to the extent to which the individual
appellants (and their
union) were to blame for their dismissal and predicament, with a
reduction being warranted where they are
materially at fault.
[89] Northam
points to a number of facts that in its view justified a lesser
amount: i) the disciplinary action
against the individual appellants
was legitimate; ii) AMCU did not properly communicate the safety plan
to its members which might
have allayed their fears; iii) many AMCU
members returned to work on 15 June 2016; iv) the individual
appellants set conditions
for their return to work that were
unreasonable and thus were to blame for their dismissal; and v) the
individual appellants spurned
the opportunity of putting forward
their case at a disciplinary inquiry, and again at an appeal inquiry
thereby contributing to
their dismissal.
[90] Northam
contends that the Labour Court erred further in taking into account
the irrelevant considerations
of some of the individual appellants
having long service and the fact that their feelings were hurt by the
dismissal.
[91] Northam
accordingly asked this court to intervene and to reduce the
compensation to an award of three months’
compensation.
[92] The
appellants submit that a wide range of relevant factors may be taken
into account by the Labour Court
or an arbitrator determining just
and equitable compensation. They include length of service and the
impact of the employer’s
conduct on the employees. They contend
that various findings at different parts of the judgment indicate
that the Labour Court
took a number of relevant factors into account
when determining the appropriate compensation. Thus the Labour Court
took particular
cognisance of the facts that: i) the individual
appellant’s refusal to return to work on 15 June 2016 arose
from a legitimate
fear of the conduct of NUM members and their
experience that management and the SAPS had failed to protect AMCU
members against
NUM members; ii) armed NUM members had openly
murdered an unarmed AMCU member and no disciplinary action was taken
against them
until they were convicted in the criminal courts,
leading to an understandable breakdown in trust; and iii) the
individual appellants
absented themselves in a context that was
fraught and volatile.
[93] Compensatory
relief is not strictly speaking a payment for the loss of a job but
in fact monetary relief for
the injured feeling and humiliation that
an employee may suffer at the hands of the employer. It is a payment
for the impairment
of the employee's dignity. Because compensation
constitutes a
solatium
for the humiliation that the employee has suffered at the hands of
the employer and not strictly a payment for a wrongful dismissal,
compensation is comparable to a delictual award for non-patrimonial
loss. The relevant factors in determining the
quantum
of just
and equitable compensation include: the nature and seriousness of the
iniuria
,
the circumstances in which the infringement took place, the behaviour
of the defendant, the extent of the plaintiff's humiliation
or
distress, abusive conduct and the attitude of the defendant after the
iniuria
occurred.
[10]
[94] Since
compensation or damages is a matter of estimation and discretion, the
appeal court is generally slow
to interfere with the award. It will
do so if there has been an irregularity or misdirection such as
ignoring relevant facts, considering
irrelevant facts, basing the
decision on totally inadequate facts or where there is a substantial
variation or a striking disparity
between the award of the Labour
Court and that which the appeal court considers ought to have been
made.
[11]
[95] The
various findings of the Labour Court at different parts of the
judgment reveal that it was mindful of
the factors that were relevant
to its award of compensation. It did not ignore the blameworthy
conduct of the appellants. Their
behaviour was central in its
decision not to award reinstatement. It attached less weight to that
factor in its setting the
quantum
of compensation because it
evidently believed that the employer had acted too quickly in
dismissing the appellants. Although the
Labour Court did not say as
much, the problem of factionalism in the volatile circumstances in
which it expressed itself in this
instance might have been better
resolved by suspending the absent employees on the grounds of the
temporary supervening difficulties
of performance. The AMCU members
had grounds to be afraid. A colleague had been murdered, their
property had been vandalised in
the past, and many had been put on
leave on previous occasions because their safety could not be
guaranteed. More time should have
been taken in meaningful engagement
around the 16-point plan.
[96] Moreover
had the appellants not obdurately held firm to their badly thought
out positional bargaining, they
would have been reinstated. In such
circumstances, there is no basis to conclude that the Labour Court
misdirected itself with
regard to compensation; nor did it make an
award substantially at odds with an award which this court might
make.
[97] In
the result, the cross-appeal stands to be dismissed.
Conclusion
[98] In
view of the award of maximum compensation being upheld, there is no
need to consider the appeal in relation
to procedural fairness as it
would have no practical effect on the relief granted.
[99] Both
parties have had success. Therefore, it will be just to make no order
as to costs.
[100] In
the premises, the appeal and the cross-appeal are dismissed.
JR
Murphy
Acting Judge of Appeal
I
agree
B Waglay
Judge President
I
agree
R Sutherland
Judge of Appeal
APPEARANCES:
FOR THE
APPELLANTS: Adv
FA Boda SC and Adv S Collet
Instructed
by Vally Attorneys
FOR THE
RESPONDENT: Adv AT
Myburgh SC
Instructed
by Webber Wentzel Attorneys
[1]
Act 29 of 1996
[2]
Act 66 of 1995
[3]
Government Gazette No R1465 of February 2016.
[4]
SACWU &
Others v Afrox Ltd
[1999] 10 BLLR 1005 (LAC).
[5]
SAMWU v
Ethekwini Municipality
[2019] 1 BLLR 46
(LAC) at para 17.
[6]
Elliot
International (Pty) Ltd v Veloo & another
(2015) 36
ILJ
422 (LAC) at para 53
[7]
Xstrata
SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
on behalf of Masha & others
(2016) 37
ILJ
2313 (LAC) at para 11
[8]
SA
Commercial Catering & Allied Workers Union & others v
Woolworths (Pty) Ltd
(2019) 40
ILJ
87 (CC) at para 49
[9]
Kemp
t/a Centralmed v Rawlins
(2009) 30
ILJ
2677 (LAC) at para 55.
[10]
Arb
Electrical Wholesalers (Pty) Ltd v Hibbert
[2015] 11 BLLR 1081 (LAC)
[11]
RAF v
Guedes
2006 (5) SA 583
(SCA) at 586-587