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[2024] ZALCJHB 1
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National Union of Public Service and Allied Workers ("NUPSAW") obo Lutendo and Others v Commission for Conciliation, Mediation and Arbitration and Others (J 2086/20; JR 2111/20) [2024] ZALCJHB 1; [2024] 3 BLLR 333 (LC); (2024) 45 ILJ 579 (LC) (5 January 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBERG
Reportable
Case
no: J 2086/20 AND JR 2111/20
CCMA
CASE NUMBER: GATW 9558-19
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED
Date:
05/01/2024
In
the matter between:
NATIONAL
UNION OF PUBLIC SERVICE
Applicant
AND
ALLIED
WORKERS ("NUPSAW")
obo
LUTENDO &
284
OTHERS
and
COMMISSION
FOR CONCILIATION,
First
Respondent
MEDIATION
AND ARBITRATION
COMMISSIONER
KRUGER
Second
Respondent
DIS-CHEM
PHARMACIES LTD
Third
Respondent
Heard
:23
November
2023
Delivered
:5 January 2024
JUDGMENT
NORTON
AJ
Introduction
1.
Between November
2018
and April 2019, approximately
2 500
Dis-Chem workers went on strike. It was a strike marred by widespread
violence. Approximately
800
employees were dismissed for misconduct. This case concerns the
fairness of the dismissal of 285 of those employees,
all
NUPSAW members.
2.
There
were
two
reviews before this court.
One
initiated by
NUPSAW
on 15 January 2021; and another (a cross review)
initiated two weeks later by Dis-Chem on 29 January 2021.
3.
NUPSAW
seeks to review
and set aside the arbitration award issued by Commissioner Kruger on
29 November 2020. The union simply seeks to
remit the matter
back to the CCMA for a re hearing before a
different arbitrator.
The union does not
seek an order of substitution that the dismissals of their members
was procedurally and substantively unfair,
and accordingly do not
advance the remedy of reinstatement or compensation.
4.
NUPSAW
takes
issue
with
two
aspects of the Commissioner's award: firstly the union submits that
the Commissioner
failed to apply his mind
to the issue of inconsistency in the application of sanction (called
the "inconsistency challenge");
and secondly that the
Commissioner
misconstrued the relevant
elements of the doctrine of common purpose (the "common purpose
challenge”)
5.
In turn Dis-Chem seeks to review the arbitration
award only to the extent that the Commissioner failed to take into
account relevant
evidence which resulted in a finding that
the
dismissal
of
one
employee, Mr
Thabo
Manyengisa,
was
unfair
and reinstatement
followed. Dis-Chem seeks an order that Mr
Manyengisa
was fairly dismissed.
6.
At
a
case
management
meeting
on
31
August
2023
before
Acting
Deputy
Judge President Molahlehi, the parties agreed to
consolidate the matter, and the reviews were argued
before
me on 21 November 2023.
7.
This
judgment
will
be
structured
in
the
following
way:
7.1.
Firstly
I
will
set
out
a
chronology
of
the
relevant
facts;
7.2.
Secondly
I
will
summarise NUPSAWs review, Dis-Chem's response, and the arbitrator's
award;
7.3.
Thirdly
I
will
summarise Dis-Chem's review, NUPSAWs response, and the arbitrator's
award;
7.4.
Fourthly
I
will
set
out
the
relevant
legal
issues
which
arise
from both reviews;
7.5.
Fifthly
I
will
apply
the
facts
to
the
law;
and
7.6.
Lastly
I
will
make
concluding
points,
and
hand
down
the
order.
Chronology
of
facts
8.
Dis-Chem Pharmacies Limited ("Dis-Chem")
is in the pharmaceutical
business and has
approximately
150 stores nationwide. The
company employs about 17 000
employees.
NUPSAW had recruited about 1900 of these employees.
9.
On
11 June
2018
NUPSAW
referred
a
mutual
interest
dispute
to the CCMA
relating
to wages
and
conditions
of
service.
10.
On
29
October
2018,
in
anticipation
of
strike
action.
the
parties
met
at
the
CCMA
to negotiate picketing rules for approximately 50
stores, warehouses and distribution centres.
11.
The
parties
met
again
on
7
November,
and
NUPSAWs
National
Organiser,
Mr
Solly Malema
sought
the
recusal
of
Commissioner
Blignaut,
and
when
that
was unsuccessful
led
a
walkout
of
the
union
from
the
process. Despite
being
warned
that the
process
of
demarcating
the
picketing areas would
continue
without
the union's
participation, they never returned. As Malema left he stated,
"And
we are telling you now that the strike will be violent."
12.
The next day, 8 November NUPSAW gave notice to
Dis-Chem of its intention to commence strike action on 16 November at
05h00.
13.
On
14
November
2018
the
CCMA
sent
the
parties
the
picketing
rules.
Picketing
of
a
maximum of 20 -
30
employees
was
allowed in the demarcated areas, usually between 20 to 50 meters away
from the entrance to the various Dis-Chern stores.
[1]
Picketers
could enter the malls two at a time to access water and sanitation
facilities, and were required to do so peacefully and
orderly and not
intimidate members of the public, or disrupt the activities of
businesses. Clause 2.3 of the rules read,
"No
picketing, demonstrating, singing, protesting and I or toy-toing
shall take place outside Designated areas and any picketing
outside
of the demarcated area is prohibited as a contravention of the
rules."
14.
The
employees were informed of the picketing rules before the
commencement of the strike.
[2]
15.
On 16 November 2018 the strike began, it was a
protected strike. It was violent. Later that day Dis-Chem approached
the Labour Court
for an order that the striking employees comply with
the picketing rules and confine themselves to the designated areas.
Van Niekerk
J, granted the order and others.
Workers
were interdicted and restrained from perpetrating acts of violence
and intimidation against fellow employees, workers, suppliers
or
members of the public. The court also ordered the union to
communicate the content of the court order to their members, and
to
confirm by way of affidavit, three days later that they had done so.
This court order is referred to as the "first court
order".
16.
The
court order had little effect a striking workers continued to assault
none striking workers, damage delivery vehicles, throw
stones at
passers by, and blockade access to
Dis-Chem
stores such as at Canal Walk, Cavendish Square, Ghandi Square, Park
Station and other sites. The
CCMA
sought to intervene, also with little effect.
[3]
17.
On 5 December 2018, Dis-Chem approached the court
for further relief. The urgent application came before Acting Justice
Snyman.
He granted an order suspending the picketing rules; and
restraining the strikers from continuing with
"any
further picket, gathefihg, assembly or protest action"
at Dis-Chem or any public place outside the
stores. This court order was referred to as the "second court
order''.
18.
On
10
December
over 100
employees
boarded
a
hired
bus, apparently destined
for
Ghandi Square. It never got there and instead about 90% of the
employees
on the bus approached the
Woodmead store and thereafter the Sunninghill store, throwing stones,
interfering with traffic and continuing
with protest action leading,
to their arrest by the SAPS. (Known as the "bus incident").
19.
On
10
and
11
January
2019
striking
workers
targeted
Dis-Chem
Head
office.
They
continued with protest action, picketing and hindering traffic (the
"head office incident")
20.
In
March
2019,
the strike came to an end.
21.
Disciplinary
action
proceeded thereafter, with individual employees-
implicated in alleged misconduct facing individual
disciplinary enquiries chaired by independent chairperson,
as
well as group hearings
where warranted
and with consent
from
employees. Approximately
800 strikers were
dismissed in April 2019.
22.
On
24
June
2019
NUPSAW
referred
an unfair
dismissal
dispute
to
the
CCMA.
The employees
who
had committed misconduct in the bus incident of 10
December 2018, and employees who had committed misconduct in the head
office
incident of 10 and 11 January 2019 incident, were the members
represented by NUPSAW.
23.
On
13
March
2020
the
parties
signed
a
pre
arbitration minute. Paragraph 3.25 is particularly
pertinent
and read.
"The
Applicants
(ie the union and members)
admit to
the
contents of the charges levelled against them
at
the disciplinary enquiries including video footage and photographs
that were utilized as evidence at the disciplinary
inquiry."
24.
The
union
raised
the
inconsistent
application
of
discipline as a substantive fairness issue in/dispute in the minutes
and mentioned two of their members Ms Cynthia Mndebele and
Ms
Margaret Jaxa as examples. Later in the arbitration the list was
extended.
25.
An arbitration continued under the auspices of the
CCMA, led by Commissioner Werner Kruger. The arbitration was held
over a number
of days and finalised on 26 November 2020.
26.
On 1 December 2020 Commissioner Kruger handed down
his award. He found the dismissals of all the employees to be fair
except for
Mr Thabo Manyengisa and Johannes Senoamadi. They were both
reinstated to the date of dismissal.
27.
In
January
2021,
NUPSAW
and
Dis-Chem
launched
their
respective
reviews.
NUPSAW's
review, Dis-Chem's
defence, and the
arbitrator's award: the Inconsistency challenge
28.
Success Mataitsane, the General Secretary of
NUPSAW deposed to the founding affidavit. He pointed to two grounds
of review: firstly
the commissioner misconceived the rule against
inconsistency (in other words the parity principle), and secondly he
misconceived
the concept of common purpose.
29.
Mr
Mataitsane
submitted
that
the
Commissioner
had
neglected
to
take
relevant evidence
into account, particularly with respect to inconsistency regarding
disciplinary sanctions for employees implicated
in the same/ similar
misconduct. He explained that some
employees
received
Final
Written
Warnings
("FWNs"),
whilst
others
were dismissed.
30.
With
respect
to
the
first
ground
he
drew
attention to:
Cynthia
Mndebele,
Margaret
Jaca,
Ms
Ramovha,
Ms
Ngwepe
and
Ms
Kekae
who
were issued
with
FWNs.
Mr
Matatsaine
also referred to decisions in the Western Cape and Gauteng where
employees had received FWN for being outside of the
demarcated areas,
and did not commit violent acts or carry dangerous weapons.
[4]
In
particular he referred to the CCMA award of Senior Commissioner
Jamodien who found that employees who were only guilty of breaching
picketing rules by being outside of the demarcated area and had
committed no violent acts were unfairly dismissed, and he ordered
their reinstatement.
[5]
31.
Mr Mataitsane referred to evidence presented by
one of Dis-Chem's witnesses (Ms Samantha Schafer -
the
HR Litigation Manager) that the company argued that their application
of discipline and sanction was consistent, in that employees
who were
outside of the demarcated
areas before the
second court
order,
and
who did not commit material misconduct
were
sanctioned with a FWN. Those
who committed
misconduct after the second court order of 5 December, or who engaged
in serious acts of misconduct
were
dismissed.
32.
He confirmed
that
there were no
disciplinary
hearings
for Cynthia
Mndebele
and Margaret
Jaca
and they
had
committed
misconduct,
which
according
to Schafer warranted dismissal; but they were
sanctioned
with FWWs. In paragraph 7.1.7 of
his Founding Affidavit he writes,
"If
the employer was consistent in the application
of
discipline, it should have also
dismissed those employees, but did not, giving rise to the unfairness
of
a
dismissal
of
the
other employees in exactly
and I
or
substantially the same circumstances."
33.
The
union submitted that as these identified employees (as well as others
not identified) were issued with FWW, so should the employees
who had
been dismissed. The union argued that the Commissioner erred by not
finding that the differences in treatment amounted
to unfairness.
The
Commissioner had misconceived the relevant legal principles,
so
argued the union, and in so doing had
"committed
a grossly reviewable irregularity which warrants interference by this
court."
[6]
34.
Dis-Chem
explained, with
respect
to the attack
on
inconsistency
that:
34.1.
Ms
Jaxa
and
Ms Mndebele
were
given
a FWW, although
it
appeared
that they
could
have
committed
further
misconduct
than
simply
picketing
outside
the demarcated
area, and
that if there was evidence to this effect Dis-Chem would subject them
to a disciplinary enquiry (and by inference could
be dismissed if
found guilty).
34.2.
With
respect
to
Ms
Ramovha,
Ms
Ngwepe
and
Ms
Kekae,
different
chairpersons chaired their enquiries,
and
independently
came to the conclusion that a
FWW would be an appropriate
sanction.
35.
The
evidence
before
the
Commissioner on
this
issue
was
presented
by
Ms
Schafer: She said:
35.1.
"…
if
it is that there was an additional
breach
.
..
we
will take those two individuals into an inquiry."
[7]
35.2.
"...
we
had independent
chairperson
when hearing matters, so each case is based on its own merits...
"
[8]
35.3
"...
in
a
disciplinary
process
we
ask
aggravating
and
mitigating
(factors)
..
.that
could
influence
the
potential
outcome."
[9]
36.
The
Commissioner
in
his
award
referred
to:
36.1.
"individual
disciplinary
hearings,"
[10]
36.2.
Advocate
Mkhize's
argument
that
the
workers
had
not breached workplace rules, as court orders and picketing rules do
not constitute workplace rules
[11]
36.3.
Advocate
Mkhize's
argument
that
many
employees
were
dismissed
or
single
incidents,
being
protesting
outside
the
demarcated
area.
[12]
37.
In
the
Commissioner's
analysis,
he
maintained
37.1.
That
Adv
Mkhize
was
wrong
that
a
breach
of
court
orders
and
picketing
rules
does
not
constitute
misconduct
because
it is not codified in the company's rules.
[13]
37.2.
Whilst
some
employees
were dismissed for a single incident, this involved the breach of two
court orders and the picketing rules.
[14]
37.3.
Whilst
5
employees
received
FWW
for
misconduct
which
had
seen
other
employees
dismissed,
that
did not mean
that
the company
had
conducted
itself
inconsistently
in
the
application
of
the
sanction,
but
simply
that
chairpersons
exercised
their
discretion
differently.
It
certainly
did
not
mean
that
the
vast
majority
of
employees
were
now
entitled
to
the
lesser
sanction.
[15]
NUPSAW's
review,
Dis-Chern's
defence,
and
the
arbitrator's
award: the
common purpose
challenge
38.
With
respect
to
the
second
ground
of
review the
union
argued that
the Commissioner had misconceived the relevant
principles of common purpose when he found that employees on the bus
in the Woodmead
and Sunninghill incident of 10 December 2018, who
stayed seated, and did not get off the bus and did not commit acts of
vandalism,
did not share the common purpose of the employees who did,
and should have been found not guilty and reinstated.
39.
Mr Mataitsane
refers
to the fact
that
no
evidence
was
led that
employees
who
returned to
the
bus
discussed
the
matter
with
their
fellow
employees
who had opted to remain in the bus;
and
that those who remained did so of their own volition.
40.
Mr
Mataitsane
also noted that there was no distinction between those who alighted
from the bus and misconducted themselves, from those
who remained on
the bus and did not misconduct themselves.
[16]
41.
Mr
Mataitsane
argued
that the Commissioner erred by finding that those who remained on the
bus and sang struggle songs, demonstrated their allegiance
and
association with those who disembarked and protested outside the
stores,
but
that this association (according to the union) did not amount to
"common purpose" as there was no intention to commit
misconduct.
[17]
42.
The union
makes the
point that employees were en
route to a
union meeting
at Ghandi Square
(and
by
implication
those
who
remained on the bus never knew that the bus was
heading to Woodmead
and Sunninghill for the
purpose of union members disembarking to vandalise Di-Chem stores
there).
43.
NUPSAW
concludes
their heads
of argument
with:
"In
summary, there was no evidence before the Second Respondent
(ie
the Commissioner)
that
the employees that remained on the bus...intended to commit
the
misconduct.
Failure
to
leave
the
bus
is
not
a
requirement
to
establish
common purpose in the misconduct, The finding of guilty on the
grounds
of
common
purpose constitutes a gross irregularity".
[18]
44.
Dis-Chem
noted (as per
the Answering Affidavit of Mr Johan Ochse, the Employee Relations
Manager) that:
44.1.
From
the
outset,
the
gathering
was
unlawful
and
in
contravention
of
Snyman's second
court
order,
and
the
union
members
knew this;
44.2.
The
bus
did
not
depart
to
Ghandi
Square
but
to
Woodmead;
44.3.
The
union
members
who
remained
on
the
bus
saw
the strikers running across the street; and they
sang struggle songs
"in solidarity
with the
transgressors
who
left the bus"
44.4.
The
conduct
of
the
people
on
the
bus
"fell
withing
theambit
of
common
purpose
and
same
was
correctly
concluded
by
the
Commissioner.
[19]
45.
The
arbitrator
wrote:
"With
respect
to
the
bus
incident
the
evidence
is
clear.
The
employees
got
on
the
bus
and
they
attacked two
Dis-Chem stores. There were 116 employees that were arrested. On the
video there were at least 70 employees that got
off the bus. Ms
Tshivadhulu’s evidence that she didn't know what they were
doing is highly improbable; but even if I accept
that she did no know
that the employees were going to throw stones at the store, it is
almost impossible to believe that when the
employees
got
back on the bus that they did not discuss the incident themselves.
Therefore
when the bus
stopped at Sunninghill she had the opportunity to get off the bus and
distance herself from this conduct. She did not
do so and sang
struggle songs. This is
a
clear indication
that
she and
the
other
employees
associated
themselves
with
this
conduct."
46.
He
went
on
to
write:
"Furthermore
even if I accept the version that the original plan was to attend a
gathering
at
Ghandi
Square,
this
would
have
been
in
contravention
of
the
second court order. The employees therefore had the common purpose,
the moment they got on the bus, to contravene a court order
and by
doing so to commit
misconduct.
[20]
Dis-Chem's
review, NUPSAW's
defence, and the
arbitrator's award: gross irregularity by misconstruing evidence on
the fairness of the dismissal of Mr Thabo Manyengisa
47.
Dis-Chem
seeks
to
review
the
award,
only with respect to one aspect, and that is the commissioner's
finding that the dismissal of Mr Manyengisa was unfair, which
led to
his reinstatement. Dis-Chem challenges this finding and seeks an
order
of substitution that his dismissal
was fair.
48.
On
the
last
day of the hearing, and in closing argument Adv
Mkhize for NUPSAW handed in a list of 111 employees whom he argued
ought, (to
be
reinstated because they had committed one offence. The offence
related to the targeting of Dis-Chem head office (blocking of
entrance, hindering traffic) on 10 and 11 January 2019. Whilst
resisted by Dis-Chem's legal representative, the Commissioner
accepted the list into evidence. Mr Manyengisa
was included on the list, but his offence was
different, and related to misconduct committed on 16 November 2018,
which was firstly blocking the movement of traffic
affecting business operations by throwing bricks on the road; and
secondly threatening
members
of the public.
49.
The
commissioner found
with
respect
to
Mr
Manyengisa:
"I
do
however find that Adv Mkhize's argument of the people that were
dismissed before the second
court
order is in line with the testimony of Schaffer. The testimony was
clear, people that were found outside the demarcated area
before the
second court order were not dismissed if it was a
single
incident.
/
There
was no evidence before me why Thabo Manyengisa was treated
differently and why he was dismissed. I therefore find that his
dismissal was unfair. He was therefore guilty of misconduct and for
that reason I find that it would be fair to reinstate him with
limited backpay.
[21]
50.
Dis-Chem
argues
that the commissioner
misconstrued
the evidence of Schafer. In short she testified that striking
employees were sanctioned with a FWW if their only offence
was
straying outside of the demarcated area before the second court
order. ff the nature
of the misconduct
was more serious, then dismissal
was
the result. Manyengisa's offence, whilst committed before the second
court order, was of a gravity justifying dismissal.
51.
Dis-Chem argues that the commissioner committed a
gross irregularity by misconstruing or disregarding material evidence
in respect
of differentiation between dismissible offences and those
warranting a final written warning.
52.
Ms
Schafer
testified:
"...
So initially we
were
not on
a
witch hunt, you know ta subject everyone
to disciplinary enquiries. We (drew)
a
distinction between less serious misconduct and
misconduct of
a
serious
nature
...So if
a
person was just on one day outside of
the picketing area
...and that was
before the second court order ... we will issue
a
final written warning"
53.
Ms
Schafer
testified
in
the
Supplementary
affidavit
that:
"it
is
clear
that
the
Commissioner
completely
ignored
my
testimony
by
concentrating
merely
on
the
fact
that
Mr
Manyengisa's
offences
were
committed
on
one day, and not on the fact that there
were
more
than one offence on that day, both of a serious nature."
[22]
54.
In
NUPSAWs response in the Answering affidavit,
attested
to by Mr Manyengisa, he fails to respond to the submissions that the
list submitted by Adv Mkhize, referred to one charge
and not both
charges; and that he was being
"untruthful
and
misleading."
[23]
He
also cannot deny that in the pre arbitration minutes NUPSAW admitted
to the
"correctness
of the minutes that
were
kept
in respect of the individual hearings."
[24]
Relevant
legal
issues
55.
There are three legal issues warranting
attention in this matter: firstly the test of
review, secondly the law in relation to inconsistent
application of sanction; and thirdly the law of
common purpose. Each will be addressed in turn.
56.
According to section 145(2)
of
the LRA, an arbitration award may be reviewed and set aside if a
commissioner committed misconduct in relation to his duties
or
committed a gross irregularity in the conduct of the arbitration
proceedings; or he exceeded his powers; or an award has been
improperly obtained.
57.
The
principle of reasonableness
infuses
the review test, and as oft quoted is
expressed
as
“
Is
the
decision
reached
by
a
commissioner
one
that
a
reasonable
decision-maker could
not
reach"(ie
the
"Sidumo
test")
[25]
58.
The
Supreme
Court
of
Appeal
in
Heroldt
v
Nedbank
Ltd
[26]
concludes
that,
"In
summary, the position regarding the
review
of CCMA awards is this: A review of
a
CCMA
award is permissible if the defect in the proceedings falls within
one of the grounds in s 145 (2)(a) of the LRA. For
a
defect
in the conduct of proceedings to amount to a gross irregularity as
contemplated in section 145 (2)(a)
of
the
LRA,
the
arbitrator
must
have
misconceived
the
nature
of
the enquiry or arrived at an unreasonable result. A result will only
be unreasonable if it is one that a reasonable arbitrator
could not
reach on all the material that was before the arbitrator. Material
errors of fact, as well as the weight and relevance
to be attached to
particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only of any consequence
if
their effect is to render the outcome unreasonable.”
[27]
59.
NUPSAW’s
review
challenges
the reasonableness of the
Commissioner's finding regarding inconsistency; and engages the
question of whether or not the 'Commissioner
committed a material
error of law with respect to common purpose and the finding of guilt
and the sanction of dismissal for employees
who remained seated on
the
bus
whilst
the
majority
of
employees
disembarked
and
committed
acts
of vandalism.
60.
Dis-Chem's review challenges whether the
Commissioner committed a material irregularity by failing to properly
analyse the evidence
with respect to misconduct, guilt and sanction
as it applied to one employee, Mr Manyengisa.
61.
Moving now to the law on consistency, it is
appropriate to record item 3(6) of the Code of Good Practice:
Dismissal,
"The employer should
apply the penalty of dismissal consistently with the way in which it
has been applied to
the same and
other employees in the past, and consistently
as
between two or more employees who
participate in the misconduct under consideration."
62.
It
is obvious that optimally, and for fair reasons, employees who commit
the same or substantially
similar
misconduct
should
receive
the
same (or
substantially
similar)
sanction. What must be borne in mind however is the case of
SACCAWU
&
other
v Johson Ltd
which
confirms that when faced with large numbers of offending employees
"the
best that one can hope for is reasonable consistency ...
(and
that)
some
inconsistency
is
the
price
to
pay
for
flexibility,
which
requires
the
exercise
of
a
discretion
in each individual case..
."
[28]
63.
In other words, there may be good reasons to
differentiate between employees
who have
misconducted
themselves
similarly:
there
could
be
different
personal
circumstances
(such
as
length
of service, number of warnings
etc); and individual chairpersons may decide when
exercising their discretion, on different sanctions on a reasonable
basis (reasonable
people
may
differ
reasonably).
Provided
there
is
a
justifiable reason for differentiation fairness does not necessarily
arise.
64.
With
respect to the concept
of
"common purpose",
the
recent
Constitutional
Court decision in
NUMSA
obo Dhludhlu and 147 others v Marley Pipe Systems (SA)(Pty)
Limited
[29]
is
authoritative. In factual summary, this case dealt with the dismissal
of 41 employees, on the basis of common purpose for the
assault on
the Head of Human Resources, during an unprotected strike. NUMSA
claimed their members had been unfairly dismissed as
they had not
made common purpose with the actual perpetrators of the physical
assault, but the Labour Court and Labour Appeal Court
disagreed.
NUMSA
appealed
to the Constitutional Court which upheld the appeal, and found the
members not guilty of the assault. The court ordered
the matter to be
remitted back to the Labour Court to consider a sanction for
participation in an unprotected strike.
65.
The
reasoning
of
the Constitutional Court is relevant
to
the matter before this court. The principles which emerged
[30]
are
the following:
65.1.
Mere presence
and
watching
does
not
suffice (merely
"being
there"
cannot constitute association);
65.2.
There must be evidence,
direct
or circumstantial that employees in some
form or another associated themselves with the
violence before it commenced or even after it ended;
65.3.
The
employee
must
perform
some act
of
association
with
the
unlawful
conduct;
65.4.
An intention in relation to the violence is
required;
65.5.
Singing during an assault is not enough to
demonstrate an act of association.
66.
The
Constitutional
Court
concluded
with,
"Sympathetic
though
I
am
of
the
difficulties
facing
employers,
individual
complicity in the commission of acts of violence must be established.
This
is what the principles of common purpose have always required. If it
were to be otherwise, the law would be
a
cruel
instrument that attaches guilt and imposes sanction
on
the innocent. Association
in
complicity
for
purposes of common purpose
must
include
having
the
"necessary
intention"
in
relation
to
the
complicity.
[31]
Application
of
the
law
to
the
facts
67.
It is true that there were a handful of employees
who committed misconduct, which according to Schafer's analysis,
should have been
met with dismissal, but instead was met with a
FWW.
Those employees were "lucky"
to benefit from a lesser sanction. Ms Schafer
explained
the
differential by saying
that Dis-Chem was
not aware
of further misconduct
(with respect to Ms Mndebele, and Ms Jaca), and if
so investigated they could
be
charged
and
further
disciplined
(by
implication
dismissed).
For
other employees,
Ms
Ramovha,
Ms
Ngwepe
and
Ms
Kekae,
different
chairpersons
had
exercised
their
discretion
in
such
a
way
that
they
found
that
a
sanction
less
than dismissal (ie a F\/WI/)
would
be appropriate.
There is no unfairness
in this context, reasonable
chairpersons
differ reasonably. Furthermore there could well have been compelling
mitigating factors justifying a lesser sanction
for these employees.
68.
Whilst Adv Mkhize on the last day of the
arbitration submitted a list of some 111 employees who he argued had
only committed one
offence, and should have received a FWW and not
the sanction
of dismissal,
I
find the list mischievous for two reasons: Firstly
the list should have been the subject of the arbitration and evidence
led directly
relating
to
those
employees.
To make a
submission
in conclusion
of
argument
is
tantamount to evidence by ambush, - and should be ignored; but
secondly and more importantly the misconduct of which the employees
had been found guilty concerned the protest action
outside Dis-Chem Head office, and occurred after 2 court orders had
made prohibiting
such conduct, and as such
as
unlawful. In
no ways
does the conduct warrant a FWW as according to Dis-Chem's Ms Schafer,
such a sanction applied to employees who had strayed
past
the--demarcated area before the second court order, and that that
constituted their only misconduct (ie there was no further
misconduct
such as throwing stones, blockading roads,
intimidating members
of the public etc).
With respect to the 111 employees
there was
protest action hindering the movement
of
traffic, and a violation of two court orders -
dismissal
was the appropriate sanction - no
inconsistency
here.
69.
In short I am unpersuaded that Dis-Chem misapplied
the parity principle and that to the
extent
there were minor examples of
differentiation with respect to sanction, those differences
were
reasonable
and
justifiable.
No
interference
from
this
court
is warranted. The review challenge by NUPSAW on
this point thus fails.
70.
I
am though persuaded
that the Commissioner misconceived the principles of common purpose
when finding that the unidentified employees
who never left the bus
acted in concert
with those
who
alighted and attacked the Woodmead
and
Sunninghill
Dis Chem stores say so
because there was no evidence that those who remained behind had the
intention to commit violence, and
they showed no outward
manifestation of support except to sing struggle songs. Singing
struggle songs is part and parcel of the
culture of resistance, and
is a feature in labour disputes, political rallies and service
delivery protests.
71.
I
concur with Savage AJA in
South
African Commercial Catering and Allied Workers Union
and
others
v
Makgopela
and
others
[32]
when
she
said
"our
law does not allow a determination of guilt simply by
association.
"
[33]
72.
Nonetheless,
the conduct
of those who stayed on the bus, still amounted to
serious
misconduct in that they knowingly
violated two court orders. Furthermore it is reasonable to infer that
they were well aware of
what their comrades were doing when they
alighted from the bus and threw stones and vandalised the stores.
Whilst they did not
participate in the unlawful action, they showed
solidarity by singing struggle songs. I need to make the point
clearly that whilst
the singing of songs does not pass into the
threshold
of
common
purpose,
the
action
does
indicate
an
allegiance
with
the misconduct. Noting these concerns and bearing
in mind Dis-Chem's differentiation between serious and less serious
offences (and
the corresponding sanctions of dismissal and FWW), I am
of
the view that the dismissals should
stand. The arbitration award, with the finding of a fair dismissal
for all the employees (except
two) may be sustained on the totality
of the evidence before the Commissioner, despite the error of law
regarding the application
of the doctrine of common purpose.
73.
I concur with Dis-Chem that the Commissioner
materially erred when finding that Mr Manyengisa
had
committed one offence before the
second
court order,
and that dismissal
was
an
inappropriate
and
unfair
sanction.
In
fact
Mr
Manyengisa
had
committed two offences, both of a serious nature, and the
Commissioner had made the error presumably influenced by the
mischaracterisation
of the charges by NUPSAW’s representative.
The outcome was unreasonable and reviewable and warrant this court's
intervention.
74.
In
the
circumstances
I
make
the
following
order:
Order
75.
NUPSAWs
review
application is
dismissed.
76.
Dis-Chem's
review
application succeeds.
77.
Paragraph
54 and
paragraph
56 of the arbitration award is
reviewed and set aside and replaced with
"the
dismissal
of Mr Thabo Manyengisa
is fair".
His
dismissal is to take immediate effect.
78.
There is no order as to costs.
D
Norton
Acting
Judge
of
the
Labour
Court
of South
Africa
Appearances
For
the Applicant:
Advocate
Nobuntu
Mbelle
Instructed
by:
Ndumiso
Voyi Incorporated
For
the Respondent:
Advocate
Riaz
ltzkin
Instructed
by:
Cliffe
Dekker
Hofmeyr Inc
[1]
For
example at Cresta Mall, the designated area was described as "area
indicated on map 2, in the parking lot, not closer
than 30 m from
the entrance"; maximum number of picketers 20; for Rosebank the
designated area was "Rosebank park,
corner Sturdee Avenue and
the entrance - 20 meters from the corner, closer to the shopping
centre";
maximum
number of picketers -20;
at
Princess Crossing the demarcated area was described as "Not
less than 50 meters away from the Dis-Chem entrance in the
middle of
the car park" Maximum number of picketers -
10.
[2]
Pre
arbitration minutes,
para
3.17
[3]
Refer
to Snyman AJ's "Reasons for judgment" dated 7 November
2018 under case number J 4124 / 15.
[4]
See
paragraph 7.1.10
of
the Founding Affidavit
[5]
See
paragraph 8.25
of
the Founding Affidavit
[6]
See
paragraph 7 of the Founding Affidavit.
[7]
Transcript,
pg
545, lines 16 and 17 (with reference to Ms Jaxa and Ms Mndebele)
[8]
Transcript
pg 550, lines 5-10, and 18-19.
[9]
Transcript
pg 551, lines 5 - 7
[10]
Para
23,
[11]
Para
38
[12]
Para
49
[13]
Para
45
[14]
Para
46
[15]
Para
47
[16]
Founding
affidavit,
para
8.1
to
8.5
[17]
Para
20 and 21 of the Supplementary
affidavit
[18]
At
paragraph 42
[19]
Para
6.54 of the Answering Affidavit.
[20]
Paragraphs
49 and 50 in the arbitration award
[21]
Paragraph
48 of the arbitration award
[22]
Supplementary
Affidavit, para 5.12
[23]
Refer
to clauses 64.8; 64.9 and 64.10 of the Founding Affidavit, read with
paragraphs 77 and 78 of the Answering Affidavit.
[24]
Paragraph
3.24 of the pre arbitration minutes.
[25]
Sidumo
and another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA
24
(CC).
[26]
[2013]
11
BLLR
1074 (SCA)
[27]
At
para 25
[28]
Para
44
[29]
2023
(1) SA 338 (CC)
[30]
Refer
particularly to paragraphs 25 and 26
[31]
Paragraph
36
[32]
[2023]
6 BLLR 509 (LAC)
[33]
Paragraph
29