IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS995/20
In the matter between:
THE ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION (AMCU) obo
MADINANE AND 7 OTHERS Applicant
And
DEPARTMENT OF AGRICULTURE, RURAL
DEVELOPMENT, LAND AND ENVIRONMENTAL
AFFAIRS Respondent
Heard: 18 to 21 JULY 2023
Closing arguments delivered: 6 & 10 NOVEMBER 2023
Judgment delivered : 26 January 2024 (This judgment was handed down
electronically by circulation to the parties’ legal representatives by email,
publication on the Labour Court website and release to SAFLII. The date and
time for handing-down is deemed to be 10h00 on 26 January 2024.)
JUDGMENT
PHEHANE, J
Introduction
[1] The applicants launch this referral in terms of section 191(5)(b)(iii) of the Labour
Relations Act
1 (LRA) claiming that they were unfairly dismissed from the employment
of the respondent for participating in an unprotected strike action. The applicants
1 Act 66 of 1995, as amended.
2
allege that their dismissal was both procedurally and substantively unfair. They seek
retrospective reinstatement and maximum compensation.2
[2] The respondent opposes the referral on the basis that the applicants were not
unfairly dismissed.
Background
[3] The respondent (Ziziwe Open Cast Mining (Pty) Ltd) is a contractor at a mining
site that mines for coal. It operates a four shift system, namely shift A, B and C. These
are: the shift that is off, the morning (6 am to 2 pm), afternoon (2 pm to 10 pm) and
night shift (10 pm to 6 am). The pleadings are unclear as the name of the shift that
works these hours, barring shift C, as it is common cause that shift C is the m orning
shift (6 am to 2 pm). The evidence of Mr. Shakwane , one of the applicants, is that the
shifts were as follows: shift A is the shift that is off work; shift B works 2 pm to 10 pm,
shift C 6 am to 2 pm and shift D 10 pm to 6 am.3
[4] The applicants were employed by the respondent in different positions 4 and
formed part of shift C. Mr. Sipho Tlou, the sole witness for the respondent and its
contract manager, explained that the work that is undertaken by the respondent is to
remove the waste of coal.
[5] Some of the respondent’s operations were impacted by the Covid-19 pandemic.
Consequently, the respondent claimed temporary employer -employee relief scheme
(TERS) payments from the Department of Employment and La bour (DoL). It is
common cause that the respondent’s site where the applicants were employed ,
namely, the Impunzi site, was not affected by the lockdown restrictions imposed by
the South African Government during the Covid -19 pandemic. Notwithstanding, the
respondent erroneously claimed TERS payments for the applicants and paid these
over to them. Aware of this error, the respondent took a decision to no longer claim
and pay TERS payments to the applicants. The last TERS payment was in May 2020.
2 Statement of claim at para 7, pp 6 to 7.
3 Transcribed record, pp 244 to 245.
4 Statement of claim at para 3.2, p 2.
3
All employees, including the applicants were informed that TERS payments would no
longer be effected.
[6] It is common cause that on 16 June 2020, the applicants , disgruntled at not
receiving the TERS payment, embarked on an unprotected strike action from 6 am to
2 pm.
[7] According to the respondent, it was only the applicants in shift C that partook in
the unprotected strike action. Shift C comprised of 13 employees. Only 8 of th ese
employees participated in the unprotected strike action, being the applicants. Further,
the applicants committed unlawful acts during the strike action.
[8] According to the applicants, employees in all the shifts participated i n the
unprotected strike action. The applicants allege the strike action was provoked by the
respondent, as the respondent failed to provide the applicants proof that it repaid the
TERS payments to the DoL.
[9] The respondent alleges that it issued two clear ultimata to the applicants, which
were ignored. The applicants deny being issued with any ultimata, and “in the event
that they were issued, they did not come to the attention of the individual applicants’.
5
[10] The applicants deny that they committed any unlawful acts during the
unprotected strike action.
[11] It is common cause that the National Union of Mineworkers (NUM) is a majority
trade union recognised by the respondent with organisational rights. AMCU , the
applicant union, is the minority trade union and does not have elected shop stewards
at the respondent’s site. The individual appl icants are members of AMCU. The
respondent does not take issue in its statement of response with the allegation that
the applicants are members of AMCU, however, the evidence of Mr. Tlou, is that the
5 Pre- trial minute, at para 4.7 on p A10.
4
payslips of at least two of the applicants (Amos Rakgalane and David Mnisi), are
members of NUM, as their payslips indicate this.6
[12] Following the unprotected strike action, t he applicants were called to appear
before a disciplinary hearing to answer to charges of misconduct. The applicants
contend that the respondent denied them the right to a representative from AMCU to
represent them at the disciplinary hearing and they were informed that NUM would
represent them. This was unpalatable for the applicants, as they are AMCU members
and for this reason, they collectively represented themselves at the disciplinary
hearing, barring one of the striking employees, Mr. Mnisi, who elected to represent
himself. Mr. Mnisi’s defence was that he was intimidated by his colleagues to
participate in the unprotected strike action. The respondent denies dictating to the
applicants that NUM would represent them at their disciplinary hearing.
[13] The applicants allege that their dismissal is unfair as they were “cherry-picked”
for dismissal although all the shifts comprising of 80 employees participated in the
unprotected strike action at the instance of NUM shop stewards during their shift. They
state that they were remorseful and apologized to the respondent during the
disciplinary hearing and yet , they were dismissed for a first offence. The applicants
further allege that they were suspended at 7:30 am and thus it was impossible for them
to render their services, adding to the unfairness of their dismissal.
Evidence
The respondent’s case
[14] The evidence of Mr. Tlou is that the site manager informed him on the morning
of 16 June 2020, that the applicants who form part of shift C, 13 in number, refused to
render their services until such time that they were paid the TERS money.
[15] He rushed to the site with management. On arrival, he observed the applicants
sitting in the tea room, not working. Management asked them why they were not
6 Bundle C, p 69 to 71 (C 69 to C 71)
5
working. The applicant stated that they would not render their services if they did not
receive the TERS money . Management attempted to explain to the applicants that
they were not due to receive the TERS payments as the site on which they work was
not affected by the Covid- 19 restrictions. On hearing this, the employees demanded
that they should receive the money as a bonus payment. Management did not agree
to this. They informed the applicants that their refusal to work was improper.
[16] Management phoned the union office, that is, the office of NUM, and spoke to
a certain Jacob (surname not provided) , a full time shop steward of NUM and asked
for his intervention. Jacob did not arrive at the site. Present at the site, was Mr. Sipho
Tsotetsi, a shop steward of NUM, who partook in the strike action along with the
striking employees.
[17] Management asked Mr. Tsotetsi to engage with the applicants, but he failed to
do so. Management once again engaged with the applicants informed them to return
to work. They refused. The applicants were informed that they would be disciplined for
their conduct. In response, they stated that the law would protect them.
[18] On 16 June 2020, management issued the applicants with the first ultimatum
7
at 06h45, which stated that they should return to work by 7am, faili ng which, they
would be disciplined. The ultimatum was read out in the English language to the
applicants by Mr. Mpho Sithole. No one asked for a translation. The applicants refused
to accept copies of the ultimatum where- after management left the ultimatum where
the applicants were seated. The applicants still refused to return to work at 7am.
[19] Management issued the applicants w ith a second ultimatum at 7:03 am.8 The
applicants refused to return to work. After the employees refused to return to work,
management drafted suspension letters and returned to the employees to speak to
them once again. At this stage, the applicants proceeded to the South pit, where they
worked and stood outside the security gate. Management attempted to speak to the
7 Bundle C, p 2 (C 2).
8 C 3.
6
employees but were unsuccessful. The suspension letters were not issued to the
applicants at that point.
[20] At approximately 11 am Mr. Tlou approached the applicants and attempted to
convince them to return to work. They informed him that they would not be dismissed
for not working for one day and that the law would protect them.
[21] Management had requested the nightshift to continue wor king after their shift
ended at 6 am , however there was opposition to this approach and t he night shift
worked until 8 am to keep production going. In addition, employees from a sister site,
ATC Re-Mining (ATC), were called in as replacement employees.
[22] Mr. Tlou observed t he applicants , in particular, Messrs Madinane and
Shakwane intimidating the employees from ATC Mining by swearing at them. He
stated that the applicants intimidated and prevented the employees from ATC to enter
the respondent’s premises, as they used a white VW Polo and taxis that were to return
the night shift and collect the afternoon shift, to block the road from ATC to the
respondent’s premises. The photograph at C75 shows the said vehicles blocking the
access road to the left of the vehicles, which is the road from ATC. These vehicles are
parked on the road that leads to the entrance of the respondent. He explained that
the taxis were prevented from leaving to drop off the night shift and colle ct the
afternoon shift. Therefore, the afternoon shift was asked to start their shift at 6 pm.
[23] Security removed the striking workers who were preventing the replacement
employees from ATC from entering the premises.
[24] After 1 pm , the applicants were issued with the suspension letters, but they
refused to accept them - as a result they were issued to the applicants by short
message system (SMS).
[25] Mr. Tlou’s evidence was that the applicants wanted proof that the respondent
had returned the TERS monies to the DoL. They were shown this proof but still refused
to return to work. Further, that the strike was not peaceful as the applicants intimidated
the employees from ATC Mining as well as the taxi driver who transports the
7
employees to and from work. Mr. Tlou denied that the applicants were “cherry-picked”
for dismissal.
[26] His evidence is that although the duration of the strike was short, production
was lost for the whole day, as the respondent is required to be productive 24 hours
and seven days a week. Mr. Tlou confirmed during cross-examination, that there is no
evidence before this Court of any loss of production and he maintained during re-
examination, that there was no work from 8 am to 11 am as the plant was at a standstill.
[27] Mr. Tlou confirmed that dismissal is the appropriate sanction as the
respondent’s disciplinary code makes provision for dismissal as a sanction for a first
offence of sabotage or refusal to work and intimidation. His evidence was that the five
employees in shift C who did not participate in the unprotected strike action were
intimidated and insulted by the striking applicants.
[28] During cross-examination, Mr. Tlou stated that management engaged with all
the employees about the TERS payments before 16 June 2020 and that all the other
shifts understood the position, except the employees in shift C. He further stated that
all the employees were shown proof that the TERS monies were returned to the DoL
before 16 June 2020. The engagements with the employees in shift C on 16 June
2020 centred around management informing them that they were not entitled to the
TERS payments when they demanded such payments before rendering their services.
It was pointed out to Mr. Tlou that hi s evidence is at odds with paragraph 3.4 of the
pre-trial minute, which states that it was during the subsistence of the strike action that
management had engaged with the employees and advised them that they were not
entitled to the TERS payments which had been paid back to the DoL.
9 Mr. Tlou
insisted that this discussion was held before 16 June 2020.
[29] Further, Mr. Tlou stated that the respondents proof of payment that it repaid the
TERS monies to the DoL was contained in a printed document, which document is not
before the Court. It was put to Mr. Tlou that no such proof of payment exists and that
the respondent failed to repay the TERS monies to the DoL.
9 See: pre-trial minute para 3.4, A2.
8
[30] It was also put to Mr. Tlou that contrary to his version during cross-examination
that NUM was contacted before the first ultimatum was issued, the respondent’s
pleaded case
10 is that NUM was contacted after both ultimata were issued. Mr. Tlou
distanced himself from the respondent’s case as pleaded in this respect.
[31] Mr. Tlou confirmed that only shift C employees were on strike on 16 June 2020
and they held up the nightshift in the taxis as well as the taxi drivers.
[32] Mr. Tlou denied that the applicants were given insufficient time to comply with
the ultimata. His evidence is that although the ultimata did not specify that the
applicants would be dismissed if they did not comply with them, the ultimata were clear
that non-compliance would result in a disciplinary enquiry and that dismissal is one of
the outcomes of a disciplinary enquiry.
[33] He confirmed that the employees of the night shift were not charged because
they worked their shift and the employees of the afternoon shift were not charged
because they started their shift later, at 6 pm as was requested by management due
to the strike action. He denied any provocation by management. He confirmed that
NUM members who participated in the strike action were disciplined and ultimately
dismissed.
The applicants’ case
[34] The applicants called three witnesses: Mr. Godfrey Shakwane, one of the
applicants and a truck operator, Mr. Herbert Lubisi, a taxi driver at the respondent and
Mr. David (Joseph) Mnisi, one of the applicants.
[35] The evidence of Mr. Shakwane was that Mr. Tsotetsi kept th e employees
abreast of the TERS payments. This payment was not received on 16 June 2020.
10 Statement of response at B15.
9
[36] When he arrived at work on 16 June 2020 at approximately 5:30 am, he noticed
other shift employees had parked their private cars in the parking area on the
respondent’s premises at the security gate. There were approximately 50 employees
on site. When he entered the premises, he saw shift B employees and Mr. Tsotetsi
engaging with management.11 He confirmed that Mr. Tsotetsi was a NUM shop
steward who worked in shift B. The employees wanted proof that the respondent had
paid back the TERS monies to the DoL; the employees were only prepared to return
to work once they were shown proof to their satisfaction, that the monies had been
paid to the DoL.
[37] He stated that management held up a piece of paper which they claimed was
the proof of the repayment, but the piece of paper was at a distance and the applicants
could not read it. He later stated that the proof of payment was not visible because it
was dark as it was approximately 5:30 am . When asked why the applicants did not
ask to see the piece of paper, his response was that they did not , due to soc ial
distancing (a preventative measure during the Covid-19 pandemic).
[38] Mr. Shakwane did not dispute that the employees were not entitled to the TERS
payments - he stated that the applicants were aware that the respondent was claiming
the TERS payments for them and in the circumstances, they wanted these payments
to be paid to them as a bonus.
[39] He denied receiving any ultimatum and denied that the ultimata were read out
to the applicants in the English language. His evidence was that English is not his first
language and he has little knowledge of the language and it is difficult to read.
[40] Mr. Shakwane stated that the respondent’s HR manager confirmed that the
TERS monies would not be paid to them. When no proof of payment was provided,
management told them to vacate the premises at 1 pm. They proceeded to the South
pit parking area and stood there. After a while, he saw a security guard telling the
drivers to move the cars from the parking area as they were prohibited from gathering
due to social distancing. The employees then proceeded to park on the road that
11 Transcribed record, pp 178 to 179.
10
appears at C75. He confirmed that the employees who had gathered as depicted in
C75 were the night shift, shift C and other shifts. He confirmed that the VW Polo vehicle
in the photograph at C75 belongs to Mr. Tsotetsi. He denied that shift C held the night
shift and the taxi drivers, including one Mr. Herbert Lubisi (taxi driver), hostage.
[41] On 24 June 2020 at the disciplinary enquiry, the applicants were told by the
respondent that they would be represented by NUM. They did not agree with as they
are AMCU members. Therefore, they represented themselves. He confirmed that the
applicants were remorseful and they wrote a letter apologising for their conduct for not
going to work. He confirmed that the letter at page C 44 was drafted by him. He denied
that the applicants intimidated the employees from ATC by swearing at them or
preventing them access to the respondent’s premises . He further denied that the
applicants intimidated any employee who tendered services. Further, that there was
no evidence during the disciplinary hearing regarding any intimidation by the
applicants.
[42] During cross examination, Mr. Shakwane confirmed that all four shifts were on
strike.
12 He was d irected to the document at C36, which initially, he stated he knew
nothing about it, and ultimately, he capitulated and read it without any difficulty in the
English language and stated that he knows the document: he wrote and signed it.
When asked why the document says that only shift C and D were on strike, when the
applicant’s version before this Court is that all the four shift s were on strike. His
response was: “We were still confused”.
[43] Mr. Shakwane changed his version and stated that the people in the
photograph at C75 are employees who work shift C and D who were on strike and not
shift A and B employees.
[44] Mr. Shakwane confirmed receipt of the suspension letter on 17 June 2020 and
did not recall when he received the notice to attend the disciplinary hearing, which is
dated 18 June 2020. He confirmed being aware of his right to bring his own
representative to the hearing. His reason for not bringing a representative was
12 Statement claim at para 5 and its subparagraphs, A 4 to A 5.
11
because he believed it was the responsibility of the respondent to contact AMCU to
inform the union that “ your people… did not do the right thing”. He explained that he
did not contact the union because “Maybe… we did not understand what was written
…because English is not our language”.13
[45] Mr. Shakwane stated that Mr. Tsotetsi was the NUM shop steward for the
applicants, this after Jacob was transferred to Middelburg. He confirmed that the
applicants trusted Mr. Tsotetsi more than they trusted the respondent - they reported
everything to Mr. Tsotetsi and acted in concert with him.
[46] In a series of questions in cross – examination as to whether Mr. Shakwane
trusts the respondent, he answered in the negative, citing reasons that to date, the
respondent has not provided proof of the repayment of the TERS monies to the DoL
and that it proof is provided, they will return to work. Shortly afterwards, he contradicted
himself and said he trusts the respondent.
[47] Mr. Shakwane admitted that he pleaded guilty to the charge against him, which
was gross misconduct for participation in an unprotected strike action and intimidation
of non-striking employees.
14
[48] Mr. Lubisi’s evidence was that he transported the employees of the respondent
for four years. On 16 June 2020, he transported employees in two shifts: “Shakwane’s
shift” and “Tsotetsi’s shift”. He collected them at 4:30 am and he dropped them at the
main gate of the respondent at approximately 5:30 am as they were to attend a
meeting. He later stated that he took the shifts to a meeting at the South pit from 5:30
am to 1 pm.
[49] He was aware that Shakwane’s shift starts at 6 am and Tsotetsi’s at 2pm . He
confirmed that one of the taxis he drove appears in the photograph at C75, and inside
his taxi were 3 shifts. He denied being held hostage by these employees and denied
blocking ATC employees.
13 Transcribed record at pp 253 to 254.
14 Mr. Shakwane’s charge sheet appears at C14 and the plea, at C 29.
12
[50] Mr. Lubisi stated that the second taxi transported a “mixed shift”. He was unsure
how long the vehicles were parked on the side of the road. His evidence is that the
vehicles were on the side of the road after 1 pm. He does not know when he left the
area and when he collected the afternoon shift – he stated that they started late.
[51] Mr. Mnisi’s evidence is that he was part of shift C and felt threatened by Mr.
Tsotetsi who told him that if he does not participate in the strike action, he will be a
sell-out. He did not intend to, nor want to participate in strike action and he suggested
Mr. Tsotetsi and his shift remain and speak with management while shift C went to
work, but he was threatened by him. Mr. Mnisi asked someone to write his apology at
pages C 37 and 38 during the disciplinary hearing.
[52] Mr. Mnisi confirmed that he was in the taxi driven by Mr. Lubisi on 16 June 2020
and the first meeting began at South pit. Messrs. Tlou and Sithole arrived and asked
them to return to work – they were given time within which to return t o work, failing
which, they would be asked to leave the premises. He confirmed that the ultimatum at
C2 was issued to the striking employees. Mr Mnisi suggested that two representatives
remain with management, that there was no agreement. He confirmed that
management informed the striking employees that they must conclude their
discussions and return to work. He confirmed that the second ultimatum at C3 was
issued to the striking employees and they were once again informed to return to work,
failing which, they would be disciplined. Mr. Mnisi confirmed that the ultimata were
issued in front of all the applicants. His evidence was that three shifts were present
and the fourth shift was off work.
Legal framework
[53] Section 68(5) of the LRA provides as follows:
‘Participation in a strike that does not comply with the provisions of this Chapter, or
conduct in contemplation or in furtherance of that strike , may constitute a fair reason
for the dismissal. In determining whether or not the dismissal is fair, the Code of Good
Practice: Dismissal in Schedule 8 must be taken into account.’
13
[54] Item 6 of Schedule 8 of the Code of Good Practice: Dismissal (the Code)
provides as follows:
‘6. Dismissals and industrial action
(1) Participation in a strike that does not comply with the provisions of chapter IV is
misconduct. However, like any other act of misconduct, it does not always
deserve dismissal. The substantive fairness of dismissal in these circumstances must
be determined in the light of the facts of the case, including—
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the
employer.
(2) Prior to dismissal the employer should, at the earliest opportunity, contact
a trade union official to discuss the course of action it intends to adopt. The employer
should issue an ultimatum in clear and unambiguous terms that should state what is
required of the employees and what sanction will be imposed if they do not comply
with the ultimatum. The employees should be allowed sufficient time to reflect on the
ultimatum and respond to it, either by complying with it or rejecting it. If the employer
cannot reasonably be expected to extend these steps to the employees in question,
the employer may dispense with them.’
[55] And item 7 of the Code reads:
‘7. Guidelines in cases of dismissal for misconduct
Any person who is determining whether a dismissal for misconduct is unfair should
consider—
(a) whether or not the employee contravened a rule or standard regulating conduct
in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not—
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been
aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or
standard.’
14
Analysis
[56] It is common cause that the applicants, employees of shift C participated in an
unprotected strike action on 16 June 2020, from 6 am to 2 pm and during the hours of
their shift. It is also common cause that is not the entire shift C comprising of the 13
employees participated in the strike action, but only 8, being the applicants.
[57] It is in dispute as to whether only the employees in shift C participated in the
strike action. The evidence of Mr. Tlou is that it was only shift C employees who
participated in the unprotected strike action, whereas the evidence of the applicants’
witnesses is that it was not only the shift C employees who participated in the strike
action. Their evidence is contradictory. Their pleaded case is that all four shifts
participated in the strike actio n. Mr. Shakwane’s changed between all shifts
participating, to only two shifts (C and D) , and later, to “ others” drove their own cars.
The evidence of Messrs . Lubisi and Mnisi is that only three shifts were on strike,
excluding the fourth shift, which was off work. In light of these material contradictions,
the applicants’ version that more than one shift was on strike is rejected. Mr. Tlou’s
version is more probable that only some employees in shift C participated in an
unprotected strike action. On the undisputed facts, the night shift had completed their
duties and worked extended hours (until 8 am) and were prevented from being
transported home because the applicants were on strike and used the taxis to prevent
the ATC miners from entering the respondent’s premises. The photo images of the
strike action do not support the applicant’s pleaded version that 80 employees
comprising of all shifts were on strike.
[58] The reason for the strike is that the applicants demanded payment of the TERS
monies that were not due to them. This is not in dispute. Their demand that they be
paid bonuses from funds that they were not entitled to, is untenable. The applicants’
version that they went on strike because the respondent failed to produce proof that
they repaid the TERS monies to the DoL is rejected for the reason that follows below.
[59] On the applicants’ own version, the respondent showed them proof of payment
contained in a document. Mr Tlou’s evidence is that the applicants were shown a PDF
15
document. Mr. Shakwane did not dispute this, although the date on which the
employees were shown the document is disputed. The date they were shown the
document is of no moment, as the version of the applicants is that they refused to work
on 16 June 2020 until such time they were shown the proof of repayment. It was shown
to them – that is not disputed. Mr. Shakwane’s version that the applicants could not
see the document at it was dark at 5:30 am and at a distance and that the applicants
did not ask to se e the document at close proximity because of social distancing
restrictions is improbable.
[60] Mr. Shakwane is not a reliable witness. He i s also dishonest. His version is
contradictory and inconsistent. He changed his version from initially stating that all four
shifts were on strike, to only two shifts when he was confronted with the statement that
was written by him at C 36. He feigned ignorance about his own document. After
admitting that he wrote the document, he stated that perhaps they were confused
about the number of shifts that partook in the strike action. He was dishonest about
not knowing the English language, when he wrote the document in English and read
it with no difficulty . He also changed his version about the employees who were
photographed in the image at C 75 as stated above.
[61] On Mr. Shakwane’s version, he implicated shift D (night shift) in the unprotected
strike action in the applicants’ statement at C 36, however, in responding as to why
shift D must be disciplined as they worked their shift, Mr. Shakwane stated that shift
D ought to have been disciplined because they did not remain at their workstations
until they were relieved by the next shift.
15 This version is an afterthought as Mr.
Shakwane agreed that the nightshift were to work until 6am. The respondent’s version
is more probable that the night shift continued working until 8am because of the next
shift, Shift C.
[62] Mr. Shakwane’s explanation as to why the applicants di d not approach AMCU
to represent them in the disciplinary hearing is unconvincing. N othing prevented the
applicants from approaching AMCU their union, or Mr. Tsotetsi for assistance. On Mr.
Shakwane’s version, the applicants reported everything to Tsotetsi and acted in
15 Transcribed record, p 222.
16
concert with him, although he was a NUM shop steward. Mr. Shakwane stated that
Jacob, the NUM shop steward, was transferred to Middleburg and Mr. Tsotetsi was
chosen to be their shop steward. On Mr. Shakwane’s own version, they trusted Mr.
Tsotesti more than their own employer.
[63] Mr. Shakwane contradicted himself as to whether or not he trusts the
respondent. He is a witness who speaks with a forked tongue. Although stating that
the employees apologized for their conduct of not rendering their services, he stated,
three years later, that he would only return to work if the respondent produced proof
of repayment of the TERS monies. This is demonstrative of the lack of remorse for
misconduct and in circumstances where on his own version, proof of payment was
shown to the employees three years ago.
[64] Mr. Shakwane pleaded guilty to the charges of participating in an unprotected
strike action and committing acts of intimidation. His attempt at distancing himself from
his plea of guilt in relation to intimidation is unconvincing in light of the guilty plea to
one charge.
[65] Mr. Shakwane did not dispute t he evidence of Mr. Tlou that him and Mr.
Madinane swore at the ATC employees, other than denying, in general terms, that any
acts of intimidation took place.
[66] Mr. Lubisi is a witness who was coached. He is not a reliable witness. He knew
to say which shift he collected at what time, the time he dropped them off and the time
they moved to the road side. Yet, he was unable to say what time he left to collect the
next shift that started “later”. His evidence contradicts that of Mr. Shakwane, who said
he arrived at the respondent’s premises and saw Mr. Tsotetsi and shift B talking to
management, while Mr. Lubisi said he transported both Shakwane and Tsotesti’s shifts
on 16 June 2020.
[67] In order to paint himself out of a corner with regard to the shifts that partook in
the strike action, he stated that the second taxi carried a “mixed shift” and that other
employees in other shifts were walking. He knew to say what time the meeting started
on 16 June 2020 at South pit and that the employees were told to vacate and reached
17
the roadside after 1pm. He could not explain what time he left to collect the afternoon
shift – he could not because on his version, “mixed shifts” were at the road side and
others were on foot.
[68] Mr. Mnisi’s evidence is that he took a different stance from Mr. Tsotetsi and was
threatened. The applicants state that Mr. Mnisi was not threatened by them but was
threatened by NUM members. In my view, Mr. Mnisi’s election to conduct his own
defence at the disciplinary hearing shows that he distanced himself with the conduct
of his fellow workers. Mr. Mnisi is a reliable witness. He was honest in his evidence
that ultimata were issued and that the striking employees refused to heed to them.
[69] In Stellenbosch Farmers' Winery Group Ltd. and Another v Martell and Cie SA
and Others
16, the Court gives guidance as to how a trial Court is to deal with mutually
destructive versions.
[70] In light of the aforesaid contradictions and inconsistencies that permeate the
evidence of Messrs Shakwane and Lubisi, I find that they are unreliable witnesses
who lack credibility. Mr. Tlou’s evidence was consistent. Mr. Mnisi’s evidence
corroborated that of Mr. Tlou in respect of the issuance of the ultimata.
[71] I find the respondent’s version more probable that the applicants prevented the
ATC employees from accessing the respondent’s premises on the road, by parking
the taxis and Mr. Tsotetsi’s vehicle at the access road that runs perpendicular to the
road (main road) that is en route to the respondent’s premises. I find the applicant’s
version that they parked on the side of the road because security told them to observe
social distancing and to prevent them from gathering improbable, as they gathered on
the side of the road at the access road.
[72] I find the respondent’s version probable that it was only shift C employees who
were on strike and they prevented the taxis from transporting the night shift home. The
number of persons in the taxis do not support the applicant’s version that all shifts
were on strike comprising of about 80 as pleaded by the applicants, let alone 50
16 (427/01) [2002] ZASCA 98 (6 September 2002) 2003 1 (SA) 11 (SCA).
18
people, as is the evidence of Mr. Shakwane. Mr. Lubisi’s version that other employees
were on foot is unconvincing and an afterthought.
[73] I find the respondent’s version probable that the applicants were not suspended
at 7:30 am. On the applicants’ own version, they were suspended the following day,
17 June 2020. On Mr. Lubisi’s version, the employees’ meeting commenced at about
5:30 am until 1pm. Not only is t he version that the applicants were prevented from
working because they were suspended not plead ed, is also not supported by any
evidence.
[74] I find that the applicants were charged for misconduct as they withheld their
labour and refused to work their shift from 6 am to 2 pm. The other shifts worked their
shifts – the night shift was extended by two hours; the afternoon shift star ted late, at
6pm and the off shift was off duty. There was accordingly no reason to charge them
for participating in an unprotected strike action.
Did the striking workers commit acts of intimidation?
[75] Although no video evidence was made available of acts of intimidation by the
striking workers, in circumstances where a guilty plea was entered for a single charge
(participating in an unprotected strike action and intimidation) and a signed written
apology was tendered by the applicants during the disciplinary hearing,
17 there would
have been no need for the respondent to lead evidence on the charge. Further, in
circumstances of undisputed evidence of swearing by Messrs. Shakwane and
Madinane to intimidate the ATC employees, I find that these aforesaid two applicants
were guilty of such acts . I have already stated my reasons above, for finding the
version of the respondent more probable.
Were the striking workers provoked by the respondent?
[76] I do not find that there was any provocation by the respondent for the strike
action. The respondent provided proof of the repayment to DoL.
17 C 24.
19
[77] The applicants’ conduct amounted to misconduct. The contravention of the
provisions of Chapter IV of the LRA are serious, more- so that they demanded what
was not due to them and were not provoked.
Were the applicants issued with an ultimatum/s? If so, was it clear and sufficient to
allow them to reconsider their actions?
[78] The applicants deny being issued with ultimata . Much was made by Mr. Cook
on behalf of the applicants that even if the ultimata were issued, they did not give the
applicants sufficient time to reconsider their position and were unclear, as the
applicants were not informed what consequences would follow for failing to heed to
the ultimata. None of this was pleaded. The statement of case is silent about ultimata.
[79] Despite denying that any ultimata were issued, the applicants rely on National
Union of Metalworkers of South Africa v GM Vincen t Metal Services (Pty) Ltd
18
(NUMSA v GM Vincent ) and Nelspruit Drycleaners (Pty) Ltd v South African
Commercial Catering and Allied Workers Union and Others19 to demonstrate that the
ultimata were unfair and insufficient and therefore contend that a determination of
whether the dismissal pursuant to the issuing of the ultimatum is unnecessary , as an
unfair ultimatum renders the dismissal substantively unfair.20
[80] I find the applicant’s version untrue that they were not issued with ultimata. The
applicants were issued with two clear ultimata and did not heed to them. The
applicant’s version that no ultimata were issued is therefore, rejected. Mr. Mnisi’s
evidence is that ultimata were issued and the striking employees were aware that they
were required to resume their duties. His voice of reason was drowned out by threats
of being a sell-out.
[81] The ultimata are not without problems. In my view, they were issued in quick
succession, and NUM was not notified at the earliest opportunity to intervene. I do not
find that there was any duty for the respondent to contact AMCU, as, on the applicant’s
18 (1999) 20 ILJ 2003 SCA at para [21].
19 (1994) 15 ILJ 283 (LAC).
20 See paras 52 and 53 of the applicants’ heads or argument and the authorities cited therein.
20
own version, Mr. Tsotetsi was their shop steward, albeit a NUM shop steward, they
trusted him and danced to his tune and at no stage called upon AMCU to represent
them (even at the stage of the disciplinary hearing). Mr. Tsotetsi was part and parcel
of the strikers and he therefore, was not in a position to dissuade the striking workers
from their conduct. However, I find that the ultimata were clear, as they warned the
striking employees that their conduct would result in ‘no work, no pay’ and disciplinary
action. Although there are shortcomings in the ultimata as indicated above, the
applicants were provided with sufficient time to reconsider their actions – this being
the voice of reason of Mr. Mnisi, which they ignored.
[82] The applicants were subsequently notified to attend a disciplinary hearing and
were provided with an opportunity to bring a representative in the form of a union or
fellow employee. They chose not to do so – the evidence of Mr. Shakwane confirms
this. It was not the responsibility of the respondent to inform AMCU to represent their
members at a disciplinary hearing. The applicants to their own detriment, did not call
upon AMCU to represent them.
[83] I therefore, find that the applicants were provided with a fair opportunity to state
their case in answer to allegations of misconduct and to raise a defence to the charges
as aforesaid.
[84] In Modise and Others v Steves Spar Blackheath
21 the Labour Appeal Court
drew a distinction between the purposes of an ultimatum and a disciplinary hearing.
The former affords the striking employees an opportunity to reconsider the actions and
to seek advice. The latter affords the employees to be heard in explaining their conduct
and observes the audi alteram partem principle before steps that prejudice their rights
are taken.
[85] The applicants, barring Mr. Mnisi, blatantly lied that no ultimata were issued and
denied that they came to their attention, if issued. The ultimata are clear and were
understood. So much so that when Mr. Mnisi suggested the employees work while
representatives resolve the TERS issue with management, he was threatened by Mr.
21 [2000] 5 BLLR 496 (LAC).
21
Tsotetsi. On the facts, the applicants had no intention of returning to work. They
wanted payment of monies not due to them, at any cost and refused to return to work,
even when proof of repayment to DoL was shown to them. On the facts, they wanted
such payment as a “bonus”, which as I have said, is untenable. The applicants at no
stage, gave any indication of seeking time to obtain advice from their own union. They
were happy to follow the instructions of Mr. Tsotetsi.
[86] The union (NUM) was not called at the earliest opportunity to intervene – when
he was contacted, he did not arrive at the respondent’s premises. AMCU was not
contacted, this, in circumstances where on the applicants’ own version, they chose
Mr. Tsotetsi as their union representative trusted him more than their own employer.
Time was of the essence, as the duration of the shift was on strike , was 8 hours. In
the circumstances of this case, I find that the ultimata were reasonable.
[87] I find that the facts of the present case are distinguishable from NUMSA v GM
Vincent, as, in that case, the employees were dismissed for failing to heed to an
ultimatum, which called upon them to heed thereto failing which they were to consider
themselves dismissed and were ultimately notified of their dismissal.
[88] In casu, the applicants were afforded an opportunity to appear at a disciplinary
hearing to hear allegations of misconduct. They pleaded guilty to the charges. In the
circumstances of a guilty plea, it is unnecessary to lead evidence on the merits of the
offence. In my view, on the facts of the present case, the applicants were afforded an
opportunity to explain their conduct and to state their case. I have dealt with whether
they were given a fair opportunity to do so, above and I reiterate that they were
afforded a fair hearing.
[89] On the surrounding circumstances of the case as set out above, I find that the
ultimata were reasonable.
Did the applicants breach a workplace rule they were aware of or ought to have been
aware of and was such rule consistently applied?
22
[90] The applicants were aware or ought to have been aware that their conduct is in
breach of a rule of the respondent. Mr. Tlou’s evidence is that he pleaded with the
applicants and they told him the law will protect them as they cannot be dismissed for
striking for one day. There were clearly no attempts by the applicants to comply with
the law.
[91] The applicants were charged for gross misconduct pertaining to participating in
an unprotected strike action and sabotage and intimidation. The disciplinary code of
the respondent, which is a guideline, provides for dismissal for the aforesaid acts of
misconduct. The employees refused to work for monies they were not entitled to and
demanded that the monies be paid to them as a bonus - such conduct elicits corruption
and is frowned upon.
[92] I find that only shift C and only the applicants participated in the unprotected
strike action. They were therefore, not ‘cherry-picked’ as they allege. Inconsistency in
the application of discipline does not arise.
[93] The applicants do not trust the respondent. That is clear from the statements
by Mr. Shakwane, who to this day, still wants to see proof of repayment of the TERS
monies. It is trite that the lack of trust irretrievably breaks down the employment
relationship. The lack of remorse by the applicants, baring that shown by Mr. Mnisi, is
glaring.
[94] In the circumstances, I find that dismis sal is the appropriate sanction for the
applicants, barring Mr. Mnisi, who is to be commended for his honesty in not wasting
the Court’s time in admitting that ultimata were issued and trying to be the voice of
reason. His was threatened by Mr. Tsotetsi to participate in the strike action, but it was
not his intention to participate in the strike.
22 He stated that he could not report to the
respondent, Mr. Tsotetsi’s threat against him as his access card was blocked following
the strike action. He showed remorse. His evidence is that he did not intimidate
anyone. The respondent did not contest this evidence. I am of the view that dismissal
in his instance, was harsh. It transpired during his evidence, that Mr. Mnisi is 63 years
22 Record, p 311, p 313 to 314.
23
old. Reinstatement would in the circumstances, be impracticable. I am of the view that
12 month’s compensation is an appropriate remedy for Mr. Mnisi in light of all the
circumstances of this case.23
[95] In view of the afore-going, the following order is made:
Order
1. The applicants’ claim is dismissed, save for Mr. Mnisi’s claim.
2. The dismissal of Mr. Mnisi is substantively unfair.
3. The respondent is to pay Mr. Mnisi 12 months’ compensation calculated at the
rate of his remuneration on the date of his dismissal.
4. There is no order as to costs.
M. T. M. Phehane
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. A Cook
Instructed by: LDA Inc.
For the Respondent: Adv. M. Lukhele (Trust Account Advocate)
23 Section 193 read with section 194 of the LRA.