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2024
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[2024] ZALCJHB 67
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Worldwide Staffing (Pty) Ltd v Metal And Engineering Industries and Others (JR1367-23) [2024] ZALCJHB 67; (2024) 45 ILJ 1128 (LC) (12 February 2024)
FLYNOTES:
LABOUR – Dismissal –
Picketing
–
Joining
group carrying offensive placards – Arbitrator found
dismissal substantively unfair and awarded reinstatement
–
Allege they were not holding the placards – Admitted to
joining picket – Grossly irrational for arbitrator
to find
respondents were dismissed for merely witnessing misconduct –
Misconstrued nature of enquiry – Dismissal
was sensible
operational response to risk management – Dismissal
substantively fair.
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR1367/23
In
the matter between:
WORLDWIDE
STAFFING (PTY) LTD
Applicant
and
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
1
st
Respondent
COMMISSIONER
THEMBILE MDALI
2
nd
Respondent
HEAVYMAN VUKEA
3
rd
Respondent
TERRENCE
CHAUKE
4
th
Respondent
Heard:
7 December 2023
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives by
email and publication on the Labour
Court’s website. The date and time for the hand-down is deemed
to be 12 February 2024.
JUDGMENT
WEHNCKE, AJ
Introduction
[1]
This judgment concerns an
application for the review and setting aside of an arbitration award
in terms of section 145 of the Labour
Relations Act.
[1]
[2]
In what follows, I set out the background to the dispute, a summary
of the evidence before the arbitrator, the arbitrator’s
findings, an analysis of the applicable legal principles and a
conclusion on whether the arbitration award ought to be reviewed
and
set aside.
Background
[3]
The Applicant carries on business as a Temporary Employment Service
Provider (TES). For the reward, it procured the services
of the Third
and Fourth Respondents to work at its client, Zest Weg Electric (Pty)
Ltd (Zest).
[4]
In August 2022, the latter’s staff embarked on a protected
strike.
[5]
Meanwhile, the Third and Fourth Respondent’s trade union,
Dynamic Peoples Union of South Africa (DYPUSA), gave notice
of a
secondary strike in support of the demands that Zest permanently
employ all TES employees and that Medical Aid and a 13
th
cheque be afforded to them.
[6]
Picketing rules, however, prohibited participants from displaying
placards, posters, banners, or similar items containing
words or
pictures that are defamatory of any director, agent or employee of
the Applicant or its client. They were also prohibited
from engaging
in inciteful, provocative or intimidating behaviour and could only
picket within a designated area, some forty metres
from a private
entrance.
[7]
On the morning of 7 September 2022, the Third and Fourth Respondents
attended a picket at Zest’s premises. Notwithstanding
the
aforesaid picketing rules, they joined a group carrying offensive
placards with slogans such as “
cruel corrupt Zest”
,
“
abuse at Zest”
, “
one must die”
,
and “
wafa wafa
” - which loosely translated means
“
whoever dies, dies”.
[8]
It was undisputed that these utterances were grossly unacceptable. In
further contravention of the picketing rules, the
group marched
around the premises as opposed to peacefully picketing in the
designated area. Chaos erupted when the protesters
started blocking
roads and damaging property.
[9]
Along with others, the Third and Fourth Respondents were subsequently
called to account for their actions at a disciplinary
inquiry.
Thereafter, they were dismissed for associating with the offensive
placards and picketing outside the designated area
in violation of
the picketing rules.
[10]
Aggrieved by this outcome, the Third and Fourth Respondents
approached the First Respondent (Bargaining Council) to challenge
the
fairness of their dismissal. The Second Respondent (Arbitrator)
concluded that their dismissal was substantively unfair and
awarded
retrospective reinstatement.
[11]
On review to this court, the Applicant attacked the reasoning process
in making the award on an array of alleged gross
irregularities;
essentially, that the Arbitrator misconceived the issues, undertook
the enquiry in the wrong manner and failed
to properly evaluate the
evidence presented at arbitration, culminating in an unreasonable
result.
[12]
In
Quest
Flexible Staffing Solutions (Pty) Ltd (a division of ADCORP
Fulfilment Services (Pty) Ltd) v Lebogate
,
[2]
the Labour Appeal Court
appropriately summarised the test as follows:
‘
[12] …
Our courts have repeatedly stated that in order to maintain the
distinction between review and appeal, an award
of an arbitrator will
only be set aside if both the reasons and the result are
unreasonable. In determining whether the result
of an arbitrator’s
award is unreasonable, the Labour Court must broadly evaluate the
merits of the dispute and consider whether,
if the arbitrator’s
reasoning is found to be unreasonable, the result is nevertheless
capable of justification for reasons
other than those given by the
arbitrator…’
Evidence
before the arbitrator
[13]
At arbitration, the Third and Fourth Respondents claimed that their
dismissal was unfair because they were not the ones
holding the
offensive placards. According to them, they did nothing wrong and
suspected the Applicant wanted them out to minimise
the influence of
union membership in the workplace.The Applicant countered that they
were dismissed solely for their misconduct
during the picket.
[14]
The Third Respondent was appointed as a marshal to uphold the
picketing rules. He and the Fourth Respondent were fully
acquainted
therewith. Both were photographed with a group of protesters carrying
offensive placards with slogans in breach of the
picketing rules.
Reasonably construed, these slogans sought to defame, intimidate and
incite violence during the strike. Protestors
also did not heed the
picketing lines. Eventually, the strike turned violent.
[15]
The Third and Fourth Respondents said they disagreed with the
placards and reported the offensive material to a shop
steward or
marshal. Exactly when and how they did so was unclear. No witnesses
were called to corroborate their version in this
regard. Other than
referring to someone called “Vincent”, they could not
identify the individuals to whom they allegedly
reported.
[16]
Initially, the Third Respondent stated that he resigned from the
union when his colleagues started throwing stones. However,
during
cross-examination, he conceded that he resigned long after the strike
and not in response to the violence. Before joining
the protest on
the day in question, he knew some group members intended to display
signage in contravention of the picketing rules.
Though he could not
read the wording on the placards, he was convinced something was
amiss. Yet, he had no problem reading the
wording from the
photographs presented to him at arbitration.
[17]
The Fourth Respondent testified that he joined the group because he
was so ordered by the marshals. He admitted they
were demonstrating
and singing for the same purpose. When he noticed the offensive
placards, he went to report the violation of
the picketing rules to a
marshal. Yet, he immediately returned to the same group to continue
the protest. The placards remained
on full display for at least
another thirty minutes thereafter.
[18]
He conceded that he could have left at any time but elected to
associate with the group despite their offensive displays.
[19]
The Applicant argued that continuous employment was intolerable due
to the seriousness of their actions and its adverse
impact on the
employment relationship. Conversely, the Third and Fourth Respondents
contended that they could not be blamed for
the missteps of others;
hence, they ought to be reinstated.
Arbitrator’s
findings
[20]
The Second Respondent found the Applicant dismissed the Third and
Fourth Respondents for witnessing others holding the
offensive
placards. To him, it mattered not whether they joined the picket
outside the designated area. Their failure to call witnesses
to
substantiate claims that they reported the violations was also of no
consequence. Because the offending placards were eventually
taken
down, it must have been due to them reporting it to the conveners.
[21]
Despite being a marshal, the Third Respondent had no control over the
picket. Therefore, the Second Respondent deemed
it sufficient that he
and the Fourth Respondent reported the offending materials to the
conveners of the strike.
[22]
In applying principles of collective misconduct, the Third and Fourth
Respondents were found unblameworthy because they
were not directly
implicated in the ensuing violence. According to the Second
Respondent, their actions were not destructive of
the employment
relationship, so dismissal was substantively unfair.
Analysis
[23]
An employee’s
common law obligations of promoting the employer's interests and
refraining from misconduct encompass a specific
duty to disassociate
from misconduct perpetrated by others.
[3]
In this case, the Third
and Fourth Respondent’s association with the group did not
require inferential reasoning. They admitted
to joining the picket,
where some carried offensive placards in violation of the picketing
rules. They admittedly also crossed
the relevant picketing lines with
the group. Thus, to escape complicity in this context, they had to
actively distance themselves
from the primary misconduct committed by
the others.
[4]
They failed to do so.
[24]
It was grossly irrational for the Arbitrator to find that the Third
and Fourth Respondents were dismissed for merely
witnessing the
misconduct of others.
[25]
Because he proceeded from
the wrong premise, the Arbitrator misconstrued the nature of the
enquiry. Had the Arbitrator properly
applied his mind, he would have
at least considered that a protected picket is meant to be an
extension of collective bargaining,
not a licence to intimidate or to
simply tarnish an employer’s reputation. The slogans written on
the placards were undoubtedly
defamatory and aimed at creating a
hostile and intimidating atmosphere. Upon contravention of the
picketing rules, the picket lost
its protected status.
[5]
These offensive slogans
most probably contributed to the ensuing violence. So did crossing of
the picketing lines.
[26]
The Third and Fourth Respondents voluntarily aligned with the group.
The sole basis of their defence was that they did
not physically
carry the offensive materials. For reasons already stated, this was
irrelevant.
[27]
It has been held that
fairness rests at the equilibrium between competing rights and
interests. An enterprise's viability depends
very much on the
trustworthiness of its staff. Conduct destructive of this trust would
render continuous employment untenable or
at least undesirable.
[6]
[28]
Despite overwhelming evidence against them, the Third and Fourth
Respondents denied any wrongdoing and showed no remorse
for their
actions. Conceivably, this cemented the intolerable notion that they
cannot be entrusted with refraining from committing
the same
misconduct in future.
[29]
Accordingly, their dismissal was a sensible operational response to
risk management, as it would also send an unequivocal
message to
others that individual misconduct in a collective setting will not be
tolerated.
[30]
Under these circumstances, dismissal was proportionate and fair.
Conclusion
[31]
Ultimately, the decision by the Arbitrator was one that a reasonable
decision-maker could not reach. For this reason,
the application for
review must succeed.
In
the premises, the following order is made:
Order
[32]
The arbitration award rendered by the Second Respondent under the
auspices of the First Respondent in MEGA59553 is reviewed,
set aside,
and replaced with the following:
1. The dismissal of
Heavyman Vukea and Terrence Chauke was substantively fair.
2. Their claim is
dismissed.
[33]
No order as to costs.
J.A. Wehncke
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant:
Mr Ephraim Kungwimba
Instructed
by:
Hunts (Inc. Borkums) Attorneys
For
the Respondents: No Appearance
[1]
Act
66 of 1995, as amended.
[2]
(2015)
36 ILJ 968 (LAC);
[2014] ZALAC 136
at para 12.
[3]
Association
of Mineworkers and Construction Union and Another v Metal and
Engineering Bargaining Council and Others
(2019)
40 ILJ 1262 (LC).
[4]
Commercial
Stevedoring Agricultural and Allied Workers’ Union and others
v Oak Valley Estates (Pty) Ltd and another
[2022]
6 BLLR 487
CC; [2022] 6 BLLR 487 (CC).
[5]
National
Union of Metalworkers of South Africa and others v Dunlop Mixing and
Technical Services (Pty) Ltd and others
[2021]
3 BLLR 221 (SCA); [2020] ZASCA 161.
[6]
De
Beers Consolidated Mines Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2000)
21 ILJ 1051 (LAC);
[2000] ZALAC 10.