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[2024] ZALCJHB 80
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Ngobeni and Others vs Interspray Durban CC (JS739-18) [2024] ZALCJHB 80 (21 February 2024)
FLYNOTES:
LABOUR – Dismissal –
Unprotected
strike
–
Applicants
not happy with conditions of employment – Respondent
entertained complaints and undertook to meet some demands
–
Guilty of participating in unprotected strike action –
Respondent’s business suffered due to misconduct
–
Persistence with denial demonstrated no remorse – Dismissal
a reasonable operational response to risk of repeating
misconduct
– No procedural unfairness – Dismissals substantively
and procedurally fair.
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JS 739/18
In
the matter between:
MONDRY NGOBENI AND 51
OTHERS
Applicant
and
INTERSPRAY DURBAN
CC
Respondent
Heard:
17 – 19, 24 and 28 October 2022
Delivered:
21 February 2024
Summary: Trial
proceedings – dismissal for participating in unprotected strike
action – employees dismissed without
a hearing, but
subsequently rejected the opportunity of an appeal hearing –
some employees not forming part of the referral
to conciliation.
JUDGMENT
MKWIBISO,
AJ
Introduction
[1]
In this matter the applicants allege that their dismissal by the
respondent for allegedly participating in an unprotected
strike was
substantively and procedurally unfair. The applicants initially
sought reinstatement with retrospective effect, but
after the trial
they now each seek twelve months’ compensation.
[2]
The respondent contends that the dismissal was substantively fair
because the applicants participated in an unprotected
strike, and was
procedurally fair because they rejected the opportunity of an appeal
hearing that was offered to them after their
dismissal.
[3]
The respondent alleges that the referral to this Court is defective
in that some of the employees who appear in the list
that forms part
of the referral were not part of the conciliation process.
Furthermore, the respondent alleges that some of the
applicants had
their disputes resolved in that they agreed to return to work and
accept warnings, and it denies that those employees
mandated the
applicants’ legal representatives to act on their behalf. The
respondent also alleges that one of the individuals
listed in the
referral is unknown to it as he does not appear on its payroll
records.
[4]
Several issues arise. First, whether all the individuals listed in
the referral to this Court are properly before Court.
Second, whether
the employees who are properly before Court committed the misconduct
of participating in an unprotected strike
and whether their dismissal
for doing so was substantively fair. Third, whether the dismissal of
the said employees without a hearing
renders their dismissal
procedurally unfair, and if so whether they are entitled to any
compensation.
Relevant
facts and evidence
[5]
The respondent conducts business as a painting contractor, mainly in
large building projects including malls. Its office
is in Durban, but
it operates in Johannesburg and had employees who were based in
Johannesburg.
[6]
In November 2017, the respondent issued a letter to its employees
regarding their contemplated dismissals as a result
of a decline in
the amount of work it was receiving from its clients.
[7]
The respondent explored alternatives to dismissal, and it determined
that placing the employees on short time or implementing
a lay-off
system would be an adequate alternative to dismissal. The employees
in Johannesburg were divided into two groups, with
work being rotated
among the two groups by having one group working four weeks with
remuneration while the other group was not
working and not being
remunerated. This arrangement seems to have been implemented for some
time, during 2018.
[8]
The employees were not happy with the short time arrangements and
opted for retrenchment packages. However, they did not
have written
employment contracts setting out their length of service and they
required the issue of such employment contracts
to be resolved in
order for them to determine the amount of severance packages they
would receive upon being retrenched. They also
complained about their
hourly rate. Some of the employees refused to work until their
demands were met, including demands of written
employment contracts
and the wage demands. They engaged the assistance of a representative
from the Economic Freedom Fighters (EFF),
namely Ms Fikile Mafuyela.
[9]
On 25 July 2018, the respondent issued to its employees a letter in
the following terms:
“
ISSUES
DISCUSSED DURING THE REFUSAL OF EMPLOYEES TO COMMENCE WORK FROM 24
JULY 2018 INCLUDING MEETING WITH MS FIKILE MAFUYERA FROM
THE EFF
POLITICAL PARTY
Employees
refused to commence working until some processes relating to short
time working and possible retrenchment had been addressed
and
administrative processes agreed to and a basic wage of R20-00 per
hour is agreed to.
Management
now agrees as follows:
SHORT
TIME WORKING - RETRENCHMENTS.
All
employees can be redeployed to the relevant construction sites and
recommence work as soon as possible but no later than 26
July 2018.
The
arrangements for short time will cease forthwith.
On
a last-in-first- out basis employees affected will be consulted and
retrenched – The Human Resources Department will visit
all
relevant sites and workplaces to effect same.
A
severance package based in employment Law of 1 weeks for every
completed year of service will apply.
CONFIRMATION
CONTRACTS OF EMPLOYMENT
A
draft contract of employment is being developed and the company will
draw up detail of all employees and submit to individual
employees
based on the draft. All current service conditions and wage levels
and original starting dates of employment will be
provided no later
than 10 July 2018.
MINIMUM
BASIC WAGE IMPLEMENTATION
The
management agree to implement a basic minimum wage rate of R20-00 per
hour effective fortnight 30 July 2018 onwards. No person
will earn
less than this amount.
RETURN
TO WORK
All
employees can return to work no later than start of shift 26 July
2018” [
sic
].
[10]
On Friday 27 July 2018, being the day on which the respondent
intended to distribute amended employment contracts to
employees at
their different work sites, the employees refused to work until their
demands were met. As a result, the respondent
sought the intervention
of Ms Mafuyela by sending her the following text message:
“
Good
morning Fikile the interspray employees are again on strike please
urge them to recommence work as agree i am in meeting then
handing
out contracts to employees. I am seriously concerned with work sites
cancelled = irreparable harm please intercede employees
must also
comply with their side of agreement”
.
[11]
Later that day, the respondent issued draft contracts to the
employees. They were not happy with the drafts and the respondent
agreed to further work on the drafts in order to address their
concerns.
[12]
Ms Mafuyela responded to the text message on Monday 30 July 2018 by
saying “
i wil addres it
”.
[13]
On Tuesday 31 July 2018, the respondent sent another text message to
Ms Mafuyela in the following terms:
“
Good
morning Fikile sorry to bother you contracts to workers ready –
again our employees refuse to keep to their obligation
to attend
work. They are apparently waiting for you?? Why must our company be
placed on risk -please urgently get sustainable return
to work as per
your and workers undertakings this is untenable”.
[14]
On 08 August 2018, the respondent sent further text messages to Ms
Mafuyela in the following terms:
“
Good
morning Fikile again illegal work stoppage by INTERSPRAY employees??
Want you????”.
And:
“
1
contract cancelled”.
[15]
On 09 August 2018 at 15h58, the respondent issued an ultimatum to the
employees in the following terms:
“
Notice
and ultimatum to all Interspray employees – illegal and
unprotected strike action
Employees
have now on several occasions embarked on illegal strike action with
serious disruptive effect on customer sites. This
had now resulted in
cancellation of some contracts.
Despite
all consessions by management employees are not honouring a
consistent return to work and service provision to customer
sites.
Employees
totally disregard management authority and aggressively frustrate any
form of communication thereby causing chaos to reign.
Accordingly
employees are given a final ultimatum to report for duty directly at
respective construction sites and workplaces no
later than 07:00 on
10 August 2018. Due to employees refusing to board transport and
placing the companies management and vehicles
at risk there will be
no assistance with transportation.
All
employees will be expected to accept and sign a return to work
agreement on the following terms:
Undertaking
to work consistently and follow due legal processes as outlined in
the Labour Relations Act in relation to grievances,negotiations
and
disputes.
And
acceptance of a final written warning for the illegal (unprotected)
strike action.
Failure
to report to individual sites at 07:00 on 10 August 2018 and to sign
the above terms will result in the immediate summary
termination of
your services with the company”.
[16]
The employees whom the respondent believed had not complied with the
ultimatum were dismissed summarily on 10 August
2018 without having
conducted a disciplinary hearing, in terms of the following text
message that was sent to them:
"TO
ALL STRIKING EMPLOYEES
FAILURE
TO ABIDE BY ULTIMATUM AND REPORT FOR WORK – SUMMARY DISMISSAL –
MISCONDUCT
As
a result of your consistent disregard of management instructions,
failure to accept any communications, ongoing aggressive disruptive
illegal strike action and failure to comply with ultimatum your
services are summarily terminated for such gross misconduct
Your
last salary for time worked will be paid within 7 days.
You
can appeal against this decision in writing addressed to our offices
or can refer the matter to the CCMA”.
[17]
The respondent contends that the situation had become volatile and it
was not appropriate to hold disciplinary hearings
regarding the
misconduct of participating in unprotected strike action.
[18]
In terms of the pre-trial minute signed by the parties, it was common
cause that the applicants were dismissed on 10
August 2018 at 07h30
by WhatsApp message, following an ultimatum sent to them also via
WhatsApp on 09 August 2018 at
16h00.
[19]
Some of the dismissed employees honoured the invitation to lodge an
internal appeal and they were reinstated after the
respondent
considered their submissions.
[20]
Unsatisfied with the dismissal, an unfair dismissal dispute was
referred to the Commission for Conciliation Mediation
and Arbitration
(CCMA) for conciliation on 15 August 2018. The referral to the CCMA
contained a list of 56 applicants.
[21]
When conciliation failed to resolve the dispute, a statement of claim
was filed before this Court in terms of rule 6
of the Rules of this
Court, incorporating a new list of 62 applicants.
[22]
The list of applicants contained in the statement of claim listed 39
of the applicants whose names were contained in
the list submitted at
the CCMA. Some of the employees whose names appeared in the list
submitted to the CCMA did not appear in
the list accompanying the
statement of claim, including one Mr Gazu who was a witness for the
applicants at the trial.
[23]
The 39 employees who appeared in both lists were the following: the
first to eighth applicants; the nineteenth applicant;
the
twenty-first to twenty-seventh applicants; the twenty-nineth and
thirtieth applicants; the thirty-second to thirty-fourth applicants;
the fortieth to forty-second applicants; the forty-forth applicant;
the forty-sixth and forty-seventh applicants; the forty-ninths
to
fifty-second applicants; the fifty-fourth to sixtieth applicants; and
the sixty-second applicant.
[24]
In the statement of claim, the applicants contended that they wanted
to be retrenched because the short time that the
respondent was
implementing was unsustainable. However, the problem was the
calculation of severance packages in the absence of
written
employment contracts setting out their length of employment. The
applicants alleged that draft contracts were issued to
them on Friday
27 July 2018 and the respondent agreed to remedy certain
discrepancies that were identified in those draft contracts
during
the following week. Despite this agreement, so the applicants
alleged, the respondent did not return with amended contracts,
but
they reported diligently for duty. The applicants allege that by 08
August 2018, the respondent had not issued them with amended
contracts and the respondent did not collect those of them who were
normally collected from a designated collection point. They
allege
that on 08 August 2018 the applicants who expected to be fetched from
the collection point sat there from 07h00 to 17h00,
waiting to be
fetched by the respondent. The following day, they were again not
fetched from the collection point and they waited
until 15h30, when
they received the ultimatum.
[25]
The applicants alleged that the decision to summarily dismiss them
was communicated to them on 10 August 2018 despite
the fact that all
employees had reported for duty at the collection point.
[26]
The respondent’s response to the statement of claim raised
preliminary issues and dealt with the merits. The respondent
alleged
that not all the applicants were party to the CCMA referral. Further,
the respondent alleged that applicants nine, eighteen,
twenty-seven
and sixty-one were among the employees who had made representations
in response to the respondent’s invitation
to lodge an internal
appeal against the dismissal and those applicants had resolved their
issues with the respondent by returning
to work and accepting
settlement agreements. Furthermore, the respondent alleged that
applicant forty-three was not its employee.
The respondent also
alleged that applicant number twenty had not been dismissed together
with the other employees on 10 August 2018
as he had
absconded on 23 July 2018.
[27]
On the merits, the respondent stated that it would operate several
sites at a time and it would provide transport to
employees who
needed it, which transport was provided from the collection point.
Not all employees made use of the transport it
provided and
approximately twenty percent of the employees would go directly to
the sites where they were stationed. The respondent
alleged that on
or about 31 March 2018 an agreement was reached that employees would
work short time, as an alternative to retrenchments.
The employees
submitted to the respondent an undated document setting out a number
of grievances and thereafter informed the respondent
that they
preferred a retrenchment. A meeting took place on 24 July 2018 to
discuss the issues of short time and retrenchments.
After the
meeting, which was attended by the majority of the respondent’s
employees, the employees refused to go to their
sites and a full
day’s work was lost. On 25 July 2018, another meeting was held
between the respondent and its employees
at the collection point
where further grievances were discussed, and much of the day’s
work was lost as the employees again
refused to go to their sites. As
a result of the employees’ failure to attend to the relevant
sites, some of those sites
had to be handed over to other contractors
in order to meet deadlines. On 27 July 2018, the respondent commenced
the process of
distributing employment contracts and most of the
employees were gathered at the collection site. On this day,
approximately half
a day’s work was lost, and some of the
employees prevented the respondent’s representative from
distributing the contracts
as they were acting in a threatening and
intimidating manner. On 31 July 2018, a further attempt was made to
distribute employment
contracts to the employees, most of whom were
gathered at the collection site. Most of the day’s work was
lost on this day
as the employees arrived at their sites at around
12h00.
[28]
The respondent alleged that despite the strained relationship between
it and its employees and a large backlog of work,
matters proceeded
without incident after 31 July 2018, until 08 August 2018 when the
employees again gathered at the collection
site and no work was done
on this day as they refused to go to their sites. On 09 August 2018,
the employees again gathered at
the collection site and refused to go
to their sites. Due to a fear that the respondent’s vehicles
would be damaged, the
respondent caused its vehicles to leave the
collection site. By this time, the respondent had lost a number of
sites and was at
risk of losing its biggest client. Upon the
dismissal of the employees, approximately twenty of them made
representations to the
respondent and were taken back into the
respondent’s employ, whilst the others did not make
representations.
[29]
During the trial, the respondent presented its case through the
testimony of two witnesses, namely Messrs Johan Ludwig
Bouwer and
Paul Lutchman. The applicants, on the other hand, presented their
case through the testimony of three witnesses, namely
Mr Khulekani
Thandakanjani Gazu, Mr Geraldo Franciso Luiz, and Ms Fikile Nomvula
Mafuyela.
[30]
Mr Bouwer testified that he was the Human Resources Manager of the
respondent. He said the respondent conducted the business
of a
painting contractor in the building industry, and it mainly handled
large contracts such as shopping centres, with its main
client being
WBHO. The respondent was based in Durban and did not have an office
in Johannesburg. Work secured in Johannesburg
was managed by the
respondent’s Operations Director, Mr Paul Lutchman, who
operated online in liaison with the Durban office
officials. Mr
Lutchman oversaw operations on the sites that were allocated to the
respondent in Johannesburg, and he had a team
of Supervisors and
Foremen who assisted him depending on the needs of each project.
[31]
Mr Bouwer referred to a letter dated 06 November 2017, which was
issued to all employees regarding a contemplated dismissal
due to
operational requirements. He said that retrenchment process was put
in abeyance and a decision was made to place employees
on short-time.
The workers in Johannesburg were divided into two groups, with one
group working while the other group was not working
in an alternating
manner. He referred to a letter dated 05 April 2018, informing the
employees of the decision to implement lay-offs
and short-time, due
to projects coming to an end and the absence of other work.
[32]
Mr Bouwer referred to a letter dated 25 July 2018 with the heading
“ISSUES DISCUSSED DURING THE REFUSAL OF EMPLOYEES
TO COMMENCE
WORK FROM 24 July 2018 INCLUDING MEETING WITH MS FIKILE MAFUYERA FROM
THE EFF POLITICAL PARTY”, which he had
drafted in order to
confirm what had transpired at the meeting of 24 July 2018. The
events that preceded the letter were that three
or four days prior to
it the respondent had received an unsigned and undated fax in its
Durban office setting out a number of complaints,
which fax was
followed by the employees in Johannesburg refusing to attend to their
respective construction sites on 24 July 2018
until their
demands were dealt with. On 24 July 2018 he was summoned to the
collection point and when he arrived, he was informed
that the
workers would not engage with him until their representative arrived.
Ms Mafuyela was their representative and she arrived
late at the
collection site, at around 10h00. There were approximately 86
employees at the collection site and they were all talking
at the
same time, making it difficult to discuss their concerns. Some of the
concerns raised by the employees were that they wanted
everyone to be
employed permanently and they wanted the short-time arrangement to be
stopped as they preferred to be retrenched
instead of working
short-time. He agreed that all temporary workers would be converted
into permanent employees and he agreed to
produce a new employment
contract for the employees, and he drafted the letter dated 25 July
2018 containing these agreements of
24 July 2018. On 25 July 2018, he
met with the employees again at the collection point and distributed
the letter dated 25 July 2018
to them. On both 24 and 25
July 2018, the employees did not go to their allocated sites due to
their complaints being discussed
in the meetings of 24 and 25 July
2018.
[33]
Mr Bouwer testified that on 27 July 2018 the employees in
Johannesburg only attended some of the sites allocated to them.
He
had undertaken to make amendments to the employment contracts and
deliver the amended drafts to the employees at their respective
sites
on 27 July 2018. When he arrived at the sites, most of the employees
were not there. Those who were present at the sites
were not working
but sat in the storerooms. The majority of the employees were at the
collection point and refused to use the transport
provided by the
respondent to go to their allocated sites. Under these circumstances,
he communicated with Ms Mafuyela and he referred
to the cell phone
text messages he exchanged with her at the end of July 2018, which I
have referred to above.
[34]
Mr Bouwer testified that the employees in Johannesburg only reported
for duty in early August 2018. In other words, from
24 July 2018
until the end of July 2018 they did not report for duty in the
sense of performing their functions at the sites
allocated to them.
As a result of their conduct, two of the respondent’s contracts
with WBHO were cancelled, namely the Orion
contract and a contract in
Eastgate. In this regard, he referred to a letter dated 30 July 2018
from WHBO, which read
as follows:
“
EASTGATE
SITE: INABILITY TO CONSISTENTLY PERFORM TO CONTRACTUAL OBLIGATIONS
Further
to our various communications and messages to operational staff we
hereby with regret are compelled to inform you as follows:
The
erratic attendance of your staff on site and failure to provide any
consistent service have compelled us to engage another painting
supplier to complete the work on this site.
As
you are aware this is a critical site which is operating on tight
financial margins and a tight time schedule. We cannot allow
the
continuing disruptive effect to continue as it has presents a severe
operation risk in terms of penalties and it disrupts the
progress of
the entire project.
The
contract management team and quantity surveyors will liaise with your
Mr Paul Lutchman on measuring and billing for work done.
Kindly
facilitate a seamless transfer in relation to pain supplies.
For
future work kindly advise what remedial steps have been taken to
ensure a comprehensive service provision in future
”.
[35]
Mr Bouwer testified that the Eastgate project was midstream when it
was cancelled and the cancellation constituted a
loss or R1.9 million
to the respondent. There were also reputational consequences as the
overwhelming majority of the respondent’s
work came from WHBO.
[36]
Mr Bouwer was referred to paragraph 17 of the statement of claim,
which alleged that on 08 August 2018 the employees
in Johannesburg
sat at the collection site from 07h00 until 17h00 and no-one came to
collect them. He said this was not true as
it was the employees who
refused to use the respondent’s transport to go to the sites
allocated to them. Further, he testified
that even if there was no
transport, it was incumbent upon the employees to find their way to
the sites allocated to them. He said
there were no reasons why the
transport would not be available on 08 and 09 August 2018, but they
had received messages from some
of the Supervisors regarding plans to
set the respondent’s vehicles alite on 09 August 2018 and the
situation had become
volatile. He referred to the ultimatum issued to
the employees to return to work and he stated that the employees did
not return
to work on 10 August 2018.
[37]
When asked why a right of appeal was provided in the notice of
dismissal issued to the employees as opposed to a disciplinary
hearing prior to dismissal, he said it was provided because
“
physically we could not communicate with them in any other
manner in order to get some form of representation for them in a
hearing
format
” and “
you can’t deal with a
leaderless massive people in any other way
”. Further, he
said the atmosphere was hugely volatile and the employees were
disregarding every attempt of management to
engage, which rendered a
disciplinary hearing infeasible. He stated that some employees made
representations in line with the invitation
to do so in an appeal
process, and based on those representations they were allowed to
return back to work. The applicants, on
the other hand, did not make
any representations.
[38]
Mr Bouwer testified that an award of twenty-four months’
compensation for each applicant would mean that the respondent
would
cease to exist. Further, he said the COVID-19 pandemic had negatively
impacted the construction industry.
[39]
When Mr Bouwer was cross-examined, it was put to him that the real
reason why employees did not go to work was because
the respondent’s
vehicles used to transport them from the collection point to their
allocated sites were taken away. He denied
this version and stated
that many of the employees could go to the site directly. He said the
service directives clearly required
employees to get themselves to
work, for example if they missed the respondent’s
transportation due to being late. The cross-examiner
did not dispute
this response but simply retorted that this does not change the fact
that the reason they did not go to work was
because the vehicles were
taken away.
[40]
On the one hand, it was put to Mr Bouwer that the employees’
Committee ceased to negotiate with him because he
used legal jargon
that they did not understand. It was further put to him that he was
introduced to the employees as a legal representative
and they did
not want to engage with him because they had no legal background. On
the other hand, it was put to him that he was
the one who refused to
engage with the employees’ Committee. He disputed both
versions.
[41]
It was put to Mr Bouwer that he did not have evidence, in the form of
attendance registers, of the employees who attended
work and those
who did not attend work. He disputed this version and stated that he
had accurate records. It was put to him that
the Supervisors
doubled-up as Drivers and the reason why they stopped keeping
attendance registers was because the respondent took
its vehicles
away, which he denied. He further denied that the respondent’s
vehicles were taken away prior to 08 August 2018.
[42]
It was put to Mr Bouwer that had there been a strike, the respondent
would have approached the Court to interdict the
strike. In response,
he confirmed that there was a strike and he said it was not practical
to interdict.
[43]
Mr Bouwer was referred to paragraph 86 of the respondent’s
response to the statement of claim and asked whether
he knew Dubile
Ncube. In response, he stated that he did not know a person by that
name and there was no person by that name in
the respondent’s
records. This line of questioning was not pursued any further.
[44]
It was put to Mr Bouwer that his testimony that on one of the days
when the employees were on strike some of them arrived
at a site at
11h00 demonstrated that they were willing to work. He disputed this
version and stated that their arrival on site
had no practical impact
as those employees sat in the storerooms and did not perform any
work.
[45]
No version was put to Mr Bouwer about whether all the applicants were
properly before Court. It was never put to him
that the employees had
attended the collection point and waited for vehicles to take them to
their allocated work sites from 07h00
to 17h00 on any day from 24
July 2018 to 09 August 2018, as alleged in the statement of claim.
Further, his testimony regarding
the cell phone text messages between
him and Ms Mafuyela concerning the striking employees, and his
evidence regarding the cancellation
of the respondent’s
contracts by WHBO as a result of employees being on strike, was not
dealt with under cross-examination.
His testimony that employees were
required to make their way to their allocated sites even when there
was no transportation provided
by the respondent was also not
challenged under cross-examination.
[46]
The respondent’s second witness, Mr Lutchman, testified that
the respondent had lost two contracts as a result
of the applicants’
conduct that led to their dismissal. He said the applicants’
conduct affected the respondent’s
reputation in that its
biggest client, WHBO, dropped contracts from ninety percent to around
fifty percent. He said the business
was running on overdraft. He said
the respondent could not afford to pay the applicants retrenchment
packages and the respondent
would cease to conduct business if it had
to pay compensation or retrenchment packages to the applicants. Under
cross-examination,
he stated that the respondent only has vehicles
and no immoveable assets. He said in Johannesburg the respondent was
working on
seven sites and was making R200 000.00 from each
site. When it was put to him that he had no documents to prove the
financial
state of the respondent, he said he did not bring those
documents with him but he could make the documents available.
[47]
It was not put to Mr Lutchman that at any stage between 24 July 2018
to 10 August 2018 the employees had not
reported to their
allocated work sites because they were waiting for him to return from
Durban to go sign contracts.
[48]
The applicants’ first witness, Mr Gazu, testified that he had
been employed by the respondent from 1991 until his
dismissal on 09
August 2018. He was a driver and a Supervisor, he had a vehicle
allocated to him and he would collect employees
from the collection
point to the site where he worked. He had never signed an employment
contract in his twenty-eight years of
service. The respondent did not
give employees any benefits. Employees worked long hours during the
week without being paid overtime,
and only received overtime pay for
work done on weekends.
[49]
Mr Gazu said there was not one day when the employees refused to go
on site. He said the employees were the ones looking
for retrenchment
because they did not want to work short-time. They engaged Ms
Mafuyela to assist them because she was educated
and would be able to
assist them with their workplace issues. However, when they were
supposed to sign their contracts at her office
in Kempton Park, Mr
Lutchman did not show up.
[50]
Mr Gazu testified that meetings between employees and management
would happen regularly at the collection point, and
after meetings
the employees would get into the respondent’s vehicles and go
to their allocated sites. The only time employees
did not go to work
was when the respondent took away its vehicles. He said there was no
strike and the employees did not refuse
to get into the respondent’s
vehicles to go to their allocated sites. The employees were dismissed
through messages sent
to their cell phones. He was dismissed on 09
August 2018 and he did not receive any message notifying him to
report for duty on
10 August 2018. After receiving the dismissal
messages, they informed Ms Mafuyela and they referred a dispute to
the CCMA. There
was never a threat of violence at the collection
point.
[51]
Under cross-examination, it was put to Mr Gazu that he had signed an
employment contract in 2017 and he was not being
truthful when he
said he had never signed an employment contract. He conceded that he
had signed that contract, and he did not
dispute the respondent’s
version that he had been dishonest when he said he had never signed a
contract with the respondent.
He agreed that clause 8 of that
contract stated that it was his responsibility to report for duty and
the respondent would assist
where possible.
[52]
It was put to Mr Gazu that he was incorrect when he said the
respondent had provided no benefits to its employees, and
an example
was given of a provident fund that existed until the end of 2017. He
conceded that there was such a provident fund,
which was stopped as a
result of the employees’ request.
[53]
When asked when the vehicle that was allocated to him was taken away
from him by the respondent, Mr Gazu said he did
not recall. When
asked where the employees were on 25 July 2018, he said they were at
the collection point the whole day. He subsequently
changed his story
and said they were at their allocated sites and they only stopped
working some time in August 2018 when Mr Lutchman
refused to sign. He
said Mr Lutchman had gone to Durban and was supposed to meet them and
sign the contracts upon his return from
Durban.
[54]
When asked where he was on 31 July 2018, Mr Gazu said he did not
recall. When it was put to him that on that day Mr Bouwer
had sent a
cell phone text message to Ms Mafuyela seeking her assistance because
the employees were not at work, he said it was
all lies because he
did not know anything about that.
[55]
When asked when he stopped going to work, he said he believed it was
on Monday 06 August 2018, when they were waiting
for Mr Lutchman. The
agreement reached on the Friday preceding that Monday was that the
employees would wait for Mr Lutchman to
arrive, so that they could go
to Ms Mafuyela's office in Kempton Park to sign the contracts. When
asked whether the employees went
to work on the Tuesday, 07 August
2018, he said the employees were still waiting for Mr Lutchman to
arrive. He subsequently stated
that he could not recall whether they
went to the sites that were allocated to them on that Tuesday. When
asked whether the employees
went to work on the Wednesday, 08 August
2018, he said the employee were still waiting for Mr Lutchman and a
message was sent that
Mr Lutchman was not coming to the meeting. The
following day, 09 August 2018, the employees received messages.
[56]
When asked whether the employees went to work on 09 August 2018, Mr
Gazu said they were already dismissed and as a result
they did not go
to the sites allocated to them. He insisted that he did not receive
an ultimatum on 09 August 2018 and
he insisted that he was
dismissed on 09 August 2018, despite being shown the applicants’
statement of claim which alleged
that the employees received an
ultimatum on 09 August 2018 and received dismissal notices at 07h00
on 10 August 2018. He said the
cell phone text message he received on
09 August 2018 informed him that if he did not report for duty, he
was dismissed.
[57]
Mr Gazu did not dispute that the respondent lost two contracts in
Eastgate and Orion. When asked whether it was fair
for the respondent
to lose such contracts as a result of the employees’ conduct,
he said it was not fair, but added that
it was also not fair for the
respondent to not do right by the employees. When it was put to him
that the employees were not going
to work if the respondent did not
give them what they wanted, he agreed. He, however, disputed that
this conduct fell within the
definition of a strike.
[58]
The applicants’ second witness, Mr Luiz, testified that he had
been employed by the respondent for fourteen years.
Immediately prior
to his dismissal, he held many positions, including Supervisor,
Driver and Chairperson of the Workers’
Committee. As a Driver,
he drove one of the respondent’s vehicles, used the vehicle to
transport some of the employees to
work, and parked it at his place
of residence. He admitted that the respondent’s letter of 06
November 2017 was received
by the employees, and the letter caused
disturbance amongst the employees as they did not know whether they
were going to receive
all monies that were due to them. The Workers’
Committee had to plead with the employees to be calm.
[59]
Mr Luiz stated that the employees had a meeting with the respondent’s
representative around 28 March 2018, where
the issue of working
short-time was introduced. The employees were surprised because there
was no prior warning of the issue of
short-time. There were no
discussions, but the respondent’s representative simply
instructed the employees to work short-time
and provided them with
schedules regarding the short-time. He admitted that the respondent’s
letter of 05 April 2018 was
read to the employees. He said the
rotation did not last long as it occurred over a few months, but his
team worked normally and
did not rotate like the others throughout
that period.
[60]
When asked about the cell phone text messages between Mr Bouwer and
Ms Mafuyela, Mr Luiz testified that the employees
had never refused
to attend work, and he said there was never a strike. He said none of
the employees’ grievances were resolved
by the respondent. He
subsequently stated that Mr Bouwer had informed the employees that if
they did not resume their duties, they
were going to suffer. He
further stated that the employees began to suspect that the Workers’
Committee was colluding with
the respondent and they demanded that Mr
Lutchman be present at meetings with them otherwise they would not
leave the collection
site.
[61]
Mr Luiz testified that at a meeting on a Tuesday wherein Mr Lutchman
was supposed to give feedback to the employees,
Mr Lutchman did not
attend the meeting and Mr Bouwer was in attendance on behalf of the
respondent. The employees were angry and
displayed their
dissatisfaction at Mr Lutchman’s absence, to the extent that Mr
Bouwer noticed that the situation was becoming
tense. Mr Luiz then
witnessed Mr Bouwer making a telephone call to Mr Lutchman, informing
Mr Lutchman that the employees would
not resume their duties until Mr
Lutchman had attended the collection site to address them. However,
the employees boarded the
respondent’s vehicles to their
respective allocated sites after Mr Lutchman undertook to meet with
them at the collection
site the following day, being a Wednesday. On
that Wednesday, Mr Lutchman arrived at the collection site early at
06h30, but the
respondent’s vehicles did not fetch the
employees to bring them to the collection site. The employees who
were present were
only those who were able to walk to the site. Mr
Luiz did not clarify why there was a requirement that employees be
collected from
their areas of residence to the collection site, when
the general understanding was that the employees were to make their
way to
the collection point where they would be transported to their
respective sites. Mr Lutchman informed the employees who were there
that short-time was being terminated with immediate effect, the
hourly remuneration rate would increase to R20 per hour and he
handed
out employment contracts. Mr Luiz stated that this was the first time
when he learned that his position was Foreman. Ms
Mafuyela then
assisted the employees to interpret their employment contracts, and
she identified parts of the contracts that were
not in order. Mr
Lutchman undertook to rectify the errors but gave no specific date
when he would do so. Mr Lutchman requested
the employees to in the
meantime report to the sites allocated to them and they boarded the
respondent’s vehicles. In this
regard, Mr Luiz did not clarify
which vehicles the employees boarded when on his own version the
vehicles had not collected the
employees from their areas of
residence and only those who could walk had made it to the meeting at
the collection site.
[62]
According to Mr Luiz, during the week that followed, presumably on
the Monday, the employees decided that they would
not go to their
respective sites until Mr Lutchman met with them. Mr Lutchman arrived
an hour late, but said he had to fetch one
Kevin from the airport,
who would deal with their issues. At around 10h30 that day, Mr
Lutchman had not returned and when the witness
telephoned Mr Lutchman
he requested the employees to go to their sites and advised them that
the meeting would resume once Kevin
had arrived. When Mr Luiz arrived
at the site in Eastgate, he found Mr Lutchman and Kevin present at
the site. There was an agreement
that the meeting would occur the
following day. However, later that evening Mr Lutchman telephoned Mr
Luiz and advised that he
would no longer be able to meet the
following day due to the need to meet a potential client in Cape
Town. Mr Lutchman further
requested Mr Luiz to lend him the vehicle
he was using as the vehicle being used by Mr Lutchman’s cousin
had broken down.
The vehicle was not returned to him.
[63]
The following morning, according to Mr Luiz, he was informed that the
vehicle was on its way, but the vehicle never made
it to him. He then
made his way to the collection point and he discovered that the
vehicles that fetched employees from Pretoria
and Alexandra were also
not there and had not fetched the employees. In a telephone
discussion between Messrs Lutchman and Luiz,
Mr Lutchman indicated
that the vehicles would not be made available that day. Mr Luiz did
not explain whether the employees went
to their work sites
thereafter.
[64]
Mr Luiz testified that the following day, which was 08 August 2018,
the employees proceeded to Ms Mafuyela’s office
in Kempton
Park, for the purpose of signing their employment contracts. When
they arrived, Mr Lutchman was not there. Mr Bouwer,
however, was
present and he required employees to sign their contracts. The
employees from the Rosebank site refused to go to Kempton
Park to
sign their contracts and Mr Bouwer informed Ms Mafuyela that those
employees who refused to sign their contracts were dismissed
with
immediate effect. Ms Mafuyela then had a telephone discussion with Mr
Lutchman in which she informed Mr Lutchman that he was
playing games
because he had undertaken to be present in Kempton Park. In that
telephone discussion, Mr Lutchman informed Ms Mafyela
that the
employees had been dismissed and he would make sure that the
employees suffer. Thereafter, the employees who had been
to Kempton
Park met with the employees who were based at the Rosebank work site,
at the collection point, and the employees who
work in Rosebank were
informed that they had been dismissed due to their refusal to go to
Kempton Park to sign the contracts. The
employees who work in
Rosebank were so shocked by this news, they remained at the
collection site until 17h00.
[65]
Mr Luiz stated that on 09 August 2018, he was in Johannesburg CBD,
around Carlton Centre. He received a message from
Mr Lutchman’s
cousin stating that he had been dismissed. He then had a telephone
call with Mr Lutchman in which Mr Lutchman
informed him that he was
going to suffer because he had been dismissed. After that telephone
call, Mr Luiz decided to go to the
collection point and he arrived
there at around 14h00. Upon his arrival, the other employees informed
him that they had received
messages dismissing them. The employees
were concerned that the messages were not sent by the employer but by
someone who was not
their employer.
[66]
On 10 August 2018, according to Mr Luiz, the employees again convened
at the collection point. Discussions were held
amongst them about the
confiscation of the respondent’s vehicles and the fact that
they had been dismissed. They then resolved
to approach the CCMA. Mr
Luiz stated that he had not received the cell phone text messages
appearing as annexures to the statement
of claim. After the
employees’ dismissal, Mr Lutchman approached Mr Luiz and
advised him to dissociate himself from the other
employees so he
could return to work. He informed Mr Lutchman that he stayed in the
same community as the other employees and if
he turned against them,
they would kill him.
[67]
Under cross-examination, Mr Luiz confirmed that he had informed his
legal representatives of his version several times
and they knew the
version of events he had relayed in his testimony. He stated that the
statement of claim accurately reflected
the instructions he had given
to his legal representatives. He did not dispute that his evidence
was inconsistent with the statement
of claim, which referred to all
employees having received a cell phone text message on 09 August
2018 communicating an ultimatum
instructing them to return to work,
and referred to all employees having received another cell phone text
message on 10 August
2018 communicating the fact that they had been
dismissed. He also did not dispute that his version of being
dismissed verbally
on 08 August 2018 was at odds with the
statement of claim in terms of which all employees were dismissed in
writing on
10 August 2018.
[68]
When asked which cell phone message he had received regarding his
dismissal, he said he had lost his cell phone in which
that message
was contained and he no longer had that message. He had not taken any
steps to secure the message because he did not
anticipate that the
message would be required.
[69]
When asked what time he had met his other colleagues on 09 August
2018, he said in the morning, which was inconsistent
with his prior
statement (in chief) that he had met them at around 14h00 when he
arrived at the collection point from Carlton Centre
in the
Johannesburg CBD.
[70]
When it was put to Mr Luiz that Mr Bouwer testified that he only met
with Ms Mafuyela twice on 23 and 24 July 2018, Mr
Luiz stated that if
Counsel for the respondent was going to lie to the Court, then the
applicants must be informed so that they
could excuse themselves and
go home. He further stated that he was disgusted that an old man like
Mr Bouwer would tell such lies.
When it was put to Mr Luiz that his
version was never put to Mr Bouwer, he said he was not going to
respond to that proposition.
When it was put to Mr Luiz that working
short-time was better than being retrenched, he said he had no
response. Mr Luiz was at
times highly emotional, sometimes pointing
forcefully at the respondent’s witnesses who were siting in
Court after they had
given their testimony.
[71]
When it was put to Mr Luiz that according to the respondent’s
letter dated 25 July 2018 the concerns
of the employees
relating to being made permanent were resolved, he responded that at
some point Mr Lutchman had to flee because
the employees’
concerns were not being resolved. He further indicated that they
needed someone to interpret the letter for
them, and when that person
(Ms Mafuyela) perused the letter it turned out that there was no
indication in the letter as to how
the employees would be made
permanent.
[72]
When it was put to Mr Luiz that from 31 July 2018 to 06 August 2018
the employees did not report for duty due to not
having vehicles, he
said he could not be certain about the days when they did not report
for duty, but he knew that they did not
report for duty during the
days when they did not have vehicles. When asked to provide the date
when the vehicle that was in his
possession was taken away from him,
he responded that Messrs Bouwer and Lutchman were the ones who took
the vehicles away. He then
said his vehicle was actually not taken
away as he was informed that Mr Lutchman’s cousin needed the
vehicle due to his own
vehicle having broken down. When clarity was
sought by the Court as to when he was told that Mr Lutchman’s
cousin needed
the vehicle, he said the vehicle was taken during the
week and he did not remember which week. He further said that when he
was
in possession of the vehicle he went to the site, but when he did
not have the vehicle he did not go to the site.
[73]
It was put to Mr Luiz that of the employees who returned to work
after they used the opportunity to make representations
appealing
their dismissals, none of them were killed. He responded by saying
from the members of the Workers’ Committee no
one returned to
work. When it was put to him that he knew he could appeal, he
responded by asking where he would appeal.
[74]
The applicants’ third and last witness, Ms Mafuyela, testified
that the applicants had approached the EFF for assistance
and the
administrators at the office of the EFF had allocated the matter to
her, based on her location in relation to the employees
and the
nature of the matter. She was a Councillor and her role was to assist
members of the community. She confirmed that on 24
July 2018 there
had been a meeting between the respondents and its employees, at
which meeting she was present. There were resolutions
that came out
of that meeting, including the employment of employees on a permanent
basis. The employees did not refuse to go to
their sites, instead
there was an agreement that they would only return to their sites
after he had given them feedback on 25 July 2018.
The
meeting of 25 July 2018 was of short duration as it did not last more
than one hour, and it finished in the morning, after
which the
employees got into the respondent’s vehicles and went to their
respective sites.
[75]
When asked why she did not respond to Mr Bouwer’s cell phone
text message of 27 July 2018 on the same day, she
said it was because
the employees had informed her that they were at their respective
sites. She did not indicate when the employees
gave her this
information. And she did not explain what she meant when she said she
would deal with it, in her cell phone text
message of 31 July 2018,
in response to Mr Bouwer’s message of 27 July 2018. She said
she was in contact with the employees
on a daily basis.
[76]
Ms Mafuyela confirmed that one of the employees had forwarded to her
the “ultimatum” message that was sent
by way of a cell
phone text message on 09 August 2018. She also confirmed that
one of the employees had forwarded to her the
“
dismissal
with immediate effect
” message that was sent by way of a
cell phone text message on 10 August 2018. She did not explain
whether she had advised
the employees to comply with the ultimatum,
when it was forwarded to her.
[77]
Ms Mafulyela testified that the employees who were dismissed referred
an unfair dismissal dispute to the CCMA. She said
there were two
groups, with one group going to the CCMA office in Johannesburg and
the other group going to the CCMA office in
Pretoria. Importantly,
she testified that “
they said some should go to Pretoria
because the company was based in Pretoria
”. She said she
was not in a position to identify the employees who went to
Johannesburg and those who went to Pretoria.
[78]
Under cross-examination, Ms Mafuyela stated that she had met with the
employees on 08 and 09 August 2018, at which meetings
there were
discussions about the cell phone text messages they had received from
the respondent. However, she did not explain whether
she had advised
the employees to comply with the ultimatum that had been issued to
them on 09 August 2018. She confirmed
that she had advised
the dismissed employees to refer an unfair dismissal dispute to the
CCMA, but she did not advise them to appeal
their dismissals
internally despite the contents of the “
dismissal with
immediate effect
” message.
[79]
Ms Mafuyela confirmed that she was not on the work sites on 30 and
31 July 2018. She was at the collection
point on 27 July
2018 and some of the contracts were handed out.
[80]
Ms Mafuyela confirmed that she had not seen a certificate of outcome
from the CCMA’s office in Pretoria relating
to this matter.
Analysis
[81]
Section 191(5)(
b
)
of the Labour Relations Act 66 of 1995 (“the LRA”)
provides that where an unfair dismissal dispute relates to the
participation in an unprotected strike as a reason for dismissal, the
dismissed employee may refer the dispute to the Labour Court
for
adjudication if the CCMA has certified that the dispute remains
unresolved by conciliation or if thirty days have elapsed since
the
dispute was referred to the CCMA and it remains unresolved. This
means that the dismissed employee must refer the unfair dismissal
dispute to the CCMA for conciliation before referring it to the
Labour Court for adjudication. The Labour Court lacks jurisdiction
to
entertain such a dispute in the absence of a referral to conciliation
and a certificate of non-resolution or the lapsing of
thirty days
from the date of the referral to the CCMA.
[1]
[82]
In the current matter, and as stated above, the list of applicants in
the referral to the CCMA for conciliation contained
fifty-six names,
whereas the referral to this Court contained a new list of sixty-two
names. Out of the sixty-two names appearing
in the list of applicants
before this Court, only thirty-nine formed part of the list of
applicants before the CCMA. Further, the
respondent’s evidence
that six other applicants had to be excluded from this matter (four
having had their internal appeals
had succeed, one not being an
employee of the respondent, and another having absconded prior to 10
August 2018) was not disputed.
As such, only thirty-three applicants
are properly before Court in this matter, and the rest of the
applicants are not affected
by the order made in this matter.
[83]
This matter involves
material disputes of fact. The applicants were dismissed by the
respondent for having participated in an unprotected
strike action.
On the one hand, the applicants contend that they did not participate
in any strike action. On the other hand, the
respondent contends that
they did participate in an unprotected strike action. It is trite
that factual disputes in trial proceedings
are resolved ultimately on
the probabilities. In
Stellenbosch
Farmers’ Winery Group and Another v Martell & Cei SA
,
[2]
the Supreme Court of Appeal held the following:
“
[5]
On
the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So too on a number of peripheral
areas
of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual
disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court must
make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities.
As to (a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity
of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i)
the witness’s candour and demeanour
in the witness-box, (ii) his bias, latent and blatant, (iii)
internal contradictions
in his evidence, (iv) external contradictions
with what was pleaded or put on his behalf, or with established fact
or with his
own extracurial statements or actions, (v) the
probability or improbability of particular aspects of his version,
(vi) the calibre
and cogency of his performance compared to that of
other witnesses testifying about the same incident or events.
As to (b),
a witness’s reliability will depend, apart from the
factors mentioned under (a)(ii), (iv) and (v) above, on (i) the
opportunities
he had to experience or observe the event in question
and (ii) the quality, integrity and independence of his recall
thereof. As
to (c), this necessitates an analysis and evaluation of
the probability or improbability of each party’s version on
each
of the disputed issues. In the light of its assessment of
(a), (b) and (c) the court will then, as a final step, determine
whether the party burdened with the onus of proof has succeeded in
discharging it. The hard case, which will doubtless be the rare
one,
occurs when a court’s credibility findings compel it in one
direction and its evaluation of the general probabilities
in another.
The more convincing the former, the less convincing will be the
latter. But when all factors are equipoised probabilities
prevail”.
[84]
In the current matter, the credibility findings and the probabilities
are in favour of the respondent’s case, on
the issue whether
the applicants were engaged in an unprotected strike action. It is
clear from the evidence that the applicants
were not happy with the
conditions of their employment and they complained to the respondent.
The respondent entertained the applicants’
complaints and
undertook to meet some of their demands, including the demand to be
permanently employed and the demand that job
titles be contained in
payslips, despite the latter demand requiring a change to its
software. The applicants allege that their
demands were not met,
including the demand that they be made permanent. They allege that
despite the respondent’s letter
of 25 July 2018
specifically agreeing that they would all be permanently employed,
there was nothing in writing to back
it up, which is in my view
unacceptable.
[85]
The perception of the applicants that their demands were not being
met led them to refuse to tender their services for
the respondent,
on the probabilities. On their own version, the applicants
communicated to the respondent that they would not go
to their
designated work sites unless Mr Bouwer attended a meeting at which
their complaints would be addressed. The applicants
confirmed having
received the respondent’s letter of 25 July 2018, which had a
detailed section dedicated to the unprotected
strike action they were
engaged in. Ms Mafuyela who testified on their behalf acknowledged
that this letter had come to her attention.
The applicants did not
lead any evidence of having refuted the allegations contained in this
letter regarding them being engaged
in an unprotected strike action.
[86]
Further, the applicants did not dispute that Mr Bouwer had sent a
cell phone text message to Ms Mafuyela on 27 July 2018
indicating
that the employees were again on strike, and Ms Mafuyela had
responded on 31 July 2018 that she would address it. There
is no
evidence of how or when Ms Mafuyela addressed the message from Mr
Bouwer, despite her evidence that she met with the employees
on a
daily basis.
[87]
Mr Luiz confirmed that when the vehicles were taken away from the
applicants, they did not go to work. The applicants’
version
that they had waited for the respondent’s vehicles to collect
them at the collection point from the morning until
around 17h00 on
more than one occasion is wholly improbable.
[88]
As demonstrated above,
the applicants failed to put material aspects of their case to the
respondent’s witnesses. In this
regard, it is trite that a
failure to put one’s version to opposing witnesses means such a
version cannot be accepted. In
Masilela
v Leonard Dingler (Pty) Ltd,
[3]
the
Court held the following:
“
[28]
… It is trite that if a party wishes to lead evidence to
contradict an opposing witness, he should first cross-examine
him
upon the facts that he intends to prove in contradiction, to give the
witness an opportunity for explanation. Similarly, if
the court is to
be asked to disbelieve a witness, he should be cross-examined upon
the matters that it will be alleged make his
evidence unworthy of
credit. In
Small
v Smith
1954
(3) SA 434
(SWA) Claassen J said at 438:
“…
It is
grossly unfair and improper to let a witness's evidence go
unchallenged in cross-examination and afterwards argue that he
must
be disbelieved”.’
[89]
In
President
of the Republic of South Africa and Others v SARFU and Others,
[4]
the Constitutional Court held that:
“
[61]
… If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume that the unchallenged witness's testimony is accepted as
correct. This rule was enunciated by the House of Lords in
Browne
v Dunn
and
has been adopted and consistently followed by our courts”.
[90]
The Labour Appeal Court,
in
Ekurhuleni
Metropolitan Municipality v SA Local Government Bargaining Council &
others
,
[5]
recently confirmed the need to put one’s version when
cross-examining and rejected the defence of the employee in that case
on the following basis:
“
[26]
The
third respondent failed to make it clear to the complainant in
cross-examination the precise nature of the imputation raised,
in the
sense not only that her evidence was to be challenged but how this
was to be done. It was not put to her that her version
was false or
that it was denied by the third respondent. The result was that she
was not given the opportunity to respond to such
a challenge,
including to deny any suggestion as to the falsity of her version”.
[91]
Based on the above, I
find that the applicants were guilty of participating in an
unprotected strike action. It was not in dispute
that the
respondent’s business suffered as a result of this misconduct,
with it losing contracts from its biggest client.
The seriousness of
the misconduct can, thus, not be gainsaid. The fact that the
applicants persisted with their denial of the misconduct
demonstrated
that they showed no remorse, which meant that there was a possibility
that they could do it again and dismissal was
a reasonable
operational response to the risk of them repeating the misconduct.
[6]
[92]
The applicants’
claim that their dismissal without a hearing constitutes procedural
unfairness lacks merit. They were provided
with an opportunity to
make representations on appeal as to why their dismissals should not
stand. They did not make use of that
opportunity, in circumstances
where it was common cause that others who made use of that
opportunity were reinstated. The principles
relating to the
audi
alteram partem
rule
in circumstances where a hearing is provided after a decision to
dismiss were set out by the Labour Appeal Court in
Semenya
SC and Others v CCMA and Others
.
[7]
In that case, the employee contended that the opportunity to be heard
was granted to her after a decision was made to dismiss her,
which
was not good enough. The Court held the following:
“
[21]
…
Although
generally speaking such an opportunity should be given before the
decision can be taken, there are circumstances where
an opportunity
to be heard that is given after the decision has been taken is
acceptable. Where the opportunity to be heard is
given after the
decision has been taken and it is one of those situations where it is
acceptable and the person concerned spurns
that offer or does not
make use of it, it cannot lie in such person’s mouth to say
that he was not given an opportunity to
be heard. In such a case an
opportunity to be heard has been given and rejected. The
audi
alteram partem
rule
has been complied with in such a case”.
And:
“
[22]
…
However,
it seems to me that, where it can be said that the opportunity to be
heard that is given after the decision has been taken
is no less fair
than the opportunity that should have been given before the decision
could be taken, it ought not to make a difference
that it was offered
after the event”.
[93]
The fact that the employees who utilised the opportunity to make
representations in the appeal process were reinstated
demonstrates
that the appeal process was not less fair than any hearing that would
have been conducted prior to the dismissal.
The applicants did not
present any facts that demonstrated any unfairness of the appeal
process. There was, thus, no procedural
unfairness.
[94]
Under all the circumstances, I find that the applicants’
dismissals were substantively and procedurally fair.
Costs
[95]
The general approach in this Court is to not award costs. I see no
compelling reason to depart from that approach in
this matter.
[96]
In the premises, I make the following order:
Order
1. The applicants’
unfair dismissal referral is dismissed.
2. No order as to
costs.
V.G.
Mkwibiso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Adv T. Matlhoane
Instructed
by:
Thembekile
Graham Attorneys Inc
For
the Respondent : Adv M. A. Loxton
Instructed
by:
Hinrichsen
Attorneys
[1]
Feni
v Pan South African Language Board
(2011)
32 ILJ 2136 (LC).
[2]
Stellenbosch
Farmers’ Winery Group and Another v Martell & Cei SA
2003
(1) SA 11
(SCA), paragraph [5].
[3]
Masilela
v Leonard Dingler (Pty) Ltd
[2004]
4 BLLR 381
(LC); (2004) 25 ILJ 544 (LC) at para 28.
[4]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000
(1) SA 11999
(10) BCLR 1059 (CC),
2000 (1) SA 1
at para 61.
[5]
Ekurhuleni
Metropolitan Municipality v South African Local Government
Bargaining Council and Others
(2022)
43 ILJ 825 (LAC);
[2022] 4 BLLR 324
(LAC) at para 26.
[6]
De
Beers Consolidated Mines Ltd v CCMA and Others
(2000)
21 ILJ 1051 (LAC);
[2000] 9 BLLR 995
(LAC), paragraph [25].
[7]
Semenya SC and Others
v CCMA and Others
(2006)
27 ILJ 1627 (LAC),
[2006] 6 BLLR 521
(LAC).