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[2024] ZALCJHB 92
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Ledwaba and Others v Barloworld Transport (Pty) Ltd (JS817/2017) [2024] ZALCJHB 92 (28 February 2024)
FLYNOTES:
LABOUR – Dismissal –
Unprotected
strike
–
Serious
offence that undermines collective bargaining – Rights
disputes must follow dispute resolution machinery of
LRA –
Ultimatums afford a cool-off period – Ignored at peril of
striking employees – Inconsistency impute
is untenable where
there is proof that striking employees are not at same footing –
Sanction of dismissal appropriate
– Procedurally and
substantively fair – Blatant disregard for adverse
consequences of unprotected strike.
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JS 817/2017
In
the matter between:
WILLIAM
LEDWABA AND 36
OTHERS Applicants
and
BARLOWORLD
TRANSPORT (PTY)
LTD Respondent
Heard:
8 and 9 September 2022, 23 January 2024, 29 January 2024.
Delivered:
28 February 2024
Summary:
Dismissal for participating in an
unprotected
strike – serious offence that undermines collective bargaining,
a process aimed at resolving interest disputes
– rights
disputes must follow a dispute resolution machinery of the LRA –
ultimatums afford a cool-off period and are
ignored at the peril of
the striking employees – where there is proof that the striking
employees are not at the same
footing, inconsistency impute is
untenable – sanction of dismissal is appropriate where there is
blatant disregard for adverse
consequences of an unprotected
strike.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
In this action, the applicants, Mr Ledwaba and 36 others, were
dismissed on 24 May 2017 for participating in unprotected
strike
action. They are challenging both the procedural and substantive
fairness of their dismissal.
[2]
The applicants’ procedural challenge is based on the contention
that the disciplinary hearing proceeded without
the participation of
the applicants. Alternatively, the applicants contend that they were
not given an opportunity to record their
plea as there was no formal
hearing.
[3]
When it comes to the substantive challenge, the applicants deny that
they participated in an unprotected strike and/or
failed to adhere to
a Court Order that interdicted the unprotected strike. Instead, the
applicants contend that they were locked
out by the respondent.
Alternatively, the applicants contend that the respondent acted
inconsistently by dismissing them and exonerating
Messrs Jan Maleka
(Maleka), Abram Makubane (Makubane), Rudzani Tshikalaha (Tshikalaha)
and Charles Mathambo (Mathambo) who were
charged simultaneously with
the applicants.
Pertinent
facts
[4]
It is common cause that the applicants’ complaint was triggered
by the respondent’s decision to initiate disciplinary
action
against Mr Johannes Mankga (Mr Mankga), one of the Association of
Mineworkers and Construction Union’s (AMCU) shop
stewards in
April 2017. Displeased with Mr Mankga’s disciplinary hearing,
on 18 April 2017, the applicants lodged a group
grievance against two
of the respondent’s managers, Messrs Lucas Themba (Themba), the
Operations Manager and Venetius Shipalana
(Shipalana), the Fleet
Controller. They also demanded that the charges against all drivers
should be cancelled with immediate effect
and that Messrs Themba and
Shipalana be dismissed.
[5]
On 21 April 2017, the grievance hearing took place and was presided
over by an external chairperson, Advocate Steyn Fourie
(Advocate
Fourie). Advocate Fourie exonerated Messrs Themba and Shipalana of
alleged wrongdoing when they charged the drivers for
transgressions
as they were acting within the scope of their duties as Operations
Manager and Fleet Control Manager.
[6]
On 10 May 2017, the outcome of the grievance was communicated to
AMCU, the shop stewards and the truck drivers at a meeting
held at
the respondent’s premises at around 11h00. The employees
nonetheless demanded the removal of Messrs Themba and Shipalana
from
the operation, threatening to stop working if they were not removed.
Subsequently, the employees engaged in various acts of
intimidation
on drivers who were working and on subcontractors of the respondent,
including preventing them from entering and offloading
at the
respondent’s premises.
[7]
Mr. Stephan Vorster (Vorster) the respondent’s General Manager,
Employee Relations at the time, testified as follows:
7.1. On 10 May
2017, the respondent addressed correspondence to AMCU’s
Regional Organiser Mr. Kenneth Sekiti (Sekiti),
alerting him of AMCU
members’ response to the outcome of the grievance hearing and
their threat to embark on an unprotected
strike action. The
respondent further communicated to AMCU that, should its membership
proceed with an unprotected strike action,
the respondent would
immediately commence with the issuing of ultimatums, approach the
Labour Court for urgent interdictory relief,
and further reserved its
right to proceed with a civil claim.
7.2. Still, on 10
May 2017, the respondent’s legal representatives at the time
also addressed correspondence to AMCU
and the drivers informing them
of the actions that would be taken should they engage in unprotected
strike action, and explicitly
that the drivers were not entitled to
intimidate or prevent from working any of the respondent’s
employees and subcontractors.
7.3.
Subsequently, at about
15h00, the respondent sent cell phone text messages (SMS) out to all
drivers advising them that any strike
action embarked upon, without
following the procedures prescribed by the Labour Relations Act
[1]
(LRA), would be deemed to be unprotected and that disciplinary action
would be taken for such conduct.
7.4. The drivers
who had been rostered to work the 18h00 night shift on 10 May 2017
failed to report for duty. Thereafter,
the respondent issued a first
ultimatum to the night shift drivers. The ultimatum was communicated
by placing it on the notice
boards at the mine’s main gate and
by means of SMS to the drivers. The ultimatum was also sent to AMCU.
The drivers were
warned that their conduct constituted an unprotected
strike and were given an ultimatum to return to work by no later than
01h00
on Thursday morning, 11 May 2017, failing which the respondent
reserved the right to take further steps against them, including
disciplinary action which could ultimately result in their dismissal.
They failed to heed the call to go back to work.
7.5. The next day,
11 May 2017, the day shift drivers equally failed to report for duty.
The respondent issued a first ultimatum
to the day shift drivers
which was communicated in the same manner as the previous one
(affixed on the notice board, SMS to the
drivers and correspondence
to AMCU). The day shift drivers were given an ultimatum to return to
work by no later than 13h00, failing
which the respondent reserved
the right to take further steps, including taking disciplinary action
against them which could ultimately
result in their dismissal.
7.6. On 11 May
2017, a special meeting was held between the respondent’s
management, AMCU officials and shop stewards
at the Mokopane depot.
AMCU intimated that the striking employees would only return to work
once Messrs Themba and Shipalana were
removed from the site. AMCU
also confirmed that their members were aware that the strike action
was illegal and that they might
get dismissed.
7.7. On 11 May
2017, the respondent addressed correspondence to Sekiti, concerning
the unprotected strike action, and the
meeting held earlier that
morning. The respondent reiterated that it had issued ultimatums to
AMCU’s members which they had
not adhered to and, in the
circumstances, the respondent would seek interdictory relief
concerning such strike action.
7.8. A second
ultimatum was issued to all drivers at the Mokopane depot, advising
them that they were engaged in unprotected
strike action and that
they had been warned by the respondent to return to work but had
failed to do so. The second ultimatum was
also affixed to the main
gate, the contents sent by SMS to all striking employees and was sent
to AMCU. The second ultimatum gave
all drivers the opportunity to
return to work by no later than 13h00 on 12 May 2017. None of the
striking employees reported for
duty within the time stipulated in
the second ultimatum.
7.9. On 11 May
2017, the respondent sent out an SMS to all striking employees
informing and advising them that the respondent
would be bringing an
urgent application to the Labour Court on 12 May 2017, to interdict
the unprotected strike action. On 12 May
2017, the Labour Court
granted a
rule nisi
with an interim order which,
inter
alia
, declared the strike action unprotected and interdicted the
striking employees from participating in the unprotected strike
action.
AMCU was ordered to disseminate a copy of the Court Order to
all the shop stewards employed by the respondent and to ensure that
it remained in circulation until such time as the employees had
returned to work.
7.10. The Labour
Court Order was served by the Sheriff on AMCU and its members. The
respondent also affixed the Labour Court
Order to the main gate and
sent an SMS to all striking employees advising them that the Labour
Court had issued an interim order
declaring their strike action
unprotected.
7.11.
On 12 May 2017, the respondent issued a third and final ultimatum on
all striking employees. In the
ultimatum, the respondent stated that
the striking employees had been warned repeatedly by the respondent
to return to work and
had failed to do so. The respondent indicated
that if employees did not return to work by 06h00 on Monday, 15 May
2017, they would
be given notice to attend a disciplinary hearing at
which the company may seek the sanction of dismissal. The third
ultimatum was
affixed to the main gate, sent by SMS to the striking
employees, and conveyed to AMCU. Still, none of the striking
employees reported
for duty before or at 06h00 on Monday, 15 May
2017.
7.12.
On 15 May 2017, there was a further meeting between the respondent’s
management and AMCU. At
this meeting, AMCU confirmed that they had
consulted with their members and that their members were prepared to
resume their duties
provided that Messrs Themba and Shipalana were
removed from the depot.
7.13.
On 15 May 2017, the respondent addressed correspondence to Sekiti
referencing the meeting held earlier
that day. The respondent
referred to the unprotected strike action, and that despite the
ultimatums, repeated notices and SMS communication
from the company,
the employees elected not to return to work. The correspondence
recorded that the respondent would be affording
the striking
employees an opportunity to show cause why they should not be
dismissed for participation in an unprotected strike
and failure to
adhere to a Court Order.
7.14. On 15 May
2017, the respondent issued a notification by hand and SMS to all
employees participating in the illegal and
unprotected strike
informing them of the disciplinary hearing that was scheduled to take
place on 18 May 2017. The notification
further informed employees,
inter alia
, that they would be required to attend the hearing
to show cause as to why they should not be dismissed for
participation in unprotected
strike action and failure to adhere to a
Court Order; that they would be entitled to a representative; that
they would be given
an opportunity to present evidence in their
defence; and that the hearing would be chaired by an independent
chairperson. They
were also warned that a failure to attend the
hearing, in the absence of a good reason, would result in the hearing
proceeding
in their absence.
7.15. On 18 May
2017, there were three separate disciplinary hearings for the
striking employees:
7.15.1. The first
disciplinary hearing concerned three employees who had elected to
represent themselves and who had disassociated
themselves from the
main group of striking employees:
7.15.1.1. Those
three employees were Messrs Makobane, Maleka and Tshokalaha.
7.15.1.2. They
pleaded not guilty to the charges and were able to show that they
were either off from work or on leave during
the period of the
unprotected strike action.
7.15.1.3. The
charges against these three employees were accordingly withdrawn.
7.15.2. The second
disciplinary hearing concerned AMCU and its members that they
represented:
7.15.2.1. The AMCU
representatives were Messrs Wilson Tonga (Tonga), Kenneth Sipithi
(Sipithi) and Ms Solophile Sethake (Sethake).
There were also three
AMCU shop stewards present at the second disciplinary hearing.
7.15.2.2. The AMCU
representatives confirmed on record that they were representing their
members.
7.15.2.3. The AMCU
representatives, acting on behalf of their accused members, pleaded
guilty to the charge of participation
in unprotected strike action
from 10 May 2017 until 15 May 2017.
7.15.2.4. As a plea
of guilty had been entered, the parties agreed to submit written
aggravating and mitigating factors by
19 May 2017 and 22 May 2017,
respectively.
7.15.3. The third
disciplinary hearing on 18 May 2017, concerned 16 employees that were
not represented by AMCU:
7.15.3.1. These 16
employees did not attend their disciplinary hearing and were not
represented.
7.15.3.2. The
disciplinary hearing of these 16 employees accordingly continued in
their absence, with the respondent presenting
its case.
7.16. On 24 May
2017, the chairperson recommended a sanction of summary dismissal in
respect of the second disciplinary hearing
concerning AMCU and its
members. When it comes to the third disciplinary hearing, the
chairperson found the accused employees guilty
as charged and
recommended a sanction of summary dismissal as well. On 24 May 2017,
the applicants were dismissed.
7.17. The
unprotected strike action had an adverse financial impact on the
respondent as the rendering of services to the
client, Anglo
Platinum, was severely curtailed. The overall estimated financial
loss was about 9 million.
[8]
Mr. Vorster’s evidence was not seriously disputed. The high
point of his cross-examination was that the applicants
were locked
out hence they could not comply with the various ultimatums. Mr
Vorster was adamant that the applicants embarked on
unprotected
strike action and were unbedding in their stance despite the
involvement of AMCU.
[9]
Mr William Ledwaba (Ledwaba), one of the applicants, gave the
following evidence on behalf of the applicants:
8.1 He was
employed by the respondent as a truck driver and one of the AMCU shop
stewards. The employees lodged a grievance
against Messrs Themba and
Shipalana. On 10 May 2017, they were informed of the grievance
hearing outcome, and it did not sit well
with them. They were upset
by it, and the other employees did not want to accept the outcome.
8.2 On 10 May
2017, drivers were instructed to bring the trucks back to the depot
and they remained outside of the respondent’s
premises. The
employees were effectively locked out, and only the shop stewards
were allowed to enter the premises. The employees
informed AMCU about
the lockout and on 11 May 2017, a meeting was arranged between
management and AMCU.
8.3 The employees
received SMSs to report for duty, but they were locked out by the
respondent. On 13 May 2017, the Sheriff
attended at the premises and
affixed a document to the gate but did not speak to them. A meeting
had been arranged for 18 May 2017
to review the employees’
concerns and grievances.
8.4 On 15 May
2017, the drivers received SMSs to attend a disciplinary hearing on
18 May 2017. On 15 May 2017, two SMSs were
received, with the other
being in respect of a review of the grievance. On 18 May 2017, the
union representatives were called into
the respondent’s
premises, while he and the other employees remained outside of the
company’s premises.
8.5 The union
representatives came back to them later and gave the employees
feedback that they were awaiting the result.
He was unaware of any
mitigating factors having been submitted on his and the other AMCU
members’ behalf. No mandate had
been given to the AMCU
representatives to do so as they had never participated in an
unprotected strike action.
8.6 He denied that
the Sheriff had served the applicants with the Order of the Labour
Court interdicting the unprotected
strike action. He also denied that
the strike action was characterised by violence.
8.7 He was adamant
that the financial loss suffered by the respondent was due to its
failure to deal with the concerns that
the employees had raised in
the grievance and the fact that they implemented a lockout.
8.8 Under
cross-examination, he made the following concessions:
8.8.1 The
applicant employees were not happy with the outcome of the grievance
hearing as they wanted Messrs Themba and Shipalana
to be removed.
8.8.2 There was
engagement between the respondent and AMCU on 10 May 2017 up until 15
May 2017.
8.8.3 The various
ultimatums had been received by SMS and they provided a reasonable
amount of time for them to reflect on
their conduct.
8.8.4 He accepted
that a version that the ultimatums were not placed on the notice
boards or not given to AMCU had never
been put to Mr Vorster.
8.8.5 The Sheriff
had made several attempts to effect service of the Court Order on the
striking employees. One return of
service shows that the Court Order
had been duly served on him and the other shop steward. He, however,
maintained that he had
never been served with the Court Order.
8.8.6 He accepted
that, on 15 May 2017, he was notified by SMS of the disciplinary
hearing that was scheduled for 18 May
2017 and that he was entitled
to a representative.
8.8.7 He
maintained that he remained outside of the disciplinary hearing on 18
May 2017, despite him having signed the attendance
register and the
transcript indicating that the AMCU shop stewards, of which he was
one them, attended the disciplinary hearing.
8.8.8 AMCU
represented him and other AMCU members at the disciplinary hearing on
18 May 2017. He understood that if a plea
of guilty was entered then
aggravating and mitigating factors would need to be submitted.
8.8.9 He did not
know that AMCU had agreed to submit mitigating factors on their
members’ behalf.
8.8.10 He accepted
that according to the chairperson’s outcome report on the
sanction, AMCU seemingly did submit mitigating
factors on behalf of
the accused members.
8.8.11 He accepted
that the respondent’s disciplinary code listed participation in
unprotected strike action as a very
serious offence, that could
warrant a sanction of summary dismissal, but denied that they had
participated in an unprotected strike
action.
8.8.12 He accepted
that the first disciplinary hearing involving Messrs Makobane, Maleka
and Tshokalaha was different from
his and the AMCU members, as they
had pleaded not guilty to the charge. He, however, disagreed that the
three employees were either
off or on leave and accused them of
lying.
8.8.13 He was not
aware of the third disciplinary hearing involved the 16 employees who
were not members of AMCU and did not
know that, because they had
failed to attend the hearing, it had continued in their absence.
Was
there a strike or lockout?
[10]
The first issue to be decided is whether the applicants participated
in a strike action from 10 May 2017 to 15 May 2017.
The applicants
disavowed participating in an unprotected strike action. Instead,
they assert that they were locked out by the respondent.
[11]
Section 213 of the LRA defines a strike as a:
‘…
partial
or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed
by the
same employer or by different employers, for the purpose of remedying
a grievance or resolving a dispute in respect of any
matter of mutual
interest between employer and employee, and every reference to 'work'
in this definition includes overtime work,
whether it is voluntary or
compulsory
.’
[2]
[Own emphasis]
[12]
In
Transport
and Allied Workers Union of SA on behalf of Ngedle and others v
Unitrans Fuel & Chemical Co (Pty) Ltd
[3]
,
the Constitutional Court observed that there are four elements that
constitute a strike under the LRA, stating that:
‘…
In
everyday parlance people call every collective stay-away from work or
work stoppage a strike. Under the LRA a strike must have
the four
elements. These are: (a) a partial or complete concerted refusal to
work or retardation or obstruction of work, (b) by
persons who are or
have been employed by the same employer or by different employers,
(c) for the purpose of remedying a grievance
or resolving a dispute,
(d) in respect of a matter of mutual interest between employer and
employee.’
[13]
While a lockout is defined as:
‘…
the
exclusion by an employer of employees from the employer’s
workplace, for the purpose of compelling the employees to accept
a
demand in respect of any matter of mutual interest between employer
and employee, whether or not the employer breaches those
employees’
contracts of employment in the course of or for the purpose of that
exclusion.’
[4]
[14]
In my view, the evidence
and the probabilities prodigiously favour the respondent’s
version that the applicants participated
in a strike action.
[5]
The applicants collectively refused to work from 10 May 2017 to 15
May 2017. They conceded that, on 10 May 2017, they rejected
the
outcome of the grievance hearing against Messrs Themba and Shipalana
as they were discontented. It was not Mr Ledwaba’s
evidence
that they still went back to work despite their disgruntlement. He
seemed to suggest that they converged outside the premises
in order
to discuss the outcome of the grievance hearing. This evidence is
implausible and cannot be accepted for the reasons hereunder.
[15]
Mr Vorster, on the other hand, was clear that the applicants’
refused to return to work and to report for duty
from 10 May 2017 to
15 May 2017, despite being warned that such conduct would be unlawful
and AMCU’s intervention being sought.
All the ultimatums from
10 May 2017 to 12 May 2017 were unheeded as the applicants
unrelentingly refused to return to work. In
fact, both AMCU’s
shop stewards and officials made it clear that the striking employees
would not return to work until Messrs
Themba and Shipalana were
removed from the depot in Mokopane.
[16]
Mr Vorster testified that
the strike action by the applicant was also reported in the local
newspaper, Bosveld News.
[6]
The
striking workers were reported to have stated that they would not
return to work until their matter was resolved. Mr Ledwaba
did not
dispute the contents of the newspaper article, save to distance
himself from approaching the newspaper.
[17]
The assertion that the applicants were locked out and hence they
could not heed the ultimatums is nothing but a desperate
attempt to
escape from the consequences of the choice they made at the time.
There is no iota of evidence to show that the applicants
took up the
issue of a lockup with AMCU. Notably, the alleged lockout has never
been raised in any of the meetings AMCU had with
the respondent
leading to the disciplinary hearing. It is even more curious that
AMCU would enter a plea of guilty on behalf of
its members for
participating in an unprotected strike action when its members had
been unjustly locked out.
[18]
Accordingly, the applicants’ refusal to work from 10 May 2017
to 15 May 2017 constitutes a strike action as defined
in section 213
of the LRA. Since the applicant failed to comply with section 64 of
the LRA, the strike action is unprotected.
Legal
principles on unprotected strike action
Substantive
fairness of a dismissal
[19]
Section 68(5) of the LRA
provides that the employer has a right to dismiss employees who
participate in a strike action that does
not comply with the
provisions of the LRA.
[7]
In
National
Union of Metalworkers of South Africa (NUMSA) v CBI Electric African
Cables
,
[8]
the Labour Appeal Court
(LAC) confirmed that the mere fact that the strike is unprotected is
not “
a
magic wand which when raised renders the dismissal of strikers
fair
”
[9]
.
Thus, the determination of substantive fairness of a dismissal
pursuant to an unprotected strike must be undertaken in two stages
and in accordance with items 6 and 7 of Schedule 8 of the Code of
Good Practice: Dismissal (Code).
[20]
Item 6 provides:
‘
(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.’
[21]
While item 7 provides:
‘
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 was
an appropriate sanction for the contravention of the rule or
standard.’
[22]
It must be echoed that most of the applicants were represented by
AMCU throughout the events that led to the unprotected
strike action.
Mr Ledwaba himself was one of AMCU’s shop stewards who were
engaging with the respondent on behalf of the
striking employees. It
was not his evidence that the process undertaken by the respondent in
dealing with the group grievance was
unjustifiable. Notably, the
respondent warned the striking employees and AMCU to avail themselves
of the dispute resolution processes
of the bargaining council since
they were not happy with the outcome of the group grievance hearing.
[23]
Therefore, it cannot be said that the unprotected strike action was a
response to an unjustified conduct of the respondent.
Put otherwise,
the applicant’s actions were not a response to the respondent’s
provocative and unjustifiable conduct.
Moreover, the applicants made
no attempts to comply with the provisions of section 64 of the LRA,
despite being represented by
AMCU at that time. I note with curiosity
that AMCU is not involved in this litigation.
[24]
The applicants did not dispute the fact that they were aware of the
disciplinary code and that the offence of participation
in
unprotected strike action was a very serious offence that may warrant
summary dismissal. If there was any doubt whether the
applicants were
aware of the rule against unprotected strike action, the ultimatums
categorically warned them of the seriousness
of their conduct and the
consequences thereof. Still, as correctly contended by the
respondent, they obstinately persisted with
their demand for over a
period of five days, fully aware of the potential consequences and
prepared to accept them.
[25]
Mr Ledwaba tried to pour scorn on the respondent’s evidence
that the five day long unprotected strike action caused
substantial
financial harm to its business; and attributed it to the alleged
lockout, if at all. Having found that there was no
lockout, the
evidence that the unprotected strike action had an adverse financial
impact on the respondent’s business remains
unchallenged. I
have also considered the uncontroverted evidence of the respondent
that the applicants blockaded the ingress to
the depot and intimated
the contractors and non-striking employees.
[26]
The respondent’s efforts to get the applicants back at work
were fruitless. The applicants disregarded the Court
Order issued on
12 May 2017, interdicting the strike action. The Court Order was duly
served on the applicants by SMS and was also
communicated to AMCU,
which was ordered to ensure that its members were duly notified. The
Sheriff’s return of service shows
that the Court Order was read
to the striking employees by a loud-hailer and a copy was affixed at
the entrance. Mr Ledwaba and
the other shop stewards were also duly
served. Therefore, any suggestion that the applicants did the receive
and/or comprehend
the contents of the Court Order is devoid of merit.
[27]
Mr Ledwaba conceded
during cross-examination that the respondent gave the applicants
sufficient time to reflect on the ultimatums
and respond to them. In
Mndebele
and others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg
Plant)
[10]
(
Mndebele
)
,
the LAC observed that:
‘
The
purpose of an ultimatum is not to elicit any information or
explanations from the employees but to give them an opportunity
to
reflect on their conduct, digest issues and, if need be, seek advice
before making the decision whether to heed the ultimatum
or not
.
The ultimatum must be issued with the sole purpose of enticing the
employees to return to work, and should in clear terms warn
the
employees of the folly of their conduct and that should they not
desist from their conduct they face dismissal.
Because
an ultimatum is akin to a final warning, the purpose of which is to
provide for a cooling-off period before a final decision
to dismiss
is taken
,
the
audi
rule must be observed both before an ultimatum is issued and after it
has expired. In each instance, the hearing may be collective
in
nature and need not be formal.’ [Own emphasis]
[28]
Obviously, in this instance, the applicants chose to reject the
ultimatums despite being advised of the serious consequences
that
would follow.
Inconsistency
[29]
The nub of the applicants impugn turns on the allegation that the
respondent acted inconsistently by dismissing them
while it spared
Messrs Maleka, Makubane, Tshikalaha, and Mathambo who were charged in
consort with the rest of the applicants.
[30]
Tritely, the parity
principle is one of the basic tenets of fairness; requiring that
employees who have committed similar misconduct
be treated
similarly.
[11]
This tenet is
succinctly articulated in
County
Fair Foods (Epping), a division of Astral Operations Ltd v Food &
Allied Workers Union and others
[12]
(
Country
Fair
)
as follows:
‘
[25]
Our courts have repeatedly stated that fairness generally requires
that like cases should be treated alike
and that disciplinary
consistency is the hallmark of progressive labour relations.
While
discipline should be neither capricious nor selective, this applies
within reasonable bounds and subject to the proper and
diligent
exercise of discretion in each individual case with fairness
remaining a value judgment.
There
may exist valid grounds in a particular case to distinguish the
conduct of one employee from another, albeit that they have
engaged
in the similar conduct, having regard to the material facts
applicable.
[26]
The appellant was neither capricious nor selective in its approach to
the misconduct committed by the respondent employees.
The collective
activity of the respondents could, unlike in
Metrofile
, be
legitimately differentiated from the employees who complied with the
final and earlier ultimata.
The striking workers were, therefore,
not all on the same footing given the respondent employees’
failure to comply with the
final ultimatum given to them. As much was
not in dispute. This constituted a material distinguishing feature
between the different
groups of strikers which provided a legitimate
factual basis which permitted the appellant to differentiate between
the conduct
of the respondent employees and that of those striking
workers who had complied with the ultimata issued
.’ [Own
emphasis]
[31]
By the same token, striking employees were not on the same footing in
this instance. Messrs Maleka, Makubane and Tshikalaha
elected to
represent themselves at a separate disciplinary hearing; pleaded not
guilty to the charge of participating in an unprotected
strike
action; and were able to show that they were either on leave or off
duty during the unprotected strike action. In essence,
they distanced
themselves from the conduct of the striking employees. The charges
against them were accordingly withdrawn.
[32]
Thus, it cannot be said
that the respondent acted capriciously. Besides, the applicants’
generalised
allegation of inconsistency does not meet the threshold and, as such,
must fail.
[13]
Appropriateness of the
sanction
[33]
Tritely, the overall
circumstances of the case must be considered in order to justly
scrutinise the appropriateness of the sanction
of dismissal.
[14]
That
does not entail a fresh scrutiny of what transpired or what could be
done but to decide on the fairness of what the employer
did without
deferring to the employer’s decision.
[15]
To the extent that the constitutional rights are implicated, the
observations by the Constitutional Court in
National
Education Health & Allied Workers Union v University of Cape Town
and others
[16]
,
referred with approval in
County
Fair
[17]
,
are pertinent:
‘
[T]he
focus of s 23(1) is, broadly speaking, the relationship between the
worker and the employer and the continuation of that relationship
on
terms that are fair to both. In giving content to that right, it is
important to bear in mind the tension between the interests
of the
workers and the interests of the employers which is inherent in
labour relations. Care must therefore be taken to accommodate,
where
possible, these interests so as to arrive at the balance required by
the concept of fair labour practices. It is in this
context that the
LRA must be construed.’
[18]
[34]
In the present case,
similar to what transpired in
County
Fair
[19]
,
the
applicants participated in a disruptive unprotected strike action for
five days with apparent contempt for the authority of
the respondent
as the employer. They neither gave a thought to the adverse financial
impact of their actions nor the damage caused
to the employment
relationship. They disingenuously persisted in denying they
participated in an unprotected strike action, contrary
to the
concession made by AMCU. Clearly, they are not penitent.
[35]
The evidence before me
also shows that the applicant’s decision to participate in an
unprotected strike action was deliberate,
calculated and clearly
undermined the process of collective bargaining as a tool to resolve
interest disputes and the dispute resolution
machinery of the LRA
aimed at resolving rights disputes. As aptly cautioned by this
court, per Van Niekerk J, as he was then,
in
South
African Airways (Pty) Ltd v South African Transport and Allied
Workers Union
[20]
,
the right to strike should be construed within the objects of the
LRA, one of which is the promotion of orderly collective bargaining.
He correctly observed that “
[t]he
right to strike, fundamental as it is, is thus not an end in itself –
the resolution of disputes through collective
bargaining remains the
ultimate objective
”
.
[21]
[36]
In the circumstances, I am satisfied that the sanction of dismissal
is appropriate.
Procedural
fairness
[37]
Mr Ledwaba stubbornly
asserted that he and the other shop stewards were not part of the
disciplinary hearing. Yet the transcript
of the disciplinary hearing
placed them in the room where the hearing was held on 18 May
2017.
[22]
Worse still, he was
constrained to concede that the AMCU official and shop stewards did
sign the attendance register as recorded
in the transcript.
[23]
Instead, he came up with a lame explanation as to why they, AMCU shop
wards, ended up sitting at the reception area after signing
the
attendance register, hence they did not participate in the
disciplinary enquiry.
[38]
Be that as it may, Mr
Ledwaba was constrained to concede during cross-examination that the
AMCU officials were representing the
accused members, of which he was
one of them. When the AMCU officials entered a plea of guilty and
filed written submissions in
mitigation of the sanction on behalf of
the accused members, they were acting as mandated agents.
[24]
If the applicants take issue with the conduct of the AMCU officials
who represented them, the fight should be directed at AMCU
and not
the respondent.
[39]
Instructively, in
Mndebele
[25]
,
the LAC opined that the notion for the pre-dismissal hearing after
the expiry of the ultimatum is to observe the
audi
alteram partem
rule
and the nature of the hearing may be collective and informal,
depending on the circumstances of each case.
[26]
In the present instance, the respondent charged the AMCU members
collectively and it follows that the plea of guilty was collectively
entered on their behalf.
[40]
There are nine applicants who were not AMCU members. Their
disciplinary hearing was held separately on 18 May 2017. Mr
Vorster
testified that these applicants failed to attend the disciplinary
hearing despite having been duly served with the notice
through SMSs.
The hearing proceeded in their absence. The chairperson of the
disciplinary hearing found them guilty for participating
in
unprotected strike action and recommended a sanction of dismissal.
This evidence was not refuted.
[41]
It bears mentioning that there was no evidence led by the applicants
to specifically deal with the nine applicants who
were not AMCU
members in this regard. The applicants closed their case after the
evidence of Mr Ledwaba per the advice of their
attorneys of record.
On caution, I asked the applicants who were in attendance in Court
whether they confirmed the instruction
to close their case; they
conceded. I, therefore, accept that these applicants shunned the
opportunity to be heard before they
were dismissed.
[42]
It follows that the applicants’ procedural impugn is
untenable.
Conclusion
[43]
In all the circumstances, the respondent successfully showed that the
dismissal of the applicants was both procedurally
and substantively
fair. The applicants’ claim stands to be dismissed accordingly.
Costs
[44]
The respondent sought costs against the applicants. While it is clear
that the applicants acted incautiously in instituting
this
litigation, I am disinclined to saddle them with costs as it will
offend the notion of fairness and equity.
[45]
In the circumstances, I make the following order:
Order
1. The dismissal of
the applicants is procedurally and substantively fair.
2. The applicants’
claim is accordingly dismissed.
3. There is no
order as to costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
Mr MP Phooko of Moloko Phooko Attorneys
For
the Respondent:
Advocate Z Navsa
Instructed
by:
Poswa Incorporated Attorneys
[1]
Act
66 of 1995, as amended.
[2]
Section
213 of the LRA.
[3]
[2016] ZACC 28
;
(2016)
37 ILJ 2485 (CC) at para 105; See also
City
of Johannesburg v Democratic Municipal & Allied Workers Union of
SA and others
[2019]
ZALCJHB 370; (2020) 41 ILJ 1959 (LC) at para 6.
[4]
Id.
[5]
Stellenbosch
Farmers’ Winery Group Ltd and another v Martell et Cie and
others
[2002]
ZASCA 98
;
2003 (1) SA 11
(SCA) at para 5
.
[6]
See:
Newspaper article, main trail bundle, p 141.
[7]
See:
Vodacom
(Pty) Ltd v CWU
[2010]
ZALAC 31
;
[2010] 8 BLLR 836
(LAC) at paras 10 and 11, where it
was held that despite the procedural compliance with section 64, a
strike will be unprotected
if it is prohibited in terms of section
65 of LRA.
[8]
[2013] ZALAC 25
;
[2014] 1 BLLR 31
(LAC) at para 29. See also
National
Union of Mineworkers of SA v Tek Corporation Ltd and Others
(1991) 12 ILJ 577 (LAC).
[9]
Id.
[10]
(2016) 37 ILJ 2610 (LAC) (
Mndebele
)
at para 27.
[11]
Chemical
Energy Paper Printing Wood & Allied Workers Union & others
and
others v Metrofile (Pty) Ltd
(2004)
25 ILJ 231 (LAC) at para 35.
[12]
[2018] ZALAC 9
; (2018) 39 ILJ 1953 (LAC) (
County
Fair
)
at paras 25 - 26; see also
Gcwensha
v Commission for Conciliation, Mediation & Arbitration and
others
(2006)
27 ILJ 927 (LAC) at para 36.
[13]
See:
Bidserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[2017]
ZALAC 4
; (2017) 38 ILJ 860 (LAC) at para 31.
[14]
See:
County
Fair Foods supra
fn
13 at para 27. See also
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2007]
ZACC 22
;
2008 (2) SA 24
(CC) at para 79.
[15]
Id.
[16]
[2002] ZACC 27
; (2003) 24 ILJ 95 (CC) at para 40.
[17]
County
Fair Foods
above
fn 13 at para 28.
[18]
Id.
[19]
County
Fair Foods
above
fn 13 at para 28.
[20]
[2009] ZALC 113
; (2010) 31 ILJ 1219 (LC) at para 22.
[21]
Id.
[22]
See:
Trial bundle, p 181, lines 11-23.
[23]
Id.
[24]
See:
Trial bundle, p 198, lines 10-23; and p 199, lines 24-25.
[25]
Mndebele
above
fn 11.
[26]
Id.