About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 300
|
|
NUMSA obo Ramothibe and Others v Commission for Conciliation Mediation and Arbitration and Others (JR1655/22) [2024] ZALCJHB 300; [2024] 10 BLLR 1069 (LC) (5 August 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1655/22
In the matter between:
NUMSA
obo RAMOTHIBE & 55 OTHERS
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
DIALWA
ALPHEUS MATHALA
N.O.
Second
Respondent
UNIVERSAL
TISSUE (PTY) LTD
Third
Respondent
Heard: 10 January 2024
Delivered: 05 August
2024
JUDGMENT
DE HAAN, AJ
Introduction
[1]
This
is an application in terms of section 145, read with section
158(1)(g) of the Labour Relations Act
[1]
(LRA), to review the arbitration award dated 27 June 2022 by the
second respondent (the arbitrator) under the auspices of the first
respondent (the CCMA) under case reference GAEK6682-20.
Background facts
[2]
The individual
applicants were employed by the third respondent. On 3 and 4 February
2020 the individual applicants participated
in a protected strike.
According to the third respondent the whole strike was recorded on
video. As a result of the content of
the videos taken by the third
respondent, disciplinary charges of gross misconduct were brought
against the individual employees
and a disciplinary enquiry was
scheduled.
[3]
There were
seven charges:
‘
GROSS
MISCONDUCT: in that
[a]
You acted knowingly and in collusion in physically assaulting a
non-striking staff member on 04 February 2020.
[b]
You acted with intent and collusion with the striking employees to
intimidate, harass and threaten the safety (both physically
and
verbally) of non-striking employees of the Company thereby inciting
fear in your fellow colleagues and management.
[c]
You acted in collusion in actively visiting the homes of non-striking
employees and threatened to burn their homes if they came
to work.
[d]
You further acted in collusion with striking employees to barricade
the entrance of fellow employees, customers and visitors to
the
Company premises which has resulted in the company having to incur
substantial financial expenses in procuring the services
of a strike
force security company to ensure the safety and security of employee,
customers and visitors whilst entering and being
present on the
Company premises.
[e]
Your conduct whilst on strike and under lock out has brought the name
of the Company in disrepute.
[f]
Your conduct has cost the Company financial loss as a result of
having to close down the plant to ensure the safety of the
non-striking
staff members.
[g]
As a result of your actions whilst striking and whilst under lockout
the trust relationship has broken down irretrievably between
the
Company and yourself as well as the working relationships between
yourself and the employees of the Company.’
[4]
The
disciplinary hearing was scheduled for 3 and 4 March 2020 at the
Heidelberg City Hall. After the employer’s witnesses
testified,
the hearing was postponed to 17 March 2020 at the Heidelberg Church
Hall, which was apparently slightly smaller than
the City Hall. In
the meantime, the emergence of Covid-19 led to the declaration of a
national state of emergency on 15 March 2020,
although there were not
yet regulated limitations on gatherings.
[5]
On 17 March
2020, at the outset, the third respondent’s representative,
Deon Lubbe, raised an issue relating to Covid-19,
in that the
employees did not have face masks on and had not sanitized. He
requested that, due to the inadequate size of the Church
Hall, the
individual applicants sit on the verandah with open doors where they
would be able to hear, but not see the proceedings.
As a result, the
chairperson of the hearing eventually made a ruling that the
individual employees should leave the Church Hall
and observe the
proceedings from outside.
[6]
When the
individual employees and their union representative refused to leave
the Church Hall, heated exchanges ensued. After warning
the
applicants of her intention to do so if they did not leave the room,
the chairperson and the employer’s representative
left the
venue and continued the hearing at the premises of the third
respondent in the absence of the applicants and their representative.
[7]
The
chairperson found all of the individual employees guilty on all the
charges, except charge [c], and on 19 May 2020 the individual
applicants were dismissed.
[8]
An unfair
dismissal dispute was referred to the CCMA and after conciliation
failed arbitration was concluded on 7 June 2022. The
arbitrator found
the dismissal to be both procedurally and substantively fair. The
applicant then brought the review application
that is now before me.
The Award
[9]
The arbitrator
recorded in paragraph 4 of his award, that the applicants conceded to
having blocked the main road to the company’s
premises. This
also appears from the founding affidavit at paragraph 21.1, although
the averments are that it was unintentional
and did not warrant
dismissal.
[10]
In paragraphs
6 and 7 of the award, the arbitrator recorded that a settlement
agreement was signed by the parties at the CCMA on
14 February 2020.
This settlement was in respect of the breach of the picketing rules
on 3 and 4 February 2020, which breach was
referred to the CCMA for
conciliation in terms of section 69 of the LRA.
[11]
In paragraph 8
of the award, the arbitrator referred to the video footage of the
strike as being challenged by the applicants, and
that the evidence
was led in respect of the video footage, before he finds that the
challenge was unsustainable and accepted it
as evidence.
[12]
In paragraphs
9 to 12 of the award, the arbitrator deals with the challenge to the
procedural fairness of the hearing. The arbitrator
considered whether
the chairperson’s ruling to remove the applicants from the room
was reasonable in view of the State of
Disaster provisions regarding
social distancing.
[13]
In paragraph
14 to 18 of the award, the arbitrator recorded Dosani’s
testimony.
[14]
In paragraph
19 of the award the arbitrator recorded Smalberger’s testimony
that he had copied clips from the video footage
to present at the
hearing and at arbitration. I cannot fail to note that the arbitrator
did not record Smalberger’s testimony
that he had been
specifically instructed by the third respondent to only compile clips
of breaches of the picketing rules.
[15]
In paragraph
20 to 22 of the award, the arbitrator records Lubbe’s testimony
as being that the chairperson of the hearing
had requested some of
the individual applicants to stand by the door and watch the
proceedings. The arbitrator then records Lubbe’s
testimony as
being that Friday Mamba could not testify at the hearing as he felt
intimidated.
[16]
In paragraph
31 of the award, the arbitrator holds that “
Just
on the definition of a strike in accordance with section 213 of the
LRA, such act is concerted in nature and therefore participants
therein invariably act in coordination with each other. The video
footages played in this arbitration was evident to the effect
that
the striking employees on the wh
ol
e
acted with complicity and invariably in collusion with each other’
.
More on this later.
[17]
In paragraph
33 of the award, the arbitrator held that the assault of Peter was
related to the strike and in paragraph 34 he finds
that Friday Mamba
was also assaulted.
[18]
In paragraph
35 of the award, the arbitrator finds that there was incontrovertible
evidence that the company had to close down,
that the applicants had
consumed alcohol and showed their breasts to onlookers. He finds the
third respondent’s version more
plausible than that of the
applicants.
[19]
In paragraph
39 of the award the arbitrator finds that, “
By
being disrespectfully defiant towards the presiding officer and his
reasonable ruling, the Applicants made the environment impractical
to
continue with the hearing
”,
and in paragraph 40, he finds that, “
By
their own doing, they waived their right to be heard”
.
Grounds for review
[20]
In respect of
the alleged procedural unfairness, the applicant’s stated
grounds for review are that the arbitrator committed
a reviewable
irregularity and that his award therefore falls outside the band of
reasonableness, by failing to consider the applicants’
evidence. The applicants allege that it is common cause that the
hearing did not proceed at the Church Hall. The applicants allege
that the employer and the chairperson abandoned the hearing and that
no new notice was issued to the individual members or to their
union
that the hearing would proceed at the employer’s premises. The
applicants allege that it was unfair to expect the individual
applicants to try to follow the proceedings from outside the Church
Hall and that, in the instance, the individual applicants were
not
given the opportunity to state their case.
[21]
As to
substantive unfairness, the applicants aver that the award is not one
to which a reasonable arbitrator could come on the facts
before him,
because the arbitrator, despite accepting the applicants’
version that they were not involved in the acts enumerated
in the
charges, he nevertheless found that their dismissals were
substantively fair. The arbitrator’s finding that discipline
was consistently applied was not consistent with the evidence, as
Friday Mamba, who also participated in the strike, was not dismissed
and Peter Lytton, who illegally participated in the strike, was also
not dismissed. The video evidence does not support the conclusion
that Lytton was assaulted during the strike, and according to the
applicants, that assault took place on 31 January 2020. The
arbitrator ignored the video evidence that shows that some of them
were stopping Friday Mamba from assaulting another person, which
is
evidence that they were not acting in collusion with the violent
strikers. Finally, the applicants aver that the arbitrator
made an
impermissible inference that the individual applicants colluded and
made common purpose with the violence that was perpetrated
by the
strikers because they were singing strike songs and that he ignored
evidence to the contrary. In respect of the charge of
the breakdown
of the relationship of trust, no evidence was presented by the third
respondent and the arbitrator could therefore
not make the inference
that the relationship had in fact broken down in respect of each
individual applicant. In coming to his
award on sanction, the
arbitrator did not consider mitigating factors relating to the
individual applicants.
[22]
In response,
the third respondent avers that, due to the inadequate size of the
Church Hall and the concerns about Covid 19, the
chairperson was
reasonable in her ruling that the individual applicants should
observe the proceedings from the verandah. The union
representative
shouted at Lubbe. The chairperson then informed those present in the
Church Hall that she would continue the hearing
in their absence if
they refused to leave the room. The respondent contends that the
chairperson did not abandon the hearing -
the applicants waived their
right to be present at the hearing when they refused to adhere to the
chairperson’s ruling that
the individual applicants should
leave the Church Hall and observe proceedings from outside. In this
instance, the individual applicants
were given a fair hearing.
[23]
Before
me, Ms Masondo argued for the applicants that none of the individual
applicants were identified. It is not clear who committed
the
offences, as nobody was identified by the employer. It was incumbent
on the employer to identify the individuals and to link
them to the
offences. Ms Masondo referred me to
S
v Mgedezi and Others
[2]
and the five step enquiry to be undertaken to establish common
purpose, as well as to
NUMSA
obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty)
Ltd
[3]
and
the judgment of Whitcher J in
African
Meat Industry and Allied Trade Union (AMITU) and Others v Shave and
Gibson Packaging (Pty) Ltd
[4]
in support of her submissions. In respect of procedure, Ms Masondo
submitted that the applicants were not afforded the opportunity
to be
heard, nor the opportunity to respond to the evidence presented by
the third respondent. The issue of mitigation was never
canvassed.
[24]
Mr
Du Toit for the third respondent relied on
True
Blue Foods (Pty) Ltd t/a Kentucky Fried Chicken (KFC) v Commission
for Conciliation, Mediation and Arbitration and Others
[5]
(KFC)
in support of his submissions relating to team liability. Mr Du Toit
argued that proof of collusion and association by the applicants
is
to be found in the fact that they were singing songs, they sat around
doing nothing about the assault on Friday Mamba and they
persisted in
singing songs even after Friday Mamba was assaulted. If nobody made
any effort to disassociate themselves, the inference
to be drawn is
that they associated themselves with the individuals who committed
the offences. Mr Du Toit referred me to
Commercial
Stevedoring Agricultural and Allied Workers' Union and Others v Oak
Valley Estates (Pty) Ltd and Another
[6]
(Oak Valley Estates)
in support of his argument that the applicants formed a cohesive
group committing ongoing unlawful conduct. He submitted that it
is
common cause that there was violence and exposing of breasts. In
respect of procedure, Mr Du Toit submitted that a disciplinary
hearing was held and that the chairperson simply requested the
individual applicants to sit outside. The third respondent did not
deny the applicants their right to a hearing – the applicants
forfeited the right to state their case when they refused to
leave
and became abusive.
[25]
In
respect of procedural fairness, the third respondent’s counsel
in his written heads of argument relied on the judgment
of the SCA in
Old
Mutual Life Assurance Co SA Ltd v Gumbi
[7]
(Old Mutual)
and
on the judgment of the LAC in
The
Foschini Group v Maidi and Others
[8]
(Foschini)
in
support of the submission that the applicants were themselves to
blame for the hearing being conducted in their absence, because
they
refused to leave the room when the chairperson asked them to do so.
Evaluation
[26]
It
is by now trite that the test on review of an arbitration award is
whether the decision is one that falls within the band of
decisions
to which the arbitrator, acting reasonably, could come on the
evidence before him.
[9]
This court’s jurisdiction to review arbitration awards is
limited to the grounds for review set out in section 145 of the
LRA.
[27]
In
Old
Mutual
at
paragraph 5, Jafta JA, as he then was, on behalf of a unanimous
court, confirmed an employee’s right to a pre-dismissal
hearing:
‘
In
Slagment
(Pty) Ltd v Building, Construction and Allied Workers’ Union
and Others
1995
(1) SA 742
(A)
this court stated the principle in the following terms at 755B-C:
“
It
is within the province of the employer who holds a disciplinary
enquiry to determine its form and the procedure to be adopted,
provided always that they must be fair. Fairness requires, inter
alia, that the employee should be given an opportunity of meeting
the
case against him: the employer must obey the injunction
audi
alteram partem
.”’
[28]
And at 8:
‘
The
right to a pre-dismissal hearing imposes upon employers nothing more
than the obligation to afford employees the opportunity
of being
heard before employment is terminated by means of a dismissal. Should
the employee fail to take the opportunity offered,
in a case where he
or she ought to have, the employer’s decision to dismiss cannot
be challenged on the basis of procedural
unfairness (
Reckitt
& Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union &
Others
(1991) 12 ILJ 806 (LAC) at
813C-D).’
[29]
In paragraph 16 of the judgment,
Jafta JA writes:
‘
[16]
The court below held that the representative’s ‘consent’
that the hearing should continue in their absence did
not constitute
waiver of the right to a hearing. I agree. The employee’s
conduct as a whole was inconsistent with waiver.
At the moment he
challenged the first dismissal, the employee’s complaint was
that he had been denied a hearing and therefore
that the dismissal
was invalid for that reason alone...’
[30]
In
Modise
and Others v Steve’s Spar Blackheath
[10]
Zondo
AJP as he then was, analysed the whole ambit of case law relating to
the right of striking employees to a pre-dismissal hearing.
The LAC
held:
‘
The
only situation which I am able to envisage where it can be said that
an employer’s failure to give a hearing may be justified
on the
basis that a hearing would have been pointless or utterly useless is
where either the workers have expressly rejected an
invitation to be
heard or where it can, objectively, be said that by their conduct
they have said to the employer: We are not interested
in making
representations on why we should not be dismissed. The latter is not
a conclusion that a court should arrive at lightly
unless it is very
clear that that is, indeed, the case. However, in my view, the latter
scenario falls within the ambit of a waiver.
Accordingly, the normal
requirements of a waiver must be present.’
[31]
It is clear
from the judgment in
Old
Mutual
that a waiver as claimed by the respondent must be unequivocal.
However, If the employee intentionally frustrates the hearing,
his
actions can be held to constitute a waiver of his right to be heard.
I understand the respondent’s argument to be that
the
applicants, by refusing to leave the room, intentionally frustrated
the hearing and that this constituted a waiver of their
right to be
present at the hearing.
[32]
In
Foschini
the employees and their representative left the disciplinary hearing
when their objection to the initiator was dismissed. Revelas
AJA,
with Davis and Jappie JJA concurring, held that:
‘
[58]
On the evidence accepted by the arbitrator, the respondents’
refusal to attend the disciplinary hearing was unreasonable.
Assuming
the objection to a material witness, being the enquiry initiator, to
be a valid one, the respondents should nonetheless
have participated
in the hearing and placed their objections on record. It is a trite
principle in our law that a party, who chooses
not to attend a
hearing, does so at his or her own peril, and is precluded from later
complaining about the outcome of the hearing.’
[33]
The principle
that a party who chooses not to attend a disciplinary hearing does so
at his own peril, is indeed trite. But the third
respondent’s
reliance on
Foschini
is misplaced for the simple fact that the applicants did not fail to
attend - they refused to leave. It seems in such circumstances
that
the third respondent’s argument is akin to the so-called
‘crisis zone’ cases, but refusing to leave a disciplinary
hearing is far removed from the levels of violence and disruption
associated with a ‘crisis zone’ case. I can find
nothing
in the opposing affidavit or the record to support a finding that the
disciplinary hearing of 17 March 2020 descended into
a so-called
‘crisis zone’ and the third respondent did not purport to
make out such a case. There was no violence at
the hearing, only
heated exchanges in response to the employer’s representative
asking the chairperson to have the applicants
removed from the room.
[34]
The record
shows that the arbitrator repeatedly asked Lubbe whether the
applicants received a fair hearing, to which he repeatedly
replied
with reference to the minutes of the hearing compiled by the
chairperson that she said she would continue the hearing in
the
absence of the applicants. Lubbe did not provide evidence that the
applicants threatened the chairperson, or that the hearing
descended
into violence, nor that the applicants were at any stage given the
opportunity to make oral or written submissions in
response to the
respondent’s evidence received by the chairperson during her
continuation of the hearing in the absence of
the individual
applicants.
[35]
I am not
persuaded by the third respondent’s argument that the
applicants waived their right to be heard. By presenting themselves
at the Church Hall at the appointed time on the appointed date the
union and the individual employees clearly expressed their intention
to be present at the hearing. Their refusal to leave the room can
under no possible interpretation of their actions be regarded
as a
clear and unambiguous waiver of their right to be heard. The opposite
is true – it was a clear expression of their insistence
to
remain present in order to be heard and to state their case.
[36]
To my mind the
enquiry was not whether the applicants could hear the proceedings
from outside under ideal circumstances, but whether
it was reasonable
for the chairperson to insist on the individual applicants leaving
the room in the first place; and when they
refused to do so to then
proceed in their absence while also excluding the union
representative.
[37]
The
chairperson’s minutes of the hearing reflect that she failed to
consider alternatives to ordering the applicants to leave
the room,
and when her ruling resulted in heightened emotions, she failed to
consider alternatives to proceeding in the applicants’
absence.
The chairperson then failed to offer the applicants or their union
representative an opportunity to make written submission
in response
to the employer’s evidence.
[38]
All things
considered, the unsatisfactory situation on 17 March 2020 was created
by the third respondent. It evades me as to why
the obvious solution
of a postponement of the hearing to secure an appropriately larger
venue to accommodate all the applicants
considering Covid-19
concerns, or continuing the hearing via a virtual platform, was not
considered.
[39]
Even
if the chairperson was justified in continuing the hearing in the
absence of the applicants, of which I am not convinced, it
would have
been appropriate, and in my view was required of the chairperson in
the specific circumstances, to consider alternative
means by which
the requirements of the
audi
alterem partem
principle could be achieved. Such an alternative process is not
without precedent -
BEMAWU
and Others v SABC and Others
[11]
.
To simply proceed with the disciplinary hearing in the absence of the
applicants in the face of their clear intention to remain
present
without thereafter giving them an opportunity to state their case by
alternative means, such as at least inviting written
submissions from
the union and/or the individual applicants in response to the
evidence presented by the employer in their absence,
deprived the
applicants of their right to be heard.
[40]
By holding an
inspection
in
loco
and
investigating the reasonableness of the chairperson’s ruling
that the applicants should leave the building, and basing
his
findings of procedural fairness on that inspection
in
loco
, the
arbitrator misconstrued the enquiry he was required to undertake. The
unfairness of the procedure stemmed from the failure
by the
chairperson to explore alternative ways to ensure that the applicants
were afforded their right to be present at the hearing
and to state
their case.
Substantive Fairness
[41]
The
right to strike is enshrined in section 23(2)(c) of the Constitution
and in section 65 of the LRA.
[12]
[42]
The
respondent relies on the doctrine of common purpose for holding the
individual applicants accountable for the incidents that
gave rise to
the charges against them. The development of the doctrine of common
purpose in the criminal law and in labour disputes,
and the
distinction between team liability, derivative misconduct and common
purpose is well documented.
[13]
[43]
KFC
and the cases dealing
with team liability do not apply to the facts of this matter. The
third respondent expressly relied on common
purpose, not on team
liability, other than in argument before me. Neither team misconduct
as defined in
Snip
Trading,
nor derivative misconduct as contemplated in
Chauke
assists the third respondent in apportioning guilt to the individual
applicants. The third respondent did not allege or provide
evidence
that the applicants were part of a team that was to blame for losses
in a closed environment, nor were any of the individual
applicants
asked to identify the perpetrators of the violence and refused to do
so. What remains is the third respondent’s
reliance on common
purpose.
[44]
The
requirements for a finding of common purpose were confirmed in
S
Mgedezi
[14]
as
follows:
‘
In
the first place, he must have been present at the scene where the
violence was being committed. Secondly, he must have been aware
of
the assault on the inmates of room 12. Thirdly, he must have intended
to make common cause with those who were actually perpetrating
the
assault. Fourthly, he must have manifested his sharing of a common
purpose with the perpetrators of the assault by himself
performing
some act of association with the conduct of the others. Fifthly, he
must have had the requisite
mens rea
[criminal intent]
…’
[45]
The arbitrator
found that the individual applicants were all in collusion for the
simple reason that they participated in the protected
strike. In the
same vein, the third respondent relies on
Dunlop
in support of its assertion that all the individual employees
associated themselves with the misconduct perpetrated by some
individuals,
as they were all members of NUMSA, they were singing
songs and they were all participating in the strike. In
Dunlop
,
Froneman J held:
‘
Evidence,
direct or circumstantial, that individual employees in some form
associated themselves with the violence before it commenced,
or even
after it ended, may be sufficient to establish complicity in the
misconduct. Presence at the scene will not be required,
but prior or
subsequent knowledge of the violence and the necessary intention in
relation thereto will still be required.’
[46]
By contrast,
the LAC judgment in
Makgopela
supports
what the applicants asserted throughout:
‘
[29]
This case illustrates the caution to be adopted where reliance is
placed on collective misconduct as a basis for dismissal. This
is so
given that workplace discipline must at all times be fair and just.
As much is required by the Labour Relations Act in giving
meaning to
the constitutional right to fair labour practices. Our law does not
allow a determination of guilt simply by association.
Where team
misconduct is relied upon there must exist either a factual basis or
sufficient grounds for inferring that all employees
were indivisibly
culpable as members of the team for failing to ensure compliance with
the employer’s rule. A reliance on
generalised facts, arising
from a scant investigation into the alleged misconduct, does not
provide a sufficient basis on which
to infer that collective
responsibility exists.’
[47]
In
Oak
Valley Estates
[15]
,
the
Concourt held:
‘
[45]
As the High Court noted in
Mondi Paper
,
“the production of proper proof either directly or by
circumstantial evidence is not beyond the ingenuities of employers,
given the modern technology that is available” to them.
Likewise, in
Durban University of
Technology
, the High Court remarked
that—
“
with
the modern methods of access control, CCTV cameras, etc, there is
ample opportunity for the applicant’s security services
to be
able to identify those persons who were on the campus when the
violence occurred, and steps could be taken to identify them”.’
[48]
In
Marley
Pipe Systems
,
after pointing out the distinction in
Oak
Valley Estates
,
which was concerned with interdictory relief, the Concourt held:
‘
[34]
On the other hand, it would definitely be a non-starter to suggest
that an employee could be dismissed on the basis that –
through
common purpose – she or he was “involved” in acts
of violence without linking that employee to those
acts. A verdict of
guilt cannot appropriately be returned for merely being where the
acts of violence took place. An employee could
simply have been there
as a spectator or the acts could have happened so spontaneously or
suddenly that the employee could not
avoid being there. As was held
in
Polyoak
[16]
,
“[o]ur law knows no concept of collective guilt”.
Maqutu
[17]
aptly puts it thus:
“
Employers
find it particularly difficult to prove the participation of each
individual in the impugned conduct where misconduct
is alleged to be
collective. Nonetheless, no one should be held accountable where no
evidence can be adduced to substantiate the
claim against
individuals, solely on the basis of being part of the group.”
[49]
And at paragraph 36:
‘
Sympathetic
though I am to the difficulties facing employers, individual
complicity in the commission of acts of violence must be
established.
That is what the principles on common purpose have always required.
If it were to be otherwise, the law would be a
cruel instrument that
attaches guilt and imposes sanction on the innocent. Association in
complicity for purposes of common purpose
must include having “the
necessary intention” in relation to the complicity.’
[50]
In
paragraph 31 of the award, the arbitrator in effect held that anyone
participating in a protected strike can be dismissed for
the
transgressions committed by another striking employee on the basis of
common purpose. This flies directly against the judgments
of the
Concourt in
Marley
Pipe Systems
and
the LAC in
Makgopela
.
In departing from this defective premise, the arbitration manifestly
committed a material error of law, which directly led him
to the
unreasonable decision that the individual applicants acted in
collusion and that their dismissals were substantively fair,
even
though none of the individual applicants were identified as
participating in, being present at, or associating themselves
with
any of the transgressions.
[18]
[51]
In respect of
the first, second, and fourth items raised by the applicants under
their grounds for review, I return to the video
evidence presented by
the third respondent. The video footage showed that two people
consumed a beer and that one lady exposed
her breasts. Those
individuals were never identified. By Dosani’s own admission,
they could not be identified. There was
nothing before the arbitrator
to show that any of the individual applicants consumed alcohol or
exposed their breasts or were even
present at, or aware of the
consumption of alcohol or the exposure of breasts until long after
the fact.
[52]
Dosani
testified on the content of video clips compiled from the company’s
CCTV footage by Smalberger, a contractor to the
third respondent who
works as a Close Protection Officer. In effect, Smalberger was a
personal bodyguard to Dosani. Smalberger
testified that he had
compiled the video evidence by copying clips from the footage taken
of the strike over three days. The third
respondent had asked him to
look at the footage and compare it with the picketing rules to
identify any breaches of the picketing
rules.
[53]
I note that
Friday Mamba was not called as a witness at arbitration, although he
was still in the third respondent’s employ.
In view of the
direct challenge to Dosani’s version Mamba’s testimony
was crucial to corroborate the third respondent’s
allegation
that Mamba had felt too intimidated to testify at the disciplinary
hearing and that he was assaulted on 3 or 4 February
2020 by any of
the individual applicants.
[54]
When Dosani
was shown the video footage that appeared to show that Friday Mamba
was also striking, which was later corroborated
by two witnesses for
the applicants, Lubbe objected on the basis that it did not matter
whether or not Friday Mamba was a striker
or a non-striker. According
to him, the only issue was whether or not there was an assault, as
that was against the picketing rules.
This submission by Lubbe was in
stark contrast to the charge, which was that the applicants acted in
collusion to “
intimidate,
harass and threaten the safety (both physically and verbally) of
non-striking employees”.
The applicants denied that there was any assault at all and persisted
in that denial in their affidavits in this review application.
[55]
The arbitrator
failed to consider that the video evidence was directly challenged
and that Dosani’s uncorroborated testimony
did not amount to
admissible evidence. The third respondent did not call Friday Mamba
as a witness to confirm that he was assaulted,
even though Dosani’s
hearsay testimony in this regard was expressly challenged. In view of
the above, there does not appear
to have been any admissible evidence
before the arbitrator that Friday Mamba was in fact assaulted,
[56]
The
challenge to Dosani’s testimony did not spur the arbitrator
into carefully considering Dosani’s credibility as a
witness.
It should have, if he followed the correct approach to resolving
disputes of fact and the analysis of probabilities as
set out in
Stellenbosch
Farmers Winery
.
[19]
[57]
The
applicants’ main contention in the founding affidavit and
supplementary affidavit is that none of the individual applicants
were identified as participating in any of the offending acts. This
is confirmed by Dosani’s testimony on pages 73, 90 and
92 of
the transcribed record where he repeatedly admitted that he could not
identify any of the employees participating in the
events that led to
the charges. Dosani was the third respondent’s only witness
regarding the events that led to the charges
against the individual
applicants.
[58]
As to the
admission that the applicants had blocked the road, I agree with Ms
Masondo that that in itself does not warrant dismissal.
In respect of
the alleged closure of the company due to that blockade, the evidence
before the arbitrator was that the company
has a second entrance, and
that that entrance was not blocked or barricaded. This fact appears
to contradict the third respondent’s
contention that the
company had to shut down because the road was blocked.
[59]
It is common
cause that the strike was protected - the third respondent did not
argue that the strike became unprotected due to
the contravention of
picketing rules and the third respondent did not approach the Labour
Court for interdictory relief until 7
February 2020.
[60]
There was no
evidence before the arbitrator that any of the individual applicants
were involved in perpetrating, or present when
any of the incidents
that led to the charges occurred, other than blocking the main
entrance road. Similarly, there was no evidence
before the arbitrator
that any of the individual applicants were even aware of the
incidents that led to the charges; or that any
of them actively
associated with any one of the offences before or after the fact
other than by participating in the protected
strike and blocking the
road. The respondent’s argument and the arbitrator’s
finding that, by participating in the
protected strike, the
individual applicants actively associated with and therefor formed a
common purpose with the incidents that
led to the charges against
them, is tantamount to dismissing the applicants for participating in
a protected strike.
[61]
Dosani was the
only one who testified that the company was brought into disrepute
and that the relationship of trust was broken
as a result of the
events, but that testimony seems contrived in view of the fact that
he could not identify any of the individual
applicants as having been
guilty of, or associated themselves with the offending actions.
[62]
The third
respondent’s failure to identify any one of the individual
applicants as being involved in any of the alleged offences
and its
failure to prove their active association with the events, is fatal
to the third respondent’s case.
[63]
In the
instance, the arbitrator came to a decision to which no arbitrator,
acting reasonably on the facts before him, could come.
Remedy
[64]
In
terms of section 193(1) of the LRA, the primary remedy in the case of
an unfair dismissal is reinstatement. This has repeatedly
been
confirmed by the Concourt
[20]
.
It is well-established that compensation as a remedy under section
193(1)(c) of the LRA is fundamentally distinct from back-pay
for
reinstatement.
[21]
In deciding on an appropriate remedy, the court is enjoined to make a
just and equitable order. Back-pay is not intended to enrich
an
employee, or to punish an employer, but “
is
intended to “offset” the financial loss suffered as a
result of a wrongful act
”.
[22]
[65]
There
was no averment before the arbitrator or before this court that any
of the individual applicants were gainfully employed or
derived an
income after their dismissal by the third respondent. There is
further no indication that the applicants were to blame
for any
delays in finalising this matter. However, the applicants admitted
contravening the picketing rules by blockading the main
road to the
third respondent’s premises. Picketing rules form an integral
part of an orderly collective bargaining dispensation.
In
Clover
SA (Pty) Ltd v General Industries Workers Union of South Africa and
Others
[23]
Tlhotlhalemaje J echoed the SCA in
Hotz
and Others v University of Cape Town
[24]
and noted that:
‘
Fundamental
to the right to picket as can be gleaned from section 69(1), is the
requirement of ‘peaceful demonstration’.
I therefore
agree with the sentiments expressed in
Dis
Chem Pharmacies Ltd v Malema and Others
[25]
that
unlawful conduct, violence, harassment, are inimical to the principle
of ‘peaceful demonstration’.
[66]v
In view of the
admitted breach of the picketing rules, which cannot be condoned, I
consider that it is just and equitable that back-pay
should be
limited to twelve months’ remuneration.
Costs
[67]
Having
considered the requirements of law and fairness, together with the
provisions of section 162 of the LRA and that there is
an ongoing
employment relationship between the individual applicants and the
third respondent, I am of the view that a cost order
is not merited.
[68]
In the result,
the following order is made:
Order
1.
The
arbitration award by the second respondent under case reference
GAEK6682-20 is reviewed and set aside and replaced with the
following:
‘
1.
The individual applicants’ dismissals were procedurally and
substantively unfair.
2.
The third
respondent is ordered to reinstate the individual applicants
retrospectively from the
d
ate
of their dismissal on terms no less favourable than those that
applied prior to their dismissal.
3.
The third
respondent is ordered to pay the individual applicants back-pay for
their retrospective reinstatement equal to twelve
months’
remuneration.
4.
The individual
applicants must present themselves for duty on 01 September 2024.
5.
There is no
order as to costs, including in respect of the reserved costs of 14
November 2023.’
L.
de Haan
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant:
NM Masondo, Mabaso Inc Attorneys
For
the respondent:
NJ du Toit,
Chantell Timm Incorporated
[1]
Act
66 of 1995, as amended.
[2]
[1988]
ZASCA 135; [1989] 2 All SA 13 (A).
[3]
[2022]
ZACC 30
; (2022) 43 ILJ 2269 (CC).
[4]
[2023]
ZALCD 17; (2024) 45 ILJ 79 (LC).
[5]
[2014]
ZALCD 70; (2015) 36 ILJ 1375 (LC).
[6]
[2022]
ZACC 7
;
[2022] 6 BLLR 487
(CC).
[7]
[2007]
ZASCA 52; [2007] 4 All SA 866 (SCA).
[8]
[2010]
ZALAC 5
; (2010) 31 ILJ 1787 (LAC).
[9]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v C
ommission
for
C
onciliation,
M
ediation
and
A
rbitration
and
Others
[2007] ZALC 66
;
[2004]
1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC);
Quest
Flexible Staffing Solutions (Pty) Ltd
(A
D
ivision
of Adcorp Fulfilment Services (Pty) Ltd
)
v
Legobate
(2015)
36 ILJ 968 (LAC);
[2015] 2 BLLR 105
(LAC).
[10]
[2000]
ZALAC 1
;
[2000] 5 BLLR 496
(LAC) at para 53.
[11]
[2016]
ZALCJHB 74.
[12]
National
Union of Metal Workers of South Africa and Others v Bader Bop (Pty)
Ltd and Another
[2002] ZACC 30; 2003 (2) BCLR 182.
[13]
Chauke
and
o
thers
v Lee Service Centre CC t/a Leeson Motors
(Chauke)
(1998) 19 ILJ 1441 (LAC);
Federal
Council Retail and Allied Workers v Snip Trading
(2007) 7 BLAR 669 (T);
The
Foschini Group v Maidi and Others
[2010] ZALAC 5
;
[2010] 7 BLLR 689
(LAC);
Food
and Allied Workers Union obo Kapesi and Others v Premier Foods Ltd
t/a Blue Ribbon Salt River; Premier Foods Ltd t/a Blue
Ribbon Salt
River v Food and Allied Workers Union obo Kapesi and Others
[2012] ZALAC 46
;
National
Union of Metalworkers of South Africa obo Nganezi and Others v
Dunlop Mixing and Technical Services
(Pty)
Limited and Others
(Dunlop)
[2019] ZACC 25
;
2019 (8) BCLR 966
(CC);
N
UMSA
obo
Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Ltd
(Marley Pipe Systems)
[2022] ZACC 30
; (2022) 43 ILJ 2269 (CC);
South
African Commercial Catering and Allied Workers Union and Others v
Makgopela and Others
(Makgopela) [2023] ZALAC 8; [2023] 6 BLLR 509 (LAC).
[14]
Note
2
supra
at
para 86.
[15]
Commercial
Stevedoring Agricultural and Allied Workers' Union and Others v Oak
Valley Estates (Pty) Ltd and Another
[2022]
ZACC 7; [2022] 6 BLLR 487 (CC).
[16]
Polyoak
(Pty) Ltd v Chemical Workers Industrial Union
1999
20 ILJ 392 (LC) at 393C.
[17]
Maqutu
“
Collective
Misconduct in the Workplace: Is ‘Team Misconduct’
‘Collective Guilt’ in Disguise?
”
(2014) 25 Stell LR 566 at 568.
[18]
Head
of Department of Education v Mofokeng and others
[2015] 1 BLLR 50
(LAC); (2015) 36 ILJ 2802 (LAC) at para 33.
[19]
Stellenbosch
Farmers' Winery Group Ltd. and Another v Martell & Cie SA and
Others
[2002] ZASCA 98; 2003 (1) SA 11 (SCA).
[20]
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration
and
Others
[2008]
ZACC 16
;
2009
(1) SA 390
(CC);
South
African Commercial, Catering and Allied Workers Union and Others v
Woolworths (Pty) Limited
[2018] ZACC 44
; (2019) 40 ILJ 87 (CC);
Booi
v Amathole District Municipality and Others
[2021] ZACC 36; [2022] 1 BLLR 1 (CC).
[21]
Booi
supra
at para 54.
[22]
Maroveke
v Talane N.O. and Others
[2021] ZACC 20
; (2021) 42 ILJ 1871 (CC).
[23]
[2020]
ZALCJHB 226;
[2021] 4 BLLR 419
(LC); (2021) 42 ILJ 1111 (LC) at
paras 6 to 8.
[24]
[2016]
ZASCA 159
;
[2016] 4 All SA 723
(SCA).
[25]
[2018]
ZALCJHB 451; (2019) 40 ILJ 855 (LC).