About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
1994
>>
[1994] ZALAC 1
|
|
Food and Allied Workers Union and Others v Amalgamated Beverage Industries (11/2/11189) [1994] ZALAC 1 (14 September 1994)
LABOUR
APPEAL COURT
(
TRANSVAAL
DIVISION)
CASE
NO 11/2/11189
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
DATE:
13/09/1994
In
the matter between
:
FOOD
AND ALLIED WORKERS
Appellant
UNION
AND 120 OTHERS
and
AMALGAMATED
BEVERAGE INDUSTRIES
Respondent
LIMITED
Coram
:
Nugent,J;
D.G.
John;
K Satchwell
Hear
ing
:
10 August
1994
Judgment:
14 September 1994
JUDGMENT
NUGENTJ
:
On
5
March
1992 the respondent dismissed the individual appellants from its
·
employment. The appellants applied to
the Industrial Court for relief in terms of section 46(9) of the
Labour Relations Act 28 of
1956, alleging that the respondent's
conduct in dismissing them constituted an unfair labour
practice. Their application
was dismissed, and this
is an appeal against that decision.
The
respondent is a manufacturer and distributor of soft drinks. It
carries on business at various plants, one of
which is situated in Benrose. The respondent
has a fleet of trucks for distribution of its products,
each of which is manned by a team which normally comprises a
driver and three assistants. At the time which is
relevant to this appeal, approximately 50 drivers and 150 assistants,
who were referred to in the evidence as "crewmen",
were employed at the Benrose plant. All the
individual appellants, whom I will refer to for convenience simply
as
the appellants, were crewmen.
At
the time which is relevant to this appeal, it was normal practice for
a crewman arriving at work to place his personal identification
card
through an electronic scanner at the entrance to the premises.
By doing so he was permitted access to the
premises, and
his arrival on the premises was automatically recorded. He
would then change into his working clothes,
and report
for duty at a room which was referred to in the evidence at times as
the clock card room, and at times as
the crew allocation
room. Crewmen were required to report for duty by
07h30.
In
the allocation room, crew coordinators would allocate teams to the
various trucks, and the teams would then leave to make their
deliveries. Trucks normally started leaving the premises shortly
after 07h30, and continued doing so until about 09h00.
During
1991 the respondent had a manual system for recording products
delivered and moneys received by each driver.
However a considerable amount of theft
was
occurring, and the manual system was inadequate for
exposing the culprits.
To
reduce the risk of theft, the respondent decided in about May 1991 to
introduce a computerised system.
At
first employees resisted the introduction of the new system.
However in August 1991 the respondent and the union
representing drivers and crewmen agreed that the new system would be
supported by the employees concerned. Notwithstanding this
agreement,
drivers and crewmen at Benrose continued to resist its introduction.
Resistance took the form of late-coming, absenteeism,
go slows,
demands for extra crewmen per vehicle, and refusals to do additional
deliveries.
The
distribution manager at Benrose was
unable to overcome this resistance, which resulted in his dismissal
in January 1992. He was
replaced on 18 February 1992 by a
certain Mr van der Westhuizen, who was seconded
·
from
the respondent's East Rand
plant.
On
Monday 24 February 1992 the drivers at Benrose went on strike, and
the crewmen soon joined them. The reasons which the employees
gave
for their refusal to work varied from time to time, but were
essentially directed in one form or another at Mr van der
Westhuizen.
Whatever the ostensible reasons for the strike, according to the
respondent's evidence the true reason therefor was
again resistance
to the introduction of the new system, and this evidence was not
disputed.
The
strike continued throughout that week, but by Friday it had been
agreed that the employees would return to work on Monday 2
March
1992. The respondent requested the drivers to assist it in overcoming
the backlog which had built up, by making deliveries
on Saturday 29
February 1992, but all refused to do so, except Isaac Nthaba, a
driver who had been employed in a temporary capacity
during the
strike.
It
was the events which occurred at the commencement of the working day
on Monday 2 March which resulted in the
individual
appellants being dismissed.
What
occurred is best described by relating the observations which were
made by various witnesses called by the respondent
to give
evidence in the court
a
quo.
Mrs
Allsopp was an occupational health nurse employed by the respondent.
Her clinic was situated some 30 metres from the crew allocation
room,
which in turn was located near the main entrance to the
premises. Normally when she arrived
at work
she would find crewmen standing around the area, waiting to be
allocated, and greetings would pass back and forth between
them. On the day in question she arrived at the main
entrance at about 07h25. She encountered what she described
as
"a lot of crewmen" gathered near the main entrance, and
immediately felt that something was amiss as she did
not
receive the usual greetings.
A
similar observation was made by the security manager, Mr
Barnard, who arrived at work at 07h00. He also noted
a
large number of crewmen gathered in the vicinity of
the allocation room. While this in itself was
not
unusual, what struck Mr Barnard was the absence of the usual
jostling, horseplay and card games which occurred at that
time of the
morning. He asked his site commander what the
problem was, and was told that the crewmen were dissatisfied
with
their working conditions.
Miss
Birchfield, the acting assistant personnel manager, arrived at the
mam entrance at 07h42. Normally the
trucks
would by then have already started moving out
of the premises, and she was struck by the fact
that none
were doing so. She approached a group of drivers
who were standing in the yard,
and spoke to them to
find out why nothing was happening. Just then she heard what she
described as "cheering, shouting,
just in general a large
commotion." She turned towards the source of the sound, and
noticed that the crew allocation
room was filled with
people. Believing that an unauthorised mass meeting was taking place,
she walked towards the room, where
she encountered a driver who was
standing outside the room. She asked him what was
happening. His reply
was that a driver
was being assaulted and "taught a lesson for
having worked on
Saturday".
Just
then people started pouring out of the
room.
Miss
Birchfield
stepped back,
and they streamed past
her on both sides. When most of the crewmen
had left the
room, she entered it. She estimated that by that time
about 100 people had emerged from the room.
Inside
the room she saw Isaac Nthaba crouched in the far corner, in a
pool of blood. Upturned
benches,
chairs and crates were scattered around. Mr
Nthaba's shirt had been ripped,
and his shoes and
socks were strewn around the room. He
was covered in blood, which
was pouring from
a head wound.
The
route manager and two crew coordinators were
present, and she asked them to lie Mr
Nthaba
down while she sought assistance. Mrs Allsopp was summoned, who
examined Mr Nthaba. She then summoned an ambulance,
and returned to
render first aid.
When
the ambulance arrived, oxygen and a drip were administered,
and Mr Nthaba was wheeled to the ambulance
on
a stretcher. A number of crewmen were
gathered outside the allocation room. Precisely how
many
is not clear, but the mood was sufficiently hostile to inspire
fear in the minds of the ambulance attendants.
Miss Birchfield and Mr
Barnard heard some of the crewmen who had gathered outside singing as
the stretcher was wheeled past. They
were later told that
the words being sung were to the effect "death to the
traitor". According
to Mr Barnard, as the
ambulance drove away there was "cheering or jeering"
from the crowd
of crewmen.
Management
immediately commenced enquiries in an attempt to establish what had
happened, while the drivers and crewmen went about
their duties.
Later that day the drivers refused to complete their
allocated deliveries, and work was cancelled
for
the remainder of the day.
On
the following day the investigation by
members of management continued.
A number
of meetings were also held with the shop stewards. They
were asked to assist in identifying those
who had been responsible
for assaulting Mr Nthaba, but they declined
to do so.
By
13h00 on that day the members of management who had undertaken the
investigation had concluded that it was the crewmen who had
been
responsible for the assault, and the shop stewards were advised that
a disciplinary hearing would be convened the following
day. The
shop stewards were asked to distribute
notices to that effect to the crewmen,
but they
declined to do so.
A
notice was accordingly placed on the notice boards, and read over the
public address system. The notice was addressed to "Crewmen
in
Attendance on 2nd March 1992". It called upon them to "Attend
a Disciplinary Enquiry/Hearing" the following morning
in the
canteen, and informed them that the charges which were to be
investigated were "serious assault,
mass insubordination and
.
intimidation."
The
hearing was duly convened the following morning. By then a list had
been prepared which reflected the names of all crewmen who
management
believed had been on the premises at the time the assault occurred.
It comprised the names of
all crewmen whose
personal identification cards had activated the electronic scanning
device at the entrance
to the premises that
morning, and eleven others.
The
electronic scanning device had only recently been installed, and it
was explained in the evidence how it was possible for crewmen
to gain
access to the premises without their names
being recorded by the device.
The
additional elven names had been furnished by a crew coordinator,
who had told management that those crewmen
had indeed been on
the premises at the time the assault took place, notwithstanding that
their names had not been recorded
at the entrance.
Two of these crewmen subsequently approached the personnel officer
and informed him that they had not been
at work on the day the
assault occurred, and they were reinstated.
I
should add that the recording device at the entrance had also
recorded that certain of the employees had left the
premises within a minute or so of having arrived.
It was explained in evidence that if the card was passed through
the
scanner twice in succession, the device
would first record an arrival,
and then record a
departure.
The recordings which were made are accordingly
consistent with the person concerned having passed
his card
through the scanner twice in quick succession, and do not
necessarily mean that the person actually left the
premises.
At
the commencement of the disciplinary hearing, the names on the
list were called out and the employees concerned
were asked to
acknowledge their presence. All but thirteen of the
crewmen whose names appeared on
the list were
present at the hearing. Before the hearing got under
way, four of the crewmen present
came forward and
told the chairman that although they had been on the
premises on the day in question, they had been
temporarily assigned
to perform duties in other departments. They were immediately
excused from the hearing and no disciplinary
steps were
taken against them.
The
hearing then proceeded, and in due course all the crewmen whose names
appeared on the list (other than the four who had been
excused) were
found guilty of assault and intimidation. It seems that this finding
was made at about 16h00. The chairman then announced
that
representations would be heard the following day with regard to the
sanction which ought to be imposed. He said too that he
would be
available in the distribution office until 18h00 that evening, and
that any employee who still wished to exonerate himself
was free to
approach him until that time. None of the appellants did so.
On
the following day further representations were heard from the shop
stewards, and the decision was taken to dismiss all
the
appellants.
It
is not necessary for the purposes of this appeal to traverse the
events which occurred at the hearing, or to consider the correctness
of the decision which was reached. In effect, a retrial took place in
the court
a quo,
on
the question of whether adequate grounds existed to dismiss the
appellants. In the pleadings the respondent denied
the allegation
that it had acted unfairly, and alleged that it was justified in
dismissing the appellants as they had all participated
in or
associated themselves with the assault. What it meant by this was
amplified in further particulars, in which it was alleged,
inter
alia,
that all the appellants had
either participated directly in the assault, or had “
made
common cause with those who actually physically assaulted
Nthaba by shouting encouragement to such
persons,
by adopting a hostile attitude towards Nthaba, by demanding that
Nthaba be punished, by physically removing Sidney Nxumalo,
the
chairman of the shop stewards committee, from the clockcard room when
he attempted to prevent the assault, by preventing Nthaba's
escape
and by colluding with one another to prevent the
discovery of the identity of
those who
actually assaulted Nthaba...”
In
argument before us it was accepted by the appellant's counsel that
if it was found that each of the appellants had
associated
themselves with the assault in one or other of the forms
alleged by the respondent, the dismissal
was
justified.
It
was submitted by the appellant's counsel that the onus of
establishing this was upon the respondent, and that the onus was to
be discharged as a matter of probability. I have assumed for purposes
of this appeal that that submission is correct.
There
was no direct evidence linking any of the appellants to any
particular act in relation to the assault, and the respondent's
case
was based on inference alone. None of the appellants
gave evidence, either in the court
a quo
or in the course of the disciplinary hearing. The attitude
adopted by the appellants throughout was that it was for the
respondent
to establish their complicity, and that no case had
been made out against any of them which called
for
a reply.
The
extent to which a party's failure to give evidence may properly give
rise to an inference against him has received considerable
attention
from the courts. What emerges from the decided cases is that
his failure to do so cannot by itself constitute
proof of what is
alleged against him. Nevertheless the evidence against him, though
not conclusive, may be such that an explanation
would be expected if
one was available. In such cases his failure to provide an
explanation may be placed in the balance against
him. The approach in
civil cases is illustrated by the following extract from the judgment
of Schreiner JA in
Galante v Dickinson
1950 (2) SA 460
(A) at
465:
“
It
is not advisable to set down any general rule as to the effect that
may properly be given to the failure of a party to give evidence
on
matters that are unquestionably within his knowledge. But it seems
fair at all events to say that in an accident case where
the
defendant was himself the driver of the vehicle the driving of which
the plaintiff alleges was negligent and caused the accident,
the
court is entitled, in the absence of evidence from the defendant, to
select out of two alternative explanations of the cause
of the
accident which are
more
or less equally open on the evidence, that one which favours the
plaintiff as opposed to the defendant.”
In
the field of industrial relations, it may be that policy
considerations require more of an employee than that
he merely
remain passive in circumstances like the present, and that his
failure to assist in an investigation of this sort may
in itself
justify disciplinary action. This was an issue which was raised in
the court
a quo,
but
in view of the conclusion to which I have come it is not necessary to
deal with it in the present
case.
The
inference which the respondent seeks to draw from the evidence is
that all the appellants were present at the time the assault
took
place, and either actively participated in the assault or at least
supported and encouraged the actual perpetrators. It is
a cardinal
rule of logic when reasoning by inference that the inference sought
to be drawn must be consistent with all the proved
facts. If it is
not, the inference cannot be drawn
(R
v Blom
1939 AD 188
at 202-3).
In
my view all the evidence in the present case is
consistent with that inference.
The
appellant's counsel submitted that the evidence shows no more than
that most of the crewmen were present when the assault
took
place, and that this does not assist in establishing as a matter of
probability the presence of any one of the appellants.
The reasoning
is undoubtedly correct, but in my view none of the evidence
establishes that it was only a majority of the appellants
who were
present. The evidence is equally consistent with
them all being there.
The
electronic device at the entrance to the premises was activated by
the personal identification cards of all but nine of the
individual
appellants sometime before the assault took place.
The remaining nine were identified
by the
crew coordinator as having been present on the premises at that time,
albeit that this evidence was hearsay. Accordingly
there was evidence
that all the appellants were on the premises at about
the time the assault took place.
Furthermore,
from about 07h30 it is normal for the crewmen to gather
either in the allocation room or in
the area outside it.
Miss Birchfield saw no crewmen outside the allocation room from the
time that she arrived
until after the assault
had taken place. Although the possibility was put to her that
some of the
appellants may have been in the canteen
or in the changeroom, there was no evidence to suggest
that any of them
were.
The
evidence was also that the crewmen normally acted cohesively as a
group in matters which they considered to affect their
interests. The assault upon Mr Nthaba had
clearly been planned in advance, and the evidence suggests that
it
was general knowledge amongst drivers and crewmen that it was
to take place. It would not be unusual in those
circumstances for them all to have gathered for the event.
Miss
Birchfield's evidence was that approximately a hundred crewmen
streamed out of the allocation room immediately after
the assault.
When she entered the room some crewmen were still present.
Again, her evidence is not inconsistent
with
the inference sought to be drawn by the respondent.
It
was also common cause that while the assault was taking place, a shop
steward who attempted to intervene was bundled out of
the room
by the others. There is no suggestion that any others who
were present left at the same time. That the
incident was not a
spontaneous one, confined to only a few crewmen present in the room,
is borne out by this,
and by the general
tumult which was heard by Miss
Birchfield
·,
and the hostile atmosphere which
prevailed when Mr Nthaba was being wheeled to the ambulance.
All this is consistent
with the inference that all those
present
either participated in the assault or lent it
their support.
The
fact that the evidence is consistent with the inference sought to be
drawn does not of course mean that it is necessarily the
correct
inference. A court must select that inference which is the more
plausible or natural one from those that present themselves
(AA
Onderlinge Assuransie Assosiasie Bpk v De Beer 1982
(2) SA 603 (A))
. In the present case
however no alternative inferences have been
advanced which have a foundation in the evidence.
It was suggested
in argument that one or more of the appellants may have been absent,
or may have
·
been
unwittingly caught up in the events. This, however,
is no more than
speculation,
as there is no evidence to suggest that this is what occurred.
In my view this is preeminently a case in which, had one or more of
the appellants had an innocent explanation, they would have tendered
it, and in my view their failure to do so must be weighed
in the balance against them.
It
was also suggested in argument that one or more of the appellants may
have declined to offer an explanation because of intimidation,
or
from a sense of what was called "collegiality". Again, this
is mere speculation, with no evidence to support it. Indeed
in my
view the evidence points the other way. I have already averted
to the four crewmen who, in
the
presence of the remainder, exculpated themselves,
apparently without fear of any consequences.
There were
another two
who approached the personnel
department before the proceedings commenced in the court
a
quo
and explained that they
had not been on the premises on the day in question. If
there were others who were not
present when the assault
took place, or who were caught up in events against their will,
I can see no reason
to believe that they could not have
done likewise.
In
my view it is probable that all the appellants were indeed present
when the assault took place, and either
participated therein or lent their support to it.
It
was accepted by the appellant's counsel that in those circumstances
the decision to dismiss them was justified.
In my view that concession was correctly made.
Had
I been called upon to do so, I would in any event have concluded that
the appellant's conduct justified their dismissal.
Accordingly
in my view the appeal ought to be dismissed,
and it is so ordered.
Taking
into account the principles outlined in
National
Union of Mineworkers v East Rand Gold
&
Uranium Co Ltd 1992 (1)
SA 700 (A) at 739 A-G,
in
my
view no order ought to be made with
regard to the costs of this appeal.
_________________
R.
NUGENT
Judge
of the Supreme Court
I
agree
_________________
D.G.
JOHN
Assessor
I
agree
_________________
K.
SATCHWELL
Assessor