South African Commercial Catering and Allied Workers Union and others v Irving & Johnson Limited (CA10/98) [1999] ZALAC 7; 2002 (3) SA 250 (LAC) (25 May 1999)

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[1999] ZALAC 7
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South African Commercial Catering and Allied Workers Union and others v Irving & Johnson Limited (CA10/98) [1999] ZALAC 7; [1999] 8 BLLR 741 (LAC); 2002 (3) SA 250 (LAC); (1999) 20 ILJ 2302 (LAC) (25 May 1999)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NO.: CA10/98
In the matter between:
SOUTH
AFRICAN COMMERCIAL
CATERING
& ALLIED WORKERS UNION
First Appellant
XOLILE NOMOYI AND 32
OTHERS
Second to Thirty-fourth Appellants
and
IRVIN & JOHNSON
LIMITED
Respondent
JUDGMENT
CONRADIE JA:
[1] The appellants were applicants in
the industrial court who brought an application in terms of section
46(9) of The Labour Relations
Act 28 of 1956 to have their dismissal
declared an unfair labour practice and to secure their
reinstatement. The application of
appellants two to nineteen
succeeded to the extent that they were reinstated from the date of
the industrial court’s judgment
with a final warning valid for six
months from 1 February 1998. They seek retrospective reinstatement
on appeal and expungement
of the final warning. The dismissal of
appellants twenty to thirty-four was upheld by the industrial court.
They appeal against
this order. I shall call them the further
appellants. The respondent, for its part, cross-appeals against the
reinstatement order.
[2] The individual appellants formed
part of a group of protestors who demonstrated outside the
respondent’s premises on 25, 29
and 31 August 1995. In order to
understand why they were there, what they hoped to achieve by their
protest and why the respondent
dealt with them in the manner it did,
it is necessary to go back to events which occurred earlier in the
year.
[3] By the beginning of 1995 the
first appellant (‘Saccawu’) had begun to establish a presence at
the respondent’s Woodstock
factory. The only union at the factory
up to that time had, for the last fifteen years, been the Food and
Allied Workers’ Union
(‘Fawu’). Saccawu
=
s
membership comprised mainly black males; Fawu
=
s
members were mainly coloured females. Apart from fierce inter-union
rivalry, the division of allegiances along these lines led
to racial
tension which exacerbated the ill effects of the events which were
to come.
[4] During January and April 1995 two
verification exercises were conducted at Saccawu
=
s
request. These exercises established that Saccawu was a minority
union. The respondent, true to its majoritarian approach, declined
to recognise Saccawu although it agreed to afford it stop-order
facilities. Despite the approach of the South African Confederation
of Trade Unions (
>
Cosatu
=
)
(of which both Saccawu and Fawu were and still are members) which
endorses a policy of
>
one
industry one union’, Saccawu did not take kindly to the decision.
A senior Cosatu official even proposed a commission to investigate
solutions to the inter-union rivalry which had developed at the
Woodstock factory, but ultimately nothing came of this initiative.
The situation at the factory after April 1995 was characterised by
Mr. Catto, the respondent’s group personnel manager, as
>
a
very, very aggressive, conflicting type of environment.
=
It was sufficiently alarming to bring Mr. John Gomomo, the president
of Cosatu, to address a meeting of employees. In this tense
atmosphere any spark would be enough to set the workplace alight.
[5] On 15 June 1995 a petition from
Saccawu members was delivered to the respondent during a lunch time
march for which permission
had been given. The petition demanded the
re-instatement of a Mr. Samuel Petersen (a Saccawu member who had
been dismissed) within
three days, failing which ‘action’ would
be taken, and also demanded access rights to the Woodstock factory
for Saccawu
=
s
officials. The respondent’s answer to the petition was delivered
to Saccawu on 20 June 1995 by Mr. Mark Anema, the factory manager.
It did not accede to Saccawu
=
s
demands. On 19 June a stay-away had been organised by Cosatu; the
respondent indicated its intention to take disciplinary action
against the absentees. These two events no doubt contributed to what
happened the next day.
[6] At about three o’clock in the
afternoon on 21 June 1995, which was the fourth day after the
petition had been presented, there
was another march on the company
premises by Saccawu members, for which this time no permission had
been sought. The first time
Anema heard of it was when a supervisor
approached him to say that his female workers were leaving their
workstations. He then
received a telephone call from Patrick Nkatu,
one of the leaders of the Saccawu faction at the factory, to say
that if Petersen
and another dismissed Saccawu member were not
reinstated, and if access was not granted to Saccawu officials, and
if a named Saccawu
official was not telephoned by three o’clock
that same afternoon, production would be brought to a stop. Anema
immediately telephoned
Catto at the head office in Cape Town. As he
was speaking to him, four or five women came screaming up the
stairs, burst into his
office and announced that
>
they’re
murdering Richard
=
.
He made his way up a staircase to the canteen, but was impeded by
panic-stricken employees who were crying and screaming. At the
top
of the stairs he encountered a closely-knit group of armed men
singing very loudly. Anema retreated down the stairs. As he
reached
the foot of the stairs he heard people saying that Richard, a Fawu
shop steward, had been hurt. He found a nurse attending
to him in
the supervisors
=
tearoom. He had been stabbed in the arm and the back. He was later
hospitalised for a punctured lung. Anema then learnt that a
group of
about two hundred men, singing, toyi-toying and waving sticks about,
had chased employees out of their departments, disrupting
normal
production. He decided to send the employees home early. When
supervisors tried to pack fish into the chill rooms, they
were also
chased off the production lines. Eventually forklift drivers under
police guard had to move product into the chill rooms.
[7] Catto
=
s
evidence confirms the scenes of disorder painted by Anema. On his
arrival from head office he found a group of workers which he
estimated to be two hundred strong, chanting, toyi-toying and waving
about sticks and bin-hooks (long thin but heavy metal pieces).
As he
walked past the security gate he was met by ‘a mass of hysterical
females’, workers who had run away from their work
stations.
Another group of female employees had sought refuge in the training
room in the administration building. Production had
come to a stop.
Catto
=
s
first response was to alert Fawu
=
s
and Saccawu
=
s
officials by sending off a fax to both unions at about four o’clock
that afternoon. Although the fax alerted the union to illegal
action, threats to management, armed workers and assaults, there was
no prompt response from Saccawu. However, at about half past
six
that evening, Fawu, Saccawu and Cosatu held a meeting with
management at the respondent’s premises. Catto told the meeting
that the respondent would not condone the protesters
=
conduct. He repeated this assertion at a meeting between the same
parties the next morning. Fawu, the respondent and Cosatu put
their
signatures to a peace agreement, but Saccawu refused to agree to its
terms. Joe Williams, Cosatu
=
s
regional secretary, afterwards reported to Catto that Saccawu had
not been prepared to sign the agreement because its members
>
wanted
management’s blood
=
.
[8] This so dismayed the respondent
that, fearing another uprising on a similar scale, it decided to
apply for an urgent interdict
imposing a peace obligation on
Saccawu. Before the matter reached court, however, Ms Zoë Holland
for Saccawu signed an undertaking
not to
>
engage
in acts of intimidation which could give rise to unlawful
conduct...
=
The interdict application was then withdrawn. I should say at this
juncture that Holland
=
s
excuse for not signing the agreement negotiated with Cosatu and Fawu
rings hollow. She testified that Saccawu would not sign the
agreement because its members had been unfairly singled out for
disciplinary action. The agreement concerned future industrial
action. It had nothing to do with past disciplinary sanctions.
[9] The disruption caused by the
uproar was enormous. Because of the fearfulness of the predominantly
female workforce, aggravated
by rumours, management decided to
provide them with transport to and from work for the following
Thursday evening and the Friday
and Saturday morning. Employees
fearing for their lives refused to venture onto the trains.
Absenteeism leapt from between eight
and ten percent to thirty-five
percent. Fawu shop stewards were, at their insistence, transported
to and from work for the next
six months.
[10] The next day, 22 June, those
employees who had misconducted themselves in this manner were
suspended. One hundred and eighty
of the suspended employees were
then charged with misconduct. Of these, one hundred and thirty-four
were, by agreement with Saccawu,
suspended without pay for four
months and issued with final written warnings. The remaining
forty-six were tried, found guilty,
and dismissed on 2 August 1995.
The suspension of the one hundred and thirty-four employees was a
compromise arrived at after a
process of mediation and was agreed to
by Cosatu and Saccawu, although Holland in her evidence maintained
that the agreement had
been
>
imposed
=
on Saccawu. She presumably meant that Saccawu did not feel itself
bound by the agreement and that, therefore, the one hundred and
thirty-four suspended employees had reason to feel aggrieved at
their treatment.
[11] Anema was asked in
cross-examination what the situation at the factory was after the
suspensions on 22 June. The reliability
of his answer was not
challenged. He said:
>
I did
explain a little bit earlier on, where it was, there was still that
state of fear, that state of uncertainty, the high absenteeism
rate,
the threats, the rumours, it was an extremely difficult time to be
able to manage, and extremely tough, extremely difficult
for the
people that were in the factory. Our productivity just went right
down, and the example I explained earlier on.
=
It was in this atmosphere of alarm
and despondency that the next mass demonstration occurred.
[12] The forty-six dismissed Saccawu
members, joined by others who brought the total number of
demonstrators to between eighty and
one hundred, staged what was
often in evidence referred to as a picket. I doubt whether it was a
picket properly so called since
there was no strike at the time for
which the picketers could attempt to elicit support. It makes no
difference to the case that
it was a demonstration rather than a
picket.
[13] On 25 August 1995 there was a
brief, and orderly, demonstration by the further appellants at the
respondent
=
s
head office in Cape Town. The demonstrators then moved to the
respondent
=
s
Woodstock premises where they sang, toyi-toyed, displayed banners
and moved from one gate of the premises to the other, pausing
in
front of each gate from where they were visible to workers inside
the factory premises. According to Anema the intensity of
the
singing and toyi-toying increased every time they reached a gate.
They advanced towards the gate and then retreated again in
a motion
that Anema likened to the advancing and receding of a wave. In
cross-examination he elaborated by saying that the rush
at the gates
was ‘not as severe as a mock attack to break it down, but it was
certainly a sign of aggression, a sign that there
was intent to
intimidate.’ Catto thought that ‘it could be called a sort of
like rush on the gates and then they would recede
again.’ To him
this behaviour was ‘fairly intimidatory and very provocative.’
[14] The demonstration on 25 August
was renewed on 29 and 30 August. The pattern was the same; so was
the number of demonstrators
on each occasion. Obstruction of
vehicular traffic, according to Catto and Anema, occurred on each of
the three days. The respondent
complained to Saccawu on 29 August
about the conduct of the demonstrators but the former was not
prepared to meet with the company.
The inevitable happened. The
demonstrations renewed the old fears which had been aroused two
months earlier. Anema described the
workforce as being
>
extremely
worried
=
from the first day. The uncertainty as to what was going on was
unnerving. The demonstration on 25 August started having an effect
on production. Anema described it in these words:
‘
As I mentioned earlier, our
absenteeism shot up sky high again, around about 20, 25%, where we
normally operate on about an 8 to
10% absenteeism. Our productivity
went down, I remember the one day specifically in the flow-lines, I
can
=
t
remember which day it was, where we, our normal production is around
about 60 to 65 tons of headed and gutted fish, it dropped
right down
to about 30 tons, and because we have regular production meetings,
there was no explanation for it, other than that
the people were
worried, they were concerned, they were fearful.’
[15] The night of the second
demonstration Richard Antoni, the shop steward who had earlier been
injured, was attacked by seven
men at the Heideveld train station
and stabbed to death. According to reports received by Anema, some
of the staff at Woodstock
were with him at the time of his murder
and identified his assailants as members of the group that had
caused chaos in the factory
on 21 June. These reports were elicited
from Anema in cross-examination, so that what would otherwise have
been hearsay, became
admissible. Naturally enough rumours, fuelled
by a newspaper report that Antoni had been killed by members of a
rival union, rapidly
spread through the factory. So great was the
alarm created by the news of Antoni
=
s
death, and the rumours concerning the perpetrators thereof,
aggravated by reports of threats on the lives of the Fawu shop
stewards,
that some thirty workers had on 30 August to be seen for
stress disorders by Dr Rabinowitz who daily attended at the company
clinic.
Most of them were treated by the nursing staff.
[16] The case for the appellants was
that the further appellants’ actions during the demonstrations in
August were not intimidatory.
However, the evidence of fear and
despondency caused by the demonstrations was not challenged in
cross-examination. Anema, at one
point in his cross-examination,
explained:
‘
... I was in their factory, Mr.
Grobler, they were fearful of their lives, they didn
=
t
want to go home on trains, goodness me that surely is proof enough
that there is intimidation, that you got guys, ladies, crying
in my
office because they don
=
t
want to go home on the train. You
=
ve
got Ivan Jeremiah saying ‘I want to have, I want to be escorted
home, because I am going to die tonight, I
=
m
not going to come back the next day’ and that was real physical
tangible fear coming out of these people.’
[17] It was elicited from Anema in
cross-examination that he had been told by the Fawu shop stewards
that
>
Saccawu
men
=
,
whose names they mentioned, had after the June upheaval but before
the August demonstrations made threats against them like
>
jy
is volgende
=
or
>
ons
gaan julle opblaas.
=
In response to a question he confirmed that he had received
complaints of threats from Fawu shop stewards after 25 August 1995
as well. The explosiveness of the situation is illustrated by the
fact that during the course of the August demonstrations, a bomb
threat was made to the police who felt obliged to comb the factory
with a sniffer dog.
[18] Judging by the measures taken by
the respondent, Anema, did not in my view exaggerate the effect of
the demonstrations on the
morale of the workforce and on their
productivity. For example, the respondent took Jeremiah
=
s
concerns sufficiently seriously to at first put him up in a safe
house and thereafter to relocate him and his family to its plant
in
Mossel Bay. What is more, transport to and from home was provided
for all the factory workers at first, and thereafter for the
Fawu
shop stewards for as long as six months. Anema described how the
respondent vainly tried to persuade witnesses to the street
demonstrations to come forward to testify at the disciplinary
enquiries. No employee was prepared to take the risk. Members of
management felt so threatened that the police were requested to
specially patrol their homes. Catto was given permanent security
surveillance.
[19] It was contended on behalf of
the appellants that the protestors had no intention of disrupting
the respondent
=
s
business and that they in fact took care to avoid disruption by
letting all delivery vehicles through the protesting throng. A
good
deal of time was expended in the court
a
quo
on the question of
whether or not delivery and other vehicles were detained by the
protestors. The time spent on this issue was
quite out of proportion
to its importance. Firstly, the stopping of vehicles would be only
one, relatively minor, facet of the
overall disruption. Secondly,
the more important, and unchallenged, evidence of Anema was that
delivery vehicle drivers refused
to leave the premises while the
demonstrators were present. The pervading fearfulness took hold of
them as well. Those who had
to deliver packed product to Atlantic
Cold Storage refused to drive their trucks out of the premises.
Their apprehension was heightened
by the photographing of vehicles
by one of the protestors
=
leaders; they feared reprisals against them. Apart from a job
applicant and a piping contractor who refused to enter the premises
while the protestors were present, there was, for about twenty
minutes, a line of delivery vehicles backed up in Beach Road. He
explained that there were two factors hindering the in and out
movement of trucks. One was the physical obstruction; the other
was
the threat or perceived threat of danger posed by the demonstrators.
[20] The drivers who were too fearful
to go out voiced their concerns to Anema
=
s
subordinates who reported to him, but he was also able, through his
own observations, to establish the unusual occurrence that
‘the
fish receiving area was chock-a-block full of trucks, the bin truck
hadn
=
t
gone out, the offal truck was in its, it had been parked there the
whole day, and
¼
,
there was four or five of the bin tippers full of offal, indicating
that they hadn
=
t
been moving.’ The re-delivery of the bins in which fish are
brought to the factory from the trawlers was delayed to the extent
that there was a telephone call from a trawler enquiring about the
return of the empty bins without which it could not put to sea.
The
trawler captain was told that he would have to put off his
departure. At the request of the cross-examiner, Anema produced
his
diary for the period in question, the contemporary notes in which
show clearly that his recollection that vehicles had - by
physical
or psychological pressure - been prevented from freely coming and
going, was reliable.
[21] Despite the small importance
which I attach to the observed physical stopping of vehicles and
pedestrians by the demonstrators
I should perhaps observe that, on
the probabilities, I prefer the version of Catto and Anema that
vehicles were indeed brought
to a halt. The demonstrators had shown
that they were not concerned about legalities. They breached just
about every condition
of the
>
picketing
=
permission given to them by the Cape Town City Council. They did not
picket in the street in which they had permission to do so;
they
were many more than the forty-six demonstrators for whom permission
had been requested; they did not remain on the pedestrian
walkways;
they did not stand five metres apart (in fact, they did not stand
still at all, but surged from one gate of the factory
to another). I
therefore find it difficult to unreservedly accept the evidence of
Mr. Luus, a policeman who was assigned to observe
the demonstration.
If, as he testified, he did not see vehicles being stopped, he
probably did not follow the demonstrating group
around as they moved
down Porter Street (which is more than 800 metres long) or around
the corner into Southgate Street.
[22] After the upheaval of 21 June
1995, the mediation agreement to which I referred earlier was
concluded between the first appellant,
the respondent and Cosatu. It
imposed a
>
moratorium
on behaviour
=
which reads as follows:
‘
In the interests of sound
industrial relations the parties agreed that a moratorium on group
conduct such as toyi-toying, mass marches
and the like, will be
imposed on the company
=
s
premises at Woodstock for a period of 12 (twelve) months commencing
25 July 1995.’
Holland
=
s
argument was that the agreement was not breached by the first
appellant because the demonstration was not held on the respondent
=
s
premises. This is sophistry. The clause, inelegantly, speaks of a
>
moratorium
posed on the company
=
s
premises...’ It obviously included areas adjacent to the premises.
On the probabilities the first appellant
=
s
officials knowingly disregarded the agreement and embarked upon
action which they must have known would impact adversely on the
respondent
=
s
business operations. That the protestors in this atmosphere would
have scrupulously avoided one form of disruption - the stopping
of
vehicles - is to my mind not in the least probable. As for
inhibiting the movement of the respondent
=
s
personnel, Anema made a contemporaneous note in his diary for 25
August reading
>
people
too afraid to go to shops.
=
There is no reason to think that the note is not accurate. Even
though the protestors may not have physically prevented co-employees
from reaching the
>
shops
=
(which refers to the café where many workers habitually bought
lunch) the psychological obstacles were as great as any physical
constraint may have been. All this fortifies the strong impression I
have that compliance with proper procedures and a regard for
legal
requirements was not sufficiently high on Saccawu
=
s
agenda to have prevented it from resorting to, or at least
tolerating, a little additional pressure in the way of stopping
vehicles
to and from the respondent
=
s
premises.
[23] After Antoni
=
s
murder, the respondent felt obliged to approach the supreme court
for an interdict against unlawful behaviour by the protestors.
Ms
Zoë Holland, a para-legal in the employ of Saccawu, represented it
at court. It was hoped to brief counsel but it seems that
none could
be found at such short notice. An order was granted on the evening
of 30 August. A copy was given to Holland. She made
no attempt to
timeously communicate the terms of the order to the protestors. She
declared, lamely, I thought, that the next day,
31 August, was her
day off and that she did not arrive at Saccawu
=
s
offices until much later that morning. I find it disturbing that,
despite being entitled to the day off, she made no attempt
to
communicate the terms of the order to any responsible official of
Saccawu. At the very best for Holland, she was guilty of gross
dereliction of duty. A high court interdict is not a trifle. A body
like a trade union which, through an official, has knowledge
of such
an interdict is not entitled to take up the stance that it will do
nothing to obey the order until it has been served.
That seems to
have been the Saccawu attitude. Moreover, the interdict
was
served at Saccawu’s offices at 08:50 the day after it had been
granted. Despite that, the demonstrations at the Woodstock factory
were allowed to continue in the same manner as before. Saccawu had
sought permission for and organised the demonstrations. It was
in
this sense responsible for how they were being conducted. It behaved
irresponsibly in not immediately dispatching an official
to
Woodstock to ensure that the terms of the interdict were
meticulously observed. On 31 August the demonstrators only arrived
at the factory between 10:00 and 10:30. There had been ample time to
make proper arrangements to ensure adherence to the order.
[24] There is another informative
piece of evidence from which the defiance of Saccawu and the mood of
its followers may be gauged.
Practically none of the employees said
a word in his or her defense at the disciplinary enquiries. It is
improbable that this could
have been by chance. It is more likely to
have been a strategy agreed upon beforehand. What the purpose of it
was is not easy to
say; but it is easy to say that it manifested an
attitude of a confrontational sullenness. This confrontational
attitude is really
not out of keeping with that displayed throughout
by the demonstrators, by their leaders and by Saccawu
=
s
officials.
[25] In the light of all these
factors, the appellants
=
argument that the conduct of the demonstrators was not, and could
not have been seen to be, intimidatory, cannot be accepted. I
agree
with Anema that the protestors were demonstrating in order to get
their jobs back, something which they thought to do by
putting
pressure on management through the disruption of the respondent
=
s
business. The demonstration at the respondent
=
s
head office was a far more visible expression of protest. Yet the
protestors chose to demonstrate at the factory, where the roads
are
not used much by the general public. Mr. Rose Innes who appeared for
the respondent submitted that the site chosen for the
demonstrations
shows that it was chosen in order to make an impact on the
workforce. I agree. By disrupting the respondent
=
s
business, Saccawu could reveal itself as the more powerful and
militant union whose demands could only be rejected at the
respondent
=
s
peril. It was, it seems to me, determined to build upon the image of
the defiant union it had begun to establish in June of that
year.
[26] The additional member in the
industrial court came to the conclusion that in the case of those of
the demonstrators who had
committed a first disciplinary offence
>
of
this nature
=
(by which I suppose was meant an offence involving intimidatory or
unruly conduct) a final written warning would have been a more
suitable penalty. This applied to appellants two to nineteen,
Appellants twenty to thirty-four (with the exception of appellant
twenty-seven who was dismissed for aggravating features associated
with her participation in the demonstration) had already been
given
final written warnings for their participation in the protest action
of 21 June 1995 . In their case dismissal was judged
to be an
appropriate penalty.
[27] One searches in vain in the
judgement
a quo
for any indication that the additional member appreciated the
severity of the damage done to the respondent
=
s
business by the protest action, coming, as it did, so soon after the
frightening eruption on 21 June and the alarm which it, and
the
rumours and threats associated with it, created for a long time
thereafter. These circumstances must have been well known to
the
demonstrators and to Saccawu officials like Holland. The actions
were carried out with a disquieting disregard for the economic
rights of the employer and the right to security and tranquility of
its employees. It must give any observer cause for concern
that,
even after Antoni
=
s
murder, Saccawu did not see fit to call off the demonstration
scheduled for 31 August. No one on Saccawu
=
s
side could have had any doubt as to the devastating impact that
rumours (whether true or not) as to the cause of his death would
have had on the work-force, and especially on the Fawu shopstewards.
[28] Anema gave uncontested evidence
that it took a year for production at the factory to return to
normal. Though he did not quantify
the loss, one can assume that it
was great. It does not seem to me to be fair under these
circumstances to say that a first offence
would not warrant
dismissal. Anema said in evidence that the employer-employee
relationship had been totally destroyed and added,
significantly,
that in his view the relationship between co-employees had also been
seriously impaired. That, on the facts on this
case, was not an
unimportant consideration in dismissing those who - as Anema
expressed it -
>
had
put the fear of God into
=
their co-employees.
[29] It was argued before us by Mr.
Grobler for the appellant that by not dismissing four employees who
had also participated in
the demonstration, the respondent applied
discipline inconsistently. In my view too great an emphasis is quite
frequently sought
to be placed on to the ‘principle’ of
disciplinary consistency, also called the ‘parity principle’.
(as to which see e.g.
Grogan,
Workplace Law
, fourth ed. p.145
and Le Roux & Van Niekerk,
The South African Law of Unfair
Dismissal
, p.110). There is really no separate ‘principle’
involved. Consistency is simply an element of disciplinary fairness
(The Dismissal
of Strikers, MSM Brassey (1990) 11 ILJ 213 at 229).
Every employee must be measured by the same standards (Reckitt &
Colman
(SA) (Pty) Ltd v Chemical Workers’ Industrial Union &
Others (1991) 12 ILJ 806 (LAC) at 813 H-I). Discipline must not be

capricious. It is really the perception of bias inherent in
selective discipline which makes it unfair. Where, however, one is

faced with a large number of offending employees, the best that one
can hope for is reasonable consistency. Some inconsistency is
the
price to be paid for flexibility, which requires the exercise of a
discretion in each individual case. If a chairperson conscientiously
and honestly, but incorrectly, exercises his or her discretion in a
particular case in a particular way, it would not mean that
there
was unfairness towards the other employees. It would mean no more
than that his or her assessment of the gravity of the disciplinary
offence was wrong. It cannot be fair that other employees profit
from that kind of wrong decision. In a case of a plurality of
dismissals, a wrong decision can only be unfair if it is capricious,
or induced by improper motives or, worse, by a discriminating
management policy. (As was the case in
Henred Fruehauf Trailers v
National Union of Metalworkers of SA & Others
, (1992) 13 ILJ
593 (LAC) at 599 H - 601B;
National Union of Mineworkers v Henred
Fruehauf Trailers (Pty) Ltd
, 1994 15 ILJ 1257 (A) at 1264). Even
then I dare say that it might not be so unfair as to undo the
outcome of other disciplinary
enquiries. If, for example, one member
of a group of employees who committed a serious offence against the
employer is, for improper
motives, not dismissed, it would not, in
my view, necessarily mean that the other miscreants should escape.
Fairness is a value
judgment. It might or might not in the
circumstances be fair to reinstate the other offenders. The point is
that consistency is
not a rule unto itself.
[30] Even if it could be shown that
Mr. Hosken, the disciplinary chairman, in one or more of the cases
where final warnings were
given, was excessively lenient, it would
be unfair to allow the other demonstrators to escape what I consider
to be their proper
punishment simply because Hosken’s discretion
in some cases failed him. The respondent was distressed at the
outcome of these
hearings. It would have preferred all the
demonstrators to have been dismissed and that was, in each case, the
sanction that was
demanded. I make these remarks by the way because
I am not, on the evidence appearing from the transcript of the
disciplinary enquiries,
satisfied that Hosken was wrong. Of course,
if the challenge is raised, it is the duty of an employer to
demonstrate, as part of
the proof that a dismissal was fair, that
there was no inconsistent disciplining of employees. (See
Early
Bird Farms (Pty) Ltd v Mlambo
[1997] 5 BLLR 541
(LAC) at 545 J).
That onus has in this case been discharged.
[31] In all sixty-nine persons were
charged with misconduct. At the end of the enquiries thirty-four
were dismissed. Those who were
found not guilty could not be
adequately identified from photographs taken of the demonstrations.
The photographs were the only
evidence that the respondent could
produce at the enquiries. No employee, apart from management
employees, was prepared to testify.
According to Catto they feared
for their lives if they were to be seen to be involved. If this,
uncontroverted, evidence is accepted,
it furnishes one more cogent
reason for holding that the conduct of the demonstrators was
intimidatory to a really disturbing extent.
[32] It follows from what I have
said above that the court
a quo
correctly came to the
conclusion that all the further appellants had properly been found
guilty of unruly conduct which interrupted
the normal course of the
respondent
=
s
business. I also agree that the court
a
quo
was correct in
upholding the sanction of dismissal in the case of appellants twenty
to thirty-four. I disagree, however, that the
dismissal of the
reinstated appellants two to nineteen was unfair. The only basis for
distinguishing between them and the other
appellants was that they
had previously received final written warnings for having taken part
in the industrial unrest of 21 June
1995. In coming to this
conclusion I believe that the industrial court seriously misjudged
the gravity of their misdemeanour. As
I said earlier they caused the
respondent extensive and long lasting damage. They deserved to be
dismissed. That the other individual
appellants doubly deserved to
be dismissed did not mean that they should have escaped the same
fate. The conclusion betrays too
little regard for the respondent
=
s
legitimate protection of its commercial interests, paramount among
which is the security and productive tranquility of its workers.
[33] In the case of a dismissal, the
value judgment which a court is asked to exercise, involves an
enquiry as to whether the dismissal
was lawful and fair. Fairness,
of course, means fairness to both parties to the dismissal dispute,
the employer and the employee.
National Union of Metalworkers of
SA v Vetsak Co-operative Ltd and Others
,
[1996] ZASCA 69
;
1996 (4) SA 577
(A) at
592 B – 593 I, (1996) 17 ILJ 455 (A) at 459 E – 461 C,
Dube
and Others v Nasionale Sweisware (Pty) Ltd
[1998] ZASCA 52
;
1998 (3) SA 956
(SCA) at 960 E-F.)
In order to determine whether a
dismissal is fair, one asks oneself whether an employer could
reasonably be expected to continue
employing the offending employee.
It seems to me that in the present case the answer must be an
emphatic no. The offending employees
in
casu,
by what they were
(with the connivance of Saccawu) prepared to do to their employer,
demonstrated a lack of that loyalty to, and
reasonable co-operation
with, the respondent which is essential to a continuing employment
relationship.
[34] In my view this court is
justified in interfering with the discretion exercised by the court
a quo
in
altering, in the case of appellants two to nineteen, the sanction of
dismissal to one of a final warning. It seems to me that
the
industrial court exercised its discretion improperly. (see:
Chemical
Workers
=
Industrial Union and Others v Sopelog CC
(1994) 15 ILJ 90 (LAC)) The improper exercise of the discretion
arose from the court
=
s
failure to appreciate the enormity of the impact which the
demonstration had on the respondent
=
s
business, and the contempt shown by Saccawu and its members for
correct industrial procedures, for agreements solemnly concluded,
and for a respect for the law. It was not simply a matter of a few
delivery vehicles having been impeded, as the additional member
seems to have thought. In the prevailing climate the demonstration
was calculated to excite fear and so cause disruption. The country
expects the courts to say very clearly that industrial relations are
not to be conducted in this way. (
Dube
=
s
case
(supra) at 960 G-H,
Mondi Paper Co Ltd v Paper
Printing Wood and Allied Workers Union and Another
(1994) 15 ILJ 778 (LAC) at 781 A-B). Anyone who bedevils industrial
relations in this way can expect no sympathy from the courts.
(See:
National Union of
Metalworkers of SA and others v Wayne Rubber (Pty) Ltd
(1996) 17 ILJ 333 (IC) at 357H - 358A)
[34] The appeal is dismissed with
costs. The cross appeal succeeds with costs. The order of the
industrial court is set aside and
replaced by the following order –
A
The
application is dismissed with no order as to costs.
@
_____________________
CONRADIE JA
I
agree
____________________
FRONEMAN DJP
I agree
____________________
NICHOLSON JA
Date of hearing:
6 May 1999
Date of Judgment:
Appearance for Appellant:
ADV.
Grobler
Appearance for Respondent:
ADV.
Rose-Innes
Page
27
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