Adcock Ingram Critical Care v CCMA and others (JA41/00) [2001] ZALAC 10 (29 June 2001)

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[2001] ZALAC 10
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Adcock Ingram Critical Care v CCMA and others (JA41/00) [2001] ZALAC 10; [2001] 9 BLLR 979 (LAC); (2001) 22 ILJ 1799 (LAC) (29 June 2001)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO: JA41/00
In
the matter between
Adcock
Ingram Critical Care
Appellant
and
The
Commission for Conciliation, Mediation and Arbitration
First Respondent
Mike
Miles
Second Respondent
South
African Chemical Workers Union
Third Respondent
Theophelus
Vilakazi
Fourth Respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
VAN DIJKHORST
AJA
The
fourth respondent , then employed by the appellant, was found guilty
of misconduct in terms of the appellant’s disciplinary
policy and
procedures (the code) in that on 12 August 1998 and as a member of
the union’s negotiating team, which was negotiating
with
management in respect of a strike, he had threatened the management
negotiating team (management) by stating: “You can
treat this as a
threat - there will be more blood on your hands”. Intimidation is
in terms of the appellant’s code an offence
which may lead to
dismissal. He was dismissed. The second respondent, sitting as
arbitrator under the auspices of the first respondent,
found that
the dismissal was substantively unfair and ordered his
reinstatement. An application for review by the appellant to
the
Labour Court was dismissed with costs. Hence this appeal.
The
fourth respondent made the statement at a meeting between
management and the union including shop stewards of whom the

fourth respondent was one. A bloody strike, which lasted some eight
weeks, and had been accompanied by inflammatory statements,
the
murder of one worker, shootings at others and at buses, thirteen
petrol bombings of houses of non-strikers and ongoing
assaults and
intimidation, had nearly ended, an agreement having been reached
with the permanent employees. But striking temporary
workers,
whose contracts had meanwhile expired through effluxion of time,
were disillusioned and this was the issue on the
table. The
remark, which was not in dispute, was the opening remark on behalf
of the shop stewards. Management walked out but
were requested to
return and the meeting continued in an orderly manner.
3 The fourth respondent’s defence at the disciplinary hearing was
that he was explaining to management “..that shop stewards
and
permanent staff might get hurt and management will get blamed for
that”, should the temporary employees not be reinstated.
This
explanation was not, however, tendered at the meeting of 12 August
1998.
The
chairman of the disciplinary inquiry did not believe that the fourth
respondent’s aim was not to threaten management as
he had used
the word “threat” which is an immed iate statement of intent
to punish or hurt a person if he/she does not do
as one wishes.
4 The inquiry
found that the threat was uttered in a desperate attempt to force
management to change their view on the temporary
workers, that it
was a real and cohesive threat substantiated by what had happened
previously following inflammatory statements
and that the words were
therefore not an idle threat of a man under pressure from the
temporary workers but a real threat that
someone else would be hurt.
The chairman expressed the belief that that is why there had been a
form of apology from the unions
at a meeting held the next day
between management, the unions and shop stewards in the absence of
the fourth respondent. The chairman
found that dismissal was the
most appropriate sanction to impose in these circumstances. The
fourth respondent was therefore dismissed.
5 The internal
appeal which the fourth respondent lodged against his dismissal was
dismissed by the senior management of the appellant.
6 After all
internal procedures had been exhausted by the third (the union) and
fourth respondents the dispute of alleged unfair
dismissal was
referred to the Commission for Conciliation, Mediation and
Arbitration for conciliation and thereafter for arbitration
in terms
of
section 136
of the
Labour Relations Act 66 of 1995
. The second
respondent in a reasoned judgment held that as the words were
uttered in the course of a negotiation whilst the fourth
respondent
was a member of the union’s negotiating team he “made that
utterance in his capacity as a representative of a collective,
within a privileged environment at the negotiating table (behind
closed doors) ” and that it would be “grossly unfair to single
out the applicant for individual action and to dismiss him for it.”
The commissioner posed the rhetorical question: “ Does
this imply
that the next time a vociferous and determined spokesperson acting
on behalf of his/her worker constituency uses a threat
as part of
his negotiation tactic to put pressure on the management team to
accede to his demands, that he too will run the risk
of disciplinary
action?” The commissioner referred to two authorities on the
negotiation process within the context of collective
bargaining for
his contention that threats are part of the collective bargaining
process. They are Anstey in his South African
text Negotiating
Conflict - Insights and Skills for Negotiators and Peacemakers -
1991, Juta and Co p154, and Walton and McKersie:
A Behavioral
Theory of Labor Negotiations, 2nd ed 1991, IRL Press, New York p107
- 111.
7 The
commissioner had a second string to his bow. He reasoned as
follows: (a) Taking cognizance of the actual text of the words
used
, as they were not directed at one particular person but at the
management team members generally and were of such general
nature
they were in the context an empty threat of no consequence of
physical harm to anyone. The presiding officer at the inquiry
had
used the dictionary definition of “intimidation” and had failed
to appreciate the dynamics of the negotiation process in
the highly
charged atmosphere of the collective bargaining situation and the
context in which threats and sanctions are applied
to put pressure
on the opponent. (b) Furthermore both parties were under stress
and the fourth respondent was afraid of his
own personal safety
fearing reprisal at the hands of temporary workers. (c) There was
no evidence linking him personally to the
violence. (d) The trade
union team through its leader apologized for the

remark: which apology
was accepted by management.
(e) One of the reasons why disciplinary
action was taken was because he personally failed to apologize. (f)
This was a factor
taken into account by the presiding officer of the
inquiry when she dismissed him. (g) The fourth respondent had 18
years service
with the company. He had a clean record. The
reference to an incident of insubordination at a Christmas party
some 20 months
earlier was irrelevant.
8 In passing I
point out that some of this reasoning is wrong. As the code is a
document it is perfectly correct to use the dictionary
as a starting
point to determine the meaning of words used therein. The “dynamics
of the negotiating process “ do not change
the plain meaning of
words. Apart from his own belated statement there was no evidence
that the fourth respondent had been threatened.
The apology by the
union was noted and the fourth respondent not absolved. Reasons (e)
and (f) are factually incorrect. The incident
at the Christmas party
was not taken into account. The fact that the reasoning can be
faulted is, however, in itself no ground
for interference with an
award.
9 The
commissioner found that the dismissal of the fourth respondent
amounted to an unfair dismissal on the basis that
the appellant had
failed to show that in the circumstances it had good grounds for
terminating the fourth respondent’s services.
He ordered
reinstatement.
10 This award
was taken on review to the Labour Court on the grounds that the
commissioner committed a gross irregularity in the
arbitration
proceedings and/or that his decision is not rationally justifiable
in terms of the reasons given and that his findings
are permeated
with bias in favour of the third and fourth respondents.
11 Waglay J
dismissed the application for review, holding that the commissioner
had properly applied his mind to the matter and
had not committed
any irregularity which tainted his award.
12 This finding
by the Labour Court is on appeal before us. The learned Judge held
that the statement did not amount to a threat.
This should have
disposed of the matter. The learned Judge, however, then dealt with
a further issue, namely the commissioner’s
finding that even if
the statement made by the fourth respondent was intimidatory, it
was made in a representative capacity
and “ within the privileged
environment at the negotiation table (behind closed doors)” and
that it would therefore be grossly
unfair to single out the
applicant for individual disciplinary action and to dismiss him for
it.”
13 The
reasoning of Waglay J was as follows: When parties enter collective
bargaining they sit as equals. Trade union representatives
who are
employees of the employer do not sit at the bargaining meeting as
employees per se but as equals. They are there to bargain,
to
extract the best deal which they are able to secure and it is not
uncommon for these meetings to often degenerate. To give
the
employer the right to discipline an employee, sitting as an equal
opposite him, would undermine the whole process. This does
not give
any of the parties an entitlement to abuse or intimidate or licence
criminal acts. If this happens there are a number
of options open
to each of the parties. One of them may simply refuse to remain in
the bargaining process for lack of any constructive
discussion or if
any criminal act has been committed the police may be called. Thus
far the reasoning of the learned Judge.
14 Although
these remarks were in my view
obiter
in the light of the
prior finding pertaining to the absence of a threat, they echo the
approach of the commissioner who based
his award mainly on this
ground. This “anything goes” approach is not, in my view, a
correct statement of the law.
15 One cannot
divorce the bargaining situation from reality. The negotiation
pertains to the workplace and the employment situation.
The employer
negotiates as employer and the employee as employee and the fact
that both negotiating teams represent their principals
does not
alter this. The fact that meetings often degenerate does not mean
that one should jettison the principle that as in the
workplace
also at the negotiating table the employer and the employee should
treat each other with the respect they both deserve.
Assaults and
threats thereof are not conducive to harmony or to productive
negotiation. Of course the criminal law can be invoked
should there
be a criminal act, but that is the last thing one looks for in the
bargaining process. Of course the refusal to negotiate
further in
the face of abuse is an option, but why should the inhibitory effect
of possible disciplinary action in case of serious
transgressions
not be allowed to lubricate the process into civility? To me it is
unacceptable to hold, as the commissioner did,
that when one acts in
a representative capacity anything goes. I find support for this
view in
section 97(3)
of the
Labour Relations Act 66 of 1995
which
grants immunity from civil liability to the representatives, but
only for bona fide acts.
16 Waglay
J did not refer to any authority for his view. The commissioner’s
two references do not support him. The “threats”discussed
there are threats of sanctions, i.e. lawful remedies and actions
imposed to assert a position forcefully -- like strike action.
17 It may be
accepted that an employee enjoys greater leeway than normal when he
acts as a negotiator. This flows from his dual
capacity (as an
employee and as negotiating representative). But it would be wrong
to lay down that he has free rein to do or say
whatever he wants. He
remains an employee, and that relationship has to be taken into
account as well. It is in this appeal neither
necessary nor
advisable to draw the line of unacceptable conduct finely. It is
clear that the conduct with which we are concerned
goes beyond such
leeway as is permissible to a shop steward within the negotiation
context.
18 I turn now
to the real issue - Did the words uttered amount to a threat in
these circumstances? In favour of such a finding would
be the use of
the word “threat” by the fourth respondent himself as well as
the tense circumstances prevailing at the time.
There was no
explanation that anything else was meant. It was never contended at
any tribunal that the fourth respondent did
not know perfectly well
what the meaning of the word was. On a previous occasion this
threat uttered by the general secretary
of CWIU, the other union
involved in the strike, at a meeting had been followed by murder.
The threat was uttered in a climate
of total mayhem. To the
knowledge of the fourth respondent his remarks were taken as a
serious threat by management who walked
out, yet he did nothing to
still their fears. The words following upon the reference to threat
mean: There will be bloodshed.
You (management) will be responsible
for it. This cannot mean that management will spill blood or order
it to be spilled. Neither
does it mean that employees loyal to
management (the non strikers) will spill blood. In the context it
can only mean that strikers
(union members and their cohorts) will
cause bloodshed, as they did in the past. That is clear from the
word “more” in the
phrase. That blood will include that of
non-striking employees, as in the past. This means that management
are told, angrily
as it was shouted, that if they don’t concede on
the issue of the extension of contracts of temporary workers the
union’s members
will cause serious injury to the employer and/or
its loyal workforce. This is a threat of violence.
19 The view
that in order to amount to “intimidation” the threat must be
directed at one particular person and not generally
at management
(which was the view of the commissioner) is incorrect. One can
intimidate a group as much as one can intimidate
a single person and
violence against the person of the party who is being intimidated is
not a prerequisite. One can intimidate
another by threatening to
harm his beloved ones or his business by injuring his workers. In
the Shorter Oxford English Dictionary
“intimidate” is defined as
“ Terrify, overawe, cow. Now esp. force to or deter from some
action by threats or violence
”.
20 The view of
Waglay J was that in the prevailing circumstances there was no
threat and that “had management simply reflected
on the statement
... the only reasonable inference they would have arrived at is
that what the fourth respondent meant was that
the temporary staff
would attack the permanent staff for their lack of support of them”
for which management will be blamed.
This approach is incorrect.
It ignores the fact that management was unaware of threats by
temporary workers against permanent
workers and shop stewards -- if
there were in fact such threats. It ignores the import of the word
“threat” in the context
of the history of violence. It ignores
the absence of any explanation to the meeting by the fourth
respondent, who on this interpretation
of the statement should have
been taken aback by the reaction of management to his alleged
innocuous remark. And if it was
merely an explanation of the
situation in the workplace, why was it shouted as an opening
remark?
21 Both the
commissioner and the Labour Court therefore misdirected themselves
in two respects: In the interpretation of the facts
and on the law
pertaining to the immunity of union representatives at the
negotiating table who are shop stewards from internal
disciplinary
measures of the employer.
22 Are we at
liberty to interfere? The test to be applied was set out by this
Court in Carephone (Pty) Ltd v Marcus NO & Others
(1998) 19 ILJ
1425 (LAC) 1435B-E. The mere fact that the reviewing court differs
in its conclusion of law or fact from that of
the tribunal of first
instance may not be reason for interference as that would blur or
obliterate the distinction between appeal
and review. But when the
difference is so great that it impinges upon the basic norm viz the
necessity of a fair trial, interference
is warranted. Whether that
point is reached has to be decided on the facts of each individual
case. In this case the divide is
in my view so great that it
warrants interference. The finding of the disciplinary inquiry was
clearly correct. The reasons given
were lucid and sound. If the
fourth respondent was guilty dismissal was obviously an appropriate
sanction. Yet the commissioner
on a totally incorrect view of law
and fact set it aside His reasoning was in my view not rationally
justifiable.
23 The appeal
is upheld with costs. The order of the Labour Court is set aside
and the following order is substituted therefor:
“ The
application for review is upheld. The award of the commissioner is
set aside, with costs.”
Van Dijkhorst
AJA
I agree
I agree
Zondo JP
Comrie AJA
For appellant:
Adv NA Cassim SC
instructed by
Perrott, van Niekerk & Woodhouse Inc
Johannesburg
For Third and
Fourth Respondents: Mr JN Lebea
of Lebea &
Associates
Johannesburg
Date of
argument: 17 May 2001
Date of
judgment: 29 June 2001
10