Ramotsepane and Others v Barmot Truck Hire (JA2/99) [2002] ZALAC 8 (1 April 2002)

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[2002] ZALAC 8
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Ramotsepane and Others v Barmot Truck Hire; Ramotsapane and Others v Le Roux and Another (JA2/99) [2002] ZALAC 8; [2002] 6 BLLR 517 (LAC); [2002] 6 BLLR 525 (LAC) (19 April 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held
in Johannesburg
Case
No: JA 2/99
In
the matter between
SOLOMON
RAMOTSEPANE & OTHERS Appellants
And
BARMOT
TRUCK HIRE Respondent
JUDGEMENT:
APPEAL
___________________________________________________________
ZONDO
JP
Introduction
[1] This
is an appeal against a determination of the Industrial Court that was
made in terms of s46(9) of the Labour Relations Act,
1956 (Act NO 28
of 1956) (
“the
old Act”
).
The determination related to a dispute between the appellants and the
respondent about whether the appellants’ dismissal by the
respondent from its employ constituted an unfair labour practice and,
if it did, what relief should be granted to the appellants.
Application
for the condonation of the late delivery of the record
[2] The
determination of the Industrial Court was delivered on the 17th
December 1998. The appellants delivered their notice of appeal
against that determination on the 11th January 1999. The appellants
delivered the part of the record of appeal that was available
to the
registrar of this Court on the 1st February 2000 and the remaining
part of the record on the 15th March 2000.
[3] In
terms of rule 5(8) of the Rules of this Court the record of appeal
must be filed with, or, delivered to, the registrar within
60 days
from the date of the granting of leave to appeal. The right to appeal
against judgements of the Industrial Court is automatic
and no leave
to appeal is provided for. It was for this reason that this Court
decided in
Xaba
v Portnet (2000) 21
ILJ
1739 (LAC)
that the period of 60 days stipulated in that rule never begins to
run in respect of appeals from the Industrial Court and that,
therefore, it could never be said that an appellant in such an appeal
has failed to comply with the provisions of that rule. However,
it
was held that this did not mean that an appellant in such an appeal
was free to delay with the delivery of the record for as
long as he
or she wished. It was stated in Xaba that the requirement would be
that such appellant should deliver the record within
a reasonable
time.
[4] In
this matter a period of about 14 months lapsed from the date of the
delivery of the notice of appeal before the appellants
delivered the
complete record. The appellants brought an application for the
condonation of the delay in the delivery of the record.
The
respondent did not oppose the application for condonation.
[5] The
appellants have furnished a lengthy affidavit in which they have set
out in great detail what caused the delay and what steps
they took
over the entire period to expedite the prosecution of the appeal. The
explanation that emerges from that affidavit is that:-
(a) the
additional member of the Industrial Court who presided in the trial
delayed for about six months before furnishing his comprehensive
reasons for his determination;
(b) there
were parts of the record of the proceedings that were missing and,
ultimately, had to be reconstructed after it had become
clear that
they could not be found and;
(c)
the company that was instructed to prepare the record took quite some
time to do its job.
[6] In
the light of all of this I have no doubt that the appellants have
shown good cause for the delay and that the delay should
be condoned.
It is hereby condoned.
What
this appeal is about
[7] The
appellants in this matter are former employees of the respondent. The
respondent is a division of Barlow Motor Industries
(pty) Ltd. At all
times material to this matter the respondent ran its operations from
two premises, namely, at Heriotdale and in
Sandton, Johannesburg. In
the Heriotdale premises it employed twenty one employees whereas at
the Sandton premises it employed five
employees. The respondent’s
business was the hiring out of trucks to clients with or without
drivers and van assistants. The
appellants were dismissed from the
respondent’s employment on the 19
th
January 1996 following their participation in a strike.
[8] The
appellants felt aggrieved by their dismissal. They contended that by
dismissing them the respondent had committed an unfair
labour
practice as contemplated in sec 1 of the Labour Relations Act, 1956
(Act 28 of 1956) as amended, (
“the
old Act”
).
In due course they instituted unfair labour practice proceedings in
the Industrial Court in terms of sec 46(9) of the old Act.
The
Industrial Court handed down a determination to the effect that the
dismissal of those appellants who were based at the Heriotdale
branch
did not constitute an unfair labour practice and dismissed their
claim. It held that the dismissal of those appellants who
were based
at the Sandton branch constituted an unfair labour practice. It
refused to grant them reinstatement. The Industrial Court
awarded the
undermentioned Sandton appellants the amount of compensation
appearing against their names:-
Mr
Patrick Khula R7000,00
Mr
Joseph Madiba R8000,00
Mr
Goerge Masenya R8000,00
Mr
Willie Ntshudisana R6500,00
The
Industrial Court did not give an indication of how it had arrived at
these figures. A perusal of the document in the record that
appears
to reflect the appellants’ monthly rates of pay at the time of
dismissal suggests that they each earned more than R1000,00
per
month.
[9] The
appellants in this appeal include the employees whose dismissal the
Industrial Court found constituted an unfair labour practice
and to
whom it awarded compensation. The appeal is against the
“whole”
judgement of the Industrial Court. The respondent has not cross -
appealed against the order of the Industrial Court in respect of
the
appellants who were awarded compensation. In respect of an employee
who died in the interim, an order is sought that compensation
equivalent to his remuneration from the date of dismissal to the date
of his death be paid to his estate.
[10] On
appeal the appellants seek an order setting aside the determination
of the Industrial Court, and replacing it with an order
of
reinstatement plus full backpay. The respondent opposed the appeal
and sought its dismissal with costs. Before the appellants’
appeal
can be properly considered, it is necessary to deal with the factual
background to the appellants’ dismissal. The appeal
record in this
matter runs to over 2000 pages. I shall attempt to summarise the
important features of the factual background.
The
factual background
[11] In
1994 the respondent concluded a recognition and procedural agreement
with the Transport and General Workers Union (
“the
union”
).
In terms of that agreement the respondent recognised the union as the
collective bargaining agent of its employees who are members
of the
union. There used to be casual van assistants whom the respondent
employed from time to time whenever a need arose. In
November 1994
or soon thereafter a number of such casual van assistants were
engaged by, or joined, a concern known as Pro-Personnel
Placements
(
“PPP”
),
a firm of labour brokers, whereafter the respondent engaged them as
sub-contractors. PPP also supplied certain truck drivers
to the
respondent. This was pursuant to a decision taken by the respondent
in November 1994 to employ van assistants in a sub-contracting
capacity rather than on the basis on which they had been employed
before, namely, as casual employees of the respondent.
[12] Thereafter
the respondent relied increasingly on the van assistants provided by
PPP than on those who had no connections with
PPP. The ordinary
employees of the respondent were not happy with the increased
utilisation of employees provided to the respondent
by PPP. Their
perception was that the employees provided by PPP to the respondent
were taking their jobs away. They felt that ultimately
the respondent
would dispense with their services. They also seem to have observed
that the respondent was no longer filling positions
of employees who
were dismissed or who retired. Their observation was that, instead
of filling positions which became vacant, the
respondent simply
relied on the PPP personnel to perform work that would otherwise have
been performed by its own employees.
[13]
This concern of the respondent’s employees was raised with the
respondent at a meeting held between the management and

representatives of the employees at Heriotdale on the 2
nd
November
1995. The issue was dealt with under an item described as:
(a) Employment
of Drivers
(b) Pro-Personnel.”
The
first three paragraphs of the minutes of that meeting are relevant.
They read thus:-
“
MINUTES
OF MONTHLY MEETING HELD ON 2 NOVEMBER 1995 IN
HERIOTDALE AT 14H30
Present: S
Cooper
C
Cooper
S
Ramotsepane
S
Magudulea
1. a)
Employment
for Drivers
b)
Pro-Personnel
Sharon
asked Solomon to explain what this meant . Solomon explained that
last year we had 30 drivers in Heriotdale, but now we have
only 24.
We must employ another six to make up 30 again.
Sharon
explained that at present we are not employing any new drivers but
will continue to use Pro-Personnel. This is strictly a business
decision. Pro-Personnel have an insurance which is of great benefit
to our co. in light of all the thefts, hijackings and accidents.
Propersonnel insure us for up to R 15 000 per incident for any loss/
theft/ hijacking or accident where a vehicle is driven by one
of
their drivers. Sharon explained that Barmot Truck Hire does not have
insurance on our vehicles and it therefore saves money with
Pro-Personnel insurance.
Sharon
assured Solomon that the drivers’
position with the Company is very secure. Although we will
not, at
present, be employing new drivers, their jobs with Barmot are safe”.
Despite
the respondent’s assurance to the representatives of the employees
at Heriotdale that the employees’ jobs were secure,
it appears
that later on, the employees continued to have the perception that
PPP personnel were going to take their jobs.
The
events of the 16
th
and 17
th
January 1996 at the Heriotdale branch
[14] The
employees’ discontent at Heriotdale came to a head in January 1996.
Apparently, one Jerry, a PPP supervisor, had been instructed
by PPP
to check trucks used by PPP personnel for dents, scratches or any
other damages as they left the gate on the 16
th
January. He carried this instruction out on that day. In the course
of doing so, he inspected not only the trucks used by PPP personnel
but also those used by the ordinary employees of the respondent.
Jerry was observed by some of the respondent’s employees.
The
inspection of trucks used by
the respondent’s employees was work allocated to them and was not
part of Jerry’s job.
[15] Those
employees of the respondent who saw Jerry inspecting trucks allocated
to the respondent’s employees on the 16th January
were unhappy
about his conduct. The following day, namely, the 17
th
January, they brought this to the attention of Mr Solomon
Ramotsepane, a shopsteward, who is also the first appellant in this
matter.
Ramotsepane approached Jerry and asked him why he had
performed the respondent’s employees’ work. Jerry answered that
he had
been instructed to do the work by Mr Peter Bubb. Mr. Bubb was
PPP”s manager. Ramotsepane then asked Jerry to go to Bubb and ask
him to come to the workers and explain why he had instructed him to
do their work. Jerry went to Bubb and conveyed the message.
Bubb
was not prepared to comply. Jerry reported back to Ramotsepane.
Jerry was then asked to make a second approach to Bubb and
appeal to
him to come to the workers and give an explanation for his
instruction. Jerry obliged. Once again Bubb refused to comply.
[16] Ramotsepane
then went to Bubb himself and asked him to come to the workers and
explain. Again Bubb refused. Ramotsepane reported
back to the
workers that Bubb was continuing to refuse to come to them and to
give the required explanation. Thereafter sixteen
of the workers
went to Bubb as a group and demanded an explanation. They found him
in an office within the respondent’s premises.
They demanded an
explanation for his instruction to Jerry on the previous day.
According to the appellant’s version, Bubb still
refused to give an
explanation. According to Bubb, he told them that that was an issue
that they should raise with the respondent’s
management. They then
demanded that he leave the premisses and only return when the
respondent’s management would be present at
which stage Bubb would
once again be asked to explain his instruction. Bubb then left.
According to the appellants’ version this
occurred before 07h00
which was the time for the commencement of work.
[17] At
about 10h00 one Mr Andre De Wit, who was from the human resources
department of Barlow Motor Investment, arrived at the Heriotdale
premises to investigate what had happened. Mr De Wit’s
investigation led him to decide that three of the workers be served
with
notices to appear at disciplinary inquiries. The employees were
Messrs Solomon Ramotsepane, Robert Nkuna and Thabiso Gaula. The
charges against them arose out of the morning incident. The three
were immediately suspended on full pay. The charges preferred
against the three employees were:-
“
(a) assault;
(b)
intimidation
and insulting a contractor;
(c)
using
abusive language towards a company contractor;
(d)
participating
in an unlawful work stoppage.”
[18]
At
about 11h45 the three employees were served with the disciplinary
notices. The disciplinary inquiries were scheduled for the following
day, namely, the 18
th
January. Mr Nkuna’s one was to commence at 09h30, Mr Ramotsepane’s
one at 10h30 and Mr Gaula’s one at 11h30. After it had come
to the
attention of the rest of the workers that the three employees were
being charged with misconduct arising out of the morning‘s
incident
with Bubb, they all proceeded at about 13h00 to the office where De
Wit was. There they demanded that they all be charged
with misconduct
as well. To justify this they said that they had all acted in concert
or had all done the same thing as a group.
They objected to only the
three being charged with misconduct. They also demanded an
explanation why Jerry had been performing their
work. Mr De Witt
informed them that, if in the disciplinary inquiries of the three,
evidence implicating other employees emerged,
such employees would
also be charged with misconduct. They were not satisfied with this
and thereafter refused to return to work
and commenced a strike.
[19] According
to the respondent’s strike diary, at about 15h00 the employees
again walked into the office where De Wit was and
sat down. Messrs
De Wit and Roger Bath spoke to the workers. The employees repeated
their demand that they all be charged with
misconduct arising out of
the incident for which the three employees had been charged. They
also demanded that their grievances
relating to PPP be resolved
immediately. They were informed that the respondent did not have
evidence to charge anyone else other
than the three. They were also
informed that the disciplinary inquiries scheduled for the following
day in respect of the three
employees would proceed and that, after
those inquiries had been completed, the grievances of the employees
would be discussed.
[20] At
about 15h15 Mr De Wit issued a notice to the striking employees. The
notice was meant to serve as a record of what had happened
up to that
stage between the respondent and the striking employees as well as to
call upon the employees to return to work the following
morning. The
notice read thus:
“
NOTICE
TO STRIKING EMPLOYEES: 13H00
We
have been advised by the shop stewards and striking workers that they
will refuse to continue work until certain conditions have
been met
by the Company. These conditions are:
1. That
the suspension of employees be withdrawn with immediate effect.
2. That
the disciplinary action instituted against certain employees be
withdrawn with immediate effect.
3. That
discussions should commence immediately with management with the
involvement of Andre De Wit to discuss employee grievances.
4. That
Peter Bubb the branch manager of Pro Personnel Placements (Pty) Ltd
be disallowed access to the Company premises.
5. That
a meeting be scheduled between employees and Jim Parker of BMI.
Discussions
have been held with the shop stewards and the striking workers and
the company has advised as follows:
1. The
Company intends to use casual staff from Pro Personnel Placements on
a need to have basis. The matter has been discussed in
length with
Shop stewards employees and casual employees. All casual employees
have been allowed the opportunity to register with
Pro Personnel
Placements.
2. Shop
stewards and drivers have indicated that they would not be willing to
work with certain employees of Pro Personnel Placements
and that they
wish to work with employees of their own choosing.
3. A
court interdict has been obtained when certain employees attempted to
intimidate Pro Personnel Placement employees brought onto
the
premises and also to comply with other conditions stipulated in the
court interdict.
4. Certain
members of staff in breach of the court interdict have continued to
harras and intimidate Pro Personnel Placement employees.
5. The
Company has followed the agreed procedure in the recognition
agreement and has initiated disciplinary action against these
employees it believes have participated in the act of intimidation.
As a consequence thereof the remainder of the striking employees
have
refused to return to or to resume work until the conditions hereto
above have been complied with by the company.
6. Such
refusal to continue or resume work is a breach of employees’
contracts of employment and furthermore a breach of conditions
of the
recognition agreement which exists between the company and the trade
union and the provisions of the Labour Relations Act.
Should
employees remain in breach of their contracts of employment and the
recognition agreement, the Company will have no option
but to take
serious disciplinary action against them which could result in their
dismissal.
Employees
are requested to resume their normal duties on 18 January 1995 at
07h00 and also to allow the Company to proceed with its
disciplinary
investigations without them attempting to obstruct the process by
continued illegal industrial action.”
It
is clear from the last paragraph of the notice that the employees
were called upon to resume their duties at 07h00 the following
morning, namely, the 18th January.
[21] According
to the strike diary of the respondent Ms Sharon Cooper and Mr De Wit
spoke to Mr Nelson Lamityi of the union about
what was happening and
Mr Lamityi gave them an undertaking that at 07h00 on the 18
th
January all the employees would
“resume
their normal duties and not participate in any further illegal
industrial action.”
This evidence was not disputed. The union and the respondent also
agreed that they would meet not later than 08h30 on the 18
th
to discuss the work stoppage. The strike diary also reflects that
the management agreed to postpone the disciplinary inquiries to
11h00
the following morning. The employees apparently left the premises at
about 17h00.
The
events of the 18
th
January 1996
[22] At
07h00 the employees commenced their normal duties as agreed the
previous day. At 09h00 a meeting took place between the respondent,
on the one hand, and, the union and shopstewards, on the other. The
respondent was represented by Mr De Wit. The union was represented
by
a Mr Dan Mahlosane, a union official. The shopstewards also attended
the meeting. The meeting broke down when the respondent
insisted
that the purpose of the meeting was to discuss the illegal work
stoppage and that another meeting be held on the 19
th
January 1996 to discuss the employees’ grievances which the union
and the shopstewards rejected. The union and the shopstewards
insisted that the grievances of the employees also be discussed at
the same meeting.
[23] Mr
De Wit also insisted on the continuation to finality of the
disciplinary inquiries against the three employees. He also informed
the union and the shopstewards that a disciplinary inquiry would also
be held in respect of all the employees who had participated
in the
illegal work stoppage from 13h00 to 17h00 the previous day. The
meeting then came to an end.
[24] At
about 10h45 the employees again stopped working and resumed the
strike after receiving a report from their representatives
on the
abortive meeting with the respondent’s management. The three
employees who were due to attend disciplinary inquiries failed
to
turn up for their inquiries at 11h00. The inquiries were then
rescheduled for Friday the 19
th
January to allow the three employees to reconsider their positions.
[25] The
respondent issued notices to certain further employees to attend
disciplinary inquiries on the 19
th
January in respect of the illegal work stoppage which had occurred
from 13h00 to 17h00 the previous day. These employees were Gift
Mazwe, H. Masango, Charles Gaula, Thabiso Givala and Solomon
Ramotsepane. At 13h00 the respondent issued a notice to the
employees
to return to work by 15h00. The notice read thus:-
“
Union
officials and employee representatives indicated to management on 17
January 1996 that employees would resume their normal duties
at
exactly 07h00 today. Employees started their normal duties as agreed.
A
meeting was held between management, a TGWU union official and
employee representatives at 09h00 today to discuss the involvement
of
certain employees in illegal industrial action on 18 January 1996.
Management
indicated in this meeting that disciplinary enquiries against those
employees who were allegedly involved in acts of intimidation
on the
morning of 17 January 1996 would proceed at 11h00 today. These
employees failed to attend these scheduled enquiries and these
will
be rescheduled to allow the involved employees to reconsider their
position.
Should
investigations in this matter indicate that more employees were
involved in this specific incident, management would then proceed
with disciplinary action against these employees.
Management
will furthermore institute disciplinary action against all those
employees who were involved in the illegal work stoppage
on 17
January 1996. These enquiries will proceed on 19 January 1996.
Certain
employees have again refused to resume or to return to work until
certain conditions have been met by the Company: These conditions
are:
1. That
the disciplinary action instituted against certain employees be
withdrawn with immediate effect.
2. That
discussions should commence with management with the involvement of
Andre de Wit to discuss employee grievances.
3. That
Peter Bubb, the Branch Manager of Pro Personnel Placements (Pty)Ltd,
be disallowed access to the company premises.
4. That
a meeting be scheduled between employees and Jim Parker of BMI.
5. That
the appointment of a Pro Personnel Placement employees to inspect
trucks be clarified by Peter Bubb.
6. That
all employees involved in the illegal work stoppage on 17 January
1996 be issued with notifications of disciplinary enquiries.
Such
refusal to continue or resume work is a breach of conditions of the
recognition agreement which exists between the company and
the trade
union and the provisions of the Labour Relations Act.
Should
employees remain in breach of their contracts of employment and the
recognition agreement, the Company would have no option
but to take
serious disciplinary action against them which may result in their
dismissal.
Employees
are requested to resume their normal duties at 15h00 today and also
allow the company to proceed with it’s disciplinary
investigations
without them attempting to obstruct the process by continued illegal
industrial action. Furthermore all acts of intimidation
on permanent
staff members of Barmot or Pro Personnel Placements (Pty)Ltd should
cease with immediate effect.
[26] A
meeting then took place between the employees and Ms S Cooper and Mr
De Wit in the afternoon. At this meeting the Jerry incident
was
discussed. The respondent explained that the Jerry incident had been
a mistake and apologised to the workers. Although an attempt
was made
on behalf of the appellants during the trial in the Court a quo to
suggest that no apology was made, the probabilities are
that an
apology was made. One of the appellants who testified admitted that
such apology was made. The strike diary also reflects
that an apology
was made.
[27] At
this meeting of the afternoon of the 18th January the respondent put
the following conditions to the holding of a meeting:-
(a) all
acts of intimidation against its staff members or the personnel of
PPP should cease immediately;
(b) striking
employees resume their work the following morning;
(c) the
striking employees should follow the grievance procedure in terms of
the recognition agreement in the future;
(d) the
striking employees should acknowledge the respondent’s right to
proceed with disciplinary action against the
“involved
employees;”
[28] The
employees presented their grievances to the respondent in connection
with their workstoppage. These were that:-
(a) the
disciplinary charges pending against the three employees be withdrawn
with immediate effect;
(b) a
full account of Mr Bubb’s role at the respondent’s premises be
given;
(c) a
meeting be held immediately with the Group Human Resources Manager Mr
Jim Parker;
The
respondent’s strike diary reflects that the employees rejected all
the respondent’s conditions.
[29] Reference
needs to be made to two letters that the respondent addressed to the
union in the course of the 18
th
January. The heading of the one letter was:
“illegal
industrial action: meeting: 18 January 1996 at 09h00.”
In
that letter the respondent recorded its position. It appears
warranted to quote the contents of this letter in full. The letter
read thus:-
“
ILLEGAL
INDUSTRIAL ACTION: MEETING: 18 JANUARY 1996 AT 09H00
I
refer to our discussions in our meeting held today to discuss the
illegal industrial action in which your members’ participated
yesterday. As indicated herewith please find the company’s position
on this matter.
The
union indicated that the participation of it’s members in illegal
industrial action will not be tolerated by the union and that
management has the right to institute disciplinary action against
such members participating in incidents of this nature
.
The
union indicated it’s opposition about the lack of communication
that existed between management and employees in the appointment
of a
specific Pro Personnel Placements employees and that this resulted
in some members embarking on illegal industrial action.
The union
indicated that members had certain demands which needed to be
addressed immediately.
Management
indicated that the cause of the industrial action resulted due to the
fact that three employees were issued with notification
to appear in
a disciplinary enquiry and because of their suspension on full
payment from the premises pending disciplinary action.
Management
noted the demands from the striking employees yesterday and
indicated that these matters could have been raised through
channels
provided by the recognition agreement. Management expresses it’s
(sic) willingness to schedule another meeting between
the shop
stewards and themselves to discuss the issues but the purpose of
today’s meeting was to focus on the illegal industrial
action.
We
indicated in our discussion that no forms of intimidation or
victimisation will be tolerated by management and that the strongest
disciplinary action will be taken against any such employee involved
in acts of this nature. It is for this reason that management
has
decided that the disciplinary enquiries against the three alleged
offenders would proceed at 11h00 this morning. Should our
investigation
into this matter proof (sic) that further disciplinary
action needs to be instituted against any further employee that were
involved
in the act of intimidation on 17 January 1996. Management
will then proceed in this regard.
Furthermore
management will issue notification of disciplinary hearings to all
those members who participated in the illegal work
stoppage on 17
January 1996. These hearings will be scheduled to commence on Friday,
19 January 1996.
It
is with great disappointment to note also that the union did not
express it’s sincere concern about the behavior of it’s (sic)
members in the light that the union demanded that none of the above
disciplinary hearings should continue against any of it’s (sic)
members because of their involvement in the abovementioned incidents.
I
hope that this confirms our position on this matter.
S.
Cooper.”
[30] The
other letter of the 18
th
January appears to have been written late in the afternoon of that
day. It was addressed to the union. It related to the illegal
industrial action. Its contents also seem to be equally important to
warrant that they be quoted in full. It reads thus:-
“
ILLEGAL
INDUSTRIAL ACTION: 18 JANUARY 1996 FROM 10H45
I
refer to our telephonic discussion regarding the above matter and
wish to indicate that your members again embarked on illegal
industrial
action as from 10h45 today. And this after management had
a meeting with yourselves and employee representatives to discuss the
work
stoppages on 17 January 1996.
Management
entered into a process of discussions and consultations to determine
the reason for this action and management were informed
that
employees has several grievances. These grievances were listed by the
striking workers.
Employees
requested that an urgent meeting be scheduled between management, a
TGWU union official and three employee representatives
to discuss the
grievance issues. Management agreed that a meeting should be
scheduled for Friday, 19 January 1996 at 07h00 to discuss
the issues
and certain agenda items management wished to discuss also with
striking employees. We indicated that a (sic) agenda for
the meeting
would be issued for the purposes of the meeting.
Management
informed employees that it still reserved it’s right to institute
disciplinary action against all those employees who
were involved in
acts of intimidation and victimisation and against all those
employees who participated in the illegal work stoppage
on 17 January
1996 and that these disciplinary enquiries would proceed once the
meeting between the parties had been finilised.
We
requested that employees not involved in the meeting with management
continue with their normal duties whilst the meeting was in
progress
to minimise the disruptive effect on the operation of this business.
Employees refused to adhere to this request and responded
by pointing
out that work will only be resumed once feedback has been given to
them on the discussions. In the light of the disruption
to the
business over the past two days due to the illegal industrial action
by your members, management felt that this stance by
employees were
(sic) very unreasonable.
This
resulted in a situation where striking employees declined
management’s willingness (sic) to enter into discussions with
employees
regarding their grievances and responded that management
had a free hand now to decide on any action management would see
relevant
in the circumstances.
We
are of the opinion that considering the negative co - operation we
have received from the striking employees and their general
behavior
over the past two days that the process of illegal industrial action
will probably continue tomorrow morning. This possible
action will
now be regrettable as striking employees will now face dismissal.
As
telephonically indicated by yourself
your
presence in this matter has become critical and we would urge you to
enter into discussions with your members and allow the company
the
right to manage the affairs of the business which has now become
impossible.
We
would like to express our willingness to still enter into discussions
with employees regarding their grievances. Employees may
also
alternatively use the channels provided for in terms of the grievance
procedure as stipulated in the recognition agreement.
We are of the
opinion that these channels are available at all times and that such
illegal industrial action like we have been experiencing
over the
past view (sic) days are not the mechanism that should be used to
force management into a solution demanded by striking
employees.
Employees have the right to grieve but it(sic) terms of the agreed
procedures.
Your
attention in this matter would be highly appreciated.
Yours
faithfully
S
COOPER
General
Manager”
[31] It
is common cause that the employees did not return to work at 15h00 in
accordance with the ultimatum issued at about 13h00
that afternoon.
The employees’ version was that at about 14h55 they informed the
management that they were prepared to return to
work at that time but
that the management told them that they should not do so because the
parties needed to continue with the meeting
that they were still
holding and it was necessary for them to try and reach finality on
the issues they were still discussing. The
respondent’s version was
that the management never told the employees not to return to work.
However, Cooper conceded that at that
time of the day there was no
work for the employees to return to.
[32] During
the cross - examination of Mr De Wit, the appellants’
representative spent a considerable amount of time trying to get
Mr
De Wit to concede that at about 14h55 the employees had agreed to
return to work. Mr De Witt stood his ground and repeatedly told
the
Court that the employees’ agreement to return to work was always
conditional upon the respondent meeting certain conditions.
He said
that their preparedness to return to work was never unconditional.
Ultimately, it transpired that it was not the appellants’
case that
they had agreed to return to work unconditionally. Their case, too,
was that they had been prepared to return to work but
only if certain
conditions were met. In fact it is clear, even from the affidavit
that served as the appellants’ statement of case
in the Industrial
Court, that the employees put conditions to their preparedness to
return to work. It is common cause that the employees
left the
respondent’s premises at about 17h00.
The
events of the 19th January 1996
[33] On
the 19th January the employees failed to commence work at 07h00 which
was the normal starting time. They congregated around
the gate.
According to the respondent they padlocked the gate and prevented
vehicles from coming in and going out of the respondent’s
premises
except on certain specific instances when a special appeal was made
to them to allow certain vehicles to pass through the
gate.
[34] There
was a suggestion in the evidence given on behalf of the appellants as
well as in statements put to Mr De Wit by the appellant’s
representative during cross - examination that the employees wanted
to work but were not allowed to by the respondent’s management.
It
was suggested that the respondent’s management set certain
conditions that had to be met before the employees could be allowed
to start work. As already stated earlier, the position is that the
employees’ preparedness or willingness to resume their duties
was
not unconditional. A reading of par(5) of the first appellant’s
affidavit that served as the appellants’ statement of case
reveals
that even he states clearly that both in the late afternoon on the
18
th
January as well as on the morning of the 19
th
January the employees were only prepared to return to work if certain
conditions were met.
[35] The
conditions that the employees stipulated for their return to work are
reflected in a notice dated the 19
th
January that the respondent issued to the employees on the morning of
the 19
th
at about 08h45. That notice also reflects that the conditions that
the respondent stipulated were conditions that the respondent
wanted
to be met by the employees before a meeting could take place to
discuss the grievances of the employees and not to the employees
being allowed to resume work. The notice was headed:
“
NOTICE TO STRIKING EMPLOYEES:
07H00.”
The
employees’ demands included the demand for the withdrawal of
disciplinary proceedings against all employees. In the first six
paragraphs of that notice the respondent wrote:
“
Certain
employees have been participating in an illegal work stoppage since
07h00 this morning and this after two other incidents
of illegal work
stoppage have occurred over the past two days since Wednesday.
Several
discussions have been held between management, the union and
employees since the start of the industrial action on Wednesday
to
discuss the work stoppage and employee grievances but without any
success.
A
meeting between management and employee representatives to discuss
their grievances was also proposed but did not materialise due
to
parties not agreeing on the fact that other striking employees not
involved in the meeting should be returning to work.
We
are of the opinion that employees have the right to grieve but
without participating in illegal industrial action and by following
the procedures determined by our recognition agreement. The meeting
to discuss the employee grievances will only commence with employee
representatives once the following conditions have been met:
1. That
employees will agree to abide by the procedures of the recognition
agreement.
2. And
that striking employees return to and resume with (sic) their work
unconditionally.
Management
still reserves it’s(sic) right to institute disciplinary action
against all those employees who were involved in the
act of
intimidation and victimisation on Wednesday morning and against all
those employees who participated in the illegal work stoppage
over
the past two days. Employees should now allow management to proceed
with this enquiries (sic)as to allow management to finalise
this
matter”.
[36] In
the last two sentences of the notice the respondent warned the
employees that their refusal to continue or resume work was
“a
breach of conditions of the recognition agreement and the provisions
of the Labour Relations Act”
and
called upon them to resume their normal duties
“at
exactly 09h15 today or face dismissal.”
[37] The
employees failed to commence work at 09h15 in accordance with the
ultimatum. The respondent then issued a notice suspending
them from
work with immediate effect pending a disciplinary enquiry regarding
their continued failure to work in terms of their contracts
of
employment and to abide by the procedures of the recognition
agreement and the Labour Relations Act. The notice informed the
employees
that a disciplinary inquiry would be held that same day
and that employees would be informed of the details.
[38] At
11h30 the respondent issued notices to the employees calling them to
different disciplinary inquiries. The allegations of
misconduct that
some of the employees were going to face were formulated in these
terms in the notice:-
“
breach
of the procedures of the recognition agreement
breach
of the contract of employment
breach
of the procedure of the Labour Relations Act”.
The
notice said that alleged offences had been committed during 17-19
January. In regard to some employees the allegations of misconduct
appear to have been formulated in the notices calling them to
disciplinary inquires in these terms:
“
Participation
in an illegal workstoppage on 17 January 1996 from 13h00 until
17h00
failing
to resume and or continue and or satisfactorily perform your normal
duties required in terms of your contract of employment.
Failing
to comply with the provisions and procedures provided by the
recognition agreement existing between the parties.”
In
particular Mr Charles Gaula,
Mr
Thabiso Gaula and Mr Ramotsepane were charged with these allegations
of misconduct.
[39] The
notices also drew the employees’ attention to a number of their
rights in connection with the disciplinary inquiries including
the
right to representation by a co - employee, the right to ask
questions, the right to give evidence, the right to an interpreter,
the right to plead in mitigation and the right to appeal. In the last
paragraph of the notice the employees were asked to contact
the
author thereof if they had
“any
uncertainty”
regarding those rights
“or
the application thereof
”.
They were also informed that non - attendance of the enquiry would be
regarded as a refusal to obey an instruction and would
lead to the
enquiry being held in their absence.
[40] For
the purpose of the holding of the disciplinary inquiries, the
employees were divided into groups of about eight or so each.
Each
group was to attend its disciplinary enquiry at a time fixed for that
particular inquiry; one was scheduled for 13h00, another
one for
13h45 and another one for 14h30.
[41] At
about 13h00, which was the time scheduled for the disciplinary
inquiry of the first group of employees, the employees scheduled
to
appear at the inquiry went to the venue. There seems to be some
uncertainty about whether there were also employees who were not
scheduled to appear in that inquiry but who nevertheless came along.
One of those who came to that inquiry was Mr Ramotsapane. He
was to
attend that inquiry in his capacity as the representative of the
employees who were to face allegations of misconduct in that
inquiry.
He was forced out of the venue by the security guards on the basis
that he was not one of the employees who were supposed
to be there.
In this regard they were mistaken because, as already stated, Mr
Ramotsapane was entitled to attend that inquiry in
his capacity as a
representative of the employees who were to face disciplinary charges
in that inquiry.
[42] As
a result of the incident of Mr Ramotsapane being forced out of the
first inquiry, the employees refused to continue with
that
disciplinary inquiry and the disciplinary inquiries that were still
to follow. They requested that the disciplinary inquiries
be
postponed to the following week. The respondent refused this request.
The employees continued to refuse to attend the disciplinary
inquires. Mr De Wit and Ms C. Cooper approached the employees at
about 13h15 and requested them to collectively provide a statement
or
statements as to why the respondent should not proceed to dismiss
them. The employees failed to do this but simply continued
to
express opinions about the incident involving the security guard and
Mr Ramotsapane.
[43] At
about 13h30 Mr De Wit and Ms C. Cooper once again approached the
employees and asked them to provide a collective statement
why they
should not be dismissed. The employees still refused to provide such
statement. Apparently the police were called in. They
arrived but
were soon withdrawn by one Superintendent Coetzee. At about 15h30 the
respondent dismissed the employees. This was done
by way of letters
of dismissal that were issued to the employees. The letters bore the
names of the employees to whom they were addressed.
There were 21
employees from Heriotdale. The letters of dismissal read thus:-
“
NOTICE
TO STRIKING WORKERS
This
notice serves to confirm that due to your failure to adhere to the
ultimatum used (sic) to you this morning and your refusal
to attend
the hearings scheduled for this afternoon that your dismissal from
the Company is herewith immediately effective(sic)
.
You
would be able to receive your final payment from company on Monday,
22 January 1996 at 13h00 and the company will apply for the
withdrawal of your benefits from the pension fund on your behalf”.
After
they had been dismissed, the employees left the respondent’s
premises.
[44] The
above reflects the circumstances that led to the dismissal of those
of the appellants who were based at the Heriotdale premises
of the
respondent. I now turn to deal with the circumstances that led to the
dismissal of those of the appellants who were based
at the Sandton
premises.
The
Sandton workers
[45] It
is common cause that the employees based at the Sandton premises of
the respondent did not take part in the strike on the
17th and 18th
January. They only went on strike on the morning of the 19th January
and were dismissed on the same day. Mr George
Masenya, who was a de
facto shopsteward at the Sandton premises, gave evidence about the
circumstances surrounding their striking
on the 19th. On behalf of
the respondent Mr Burn gave evidence on the strike at the Sandton
premises on that day.
[46] Although
there were differences in the versions of the two witnesses, except
for one or two, such differences were not material.
I shall deal
with the differences in the course of the discussion of what
occurred on that day at the Sandton premises. On the
evidence of Mr
Masenya, the employees at the Sandton premises arrived at work at
about 07h00 and clocked in as usual. However, before
they could
commence their work, they were instructed by one Nicky of the
respondent to go to the Heriotdale branch and work there
because the
workers at that branch were on strike. When he subsequently spoke to
a shopsteward from Heriotdale that morning over
the telephone asking
why the workers at Heriotdale were not working, the shopsteward from
Heriotdale simply told him that they had
been suspended and that they
were going to be dismissed. Mr Masenya was speaking to that
shopsteward from a cellphone that he had
borrowed from someone. The
cell-phone went
“dead”
before
he could get more details from the shopsteward.
[47]
Mr Masenya admitted that, although the employees at the Sandton
premises had clocked in, they did not work between the time
that they
had clocked in and the time when they were dismissed. He testified
that the reason why they did not work was that they
could not go to
work when the employees at Heriotdale were not allowed to work. He
said that they considered the employees at Heriotdale
to be their
co-employees because they were employed by the same company and
because it was at Heriotdale that meetings were held
to discuss any
problems that they also had as employees.
[48] Mr
Burn testified that he arrived at the Sandton premises at about 08h30
or 08h45. He said that upon arrival he spoke briefly
to the manager
of the branch. He asked her to call the shopsteward, Mr Masenya. He
had a lengthy discussion with Mr Masenya. He
testified that he asked
Mr Masenya why they were striking and Mr Masenya replied that they
wanted the problem at Heriotdale to be
resolved. Mr Burn said that he
took Mr Mesenya through the recognition agreement to show him that
what they were doing was in breach
of the recognition agreement.
[49] Mr
Burn testified that he even telephoned the Heriotdale branch and
asked Mr De Wit to get a union official to speak to Mr Mesenya.
The
purpose hereof, said Mr Burn, was to get Mr Mesenya in contact with a
union official who would, so he hoped, confirm to Mr Mesenya
that
what Mr Burn had said to him about the recognition agreement and the
obligations therein contained was correct. Obviously Mr
Burn hoped
that, if what he had said was confirmed by a union official, Mr
Mesenya would be persuaded that their action was wrong
and in turn
persuade the rest of the workers to go to work. Mr Burn’s attempts
to put Mr Mesenya in contact with a union official
at Heriotdale were
unsuccessful because, apparently, the union official indicated his
unavailability to speak on the phone due to
other commitments.
[50] According
to Mr Masenya the employees at the Sandton premises were not on
strike prior to about 09h30. He testified that, prior
to that time,
the employees were still waiting to establish exactly what was going
on at Heriodtale and had not decided to strike
as yet. He said that
it was after he had been able to speak to the shopsteward at
Heriotdale that the employees went on strike. He
estimated that he
must have spoken to the shopsteward about that time. However, not
much would turn on this even if he had spoken
to the shopsteward
about an hour or so earlier.
[51] It
is common cause that at a certain stage in the morning the
respondent issued to the employees a document headed
“ultimatum”.
The document reflects 11h30 as the time when it was
issued.
It reads thus:-
“
NOTICE
TO STRIKING EMPLOYEES AT BARMOT TRUCK HIRE WYNBERG
The
company has held a meeting with you to find out why you are refusing
to work.
You
have stated that you are refusing to work in solidarity with the
striking employees at Barmot Truck Hire in Heriotdale, and that
you
will not return to work until their demands have been met and they
return to work.
You
have been advised that the workers at Heriotdale have engaged in
unprocedural and illegal industrial action in breach of the
procedures
of the recognition agreement and their contracts of
employment.
You
have also been advised that your current action is illegal and
unprocedural and in breach of your contract of employment.
It
is also recorded that your Union official was requested to advise you
of your procedural obligations by telephone from Heriotdale
but that
he declined to do so because of “other commitments”. You have
been put in telephonic contact with the Shop Stewards
at Heriotdale.
You
have also been advised to return to work and follow the procedures of
the recognition agreement and the Labour Relations Act in
order to
proceed with your dispute of solidarity with the Heriotdale
employees. If you continue to refuse to work and do not adhere
with
agreed procedures and the terms of your contract of employment by not
later than 15h00 (3pm) on 19 January 1996 you will face
immediate
dismissal.
ALISON
CAREY ”
[52] Mr
Burn said that he gave the ultimatum to the employees himself whereas
Mr Masenya said it was Ms Alison Carey, the manager
of the branch,
who gave them the ultimatum document. Nothing turns on this dispute.
The last sentence thereof told the employees
that, if they continued
to refuse to work and did not adhere to agreed procedures and the
terms of their contracts of employment
“by
no later than 15h00"
on
that day, they would face immediate dismissal.
[53] Mr
Burn testified that he left immediately after the employees had been
given the ultimatimum. According to Mr Mesenya not much
happened
between the time when they were given the ultimatum and the time when
they were dismissed. He testified that they were dismissed
at about
13h00 - which was before the time by which they had to return to
work or face dismissal in terms of the ultimatum. He
was adamant
that that is about when they were dismissed. He said that it was Ms
Carey who told the employees that they were dismissed.
He said she
told them that, as the employees at Heriotdale had been dismissed,
they, too, were being dismissed.
[54] Ms
Carey was not called to testify and contradict Mr Mesenya’s
evidence. However, Mr Burn did testify. He said that he, and
not Ms
Carey, dismissed the employees. He said this was not at 13h00 or
thereabout but was about 16h30 or at any rate after 15h30.
Mr Burn
said he had left the Sandton premises after the issuing of the
ultimatum and only returned at about 15h30. On his return,
he
continued, he had taken Ms Carey with him and they had proceeded to
the employees and had a discussion with them trying to establish
whether there was no way that the employees could return to work and
thereby avoid dismissal. He testified that, after talking to
the
workers, he had been satisfied that there was no way that the
employees would be prepared to return to work. He thought that
they
were prepared to rather risk dismissal than return to work. He
testified that it was only at that stage that he had then dismissed
them.
[55] Apart
from the conflict in the versions of Mr Mesenya’s and Mr Burn’s
evidence relating to the time when the employees were
dismissed,
there was another conflict which related to the duration of the
discussion which the two men had in the morning. Mr Burn’s
version
was that it had been a lengthy discussion which had taken over an
hour whereas Mr Masenya said it was a short discussion
which had
taken only about 10 minutes. It does not appear to me that ultimately
this dispute of fact is of any consequence. The dispute
of fact
between Mr Burn’s and Mr Masenya’s respective versions that does
matter is the one relating to when the dismissal occurred.
If Mr
Mesenya’s version that the employees were dismissed prior to the
expiry of the ultimatum is true, then, on this ground alone,
the
dismissal would be unfair and would have constituted an unfair labour
practice because the respondent would clearly have had
no right to
dismiss the employees until they had failed to return to work at the
latest time stipulated in the ultimatum. If, however,
Mr Burn’s
version is the true version, then the respondent waited for the
expiry of the ultimatum before it dismissed the employees.
[56] I
am of the opinion that the probabilities favour Mr Burn’s version.
Having stated in the ultimatum that it was giving the
employees until
15h00 to return to work or face dismissal, it is unlikely that the
respondent would have decided to dismiss the
employees before the
expiry of the deadline - in fact much earlier than the expiry of the
deadline. Mr Mesenya testified that the
reason given by Ms Carey for
dismissing the employees before 15h00 was that the employees at
Heriotdale had been dismissed. Of course,
the employees at Heriotdale
had not been dismissed by 13h00. At 13h00 some of them were
attempting to enter the venue of the disciplinary
inquiry which did
not proceed because of the incident where a security guard prevented
Mr Ramotsepane from attending the inquiry.
In his evidence Mr Burn
even remembered that it was drizzling that afternoon when he arrived.
I think Mr Massenya was probably mistaken
about the time of the
dismissal of the employees at the Sandton premises. The matter must
then be decided on the basis that the employees
were dismissed after
the expiry of the ultimatum.
[57] Two
aspects of Mr Burn’s evidence must be mentioned before I can
conclude the summary of the evidence. In the course of dealing
with
the ultimatum in his evidence, Mr Burn testified that
“what
seemed to come through strongly”
when
he had a discussion with the employees in the morning, was
“the
fact that they seemed to have no option in this matter.”
He
said that that was why he had urged the employees to discuss the
matter with the union official and the shopstewards. Mr Burn
testified
that it seemed to him that the employees at the Sandton
premises had had no option in the matter. He said they seemed to have
been
told
“you
must stop working”
and
that is why they were not working rather than that they had any real
grievances of their own at their workplace.
[58] The
other part of Mr Burn’s evidence that must be dealt with relates to
the discussions that he testified he had with the employees
in the
afternoon after the expiry of the ultimatum. His evidence was that he
returned to the Sandton premises at about 15h30 and
went to Ms
Carey’s office and enquired whether there had been any response to
the ultimatum. Ms Carey replied that there had been
none. Thereafter
the two of them proceeded to a little wooden hut which the employees
used as their change room and had a discussion
there with the
shopsteward and the employees who were there.
[59] Mr
Burn testified that he had asked the employees if they had
discussions with the shopstewards from Heriotdale and the union
officials and they answered that they had had discussions with the
shopstewards from Heriotdale but had not been able to have
discussions
with the union officials. Mr Burn testified that the
employees said that the shopsteward from Heriotdale had said to them:
“You
must be out on strike in solidarity with us.”
Mr
Burn said that he had then reiterated everything that he had said to
them in the morning about the
“unproceduralness”
of the strike, the fact that it was a breach of their contracts of
employment, and the fact that it was not functional to altering
anything that was going to happen at Heriotdale.
[60]
Mr Burn testified further that he asked the employees whether they
realised that in terms of the ultimatum they were going
“to
have to be dismissed”
because
they had failed to comply with it and they had said that they
realised that. He further testified that the employees said
that he
would have to resolve the problem at Heriotdale before they could
return to work. He testified further that towards the end
of the
discussion, he had again asked them whether there was anything that
could be done to get them back to work and avoid their
dismissal
and they had said to him:
“You
don’t really understand. It’s our houses. It’s our homes. It’s
our families.”
[61] Mr
Burn was asked by the presiding officer in the Industrial Court about
his earlier evidence in which he had suggested that
the employees at
the Sandton premises may have gone on strike out of fear. In response
Mr Burn said :
“It
came out right at the end of the afternoon session
and
in - I cannot remember the exact words, but right at the end of the
session after I had said to them,’Are you sure that there
is
nothing that we can do to resolve this dispute? Is there no way that
we can find that you go back to work and we, you know, resolve
the
dispute through procedural means?’ - they basically said at the
end,’ It’s not worth our while ...” - words to this effect,
“It’s not worth our while to go back to work if we can’t get
the issues at Heriotdale resolved because, you know, in effect
you
don’t walk on - you know, it’s not your family and your people
that are at risk.” That was the gist of what was said at
that
time.”
[62]
Mr Burn also testified that, after he had left the Sandton premises
that afternoon, he had
“the
distinct feeling that the employees had been put under a great deal
of pressure to join in the strike”.
He testified that he had the impression that
“(I)t
was not necessarily their own will and their own dispute with the
company with their operation that had caused them to be
dismissed”.
He continued:
“It
had been as a result of extreme pressure from the Heriotdale group”.
Later
he testified to a feeling of sympathy
“which
I had for the [Sandton] people because perhaps they had not been the
initiators of that action at all and they had no ability
at all to
control their circumstances”.
Mr
Burn testified further, that when he was satisfied that there was
absolutely nothing he could do to get the employees to return
to
work, he dismissed them. He testified that this was about 16h30 on
the 19th January. Those were the circumstances surrounding
the
dismissal of the employees that were based at the Sandton branch of
the respondent.
[63] Having
summarised the evidence relating to the events that led to the
dismissal of both the Heriotdale branch employees as well
as the
Sandton branch employees of the respondent on the afternoon of Friday
the 19th January 1996, it is necessary to also refer
to what occurred
after the date of the dismissal of the appellants prior to the matter
being referred to the Industrial Court for
determination in terms of
sec 46(9) of the old Act.
[64] On
the 22
nd
January 1996 the dismissed employees submitted a memorandum to the
respondent containing certain demands. The demands were for:-
(a) the
withdrawal of the dismissal letters;
(b) the
removal of Mr Andre De Wit in consultation with the union;
(c) the
removal of Mr Peter Bubb of Pro - Personnel from Barmont premises;
(d) demotion
of C. Cooper as branch manager;
(e) a
meeting between Mr Jim Parker and the dismissed employees to address
“
the whole
confusion”;
(f) Ms
Sharon Cooper to change her attitude”.
[65] On
the 23
rd
January the dismissed employees sent a note to the respondent
demanding a reply to their letter of the 22
nd
. On the same day the respondent addressed a letter to the union
acknowledging receipt of the letter of the 23
rd
January from the dismissed employees. In that letter the respondent
informed the union that the respondent would schedule an appeal
hearing to consider the case of the dismissed employees. It recorded
in that letter that it had noted the reasons for the appeal
to be
that:-
(a) workers
were dismissed without a hearing;
(b) no
final ultimatum was brought to the attention of the employees;
(c) the
respondent
“refused
workers to resume their
duties”;
(d) the
respondent “
failed
to adhere, to the simple appeal from the union about dealing with
[the problem] in its entirety.”
[66] The
internal appeal was held on the 29th January. It was chaired by Mr
Ken Cosgrove. The appellants were represented by Dan
Mohlosane, a
union official, who was assisted by the first appellant. Mr Andre De
Wet represented the respondent. The appellants
were also present.
The outcome of the internal appeal was that the dismissal was
upheld. In the last paragraph of the document
containing the
findings of the
chairman
of the internal appeal, the chairman had this to say:-
“
I
would like to request that Dan approach management of the company
in order to open
negotiations
for possible re - employment. I really feel that the company has an
obligation to look sympathetically at both mitigating
circumstances
and social consequences to a number of the people and in particular
those people from the Sandton operation”.
[67] After
the outcome of the appeal, by agreement between the appellants and
the respondent, the appellants referred the dispute
about the
fairness of their dismissal to the Industrial Court for determination
in terms of sec 46(9)(d) of the old Act. They claimed
that the
dismissal constituted an unfair labour practice within the meaning of
that term as then defined in s1 of that Act. A trial
then ensued in
the Industrial Court which began about April 1996 and was completed
at the end of 1998. The outcome of that trial
has already been
given in this judgement. It is convenient, in dealing with the
appeal, to separate the appellants into the Heriotdale
group and the
Sandton group. It is also convenient to begin with the Sandton group
and follow up later with the Heriotdale group.
The
Sandton Group
[68] I
have already stated above that the Industrial Court found that the
dismissal of the Sandton group constituted an unfair labour
practice
and ordered the respondent to pay them certain compensation. The
respondent did not cross-appeal against this order. Accordingly
the
finding that the dismissal of the Sandton employees constituted an
unfair labour practice stands. What has happened is that the
Sandton
employees have appealed against, it seems to me, the decision of the
Industrial Court not to order their reinstatement and
payment of full
compensation. This has not been put in the clearest of terms in the
notice of appeal. It is not specifically stated
in the notice of
appeal that the Sandton employees’ appeal is only against part of
the determination of the Industrial Court and
that the appeal of the
employees from the Heriotdale branch is against the whole
determination. What is stated in the notice of
appeal is that the
appellants---- which includes the Sandton branch employees who were
partially successful --- appeal against the
whole judgement of the
Industrial Court.
[69] I
think that the only realistic way in which this matter can be
approached is that the appeal of the Heriotdale branch employees
is
against the whole judgement in so far as it affects them whereas the
Sandton employees’ appeal is not against the finding that
their
dismissal constituted an unfair labour practice but is only against
the failure of the Industrial Court to order their reinstatement
and
to order the respondent to pay them full back pay. That all the
appellants ---- which includes the Sandton branch employees ----
sought the relief of reinstatement in the Industrial Court appears
from the affidavit that served as their statement of case in the
Industrial Court. It also appears from the argument of their
representative in the Industrial Court - which forms part of the
record
- that he sought reinstatement for all the appellants. In his
heads of argument in this Court the appellants’ representative
continued
to ask for the reinstatement of all the appellants
including the Sandton branch ones.
[70] The
Industrial Court had a discretion to order the reinstatement of the
Sandton appellants after it had found that their dismissal
constituted an unfair labour practice. If it did not order
reinstatement, it could also award them compensation. There was no
statutory
limit to the compensation that it could award. However, the
amount of compensation had to be reasonable. Furthermore, under the
old
Act compensation which could be awarded in terms of s46(9) had to
be based on actual loss suffered. The question that arises in this
case is whether the Industrial Court exercised its discretion at all
in not ordering reinstatement or whether it exercised it improperly
or injudiciously. If it did not exercise its discretion at all or if
it exercised it capriciously or if it acted arbitrarily, this
Court
would be at large to set aside the decision of the Industrial Court
and exercise that discretion itself.
[71] The
legal position in relation to the granting of reinstatement as relief
under s 46(9) of the old Act was that, if a dismissal
had been found
to be unfair, the inference was that an employee was entitled to be
awarded reinstatement unless the employer proved
that reinstatement
would be inappropriate. In this matter the respondent did not place
anything before the Industrial Court to show
that it would have been
inappropriate to order the reinstatement of the Sandton appellants.
The
Industrial Court gave the following reasons for deciding not to order
the reinstatement of the Sandton appellants:-
(a) “the necessity of also
maintaining fairness in favour of the respondent who should not be
unduly penalised for this relatively
minor omission.
(b) the circumstance that
permanent full-time staff members in the relevant categories had not
been replaced per se should likewise
be taken into account.
(c) the distinctions between the
two categories of strikers should not be vastly exaggerated.
(d) this particular set of
established facts calls for the finding of mitigating circumstances
rather than complete innocence on the
part of the staff members
concerned.”
[72] The
first reason is that there must be fairness to the employer and that
was a relatively minor omission on the part of the
respondent. There
can be no doubt that that in considering what relief should be
granted to an employee whose dismissal has been
found to be unfair,
consideration must be given to granting relief that would be fair,
having regard to all the relevant circumstances
of the case and of
both the employer and the employee. However, in doing so the legal
position under the old Act was that, if a dismissal
had been found to
be unfair, the inference was that the employee should be granted
reinstatement unless the employer proved that
reinstatement would be
inappropriate. The first reason given does not reveal why it would
accord more with fairness not to order
reinstatement than to deny it
save to say that the respondent should not be penalised for “this
relatively minor omission”.
[73] I
have difficulty in understanding what the minor omission is to which
the Industrial Court was referring because its own reasons
for
concluding that the dismissal of the Sandton appellants was unfair
suggest that there were substantial reasons justifying that
they
should not have been dismissed. It gave four reasons. These were:
“
1. (t)heir
participation had not been voluntary but had taken place under
pressure if not compulsion.
(t)he
duration [of their participation in the strike] had been far
shorter.
(t)he
company had already previously decided to offer them full
reinstatement. Unfortunately this proposal had fallen by the wayside
in consequence of either misunderstanding or the adamant insistence
by the relevant [union] official during negotiations to reject
offers tending to differentiate between different employees or
groups of employees.
(i)t
appears to have been unfair for the respondent subsequently to have
refrained from re-exploring the possibility, especially
when the
mandate of the union such as it had been, had lapsed.”
[74] Later
on in its so -called comprehensive reasons, the Industrial Court once
again emphasised that the participation of the Sandton
appellants
“would
in any event have been quite reluctant and not voluntary.”
It said their participation
“certainly
lacked any spontaneity and some genuine concern among the strikers in
question, their safety and that of their houses
and even the security
of their families would not appear to have been placed in dispute.”
It then said:
“While
neither of these features on its own would probably have sufficed for
purposes of concluding in favour of those applicants,
the combination
of these various factors would indeed make it likely that fairness
would have required for strikers at Wynberg Sandton
to have been
treated somewhat more exceptionally.”
[75] The
second point given by the Industrial Court as the reason for not
granting reinstatement is a very strange one. It is that
the
respondent had not employed permanent replacements for the employees.
That was no reason to deny the Sandton appellants reinstatement.
It
was a reason counting in favour of ordering their reinstatement. The
third reason advanced is that the distinction between the
Sandton
appellants and the Heriotdale appellants should not be
“vastly
exaggerated.”
I
do not know exactly what the Industrial Court meant by this but what
is strange is that the very reasons it itself gave on why the
Sandton
appellants deserved to be treated “
exceptionally
”
clearly show a vast difference between the position of the two groups
when they are read together with the reasons why the Industrial
Court
found no unfairness in the dismissal of the Heriotdale appellants.
[76] In
my view the difference between the relief that the Industrial Court
granted the Sandton appellants and the relief that this
Court would
have granted them is so vast as to justify that this Court interferes
with the exercise by the Industrial Court of its
discretion.
[77] In
exercising the discretion whether or not to order reinstatement, this
Court must bear in mind that as a court of appeal, it
must make the
decision which the Industrial Court ought to have made at the time it
had to make a decision in this matter. That was
in December 1998.
When regard is had to all the circumstances of this matter and to the
approach that reinstatement is an appropriate
relief when a dismissal
has been found to be unfair unless the employer shows that such
relief would be inappropriate, I am satisfied
that an order for the
reinstatement of the Sandton appellants should have been made.
[78] The
next question is whether the order of reinstatement that should have
been made by the Industrial Court should have been
made to operate
retrospectively and, if so, how far retrospectively. A number of
factors are relevant in considering this issue.
In this matter the
Sandton appellants participated in an illegal strike. That is
unacceptable conduct. They were given an opportunity
to assume their
duties and avoid dismissal but they did not make use of that
opportunity. However, it must also be considered that
they behaved
peacefully throughout. The Industrial Court found that they had been
put under a great deal of pressure to participate
in the strike.
[79] Furthermore,
and this is most important, the manner in which the trial in the
Industrial Court was conducted on behalf of the
appellants led to a
trial that should have taken a few days taking more than 20 court
days. The trial in this matter began in May
1996. This was four
months after the appellants had been dismissed. In May two trial days
were used. Then in July 1996 four days
were allocated to the matter
for trial. That should have been enough to complete this trial. That
certain employees participated
in a strike on the 17th January, 18th
January, 19th January was common cause. It was also common cause
between the parties that
there had been no compliance with the
provisions of s 65 of the old Act to make the strike a legal one.
Therefore, quite clearly
this was an illegal strike. There was not
much of a dispute about what the demands of the employees in regard
to their strike were.
It was common cause that at the end of the
working day on the 18th January the employees had continued to put
conditions to their
preparedness to return to work. This had
continued to be the case on the morning of the 19
th
January. Their union had already condemned the strike as illegal and
unacceptable. There had been an internal appeal. It was common
cause
that the Sandton employees had been dismissed before they had had the
benefit of the advice or involvement of their union.
[80] The
appellants’ representative spent too much time in the trial
pursuing either peripheral or completely irrelevant issues.
The main
one of these was his obsession with proving that there had been a
love relationship between Mr John Vorster and Ms Corine
Cooper
because he thought, if he proved that, then he could argue that that
was why there had been continued utilisation of PPP personel
in the
respondent. This was not going to advance the appellants’ case by
an inch. The respondent had not denied that it was utilising
the
services of PPP. On the contrary, as the minutes referred to earlier
of a meeting of the 5th November 1995 between Ms Sharon
Cooper and
the shop stewards reveal, Ms Cooper had admitted the utilisation of
PPP’s services by the respondent, had given the
shopstewards an
assurance that the employees’ jobs remained secure and had
explained why the respondent was using PPP’s services
. This
explanation had appeared to be accepted. It certainly had not been
disputed.
[81] If
the appellants’ representative had conducted the trial properly by
confining himself to those matters that were relevant
and in issue,
the trial would have been completed in July 1996. It was first held
on 21 and 22 May 1996. It was then postponed to
22-25 July 1996. This
meant that before the end of July 1996 the matter had taken six days
of trial. That certainly was much more
than necessary to deal with
matters that were relevant and in issue.
[82] If
the trial had been completed then and the Industrial Court had
awarded the employees reinstatement without any retrospectivity
in
the order or without any back pay, that would not have been perceived
as unfair towards them. If the Industrial Court had awarded
them
reinstatement in 1998 but had not made such reinstatement
retrospective for any period, this may have been perceived as unfair
to them in the light of the number of years that had lapsed since
they were dismissed. However, the lapse of those years was due
to the
manner in which their representative conducted the trial. There is no
reason why the respondent should be burdened with a
retrospective
order in those circumstances. In the result I propose to make an
order for reinstatement that is not retrospective
to replace the
order that was made by the Industrial Court. I now turn to deal with
the case of the Heriotdale appellants.
The
Heriotdale branch employees
[83] It
is convenient to deal with the Heriotdale branch employees in three
categories, namely those appellants who were still on
suspension from
work at the time of their dismissal due to the events of the morning
of the 17
th
,
those who participated in the strike only on the 19
th
and those who participated in the strike on either the 17
th
or the 18
th
and on the 19
th
.
The
appellants who, at the time of their dismissal, were still under
suspension for the events of the morning of the 17
th
January .
[84] It
will be recalled that three of the respondent’s employees at the
Heriotdale branch had been suspended from work on the 17th
January
after the incident involving Mr Bubb. Those employees were Mr
Ramotsepane, Mr Robert Nkuna and Mr Thabiso Gaula. These employees
were also dismissed on the 19th January at Heriotdale. The reasons
given for their dismissal were the same reasons that were given
for
the dismissal of all the appellants, namely, that they failed to
comply with the ultimatum that was given on the 19th January
to
return to work at 09h15 or face dismissal. However, that ultimatum
was quite clearly intended for the employees who were on strike
and
were supposed to have been working. These three appellants had been
suspended on the 17th January pending their respective disciplinary
inquiries. Their disciplinary inquiries had not yet been held nor had
their suspensions been withdrawn.
[85] As
the three appellants were still on suspension, they cannot be said to
have been on strike. This is so because a strike means
collective
refusal to perform work in circumstances where the employees are
obliged to work. This matter is governed by the old
Act. Accordingly
the definition of
“strike”
contained in the
Labour Relations Act, 1995
, does not apply. The
three appellants cannot be said to have been under an obligation to
work during their suspension. That they
were on suspension means that
for the duration of the suspension, the respondent had released them
from their contractual obligation
to perform their work. The only
time that these three appellants did not work was when they and other
employees went to Mr Bubb on
the 17th January. That was a very short
time. The strike which the workers embarked upon at about 13h00 on
the 17 January occurred
after they had been suspended.
[86] The
other reason that was given for the dismissal was that the appellants
had failed to attend disciplinary inquiries. This
reason was given
as the second reason for the dismissal of all the employees. That
could not have been meant for the three appellants.
In any event,
even if it was meant for them, in our law a failure to attend a
disciplinary inquiry does not by itself constitute
misconduct.
Generally speaking, attending his disciplinary enquiry is a right
that an employee has. It is not an obligation. If he
fails to attend
it, he does not commit a breach of the contract of employment or nor
does he commit an act of misconduct. He simply
takes a risk that the
hearing may proceed in his absence and adverse findings may be made
against him without his side of the story
having been heard. In fact
in this matter the respondent had warned the employees that, if they
failed to attend their disciplinary
inquires, these would proceed in
their absence. However, when the employees did not attend, the
respondent purported to dismiss them,
inter alia, for that reason
instead of simply proceeding with the disciplinary inquiries in their
absence if that is what it thought
should happen.
[87] These
three appellants are, in my view, entitled to reinstatement. Out of
the period of seven months or so that it would have
taken the trial
to be completed had their representative conducted the trial
properly, it seems to me that they would have been awarded
back pay
for the whole period. In this regard it must be remembered that they
were yet to face a disciplinary inquiry of their own.
I propose to
make an order for their reinstatement and the payment of back pay
equal to the equivalent of their wages for seven months.
The
appellants who did not take part in the strike on the 17th and 18th
January but took part on the 19th January.
[88] Another
group that needs to be dealt with is that of those appellants who
were on leave on the 17th and 18th January but who
participated in
the strike on Friday the 19th January. These would be employees who
did not participate in the strike on the 17th
and 18th January.
Among various grounds of attack, the appellants’ representative
relied on the strike having been of short duration
to contend that
the dismissal was unfair. This argument is, in my view, valid in
respect of those appellants whose participation
in the strike was
limited to the duration of striking on the 19
th
January. They would have been required to work from 07h00. As the
employees were suspended at 09h15 when they failed to heed the
ultimatum to return to work or face dismissal, this means that their
participation in the strike was limited to just over two hours.
In
my view dismissing employees for striking who have struck only for
two hours or so is, in the absence of exceptional circumstances,
too
harsh and unfair. In this matter I am of the view that no such
exceptional circumstances are present. Accordingly, the dismissal
of
any of the appellants for striking only on the 19th January was
unfair. Their dismissal constituted an unfair labour practice.

Those appellants who fall within this category should be entitled to
some form of relief.
[89] I
am of the view that reinstatement should be ordered. The respondents
did not place any evidence before the Court that shows
that
reinstatement would be inappropriate. For the same reasons that the
Sandton group of employees have been denied the retrospectivity
of
the reinstatement order, I would deny the employees in this category
any retrospectivity of the order of reinstatement.
Appellants
who participated in the strike on the 17th or the 18
th
plus on the 19th January and those who participated in the strike on
all three days
[90] I
now deal with those appellants who participated in the strike on
either the 17
th
and the 19
th
or on the 18
th
and the 19
th
or on the 17
th
upto the 19
th
January. Their case is, in my view, distinguishable from the case of
those appellants who participated in the strike only on the
19
th
January because their participation in the illegal strike was not as
limited as was the participation of those who only participated
on
the 19
th
January. Those who struck on the 17
th
and the 18
th
January had had two days and two nights to reflect on their conduct.
Those who had not struck on the 17
th
but did on the 18
th
and the 19
th
had had a day and a night to reflect on their conduct. They must have
had no doubt that the respondent’s patience with the illegal
strike
was about to come to an end especially in the light of the lengthy
meeting which the respondent’s management had had with
the
employees on the afternoon of the 18
th
January.
[91] It
was argued on behalf of the appellants that they had engaged in the
strike because they had been provoked by certain conduct
on the part
of the respondent or that there was necessity for them to go on a
strike. The conduct of the respondent relied upon in
this regard was
that it sought to apply discipline inconsistently among its employees
because it brought charges of misconduct against
only three employees
in respect of the incident involving Mr Pubb on the morning of the
17
th
January and refused to charge other workers who had also been party
to that incident.
[92] It
is true that an employer has an obligation to apply discipline
consistently among its employees - which means that he must
apply the
same sanction to different employees who are guilty of the same
misconduct. However, this does not mean that, if an employer
fails to
apply discipline consistently, employees then acquire a right to stop
working and go on an illegal strike. They would have
other lawful
remedies at their disposal to deal with the situation.
[93] The
employees could have allowed the disciplinary inquiries against the
three to proceed and, if found guilty, and, were dismissed,
to then
encourage the three to institute proceedings to challenge the
fairness of their dismissal on the basis that the employer
had failed
to apply discipline consistently. If their contention that the
employer had applied discipline inconsistently was correct,
the
dismissal would be found to have been unfair and, in all probability,
the three would have been reinstated. That route would
have been
sensible, justified and correct. When an employer has charged only
three employees with misconduct when he could have
charged 17, how do
employees protect their jobs by demanding that they should
all
be charged
with
misconduct?
I
am unable to
understand the logic in this approach. There was no provocation which
prevented the appellants from complying with
sec 65
of the old Act.
It is true that the manner in which the respondent handled the matter
of the bringing of misconduct charges against
the three employees on
the 17
th
March left much to be desired but the unsatisfactory manner in which
the respondent handled that matter did not give the employees
the
licence to flout the old Act and resort to an illegal strike.
[94] The
appellants also contended that the strike was resorted to in order to
protect their jobs which they felt were put under threat
by the
respondent’s conduct in using PPP’s personnel for work that used
to be done by them. If the appellants sought to protect
their jobs,
the proper way to do so was not to go on an illegal strike. The
first point to be noted in regard to this contention
is the fact that
only about two months before the strike the respondent had assured
the workers’ representatives that the workers’
jobs were secure
despite the fact that it would continue to use PPP personnel. By
going on an illegal strike, the appellants were
themselves putting
their jobs at risk because, assuming that the respondent wanted to
dismiss them or some of them so that it could
get PPP personnel to
perform their work, they, by so doing, were giving the respondent a
good excuse to dismiss them. The more effective
way to protect their
jobs was to follow all procedures that needed to be followed so as to
make their strike legal and ensure that
the respondent had no excuse
to dismiss them.
[95] It
was also argued on behalf of the appellants that the work stoppage in
which each one of them participated was of a short duration.
This
submission was made in respect of all the appellants. I have already
dealt with the case of those appellants who participated
in the
strike only on the 19
th
January and have concluded that their participation in the strike
was, indeed, limited. However, it seems to me that those appellants
who participated in the strike on the 17
th
or on the 18
th
and continued to participate in it on the 19
th
fall outside those whose participation in the strike can be said to
have been so limited as to render their dismissal unfair. In
this
regard it must be borne in mind that the respondent had held a
lengthy meeting with the employees who were on strike on the
18
th
January where it sought to get them to agree to stop the strike and
unconditionally resume their duties but they stuck to their position
right through that their return to work would be on certain
conditions. I am of the view that their dismissal was not unfair.
[96] There
were conflicting versions between the appellants and the respondent
about whether or not those workers who had been on
strike on the 18
th
January unconditionally agreed to return to work at 14h55. The
appellants’ version was that they agreed to return to work at
that
time but that the respondent did not allow them to resume their work
as it wanted the meeting that was held between the parties
to go on
until a conclusion was reached. It was also suggested that the
respondent stated that there was going to be no work for
the workers
anyway at that time of the day. I have no hesitation in accepting Mr
De Wit’s evidence that the workers did not at
any stage agree to
return to work unconditionally. He testified that, whenever they
spoke about returning to work at that meeting,
the workers
maintained that it was on certain conditions which the respondent was
not prepared to accept.
[97] On
the morning of the 19
th
January all the workers refused to work and demanded that the charges
against the three employees be dropped. This led to the respondent
suspending them pending a disciplinary inquiry. It must be remembered
that the respondent spent a lot of time in a meeting with the
workers
on the afternoon of the 18
th
January trying to ensure that its stance was communicated to the
workers and trying to secure their return to work. The appellant’s
version was that at the meeting of the 18
th
January the respondent had agreed that the following day the parties
would discuss the work stoppage as well as their grievances.
The
respondent’s version was that the workers would resume work at
07h00 and that thereafter the meeting would take place to discuss
the
work stoppage. Whatever may have been agreed between the parties at
the meeting of the 18
th
,
it could not have given the appellants the right to resume an illegal
strike. At any rate the respondent did not, when the workers
resumed
their illegal strike, simply dismiss the workers. It still issued an
ultimatum for them to return to work. Another factor
that must be
taken into account is that the respondent did not dismiss the
employees upon failure to comply with the ultimatum.
It called
employees to disciplinary inquiries and later convened an appeal.
[98] In
the light of the above I am of the opinion that at a substantive
level there was a good reason for the dismissal of those
appellants
who participated in the strike either on the 17
th
and the 19
th
,
or on the 18
th
and the 19
th
or on the 17
th
,
18
th
and 19
th
January. I now turn to consider the procedural fairness of the
dismissal.
Procedural
fairness of the dismissal
[99] On
behalf of the appellants it was submitted that the dismissal was
procedurally unfair because the ultimatum that the respondent
issued
to the employees on the morning of the 19
th
January with which they were required to comply was unfair because
the respondent was intent on disciplining workers even if they
complied with it. The appellants’ representative said that the
ultimatum was such that the workers were “
damned”
if they returned to work and
“damned”
if they did not.
[100] The
position in law is that whenever an employer is of the opinion that
an employee is or may be guilty of misconduct, it has
a right to take
disciplinary action against the employee but must follow a fair
procedure in doing so. The employer may, however,
elect not to take
disciplinary action against such employee. Once he had made an
election not to take disciplinary action against
an employee, he is
bound by such election and may not change his mind. He is free,
however, in the case of a strike to take the
attitude that strikers
must go back to work and they will not be disciplined at all if they
do so or to say they must return to work
but he reserves his right to
have them charged with misconduct which may result in a dismissal or
a lesser sanction. If he says
to the strikers that they must return
to work by a certain time failing which they will be dismissed, he
waives the right to dismiss
if they comply with the ultimatum. In
this case the last sentence of the ultimatum document that was issued
on the morning of the
19
th
January said:
“Employees
are requested to resume their normal duties at exactly 09h15 today or
face dismissal”.
On
that wording of the utimatum, the respondent would not have been
entitled to dismiss any employee who complied with the utimatum.
However, the respondent would not have been precluded to, for
example, issue the employees with a warning for striking illegally
even if those employees had returned to work at 09h15. I am
therefore unable to uphold the appellants’ contention in this
regard.
[101] It
was also submitted on behalf of the appellants that the dismissal was
procedurally unfair because the chairperson of the
internal appeal
was not neutral or independent. The appellants’ representative did
not refer to any facts or circumstances surrounding
the chairperson
of the internal appeal to support this contention and none are
apparent to me. On the contrary it appears to me
that the
chairperson conducted the internal appeal in a proper, impartial and
objective manner.
[102] The
appellants’ representative also argued that the dismissal was
procedurally unfair because the respondent refused to postpone
the
disciplinary inquiries to which it had called the employees on the
19
th
January after the employees were not able to proceed with enquiries
on the same day as a result of the incident involving the security
and Mr Ramotsepane. In this regard he argued further that the
respondent could not meet this argument by saying that the appeal
hearing that was held cured whatever deficiencies there might have
been in its attempts to hold disciplinary inquiries on the 19
th
January. In this regard he submitted that the appellants were
entitled to two hearings and, if they got one properly conducted one
and either did not get another one or got it but it was irregular,
the subsequent dismissal would be procedurally unfair.
[103] It
may well be that the respondent should have agreed to the appellants’
request for a postponement of the disciplinary inquiries
after the
incident in which the security prevented Mr Ramatsapane from entering
the venue where the disciplinary inquiry was going
to be held at
13h00 on the 19
th
January. However, it must be remembered that the respondent’s
management, the shopstewards and the union had been having
discussions
at various times since the 17
th
January. The employees or their representatives had been able to
inform the management of their side of the story with regard to
why
they were striking. Their union had also admitted that the strike
was illegal. All that remained was for them to say why they
had
continued with the strike on the morning of the 19
th
January and why they should not be dismissed as they had failed to
comply with the ultimatum. The respondent’s Mr De Wit and Ms
Cooper had approached the employees after the security guard and
Ramotsepane incident and had asked them to supply a collective
statement but they had refused to give one.
[104] In
any event reference must be made to certain provisions of the
recognition and procedural agreement and the disciplinary code
and
procedure in regard to the parties’ rights and obligations on the
audi alteram partem rule in disciplinary matters in general
and in
strike situations in particular. Clause 12.2 of the recognition and
procedural agreement between the respondent and the union
provided
that the
“existing
disciplinary procedures, as amended from time to time shall be
followed so as to ensure fair treatment of any union member
involved
in disciplinary proceedings coupled with the maintenance of
discipline and the due performance of that union’s member’s
duties as an employee of the company”
The
disciplinary procedure provided in clause 2.7 thereof:-
“
Subject to 2.7 below, a disciplinary enquiry must be held before any
written or final written warning is finalised and before
dismissal as
a result of misconduct or poor performance”.
Clause
2.7 provided:
“
This procedure will not apply to dismissals as a result of industrial
action or where considered impractical eg where an employee
has
absconded.”
[105]
From
the provisions of the recognition and procedural agreement and the
disciplinary procedure quoted above it seems to me that the
parties
had agreed to dispense with the disciplinary procedure there set out
in cases of industrial action. But the respondent nevertheless
attempted to have disciplinary inquiries in order to be as fair to
the employees as possible. After its attempts to have the
disciplinary
inquiries had failed and the employees had been
dismissed, the respondent agreed to set up an internal appeal hearing
where the
appellants were represented by a union official. In regard
to an internal appeal, clause 6.3 of the disciplinary procedure
provided
that an
“appeal
shall be in the form of a re-hearing of all the evidence, and
additional evidence may also be presented.”
[106]
It
seems to me that the wording of clause 6.3 is such that it envisages
the type of an appeal that is in the nature of a re-hearing
that was
meant by the parties to cure any deficiencies that may have occurred
in the first hearing. Not all appeal hearings fall
into this
category but, where an appeal is of this nature, the complaint that
the employee got one instead of two fair hearings fails
to take into
account the fact that the second hearing is also meant to remedy any
unfairness that may have occurred in the first
hearing. In these
circumstances I am of the view that the dismissal was not
procedurally unfair because ultimately the appellants
were given an
appeal hearing which was meant to rectify any procedural unfairness
that may have occurred before then. This occurred
in circumstances
where clause 2.7. of the disciplinary procedure seemed to give the
respondent a licence to dispense with a disciplinary
inquiry in case
of industrial action.
[107] On
the issue of the costs it seems to me that the unsuccessful
appellants must pay the respondent’s costs and the successful
appellants should not be awarded any costs because (a) they were not
represented by attorneys and, therefore , no costs arise in
the sense
of attorneys’ costs and (b) the respondent must have incurred huge
costs due to the manner in which the trial was conducted
on behalf of
the appellants and it would not be fair to require the respondent to
pay any costs. They may have incurred a lot of
costs for the 2000 odd
page record of appeal but they and their co-appellants are
responsible for the trial in the Industrial Court
having ultimately
produced such a voluminous record.
[108] Before
making the order that I propose to make I must indicate that, except
for the names of the three appellants who were suspended
on the 17
th
January, I have found it very difficult to identify with any degree
of certainty the various appellants who may or may not have
participated
in the strike on the various days in question. I have
attempted to rely on the document containing a list of names
apparently prepared
by Moodley - one of the respondent’s witnesses
---- but even with it I am not certain. For that reason I propose
not to give the
names of the appellants that are to benefit from the
order that I shall make but will say enough in the order to enable
the parties
to identify them. The parties should try and agree on the
relevant lists. Should the parties be unable to agree such a list,
they
should advise the Registrar and submit their written
representations to enable the Court to decide the identity of such
appellants
or to make such other order to facilitate this as it may
deem appropriate.
[109] In
the result I make the following order:
(1) The
appeal of every appellant who participated in the strike on the 17
th
and 19
th
or on the 18
th
and 19 or on the 17
th
,
18
th
and 19
th
January 1996 is dismissed with costs.
(2) The
costs referred to in 1 above shall be paid by the appellants referred
to in 1 jointly and severally, the one paying, the others
to be
absolved.
(3) The
appeal of each appellant who was based at the Heriotdale branch of
the respondent and who only participated in the strike
on the 19
th
January 1996 is upheld with no order as to costs and the decision of
the Court a quo that his or her dismissal did not constitute
an
unfair labour practice is hereby set aside.
(4) The
appeal of the three appellants who were suspended from work on the
17
th
January 1996 is hereby upheld with no order as to costs and the
decision of the Industrial Court that their dismissal did not
constitute
an unfair labour practice is hereby set aside.
(5) The
appeal of the appellants who were based at the Sandton branch of the
respondent is upheld with no order as to costs and the
decision of
the Industrial Court not to order their reinstatement is hereby set
aside.
(6) The
respondent is ordered to reinstate each one of the appellants
referred to in 3,4 and 5 above upon their reporting for duty
on the
date given in 7 below. The order of reinstatement shall operate from
the date given in 7 below.
(7) The
appellants referred to in 3,4 and 5 above must report for duty on or
before 29 April 2002 at their normal reporting time.
(8) The
respondent must pay each one of the appellants referred to in 4
above an amount equal to the remuneration that such appellant
would
have earned over a period of seven months at the rate of pay
applicable to such appellant at the date of dismissal.
(9) Should
an appellant who had been awarded compensation by the Industrial
Court and who is entitled to reinstatement elect not to
be reinstated
and conveys this election to the respondent on or before the date
referred to in 7 above, he or she shall instead be
entitled to be
paid by the respondent compensation that is equal to the amount that
the Industrial Court had awarded him.
(10) Nothing
in this order shall be construed as precluding the respondent from
pursuing the disciplinary charges that were still
pending as at the
19
th
January 1996 against the three appellants who were suspended on the
17
th
January 1996.
___________
RMM
Zondo
Judge
President
I
agree.
_____________
D.M
Davis
Acting
Judge of Appeal
I
agree.
____________
B
Du Plessis
Acting
Judge of Appeal
Appearances:
For
the appellant : MR MALULEKE
Instructed
by : National Entitled Workers Union
For
the respondent : Adv. W.G. La Grange
Instructed
by : Fluxman Rabinowitz Raphaely Weiner
Date
of judgement : 19 April 2002
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD AT
BRAAMFONTEIN
Case no: JA2/99
In the matter between
SOLOMON RAMOTSAPANE &
OTHERS APPELLANT
and
D LE ROUX ( In his capacity as
Industrial
Court’s
additional member) FIRST RESPONDENT
BARMONT
TRUCK HIRE SECOND RESPONDENT
_______________________________________________________________
JUDGEMENT: REVIEW
_______________________________________________________________
ZONDO JP
Introduction
[1] This
is an application brought by the applicants to have certain rulings
that were made by the Industrial Court in the course
of their trial
reviewed and set aside. The applicants are former employees of
Barmont Truck Hire, a Division of Barlows Motor Industries
(Pty) Ltd,
the second respondent. The first respondent is the additional member
of the Industrial Court who presided over the trial
and made the
rulings that are sought to be reviewed and set aside. The applicants
in this matter are appellants in an appeal that
was heard by this
Court at the same time as this review application. The appeal
judgement is separate from the review judgement but
the two share the
same case number.
Second Respondent’s First
Point in Limine
[2] The
second respondent took a point in limine that there had been an
unreasonable delay before the launching of the review application
and
contended that on this ground alone the Court should dismiss the
review application. The applicants conceded that there had been
a
lengthy delay but contended that the application for condonation
that they filed disclosed good cause for condonation and asked
that
this Court should grant condonation.
[3] The review application was
launched on or about the 3
rd
February 2000 which was two days after the applicants had delivered
the record of appeal in their appeal against the determination
of the
Industrial Court. The review application was instituted under the
case number of the appeal. The rulings that the applicants
sought to
have reviewed and set aside had been made on the 28
th
and 30
th
January 1998 and on the 2
nd
June 1998. Those rulings were made in the course of the trial and
before the trial proceedings were completed. The trial proceedings
were completed on the 4
th
November 1998. The Industrial Court delivered its judgement on the
17
th
December 1998. A period of over two years lapsed from the dates of
the first two rulings to the date of the launching of the review
application. A period of about 18 months lapsed between the date of
the third ruling to the date when the review application was
launched.
[4] The explanation advanced by
the applicants for the delay is that they could not bring a review
application until the proceedings
in the Court a quo were completed
because this Court would have disapproved of such a procedure. This
was said on the basis that
it is undesirable that a superior court be
asked to intervene in uncompleted trial proceedings of a lower court.
As already stated,
the trial was completed on the 4
th
November 1998. The applicants have explained that from then up to
January 2000 they were trying to obtain the record of the proceedings
sought to be reviewed and there were difficulties in obtaining the
record as part of it was missing. They explained also that part
of
the delay was a period of six months or so that they had to wait
before the Industrial Court furnished full reasons for its decision.
[5] This
Court has heard a number of cases over the past two or three years in
which difficulties of all kinds have been experienced
in securing
records of proceedings in the Industrial Court for purposes of
preparing appeal records. It appears that these difficulties
arise
mostly because the Industrial Court has been abolished with the
coming into effect of the
Labour Relations Act, 1995
and its
personnel or at least most of them, have left. The difficulties
relied upon by the applicants in their condonation application
as the
difficulties that caused the delay are associated with the abolition
of the Industrial Court. The applicants or their representatives
cannot in any way be blamed for them. In so far as it may be
necessary to grant condonation, I wish to point out that the
applicants
have given a satisfactory explanation that justifies that
this Court should condone the delay. In those circumstances the
respondent’s
point in limine based on the delay is dismissed. In so
far as it may be necessary to condone the applicants’ delay in
delivering
the record, such condonation is hereby granted.
Second Respondent’s Second
Point in Limine
[6] There
is another point in limine that the second respondent also took. It
was that it was irregular for the applicants to have
brought this
application under the same case number as the case number allocated
to the appeal. The respondent contended that the
applicants should
have brought the application separately under a separate case number.
I agree that the applicants should have brought
the review
application under a separate case number even if it and the appeal
were to end up being argued at the same time. However,
this
irregularity is not fatal to the review application nor does it
render the review application so irregular that we should refuse
to
deal with it. Accordingly this point can also not be upheld. I now
turn to the merits of the review application.
The Merits of the Review
Application
[7] I have
already said that this review application is directed at the
reviewing and setting aside of certain rulings that were made
by the
Industrial Court in the course of the trial conducted under sec 46(9)
of the Labour Relations Act, 1956 (Act NO 28 of 1956)
(“the old
Act”) in regard to an alleged unfair labour practice dispute
between the applicants and the second respondent. It is
necessary to
state the nature of the rulings sought to be reviewed as well as the
relevant factual background and the circumstances
in which those
rulings were made. I now proceed to give that background, those
circumstances and the rulings.
[8] The applicants had been
employed by the respondent at its Heriotdale and Sandton branches.
They went on an illegal strike in
January 1996. The second respondent
issued ultimata for them to return to work or face dismissal. They
failed to heed the ultimata
and were then dismissed on the 19
th
January 1996.
[9] The letter which the second
respondent used to convey the dismissal decision to those of the
applicants who were based at its
Heriotdale branch was to the effect
that the reasons for their dismissal was that they had failed to
comply with an ultimatum of
that morning to the effect that they
return to work by 09h15 or face dismissal and that they had failed to
attend disciplinary inquiries
to which the second respondent had
called them where they were to have faced charges relating mainly to
their participation in the
illegal strike. The Sandton applicants had
not been called to any disciplinary inquires so that failure to
attend disciplinary inquiries
was not one of the reasons for their
dismissal. The reason for their dismissal was basically that they
participated in an illegal
strike on the 19
th
January and had failed to comply with an ultimatum calling upon them
to return to work by 15h00 or face dismissal.
[10] After
their dismissal the applicants referred a dispute to the Industrial
Court in terms of sec 46(9)(d) of the old Act claiming
that their
dismissal constituted an unfair labour practice and seeking an order
of reinstatement and payment of back pay or compensation.
The second
respondent maintained that the dismissal of the applicants was
lawful, justified, fair and did not constitute an unfair
labour
practice. It defended the applicants’ unfair labour practice claim.
[11] In
the unfair labour practice proceedings the applicants had admitted
their participation in a work stoppage and had admitted
that there
had been no compliance with the requirements of sec 65 of the old Act
before they had resorted to the workstoppage. Sec
65 was the section
in the old Act that prescribed the requirements that had to be
complied with before a legal strike could be resorted
to. They had
also admitted that they had made certain demands. All of this
rendered their work stoppage a strike and, since there
had been no
compliance with the requirements of sec 65, their strike was clearly
illegal.
[12] The strike came about as
follows. The second respondent used a firm of labour brokers to
supply it with drivers and truck assistants.
The firm was called Pro
Personnel Placements (
“PPP
”).
One Jerry, an inspector employed by PPP, was instructed to inspect
the trucks used by personnel supplied to the second respondent
by
PPP. In the course of carrying out this instruction, Jerry also
inspected trucks used by drivers employed by the second respondent.
The second respondent’s employees found the latter inspection
unacceptable. They perceived the second respondent’s use of PPP
employees as a threat to their jobs. The excuse or mitigating
factors which the applicants advanced in the unfair labour practice
proceedings to justify or explain their resort to an illegal strike
was that the second respondent’s utilisation of PPP’s personnel
made them feel that their jobs were at risk and they went on strike
to protect their jobs. They also alleged that, when they had
sought a
discussion with the second respondent on their grievances about PPP,
namely, that they felt PPP threatened their jobs, the
second
respondent had refused or avoided to discuss their grievances.
[13] The
second respondent had admitted that it was using PPP personnel but
had maintained that, if the applicants had any grievances
and they
wanted to raise them, they should have followed the grievance
procedure to which their union had committed itself through
a
recognition and procedural agreement. The second respondent
maintained that, if the applicants wanted to go on strike, they
should
have complied with the requirements of sec 65 of the old Act
but should not have resorted to an illegal strike.
[14] In
the course of the unfair labour practice proceedings the applicants
sought to introduce a certain photograph into the evidence.
The
photograph depicted one Mr John Vorster, the managing director of
PPP, and Ms Corine Cooper, an employee of the second respondent
based
at the Heriotdale branch. Through the photograph the applicants
sought to prove that there was a love relationship between
Mr Vorster
and Ms Corine Cooper. It seems that they thought that, if they could
prove such relationship, that would help them to
show that the reason
why the second respondent was using PPP’s personnel or why there
was an increased use of PPP’s personnel
was that the managing
director of PPP had a love relationship with an employee of the
second respondent who was involved in the management
of the
Heriotdale branch of the second respondent.
[15] The applicants brought an
application before the first respondent in the Industrial Court for
the admission of the photograph
referred to above. That application
was opposed by the second respondent. The Industrial Court then
embarked upon what it called
a “trial-within-atrial” to determine
the admissibility of that photograph. In the context of the “trial
within a trial” the
Industrial Court heard evidence about how one
of the applicants had come to have the photograph. It concluded that
the photograph
had been obtained unlawfully and that, for this
reason, it was inadmissible. The Industrial Court made this ruling on
the 28
th
January 1998.
[16] Apparently
when the first respondent made his ruling, he suggested that as an
alternative remedy, the applicants could bring
an application in
terms of rule 10 of the rules of the Industrial Court to secure the
production of the photograph. Rule 10 read
thus: “The parties may
in respect of the discovery of documents relevant to the issues in
dispute come to an agreement and in the
absence of such an agreement
either party may apply to the court for an appropriate order.”
[17] The applicants then brought
an application in terms of rule 10 for an order compelling the
production of the photograph by Mr
John Vorster and Ms Corine Cooper.
The Industrial Court dismissed the application on the basis that rule
10 was only applicable between
parties to proceedings before the
court and that, as Mr Vorster and Ms Cooper were not parties to the
proceedings, rule 10 could
not be invoked against them. The
Industrial Court made this decision on the 28
th
January 1998.
[18] Subsequently the applicants
issued subpoenas duces tecum out of the Industrial Court and had them
served by the Sheriff on Mr
John Vorster and Ms Corine Cooper calling
upon them to appear before the Industrial Court and produce their
photo albums including
the photograph they sought to be admitted. On
the day that the two were supposed to appear before the Industrial
Court, they did
not. The presiding officer read out a letter from
them or their attorneys which was to the effect that they refused to
appear before
the Industrial Court because the photograph sought was
irrelevant to the issues in the proceedings. The applicants’
representative
urged the presiding officer to take the necessary step
to have the two brought before the Industrial Court for contempt but
the presiding
officer refused and held that the production of the
photograph would violate the rights to privacy of Mr John Vorster and
Ms Corrine
Cooper. The Industrial Court made this ruling on the 2
nd
June 1998. Against this factual background, I now turn to consider
the merits of the review application in respect of each one of
the
rulings.
The Ruling of the Industrial
Court of the 28
th
January 1998 that the photograph was inadmissible as evidence
.
[19] The first ruling that the
applicants sought to have reviewed and set aside was the Industrial
Court’s ruling made on the 28
th
January 1998 to the effect that the photograph they sought to
introduce as evidence was inadmissible.
[20] The
basis on which the court ruled that the photograph was inadmissible
was that it had been obtained unlawfully. I do not even
think that
one needs to go that far. I think the photograph was irrelevant. The
case before the Industrial Court was whether or not
the dismissal of
the appellants by the second respondent constituted an unfair labour
practice. The second respondent sought to justify
its decision to
dismiss the appellants on the basis that they had participated in an
illegal strike and had been given an ultimatum
which they had
ignored. The appellants’ stance on this was to admit that they took
part in an illegal strike but that the second
respondent provoked
them into such strike by allowing PPP personnel to perform work
normally performed by ordinary staff of the respondent.
The second
respondent never denied that it was using PPP’s services but it had
apologised for what Jerry had done. It had assured
the applicants of
the security of their jobs. It was never part of the applicants’
grievances that John Vorster and Ms C. Cooper
were in a love
relationship which should be stopped. In those circumstances I am of
the view that the evidence of the photograph
was irrelevant to the
issues before the court and therefore inadmissible. The industrial
court cannot be criticised for excluding
it.
The decision of the Industrial
Court of the 30
th
January 1998 dismissing the applicants’ application in terms of
rule 10.
[21] The second decision of the
Industrial Court that the applicants seek to have reviewed and set
aside is the decision that the
Industrial Court gave on the 30
th
January 1998 dismissing the applicants’ application brought in
terms of rule 10. The provisions of rule 10 have already been quoted
above. I do not propose quoting them again. The reasons that were
given by the Industrial Court for its dismissal of the rule 10
application were that the photograph or photo albums sought by the
applicants were not in the possession of the second respondent
and
that s14 of the Constitution protected the privacy of Mr John Vorster
and Ms Corrine Cooper. Since I have already found that
the photograph
was not admissible because it was irrelevant, it follows that the
Rule 10 application was a futile exercise. In any
event rule 10 did
not apply to persons who were not parties to the proceedings and
should never have been invoked. Accordingly the
Industrial Court’s
decision to dismiss the rule 10 application was correct.
The Ruling of the Industrial
Court not to take any steps against Mr John Vorster and Ms Corrine
Cooper for not obeying subpoenas issued
against them.
[22] The
third ruling of the Industrial Court that the applicants sought to
have reviewed and set aside was its decision not to take
any steps to
enforce the subpoenas when Mr Vorster and Ms Cooper disobeyed the
subpoenas. The evidence reveals that the Industrial
Court was in
possession of a letter written by or on behalf of the two persons. I
have already found that the evidence of the photograph
was irrelevant
to the issues before the Industrial Court. On the basis that the
evidence of the photograph was irrelevant, the Industrial
Court was
entitled not to seek to take the matter any further. The Industrial
Court may have relied on a wrong reason for its decision.
However,
there was a good reason, namely, that such evidence was irrelevant
and, therefore, inadmissible. On that ground alone the
decision of
the Industrial Court is not susceptible to review and to being set
aside.
Complaint of bias
[23] The appellants have referred
to the fact that the Industrial Court first ruled that the photograph
was inadmissible, then suggested
the invocation of rule 10, and when
the applicants brought a rule 10 application from the bar, ruled that
they should bring a substantive
application and when they brought a
substantive application, it dismissed it. The applicants have also
referred to the fact that
when, after all of this, they issued
subpoenas against Mr John Voster and Ms Corrine Cooper to come to
court and produce their photo
albums and they refused to attend, the
Industrial Court did not take any steps against them. The applicants
contend that, when the
above behaviour of the Industrial Court is
considered in its totality, a reasonable perception of bias was
created that it was biased
in favour of the second respondent. They
contended that on this basis its ruling should be set aside.
[24] Although
the Industrial Court failed to handle this matter in a satisfactory
manner, I do not think that there is enough on the
record before us
to support the contention of the existence of a reasonable perception
of bias. The first respondent was trying the
best he could to be
helpful to the applicants - hence his incorrect suggestion that rule
10 could be invoked in this matter - and
at the same time trying to
deal with the various issues as competently as he could. The fact
that he made quite a few rulings against
the applicants is not on its
own a basis for any suggestion of bias - actual or perceived. I am
therefore of the opinion that his
ruling dismissing the rule 10
application was justified. Accordingly, there is no basis for holding
that the first respondent was
bias or acted in manner that gave rise
to a reasonable perception of bias.
[25] In
conclusion the review application is dismissed with costs.
_________________
Zondo JP
I agree.
________________
Davis AJA
I agree.
_________________
Du Plessis
AJA
Appearances:
For
the appellant : MR MALULEKE
Instructed
by : National Entitled Workers Union
For
the respondent : Adv. W.G. La Grange
Instructed
by : Fluxman Rabinowitz Raphaely Weiner
Date
of judgement : 19 April 2002