CEPPWAWU and Others v Metrofile (Pty) Limited (JA37/01) [2003] ZALAC 22; [2004] 2 BLLR 103 (LAC); (2004) 25 ILJ 231 (LAC) (19 December 2003)

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[2003] ZALAC 22
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CEPPWAWU and Others v Metrofile (Pty) Limited (JA37/01) [2003] ZALAC 22; [2004] 2 BLLR 103 (LAC); (2004) 25 ILJ 231 (LAC) (19 December 2003)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: JA37/01
In the
matter between:
CEPPWAWU
First
Appellant
B
LAWSON AND OTHERS
Second and Further Appellants
and
METROFILE
(PTY) LIMITED
Respondent
_______________________________________________________________________
J U D
G M E N T
________________________________________________________________________
MLAMBO,
AJA
:
INTRODUCTION
:
[1] This is an appeal and cross-appeal against the judgment and
order of the Labour Court (Jammy AJ) in which it was held that
the
dismissal of the second and further appellants (“
the individual
appellants
”) was procedurally unfair but substantively fair
and that they were not entitled to any relief. The matter comes
before us
with the leave of the Court
a quo
.
[2] The
respondent, pursuant to a number of disciplinary enquiries,
dismissed the individual appellants for misconduct allegedly
committed during a protected strike. The parties could not resolve
the resultant dispute under the auspices of the Commission
for
Conciliation Mediation and Arbitration (“the
CCMA
”). The
CCMA thereafter referred the dispute to the Court
a quo
in
terms of s 191(6) of the Labour Relations Act No 66 of 1995 (as
amended) (“
the Act
”), for adjudication.
1
[3] The
Court
a quo
concluded, after hearing extensive evidence,
that, although the respondent had failed to follow fair procedures
in effecting the
dismissal of the individual appellants, their
dismissal was substantively fair. The Court further concluded that
in view of the
seriousness of the misconduct leading to the
dismissal and despite the finding of procedural unfairness no relief
was warranted
under the circumstances. The Court
a quo
made
no order as to costs.
[4] On
appeal the appellants challenge the Court
a quos’
finding
that the dismissal was substantively fair and that no relief was
warranted despite the finding of procedural unfairness.
The
cross-appeal is directed against the finding that the dismissal was
procedurally unfair.
CHRONOLOGY
OF RELEVANT EVENTS
[5] The
respondent conducts business as an off-site data storage and
retrieval company. Its business includes the safekeeping of
confidential or sensitive documents, computer data, computer back -
up tapes and disks for clients. It carries on business from
two
premises, situated about ten kilometers apart, being No 3 Gowie
Road Cleveland, and No 30 Mineral Crescent, Crown Extension
3 in
Johannesburg. For the sake of convenience and as was done throughout
the trial in the Court
a quo
those premises will respectively
be referred to hereinafter as Gowie and Crown.
[6] Following unsuccessful negotiations between the first appellant
(the recognized collective bargaining agent of the respondent’s
employees) and the respondent about wages, the first appellant
referred the resultant dispute to the CCMA for conciliation. The
parties were unable to resolve the dispute through the processes of
the CCMA resulting in the CCMA, on 23 March 1998, issuing
a
certificate of outcome in terms of s 135(5)(a) of the Act, stating
that as at that date the dispute remained unresolved. On
the same
day the first appellant issued a notice to the respondent giving it
forty eight hours notice of an intended strike.
[7] On 25
March 1998 the respondent issued a notice titled “
Strike Rules
and Communication
” and served it on the first appellants’
shop-stewards. In terms of these “
rules
” permission was
granted to the first appellant’s members, in support of their
strike, to picket on the respondent’s premises
but only in certain
demarcated areas. It is not in dispute that there was no prior
agreement between the parties concerning any
strike and picket rules
that would apply during the strike.
[8] On
Thursday 26 March 1998 the individual appellants and other members
of the first appellant employed by the respondent embarked
on a
protected strike at the respondent’s Crown and Gowie premises.
Soon after the strike commenced the strikers moved out of
the areas
demarcated for that purpose by the respondent in its notice. The
strikers, singing and dancing, collectively positioned
themselves at
the main entrances of both premises and effectively obstructed the
entry to and egress from the premises.
[9] In view of the interference with its normal business operations
the respondent informed the strikers that their conduct,

particularly their presence at the main entrances was not
acceptable and, through a number of notices, called on them to
desist
from their conduct. The respondent was also concerned about
reports of violence and intimidation allegedly perpetrated by
strikers.
This was to no avail as the strikers steadfastly
maintained the blockade of the premises.
[10] Faced
with what it regarded as an untenable situation the respondent,
without notice to the first appellant and the strikers,
obtained an
urgent interdict in the Labour Court during the afternoon of 26
March 1998. The terms of the interdict were,
inter alia
:
“
2. Interdicting and restraining employees of Applicant
engaged in strike action:
2.1 from engaging in any blockage of, obstruction of or
interference with the entrance and/or exits of the Applicant’s
business
premises, or with other employees, contract employees,
customers or suppliers;
2.2 from engaging in any acts of intimidation, sabotage or
damage to the Applicant’s business premises or plant and
equipment.
”
[11] The interdict was served on the strikers at Gowie at about
07h40 on the morning of 27 March 1998. Despite such service the
strikers did not vacate the main entrance but continued dancing and
singing. They, however, desisted from actively enforcing a
blockade
of entry to and egress from the premises. There is a dispute about
the service of the interdict at Crown which is dealt
with later in
this judgment.
[12] Later
that morning, at about 10h30, believing the strikers to be acting in
disregard of the interdict, the respondent issued
a notice to
shop-stewards calling upon them to attend a disciplinary enquiry.
This notice, referring to both premises, read:
“
Notification to attend a disciplinary enquiry.
This serves to confirm that striking workers prevented both
access and exit of vehicles from the companies premises between
07h30
and 16h45 on 26 March 1998.
In response thereto, the company applied for and was granted an
urgent court interdict (case no. J639/98) interdicting and
restraining
employees of Meterofile, from, inter alia, engaging in
any blockade of, obstruction of or interference with the entrance
and/or
exits of our business premises, or with other employees,
contract employees, customers and suppliers, or any acts of
intimidation.
The said obstruction resulting from the worker
blockade is an act of strike related misconduct. In addition
thereto, and at the
time of writing this memorandum, the strikers
continue to be in breach of the court interdict which has been
served on them.
As a consequence of the above, a disciplinary enquiry will be
held at Metrofile Gowie on Monday 30
th
March 1998 at 13h00.
The object of this enquiry will be to investigate the following
charges against the striking workers.
1. Obstruction of entrance gate on 26 March 1998.
2.
Partial obstruction of gateway on 27 March 1998.
3.
Failure to comply with the urgent interdict served on strikers at
approximately 08h40.
Shop stewards are requested to attend the disciplinary enquiry on
behalf of all striking workers at which time they will be given
an
opportunity to motivate why strikers found guilty of the above
charges should not be dismissed.
In the event that you choose not to attend this enquiry, the
enquiry will continue in your absence.
”
[13] The
shop-stewards refused to accept the notices and also refused to
attend the disciplinary enquiry. The refusal was articulated
in a
letter dated 30 March 1998 from the first appellant to the
respondent and reads:
“
Re : Industrial action at Metrofile/intended disciplinary
hearings.
It has been brought to our attention that your Company has
applied to the Labour Court for an interdict and further that the
interdict
was granted by the Labour Court on 26
th
March 1998.
We are further informed that over and above this action, the
Company intends holding disciplinary inquiries today at 13h00 in
terms
of your letter dated the 27
th
March
1998. It is our belief as the Trade Union that this action by
yourselves is intimidatory and tantamount to undermining the
right
of employees to participate in a protected strike. We believe also
that this is harassment and is aimed at interfering with
a protected
strike.
To this effect, we inform yourselves therefore that employees
will not be attending those hearings as scheduled because of the
reasons
submitted above. Should the Company want to continue with
the hearings, this can only be done after their strike has been
resolved
and not during the strike. Take further note that our
letter dated the 26
th
March 1998 still has
relevance.
”
[14] The
respondent sent a further letter to the shop-stewards urging them,
to reconsider their attitude and attend the disciplinary
enquiry.
When they failed to do so the respondent postponed the enquiry to
14h30 on 31 March 1998 and advised the appellants accordingly.
On
that day the enquiry continued under the chairmanship of a certain
Healy in the absence of all the strikers and their shop-stewards.
That enquiry was concluded on 1 April 1998. Healy handed down his
verdict on 2 April 1998. Fifty six Gowie and seven Crown employees
were found guilty on the three charges set out in the notice. The
seven Crown employees were found to have been present at Gowie
on
the 27
th
and to have participated in “
the refusal to
immediately comply with the interdict once served, and also to have
been party to subsequent interference and obstruction
” at
Gowie. The rest of the Crown employees were only found guilty on
the charge regarding the obstruction of entrances on 26
March 1998.
Healy must have based this finding on evidence given by Graham
Wackrill, the respondent’s deputy managing director,
that after he
served the interdict at Crown on his return from Gowie, the strikers
obeyed it and ceased the blockade.
[15] In
relation to sanction Healy was of the view that the misconduct of
the Crown strikers, on the one charge they were found
guilty of, was
less serious than that of the Gowie strikers. He therefore
recommended that they receive final written warnings.
He was of the
view that the conduct of the Gowie strikers was ongoing and
purposeful, and given that they had been found guilty
on three
charges, he recommended that they, and the seven Crown employees who
were with them, be summarily dismissed.
[16] On 1 April 1998 the respondent issued further notices to attend
disciplinary enquiries on 7, 8 and 9 April respectively to
B Lawson,
D Lewis and M Tlabiyane all from Crown. They were charged with the
obstruction and partial obstruction charges set out
in the initial
notice as well as further charges relating to individual misconduct.
The additional charges against Lawson and Tlabiyane
respectively
were:
“
3. Intimidation in that at approximately 16h00 on the 27
th
March 1998 you threw a stone at Elizabeth Ngwenya which narrowly
missed her. You also shouted to Moses Tlabiyane, who had a firearm
to ‘Shoot the bitches, Shoot the scabs’. He then fired shots
into the air
. “
and
“
3. Intimidation in that at approximately 16h00 on the 27
th
March 1998 you fired shots into the air after B Lawson had shouted
at you to ‘Shoot the bitches, Shoot the scabs’.
”

The people being referred to were Elizabeth Ngwenya and
Patience Nyakane
.”
The
additional charge against Lewis was:
“
3. Intimidation in that at approximately 14h00 on the 26
th
March 1998 you threw a rock at Carl Bergover which hit him on the
left thigh.
”
[17] On 6
April 1998 the respondent gave notice to four other Crown employees
charging them with participating in an assault on
a non-striking
employee. Their resultant dismissal was conceded to be fair, in the
Court
a quo
, and nothing more will be said about their
dismissal.
[18] Healy
chaired the enquiries held against Lawson, Tlabiyane and Lewis who
also failed to attend the enquiries. Lawson and
Lewis were found
guilty of all three charges. Tlabiyane was found guilty of charges
1 and 3. Healy recommended that all of them
be summarily dismissed.
All of Healy’s recommendations of dismissal were given effect to
by the respondent.
[19] It is
not in dispute that four Crown employees, Mokhethi, Ncube, Malepa
and Lebakeng were present at the Gowie main entrance
after the
interdict was served on the strikers on the 27
th
. It is
also not in dispute that they were not dismissed.
[20] The
Court
a quo
found that on the probabilities the respondent
had established that the collective activity of the striking Crown
employees could
legitimately be differentiated to that of the Gowie
striking employees. In this regard the court said:
“
In the result, and save for the actions of certain of the
Crown employees who travelled to Gowie after the order had been
served
there, I accept as having been established on the
probabilities, that the collective activity of the striking Crown
employees may
legitimately be differentiated, in the context of the
degree and extent of their misconduct, from that of those at Gowie.
”
[21] The
Court
a quo
further concluded that the appellants’
allegation of unfair selective dismissal had not been established by
them. In this regard
the Court stated:
“
I am also prepared to accept as entirely credible the
Respondent’s submission regarding the fact that certain Crown
employees
who joined the Gowie strikers were not subjected to
disciplinary action whilst others were, that this was because those
not charged
could not be positively identified in the video
recording. For those reasons, I conclude that the allegation of
unfair selective
dismissal has not been established by the
Applicants.
”
[22] The
Court
a quo
also found that the dismissals of Lawson and
Tlabiyane were substantively justified. With regard to Lewis the
Court
a quo
found that whilst the incident of individual
misconduct proffered against her, might not on its own, have
justified the extreme
sanction of dismissal, her dismissal was also
substantively justified because she had also been found guilty of
association with
and participation in the unlawful blockade of the
respondent’s Gowie premises on the 27
th
.
[23] Mr Van der Riet, appellants’ counsel, submitted that the
differentiation between Gowie and Crown cannot be justified on
the
evidence. He submitted that, had all the strikers at both premises
been dismissed for their conduct on the 26
th
and 27
th
,
the appellants would not have pursued the matter. In this regard
counsel conceded that it was not acceptable to obstruct and
interfere with an employer’s normal business activities. He
submitted that on the facts of this case employees at both premises
were guilty of totally blockading the respondent’s entrances on
the 26
th
but not on the 27
th
. Counsel
submitted that on this factual basis the respondent had to justify
the dismissal of the Gowie and not the Crown strikers
for the events
of the 27
th
. He further submitted that the respondent
had perpetrated an unfair selective dismissal when one considered
the situation of the
four Crown employees who, he submitted, clearly
associated themselves with the conduct of the Gowie strikers and
some Crown employees
after the service of the interdict, but were
not dismissed whilst others were.
[24]
Regarding Lawson, Lewis and Thlabiyane, Mr Van der Riet submitted
that their dismissals could also not be justified. He submitted
that the Court
a quo
provided no basis for its finding that
these dismissals were justified and that no reliance could be placed
on the respondent’s
witnesses in this regard. Regarding Lawson he
submitted that the alleged victim of the stone throwing incident,
Elizabeth Ngwenya,
did not testify and that Patience Nyakane, the
person who testified about it, never mentioned the incident in her
evidence in
chief.
[25] Mr Pretorius, counsel for the respondent, submitted that the
Court
a quo
was correct in upholding the dismissals. He
submitted that it was inappropriate to simply ignore the events of
the 26
th
as the individual appellants were charged with
the events of that day as well. He submitted that the simple fact
of the matter
regarding the events of the 27
th
after the
service of the interdict, is that the Gowie strikers did not comply
whilst the Crown strikers did. Counsel submitted
that the question
before the Court
a quo
was whether there was a fair reason to
dismiss the Gowie strikers i.e. looking at all the evidence of the
events of the 26
th
and 27
th
. He submitted
that no basis had been laid by the appellants for the proposition
that the respondent deliberately and consciously
embarked on a
process aimed at dismissing the Gowie and not the Crown strikers.
[26] Mr
Pretorius relied largely on an unreported judgment in
Imperial
Car Rental (Pty) Ltd (Jet Park) v Transport and General Workers
Union and Others
(LAC) Transvaal Division case no: NH11/2/22436.
In that case employees who had embarked on a strike, barricaded the
gates to the
employer’s premises and remained inside the premises
singing and toyi-toying. The employer dismissed them after three
hours
when they failed to remove the barricades. The Court in that
case held that, while the strike was in progress, the employer was
also entitled to continue conducting its business. The Court held
that by barricading the employer’s premises, the strikers had
committed misconduct of a serious nature.
[27] It is correct that the mass dismissal of Gowie and some Crown
strikers was on the basis that, in addition to other misconduct,
they defied the interdict served on them in the morning of 27 March
1998. The Court
a quo
specifically found that the collective
activities of the Crown strikers could be legitimately
differentiated, when one considered
the degree and extent of their
misconduct, from that of those at Gowie. The Crown strikers, save
those who were at Gowie, were
not dismissed since the respondent
contended that they complied with the interdict after it was served
on them.
[28]
Wackrill gave contradictory evidence as to when he served the
interdict on the Crown strikers. He testified at the disciplinary
enquiry that the Crown strikers continued with the blockade on the
27
th
until after he had returned to Crown from Gowie
later that morning and served the interdict on them whereafter they
ceased the
blockade completely. (I interpose to say that that must
have been well after 10h30 that morning) In the Court
a quo
however, he initially testified, in chief, that Eedes, the
respondent’s operations manager had come to Crown to serve the
interdict,
in his absence.
[29] In
cross-examination, however, Wackrill was extensively questioned
about the service of the interdict at Crown. He adopted
the
position that he, and not Eedes, served the interdict at Crown early
in the morning before he left for Gowie. He was, however,
unable to
explain how he had come into possession of a copy of the interdict.
At some stage he thought that he had received it
by telefax. In
re-examination Wackrill testified that his final version on the
service of the interdict at Crown was that he served
the interdict
before he left for Gowie that morning.
[30] The Court
a quo
found that the dispute about the service
of the interdict at Crown did not merit detailed analysis as the
respondent’s evidence
was emphatic that it was served at Crown and
that, on becoming aware of the interdict, the strikers complied with
it by ceasing
the blockade completely. On a reading of the Court
a
quo’s
judgment on this aspect it is not clear on what basis
the Court
a quo
found that the respondent’s evidence was
emphatic that the interdict was served at Crown. The Court
a quo
did not deal with the contradictions between Wackrill’s version
before the disciplinary enquiry that he served the interdict
after
he returned from Gowie, and that in court that he served it early in
the morning before he left for Gowie as well as his
general
uncertainty about what actually transpired.
[31] I
can find no basis on which Wackrill’s testimony can be relied upon
about the service of the interdict at Crown. Eedes,
placed Wackrill
at Gowie from early in the morning until after 10h30 on the 27
th
.
Wackrill’s testimony about compliance with the interdict is based
on his observation of a “
couple of minutes
”, before he
left for Gowie. He testified that, when he left Gowie “shortly
after lunch” he went to the airport where he
took a flight to
Durban. (This, incidentally, renders his version in the disciplinary
enquiry incredible.) He conceded that he
was not aware of what
transpired at Crown after he left for Gowie. No one else testified
for the respondent about that situation.
It is also not correct,
as found by the Court
a quo
, that Wackrill’s version was
not seriously challenged. He was challenged in cross-examination
about the incredible nature of
his versions and the version of
Lawson, in particular, was put to him.
 
Wackrill’s version is, in any event, displaced by Lawson’s
testimony dealt with hereinafter, that no service took place.
[32] If
anything Lawson’s testimony about the situation at Crown is, to my
mind definitive. She testified that before she left
Crown for Gowie
that morning there had been no service of the interdict. She
specifically denied that Wackrill had served it.
She also testified
that on her return to Crown later that morning she addressed the
Crown strikers and informed them about the
interdict, and that the
information did not have any effect on their conduct. She testified
that they continued singing and dancing
and she actually saw them,
at about lunch time prevent a certain Cornell Thompson from leaving
the premises. No rebuttal evidence,
on this aspect in particular,
was adduced by the respondent.
[33] Lawson’s testimony points to no service of the interdict at
Crown having taken place. It further points to the Crown strikers
reacting in similar fashion to the interdict, after they were
informed of it, as did the Gowie strikers. In fact if she is to be
believed on this aspect, and I can see no reason why not, the Crown
strikers at least, in one instance, prevented a non-striker
from
leaving the premises well after they became aware of the interdict.
Lawson’s testimony contradicts Wackrill’s version
given in the
Court
a quo
that he served the interdict on the Crown
strikers before he left for Gowie on the morning of the 27
th
.
Incidentally, this version also contradicts Wackrill’s version
given at the disciplinary enquiry that he served the interdict
on
the Crown strikers after he returned from Gowie that morning.
There is further the issue of a sheriff’s return in the record
suggesting that the sheriff served the interdict at Crown at 08h30.
No reliance appears to have been placed on such return in the
Court
a quo. Even, however, if such service occurred, Lawson’s evidence
is clear that the strikers at Crown thereafter acted
in defiance of
the interdict.
[34]
Clearly, in my view, the finding by the Court
a quo
that “
the
collective activity of the striking Crown employees may legitimately
be differentiated, in the context of the degree and extent
of their
misconduct, from that of those at Gowie
”, is not supported by
the evidence in this case. There is simply no factual foundation on
which any differentiation can be based.
The absence of a basis on
which to differentiate therefore placed the strikers at both
premises on the same footing and similar
treatment was required
under the circumstances.
[35] Our law
requires that employees who have committed similar misconduct should
not be treated differentially. In
National Union of Metalworkers
of SA v Haggie Rand Ltd
(1991) 12 ILJ 1022 (LAC) Goldstein J had
occasion to consider the fairness of an offer of re-employment with
loss of allowances
linked to length of service. The learned judge
reasoned, in that case, at 1029G-H that the offer of re-employment
was unfair because
its acceptance would have resulted in employees
losing allowances that depended on length of service. This, the
learned judge found,
would mean that employees were being unequally
punished.
[36] This
principle, also referred to as the “
parity principle
”,
was aptly enunciated in
National Union of Metalworkers of SA &
Others v Henred Fruehauf Trailers (Pty) Ltd
(1994) 15 ILJ 1257
(A) where the Court stated at 1264A - D:
“
Equity requires that the
courts should have regard to the so-called ‘parity principle’.
This has been described as the basic
tenet of fairness which
requires that like cases should be treated alike (see Brassey ‘The
Dismissal of Strikers’ (1990) 12
ILJ 213 at 229-230). So it has
been held by the English Court of Appeal that the word ‘equity’
as used in the United Kingdom
statute dealing with the fairness of
dismissals, ‘comprehends the concept that the employees who behave
in much the same way
should have meted out to them much the same
punishment’
(Post Office v Fennell
(1981) IRLR 221
at 223
).
The parity principle has been applied in numerous judgments in the
Industrial Court and the L A C in which it has been held for
example
that an unjustified selective dismissal constitutes an unfair labour
practice.
”
[37]
In
Post Office v Fennel
[1981] IRLR 221
223 (referred
to in
Henred Fruehauf
) the following was said:
“
It seems to me the expression ‘equity’ as there used
comprehends the concept that employees who misbehave in much the
same way
should have meted out to them much the same punishment, and
it seems to me that an Industrial Tribunal is entitled to say that,
where that is not done, and one man is penalised much more heavily
than others who have committed similar offences in the past,
the
employer has not acted reasonably in treating whatever the offence
is as a sufficient reason for dismissal
.”
[38]
Cape Town City Council v Masitho and Others
(2000)
21 ILJ 1957 (LAC)this Court was confronted with a case where an
employer had dismissed some employees but issued a warning
to
another employee who was involved in the same disciplinary
infraction. The Court (per Nugent AJA) stated at 1961 A
“...
in the absence of material distinguishing features equity
would generally demand parity treatment
”
and further at D -
F
“
Fairness, of course, is a value judgment, to be
determined in the circumstances of the particular case, and for that
reason there
is necessarily room for flexibility, but were two
employees have committed the same wrong, and there is nothing else
to distinguish
them, I can see no reason why they ought not
generally to be dealt with in the same way …. Without that,
employees will inevitably,
and in my view justifiably, consider
themselves to be aggrieved in consequence of at least a perception
of bias
.”
[39] The principle as enunciated in the cases above applies with
equal force to the unfair selective dismissal claim advanced
by the
appellants. Furthermore at the disciplinary enquiry Wackrill
himself stated that Mokhethi was one of those “who disobeyed
the
interdict of the 27
th
“. Yet Mokhethi was not
dismissed.
[40] Whilst
no bias can be imputed to the respondent for failing to dismiss the
four Crown employees and in particular Mokhethi,
the fact of the
matter is that they were in no different position to that of the
other Crown employees present in the blockade
at Gowie who were
dismissed. The respondent’s contention that they were not selected
because they did not form part of the so-called
second circle from
which employees were identified for discipline and the Court
a
quo’s
conclusion based thereon, is not supported by the
evidence. The four employees are clearly visible on video, actively
associating
themselves with the conduct of everyone else there.
Wackrill, in fact confirmed this fact at least in regard of
Mokhethi, to Healy
during the disciplinary enquiry.
[41] It
appears justified therefore to conclude that without a factual
basis, or any other basis for that matter, by differentiating
between the Gowie strikers on the one hand and the Crown strikers on
the other, the respondent acted unfairly in dismissing the
Gowie
strikers. The same goes for the respondents’ dismissal of some
Crown employees and not others who were engaged in similar
conduct
at Gowie. It must be mentioned that reliance on the Imperial Car
Rental case does not advance the respondents’ cause
in view of the
absence of a basis on which to legitimately differentiate between
the Gowie and the Crown employees present at Gowie
on the 27
th
. This is clearly a situation where the respondent was enjoined to
have acted consistently. Furthermore the respondent’s conduct,
of
selecting some Crown employees for dismissal can be viewed as
having been arbitrary to say the least. The unfairness in the
disparity in treatment lies in the inconsistency thereof. In
Saccawu and Others v Irvin and Johnson
[1999] 8 BLLR 741
(LAC) (referred to by Nugent AJA in
Cape Town City v Masitho &
Others
) this Court reiterated that consistency is an element of
disciplinary fairness.
[42]
I must also mention that on a conspectus of all evidence regarding
the events of the 26
th
and 27
th
it is clear
that differential treatment between the conduct of the strikers at
Gowie and Crown was misguided. The evidence from
the respondent’s
witnesses demonstrates quite clearly that the conduct of the Crown
strikers, on the 26
th
in particular, was of a more
violent nature. In this regard it is so that almost all the reports
of intimidation, eviction of
non-strikers, violence and assaults on
non-strikers emanated from Crown. It is due to this fact that all
employees charged with
individual acts of misconduct including the
four employees dismissed for a violent assault on a non - striker,
came from Crown
and not from Gowie. In the circumstances the
conclusion must be that the dismissal of the Gawie and seven Crown
strikers was substantively
unfair.
[43] It remains to consider the substantive fairness of the
dismissal of the three Crown employees for specific acts of
misconduct.
Lewis was found guilty on three charges. The first two
charges were the same charges on which the Gowie strikers were also
found
guilty. The third charge on which she was found guilty related
to an alleged stone-throwing incident involving a certain Carl
Bergover.
Regarding this charge the Court
a quo
found that
the stone-throwing incident, on its own, did not justify the extreme
sanction of dismissal. The Court
a quo
was correct in this
regard as the conduct complained of was not serious enough to
warrant dismissal. It is clear that Bergover
suffered no more than a
measure of discomfort. Clearly therefore, because of the view I take
of the dismissals, the dismissal of
Lewis cannot be sustained.
[44] Lawson
and Tlabiyane were also dismissed because of the events of the 26
th
and 27
th
. Lawson was furthermore charged with
intimidation in that she threw a stone at Elizabeth Ngwenya, a
non-striker. It was also
alleged that she shouted at Tlabiyane, who
had a firearm, to “
shoot the bitches
shoot the
scabs”.
Tlabiyane is alleged to have responded by firing shots in the
air. The third charge against Tlabiyane related to this shooting

incident.
[45] I am of the view that the Court
a quo
properly gave
consideration to all the evidence relating to Lawson and Tlabiyane
in concluding that on the probabilities they had
behaved in an
unbecoming manner, particularly Lawson as a shop-steward.
Significantly, both Lawson and Tlabiyane admitted that
during the
blockade at Crown a shot was fired in the air. On a conspectus of
all the evidence and also considering that the appellants’
challenge to the respondent’s witnesses was based on a quest to
establish contradictions and improbabilities, their dismissals
were
substantively fair. After all, violence even during a strike is
abhorrent and completely unacceptable and should not be

countenanced.
[46] In view
of the aforegoing I would uphold the appeal regarding the dismissal
of the Gowie employees, the seven Crown employees
and Lewis. I
would dismiss the appeals by Lawson and Tlabiyane.
[47] Inow
deal with the issues of two employees, Mchunu and Xulu, in respect
of which very little argument was advanced to us
during the hearing
of the appeal. Immediately prior to the termination of the trial
the Court a quo was referred to exhibit “D”,
which was handed in
by agreement between the parties, and asked to rule “whether or
not (Mchunu and Xulu) are properly applicants
... whether or not
they are included”. I understand this request to mean that the
Court a quo was required to determine whether
Mchunu and Xulu ought
to be granted the relief sought by the other employees who were
properly before it.
[48] It is common
cause that both these employees were advised on 3 September 2000
(when the adjudication in the Court a quo started
) that their names
did not appear on the list of individual applicants. No mention of
Mchunu or Xulu is made in the Court a quo’s
judgment, and the
learned judge appears to have overlooked them.
[49] Xulu’s case can be disposed of briefly.
It appears from annexure “D” that his dispute with the
respondent had nothing
or little to do with the issues before the
Court a quo and now before us. Furthermore, there are disputes of
fact regarding his
case which cannot be resolved on the limited
information before us. Accordingly this Court cannot assist him.
[50]
However, Mchunu’s situation appears to involve an issue we can
consider. He worked at Gowie and was on strike on 27
th
March
1998. He was away from work from the 28
th
until 7 April
1998. Upon his return he learnt of the dismissals of the strikers
and regarded himself as having been similarly dismissed.
Though his
name was never before Healy, the respondent also treated him as
having been dismissed by demanding that he return all
company
property in his possession and also by handing him his UIF card and
a cheque for R600.
[51] Mchunu, with fifteen others appealed against
their dismissals. The appeals were considered and dismissed. I can
only surmise
that Mchunu was treated like all other Gowie strikers;
hence the consideration of his appeal. When he left on 28 March and
returned
on 7 April 1998 the strike had not been called off. It
appears justified therefore to conclude that the omission of
Mchunu’s
name from the list of individual applicants was
inadvertent and that for all intents and purposes his situation is
similar to the
Gowie strikers who were dismissed. He should
therefore be treated as one of the individual appellants before us.
THE
CROSS-APPEAL
[52] The
Court
a quo
held that the dismissal of the individual
appellants was procedurally unfair. This conclusion was based on the
Court’s reasoning
that the action by the respondent to institute
disciplinary action during the strike was not based on any valid
reason. The Court
opined that there was no valid reason why the
respondent could not wait until after the strike.
[53] The
purpose of a protected strike is to enable employees to engage in a
form of power play with the employer with a view to
influencing the
employer into offering better conditions of employment. What this
entails in practice is that employees are entitled
to withdraw their
labour and are also entitled to engage in pickets in furtherance of
their strike action. What is also clear however
is that the right to
engage in a protected strike is not a licence to engage in
misconduct.
[54] An
employer has the right to institute disciplinary action at any time
against employees engaging in misconduct particularly
of a criminal
nature as was the situation in this case. At the end of the day
employees engaging in protected strike action need
to know that they
may only engage in legitimate activities intended to advance the
course of their protected strike. Fairness
also demands that an
employer should not wait for a strike to end to institute
disciplinary action for strike-related misconduct.
By its nature
illegitimate strike-related misconduct if unchecked, affords
strikers an unwarranted advantage. Due to the illegitimacy
of the
misconduct it cannot be expected of an employer to tolerate it
indefinitely.
[55] The right to be
afforded a fair hearing before one’s dismissal is indeed an
integral part of our law. This right is explicitly
recognised by
the Act and has been restated in numerous decisions of this Court.
However once an employer institutes disciplinary
action and gives
the affected employee notice thereof, it is open to the employee to
attend or refuse to attend the enquiry. Should
the employee refuse
to attend the enquiry such employee must be prepared to accept the
consequences thereof, one of which is that
the enquiry will proceed
in his absence and adverse findings may be made. Of course, if
employees choose to do so, they are free
to send representatives to
the inquiry who may do what is necessary to advance the case of the
employees including the cross- examination
of witnesses.
Furthermore, employees may also make written representations to the
person presiding at the inquiry. Employees may
in practice choose to
absent themselves from an enquiry when it would be disruptive to
the strike for them to attend it in person.
We were not referred to
any provision of the Act which either expressly or by necessary
implication is to the effect that an employer
may not convene a
disciplinary inquiry against an employee taking part in a protected
strike while such strike is in progress.
In fact there is, as far as
I am aware, no such provision in the Act. On the contrary, there are
provisions in sec 67 which were
clearly designed to confer
protection on a strike that complies with the Act as well as on non
– criminal conduct that is resorted
to in contemplation of or in
furtherance of a protected strike. If the Act sought to grant
employees taking part in a protected
strike temporary immunity from
disciplinary action or disciplinary inquiries while during the
progress of a protected strike, it
would in my view have said so.
[56] Clearly
therefore the respondent, in view of its allegations that the
strikers were engaged in misconduct, was entitled to
institute
disciplinary enquiries against the perpetrators during this strike.
It appears justifiable therefore to conclude that
the Court
a quo
misdirected itself when it found that it was procedurally unfair for
the respondent to institute the disciplinary enquiry during
the
strike.
RELIEF
[57] It remains to consider the relief, if any, to be awarded to the
individual appellants in view of the substantive unfairness
of their
dismissal. Section 193(1) of the Act provides that where a
dismissal is found to be unfair reinstatement or re-employment
may
be ordered from any date, not earlier than the date of dismissal, or
compensation. This section in my view provides that where
reinstatement or re-employment is to be ordered a discretion must be
exercised regarding the extent thereof. Section 193(2) provides
that where a dismissal is found to be unfair substantively,
reinstatement or re-employment must be ordered unless this is not

desired or is not feasible and where the dismissal is unfair
procedurally.
[58] The
dismissal of the individual appellants
in casu
has been found
to have been unfair substantively and they desire reinstatement. No
facts have been placed before us, nor before
the Court
a quo
,
regarding the inappropriateness of a reinstatement or re-employment
order. The substantive unfairness of the dismissal of the
individual
appellants lies in the inconsistent conduct of the respondent in
differentiating between the misconduct of the Gowie
and Crown
strikers. It appears justified in the circumstances of this case, to
grant reinstatement. Mr Van der Riet submitted that
should this
Court decide to grant reinstatement such reinstatement should be
with effect from the date of the order of the Court
a quo. There is
no reason not to accede to this request. As to costs it appears to
me that in all the circumstances of this case
it would not be
appropriate to award the appellants any costs on appeal.
[59] I would
therefore, under the circumstances, make the following order:
1. The appeal succeeds;
2. The cross
appeal succeeds.
3. The order of the Labour Court is set aside and is replaced with
the following:
“
1. The dismissal of the second to further applicants
including Mchunu and save for B Lawson and M Tlabiyane, is found to
be substantively
unfair but procedurally fair.
2. The second to further applicants including Mchunu, save for B
Lawson and M Tlabiyane, are reinstated from the date of this order.
3. There is no order as to costs.
”
4. There is no order as to the costs of the appeal, or the
cross-appeal.
_______________________
D MLAMBO
ACTING
JUDGE OF APPEAL
I agree.
_______________________
RMM
Zondo
Judge President
I agree.
_______________________
EL GOLDSTEIN
ACTING
JUDGE OF APPEAL
Appearances:
For the
Appellant: Adv J.G. Van der Riet SC
Instructed
by: Cheadle Thompson & Hayson
For the
Respondent: Adv P.J. Pretorius SC
Instructed
by: Petersen Hertog & Associates
Date of
Judgment: 19 December 2003
1
Section
191(6) provided at the relevant time: “Despite subsection (5)(a),
the director must refer the dispute to the Labour Court,
if the
director decides, on application by any party to the dispute, that
to be appropriate after considering -
(a) the reason for dismissal;
(b)whether there are questions of law raised by the
dispute;
(c) the
complexity of the dispute;
(d)
whether there are conflicting arbitration awards that need to be
resolved;
(e) the public interest.”