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[2016] ZALAC 28
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Mndebele and Others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant) (JA57/12) [2016] ZALAC 28; (2016) 37 ILJ 2610 (LAC) (14 June 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case no: JA57/12
DATE: 14 JUNE 2016
Reportable/Not Reportable
In the matter between:-
JACKSON
MNDEBELE &
OTHERS
...................................................
First
to Fifty-One Appellants
TOGETHERNESS
AMALGAMATED WORKERS
UNION
OF SOUTH AFRICA OBO
MNDEBELE AND
OTHERS
........................................
Fifty-two
to one hundred and Six Appellants
And
XSTRATA
SOUTH AFRICA (PTY) LTD T/A
XSTRATA
ALLOYS (RUSTENBURG
PLANT)
................................................................
Respondent
Heard: 16 February 2016
Delivered: 14 June 2016
Summary:
Condonation for the late filing of the record and reinstatement of
the appeal – employees dismissed for participating
in an
unprotected strike seeking condonation and reinstatement of the
appeal some three years after leave to appeal was granted
–
court limiting its discretion in whether to grant condonation to the
prospects of success- evidence pointing on the fact
that employees
refused to attend the wellness function which is tantamount to
refusing to work – employer’s warning
to employees and
the consequences of their action amounting to ultimatum –
employer affording employee an opportunity to
participate in the
afternoon session - employees had sufficient time and opportunity to
consider their stance and to modify their
conduct – Labour
Court correctly found that strike unlawful and dismissal fair –
employees having no prospects of success
– condonation for the
late filing of the record of appeal and reinstatement of the appeal
dismissed with costs.
Coram: Waglay JP, Ndlovu JA et Murphy AJA
JUDGMENT
MURPHY AJA
[1]
This is an appeal against the judgment (excluding the order as to
costs) of the Labour Court (LaGrange J) handed down on 27
August 2012
dismissing the appellants’ claim for unfair dismissal arising
from their participation in industrial action.
The appellants fall
into two groups: the first group (1
st
to 51
st
appellants) are those who were not represented by a trade union;
whilst the second group (52
nd
to 106
th
appellants) were those represented by the Togetherness Amalgamated
Workers Union of South Africa (“TAWUSA). The appeal is
with
leave of the court
a
quo
granted on 5
October 2012.
[2] The appellants seek condonation for the late filing
of the record of appeal and reinstatement of the appeal. Rule 5(8) of
the
rules of the Labour Appeal Court provides:
‘
The
record must be delivered within 60 days of the date of the order
granting leave to appeal, unless the appeal is noted after
a
successful petition for leave to appeal, in which case the record
must be delivered within the period fixed by the court under
rule
4(9)’.
Rule 5(17) provides:
‘
If
the appellant fails to lodge the record within the prescribed period,
the appellant will be deemed to have withdrawn the appeal,
unless the
appellant has within that period applied to the respondent or the
respondent's representative for consent to an extension
of time and
consent has been given. If consent is refused the appellant may,
after delivery to the respondent of the notice of
motion supported by
affidavit, apply to the Judge President in chambers for an extension
of time. The application must be accompanied
by proof of service on
all other parties. Any party wishing to oppose the grant of an
extension of time may deliver an answering
affidavit within 10 days
of service on such party of a copy of the application’.
[3]
The appellants did not apply, during the 60 day period, to the
respondent for consent to an extension of time to deliver the
appeal
record. Accordingly, they were required to deliver an application to
the Judge President applying for an extension of time.
They did not
do so. The appeal was therefore deemed to have been withdrawn. Almost
three years after being granted leave to appeal,
the 1
st
to 51
st
appellants delivered a condonation application
together with the appeal record on 2 June 2015, and the 52
nd
to 106
th
appellants delivered their condonation
application on 2 July 2015. They seek condonation and reinstatement
of the appeal.
[4] The discretion of this Court to
grant condonation is a wide one and in considering whether good cause
had been shown, it will
take into account such factors as the length
of the delay, the explanation for the delay, the prospects of success
in the main
application and possible prejudice to the parties.
[1]
The application for condonation must
be brought as soon as the party becomes aware of the default.
[2]
In
Melane
v Santam Insurance Co Ltd,
[3]
the court restated the principles as
follows:
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, but that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus of all
the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success that are
not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent's
interest in
finality must not be overlooked.’
[5]
The nature of this case requires examination of the prospects of
success first. If there are no prospects of success, there
will be no
point in granting condonation and the appeal must fail.
[6]
The appellants were employed by the respondent in various positions
at its smeltering business. During the period 11 December
2008 and 17
January 2009, the respondent shut down all six of its furnaces and
ceased all manufacturing activities at its Rustenburg
plant. Its
decision to reduce production and shut down the furnaces arose from a
slump in steel demand following the world economic
crisis in late
2008. The employees were required to take their annual leave during
the period in which the respondent's operations
had ceased
completely. On 18 January 2009, the respondent re-opened the plant
but did not resume manufacturing activities. Until
such time as full
operations resumed at the plant, the employees were required to
attend training sessions. The respondent's mine
manager convened a
mass meeting at the plant on 18 January 2009 to inform employees on
the state of affairs, planned operations
and to address concerns of
possible retrenchments. He made it clear to all employees that the
plant would not engage in manufacturing
until such time as operations
resumed. The employees were obliged to report for work and attend
scheduled training at the plant
daily until manufacturing operations
resumed.
[7]
The respondent prepared and circulated a training schedule for each
department at the plant for the period January 2009 to July
2009. The
employees worked day shift and were remunerated for a normal day
shift from 07h00 to 16h30 on Monday to Thursday and
from 07H00 to
14h00 on Friday. They were not required to work any overtime or night
shift and accordingly did not qualify for overtime
pay or night shift
allowance. They were ordinarily expected to continue working in their
assigned departments. Some were however
requested to assist in the
performance of certain designated duties in other departments.
[8]
On 26 February 2009, a meeting took place in the office of Ms Fatima
Suliman, the respondent's human resources manager, to discuss
queries
raised by employees of the production department. The meeting was
attended by Suliman, two employees from the production
department,
Mr. Paul Bubisi and Mr. Danny Boy Phetwe, a shop steward from the
National Union of Metalworkers of South Africa ("NUMSA"),
Mr. Wilson Tshakane, and the respondent's production manager, Mr.
Emmanuel Lungi Dzanibe. At the meeting, the employee representatives
raised concerns about annual leave, overtime pay, night shift
allowances and remuneration. The issues regarding annual leave,
overtime pay and night shift allowances were resolved at the meeting.
However the issue regarding remuneration was not, because
certain
production employees had individual pay queries. At the conclusion of
the meeting, the respondent's representatives requested
the employee
representatives to have a meeting with those aggrieved employees in
the production department and thereafter to prepare
a list
(specifically identifying the names of the employees with their
corresponding individual pay queries) so that the respondent
could
deal with these issues. The list was not delivered prior to the
industrial action.
[9]
The respondent launched a national wellness campaign at all its sites
on different dates. Certain employees were chosen as wellness
champions. The wellness champions were responsible for training the
rest of the employees at the wellness launch at the plant.
During
February 2009, the wellness champions underwent training for the
wellness launch on topics such as the type of medical testing
that
would occur, what each medical test would entail and how the medical
tests would be conducted. All the employees at the plant
were
informed in advance to attend the compulsory wellness launch
scheduled for 3 March 2009 at the administration building. The
launch
was intended to comprise two sessions: the first session from 07h30
to 11h30 was designated for employees working in furnaces
1 to 4. The
second session was scheduled from 12H00 to 16H00 and was designated
for employees working in furnaces 5 and 6.
[10]
On 3 March 2009, during the early morning "toolbox meeting",
the co-ordinators of the production department reminded
the
production employees present at the meeting to attend the wellness
launch. The employees indicated their intention not to attend
the
first session. Immediately prior to 07h30, as the first session of
the wellness launch was due to start, a group of employees
gathered
on the grass area outside the tent where the wellness launch was
being held, and prevented other employees from attending
the wellness
launch. The production manager, Dzanibe, and the production
superintendent, Mr. Bheki Hlatswayo, were already at the
wellness
launch waiting for the production employees to arrive. Hlatswayo and
Dzanibe approached the production employees at the
administration
building gate to convince them to attend the wellness launch. Later,
Mr. Riaan Cilliers also approached the employees
in an effort to get
them to attend the wellness launch. The employees refused and
informed Cilliers, Dzanibe and Hlatshwayo that
they were not
interested in attending unless the respondent resolved their pay
issues. Cilliers informed the production employees
that attendance of
the wellness launch and the outstanding pay issues were unrelated and
that their refusal to attend the wellness
launch constituted
unprotected industrial action for which they would be disciplined.
Cilliers, Dzanibe and Hlatswayo then returned
to the tent for the
first session of the wellness launch. At the end of the first
session, Cilliers requested the NUMSA full time
shop steward to
attempt to persuade the production employees who had not attended to
attend the second session. The production
co-ordinators, Hlatswayo,
Dzanibe, the NUMSA shop stewards and all the production employees
were called to a meeting in the canteen
at about 12h00. In the
meeting, the NUMSA full time shop steward informed the production
employees who had not attended the first
session that they had an
opportunity to attend the second session. The majority of the
relevant employees chose not to do so.
[11]
The next morning, 4 March 2009, Hlatshwayo identified the employees
who did not attend either the first or second sessions
of the
wellness launch by identifying those employees who did not submit a
ticket to access the tent where it took place. The respondent
regarded the refusal to attend the wellness launch as participation
in unprotected industrial action. Accordingly, later that day,
the
respondent issued individual notices to each employee requiring them
to attend a disciplinary hearing to answer to allegations
of
misconduct. The employees refused to sign for receipt of their
individual notices summoning them to the disciplinary hearing.
[12]
The disciplinary hearings were scheduled to take place at the Lost
City boardroom on 6 March 2009 at 07h30. The employees arrived
at the
appointed time but demanded that instead of convening disciplinary
hearings for each employee separately the respondent
should hold all
the disciplinary hearings at the same time in one session. The
respondent thought that would be impractical but
indicated its
willingness to hear 10 employees in one disciplinary hearing at a
time. The employees rejected the respondent's proposal
and became
disruptive. Security was called to
assist in
pacifying
the situation. Thereafter, the respondent addressed
the employees outside the boardroom and informed them that the
disciplinary
hearings would continue on that day. The respondent read
out the names of the employees whose disciplinary hearings would be
held
at 13h45 and 16h00 on 6 March 2009, and indicated that the
remaining disciplinary hearings would be held at 07h30 on 9 March
2009.
The employees' notices to attend the disciplinary hearing were
amended to reflect the new time, and in certain instances, the new
date for their disciplinary hearing. The appellants did not attend
their scheduled disciplinary hearings. Accordingly, the disciplinary
hearings continued in their absence. After the respondent's
representatives presented evidence, the chairperson of the
disciplinary
hearing, Dzanibe, found the employees guilty of
misconduct. Considering that the disciplinary code provided for
dismissal for participation
in unprotected industrial action, and the
fact that the employees had a previous (albeit expired) final written
warning for participation
in unprotected industrial action, the
chairperson imposed the sanction of dismissal. However, later on 9
March 2009, TAWUSA sent
a fax to the respondent informing it that its
members wished to elect 10 representatives to represent the employees
at the disciplinary
hearings. The respondent informed TAWUSA that the
hearings had commenced at 07h30 that day.
[13]
The employees received their notices of dismissal and were informed
of their right to appeal. All of them appealed. TAWUSA
however
requested the respondent to have a single appeal hearing for all the
employees who had been dismissed. The respondent refused
and informed
TAWUSA that it would hear five dismissed employees in one appeal
hearing at a time. TAWUSA did not accept the proposal
and refused to
attend the appeal hearings. Some of the dismissed employees also did
not attend their scheduled appeal hearings.
The appeal chairperson
mostly upheld the disciplinary chairperson's findings of guilt and
the sanction of dismissal. However, the
appeals of some of the
dismissed employees who attended the appeal hearings were successful
and they were re-instated. The aggrieved
employees then referred an
unfair dismissal dispute to the Labour Court.
[14]
In many respects, the facts are common cause. The main points of
dispute relate to the reasons for the employees refusing to
attend
the launch, whether an ultimatum was given and the issues of
procedural fairness.
[15]
The central issues for decision by the Labour Court were whether i)
the appellants’ refusal to attend the launch constituted
a
strike; ii) an appropriate ultimatum was given; iii) dismissal
was the appropriate sanction in the circumstances; and iv)
the
termination of employment was procedurally and substantively unfair.
[16]
In determining whether the conduct of the appellants constituted a
strike, the Labour Court started with the definition of
a “strike”
in section 213 of the Labour Relations Act
[4]
(“the LRA”). It reads:
‘
strike”
means the partial or complete concerted refusal to work, or the
retardation or obstruction of work, by persons who
are or have been
employed by the same employer or by different employers, for the
purpose of remedying a grievance or resolving
a dispute in respect of
any matter of mutual interest between employer and employee, and
every reference to “work”
in this definition includes
overtime work, whether it is voluntary or compulsory…’
[17]
The learned judge
a quo
held that the employees had disobeyed
an instruction from Cilliers to attend the launch as pre-arranged and
which they were obliged
in terms of the contracts of employment to
attend, and that the instruction was both lawful and reasonable.
Their refusal to attend
the wellness launch, he concluded, amounted
to a concerted refusal to work. The Labour Court further rejected as
improbable the
appellants’ version that they had in fact not
refused to carry out their normal work as they had been engaged in
“recovery”
work.
[18] The refusal of the appellants to
attend the launch is undisputed. The respondent's version is that
because operations at the
plant
had ceased from December 2008, the only work for the appellants on 3
March 2009 was to attend the
launch.
Their refusal was thus a concerted refusal to work. The appellants'
witnesses on the other hand testified that they were
performing their
normal duties. In particular, they testified that they were
performing productive recovery work. The appellants
argued that the
court
a quo
erred in not believing their version that they were doing work and
part of that work was hand recovery of metal from slag piles.
All the
respondent’s witnesses explained that slag is produced when
there is spillage during production. This slag goes to
the outside
recovery plant where contractors recover metal from the slag. The
appellants also maintained that the production sheets
produced by the
respondent, which showed that there was no outside recovery or
furnace production for the first quarter of 2009,
were not authentic
and could not be relied upon.
According
to the respondent, there is nothing to suggest that the production
sheets were not authentic. The appellants bore the
onus
to adduce evidence to show that the
production sheets were not authentic or at the very least to put
their authenticity at issue.
The authenticity of the production
sheets was placed in issue for the first time by one of the
appellants’ representatives
in the trial during the
re-examination of one of his witnesses. The evidence led by the
respondent's witnesses and the surrounding
circumstances are
consistent with the respondent's version. Cilliers, Dzanibe, Suliman,
Hlatshwayo and Majombosi all testified
that during January to June
2009, there was no outside recovery at the plant because production
had ceased. Moreover, the appellants
never disputed that outside
recovery work could not have been performed if the furnaces were not
operating and no slag was produced.
Majombosi testified that he is
the co-ordinator of the A-shift and that he never instructed any of
his subordinates to do hand
metal recovery during January to March
2009.
Suliman, Dzanibe,
Cilliers, Hlatshwayo and Majombosi were all consistent in their
testimonies that during January to March 2009,
all production
employees went for scheduled training and did housekeeping functions
which included painting and cleaning under
the direction and
supervision of their co-ordinators. They all stated that employees
cannot work on the plant without supervision.
[19]
The court
a quo
correctly found a number of problems
with the appellants' version, including that it was common cause that
no furnace had operated
since the previous year. It was also common
cause that until production was discontinued at the end of 2008,
outside recovery work
had been performed by contractors. The need for
outside recovery work disappeared once the furnaces were switched
off. The court
a quo
accordingly rejected the appellants' version in this regard,
correctly in my view,
and
was right to prefer that of the respondent as being more probable.
The appellants had no normal recovery duties that day. Their
only
work duty was to attend the launch, which they refused to do.
[20]
The appellants argued that in any event the court
a
quo
erred in
concluding that their refusal to attend the wellness campaign
amounted to a refusal to work. They submitted that the court
a
quo
failed to
appreciate that attending the wellness campaign was not part of their
contractual duties. Their submission is without
merit. There is
no requirement in law that all the
duties of an employee must be expressly set out in his or her
contract of employment. A number
of implied obligations are imposed
on employees in terms of the common law, including the employee's
obligation to obey lawful
and reasonable instructions of the
employer;
[5]
to serve the employer’s interests; to act in good faith;
[6]
and to be subordinate to the employer.
[7]
Employees do not have a vested right
to preserve their working obligations completely unchanged as from
the moment when they first
begin work.
[8]
It is only changes that are so dramatic as to amount to the employee
having to do an entirely different job which give rise to
a right to
refuse to do the job in the required manner.
[9]
The appellants’ refusal to work
was consequently in breach of their
common
law obligations. The court
a
quo
thus correctly
found that the refusal by the appellants to attend the launch
constituted a “refusal to work” and that
their conduct
fell squarely within the meaning of
that term as used in the definition of a strike in section 213 of the
LRA.
[21]
The appellants offered as justification for their refusal to attend
the launch their alleged anxiety that they were to be subjected
to
compulsory HIV testing. The Labour Court rejected this on the
probabilities, giving particular weight to the fact that this
would
have involved a drastic change to its previous policy of voluntary
testing, for no obvious reason and contrary to the prevailing
norm in
the industry and society. The learned judge found furthermore that
none of the appellants asked Cilliers to clarify the
position when he
spoke to them just before the first session began. Moreover, no
testing was planned for or in fact conducted on
the day of the
launch.
[22]
The appellants contend that the court
a quo
erred in
concluding that they made no effort to clarify their alleged
understanding of the wellness campaign. The court
a quo
dealt
with this aspect in some detail, in light of all the evidence that
was led during the trial. Bubisi testified that the employees
wanted
to attend the launch but did not do so because management did not
explain why testing had become compulsory. They claim
they were
informed by Molefe, a wellness champion and HIV activist, at a
meeting on 11 February 2009, that compulsory testing would
take place
at the launch and were waiting for management to explain the matter.
Molefe testified that he told the meeting that
testing was voluntary
but attendance at the launch was compulsory. Although the appellants
had acted as a group, none of them on
the morning of the launch asked
Cilliers to clarify the issue when he came to address them, even
though on their version, they
had been waiting since 11 February 2009
for an answer from senior management. They claimed that the Cilliers
was angry when he
came to speak to them and they were intimidated.
The court
a quo
observed that the fact that the appellants had
acted as a group was difficult to reconcile with their unwillingness
to even voice
the concern that caused them not to go to the launch,
bearing in mind that, on their own version, they had asked Molefe to
call
senior management to explain why testing was compulsory. It is
improbable that the appellants were intimidated by Cilliers' anger
if, at the same time, they were brave enough to disobey his express
instruction directing them to go to the tent to attend the
launch.
The appellants clearly did not take advantage of the available
opportunities to clarify their alleged understanding of
the wellness
campaign, which most likely was a fabrication after the event. The
court
a quo
decided that the probabilities favoured the
respondent’s version that the real reason for the appellants
not attending the
launch was their wish to pursue the pay issues and
force management to address them.
[23]
The appellants disputed the finding of the court
a quo
that
they failed to attend the launch because they wanted management to
address their pay queries. The pay queries could not be
finalised
while management was still waiting for the individual pay queries
list, which the appellants knew they had not furnished.
The employees
knew that management was waiting for the list from them and thus it
was inconceivable that they would strike in relation
to it. These
contentions are not supported by the evidence led during the trial.
Suliman and Dzanibe testified that the meeting
on 26 February 2009
was to discuss overtime, shift allowance, annual leave and individual
employee pay queries. All the issues
except individual pay queries
were resolved and the list in that regard was never furnished.
Dzanibe, Cilliers and Hlatshwayo all
testified that on 3 March 2009,
when employees gathered on the grass and refused to go into the tent
where the wellness launch
was taking place, the employees raised the
issue of the individual pay queries. Both Dzanibe and Hlatshwayo
testified that employees
by the name of Ramodia and Moeng
specifically brought up the pay queries. This evidence was denied by
the appellants' witnesses.
Neither Ramodia nor Moeng were called to
deny this version. Cilliers’ testimony, which was corroborated
by Dzanibe, was that
he told the employees that pay queries and
attending the launch were separate issues and that strike action was
prohibited. He
asked Hlatshwayo to translate what he was saying in
Tswana to the employees. During cross-examination, the appellants'
representatives
disputed that Hlatshwayo could speak Tswana and
translated for Cilliers. Bubisi during his testimony did not dispute
that Hlatshwayo
translated for the employees. Instead, he claimed not
to have seen Hlatshwayo in the crowd when Cilliers was addressing the
employees.
The version that Hlatshwayo was not present in the crowd
was never put to Hlatshwayo in cross-examination.
[24]
The finding of the court
a quo
that the refusal to work was
related to the pay issues was based on the cogent evidence of the
respondent's witnesses supported
by the inherent probabilities and
the implausibility of the appellants’ explanations. Due to the
shutdown of production work
in December 2008, the employees lost a
number of allowances and overtime pay. A special arrangement had been
made to offset additional
annual leave that was granted in the year
2008 against the employees' 2009 annual leave. All of this is
consistent with the respondent's
version that the issues relating to
allowances, overtime and annual leave had been raised on behalf of
the employees and that the
outstanding issues continued to fester.
The appellants refused to attend the launch for the purpose of
remedying their grievance
about the pay issues, with the consequence
that their conduct constituted a strike as defined.
[25]
When he addressed the employees on the morning of the launch,
Cilliers told them that if they did not go to the launch “separation”
would be discussed. Later the employees were given a second chance
and instructed to attend the second session in the afternoon.
At
about 12h00, Suliman addressed a letter to the union representing
some of the employees informing it that its members had embarked
on
unprotected industrial action and urging it to convey the possible
consequences to them. While accepting that this conduct on
behalf of
the respondent did not amount to “an ultimatum in the
conventional sense”, the learned judge
a quo
held that
the employees had sufficient time to re-consider their position
between Cilliers speaking to them in the morning and
the afternoon
session of the launch. He held furthermore that the meaning of
Cilliers’ statement was clear.
[26]
The appellants contended that no
proper
ultimatum
was
given and that the vague language to
the effect that separation would be discussed does not meet the
requirements for an ultimatum.
Item
6(2) of the Code of Good Practice: Dismissal in Schedule 8 of the LRA
states:
‘
Prior
to dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of action
it
intends to adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of
the employees
and what sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient
time to reflect
on the ultimatum and respond to it, either by complying with it or
rejecting it. If the employer cannot reasonably
be expected to extend
these steps to the employees in question, the employer may dispense
with them.’
[27]
The Code does not suggest how the ultimatum should be distributed, or
require that it must be in writing. Furthermore, it
states that the issuing of an
ultimatum is not an invariable requirement. The purpose of an
ultimatum is not to elicit any information
or explanations from the
employees but to give them
an
opportunity to reflect on their conduct, digest issues and, if need
be, seek advice before making the decision whether to heed
the
ultimatum or not.
[10]
The ultimatum must be issued with the sole purpose of enticing the
employees to return to work,
[11]
and should in clear terms warn the employees of the folly of their
conduct and that should they not desist from their conduct they
face
dismissal.
[12]
Because an ultimatum is akin to a final warning, the purpose of which
is to provide for a cooling-off period before a final decision
to
dismiss is taken, the
audi
rule must be
observed both before an ultimatum is issued and after it has
expired.
[13]
In each instance, the hearing may be collective in nature and need
not be formal.
[28]
The court
a quo
correctly stated that an ultimatum in the conventional sense was not
issued in this case, nevertheless, it was not suggested by
the
appellants' witnesses that they did not understand what Cilliers
meant when he told them that if they did not attend the launch
then
"separation"
would be discussed.
The peculiar circumstances in this case reveal that the opportunity
to attend the launch, which was planned
for one day, was slipping
away and having been afforded a second opportunity during lunch to
attend the launch, the appellants
did indeed have sufficient time to
consider their stance and to modify their conduct.
Having regard to the principles
pertaining to ultimatums and their purpose, I agree with La Grange J
that the appellants were issued
with an ultimatum that served the
purpose for which the law requires an ultimatum to be issued. The
appellants were cautioned in
clear language and were specifically
informed of the consequences of their failure to heed the warning.
They were accordingly given
an opportunity to reflect on their
conduct and to desist from it.
[29]
The appellants’ objections regarding procedural fairness have
to do with the manner of their notification of the disciplinary
hearing, the impartiality of the chairperson of the disciplinary
enquiry and the fact that the appeal hearings were conducted in
their
absence.
[30]
With regard to the question of notification, the appellants
complained that after the strike, they were dispersed without being
notified of the disciplinary proceedings scheduled for 07h30 on 6
March 2009. Hlatshwayo testified that he drew up notices containing
the charges which he distributed to the relevant employees, some of
whom refused to accept them or tore them up. TAWUSA conceded
in its
statement of claim that some of the appellants received notices,
while the non-union group of employees stated that they
received
notices on 5 March 2009. However, the appellants alleged in the court
a quo
that
they did not receive notices of the hearing. It is common cause that
all the appellants reported at the boardroom on the morning
of 6
March 2009. They also complained that they were not properly informed
of the postponed hearings of 9 March 2009. It was argued
in the
Labour Court that in terms of the disciplinary code
the
appellants should have been given two days’ notice of the
hearing and that consequently the notices were formally defective.
The court held that such complaint was not part of the appellants’
pleaded case; nor did the appellants allege that they
required more
time to prepare for the hearing. The claim was rather that they were
not notified of the hearing. The court
a
quo
held that
despite possible short notice, the concessions that notice was
received and the fact that the appellants made an appearance
at the
scheduled hearing, and had an opportunity to appeal, satisfied the
requirements of procedural fairness. The notification
given was
adequate in the circumstances.
[31]
The 1
st
to 51
st
appellants contend that the court
a
quo
erred in
disregarding their version that they did not receive any notice to
attend the enquiry on 4 March 2009 but only on 5 March
2009.
That is not correct. The finding of
the court was that such a complaint had not been pleaded. Whilst
there is disputed evidence
regarding the timing and manner of
delivery of the notices, in the final analysis, without any complaint
of prejudice in preparation,
the appellants’ objection is
technical and formalistic. All the appellants attended the hearing
and refused to participate
unless their demand for their preferred
procedure was met. They further contended that the court
a quo
failed to consider their
version
that they were not notified of the hearings scheduled for 9 March
2009 and that it was only on 10 March 2009 that they were
advised by
their foreman that they had been dismissed. The court
a
quo
correctly
favoured the respondent's version that the employees were at the very
least informed verbally. Hlatshwayo testified that
Mr. Magatsela, a
security officer, addressed the workers outside the boardroom on 6
March 2009 and read out the names of the employees
who needed to
attend the hearings scheduled for later on that day and on 9 March
2009. Although the appellants challenged whether
Hlatswayo adequately
conveyed the relevant information, it was never meaningfully disputed
that Magatsela addressed the workers
outside the boardroom. The
probabilities favour a finding that the employees knew about the
hearings and what the allegations against
them were. They did not
participate as they wanted a collective hearing. The employees did
this on 6
March 2009
and again on 9 March 2009. It is not open to them now to say that
they did not receive notice when they knowingly failed
to participate
in their own disciplinary hearings. The finding is supported by the
appellants' own pleadings and their failure
to participate in the
appeal hearings. Any employee who was not properly notified had the
right to appeal on that basis. None of
them exercised that right.
[32] The chairperson of the
disciplinary hearings was Mr. Dzanibe. He was appointed in accordance
with company policy which requires
the relevant heads of department
to chair disciplinary enquiries in their departments. Dzanibe had
been present when Cilliers addressed
the workers during the strike.
There was no objection to his impartiality prior to the trial in the
court
a quo
.
The court made no explicit finding in relation to the procedural
propriety of Dzanibe acting as chairperson. It merely noted that
the
wisdom of it had been questioned, but no objection had been raised at
the time of the hearings. Dzanibe testified that he was
capable of
not being biased. The
appellants
contend that the court
a
quo
erred in not
determining whether Dzanibe
was
a suitable person to chair the hearing. When cross-examined, Dzanibe
conceded that he was involved in the matter and had interacted
with
the appellants regarding their conduct. The appellants argued that
the court
a quo
failed to appreciate that
Dzanibe’s
mind was already made up in terms of the sanction of dismissal as he
had been intimately involved in the matter
prior to the hearing.
There is no other evidence supporting
a finding that Dzanibe had prejudged the question of sanction.
While it might not have been ideal
for Dzanibe to have acted as the chairperson, given his involvement
on 3 March 2009, this alone
is insufficient to conclude that he was
in fact biased. On the contrary, it is significant that all the
employees who did in fact
attend their disciplinary hearings were
re-instated on final written warnings after testifying that they had
been intimidated.
This is a clear indication that Dzanibe brought an
impartial mind to bear on the issues before him and that he was
prepared to
be persuaded by the evidence led at the hearings. There
is accordingly no merit in this ground of appeal.
[33]
The appeal hearings were conducted in the absence of the appellants
on 3 April 2009. Prior to that date
,
the union requested again for the appeals to be conducted
collectively. This led to a postponement of the appeals and some
negotiation
about the envisaged process. On 27 March 2009, the
respondent offered to hear groups of five individuals at a time in
combined
appeal hearings. The union counter offered that the
employees were prepared to participate in a single combined hearing
at which
they would be represented by five elected employees. The
respondent correctly construed this response to be a rejection of its
proposal that all employees appealing appear individually in groups
of five. It thus proceeded in the absence of the appellants
and
allowed the appeals of those not attending to lapse. The court
a
quo
held that the
appellants were the cause of their loss of the right to appeal.
The appellants contended that the
court
a quo
failed to appreciate that they were present at the premises on the
day of the appeal hearings. But that is irrelevant in the face
of a
clear indication that they intended not to participate.
The respondent received no adequate
response with regard to its proposal for five appeal hearings at a
time. This evidence was not
challenged and neither Bubisi nor Zwane
led any evidence on the appeal hearings. Accordingly the respondent's
version must stand.
The court
a
quo
correctly
accepted it.
[34]
The court
a quo
determined that dismissal was an appropriate sanction for the
misconduct of the appellants and hence that the dismissal was
substantively
fair. It is clear from its reasoning that the court
a
quo
kept the
provisions of item 6 of Schedule 8 to the LRA in mind. It had regard
to the nature and seriousness of the contravention
of the LRA and the
fact that there was no unjustified conduct on the part of the
employer that had caused the strike. It emphasised
that the
unprotected strike in which the appellants participated had unusual
features that made it different from typical strikes.
It held that
although the strike was for a short duration, its duration was
determined by the fact that it consisted of a boycott
of the wellness
launch which subverted the employer’s purpose. Moreover, the
appellants persisted in their defiance by failing
to take advantage
of the second opportunity to attend the launch in the afternoon. The
strike's impact was not economic but was
designed to ensure that the
activities of the respondent could not proceed as planned. It thus
undermined the authority and prerogative
of the employer in achieving
its social responsibility to its employees, which was of obvious
importance to the respondent. While,
as discussed, an ultimatum in
the conventional sense was not issued, the appellants were apprised
of the implications of their
conduct and understood what Cilliers
meant when he told them that if they did not attend the launch
separation would be discussed.
Though normally an ultimatum would
allow employees more time to reflect on their conduct, in this case
the opportunity to attend
the launch, planned for one day, was lost.
Having been warned and having been afforded a second opportunity
during lunch time to
attend the launch, the appellants had sufficient
time to consider their stance. In addition, the strike was not
spontaneous, but
rather planned to occur at the time that would
create maximum pressure on the respondent and the strike was not one
that the employer
had provoked through any unjust conduct. The
reliance placed by the chairperson of the disciplinary hearings on
the prior conduct
of the appellants and that some of them had
previously been issued with final written warnings which had expired
was found by the
court
a
quo
to be
legitimate in the circumstances, and in any event in the final
analysis did not alter the fairness of the sanction. In my
view, the
reasoning of the court
a
quo
on the question
of sanction is cogent and unassailable. I agree therefore with the
Labour Court that the dismissal of the appellants
was both
procedurally and substantively fair and accordingly the appeal is
without merit.
[35]
Considering that there are no prospects of success, condonation
should not be granted and the application to reinstate the
appeal
must be refused on that ground alone. It is consequently unnecessary
to canvass the explanations for the inordinate delay
in filing the
record two years late. Suffice it to say they are wholly inadequate
and unconvincing.
[36]
As for costs, the appellants displayed a defiant and insubordinate
attitude towards attempts by the employer to resolve the
dispute and
to enforce appropriate discipline. They ignored two ultimatums. Some
of them had blemished disciplinary records for
the same misconduct,
and thus were probably aware of the fact that their conduct was
unprotected. They have shown no remorse for
their wrongdoing. There
is
accordingly no
reason to deviate from the principle that costs should follow the
result.
[37]
In the premises, the application for condonation for the late filing
of the record of appeal and reinstatement of the lapsed
appeal is
dismissed with costs.
JR
Murphy AJA
I
agree
Waglay
JP
I
agree
Ndlovu
JA
APPEARANCES:
FOR THE 1
st
to 51st APPELLANTS: C Mogane
Instructed by Mohlaba and Moshoana Inc
FOR
THE 52
nd
to 106th APPELLANTS: S Morwane TAWUSA
FOR THE RESPONDENT: Attorney D Masher, Edward
Nathan Sonnenbergs Inc
[1]
Melane v Santam Insurance Co Ltd
[1962] 4 All SA 442
(AD);
Motloi v SA
Local Government Association
[2006] 3
BLLR 264
(LAC) at par 16; and
SABC Ltd
v CCMA
[2010] 3 BLLR 251
(LAC) at par
19.
[2]
S
eatlolo v
Entertainment Logistics Service
(
a
division of Gallo Africa Ltd
) (2011)
32 ILJ 2206
[3]
[1962] 4 All SA 442
(AD).
[4]
Act 66 of 1995.
[5]
Commercial Catering & Allied
Workers Union of SA v Wooltru Ltd t/a Woolworths (Randburg) (1989)
10 ILJ 311 (IC)
.
[6]
.Council
for Scientific & Industrial Research v Fijen (1996) 17 ILJ 18
(A) 26D-E.
[7]
SA Broadcasting Corporation v
McKenzie 1999 ILJ 585 (LAC).
[8]
A Mauchle (Pty) Ltd Va Précision
Tools v NUMSA and Others (1995) 16 ILJ 349 (LAC) at paras18 and 19.
[9]
A Mauchle (Pty) Ltd Va Précision
Tools v NUMSA and Others (1995) 16 ILJ 349 (LAC) at para 19; and
Motor Industry
Staff Association and Another v Silverton Spraypainters and
Panelbeaters (Pty) Ltd
(2013)
34 ILJ 1440 (LAC):
[2014] JOL 31995
(LAC) at paras 34 and 35.
[10]
Modise v Steve's Spar Blackheath
[2000] 5 BLLR 496
(LAC).
[11]
PTWU v Fidelity Security Services
[2009] 2 BLLR 157
(LC).
[12]
SASTAWU and Others v Karras t/a
Floraline
[1999] 10 BLLR 1097
(LC).
[13]
NUM v Billard Contractors CC
[2006]
12 BLLR 1191
(LC) at 1192.