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[2017] ZALAC 71
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National Transport Movement (NTM) and Others v Passenger Rail Agency of South Africa Limited (PRASA) (JA43/16) [2017] ZALAC 71; [2018] 2 BLLR 141 (LAC); (2018) 39 ILJ 560 (LAC) (21 November 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA 43/16
In
the matter between -
NATIONAL
TRANSPORT MOVEMENT
(NTM)
First
Appellant
M
TAU and others
Second
Appellant
and
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
LIMITED (PRASA)
Respondent
Heard:
16 February 2017
Delivered:
21 November 2017
Summary:
Dismissal based on derivativ
e
misconduct – union embarking on protected strike to assert
organisation rights – employer’s train coaches burning
down – employer suspecting that the train burnings could be
connected to the striking workers as a result of the comments
made by
three union officials at the gatherings alleging inciting the burning
of trains –employer calling employees to make
representations
as to why they could not be dismissed – union collective
representation on behalf of its members rejected
by the employer
while some individual representation accepted – principle
related to derivative misconduct restated. Held
that employer failed
to prove that the train burnings were committed by the strikers or
person’s associated with the strikers.
Nor has the employer
been able to prove that the dismissed strikers had any actual
knowledge of the train burnings or the persons
responsible for them.
Moreover, the termination letter makes it clear that the real reason
for dismissing the employees was not
their failure or refusal to
disclose information about the perpetration of the train burnings.
This demonstrates that the employer
had invoked the principle of
derivative misconduct as a means to justify the dismissals after they
had taken place -
and
that it was not the true reason for dismissing the employees. Held
further that the employer’s
reliance
upon the principle of derivative misconduct was misplaced and
unjustified. In essence, the striking employees were
dismissed
not for derivative misconduct but rather for “collective
misconduct”, a notion which is wholly repugnant
to our law, not
only because it runs counter to the tenets of natural justice but
also because it is incompatible with the established
principle of
innocent until proven guilty.
Rationality
and reasonableness of the evaluation process– employer’s
acceptance of the individual worker’s representations
as valid
and persuasive which said far less than the union’s collective
worker’s rendered the evaluation process so
irrational that
there can be no other conclusion but that the invitation to the
striking workers, to make representations, was
a farce designed to
rubber-stamp the employer’s intention to dismiss.
Consistency
in the application of dismissal – principle restated - the
penalty of dismissal was not applied consistently to
all the
employees who participated in the strike. This practice is clearly
inconsistent with the requirement of consistency as
contemplated in
item 3(6) of the Code of Good Practice for Dismissals. Appeal upheld
– Labour Court’s judgment set
aside – employees’
dismissal procedurally and substantively unfair- employee’s
reinstated.
Coram:
Tlaletsi DJP, Landman JA and
Kathree-Setiloane
AJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1]
This appeal concerns the dismissal of over 700 employees, during a
protected strike, by the Passenger Rail Agency of South Africa
Limited (“PRASA”), the respondent in the appeal. The
dismissed employees were members of the appellant, the National
Transport Movement (“NTM”). NTM challenges the dismissals
on the basis that they were automatically unfair in terms
of s 187
of the Labour Relations Act, 66 of 1995 (“LRA”),
alternatively procedurally and substantively unfair
in terms of s 186
thereof. The Labour Court (per Mokoena AJ) found that the
dismissals were not automatically unfair,
and that based on the
principle of derivative misconduct, the dismissal of the employees
were substantively and procedurally fair.
The appeal lies against the
judgment of the Labour Court with its leave.
[2]
At the time of the dismissal of the employees, PRASA comprised three
divisions: PRASA Rail (responsible for passenger transport
by rail),
PRASA Technical (responsible for infrastructure) and PRASA Crescent
(responsible for facilities management). In addition,
there were two
subsidiaries – Intersite (responsible for business development)
and Autopax (responsible for passenger transport
by road). Metrorail
is a subdivision of PRASA Rail. Sosholoza Meyl is not part of
Metrorail. The dismissed workers were employed
by PRASA at
Metrorail,
[1]
PRASA
Crescent and Sosholoza Meyl.
[2]
Background
[2]
The history of this matter begins in February 2012, when the South
African Transport and Allied Workers’ Union (SATAWU)
embarked
upon a strike in support of their demand that PRASA Group CEO, Mr
Lucky Montana, and other senior PRASA officials be suspended
and
investigated for tender irregularities. The issue giving rise to the
strike was not resolved and SATAWU reported its contention
relating
to Mr Montana’s and other senior managers’ alleged
corruption to the office of the Public Protector.
PRASA alleged that
during that strike, SATAWU’s members were responsible for
numerous trains and coaches being burnt. This
was denied by SATAWU.
PRASA alleged that certain SATAWU’s members, who were
identified as being in the strike were dismissed.
It, however, turns
out that these employees were later reinstated. PRASA also alleged
that certain SATAWU’s leaders were
arrested during the strike
for allegedly inciting violence. These charges were, however, dropped
for lack of evidence.
[4]
In the ensuing months, there were allegations of collusion between
senior officials and office bearers of SATAWU and senior
management
of PRASA. This resulted in many SATAWU’s office-bearers and
members leaving SATAWU. They formed a new union. Initially,
it was
called “the National Transport and Allied Workers’ Union
(NATAWU), but when the Registrar of Labour Relations
refused to
register the union with that name, the union became known as “NTM”.
NTM was registered in terms of the LRA
on 27 September 2012.
[5]
Following upon its registration, NTM sought to obtain organisational
rights from PRASA. Over the period 28 September 2012 to
25 January
2013, it handed in 3190 stop orders. When NTM received no response to
a request for a meeting to discuss NTM’s
exercise of
organisational rights, NTM declared a dispute with the Commission for
Conciliation Mediation and Arbitration (CCMA).
This resulted in a
written settlement agreement between NTM and PRASA dated 30 October
2012. In terms of the settlement agreement,
the parties undertook to
meet by no later than 2 November 2012 to conduct a verification
exercise at PRASA’s premises. NTM
sought the assistance of the
CCMA in the verification process. The CCMA was not available until
the new year to assist with the
process. While PRASA was content with
the conciliation process taking place in the new year, MTN was not.
It, therefore, referred
a new dispute to the CCMA relating to
organisational and bargaining rights.
[6]
The new dispute was conciliated on 14 December 2012. It resulted in
the issue of an advisory arbitration on 14 January 2013.
The award
recommended, amongst other things, that PRASA should finalise the
verification process within 21 days from the date of
the award. In
the event of a dispute relating to membership, it recommended that
PRASA should not make any trade union subscription
deductions, and
nor should it pay over the money to any of the unions involved until
the verification exercise had been finalised.
[7]
On 17 January 2013, the CCMA tried to facilitate the verification
terms of reference. NTM’s position at the meeting was
that it
wanted to strike in order to ensure that the verification exercise
started, as it was not confident that PRASA would start
that exercise
any time soon. NTM was willing to consider calling off the strike if
the verification exercise started. However,
PRASA’s position
was that the verification exercise would not start until the strike
notice was withdrawn. In a letter dated
21 February 2016, PRASA
informed both NTM and the CCMA that it was “
withdrawing its
request … to assist with facilitation and mediation of the
verification process
”.
[8]
Following upon the issue of the strike notice, PRASA and Metrorail,
in particular, took the view that the strike was unprotected.
On 17 January 2013, Metrorail issued an e-mail entitled “NATAWU
PLANNED STRIKE IS UNPROTECTED”. The basis for the claim
was
that NTM “
did not have a strike certificate and registered
members
”. The e-mail stated that the strike was unprotected
and that any employee, who participated in it, would face harsh
consequences.
On 18 January 2013, employees who embarked upon the
strike action received notices from PRASA indicating that the strike
was unprotected.
It gave the employees 48 to return to work, failing
which PRASA would “
take appropriate steps
”. Some
days later, PRASA established that the strike was “protected”,
but it failed to advise the employees of
this.
[9]
On 27 January 2013, PRASA applied on an urgent basis to the Labour
Court for an order interdicting and restraining NTM, on behalf
of its
members, and Mr Ephraim Mphahlele (the NTM President), from
inter alia
damaging its property and assaulting or threatening
non-striking staff. The Labour Court granted PRASA the interim relief
sought.
However, on 12 April 2013, the interim order was struck off
the court’s roll and NTM was awarded the legal costs.
[10]
Mr Ronnie Khumalo (“Mr Khumalo”) (Metrorail: Acting Head
of Department: Protection Services), Mr Isaac Nemagovhani
(“Mr
Nemagovhani”) (Metrorail: Area Security Commander - East Rand),
Mr Justice Mukwevho (“Mr Mukwevho”)
(Area
Security Commander), and Ms Kulu (Metrorail: Gauteng Provincial
Manager) testified on behalf of PRASA in relation to the
2013
strike.
[11]
Mr Khumalo testified that
:
Mr Vilane of NTM addressed the striking workers on their rights
and the corrupt activities of Mr Montana (the Group CEO).
Mr Mphahlele (the NTM President) and Mr Craig Nte (NTM’s
General Secretary) joined Mr Vilane at about 13h00.
They
demanded to meet with the Group CEO, who was not present. Before
going into the building, they accused him of undermining
NTM, which
was a big union. Following upon an argument with Mr Mantsane
(the Group’s Head of Security), Mr Mphahlele
and
Mr Shabangu left the building. When outside, Mr Mphahlele
took the microphone from Mr Vilane. He was angry with
Mr Montana
and PRASA and repeatedly stated that Mr Montana was corrupt.
Mr Mphahlele informed the striking workers that
if Metrorail did
not accede to the demands for the removal of Mr Montana, and for the
recognition of NTM, then they will stall
the Metrorail. In addition,
he encouraged the strikers to make it difficult for Metrorail to
operate. He stated that they had the
potential to stop the services
and must ensure that there were no train movements. He said that if
Mr Montana did not accede
to addressing the strikers then they
must not allow commuters to board the trains. In addition, he said
that the only time that
Metrorail would listen was when they brought
the service to a standstill. He thereafter left in a RAV4 and drove
to Pretoria to
address the workers there. Mr Khumalo followed
him to Pretoria. In Pretoria, Mr Mphahlele gave the same message
–
‘
Ensure
that the service comes to a standstill, ensure that non-striking
employees join them, and that Mr Montana is removed
’.
[12]
Mr Nemagovhani testified
that
:
on 18 January 2013, Mr Vilane addressed the strikers about the
corrupt conduct of Mr Montana and Mr Mantsane (PRASA’s
General Manager) and encouraged the strikers to bring Metrorail’s
services to a standstill “
by
all means and by all ways, even if it means burning the trains”.
In addition, Mr Mphahlele said that South African Airways had
recognised NTM, but that PRASA was being stubborn by not recognising
it. Therefore, in order for PRASA to recognise NTM, they would have
to bring PRASA’s services to a standstill by the burning
of
trains. Before leaving the gathering to go to Pretoria, Mr Mphahlele
said that he will relay the same message to the strikers
in Pretoria.
[13]
Mr Mukwevho testified that
:
Messrs Vilane,
Nte and Mphahlele addressed the gathering on 18 January 2013.
Although Mr Vilane stated that the workers
must make sure that
the Metrorail services were brought to a standstill, he did not
mention how that should be done. Messrs Mphahlele
and Nte arrive at
about 11h00 in a white SUV (small utility vehicle). Following upon
the meeting with PRASA management, Mr Nte
addressed the strikers
by imploring them to make sure that the PRASA services came to a
standstill, even if it meant burning the
trains. Mr Mphahlele
also advocated the burning of the trains when he addressed the
strikers. He ended his address by informing
the strikers that he will
relay the same message to the members in Pretoria. Mr Vilane did
not advocate the burning of trains.
[14]
Mr Mphahlele and Mr Nte
denied
being at Umjanji House on 18 January 2013, which was the first day of
the strike. They said that they were there on 21 January
2013 only.
They also denied that Mr Vilane made statements advocating the
burning of trains or forcing employees to join the
strike. They
emphasised how reckless it would have been of them to force employees
to join the strike or advocate the burning of
trains, as this would
have exposed them to criminal prosecution.
[15]
Mr Mathebula (a dismissed
employee) testified that
:
neither
Mr Mphahlele nor Mr Nte addressed the strikers in Pretoria
on 18 January 2013. He said that they addressed the
strikers with a
loudhailer, on 21 January 2013, but denied that they made statements
of the nature alleged by PRASA’s witnesses.
He said that PRASA
officials and the police were present, and that they recorded the
events. Mr Rapulungoane (a dismissed
employee) also denied that
Messrs Mphahlele and Nte were in Pretoria on 18 January 2013.
[16]
Four incidents of training burnings took place between 22 and 31
January 2013. They were at: Braamfontein Depot on 22
January
2013; Croesus on 22 January 2013; Kliptown on 25 January 2013;
Braamfontein Station on 25 January 2013, and Hercules Station
on 31
January 2013. Both Mr Khumalo and Mr Nemagovhani
suspected that the train burnings “
could be connected to the
striking workers
” as a result of the robust comments made
by the three union officials at the NTM gatherings, but they could
not say for sure
that that was the case. Mr Nemagovhani conceded
that this was pure conjecture.
[17]
PRASA commissioned Advanced Forensic Services (“AFS”) to
conduct the forensic fire investigation into the train
burnings. In
respect of the train burnings at Braamfontein, Croesus, Kliptown and
Braamfontein Station, the report concluded that
the fires originated
as a result of commuter violence. In respect of the train burnings at
the Hercules Station on 31 January 2013,
the report concluded that
the train was set on fire “
probably as a result of riot,
strike and/or public disorder …
”.
[18]
On 1 February 2013, Metrorail, Gauteng, addressed an invitation to
the striking employees to make written representations.
The
invitation read:
‘
INVITATION
TO MAKE REPRESENTATIONS: DISMISSAL
1.
You are hereby invited to
make written representations and give reasons why you should
not be
dismissed with effect from Monday, 4 February 2013. You may
elect to have your representations submitted on your behalf
by the
National Transport Movement. The representations must reach
PRASA Rail by no later than 08h00 on Monday, 4 February
2013.
The written representations should be submitted to PRASA Rail by
either Telefax 011-7745083 Email:
GautengCommand1@PRASA.com
,
or delivered by hand to Wits Metropark and Pretoria Station, Ground
Floor, Reception Area.
2.
The reason for your contemplated dismissals is based on the
following:
2.1
You are currently participating in a strike by members of the
National Transport Movement
which commenced on 18 January 2013;
2.2
Since the strike began, there have been several incidents of sabotage
of company property,
and more specifically, the burning of trains and
train coaches. The incidents of sabotage occurred at:
2.2.1 Braamfontein
depot on 23 January 2013;
2.2.2 Croesus on 23
January 2013;
2.2.3 Kliptown on 25
January 2013;
2.2.4 Braamfontein
station on 25 January 2013;
2.2.4 Hercules
station on 31 January 2013.
2.3
PRASA Rail recently believes that the sabotage, which only started
after the commencement
of the strike, has been carried out by
striking workers and/or persons acting in concert or association with
striking workers,
yourself included, as a means of putting unlawful
pressure to PRASA Rail to accede to the unreasonable demands of MTN;
2.4
PRASA Rail has taken all reasonable steps to identify the individuals
who torched trains
and train coaches and damaged its property but has
been unable to do so and cannot do so unless the striking employees
identify
the culprits;
2.5
PRASA Rail holds you and all striking employees jointly and severally
responsible for the
torching of trains and train coaches and intends
dismissing you for this reason, unless otherwise dissuaded by your
representations.
3.
In the event that you elect not to submit any representations, PRASA
Rail will
make its decision regarding your contemplated dismissal
without your input.’
[19]
This invitation to make representations was apparently only sent to
the dismissed employees who worked for Metrorail. It was
not sent to
dismissed employees who worked for PRASA Crescent or Shosholoza Meyl.
In addition, not all the dismissed employees
who worked for Metrorail
were sent the invitation to make representations.
[20]
On 4 February 2013, NTM brought an urgent application in the Labour
Court in which it sought an order declaring the invitation
letter to
be unfair and unlawful, and to interdict PRASA from implementing the
contents of its invitation letter. The Labour Court
dismissed NTM’s
application. PRASA then extended the deadline for the making of
representations to 7 February 2013.
[21]
By letter dated 7 February 2013, NTM’s attorneys provided a
collective response to the invitation. NTM denied that their
members
had been involved in the acts of sabotage, including the burning of
the trains, and it challenged PRASA’s belief
that the strikers
were responsible for the train burnings. It also distanced itself
from acts of ill-discipline and unlawfulness
and offered both its
assistance, and that of its members, to identify who was responsible.
It finally declared that it was open
to explore the need for oral
representations. In addition to the collective response of NTM on
behalf of the members, 23 workers
at Metrorail made individual
representations.
[22]
A committee, chaired by Ms Kulu (Gauteng Provincial Manager for
Metrorail), considered these representations. According
to Ms Kulu,
Metrorail rejected NTM’s collective response on the basis that:
‘
50.
We were surprised that the representations, when they finally
arrived, consisted of an email from
their attorneys, which on the one
hand, denied the arson attacks, and at the same time, stated that the
applicants were not involved.
The problems with the email, and
representations were the following:
50.1
The email does not say why the individual applicants are not
submitting individual representations,
given that each would have a
different explanation of where they were on the dates on which the
trains were burnt as listed in
the invitation letter;
50.2
The email does not state that NTM held meetings with all employees
given invitation letters and that
each one has provided an
explanation to NTM of where they were on the days and at the times in
question; and
50.3
the email does not say that the attorneys consulted with the
individual applicants either;
50.4I
was aware that the strikers were meeting regularly, including the
park across Jan Smuts Avenue and Pretoria
Station and it would
therefore have been fairly easy for them to prepare and submit
individual representations.’
[23]
On 8 February 2013, and a day after the NTM collective response was
sent to Metrorail,
[3]
Metrorail
dismissed the striking employees who did not provide individual
responses, as well as those who provided responses that
were not
reasonably acceptable. The termination letter of the same date reads:
‘
1.
You were invited to submit
representations to PRASA Rail by no later than 08h00 on 4 February
2013 why you should not be dismissed due to the sabotage of trains
and train coaches by striking members of the National Transport
Movement;
2.
PRASA Rail has considered the representations submitted on your
behalf but these
have been found to be unpersuasive;
3.
Your employment is hereby summarily terminated with effect from 11
February 2013.’
[24]
NTM referred an unfair dismissal dispute to the Labour Court on
behalf of its dismissed employees. The Labour Court found
that
their dismissals were procedurally and substantively fair.
The
Labour Court judgment
[25]
The Labour Court found that the dismissals were substantively fair
because the members of NTM, who participated, in the strike
breached
their duty of good faith owed to PRASA by –
(i)
remaining
silent about their actual knowledge of the burning of coaches or
about their actual knowledge of relevant information
about the
burning of the coaches or actual knowledge of the identity of
individuals who torched the coaches;
(ii)
failing
to disassociate themselves from the arson when called upon to do so;
(iii)
failing
to take reasonable steps to help PRASA to identify the individuals
who torched the coaches.
[26]
The Labour Court found that the dismissals were justified on the
following grounds:
(i)
Derivative
misconduct as the employees had failed, without justification, to
disclose their knowledge of the individuals who torched
the coaches;
(ii)
The
employees failed to provide an innocent explanation or to
disassociate themselves from the burning of the coaches;
(iii)
The
employees preferred to make general collective representations
through their union rather than providing individual explanations
as
invited to do by PRASA. This prevented PRASA from properly deciding
whom to dismiss for the burning of its property.
[27]
The Labour Court found that the dismissals were procedurally fair
because they
involved a large group of employees, who were given an opportunity to
be heard by being invited to make representations,
and that PRASA
decided to dismiss them only after applying its mind to the
representations submitted by individual employees.
Derivative
misconduct
[28]
PRASA’s contentions are broadly that the dismissals were fair
because at the workers’ gatherings, during the strike,
NTM
leaders advocated the burning of trains and that, subsequent to this,
trains were burnt. This, so it contends, meant that the
workers were
associated with the strike. PRASA argues, in this regard, that
although it was unable to identify the culprits, it
justifiably
adopted the view that the train burnings were carried out by striking
workers or persons acting in concert or association
with the striking
workers or both. It, therefore, called upon the strikers to identify
the culprits and to make written representations
on why they should
not be dismissed, as all the striking employees were held to be
jointly and severally responsible for the train
burnings. The
strikers were warned that they would be dismissed if they failed to
provide persuasive reasons in relation to why
they should not be
dismissed.
[29]
PRASA accordingly relied upon the concept of derivative misconduct as
justification for the dismissals of the striking employees.
The
principle of derivative misconduct may be relied upon by an employer
where there is no direct evidence that the dismissed employees
committed the primary misconduct that led to them being charged and
dismissed. In the case of derivative misconduct, the employee
is
liable for a separate and quite distinct offence from the primary
misconduct. The derivative misconduct is the employee’s
failure
to offer reasonable assistance to an employer to disclose information
about individuals who are responsible for the primary
misconduct. The
employee who is accused of derivative misconduct needs not associated
with the primary misconduct.
[4]
Onus
of proof
[30]
Where the employer relies on derivative misconduct, the employer must
prove on a balance of probabilities that the employee
committed the
misconduct. This would require the employer to prove the following
main elements of derivative misconduct namely,
the employee knew or
must have known about the primary misconduct, but elected, without
justification, not to disclose what he
or she knew. The requirements
of derivative misconduct were dealt with in
Western
Platinum Refinery Limited v
Hlebela
,
[5]
(
Hlebela)
where
this Court held that the following considerations are relevant to
derivative misconduct:
(i)
The
employee must have had actual knowledge of the wrongdoing, otherwise
the blameworthiness cannot be attributed to him or her;
(ii)
Non-disclosure
must be deliberate;
(iii)
The
gravity of the non-disclosure must be proportionate to the gravity of
the primary misconduct;
(iv)
The
rank of the employee may affect the gravity of the non-disclosure;
(v)
While
there is a general duty to disclose wrongdoing, the non-disclosure
may also be affected by whether the employee was specifically
asked
for that information;
(vi)
The
employee needs not have made common purpose with the perpetrator;
(vii)
An
employee cannot be guilty of derivative misconduct on the basis of
negligently failing to take steps to acquire knowledge of
the primary
wrongdoing.
[31]
As was held in
Western
Platinum Refinery v Hlebela
,
it is not sufficient that the employees may possibly know about the
primary misconduct. The employer must prove on a balance of
probabilities that each and every employee was in possession of
information or ought reasonably to have possessed information that
could have assisted the employer in its investigations.
[6]
The
test implies that the employees must have been called upon to provide
this information. And that “[w]ithout
prima
facie
evidence that any of the employees did have information [about the
principal misconduct]…one cannot conclude that the employee’s
failure to cooperate necessarily meant that they either did have or
must have had something to hide”.
[7]
[32]
It was contended on behalf of PRASA that the primary evidence points
to the commission of arson on train coaches belonging
to PRASA and
that it is probable that striking employees, rather than non-striking
employees or commuters, committed the arson.
It argued that despite
the absence of direct evidence, the dismissals are fair because the
particular circumstances imposed on
the dismissed employees a duty to
speak – to say what they did or did not know – in
order to assist in an investigation
to protect PRASA’s
interests and assets. The failure of the dismissed employees to
speak, so it contended, amounts to a breach
of the duty to speak
imposed on them by the implied contractual term of trust and
confidence. In addition, PRASA contended that
the failure of the
striking employees to speak amounted to association with the arson
and the arsonists.
Advocating
the burning of trains
[33]
The facts which PRASA contends gave rise to the duty to speak are
broadly these: When Mr Vilane and Mr Nte addressed the union
members
at Umjanji House on 18 and 21 January 2013, they said that PRASA’s
services should be halted even if it meant burning
trains. Two
witnesses, namely Mr Nemagovhani and Mr Mukwevho testified that they
heard union leaders call on striking workers to
burn trains, and that
the striking members demonstrated their approval by clapping in
response.
[34]
The testimony of these two witnesses in relation to what occurred on
18 and 21 January 2013 is, in my view, wholly unreliable
and
contradictory. Mr Khumalo, who was at the same workers’
gatherings in Johannesburg and Pretoria as Messrs Nemagovhani
and
Mukwevho, testified that Messrs Mphahlele, Nte and Vilane never
advocated the burning of trains. To the contrary, Mr Nemaghovhani
testified that all three of them advocated the burning of trains,
while Mr Mukwevho testified that Messrs Mphahlele and Nte advocated
the burning of trains, but he did not hear Mr Vilane do. Needless to
say, there were material contradictions in the testimony of
these
three witnesses, even though each of them was supposedly in the
immediate vicinity of the workers’ gatherings at which
Messrs
Mphahlele, Nte and Vilane purportedly addressed the workers on either
the 18
th
or 21
st
January 2013.
[35]
By comparison, the evidence of Mr Mphahlele and Mr Nte was consistent
and credible, and it was corroborated by two striking
workers who
were present at the workers’ gatherings. It is unlikely, on the
probabilities, that Messrs Mphahlele and Nte
would have advocated the
burning of PRASA’s coaches in the full view of the police and
members of PRASA management present
at the gatherings, as this would
have exposed them to criminal prosecution. Moreover, although the
addresses of the union officials
were video-taped by PRASA, it failed
to produce this evidence at the trial. The video-footage would have
seamlessly cleared up
exactly what was said by each of the three
union officials at the workers’ gatherings on 18 and 21 January
2013, but it was
not produced by PRASA at the trial. PRASA’s
explanation for not doing so was that the videotapes were in the
possession of
the South African Police Services (SAPS), and that
although it had made an oral request for them, the SAPS had not
returned them.
This explanation remained unsubstantiated.
The
train burnings were not strike-related
[36]
Four incidents of training burnings took place between 22 and 31
January 2013. They were at: Braamfontein Depot on 22 January
2013;
Croesus on 22 January 2013; Kliptown on 25 January 2013; Braamfontein
Station on 25 January 2013, and Hercules Station on
31 January 2013.
Both Mr Kumalo and Mr Nemagovhani suspected that the train
burnings “
could be connected to the striking workers
”
as a result of the robust comments made by the three union officials
at the NTM gatherings, but they could not say for sure
that that was
the case. Mr Nemagovhani conceded that this was pure conjecture.
[37]
PRASA commissioned Advanced Forensic Services (“AFS”)
[8]
to
conduct the forensic fire investigation into the train burnings. In
respect of those at Braamfontein and Croesus Stations on
22 January
2013, and Kliptown and Braamfontein Stations on 25 January 2013, the
report concluded that the fires originated as a
result of commuter
violence. It is only in respect of the train burnings at Hercules
Station on 31 January 2013, that the report
concluded that the train
was set on fire “
probably
as a result of riot, strike and/or public disorder …
”.
There was, however, no mention that PRASA’s striking employees
were responsible for setting the train on fire.
[9]
[38]
The burning of trains is not an uncommon occurrence in South Africa.
As is evident from PRASA’s own documentation which
was provided
to it by Protocol Forensic Fire Investigations, there were
approximately 73 incidents of deliberate train burnings
from March
2010 to December 2014. Of these 73 burnings, 15 took place in the
train yards. There are various reasons why commuters
burn trains. As
Dr Popo Molefe, the Chairperson of the PRASA Board at the time is
reported to have said:
‘
We
are trying to keep alive a system that is terminally ill in the
intensive care ward. You fix it today, tomorrow it breaks. That’s
why commuters get frustrated and burn these assets
.’
[10]
[39]
In the circumstances, I reject the evidence of both Mr Khumalo and Mr
Nemagovhani that the train burnings were strike-related
and not
commuter violence related, because they happened during or
immediately after the strike, and the union leaders advocated
their
burning. Although the strike and the train burnings were
contemporaneous, PRASA has failed to prove that the train burnings
were committed by the strikers or person’s associated with the
strikers. Nor for that matter has PRASA been able to prove
that the
dismissed strikers had any actual knowledge of the train burnings or
the persons responsible for them.
No
steps taken to identify culprits
[40]
It was submitted on behalf of PRASA that it had taken all reasonable
steps to identify the persons who torched the trains and
damaged its
property, but it has been unable to do so and could not do so unless
the striking employees identified the culprits.
Ms Kulu was, however,
unable to elucidate the Labour Court on the steps taken, other than
to say that the matter was reported to
the SAPS. PRASA had simply
failed to provide the Labour Court with any credible or convincing
evidence that it had taken reasonable
steps to identify the culprits
who were responsible for burning the trains. Had it taken such steps,
I have no doubt that it could
have identified the persons involved in
the train burnings.
Essential elements of derivative
misconduct not proved
[41]
As correctly submitted by NTM, the Labour Court’s reliance upon
derivative misconduct was misplaced because its’
essential
elements were not proved by PRASA. Crucially, PRASA failed to show
that the burning of the trains was carried out by
the striking
workers and/or persons acting in concert or association with them,
and that the striking workers had actual knowledge
about the train
burnings and the persons responsible for setting them alight.
[42]
Even if the train burnings were related to the strike, it did not
follow that each of the striking employees knew or must have
had
actual knowledge of this. The letter, inviting representations from
the dismissed employees, called upon each of them to provide
representations on why PRASA should not hold him or her “
and
all striking employees jointly and severally liable for the torching
of trains and train coaches
”, and why he or she should not
be dismissed. It did not call upon the employee to disclose evidence
about the actual perpetrators
of the train burnings.
[43]
The termination letter stated that the dismissed workers were
dismissed “
due
to the sabotage of trains and train coaches by striking members of
the National Transport Movement
”.
This letter makes it clear that PRASA’s real reason for
dismissing the employees was not their failure or refusal
to disclose
information about the perpetration of the train burnings. This
demonstrates that PRASA had invoked the principle of
derivative
misconduct as a means to justify the dismissals after they had taken
place -
and
that it was not the true reason for dismissing the employees.
[44]
The facts, in the decisions of this Court in
Hlebela
[11]
and
FAWU
v
Amalgamated
Beverage Industries
,
[12]
where
the principle of derivative misconduct was applied, are materially
distinguishable from the facts in the current case. In
both those
cases, the employer succeeded in showing that all of the dismissed
employees had knowledge or ought to have had knowledge
of the primary
misconduct, owing to their physical presence at or near the place,
and time, of the occurrence of the primary misconduct.
In this case,
there is no evidence that any of the dismissed employees were at the
places where, and during the times when, the
train burnings occurred.
Consequently, the proposition that the employee must have known about
the primary misconduct, as a result
of his or her presence at the
place where, and time when, the primary misconduct took place, has no
application in this case.
[45]
As pointed out by counsel for NTM, PRASA’s contention that the
dismissed workers must have had knowledge of the train
burnings is
based on the assertion that the train burnings were related to the
strike – “
The train burnings are related to the
strike, therefore the strikers must have had knowledge of the train
burnings.
” Even if the first proposition is true (which on
the evidence it is not), it does not necessarily follow that the
second
proposition is true.
[46]
I accordingly consider PRASA’s reliance upon the principle of
derivative misconduct to be misplaced and unjustified.
In
essence, the striking employees were dismissed not for derivative
misconduct but rather for “collective misconduct”,
a
notion which is wholly repugnant to our law, not only because it runs
counter to the tenets of natural justice but also because
it is
incompatible with the established principle of innocent until proven
guilty. This, in my view, renders the employees’
dismissals
both substantively and procedurally unfair.
Evaluation
process irrational
[47]
A committee chaired by Ms Kulu considered both the collective
response of the striking employees as well as the 23 individual
responses. From the reasons provided by Ms Kulu for rejecting
NTM’s representations on behalf of its members, other
PRASA
correspondence and Ms Kulu’s evidence, it is possible to
extract the criteria used for assessing the various representations.
These criteria were:
(a)
The reasons had to be valid and persuasive;
(b)
The representation could not be a bare denial;
(c)
each individual had to explain whether he or she associated himself
or herself with
the events;
(d)
The employee had to provide his or her whereabouts on the dates and
times of the events.
It is, however, apparent that PRASA
did not apply the criteria listed above, in its assessment of the
responses received from the
individual workers, but applied them
strictly in its assessment of the collective response which NTM
submitted on behalf of the
workers. This much is clear from the
examples listed below:
(i)
Gugugeletu Blows
:
She only provides an explanation for
where she was from 1 February 2013. She does not state where she was
on 23, 25 or 31 January
2013. However, she does state that she “
did
not participate in the strike
”. The explanation was
considered valid and persuasive and not a bare denial.
(ii)
MJ Matlhare
:
His representation does not state
where he was on 23, 25 or 31 January 2013. He does not mention the
train burnings at all. He expresses
the desire to return to work.
This was considered valid and persuasive. He was given a 12-month
warning.
(iii)
Joyce Ramasehla
:
Ms Ramasehla stated that she did
not participate in the strike but, realising that she would not be
granted leave “
on those days
” went to her
grandmother in Lichtenberg. She came back to work even though the
strike was not over because she needed her
“
job
desperately
”. She stated that she knew nothing about the
burning of the trains. Precisely what is meant by “
those
days
” is not clear. As Ms Kulu conceded, it is not
clear when she went to Lichtenberg. Her representations were
nonetheless
considered to be valid and persuasive and not a “
bare
denial
”.
(iv)
Elizabeth Hlongwane
:
Ms Hlongwane expresses her
willingness to return to work. She refers to some story that took
place on 24 February at 10h30,
which is unclear, and even Ms Kulu
did not know what she was talking about. Ms Kulu denied that the
reason her representations
were considered valid and persuasive was
because she indicated her willingness to return to work. She also
said that there was
a clear indication that she was pregnant. She
never indicated where she was on the day that the trains were burnt.
She never mentioned
the train burnings.
(v)
J Ntamo
:
This employee makes a bald assertion
that he knows nothing about the incidents. The worker does not deal
with his or her whereabouts
on the days in question. Ms Kulu
conceded that the main message is that the worker is willing to
return to work.
(vi)
Doctor
Mnguni
:
He states that he was a participant in
the strike after a threatening phone-call, that as a Christian he did
not want to be involved
and that he stayed at home from 24 January
2013. He apologised for any inconvenience caused. He did not
stipulate where he was
on 23 January 2013 when two of the train
burnings took place.
[48]
What is clear from these examples of the individual worker’s
responses is that many of them:
(a)
do not refer to the train burnings at all;
(b)
do not state where the employee was on the date of the train
burnings;
(c)
constituted a bare denial of their involvement with the train
burnings; and
(d)
referred to train burnings that are not referred to in the invitation
letter.
Despite
these deficiencies and Ms Kulu’s numerous concessions that
the representations were deficient, the individual
worker’s
representations were accepted as valid and persuasive. These
representations that said far less than NTM’s
collective
worker’s representations were accepted
-
yet the
latter were found to be invalid and unpersuasive. This, in my view,
rendered the evaluation process and the decision of
the Committee
(headed by Ms Kulu) that considered the collective and the individual
worker responses, so irrational that there
can be no other conclusion
but that the invitation to the striking workers, to make
representations, was a farce designed to rubber-stamp
PRASA’s
intention to dismiss.
[49]
Moreover, PRASA’s insistence, in its response to the collective
worker response, that each individual member of NTM should
have
submitted a representation was unreasonable as it contradicted the
express offer made in the invitation letter - “
You may elect
to have your representation submitted on your behalf by the National
Transport Movement
”. It was unreasonable for PRASA to have
expected NTM, a fledgling union, to co-ordinate the drafting and
gathering of individual
representations within a few days, when PRASA
Rail, despite its substantial resources, was unsuccessful in
distributing the invitation
letters to all the employees.
[50]
Notably, in this regard, the letter inviting the workers to make
representations was from Metrorail, Gauteng and not from PRASA
Cres,
or Shoshololza Meyl. PRASA provided no evidence justifying the
dismissals of the employees who worked at PRASA Crescent and
Shosholoza Meyl, and provided no evidence regarding the procedures
undertaken at these two divisions. Ms Kulu stated that
she could
not testify about these divisions. It is clear from Ms Kulu’s
evidence that the collective representations of the
workers, who were
employed at PRASA Crescent and Shosholoza Meyl, were not considered
prior to their dismissal. In the circumstances,
I am of the view that
PRASA has failed to prove that the dismissals of the employees took
place in accordance with a fair procedure.
Accordingly, the
employees’ dismissals were procedurally unfair.
Inconsistency
[51]
Item 3(6) of the Code of Good Practice: Dismissal (“the Code”)
provides:
[13]
‘
The
employer should apply the penalty of dismissal consistently with the
way in which it has been applied to the same and other
employees in
the past, and consistently as between two or more employees who
participate in the misconduct under consideration.’
In
terms of item 3(6) of the Code, an employer is required to apply the
penalty of dismissal consistently with the way in which
it has been
applied to the same and other employees in the past, and consistently
as between two or more employees who participate
in the conduct under
consideration. Consistency in applying the sanction of dismissal has
two elements. The first is historical
which requires the decision to
be consistent with past practice, and the second is contemporaneous
which requires that all employees
who participate in the same
misconduct be treated similarly.
[14]
[52]
As indicated, the Committee chaired by Ms Kulu considered both the
collective response of the striking employees as well the
23
individual representations. According to Ms Kulu, except for Mr
Rapulungoane, all 23 employees who made individual representations
were not dismissed. It later transpired, and this was common cause,
that Mr Dangale and Mr Mosekwa, who had made individual
representations that were considered persuasive by Ms Kulu and
her committee, were, nonetheless, dismissed. Ms Kulu could
not
explain why they were dismissed.
[53]
The Committee rejected the collective representation of NTM, and all
those employees who failed to submit individual responses
were
dismissed. The parties prepared a joint list of the names of the
dismissed employees. A number of the employees who were originally
dismissed were re-hired or reinstated. They are: M Kgobe;
ND Ndaba; P Phire; K Sekwati; MB Zwane; E Mdhuli;
A Dibakwane, and A Mathebula. Mr Kgobe, Mr Phire,
Mr Mdhuli and Mr Dibakwane. All of these employees
had
participated in the strike and were dismissed but later returned to
work. None of them submitted individual representations.
No
explanation was provided for why these workers were re-hired or
reinstated and, in the case of one worker, Mr Phire, promoted
to
Autopax in August 2013.
[54]
It is clear from this that the penalty of dismissal was not applied
consistently to all the employees who participated in the
strike.
This practice is clearly inconsistent with the requirement of
consistency as contemplated in item 3(6) of the Code of Good
Practice
for Dismissals. This is a further reason why the employees’
dismissals were substantively unfair.
Remedy
[55]
Ms Kulu testified that in the event that the employees’
dismissals were found to be unfair, then reinstatement was
not
appropriate because:
(a)
the dismissed workers have been replaced;
(b)
they have not distanced themselves from the acts of burning the
trains; and
(c)
the costs of back-pay for a public entity, such as PRASA, would be so
enormous that
it would affect the improvement of PRASA’s
service offering.
[56]
In
Dunwell
Property Services CC v Sibande
,
[15]
the
Labour Appeal Court held that in determining whether to reinstate an
unfairly dismissed employee, “
[t]he
overriding consideration in the enquiry should be the underlying
notion of fairness between the parties, rather than the legal
onus
”.
In
Equity
Aviation Services (Pty) Limited v CCMA and Others,
[16]
(
Equity
Aviation
)
the Constitutional Court held that fairness “
ought
to be assessed objectively on the facts of each case bearing in mind
that the core value of the LRA security of employment
”.
Therefore, a decision whether to reinstate “
is
therefore, in part, a value judgment and, in part, the factual
finding made upon the evidence adduced about the unworkability
of a
resumption
”.
[17]
[57]
Section 193(2) of the LRA requires the adjudicator to engage with
these factors and the evidence
about the nature of the relationship
between the parties in order to determine an appropriate remedy. The
primary assessment of
intolerability, therefore, rests with the
employer. To prevent reinstatement, the employer should lead evidence
to prove that the
circumstances surrounding the dismissals are of
such a nature that the reinstatement of the dismissed employee would
be intolerable.
[18]
In
Equity
Aviation
,
[19]
the
Constitutional Court held that in determining the extent of
retrospectivity of the reinstatement, a court or arbitrator should
take into account all relevant factors, including that the dismissed
employee might have been without income and the financial
burden upon
the employer if retrospective, reinstatement was ordered.
[58]
PRASA has failed to show that the employment relationship between the
employees and PRASA would be intolerable if the employees
are
reinstated. Although Ms Kulu alluded in her testimony to the
financial burden that reinstatement and back-pay will have on
the
improvement of PRASA’s service delivery, PRASA led no evidence
to substantiate Ms Kulu’s say so. Accordingly, I
am of the view
that there is no basis to deviate from the primary remedy envisaged
by s 193 of the LRA, being reinstatement
from the date of
dismissal.
Costs
[59]
I consider it fair and just that costs follow the result.
Conclusion
[60]
For these reasons, I consider the dismissal of the employees by PRASA
to be both procedurally and substantively unfair. PRASA
has advanced
no convincing reasons for why this Court should not grant the
employees the primary relief of reinstatement with back
pay
retrospective to the date of their dismissal. In the circumstances, I
see no reason not to grant the employees that relief.
The appeal
accordingly succeeds.
Order
[61]
In the result, I order that:
1
The
appeal is upheld with costs.
2
The
order of the Labour Court dismissing the action is set aside and
replaced with the following order:
‘
1.
The dismissal of the employees is procedurally and substantively
unfair.
2
The respondent is ordered
to reinstate the employees retrospectively to the date of
dismissal.
3
The respondent is ordered to pay the employees back pay retrospective
to the date
of dismissal.
4
The respondent is ordered to pay the costs of the action.’
________________________
F
Kathree-Setiloane AJA
LABOUR
APPEAL COURT
Tlaletsi
DJP and Landman AJA concur in the judgment of Kathree-Setiloane AJA
APPEARANCES:
FOR
THE APPELLANT:
A ROSKAM
Instructed by Haffegee Roskam Savage
Attorneys
FOR
THE RESPONDENT:
T BRUINDERS SC
Instructed by
Maserumule Inc
[1]
Metrorail
is a subdivision of PRASA Rail.
[2]
Sosholoza
is not a part of Metrorail.
[3]
There
are no termination letters for dismissed workers from PRASA Cres or
Shosholoza Meyl on record
[4]
TAWUSA
obo TAU and others v Barplats Mine Limited (Crocodile River Mine)
[2009] 30
ILJ
2791 (LC) at para [29].
[5]
[2015] 36
ILJ
2280 (LAC).
[6]
NUM
and Others v Grogin NO and Another
[
2010]
ILL 25713 (LAC).
[7]
NUM
and Others v Grogin NO
(
supra
)
at para [62]
.
[8]
It
turns out that neither Mr Khumalo nor Mr Nemagovhani read this
report before testifying on the question of who was responsible
for
the burning of the trains.
[9]
Mr
Khumalo and Nemagovhani attempted to provide evidence of other
trains that were burnt after the dismissals. These incidents
were
described in Mr Khumalo’s NTM Strike Presentation and a report
from the Gauteng Investigative Team, dated 13 June
2013. Although Mr
Khumalo ascribed these incidents to the strikers, their evidence
constituted hearsay as neither he nor Mr Nemagovhani
had personal
knowledge of these incidents. In most cases, the Gauteng
Investigative Team Report contradicted the version of Mr
Khumalo and
Mr Nemagovhani that the train burnings were attributed to the
strikers.
[10]
PRASA
unveils new modern locomotive IOL News, 2 December 2014.
[11]
Hlebela
(above).
[12]
FAWU
v Amalgamated Beverage Industries
(1994)
15 ILJ 1057 (LAC).
[13]
Schedule
7 of the LRA.
[14]
Southern
Sun Hotel Interests (Pty) Ltd v CCMA
[2009] 11 BLLR 1128
(LC) at para 10.
[15]
[2012]
2 BLLR 131 (LAC).
[16]
[2008]
12 BLLR 1129
(CC) at para 36
.
[17]
Equity
Aviation
at para 39
.
[18]
NUM
v CCMA
[2007]
28
ILJ
402 (LC)
.
See, also,
Baba
v GPFFSBC
(2011)
32
ILJ
2669 (LC).
[19]
above
at para [43]
.