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[2019] ZALAC 43
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Pailprint (Pty) Ltd v Lyster N.O and Others (DA18/2017) [2019] ZALAC 43; (2019) 40 ILJ 2047 (LAC); [2019] 10 BLLR 1139 (LAC) (13 June 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Not
reportable
Case
no: DA18/2017
In
the matter between:
PAILPRINT
(PTY) LTD
Appellant
and
RICHARD
LYSTER
N.O
First
Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
THE
NATIONAL UNION OF METAL WORKERS
OF
SOUTH
AFRICA Third
Respondent
THOKOZANI
MADUNA Fourth
Respondent
TUSOKWAKE
NSELE Fifth
Respondent
NSEBENZO
MVELASE
Sixth
Respondent
MBONGENI
WAYISE Seventh
Respondent
MDUDUZI
ROWLS Eighth
Respondent
Heard:
15 May 2019
Delivered:
13 June 2019
Summary:
Strike related misconduct
– employees dismissed for breaching picketing rule by carrying
dangerous weapons in contravention
of -
picketing
rule
prohibiting employees
from
carrying
or wielding of any weapons during the strike picket.
Held:
In
finding that the employees were not “
brandishing
or wielding of dangerous weapons
”
as they had been charged but “
were
clearly just carrying sticks in their hands
”,
the arbitrator adopted an unduly technical approach. Appropriate
regard was not had to the purpose of the rule and the
harm it sought
to avoid. As much was evident from the reliance placed by the
arbitrator in the determination of the matter on the
definition of
the word “wield”. The decision to have a sjambok, PVC
pipe and sticks at a protest, at which others were
in possession of a
golf club and axe, was not only a clear breach but, viewed
objectively, was aimed at sending a message which,
at the very least,
was threatening to others. Within the context of the nature of the
strike violence committed, the seriousness
of this breach was
overlooked by the arbitrator.
Arbitration
award and judgment of the Labour Court set aside- appeal upheld with
costs.
Coram:
Musi JA, Murphy and Savage AJJA
Judgment
SAVAGE
AJA:
Introduction
[1]
This appeal,
with the leave of this Court, is against the dismissal by the Labour
Court (Whitcher J) of an application to review
an arbitration award
in which the dismissals of the fourth to eighth respondents (the
employees) were found substantively unfair.
[2]
The employees
were employed by the appellant in various capacities at its factory
in New Germany, KwaZulu Natal. From 1 July 2014,
the employees took
part in a national strike called by the third respondent, the
National Union of Metalworkers of South Africa
(NUMSA). The
appellant’s disciplinary code made the “(b)
randishing
or wielding of dangerous weapons
”
a dismissible offence. On 30 June 2014, in response to the impending
strike, the appellant posted its picketing policy dated
24 June 2014
on company notice boards. On 2 and 3 July 2014, the policy was
displayed on the gates to the appellant’s premises
and on 4
July 2014 it was signed by NUMSA. The picketing policy stated that
picketers may not “
engage
in unlawful or violent actions
”;
that “(n)
o
weapons of ANY kind are to be carried or wielded by the picketers
”;
and that the appellant may take disciplinary action “
where
an employee’s actions during a picket are in breach of the
organisation’s Disciplinary code
”.
[3]
The
appellant’s 2012 strike policy recorded its zero tolerance of
“
any
violent acts, intimidation or vandalism
”
during strikes and stated that “(a)
ny
employee caught behaving in a violent manner (which includes verbal
abuse); vandalising property, preventing anyone from entering
or
participating in work or intimidating any other person in any form or
manner
”
would be disciplined.
[4]
On 2 and 3
July 2014, the fourth, fifth, seventh and eighth respondents each
carried a stick while picketing with a group of strikers
outside the
appellant’s premises. The sixth respondent carried a length of
PVC pipe and the seventh respondent, in addition
to a stick, carried
a sjambok. In the crowd with the employees were one person with a
golf club and another with an axe. The employees
were charged by the
appellant with “
brandishing
or wielding of dangerous weapons during
[the]
strike
”
and following disciplinary hearings they were dismissed.
Arbitration
and review
[5]
Aggrieved with
their dismissals, NUMSA referred an unfair dismissal dispute to the
second respondent, the Commission for Conciliation
Mediation and
Arbitration (CCMA) on behalf of the employees. At the arbitration
hearing graphic photographs of severe injuries
sustained by two
individuals during the course of the strike, which were not disputed,
were placed before the arbitrator.
[6]
In the
arbitration award, the arbitrator had regard to the fact that at
their disciplinary hearings more than one of the employees
had
“
disingenuously
testified that neither a stick nor a sjambok could inflict any harm
”.
He found however that the employees had not been shown to have
brandished or wielded weapons but “
were
clearly just carrying sticks in their hands
”
and with no evidence that they intended to threaten or intimidate
anyone, they were in partial breach of the valid and reasonable
rule
of the appellant. The picketing policy had been placed on company
notice boards and the arbitrator found that the employees
were aware
of the rule, or could reasonably have been expected to have been
aware of it. The arbitrator had regard to the employees’
“
state
of mind when they decided to go to the picket with sticks in their
hands
”
and to the fact that they had “
voluntarily
associated”
with
others who carried a golf club and an axe. He rejected as a “
grossly
improbable scenario
”
the claim that the employees were exercising their traditional and
customary right to carry sticks and noted that the eighth
respondent,
the sole witness for the employees at arbitration, had accepted, by
way of example, that it was unlawful to take a
stick to a soccer game
given the dangers which could arise there.
[7]
Turning to the
issue of sanction, the arbitrator found that the employees “
did
not brandish or wield the weapons
”
but carried them. He stated that the picketing policy did not
indicate what the consequences of its breach would be, nor
did it
indicate a link to the disciplinary code. The arbitrator took the
view that the disciplinary code was intended to regulate
the
behaviour of on-duty employees and not when they are on strike and
off-duty and that there was an “
inconsistent
disjuncture
”
in the disciplinary code when it made provision for the sanction of a
final written warning for assault but dismissal for
brandishing or
wielding weapons. Consequently, the sanction of dismissal was found
to be inappropriate and the dismissal of the
respondents, who it was
stated “
can
consider themselves extremely fortunate
”,
was found substantively unfair. The employees were consequently
reinstated from the date of the arbitration award subject
to a final
written warning valid for 12 months. The arbitrator concluded by
noting that the award should not be interpreted to
validate the
carrying of weapons during a strike and that “(i)
t
goes without saying that the less we see in South Africa of groups of
men armed with sticks, the better
”.
However, if the appellant wished to outlaw this practice the
disciplinary code should be amended to “
make
employees aware that the mere holding of any form of object that
could intimidate others, or inflict harm on others, will be
visited
with dismissal
”.
[8]
Dissatisfied
with the arbitration award, the appellant sought its review by the
Labour Court. In its judgment, the Court
a
quo
found
there to be no reason to interfere with the arbitration award since
it was not unreasonable and the review application was
accordingly
dismissed with costs.
Submissions
on appeal
[9]
On appeal, it was contended for the appellant that the arbitrator had
committed a gross irregularity in the conduct of the proceedings
which led him to arrive at a result which a reasonable arbitrator
could not have arrived at on the material before him. The
unreasonableness of the outcome was apparent, it was submitted, from
the fact that the arbitrator had found that dangerous weapons had
been carried by the respondents (the fourth respondent had at
his
disciplinary hearing pleaded guilty to wielding a stick and the
seventh respondent had admitted carrying a sjambok); the weapons
were
carried while the respondents were part of a toyi-toying crowd of
striking workers, in which a golf club and an axe were carried;
the
evidence showed the severe assaults perpetrated on individuals during
the course of the strike; and the disciplinary code was
applicable to
the misconduct.
[10]
The respondents opposed the appeal on the basis that the award of the
arbitrator fell within
the bounds of reasonableness and that it
reflected the distinction between lawful protest action, even angry
protest action, and
violence and intimidation which is not lawful. It
was argued that the evidential material was so compelling that no
reasonable
decision-maker could find the respondents’
misconduct sufficiently serous to warrant dismissal. The appellant
bore the
onus
to
prove that the sticks, pipe and sjambok were intended to threaten or
intimidate and that the decision of the arbitrator was that
of a
reasonable decision-maker when he found that any transgression of the
policy was not sufficiently serious to warrant dismissal.
Consequently, it was submitted that the arbitration award was not
susceptible to review, that the Labour Court cannot be faulted
for
finding this to be so and that the appeal must therefore fail.
Evaluation
[11]
In issue
in this appeal is whether a reviewable error or irregularity was
committed by the arbitrator of such a nature that
it led to him
arriving at a decision which a reasonable decision-maker could not
reach on the material before him.
[1]
The picketing rule of which the employees were found to have been
aware of barred the carrying or wielding of any weapons during
the
strike picket. There was no dispute that the employees carried
weapons in the form of sticks, a sjambok and a PVC pipe while
picketing and that during the course of the picket others carried a
golf club and an axe. This conduct was clearly in breach of
the
express terms of the picketing rule which barred weapons of any kind
from being “
carried
or wielded
”
by picketers.
[12]
There was no
dispute that the rule was a valid and reasonable. The purpose of the
rule was clear given the undisputed evidence of
violent attacks
carried out against other employees during the course of the strike.
It is, therefore, difficult to understand
how the arbitrator was able
to conclude on the material before him that the rule had only been
partially breached when the rule
expressly prohibited the employees’
conduct.
[13]
As
to the issue of sanction, the arbitrator was required to consider
whether dismissal was fair upon a consideration of the relevant
circumstances.
[2]
In
doing so the task of the arbitrator was to approach the dispute
impartially in light of
the
totality of circumstances
.
This required consideration of factors which included
the
importance of the rule breached, the reason the employer imposed the
sanction of dismissal, the basis of the employees’
challenge to
the dismissal, the harm caused by the employees’ conduct and
the effect of dismissal on the employees. As was
made clear in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[3]
this is not an exhaustive list.
[14]
The arbitrator
gave four reasons for finding the dismissals unfair. The first was
that although the employees had carried dangerous
weapons, the
picketing policy did not make reference to wielding or brandishing
weapons. In fact, the policy expressly prohibited
any weapons from
being either carried “
or
wielded by the picketers
”
and it follows that reliance on the absence of a reference to
“wielding” was erroneous.
The
second reason was that
the
policy did not warn employees of the consequences of its breach or of
its link to the disciplinary code. The policy expressly
stated that
the appellant may take disciplinary action “
where
an employee’s actions during a picket are in breach of the
organisation’s Disciplinary code
”.
It followed that the employees knew or could reasonably have been
expected to have known that disciplinary action could
result if the
picketing rules were breached.
[15]
The third
reason advanced by the arbitrator was that the disciplinary code
was intended to
regulate the conduct of employees on-duty and not employees who were
on strike but off-duty. This is patently not
so. A disciplinary code
remains applicable to striking workers who exercise their
constitutional right to strike within the context
of the employment
relationship. For this reason, the appellant is entitled to take
disciplinary action against employees arising
from strike misconduct
and to take such action in accordance with the terms of its
disciplinary code. The picketing rules, which
expressly referred to
the disciplinary code, could, therefore, be similarly enforced by the
appellant.
[16]
Finally, the
arbitrator took issue with the “
inconsistent
disjuncture
”
which existed in the disciplinary code when it made provision for a
final written warning for assault but dismissal for
the wielding or
brandishing of weapons. The disciplinary code expressly recorded that
it constituted a guideline and as such the
imposition of a sanction
set out in the code was not mandatory. Any sanction proposed amounted
only to a guideline, with each matter
to be resolved on its own
facts. In such circumstances, any disjuncture which may have been
reflected in the code remained to be
determined having regard to the
misconduct committed.
[17]
From the
reasons advanced by the arbitrator, it is apparent that appropriate
regard was not had to the importance of the rule breached
or the
reason the employer imposed the sanction of dismissal. This was
somewhat surprising given the arbitrator’s rejection
as
disingenuous of the evidence given previously by the employees “
that
neither a stick nor a sjambok could inflict any harm
”
and the undisputed evidence of serious injuries sustained by
individuals during the strike.
[18]
It has
repeatedly been stated by this Court that an unduly technical
approach to the framing and consideration of allegations of
employee
misconduct should be avoided. In finding that the employees were not
“
brandishing
or wielding of dangerous weapons
”
as they had been charged but “
were
clearly just carrying sticks in their hands
”,
the arbitrator adopted precisely such an approach. Appropriate regard
was not had to the purpose of the rule and the harm
it sought to
avoid. As much was evident from the reliance placed by the arbitrator
in the determination of the matter on the definition
of the word
“wield”. The decision to have a sjambok, PVC pipe and
sticks at a protest, at which others were in possession
of a golf
club and axe, was not only a clear breach but, viewed objectively,
was aimed at sending a message which, at the very
least, was
threatening to others. Within the context of the nature of the strike
violence committed, the seriousness of this breach
was overlooked by
the arbitrator.
[19]
The result was
that the matter was approached by the arbitrator in an unduly narrow
manner, with appropriate consideration not given
to relevant material
factors and undue emphasis placed on other less relevant factors.
Nothing from the substance of the employees’
challenge to their
dismissal or the consequence of their dismissals for them could
reasonably have led to a different conclusion.
The appellant was
entitled to prohibit weapons from the picket line in order to
preserve the safety of its premises and employees
and to avoid strike
violence of the nature which, from the evidence, it is apparent was
committed. The constitutionally protected
right to strike does not
encompass a right to carry dangerous weapons on a picket line which,
by their nature, not only expose
others to the very real risk of
injury, but also serve to threaten and intimidate. It is noteworthy
that the arbitrator recorded
his discomfort with the outcome of the
arbitration award when he described the employees as “
extremely
fortunate
”
and recognised the unacceptable dangers posed by armed crowds in this
country. It follows for all of these reasons that
in arriving at the
decision that he did on the material before him, the arbitrator
committed a reviewable irregularity and arrived
at a decision arrived
which a decision-maker acting reasonably could not have reached on
the material before him.
The
Labour Court erred in finding that the decision of the arbitrator
fell within the bounds of reasonableness required and the
appeal must
therefore succeed.
[20]
Both parties
sought costs of the appeal if successful. Having regard to
considerations of law and fairness, there is no reason as
to why
costs should not follow the result. Although the appellant sought the
costs of two counsel, such an order is not warranted
having regard to
the nature and complexity of the matter.
Order
[21]
For these
reasons, the following order is made:
1.
The appeal
succeeds with costs.
2.
The judgment
of the Labour Court is set aside and substituted as follows:
“
1.
The review application succeeds with costs.
2.
The
award of the first respondent is reviewed, set aside and substituted
as follows:
‘
The
dismissals of the fourth to eighth respondents, Mr Thokozani Maduna,
Mr Tusokwake Nsele, Mr Nsebenzo Mvelase, Mr Mbongeni Wayise
and Mr
Mduduzi Rowls, are found to have been substantively fair.’
”
_______________________
SAVAGE
AJA
Musi
JA and Murphy AJA agree.
APPEARANCES:
FOR
THE APPELLANT:
B A Acker SC and R Pillemer
Instructed
by Barkers Attorneys
FOR
THE THIRD RESPONDENT:
D P Crampton
Instructed
by Brett Purdon Attorneys
[1]
Section
145(2) of the Labour Relations Act 66 of 1995 (the LRA);
Herholdt
v Nedbank
2013
(6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA); (2013) 34 ILJ 2795
(SCA) at para 25;
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2015]
1 BLLR 50
(LAC)
at para 33;
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[
2007]
ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28
ILJ 2405 (CC)
at
paras 78 and 79.
[2]
Sidumo
(
op
cit at fn 2)
at
para 79.
[3]
[2007]
ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28
ILJ 2405 (CC) at paras 78 and 79
.