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[2019] ZALAC 67
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SACCAWU obo Ramontlhe and Others v Sun City (JA22/2018) [2019] ZALAC 67; (2020) 41 ILJ 160 (LAC) (16 October 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA 22/2018
In
the matter between
:
SACCAWU
obo RAMONTLHE AND 2 OTHERS
Appellants
and
SUN
CITY
Respondent
Heard:
22 August 2019
Delivered:
16 October 2019
Summary:
Employees dismissed for participating in an unprotected strike in
violation of a court order prohibiting any protest –
employees
contending that employer’s conduct justifying the unprotected
strike – court held that employer attended
to concern about
racism and sexual harassment raised by the employees and thus there
was no justification for employees to engage
in an unprotected
strike. Judgment of the Labour Court upheld and appeal dismissed with
costs.
Coram:
Davis and Coppin JJA and Murphy AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
It is a notorious fact that the Gupta family have featured
prominently
in widespread allegations of nefarious corrupt activity.
They appear again in the present dispute which was sourced in a
wedding
of members of the Gupta family which took place at Sun City
between 30 April to 01 May 2013. According to the pre-trial minute,
the strike action which lies at the heart of the present appeal was
provoked by the actions of members of the Gupta family who
refused to
be served by black members of the staff of respondent (Sun City). In
turn it, in their view, prevent the humiliation
caused by the racist
behaviour of members of the Gupta family.
[2]
The unrest caused by this egregious behaviour, which is common cause
between
the parties, resulted in Sun City launching an urgent
application for an interdict against COSATU and appellants which was
directed
to prevent them from participating in the intended COSATU
march/protest.
[3]
On 10 May 2013, the Labour Court granted an interdict against COSATU
and
appellants preventing them from participating in the protest
which was organised to take place on 11 May 2013. Notwithstanding
this order, on 11 May 2013 employees, including the individual
appellants, gathered at a bus stop outside of the entertainment area
at the Sun City resort. It is common cause that Sun City provided
these employees with a bus so that they could be transported
to the
main gate where the COSATU gathering was to take place. Many
participants did not use the bus and walked to the main gate
where
the gathering had formed and where the protest commenced.
[4]
Between 2 and 8 July 2018, Sun City served notices on individual
employees
to attend disciplinary enquiry. Pursuant to a decision of a
disciplinary enquiry and an appeal therefrom which took place on 08
September 2013, the employees were dismissed. It was against this
decision that the appellants, being SACCAWU and the individual
employees dismissed, referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA)
against
Sun City.
[5]
The disputed dismissals eventually reached the Labour Court. On 21
August
2017, the dispute was heard by Prinsloo J in the court
a
quo
. At that point SACCAWU, on behalf of 14 of its members sought
relief, claiming that they had been unfairly dismissed. A number of
these employees then entered into a full and final settlement
agreement and thus fell outside of the dispute which the court
a
quo
was required to determine. Eventually the court
a quo
dealt with three individual employees, who were charged with inciting
and intimidating employees at Sun City at 3 May 2013 by causing
them
to participate in work stoppages resulting in destruction and
financial loss to Sun City.
[6]
In the court
a quo
, Prinsloo J found that the interdict
granted by the Labour Court had been deliberately breached by these
employees which did not
only constitute contemptuous conduct but were
actions which undermined the rule of law. This could not be tolerated
or condoned.
After considering arguments in mitigation, Prinsloo J
found that dismissal was the appropriate sanction for this misconduct
and
accordingly confirmed the dismissal of the three individual
employees. With the leave of the court
a quo
, the appellants
contend, notwithstanding the unprotected strike, that dismissal was
not the appropriate sanction.
The
appeal
[7]
The key evidence raised by the appellants in justification of their
conduct,
albeit that they accepted that they had participated in an
unprotected strike was the following: On 22 April 2013, an e-mail was
generated from Beatrix van der Vyver, an event manager at Sun City,
which e-mail advised staff about the dress code and conduct
at the
Gupta wedding. Significantly the e-mail contained the following:
‘
Please
also pay attention to the hygiene of staff on site, will have
deodorants, soaps, toothpaste on site should you need. Blaine
will
manage this from our team and will issue stock to suppliers.’
Further,
Ms Mofokeng, a room service waitress, testified that waitresses were
prohibited from taking trolleys of food into the rooms
of guests of
the Gupta and that only White and Indian waitrons were allowed to
take trolleys into these rooms. She further said
that, when she asked
her manager to explain this, he said to her that an agreement had
been reached between her employer and the
Gupta family. It was also
contended that Sun City had unjustifiably failed to respond timeously
and adequately to the concerns
of COSATU, which omissions created the
reasonable impression that it was not prepared to properly
investigate the serious issues
which had been tabled by appellants
and COSATU.
[8]
To the extent that Sun City referred to a meeting of 3 May 2013, it
is
important even at this stage of the analysis to note that the
purpose thereof was to discuss the ill health of Mr Khojane and not
to address these complaints raised by COSATU. It was this failure
which gave rise to a notice of 7 May 2013 in which COSATU had
demanded answers to the circumstances which had given rise to all of
the insults, humiliation and concerns of employees of Sun
City.
[9]
Finally, it was contended that Sun City did not apologise to the
employees
notwithstanding evidence offered by Sir Richard Hawkins of
Sun City, that he had issued instructions to members of the Sun City
management team to apologise to the affected employees.
[10]
Mr Boda, who appeared on behalf of the appellants together with Mr
Peer, referred to the
judgment of this Court in
Hendor Steel
Supplies (a division of Argent Steel Group (Pty) Ltd Formally name
Marschalk Beleggings (Pty) Ltd v National Union
of Metal Workers of
South Africa and others
2009 (30) ILJ 2376 (LAC) at para 13 where
employees were aggrieved by the continued presence of a supervisor
who was intolerant
and authoritarian, and thus argued that a
dismissal for participating in an unprotected strike was unfair. In
this regard, the
court stated:
‘
When
all these facts are taken into account, a picture emerges of
employees who were
understandably aggrieved
by the continued
presence of De Bruyn and authoritarian and of the very least an
intolerant supervisor.’ (emphasis added)
[11]
In Mr Boda’s view, given the four pieces of evidence set out
above, it was understandable
that employees would have been aggrieved
by the egregious and/ or neglectful conduct and/or non-communication
on behalf of Sun
City. Accordingly, the court
a quo
had failed
to take sufficient account of item 6 (1) (c) of Schedule 8 of the
Labour Relations Act 1995
which provides as follows:
‘
(1)
Participation in a strike that does not comply with the provision of
chapter IV is misconduct.
However like any other act of misconduct,
it does not always deserve dismissal
. The substantive
fairness of dismissal in these circumstances must be determined in
light of the facts of the cause including-
…
(c)
whether or not the strike
was in response to unjustified conduct
by the employer
.’ (emphasis added)
[12]
Although it was an unprotected strike, Mr Boda contended that it had
been conducted peacefully,
and had taken place as a result of extreme
provocation which flowed from the Gupta behaviour and the
acquiescence of Sun City.to
manifestly egregious behaviour.
Respondent’s
case
[13]
Mr Ngcukaitobi, who appeared together with Mr Navsa on behalf of
respondent, raised what
he argued was a fundamental point which was
dispositive of the case. If correct, there was no necessity to
interrogate all of the
various complaints raised by Mr Boda on behalf
of appellants. In support of this line of argument, he referred to
the statement
of claim in respect of the charges on 3 May 2013; that
is the incitement and intimidation charges. They read thus:
‘
4.
The Gupta’s family denied to be serviced by the employees of
the respondent who
were black and demanded that they must be serviced
by Indians as they are also Indians.
18.1
We submit that as per our earlier submission that the applicant
participates in protest as a result
of the Gupta’s family who
display racism and discrimination by refusing to be served or
serviced by the black, the protests
on such a day was triggered by
the behaviour of the Gupta’s family whose attitude was against
blacks and the respondent failed
to address the issue timeously …
18.3
The applicant and other employees participated voluntarily in
response or reaction to the attitude of the
Gupta’s…
18.8
Discrimination displayed by the Guptas was provocation.’
[14]
In a further supplementary pre-trial minute, appellants alleged as
follows:
‘
The applicants
allege that although the strike was unprotected, they were provoked
by the Gupta family who refused to be served
by the black staff.
The applicants considered the Gupta’s family behaviour racist.
The respondent did not support
the striking employees as it did not
stop the humiliation of the striking employees by the Gupta family.’
[15]
When Sun City sought further particulars from appellants in order to
prepare for trial,
that is as to which members of the Gupta family
refused to be served by Black employees, the response was as follows:
‘
The Gupta family
entourage refused to be served by the respondent’s black
employees, especially those who worked as
chauffeurs and waiters
and that no black chauffer served the Gupta’s.’ (emphasis
added)
[16]
Mr Ngcukaitobi contended that it was clear that the Black employees
identified by appellants
in their pleaded case were those who served
as waiters, room attendants and chauffeurs at Sun City during the
Gupta wedding. It
was also apparent that the allegation was that the
provocation was powered by the totally unacceptable conduct of
members of the
Gupta family and their guests and that the basis of
the case against Sun City was that it had failed to address the
issues timeously.
Regarding appellants’ statement of claim in
respect of the charge relating to the events of 11 May 2013, that is
the participation
of the unprotected strike, it stated as follows:
‘
In the afternoon
of 11 May 2013 the people gathered at Bridge One, scores of the
people who gathered at the bridge one were already
off duty as it was
late in the afternoon between 80 to 100 people gathered, the
intention therefore was to put more pressure on
the respondent to
deal adequately with the Gupta’s. The respondent has
failed to act after the demonstration of 03
May 2013.’
[17]
Pursuant thereto Sun City sought to clarify the actions that the
appellants alleged it
ought to have taken after 3 May 2013, to which
the response was as follows:
‘
Among
others, to apologies for the abusive and racial treatment its
employees were subjected to and an undertaking that it will
not allow
such again.’
[18]
Respondent’s argument was that the case made out by Mr Boda on
behalf of appellants
before this Court was markedly different from
that which had been set in its statement of claim and which
constituted the case
that respondent was required to meet. In short,
there was no mention of the so called toiletry issue nor there was
any mention
or a disclosure of an agreement between the Gupta family
and Sun City. By contrast, the statement of claim referred to the
fact
that:
‘
The Gupta’s
family will not be served by blacks but they choose not to inform the
applicant or their union about the issue
until the issue spiral out
of control and acknowledged the problem later.’
Evaluation
[19]
In evaluating the case brought by appellants, Mr Ngcukaitobi referred
to a
dictum
of this Court in
SA Breweries (Pty) Ltd v Louw
(2018) 39 ILJ 189 (LAC) at para 4:
‘
The
norm of a fair trial means each side being given unambiguous warning
of the case they are to meet. Moreover, these requirements
are
not mere civilities as between adversaries; the court too, is
dependent upon the fruits of clarity and certainty to know what
question is to be decided and to be presented with only admissible
evidence that is relevant to that question.
Making
up one’s case as you go along is an anathema to orderly
litigation and cannot be tolerated by a Court.
Counsel’s
duty of diligence demands an approach to litigation which best
assists a court to decide questions and no compromise
is
appropriate.’
[20]
It appears in the present case that, albeit that there were specific
issues raised in the
statement of case, as the litigation shoe began
to pinch so were adjustments made which resulted in a range of issues
being raised
which were not contained in the case brought before the
court
a quo
. This is not a case where an averment was not made
in the pleadings but the point was fully canvassed in evidence. This
was a case
where significantly different issues were raised on appeal
which had in no way constituted the case brought before the court
a
quo
.
[21]
From the evidence particularly of Hawkins, which testimony did not
appear to be contradicted
at a meeting between appellants and Sun
City on 3 May 2013, appellants focussed on two essential complaints,
being accusations
that the Guptas were racist towards Black employees
of Sun City and an allegation of sexual assault of an employee of
concessionaire
of Sun City. Insofar far as the latter was concerned,
in his evidence Hawkins said the following:
‘
So
we were made aware that there was an allegation of sexual assault
which I made clear to the union that we were well aware of
it.
I made it clear to the union that we had requested the employee to …
the guest to be removed and we offered any
support to either the
concessionaire or the individual concerned that may be required.’
It
followed from this uncontested evidence that, as of 3 May 2013,
appellants would have known that Sun City had acted decisively
in
respect of this complaint. In that the guest, who had been the
subject of an allegation of sexual assault, had been evicted
from Sun
City.
[22]
Turning to the question of racism on the part of the Gupta and their
guests, it was also
clear that this was not an issue which Sun City
had ignored. Apart from the evidence of Hawkins that issues, which
affected Sun
City insofar as racism were concerned were in the
process of being addressed. Sun City issued a press statement on 8
May 2013.To
the extent relevant it read thus:
‘
Sun
City management today confirmed that they had met with COSATU North
West on Friday, 3 May to discuss the allegations of racism
made
against the property by the union following the recent Gupta family
wedding. Sun City emphatically refutes these allegations
…
During
its meeting with the Federation and Sun City shop stewards, Sun City
dealt with all the issues raised by COSATU in public,
and invited the
union to submit any evidence to support claims that there had been
any acts of racism at the Gupta family’s
behest. The
Federation appeared to have accepted the explanations provided by Sun
City and no evidence of racism has been
produced.
Responding
to the allegations, Sun City pointed out that the resort was not
booked out for the exclusive use of the Gupta family.
There were approximately 5 000 other guests at the complex,
including at the Palace. The usual staffing complement was
in
place to look after the needs of these guests. Regular staff
were not inconvenienced or prejudiced in any way…
The
Gupta family also hired their own set of supporting staff, most
notably chefs specialising in Indian cuisine were flown from
India
and Asia, in addition private security were hired by them to act as
body guards for certain VIP guests, and additional drivers
were hired
by then to chauffeur their guest around the property in privately
hired vehicles.
The
allegation of rape at the spa was not substantiated by the staff
member concerned, nor was it reported to the SAPS. Sun City
received
reports that inappropriate advances were made towards a
concessionaire’s member of staff, which Sun City dealt with
fully and appropriately. The staff member in question had
indicated that she is satisfied with the procedures followed and
would prefer the matter not be pursued further.’
[23]
In addition, Sun City generated correspondence to both COSATU on 8
May 2013, the relevant
portion of which read as follows:
‘
The Company has
formally provided feedback on 3 May 2013 pertaining to allegations
raised by the Federation and the Federation was
further requested to
furnish the company with details, proof and evidence so as to allow
the Company to act accordingly.
To date, the Company has
not received any of the above from the Federation, SACCAWU, or the
employees that were allegedly racially
mistreated. The Company is
therefore of the view that the reasons provided for the march by the
Federation are unreasonable.’
[24]
In summary, the evidence indicated that the complaints lodged by the
appellants and which
formed the basis of their statement of claim and
thus the case brought before the Labour Court was clearly gainsaid by
the evidence
put before the court
a quo
. Given that it was
common cause that this was an unprotected strike the negative
assessment of the evidence concerning the basis
of the case so
brought by appellants means that there was no justification for the
unprotected strike in the manner contended for
by appellants.
[25]
As an alternative, appellants sought to contend that there had
been inconsistency
in the treatment of various employees who had
participated in the unprotected strike. This Court has held that it
is not an irrebuttable
presumption that, if the parity principle is
not applied, a sanction which is not imposed in all similar cases
unequivocally supports
a result in favour of the dismissed employee.
See
ABSA Bank Ltd v Naidu
[2015] 1 BLLR1 (LAC) 1.
[26]
The court
a quo
took account of the testimony of Mr Ramontlhe,
on behalf of the appellants, that all the shop stewards who had
appeared in photographs
on 11 May 2013 and had been part of the
unprotected strike were charged and that Sun City had taken
disciplinary action against
all employees it had been able to
identify by means of photographic evidence available to it. The
evidence indicated further that
the shop stewards, being the
individual appellants, knew about the court order and that Mr Peter
Mojawesi, who had not been charged,
at least had communicated the
contents of the court order to his fellow shop stewards, for which he
had been abused by Mr Ramonthle.
[27]
In assessing the nature of an appropriate sanction for the misconduct
committed by the
individual employees, the court
a quo
correctly emphasised that in this case individuals in leadership
positions, being shop stewards, flagrantly ignored a court order
and
participated enthusiastically in an unprotected strike. In my view,
the decision of the court
a quo
appears to be the product of a
careful and completely justifiable exercise of discretion as to the
appropriate sanction in this
case.
[28]
By way of conclusion, it is important to emphasise that this case
turned on the question
as to whether there was justification for
employees to engage in an unprotected strike. In order to assess
whether any of the arguments
for justification had merit, it was
necessary to examine the available evidence and the reaction of the
employer, in this case,
Sun City. This judgment has nothing to do
with the egregious levels of racism which appears to have been common
cause and which
was perpetrated by the Gupta family and their guests.
An assessment of their conduct is not an issue which is relevant to
the determination
of this case.
[29]
For all of these reasons, therefore, the appeal is dismissed with
costs including the costs
of two counsel.
_______________
Davis
JA
Coppin
JA and Murphy AJA concur.
APPEARANCES:
FOR
THE APPELLANTS:
Adv F Boda SC and Adv Y Peer
Instructed by Molebaloa
Attorneys
FOR
THE RESPONDENT:
Adv T Ngcukaitobi SC and Adv Z Navsa
Instructed by Bowman
Gilfillan Attorneys