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[2008] ZALCJHB 72
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South African Transport And Allied Workers Union (SATAWU) and Others v Maxi Strategic Alliance (Pty) Ltd (JS572/05) [2008] ZALCJHB 72 (21 August 2008)
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IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JS572/05
2008-08-21
REPO
RTABLE
In the matter between
SOUTH AFRICAN
TRANSPORT AND
ALLIED
WORKERS UNION
(SATAWU)
First
Applicant
MAKOLA
S. AND 48
OTHERS
Second
& Further Applicants
and
MAXI
STRATEGIC ALLIANCE (PTY)
LTD
Respondent
J U D
G M E N T
PILLAY
D, J
:
The
respondent employer, MAXI STRATEGIC ALLIANCES (Pty)
Limited (Maxi), dismissed the individual applicant employees
for
participating in an illegal strike.
The
first applicant trade union, SATAWU, had raised certain pay queries
with
the human resources officer, Mrs Angela Avis on
4 April 2005. SATAWU requested a response by 6 April.
Avis complied with the request. However, by the evening of
6 April, some employees were already planning to embark on
a
strike.
The
area manager persuaded them to get back to work. On the morning of
7 April, workers started assembling at Maxi’s
offices.
Avis received a message to come to the offices. Mr Tim Allan,
the human resources executive, tried unsuccessfully
to persuade the
workers to return to work. He contacted the SATAWU offices. The
organiser, Thomas Ntobejane came to Maxi
at about 09:30.
Ntobejane
was not able to persuade the workers to comply with the ultimatum to
return to work by 10:00. He met with the shop stewards
and later the
workers; eventually he left Maxi’s premises to continue
discussions with the workers at SATAWU’s offices.
After
close of business, Ntobejane faxed an undertaking that the workers
would return to work the following morning. On the morning
of
8 April 2005, a few workers gathered at Maxi’s
offices. At about 08:00 more workers arrived, many of them
were
not in uniform.
The
gathering was as hostile as they were the previous day, making it
clear to Maxi that they were not prepared to work. Maxi issued
letters of suspension of their services and notices to hold
disciplinary hearings on various dates from 13 April 2005.
After
interacting with SATAWU, Maxi agreed to hold the hearings on
20 April 2005. SATAWU agreed with Maxi to categorise
the
workers into three groups. These groups were those workers who
participated in the alleged strike voluntarily, those workers
who
were mainly nightshift who were forced to participate in the strike
and the shopstewards who had participated in the alleged
strike.
SATAWU
subsequently also agreed to Maxi issuing final written warnings to
the second category of workers.
None
of the workers attended their disciplinary hearings; SATAWU sent a
letter after business hours at 20 April 2005 stating
that
the workers would not attend the disciplinary enquiries whilst a
court order against them was pending because they feared
that they
may violate its terms.
The
court order that SATAWU referred to was an interdict that Maxi had
obtained against the union members who had intimidated other
workers
and prevented them from working.
SATAWU
had not requested a change of venue for the disciplinary enquiries,
nor had it raised this as a bar to attending the hearings
before they
commenced, despite SATAWU being in regular contact with Maxi to
arrange the disciplinary hearings. SATAWU’s members
believed,
so it was alleged, that the court order prevented them from attending
at Maxi’s premises, even for the purpose
of attending the
disciplinary enquiry.
That
understanding, if it was genuine at all, is highly inconsistent with
a proper construction of the court order. Furthermore,
if there
was any risk at all of Maxi enticing the workers to its premises to
have them arrested for breach of the court order,
SATAWU and its
members would have had a clear right to challenge any action arising
from a complaint that the workers had breached
the court order,
provided, of course, that they did not obstruct or interfere in
Maxi’s operations.
The
court is of the view that SATAWU’s understanding and
interpretation of the court order, and the reason for its members
not
attending the disciplinary hearings are contrived and disingenuous.
Its complaint about the venue for the enquiries had
never been raised
until after the first round of disciplinary hearings had been
concluded.
Appeals
for those who had been dismissed and who had lodged appeals were
scheduled for 5 May 2005. None of them turned
up for the
appeals. Their dismissals were upheld.
At
the end of the cross-examination of Avis, the court raised with
Mr Baloyi, the attorney for the applicants, certain questions
and allowed him to revert with his response the following day.
The
questions related to the manifest discord between that applicants’
case as pleaded and the version that was put to Avis
under cross-
examination. Under cross examination Avis learned for the first time
that the applicants’ version was that she
had agreed to meet
workers at 5:00 on 7 April to give them feedback on the pay
queries. That version was inherently
improbable
inter alia
because Avis understood that she had resolved the queries by 6 April.
More importantly, a gathering of all the workers meant
that the sites
to which they were posted would have been left unguarded.
The
applicants failed to prove that the night shift was to remain on duty
until the day shift took over after the meeting. Maxi’s
witnesses testified that the night shift left before the day shift
arrived. In addition to these improbabilities, the applicants
had
conceded in their response to questions for pre-trial that they had
not received permission to gather at the offices.
Also
Avis and later Allan were not cross examined about their evidence
that workers had gathered at the offices because they had
no
intention of working on 7 and 8 April. Their evidence that the
workers were hostile and that on 8 April most of them had
not
arrived at 06:00, that most of them who did arrive did so at 08:00
and many were not in uniform went unchallenged. Furthermore,
neither
Avis nor any of Maxi’s witnesses were cross examined about the
aggressive attitude of workers and the intimidation
of non-strikers.
Baloyi,
in his address, asked the court to disregard the evidence of
intimidation. However, he had failed to object when this evidence
was
adduced. Evidence of intimidation is relevant to Maxi’s
decision to dismiss the individual applicants. It is also relevant
to
this court’s determination of the appropriate penalty to be
imposed if the court were to find that the individual applicants
had
committed misconduct.
The
applicants also failed to offer any explanation for allowing the
interdict to be confirmed unopposed.
Despite
these obvious weaknesses in their cases, the applicants persisted in
denying that they were on strike and that the strike
was illegal. It
was common cause that the applicants had not complied with any
pre-strike procedure. Their case was that they did
not strike.
After
three days of evidence, Baloyi had to concede, on the basis of
Ntobejane’s evidence that the only issue in dispute was
that
the penalty of dismissal was unfair because it was too harsh and
inconsistent. Implicit from Baloyi’s concession that
the only
issue was the appropriateness of the penalty of dismissal, is the
inference that the individual applicants had committed
misconduct.
Ntobejane
had raised the inconsistency complaint because the second category of
workers received final written warnings whereas
the first and third
categories were dismissed.
The
submission is manifestly disingenuous because SATAWU agreed to the
sanction for the second category. Furthermore, the conduct
of the
second category workers was less culpable because they did not want
to strike.
As
regards the first category and third category workers, their
dismissal was not harsh because they had a reasonable opportunity
to
return to work. They had an opportunity to get advice from
SATAWU. They were belligerent and unco-operative. They abandoned
their right to the disciplinary hearings and to the appeal. The court
sees no reason to interfere in Maxi’s decision to dismiss
them.
Costs
:
Assuming that the workers had genuine grievances, they damaged their
cause, firstly by their aggressive, unco-operative behaviour
and by
participating in an illegal strike. Most of all, they damaged their
cause by the dishonest manner in which they prosecuted
their claim
through this court.
They
can hardly hope to earn the sympathy of the court by their
dishonesty. Instead, the court intends to impose an adverse
cost order.
The
claim is
dismissed with costs
, such costs to be costs as
between attorney and client and to be paid jointly and severally by
all the applicants, the one paying
the others to be absolved.
_____________
PILLAY D, J
Judge of the Labour
Court
Date of Hearing:
18/08/08-20/08/08
Date of Judgment:
21/08/08
Date of Editing:
24/09/08
APPEARANCES
For the applicant
: Mr Baloyi
For the respondent:
Adv Erasmus instructed by Attorney Jean du Randt