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[2008] ZALCD 6
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South African Transport And Allied Workers Union and Others v Ikhwezi Bus Service (Pty) Ltd (D235/03) [2008] ZALCD 6 (11 July 2008)
REPORTABLE
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE NO: D235/03
In
the matter between:
THE SOUTH AFRICAN
TRANSPORT
AND
ALLIED WORKERS UNION
First
Applicant
NDLOVU
AND 11 OTHERS
Second
and further Applicants
and
IKHWEZI
BUS SERVICE (PTY) LIMITED
Respondent
JUDGMENT
CORAM
: A VAN NIEKERK AJ
Introduction
1.
The first applicant is a trade union. The
second and further applicants (‘the individual applicants’)
were members of
the union, employed by the respondent as bus drivers.
The respondent operates a bus service in northern KwaZulu Natal, in
the Empangeni
and Richard’s Bay districts.
2.
The individual applicants were all
dismissed by the respondent on 3 December 2002. Consequent on
their dismissal, the union
and the individual applicants referred an
unfair dismissal dispute to the CCMA. A certificate of non-resolution
of the dispute
was issued on 9 January 2003. For reasons
that are not apparent, the union pursued this matter with a degree of
vigour
less than that which its members were entitled to expect. The
matter was ultimately enrolled for hearing in March 2008, more than
5
years after the date of dismissal.
3.
At the commencement of the trial, Mr
Schumann, who appeared for the applicants, advised the court that no
relief was sought in respect
of the 5
th
and 7
th
applicants. The trial proceeded in respect of the remaining
applicants. The applicants do not challenge the procedural fairness
of their dismissals, nor do they pursue the allegation raised in the
papers that they were selected for dismissal in circumstances
where
members of another union were not.
4.
The evidence led at the trial canvasses
numerous aspects of the case, but also raises a crisp legal point
which in my view, is decisive
of the applicants’ contentions. I
intend therefore to proceed, as far as is practicable, based on the
facts that are common
cause, dealing with disputed areas of evidence
when necessary.
5.
The company operated a parking area at
Esikhaweni, where drivers parked their buses at the end of a shift.
After incidents of arson
and the theft of diesel that occurred at
Esikhawini, the company did not renew its lease of the parking ground
and required bus
drivers to drive their buses to the Alton depot on
completion of their shifts. The union contends that in consideration
for the
requirement that buses be parked at the Alton Depot, they
would be paid overtime. The company contends that what was promised
was
payment for overtime if and only if drivers exceeded the maximum
ordinary hours of work prescribed by the applicable wage regulating
measure. This issue was raised as early as April 2002, in discussion
between the company’s management and union representatives,
following a work stoppage during that month.
6.
On 15 October 2002, the union addressed a
letter to the company, raising issues relating to the role of a
disciplinary officer and
the need for drivers’ uniforms. The
company responded by agreeing to meet on 22 October 2002.
7.
On the afternoon of 15 October, 28 of the
company’s bus drivers failed to return their buses to the Alton
Depot, and instead
parked them at the old parking ground at
Esikhaweni. On 16 and 17 October, an additional 29 drivers
refused to return their
buses to the Alton Depot as required and
parked the buses at Esikhaweni.
8.
The buses were returned to the Alton depot
on 18, 19 and 20 October 2002. On 21 and 22 October, buses
were again left
overnight at Esikhaweni. The company then applied to
this Court for an order declaring that the refusal to complete shifts
and
leaving buses at Esikhaweni constituted an unprotected strike,
and for an interdict restraining the respondents from participating
in the strike.
9.
On 23 October 2002, this Court granted a
rule nisi in terms of which the respondents were
inter
alia
interdicted, pending the return
day, from participating in the strike
10.
The company and the union held a meeting on
24 October 2002 at which issues arising from the application for the
interdict were
discussed. The company’s version is that after a
caucus, the union representatives present made a commitment that the
buses
would be parked at the Alton depot, with effect from the same
afternoon. A statement to this effect is recorded in the minutes of
the meeting.
11.
On the afternoon of 24 October 2002, the drivers
again parked their buses at the Esikhaweni parking ground. On 25
October 2002,
the company’s attorneys addressed a letter to the
union alleging the existence of the unequivocal undertaking given at
the
meeting, the breach of that undertaking and giving notice of an
application to hold the drivers concerned in contempt of Court.
12.
On 28 October 2002, this Court granted a
rule
nisi
calling on the respondents to show
cause why their failure to comply with the order granted on 23
October should not constitute
contempt, and why they should not be
sentenced to 30 days imprisonment.
13.
On 30 October 2002, three drivers participating in the strike were
charged with various acts of misconduct. Disciplinary enquiries
were
duly convened, chaired by an independent person, Mr Robinson Manzi.
On 22 November 2002, the employees were found guilty
of the
charges against them. The chairperson recommended that they be
dismissed.
14.
On 30 November 2002, the eleven individual applicants were suspended,
and on 3 December 2002, they were dismissed. An appeal
against the
dismissal was unsuccessful.
15.
On 4 December 2002, by consent, the
rule
nisi
issued by this Court on 28 October
2002 was confirmed in respect of the individual respondents, subject
to the deletion of
paragraph 2(b) of the order i.e. that part of the
order which committed the individual respondents to prison for their
contempt.
16.
The basis on which the individual applicants were selected for
dismissal is central to these proceedings. The company’s
case
is that despite the chairperson’s recommendation, it did not
wish to dismiss all the drivers. Mr Myburgh, who testified
for the
company, stated that there was a shortage of drivers in the transport
and freight sectors, and that the company had to
consider the losses
it would suffer if it were to implement the recommendation that all
of the drivers who participated in the
strike be dismissed. The
company’s management elected to review the disciplinary records
of those employees who had been
found guilty of misconduct, and to
dismiss only those whose records reflected final warnings for prior
misconduct. The company
also decided to dismiss the shop
stewards, none of whose records disclosed final warnings. It did so
on the basis that they had
made a commitment in the meeting held on
24 October, and that the breach of their commitment had compromised
the relationship of
trust between them and the company.
17.
The applicants argued that the dismissal of all of the individual
applicants was unfair since it had been effected in breach
of what
has become known as the ‘parity principle’ This
principle, expressed broadly, requires that workers who engage
in the
same misconduct should be treated alike. Expressed more narrowly, the
applicants argued, it means that it is not justifiable
for an
employer to refuse or fail to distinguish between individual and
collective misconduct when administering discipline. In
other words,
it is not legitimate for an employer to draw distinctions between
employees, as the company did, on the basis of warnings
issued in
respect of prior individual misconduct when a sanction for collective
misconduct is under consideration.
18.
The applicable legal principles have evolved over the last 15 or so
years. In
National Union of
Mineworkers & others v Amcoal Collieries & Industrial
Operations Ltd
(1992) 13 ILJ 1449 (LAC)
the employer had dismissed approximately 1000 workers on account of
their participation in an illegal
strike. All of the employees were
subjected to disciplinary action on a charge of absence from work,
but not all of them were dismissed.
Each case was considered on its
merits, and a decision made on whether dismissal was appropriate. All
of the dismissed employees
had final warnings, but not all employees
with final warnings were dismissed. The majority of the Labour Appeal
Court, as it was
constituted under the 1956 Labour Relations Act,
held that the employer’s conduct was not unfair. In doing so,
the Court
rejected the argument that the dismissals were unfair on
account on any inconsistency, or because the employer had categorised
participation in collective action as an act of individual misconduct
for the purposes of its disciplinary code. What is immediately
apparent from the terms of this judgment (and what distinguishes it
from the judgments referred to below) is the fact that the
employer
charged employees who had participated in collection action, on an
individual basis, with the offence of absence from
work, without
either referring to or otherwise bringing into account the fact that
the absence was collective in nature.
19.
In
National Union of Mineworkers &
others v Free State Consolidated Gold Mines (Operations) Ltd
(1995) 16 ILJ 1371 (A), what was formerly known as the Appellate
Division of the Supreme Court held that a dismissal effected in
similar circumstances was unfair. The Court held that the misconduct
of those employees who had been dismissed was of substantially
the
same kind and degree as those who had been issued with warnings, and
on that basis, the dismissals were held to be unfair.
20.
In
SACTWU & others v Novel Spinners
(Pty) Ltd
[1999] 11 BLLR 1157
(LC),
this Court held that that it was inappropriate for an employer to
take into account warnings given for individual action
when it
considers an appropriate sanction in respect of collective action
(see para [45] of the judgment). (Although the reported
judgment
reflects that Mlambo J was the presiding judge, Zondo AJP notes in
NUM & another v Amcoal Colliery t/a
Arnot Colliery & another
[2000] 8
BLLR 869
(LC), that he gave judgment in the matter). The Court
stated:
‘
For
the above and many other reasons which have been stated in some of
the various judgments referred to above, I conclude that
it is
inappropriate for an employer to take into account warnings given for
individual action when he considers an appropriate
sanction in
respect of collective action. Accordingly in this case the respondent
acted unfairly in taking into account warnings
given for individual
misconduct as this ultimately resulted in workers who were guilty of
exactly the same conduct being disciplined
on a differential basis.
In my view, the dismissals were, therefore, unfair.’
21.
In
NUM & another v Amcoal Colliery
t/a Arnot Colliery & another
[2000]
8 BLLR 869
(LAC), the Labour Appeal Court considered the fairness of
the dismissal of a group of employees who had been dismissed for
failure
to comply with an instruction. The employees had been found
guilty of the charge. Two of the employees in the group were
dismissed,
based on final warnings issued for prior misconduct. The
Court dismissed an appeal against a finding by the industrial court
that
the dismissal was fair. Mogoeng AJA noted:
‘
The
parity principle was designed to prevent unjustified selective
punishment or dismissal and to ensure that like cases are treated
alike. It was not intended to force an employer to mete out the same
punishment to employees with different personal circumstances
just
because they are guilty of the same offence. ….. a
disciplinary record may justify differentiating between employees
guilty of the same offence’.
22.
Zondo AJP records, in a separate judgment, that his agreement with
the judgment of Mogoeng AJA should not be construed being
in conflict
with his judgment in
SACTWU & others
v Novel Spinners
. He said:
‘
What
was argued by the appellants in this case about previous warnings is
not the same point as the one that was argued by the applicants
in
the Novel Spinners case. In Novel Spinners, it was argued that an
employer is not entitled to take into account previous warnings
which
were in respect of individual misconduct when considering what
sanction to impose in respect of collective action. In this
case, the
appellant’s case, upon a proper analysis of the statement of
claim and the heads of argument, was that, by virtue
of the fact that
the conduct for which the previous final warnings had been issued was
not related to the conduct in respect of
which the respondent had to
decide an appropriate sanction, the employer was not entitled to take
such previous warnings into account.
These are different points. In
my view the former has merit, the latter none.’
23.
In
Coca Cola Bottling East London v
Commission for Conciliation, Mediation and Arbitration & others
(2003) 24
ILJ
823 (LC), this Court referred both to the
Free
State Consolidated Gold Mines
and
Novel
Spinners
judgments and refused to
review and set aside an arbitration award finding a dismissal unfair
in circumstances where the employer
had dismissed employees on final
warnings for acts of individual misconduct for their participation in
collective misconduct.
24.
Mr Schumann submitted that this Court was bound by the
Free
State Consolidated Mines
judgment,
since it was a judgment of the Appellate Division of the Supreme
Court, renamed the Suppresser Court of Appeal. I agree
with that
submission, and I fail to appreciate any basis on which that case, as
Mr Seggie (who appeared for the company) submitted,
is
distinguishable from the present. Any doubt as to whether or not the
Free State Consolidated Mines
judgment
rests on the principle at stake in these proceedings (ie whether
prior disciplinary action for individual misconduct can
be taken into
account in determining an appropriate sanction for later misconduct
of a collective nature), has been removed by
the later judgments of
the Labour Appeal Court and of this Court, all of which I have
referred to above.
25.
In summary: an employer is entitled in general terms to impose
different penalties on different employees for the same act of
misconduct, provided there is a fair and objective basis for doing
so. When an existing disciplinary record is the differentiating
factor, prior disciplinary action short of dismissal (in particular,
warnings) can be relevant in two ways. If the disciplinary
record of
one employee discloses prior disciplinary action short of dismissal
this can (I would suggest must) be taken into account
when the
employer decides on an appropriate sanction. Thus, in general terms,
the nature and extent of prior sanctions can legitimately
form the
basis of a differentiation in penalty, even when the nature of the
misconduct differs. An exception applies when the employer
considers
an appropriate sanction for misconduct that is collective in nature.
In this instance, prior disciplinary sanctions for
individual
misconduct cannot be used to justify a differentiation in penalty.
The employer has no choice but to impose the
same sanction in respect
of all employees engaged in the collective misconduct. However
commercially compelling the considerations
to which Mr Myburgh
referred in his evidence may have been at the time, they were not a
legitimate basis on which to select
for dismissal only those
employees whose disciplinary records disclosed final warnings for
acts of misconduct.
26.
The evidence of certain of the individual applicants who testified
suggested that the final warnings on which the company relied
in
selecting those who were to be dismissed were questionable, and that
some of them at least, testified that they had no knowledge
of the
warnings in question. Since I intend to decide this issue on the
applicable principle, I need make no finding in this regard.
I would
note though, in passing, that the disciplinary records on which the
company relied and the basis on which warnings appear
to have been
issued, leaves much to be desired.
27.
It follows from the applicable legal principles that on the company’s
own version, the dismissal of the individual applicants
who were
selected for dismissal on account of final warnings issued in respect
of individual acts of misconduct, was unfair.
28.
I turn now to the shop stewards. Shop stewards occupy an ambiguous
position since they are subject to the employer’s disciplinary
authority while they act as intermediaries between the employer and
union members. While shop stewards cannot claim special privileges
arising out of their role as employees, the performance of their
duties as such cannot in itself constitute a disciplinary offence,
and they must have committed an act normally categorised as
misconduct for any disciplinary action against them to be justified.
(See Grogan
Dismissal, Discrimination
and Unfair Labour Practices
at 390-1).
29.
The basis of the selection of the shop stewards for dismissal, as I
noted above, is an alleged breach of a commitment made to
management
representatives in the meeting held on 24 October 2002. None of
them had final warnings on record. Mr Myburgh’s
evidence was
that the shop stewards had been dismissed because they had breached
the relationship of trust placed in them by the
company. The fact
that the buses were not returned to the Alton depot that afternoon,
and the fact that shop stewards had failed
to return their own buses,
underpinned this breach. I have little hesitation in
accepting the company’s version
of events in relation to the
meeting held on 24 October 2002. The version proffered by the
individual applicants is inconsistent
with the minute of the meeting
(admittedly taken by management), the company’s version of
events on 24 October 2002 is consistent
with the affidavits filed in
the application to this Court during October 2002, and none of the
averments in these affidavits relating
to the events of 24 October
2002 were then contested or denied by the applicants. However,
I fail to appreciate how, given
the principle established by the
Appellate Division in
Free State
Consolidated Mines
and applied by this
Court since, the shop stewards’ conduct at the meeting or
afterward is a legitimate basis on which to
select them for
dismissal. If, as a matter of principle, prior individual misconduct
may not form a legitimate basis for the selection
for dismissal of
some employees from a group guilty of the same misconduct, I fail to
appreciate how it is legitimate to select
employees for dismissal on
the basis of their contemporaneous conduct. If there was any
breakdown of trust (as the company
alleges) that breakdown must
necessarily have extended to all of the employees who participated in
the unprotected strike. The
selection of the shop stewards for
dismissal from a group of employees all found guilty of the same
collective misconduct was not
justifiable. Further, the shop
stewards had never been charged with any offence relating to a breach
of trust or confidence
in them; the disciplinary enquiry was
conducted only in respect of charges relating to the strike and its
aftermath.
Selecting the shop stewards for dismissal on charges
that were never the subject of any investigation against them or any
opportunity
for them to state a case in response to the allegations
that ultimately formed the reason of their dismissal, was internally
unfair.
If the company’s contention was that the shop
stewards had at the time been guilty of offences in addition to those
which
related directly to participation in the strike, these offences
ought to have been included in the charges levied against them at
the
enquiry conducted by Mr Manzi. In short, I am not persuaded
that at the meeting the shop stewards gave personal undertakings
of a
nature and extent that justified their selection for dismissal.
30.
In summary, the basis employed by the Company to select the
individual applicants for dismissal was not legitimate, and their
dismissals were substantively unfair.
31.
I turn now to the proceedings concluded in this Court on 3 December
2002. The applicants conceded that the order to the
effect that the
individual applicants were in contempt of Court had been granted by
consent. Mr Schumman submitted that the
finding of contempt was
nevertheless of no force and effect, since it was in effect a finding
that the individual applicants concerned
were criminally liable, made
in circumstances where they were not present and where their
representative, in law, was not entitled
to consent to the order.
There is no merit in this submission. Criminal contempt is
constituted by conduct that is disrespectful
to the Court, for
example, the interruption of court proceedings, or wilful insult.
Civil contempt is the wilful and
mala
fide
refusal or failure to comply with
an order of court. Committal to prison for civil contempt is a mode
of procedure aimed at enforcing
court orders in civil proceedings
(See Herbstein & Van Winsen
The
Civil Practice of the Supreme Court of South Africa
4
th
Edition at 815). The proceedings instituted in this Court were in the
nature of contempt in the form of civil contempt. Although
civil contempt may also bear the character of a criminal offence,
this was not the form of contempt that formed the subject of
the
application. It was entirely competent therefore for the union
official concerned to consent to the order, as he did, on behalf
of
the individual applicants. The individual applicants themselves
testified in these proceedings as to the collective nature
of
decision-making in trade union structures, and this Court has on
numerous occasions held union members bound by the decisions
of union
officials.
32.
In regard to remedy, Adv Schumman conceded that in view of the time
taken to prosecute this matter, the principle established
by
Republican Press (Pty) Ltd v CEPPWAWU &
Gumede & others
[2007] 11 BLLR 1001
(SCA) applies, and confirmed that the applicants sought only
compensation for their unfair dismissal. The individual applicants
gave evidence as to their attempts to obtain employment after the
date of their dismissal. The majority of them found no
employment, or employment of only a temporary nature. Ordinarily, the
applicants would have been entitled to claim the maximum
compensation
permitted by the Act i.e. the equivalent of 12 months’
remuneration. In the present circumstances however, given
the
individual applicants’ contempt of this Court prior to their
dismissals, I consider that a lesser amount of compensation
is
justified. An amount of six (6) months’ compensation is
equitable and appropriate.
33.
I accordingly make the following order:
1.
The dismissal of the individual applicants
was substantively unfair.
2.
The individual applicants (with the
exception of the 5
th
and 7
th
applicants) are each awarded compensation in a sum equivalent to
their remuneration for a period of 6 months, calculated at the
rate
payable to them on the date of dismissal.
3.
There is no order as to costs.
________________________________
ANDRE
VAN NIEKERK,
Acting
Judge of the Labour Court
Date
of Hearing: 17 – 20 March 2008
Date
of Judgment: 11 July 2008
APPEARANCES
Advocate
for the Applicants:
Advocate Paul Schumann
Attorneys
for the Applicants:
Von Klemperers
Advocate
for the Respondent:
Advocate Rob Seggie
Attorneys
for the Respondent:
Tomlinson Mnguni James