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[2009] ZALCCT 8
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National Union Of Mineworkers and Others v Black Mountain Mining (Pty) Ltd (C153/2008) [2009] ZALCCT 8 (2 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO
:
C153/2008
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS
First
Applicant
JOHN
WILLIAM VAN DEN
HEEVER
Second
Applicant
BENJAMIN
JOHAN
VASS
Third
Applicant
and
BLACK
MOUNTAIN
MINING
(PTY)
LIMITED
Respondent
JUDGMENT
AC
BASSON, J
Parties
[1]
The first applicant is the National Union
of Mine Workers (hereinafter referred to as “NUM” or “the
union”)
the majority union at the respondent’s workplace.
Both the second and third applicants were shop stewards at the time
of
their dismissal. The second applicant is Mr. Van den Heever
(hereinafter referred to as “Van den Heever”). At all
relevant
times he was the chairperson of the union’s branch
committee at the respondent’s mine. The third applicant
is
Mr. Benjamin Johan Vass (hereinafter referred to as “Vass”),
who was employed as a full-time shop steward by the respondent.
The
respondent is Black Mountain Mining (Proprietary) Limited.
Dispute
[2]
This case concerns the dismissal of the
said two employees who were both former shopstewards of the
respondent. Both applicants
were dismissed for particular acts of
misconduct which occurred during the course of a strike. It is not in
issue whether or not
the strike as a whole was justified. The
applicants also alleged that in dismissing them, the respondent
acted
contrary to section 5
of the LRA (s187(1) and/or that the reason for the dismissal was:
“
that
the employee participated in or supported, or indicated an intention
to participate in or support, a strike or protest action
that
complies with the provisions of Chapter IV” (s187(1)(a)).
[3]
The allegations were therefore that the
dismissal was automatically unfair. This was in dispute. I will
return to this issue at
the end of my judgment. Suffice to point out
that no evidence was placed before the Court to substantiate a claim
for automatically
unfair dismissal. I have thus proceeded to consider
whether the dismissals were fair on the basis of misconduct.
[4]
Most of the facts pertaining to this matter
are not in dispute. What is, however, in dispute are certain of the
facts relating to
the charges against the two applicants. In
essence it was the case for the respondent that the evidence
establishes that
the two applicants are guilty as charged. The
applicants essentially aver that their conduct was justified by the
fact that they
were acting as union representatives and not as
employees. The respondent, however, argued that the fact that the two
applicants
were acting as union representatives and not as employees,
is not borne out by the established facts and circumstances and does
not, in any event, amount to a valid defense.
Brief
outline of the relevant facts
[1]
[5]
The respondent is a base metal mine with
approximately 800 employees. There were 9 shop stewards. Van
Den Heever was the chairperson
of the Shop Steward’s Committee,
Abie Maarman the regional chair and Vass the fulltime shop steward.
The respondent’s
turnover is approximately R1.5 billion per
annum. Nearby the mine is a residential area known as Aggeneys where
the respondent’s
employees are housed. The residential area of
Aggeneys comprises two parts: The north village and the south
village. Prior to 1994
and in accordance with apartheid legislation
in place at the time, the north village was reserved for white
employees, while black
employees resided in the south village. Since
1994 both of the villages have become racially integrated. The more
senior employees
stay in the north village. At the time of his
dismissal, Van den Heever had been resident in the north village.
[6]
There are two entrances to the mine. The
main entrance to the mine is at what is known as the boom gate. Some
1 to 1½ kilometers
away from the boom gate, is the
concentrator gate.
[7]
The mine operation also includes the mine
itself, a plant and workshops. Adjacent to the plant and
workshops is what is known
as the Broken Hill mining operation, which
is the old part of the mine. There is also an administration block
for the mine in the
town of Aggeneys which contains the offices from
where most of the mine’s senior management operates. The
main gate
is located here.
Applicable
collective agreements
[8]
It was common case that certain agreements
applied to the relationship between the union and the respondent.
These agreements are
the recognition and procedural agreement
concluded in December 2001 (hereinafter referred to as “the
recognition agreement”)
and the full-time shop steward
agreement also concluded in December 2001 (hereinafter referred to as
“the full-time shop
steward agreement”)
The
recognition agreement
[9]
The following paragraphs of the recognition
agreement are of particular relevance. Paragraph 7.3.2, which deals
with the channels
for communications that the union and its shop
stewards must use if they wish to issue communications in the
respondent’s
workplace. It reads as follows:
“
7.3.2
Any notice or leaflet for display shall be submitted by a Shop
Steward to the Human Resources Manager, or his designate, and
initialled by both parties before it is displayed. Where the Company
raises an objection to the content of any notice or leaflet,
the
parties shall jointly decide on the rewording of the text of the
document in question.”
[10]
Paragraph 8.1 and in particular paragraphs
8.1.1 and 8.1.2, which deal with the arrangements in terms of which
the respondent will
make facilities available to the union for
meetings at its premises, reads as follows:
“
8.1.1The
Union submits a request to the Manager for consent to hold a general
meeting within a reasonable period of time before
the time of the
proposed meeting;
8.1.2
The Union advises the Manger of the
names and official designations of Union officials and office-bearers
who are not employees
of the Company who shall attend the meeting.”
[11]
Paragraph 12.5, which deals with the terms
and conditions and status of employee representatives of the first
applicant and reads
as follows:
“
12.5
The recognition of the employees representatives in terms of this
agreement shall not be construed as conferring
upon such employee
representative any special privilege or preferential treatment in
relation to his position as an employee of
the Company and the
employee representative shall at all times and in all respects be
bound by the same terms and conditions of
employment which apply to
all other employees in the same occupation without detracting from
the provisions of clause 11.6.
An employee representative
shall not, however, be victimized for carrying out his rights and
duties as referred to in this clause.
”
The
Full-time shopstewards agreement
[12]
The following paragraphs of this
shopstewards agreement are also relevant. Paragraph 1.2, which deals
with the nature of the full-time
shop steward position, reads as
follows:
“
1.2
The full-time shop steward shall be in the full-time employ of the
Company and be subject to the Company’s
conditions of service
and all procedures and practices in existence and in operation at the
Company.”
[13]
Paragraphs
4.1 and 4.2 deals with the full-time shop steward’s reporting
line and limit the duties of the shopsteward to matters
relating to
the respondent.
[2]
Paragraph 4.3
and in particular paragraphs 4.3.6 to 4.3.8 deal with the more
specific functions of the full-time shop steward.
It is important to
refer to the contents thereof:
“
4.3
The functions of the full-time shop steward shall include:
…
..
4.3.6
discouraging and taking steps to
prevent any unlawful action by Union members;
4.3.7
ensuring that the Union complies with its duties and obligations as
specified in the Recognition Agreement annexed
hereto as Annexure A,
any other agreement entered into between the parties and all
applicable legislation;
4.3.8
promoting co-operation and understanding between Company management
and the Union members by means of communication
with and liaison
between the recognised shop stewards, other members of the Union and
the appropriate levels of Management, thereby
assisting in avoiding
or resolving grievances and/or disputes and conflict. In this
regard the full-time shop steward shall
have access to the Company’s
management through the Senior Human Resources Officer.”
In
regard to this paragraph it was argued that it is clear that this
agreement imposes, by agreement, certain positive duties and
standards upon shop stewards to promote co-operation between the
parties and to assist in conflict resolution.
[14]
Paragraph 4.4 and in particular paragraphs
4.4.1 to 4.4.3 deal with specific actions from which the full-time
shop steward shall
refrain and read as follows:
“
4.4
The full-time shop steward shall not, either directly or indirectly:
4.4.1.1
interfere in any way with the
management, business or running of the Company and its operations or
any aspect thereof;
4.4.1.2
interfere with the performance of
duties or the carrying out of lawful instructions by employees;
4.4.1.3
give instructions to any employee or
countermand any lawful instruction given to any employee by his
supervisor concerning the performance
of his work;
…
.
4.4.6
absent himself from work without the prior approval of the Senior
Human Resources Officer.”
Disciplinary
code
[15]
In addition to the two agreements referred
to above, the respondent’s disciplinary code, which forms part
of the recognition
agreement, is also relevant. The third unnumbered
paragraph under paragraph 1 deals with the rights of managers and
supervisors
to take disciplinary action against employees who have
acted in a manner that is prejudicial to the company’s
interests and
reads as follows:
“
The
taking of appropriate disciplinary action is an indefeasible right of
any supervisor and manager in the Company where a subordinate
employee has acted in a manner prejudicial to the interests of the
Company or in breach of company standards.”
[16]
The last sentence of the paragraph under
the heading “Schedule of Offences, Proposed Action and Policy
Guidelines” states
that:
“
The
seriousness of misconduct must be considered in light of all the
circumstances surrounding the misconduct.”
[17]
Page 7 of the disciplinary code deals with
what are considered to be major offences, of which the following were
specifically raised
in evidence:
“
Intimidating
or inciting employees to violence of any form;
Threatening violence –
to do physical injury to any other person;
Striking illegally or
participating in unlawful unrest;
Refusal to perform any
lawfully assigned regular work practice not involving unusual
physical risk, or to obey instructions given
the employee by the
designated supervisor without just or reasonable cause, the onus
being on the employee to justify the refusal
and/or disobedience;
Unauthorised and/or
uncommunicated absenteeism where such absence is longer than three
successive working days, unless the employee
offers a formal,
reasonable and legitimate excuse for the absence, the onus in this
case on the employee to justify the unauthorised
and/or communicated
absence;”
[18]
On page 5 of the disciplinary code under
the heading “Very Serious Offences” the following is
identified:
“
Misuse
of company property for private purposes (which is theft);”
Career
development system
[19]
It is important to refer to the dispute
that gave rise to the industrial action. A dispute had, over some
time, developed in relation
to a career development system at the
respondent (hereinafter referred to as the “CDS”). The
union wanted employees
to be trained as fast and possible so that
they could earn better wages. The union regarded the lack of training
of black employees
as part of the legacy of apartheid and as
reflecting the apartheid wage. Van Der Mescht’s evidence
was that the essence
of the dispute concerned the number of people
who would eventually benefit from training. There were only a
limited number
of posts and the system thus had to be vacancy based.
This stance was not acceptable to the union.
[20]
During the 2005 salary negotiations between
the union and the respondent it was agreed that the parties would
meet with each other
and consult on the grading of positions within
the respondent’s business. These discussions started in
approximately
July 2005 and the respondent had, by August 2005,
proposed a job grading system. Vass was not satisfied with the
respondent’s
proposal in this regard and suggested that he
would revert to the respondent with an alternative job grading system
that NUM had
used within its own organisation. Nothing was, however,
forthcoming from Vass by the end of 2005 when Vass went on annual
leave.
When Vass returned from leave in January 2006, he advised the
respondent that the union’s members were disgruntled because
their upgrading had not been implemented as from the beginning of
that year. According to the respondent, it was surprised
because no discussion had by that time taken place in respect of any
upgrading. Whilst the respondent and NUM were in discussion
in
relation to this issue, an unlawful strike occurred. This unlawful
strike resulted in the dismissal of three shop stewards and
111
employees being given final written warnings. A dispute in relation
to the above disciplinary action was referred to the Commission
for
Conciliation Mediation and Arbitration (“the CCMA”),
which dispute was ultimately resolved by the parties agreeing
to
revoke the dismissal of the three shop stewards and replace their
dismissals with final written warnings, and to shorten the
period of
validity of the final written warnings of the 111 employees (from of
12 months to 6 months).
[21]
During the course of 2006 further attempts
were made to address the CDS dispute. A consultancy group known as
Proudfoot was appointed
to advise the respondent in regard to the
issue. Proudfoot completed its work towards the end of August 2006.
Discussions between
NUM and respondent regarding the CDS continued
through a series of meetings in December 2006, during which the
parties made good
progress to the extent that it was the respondent’s
view that the issue would be finalised at a last meeting in December
2006. This meeting was scheduled, but on the day that it
would take place an accident in the mine resulting in a fatality
occurred and the meeting had to be postponed. When the respondent
attempted to revive the discussions with a view to concluding
the
outstanding issues, the union introduced a new demand that the
respondent pay each employee R500 as a fine (“boete-geld”)
because the CDS dispute had not as yet been finalised. This,
according to the respondent, derailed the consultation process
and in
January 2007 the union declared a dispute. The dispute was referred
to the CCMA and a certificate of non-resolution was
issued.
[22]
At that stage the respondent’s
business was being managed by an acting general manager. The
new general manager, Mr.
Olaf Meijer (hereinafter referred to as
“Meijer”), took up his position with effect from 1 May
2007. Under Meijer’s
direction the respondent made various
further unsuccessful attempts to resolve the dispute.
[23]
On 14 June 2007 the union gave the
respondent notice of a strike that would commence on the evening of
17 June 2007.
The
Strike
[24]
It is common cause that the strike
commenced on Sunday evening, 17 June 2007 at 18h00. The crux of
the strike was whether
the career development process would be
vacancy based or not.
[25]
Van Den Heever did not join the strike. He
was, however, contacted by Van Der Mescht on 18 June 2007 when Van
Der Mescht requested
him to leave the workplace and attend to his
members at the main gate who were on strike and to ensure that the
strikers were under
control.
[26]
It was the evidence on behalf of the
respondent that it received various reports that the strikers were
congregated at the main
gate of the mine and that they were
obstructing the flow of traffic in and out of the mine. These reports
and other incident reports
received right through the course of the
strike were recorded in a so-called “strike register”,
which was predominately
kept by Van der Mescht.
[27]
As a result of these reports it was decided
to allow non-striking employees to use the concentrator gate, which
was usually reserved
for heavy duty vehicles taking concentrate out
of the mine, to enter the mine through that gate. The respondent also
called in
the assistance of the South African Police Service (“the
SAPS”) to be present in and around the mine as from 18 June
2007 onwards to monitor the ongoing strike.
[28]
Van der Mescht testified that threats were
also made against him personally. He testified that he became so
concerned that he had
laid a charge of intimidation with the SAPS.
[29]
On 6 July 2007 the union advised the
respondent that it intended suspending its strike action but that the
dispute between the parties
could not be regarded as resolved.
[30]
The dispute remained unresolved and the
employees also did not return to work en masse immediately. The
respondent accordingly
elected to resort to a lock-out to try and
bring a resolution to the dispute. Notice of the lock-out was given
on 11 July 2007.
The lock-out commenced on 14 July 2007.
[31]
The strike and lock-out were ultimately
resolved on the basis that the employees accepted the respondent’s
terms and returned
to work.
[32]
After the strike it was decided to
discipline the two shopstewards.
Applicable
legal principles
[33]
Employees who embark on a protected strike
are afforded protection against dismissal in terms of section 187(a)
of the LRA. Employees
who commit misconduct during the course of a
protected strike are, however, not protected against disciplinary
action. In
CEPPWAWU & Others v
Metrofile (Pty) Ltd
[2002] ZACC 30
;
[2004] 2 BLLR 103
(LAC) the LAC succinctly summarised the position as follows:
“
The
purpose of a protected strike is to enable employees to engage in a
form of power play with the employer with a view to influencing
the
employer into offering better conditions of employment. What
this entails in practice is that employees are entitled
to withdraw
their labour and are also entitled to engage in pickets in
furtherance of their strike action.
What
is also clear, however, is that the right to engage in a protected
strike is not a license to engage in misconduct.
[3]
An
employer has the right to institute disciplinary action at any time
against employees engaging in misconduct particularly of
a criminal
nature …. At the end of the day employees engaging in
protected strike action need to know that they may only
engage in
legitimate activities intended to advance the course of their
protected strike. Fairness also demands that an employer
should not
wait for a strike to end to institute disciplinary action for
strike-related misconduct. By its nature, illegitimate
strike-related
misconduct, if unchecked, affords strikers an unwarranted advantage.
Due to the illegitimacy of the misconduct it
cannot be expected of an
employer to tolerate it indefinitely.”
[4]
[34]
It is clear that employees may be dismissed
for strike-related misconduct. What is not, however, always clear is
to what extent
this applies to disciplining shop stewards for
misconduct during a strike. It is accepted that especially a
full-time shop steward
is in a fairly unique situation in the
workplace. His salary may be paid by the employer but he devotes all
his time to serving
the interests of the union. The job description
of a shopsteward is usually also contained in a collective agreement.
When the
agreement is breached by the union, the employer may
retaliate by canceling the agreement. One of the remedies at the
disposal
of the employer, who is dissatisfied with the conduct of the
full-time shopsteward, is to use the dispute procedures provided for
in the collective agreement (as was done in this case on a previous
occasion). However, the fact remains, and this will become
clear when
the case law is examined, that a shop steward remains an employee and
thus remains under the disciplinary control of
the employer. It is,
however, accepted that a more lenient approach towards disciplining
shopstewards may be warranted where the
shop steward acts as a shop
steward. I will examine this issue in more detail hereinbelow.
[35]
It
is also trite that the onus is on the employer to prove that the
dismissals were procedurally and substantively fair.
[5]
The employer must prove, in the context of a rehearing, that the
employee was indeed guilty of the misconduct for which he was
dismissed. In general misconduct implies the contravention of a
valid or reasonable rule or standard regulating conduct in
the
workplace.
Disciplining shop
stewards
[36]
When shopstewards are dismissed for alleged
misconduct committed while performing their duties as shop stewards,
the first issue
that must be established is whether or not they were
in fact committing misconduct as employees or whether the alleged
misconduct
was merely an action ancillary to the duties of a shop
steward. Furthermore, where it is established that the shop
steward
was indeed committing misconduct in relation to his duties as
a shop steward, the limits of the immunity from disciplinary action
that should be extended to shop stewards must be determined.
[37]
Mr. Kahanovitz referred the Court to
various decisions in which it was recognised that shop stewards play
a dual role in the workplace.
See for example
:
NUM on behalf of Sekgoeng and Impala Platinum Limited
(2006) 27 (ILJ) 2187 (CCMA). In this matter the Commissioner accepted
that shop stewards has a dual relationship with the employer
and that
a shop steward carry out the will of the collective structure that he
forms part of. It is also accepted that shop stewards
play a very
important role in looking after the interests of its members and that
the negotiation style of shop stewards may not
always be acceptable
to the employer. However, it is equally accepted that the mere fact
that a shop steward fulfils this dual
role does not give him or her
the license to do as he or she pleases.
[38]
Both Mr. Kahanovitz and Mr. Pretorius
referred the Court to the decision in
Adcock
Ingram Critical Care v CCMA & Others
(2001) 22 ILJ 1799 (LAC). In this judgment the LAC considered what it
called the court
a quo
’s
‘
anything goes
’
approach in respect of the conduct of shop stewards and held as
follows:
“
One
cannot divorce the bargaining situation from reality. The
negotiation pertains to the workplace and the employment situation.
The employer negotiates as employer and the employee as employee and
the fact that both negotiating teams represent their principals
does
not alter this. The fact that meetings often degenerate does
not mean that one should jettison the principle that as
in the
workplace also at the negotiating table the employer and the employee
should treat each other with the respect they both
deserve.
Assaults and threats thereof are not conducive to harmony or to
productive negotiation. Of course the criminal
law can be
invoked should there be a criminal act, but that is the last thing
one looks for in the bargaining process. Of
course the refusal
to negotiate further in the face of abuse is an option, but why
should the inhibitory effect of possible disciplinary
action in case
of serious transgressions not be allowed to lubricate the process
into civility?”
[6]
[39]
The Court, however, came to the conclusion
that the immunity granted to trade union representatives in terms of
section 97(3) of
the LRA (which grants immunity from civil liability
to trade union representatives) extend only for
bona
fide acts.
[40]
Item 4(2) of the Code of Good Practice:
Dismissal also deals with discipline of trade union representatives.
The Code reads as follows:
“
Discipline
against a trade union representative or an employee who is an office
bearer or official of a trade union should not be
instituted without
first informing and consulting the trade union.”
[41]
What is, in my view, clear from the
aforegoing is that disciplinary action can be taken against shop
stewards provided that such
misconduct was not
bona
fide
. There is therefore not, in
principle, a bar against disciplining shop stewards for acts of
misconduct. However, in doing so, certain
procedural steps must be
taken (item 4(2) of the Code of Good Practice).
[42]
It thus appears that the legislature (and
the LAC in
Adcock Ingram supra
)
recognizes that there must be a balance between the right of shop
stewards to exercise their functions as representatives of a
union
(and of its members) and the right of employers to discipline shop
stewards even when exercising their duties as shop stewards
for acts
of misconduct. On the one hand it is thus recognized that employers
cannot abuse their position to badger shop stewards
into submission.
On the other hand, it is also recognized that employees who abuse
their position as shop stewards may be subjected
to disciplinary
action by their employers. The LAC further recognized that judges and
arbitrators can scrutinize such abuse. What
should also not be left
out in the equation is the fact that once negotiations end, the
employment relationship resumes.
The “
anything
goes
”-approach can therefore not
be accepted at face value and employers must have the right to take
disciplinary action against
employees who brandish weapons, threaten
management or make false allegations of racism to exert their will
during negotiations.
It is, however, accepted that employers are
expected to tolerate a certain level of insolence on the part of shop
stewards and
even a degree of disrespectful behaviour on the part of
shop stewards especially during negotiations during a strike which
otherwise
may have been regarded as unacceptable.
[43]
It is therefore in the borderline
situations (excluding obviously situations which involve violence,
intimidation or racism) involving
insolent or even disrespectful
behaviour that it is left to the Court or to the arbitrator to make a
value judgment between what
is considered to be tolerable conduct
during negotiations (especially during a strike situation as in the
present case) and what
is not. In making this value judgment, all the
circumstances of each particular case will have to be taken into
account. This was
recognized by the LAC in
Adcock
as follows:
“
[17]
It may be accepted that an employee enjoys greater leeway than normal
when he acts as a negotiator. This flows from his
dual capacity
(as an employee and as negotiating representative). But it would be
wrong to lay down that he has free rein to do
or say whatever he
wants. He remains an employee, and that relationship has to be
taken into account as well.”
[44]
In
SACTWU &
Another v Ninian & Lester (Pty) Ltd
(1995)
16
ILJ
1041 (LAC) the LAC, for example rejected a shop steward’s plea
that she had been unfairly selected for dismissal after she
had led a
walk out of the workstation. The LAC held that her conduct was
not “
collective
”
as she claimed and also took into account that her employment record
demonstrated “
an attitude of
militancy, open defiance and non-cooperation
”.
The Court concluded as follows:
“
Sound
and healthy labour relations are built up by reasonableness,
understanding, fairness and the ability to negotiate –
not by
militancy, belligerence, obstinacy and the refusal to consider a
point of view other than yours.”
(At
72H.)
[45]
In
Mondi Paper
Co Ltd v PPWAWU & Another
(1994) 15
ILJ 778 (LAC) the LAC the Court acknowledged that a shopsteward has a
particular roll to play. The LAC also acknowledged
that this is not a
license for unruly behaviour. In this particular case the shop
steward was dismissed for deliberately disrupting
a meeting with
management. The Court held as follows:
“
No
doubt a shop steward should fearlessly pursue the interests of the
members he represents, and he ought to be protected against
being
victimized for doing so. However, this is no license to resort
to defiance and needless confrontation. I do not
agree with the
view of the court a quo that the fact that he is acting in his
capacity as a shop steward serves to ‘mitigate’
conduct
which objectively is unacceptable. Notwithstanding the position
to which he has been elected, a shop steward remains
an employee,
from whom his employer is entitled to expect conduct that is
appropriate to that relationship
.”
(At 780.)
[46]
A similar view was expressed in
BIFAWU
& Another v Mutual & Federal Insurance Co Ltd
(2006)
27 ILJ 600 (LAC) where the LAC held as follows:
“
That
an employee, even when he or she is representing a fellow employee at
a disciplinary enquiry or arbitration hearing, owes certain
duties to
an employer cannot be doubted. Among these is the duty to act
honestly. … After all, when an employee represents
a fellow
employee at a disciplinary enquiry or arbitration hearing, he or she
does so precisely in that capacity of being a fellow
employee. The
fellowship does not transubstantiate the continuing employment
relationship between the employer and the representing
employee.
…
the
right and duty to represent a fellow employee to the best of one’s
ability is not an unbridled licence; it is constrained
by the duty to
do so honestly. Without honesty on the part of the representatives of
the parties, the system would be unviable.”
(At
paragraphs [19] and [21].)
[47]
The theme emerging from all of the cases
referred to here is clear. Although shop stewards who are performing
their functions as
shop stewards cannot be victimised for performing
their functions (as union representatives), they nonetheless still
have an obligation
to their employers to conduct themselves in a
responsible manner. Should they engage in disorderly or disrespectful
conduct (although
it is acknowledged that it is not always clear to
what extent such behaviour should be tolerated by an employer) they
can be discipline.
I agree with the submission that the test would
seem to be whether a shop steward’s conduct can be said to fall
within the
realms of fair and acceptable bargaining conduct and
whether it can be said to be reasonably related to the performance by
the
shop stewards of their functions as such. I am further in
agreement that if a shop steward’s behaviour does not satisfy
this test, and the employer takes disciplinary action, they cannot
rely on the privileges that otherwise attached to their position.
The
conduct of Vass and Van den Heever
[48]
Against these principles, I will now
consider the substantive fairness of the action taken against the
Vass and Van den Heever.
The
evidence in respect of Vass
[49]
It was the evidence on behalf of the
respondent that various incidents gave rise to the charges against
Vass. He was charged with
the following:
Charge
No. 1
“
Refusing
to obey a lawful instruction in that on 30 May, 1, 5, 14 and 15 June
2007, you used the company computer network to distribute
union
notices/letters to all employees registered on the company e-mail
system, without the required prior permission, despite
being
explicitly warned not to continue with this practice.
Alternatively
Unauthorized use of
Company property: in that on 30 May, 1, 5 and 15 June 2007, you used
the company computer network for purposes
that you were not
authorised to do, by distributing union notices/letters to all
employees registered on the company e-mail system,
without the
required prior permission, despite being explicitly warned not to
continue with this practice.”
Charge No. 2
“
Making
false, inflammatory/inciting/offending/insulting accusations and
statements: in that on 22 June 2007, whilst addressing a
crowd of
striking employees at the gates of the Main Offices, you accused
management of being “soos diewe in die nag”
and accused
the General Manager of racism, thus instigating racial disharmony
amongst the striking employees during a very sensitive
time. On
29 June 2007 during a meeting you once accused the General Manger of
racism.”
Charge No. 3
“
Intimidating
and making of inciting statements: in that on 19 June 2007, whilst
addressing a crowd of striking employees at the
boom gate you made
the following intimidatory and inciting statement, “Ons kan nie
vir Malcolm vd Mescht se veiligheid waarborg
nie”, resulting in
striking employees displaying placards with threatening messages
against Malcolm vd Mescht at the Main
Offices gate during a protest
gathering later that day.”
Charge No. 4
“
Intimidatory,
Provocative and Threatening behaviour towards members of management
in that on 14 and 15 June 2007 at the Broken Hill
offices you acted
in an provocative, intimidating and threatening manner towards
members of management. “
Evidence
in respect of charge 1
[50]
Extensive evidence was led on all the
charges. I intend to give only a brief summary of the evidence that
was led in respect of
each charge. Van Der Mecht’s evidence was
that Vass had sent out e-mails on 30 May 2007, 1 June 2007, 5 June
2007, 14 June
2007 and 15 June 2007 without the authority to do so
and despite an instruction from Van der Mescht given on 30 May 2007
not to
do so. Van der Mescht testified that he was one of the
recipients of an e-mail dated 30 May 2007 sent by Vass. The e-mail
he
saw was a notice for a mass meeting which had been sent to all of the
recipients on the respondent’s e-mail system.
[51]
Van der Mescht further testified with
reference to the recognition agreement and in particular paragraph
7.2.3 thereof that it is
clearly stipulated that union notices need
to be approved by the respondent and can only thereafter be displayed
on the various
notice boards. He further testified that no notices
had previously been sent out on the e-mail system. It was put to Van
der Mescht
that the recognition agreement did not relate to the use
of e-mail by the union. Van der Mescht, however, claimed that it was
clear
from the context of the agreement that the same applied whether
publication was produced in an electronic format or in hard copy.
The
union disputed that the relevant clauses of the recognition agreement
also include the use of e-mail.
[52]
Van der Mescht took the matter up with
Vass. He testified that he advised Vass that his conduct was
unacceptable. He also told Vass
that he did not want to take
disciplinary action against him and said to Vass “
dat
hy hierdie gebruik moet onmiddelik staak
”.
According to him Vass merely stated “
point
taken
” or words to that effect.
According to Van der Mescht he understood by this response that Vass
understood that he should
refrain from this conduct. However,
despite this conversation Vass again sent out similar communications
on the respondent’s
e-mail system on 1, 5, 14 and 15 June 2007.
These emails were also copied to members of respondent’s
management. Both Van
der Mescht and Meijer received the e-mails.
[53]
Vass denied that he had received the
instruction from Van der Mescht. According to him Van der
Mescht merely told him
that the people ‘
in
die gang
’ did not like the e-mail
that he had sent out. He said he merely understood management
was unhappy with the e-mail
and not that he was not permitted to use
the e-mail system. He, however, agreed that Van der
Mescht had said these
were sensitive times and that he had responded
“
point taken
”
or words to that effect. Vass also testified that other members
of the workforce had used the e-mail in a similar
fashion for social
purposes and that he was not aware of any rule that required prior
approval by the General Manger of the respondent.
[54]
Vass’s main point seemed to be that
because the e-mail related to union business the matter should have
been taken up with
the union and not with him in his personal
capacity as an employee. He was also of the view that the instruction
would in any event
be unlawful as it precluded legitimate trade union
activity. Van der Mescht’s conceded that he had not given the
union an
instruction not to send out similar e-mails, but was adamant
that he had given such an instruction to Vass.
[55]
I am in agreement with Mr. Pretorius’
submission that Vass’ version of what transpired in relation to
the e-mails is
improbable and should be rejected in favour of Van der
Mescht’s version. It is not in dispute that there was a
conversation
about the e-mails. I find it unlikely that Van der
Mescht would merely have told Vass that management was upset
particularly in
light of the fact that Vass admitted that Van der
Mescht told him that it was a sensitive time. Vass also admitted that
he said
to Van der Mescht “
point
taken
”. I am thus in agreement
that it is more likely that Van der Mescht had told Vass that he
needed prior approval for sending
out these notices. However, and
more importantly, Vass was a full time shop-steward. He must have
known that he required prior
signing off on union notices going on
its notice boards. He therefore must have known that he also required
prior approval of notices
that the union wanted to send out via the
respondent’s email system (even in electronic format). Even if
I were to accept
that Van der Mescht only told Vass that management
was unhappy (which is Vass’ version), his conduct of sending
out further
notices shows Vass’s general defiance of management
(see the discussion in respect of the other charges).
[56]
Lastly, the argument raised by Vass that
the instruction not to use the e-mail system was unlawful as it
prevented legitimate union
activity (in other words that it
constitutes vitimisation), cannot stand. Firstly, there is no duty on
the respondent in terms
of any agreement that it must make its e-mail
system available to the union, and secondly, at the time of the
sending out of the
e-mails, the strike had not yet been announced. It
can, therefore not be argued that the instruction prevented strike
action. I
therefore do not accept the argument that Van der Mescht
was endeavouring to secure an advantage in the power play.
[57]
In light of the aforegoing I am satisfied
that Vass is guilty as charged. I will deal with the appropriate
penalty later in the
judgment. I must, however, point out at the
outset that I agree with Mr Kahanovitz that dismissal for this
transgression on its
own would have been disproportionate. I must,
however, also point out that Vass was not only charged with this
count, he was charged
with much more serious charges each of which if
found guilty may well attract the sanction of dismissal. I will now
turn to charge
2.
Evidence
in respect of charge 2
[58]
From this charge it is clear that Vass
allegedly accused the Respondent’s management of acting “
soos
diewe in die nag
”; that
management thought that “
swart
mense hooligans is
”; and
management “
moet ophou om vir
hulle soos kaffers te behandel
”.
[59]
Meijer was the respondent’s main
witness in respect of these allegations. In brief, Meijer testified
that he had commenced
employment with the respondent on 1 May 2007.
One of his aims was to finally settle the ongoing CDS dispute. He
testified that
the parties were not able to resolve the dispute and
that it resulted in a strike (commencing on the evening of 17 June
2007).
He testified that it was important for the respondent
that the community of Aggeneys be made aware of the strike. He also
testified
that the respondent wanted those employees who wished to
continue working to understand that it was within their right to do
so.
A letter was delivered on the evening of 21 June 2007 to
the community of Aggeneys.
[60]
Meijer testified what transpired the next
morning. He was called to the main gate at the administration block
to receive another
memorandum. When he arrived there, Vass was
busy addressing the crowd of strikers from the back of a bakkie.
Vass,
inter alia
,
talked about the letter of the previous evening. Meijer testified
that Vass told the crowd that management had distributed the
letters
of the previous evening ‘
soos
diewe in die nag’
. Vass also
stated that the letters were only distributed in the south village
where the black employees stayed. He further stated
that management
would not even listen when a black person talked and that it appeared
that management again thought black people
were hooligans.
Meijer testified that the statements were directed at him personally
because he sent out the letter and he
was there that morning to
receive a memorandum. He also said that Vass looked directly at him
when he made the statements in question.
[61]
Vass did not deny that he made the
statements but testified that the statements had to be viewed in
context and that his comments
were justified. He claimed that the
manner in which the letters were distributed was suspect particularly
because it was only distributed
to the south village. He further
viewed the letters as an attack on the union and that the union found
it offensive because the
respondent was trying to galvanise the
community against the union in circumstances where the union was
trying to gather support
for a sympathy strike. The reference to
“diewe in die nag” should be seen in the context that
management did something
behind the union’s back,
[62]
It was further Vass’ evidence that
the Respondent targeted women and those living in the historically
black part of the town
with the letters. Because management had tried
to mobilise the community against the union, it was decided by the
union to also
take steps to mobilise its members hence the meeting at
the gate the next day as a show of solidarity.
[63]
A perusal of the letter does not show that
there was a personal attack on the union. This much was in any event
conceded by Vass.
Meijer’s evidence that the reason why the
letter was not distributed to the whole north village because they
ran out of copies
before it could be distributed to the whole
village, was not disputed with the respondent’s witnesses when
they were cross
examined;
[64]
In respect of the words issued by Vass, it
is accepted that a strike situation is often highly emotive and often
explosive. It is
for that reason that it is expected of shop stewards
and the union to exercise caution when addressing their members. It
is accepted
that the verbal communications with members are often
forceful and that shop stewards and union officials could be
outspoken and
even be highly critical of management. This show of
power and solidarity is not only part of the power play but generally
acceptable.
After all this is a strike situation. However, it is
equally accepted that there are limits to what will be considered to
be acceptable
conduct during the course of strike action. On
this particular day management was invited to the boom gate to
receive a memorandum
from the workers. I accept that the
purpose of the meeting was to show union solidarity. However, I am in
agreement with
Mr. Pretorius that Vass’ conduct exceeded the
boundaries of reasonable conduct during a strike. The allegations,
especially
those that smack of serious racism, are serious. I must
also point out and this is a point that will be made again
hereinbelow:
Racism in the workplace is unfortunately still a
reality. If there are issues of racism it should be taken up with
management.
In the present case no effort was made by the union to
bring such issues to the attention of management. Vass also conceded
that
his statement in relation of black people being hooligans was
serious and that no attempt has been made to clarify the issues
underlying
this statement with management. The context within which
these statements were made should also be considered. They were made
during
a time when the relationship between the parties was strained
as a result of the strike. The statements were clearly aimed
especially
at the general manager as it was he who signed the letter.
It also cannot be ignored that no attempts have been made to take up
the racial issues with management. Lastly, the content of the letter
did not, in my view, justify the response from Vass. The letter
essentially reminded workers of their right to work. The letter
further requested workers to encourage the union to reach a
meaningful
settlement. Although it is accepted that the union can
take issue with any letter sent to its members especially during a
strike,
I am not persuaded that this letter justified the racial
insults directed at Meijer.
[65]
As far as the remarks at the boom gate are
concerned, it is therefore concluded that they were unwarranted and
unacceptable.
The
remarks made on 29 June 2007
[66]
The remark of 29 June 2007 (which also
formed part of the charge) warrants separate evaluation. Three
witnesses on behalf of the
Respondent testified what occurred at the
meeting on 29 June 2007. Van der Mescht, Meijer and Glyn Barton
(hereinafter referred
to as “Barton”) confirmed that a
meeting took place on 28 June 2007 (the previous day). It appeared to
management that
progress had been made in respect of the resolution
of the CDS dispute to the extent that the respondent was hopeful that
the matter
would be resolved the following day. Van der Mescht was
asked to provide the union with actual figures in relation to the
opportunities
for advancement in terms of the respondent’s
latest proposal, which he did via email to the union. The meeting
resumed on
29 June 2007. Meijer confirmed that the requested
information had been sent to the union the previous evening but that
the
union took issue with the information. Meijer testified that this
was done in a courteous manner. Meijer and the union discussed
the issue in order to find out why the union was dissatisfied with
the information. Meijer explained to the union that the figures
sought by the union were not available and that it would take some
time to compile it. The evidence was that Vass then out of the
blue
(“
uit die bloute
”)
and completely out of the context of the meeting interrupted the
meeting by stating that “
bestuur
moet ophou om vir hulle soos (stupid) kaffers te behandel
”.
Meijer testified that Vass was “fairly aggressive”.
Meijer testified that he was offended and taken aback and
that he
then decided to end the meeting and leave. Van der Mescht recorded a
note of the meeting.
[67]
Vass admitted that he used the words. He
explained that the statement was not aimed at Meijer but at Van der
Mescht. He then
explained that Van der Mescht had a history of
racism and that he had taken the matter up with Van der Mescht and
other managers.
[68]
I have several difficulties with the
evidence of Vass. Firstly, the allegation of racism leveled at Van
der Mescht was raised for
the first time at the trial. It has never
been raised before. Secondly, Meijer was at the stage of the outburst
not even talking
to Vass. Thirdly, allegations of racism have never
been leveled against Van der Mescht formally. This was raised for the
first
time at trial. Grievances were raised against Van der Mescht
during the strike which was dealt with. It is indeed strange that a
serious allegation of racism was not also raised at that stage. The
first grievance called for the removal of Van der Mescht’s
from
negotiations and for his dismissal because he did not play a positive
roll. No mention was made of racism. The second grievance
also makes
no mention of any racism. It is highly improbable that if Van der
Mescht was perceived as a racist that this issue would
not have been
raised earlier. As I have already pointed out, our workplaces are no
strangers to this evil. If it existed in this
workplace, I am of the
view that it would have been raised earlier. I am lastly not
persuaded that the verbal attack was directed
at Van der Mescht. This
was the evidence of Meijer and it was not contested. In fact, Vass
accepted that Meijer stormed out of
the meeting because he was of the
view that the verbal attack was directed at him. Lastly, even if the
attack was directed at Van
der Mescht, I am still of the view that it
was completely unwarranted.
[69]
Mr. Kahanovitz conceded that the contents
of this statement extended beyond the immunities that should protect
union leadership
in a strike context or to promote the freedom of
expression. Although I will return to the appropriateness of the
sanction later
in the judgment, suffice to point out that it was
submitted that mitigating circumstances existed. Mr. Kahanovitz
pointed out that
Vass was under considerable stress at the time and
that the strike was frustrating. These words were also, so it was
submitted,
expressed in the heat of the moment. Mr. Kahanovitz also
disputed that racist accusations can only be made if it can be proven
that the allegations are true. He argued that this is part of the
political rhetoric and that it is based on perception. I agree
in
part with this submission. I agree that racism is often a perception
that a person has for which, if investigated, no substantiating
facts
may be found. However, the context within which these words were
uttered cannot be ignored. Vass was a shop steward. He was
not an
employee with no muscle power. He had the full force of a respected
and powerful union behind him. If there had been issues
in respect of
racism, those could have been raised at any time. The context in
which the words were uttered should also be considered.
Vass’
words were unprovoked and unwarranted.
[70]
In light of the aforegoing I am satisfied
that Vass is guilty as charged. As far as the sanction of dismissal
is concerned, although
I will discuss that hereinbelow, I must point
out that I am not persuaded that the mitigating circumstances (if
they are indeed
such) excuse his conduct. Vass was a shopsteward.
Although this position brings certain privileges and to a certain
degree protection
against disciplinary action, it also brings about
certain responsibilities. Vass as a shop steward was there to protect
and advance
the interests of his members. Instead he resorted to
personal and unwarranted verbal abuse. This is not acceptable and it
cannot
be expected of management to tolerate such behaviour –
not even from a shop steward.
Evidence
in respect of charge 3
[71]
On 19 June 2007 approximately 200 strikers
assembled outside the boom gate. According to the evidence Vass
addressed the ground
from the back of his bakkie with a loudhailer.
Mr Harry Bray (hereinafter referred to as “Bray”)
testified that Vass
told the crowd that “
ons
kan nie Malcolm van der Mescht se veiligheid waarborg nie
”.
Bray who was present testified that he saw this as a treat to Van der
Mescht. A poster later appeared depicting the
death of Van der
Mescht. Van der Mescht received other threats and reported these to
the SAPS.
[72]
Vass did not deny having said these words
to the crowd but justified it by saying that he was merely conveying
a view. In
the disciplinary enquiry, however, Vass stated that
he was merely making a factual statement to the effect that the union
would
not take responsibility for the safety of Van der Mescht.
Vass, however, conceded that there were “hot heads”
in
the crowd and that some of them consumed alcohol. Vass also conceded
that the poster that appeared later the day was a serious
threat to
the person of Van der Mescht.
[73]
I have indicated in the preceding
discussion of the law that the conduct of a shop steward should be
evaluated in the particular
circumstances of each case and that the
Court or arbitrator will be called upon to make a value judgment as
to what is considered
to be acceptable and unacceptable behaviour.
[74]
In the circumstances of this case, where it
was acknowledged by Vass that the atmosphere was tense and that there
were hotheads
in the crowd, it was, in my view highly irresponsible
to have uttered these words. Coupled with the threats that Van der
Mescht
received and the placard that displayed his death, these words
cannot be trivialized or justified. Vass was irresponsible and his
conduct exceeded what is regarded as reasonable behaviour of a shop
steward. In the event I am of the view that Vass is guilty
as
charged. His conduct was willful and constitutes serious misconduct.
Charge
No. 4
[75]
Vass was found not guilty on this charge
and will, therefore not be considered.
Evidence
in respect of charge 5
[76]
It was not in dispute that Vass absented
himself from the workplace from 9 to 13 July 2007 and that he did not
have the permission
of the respondent. It was further common cause
that he attended the South African Communist Party National
Conference during that
time.
[77]
Van der Mescht’s uncontested evidence
was that Vass approached him on 6 July 2007 for permission
for leave for the
following week. Van der Mescht refused him
permission as he was the full-time shop steward and the strike was
still in progress.
Van der Mescht also had discussions with the human
resources manager at the time and it was decided not to approve the
request
for leave. Van der Mescht thereafter informed Vass of the
decision.
[78]
Vass testified that although he was the
chief negotiator at the time in respect of the dispute that gave rise
to the strike, he
wanted to remove him from the process and allow
someone else to take over. It was, however, common cause that
this was never
communicated to the respondent. Vass did not, in other
words, explain to management why he wished to take leave.
[79]
I am in agreement with the submission that
it was not unreasonable for the respondent to have refused Vass leave
whilst the strike
was still ongoing particularly where management was
not aware of the real reason for wanting to take leave. I am
therefore of the
view that Vass is guilty of absence without leave.
The
position of Van den Heever
[80]
Van den Heever was charged with the
following:
Charge No. 1
“
Intimidation,
Incitement and Threatening behaviour – in that on 22 June 2007
at the concentrator gate you verbally threatened
that “my mense
raak kwaad en gaan brand”.
Charge No. 2
“
Interfering
with an employee in the execution of his duties – in that on 22
June 2007 you without the authority to do so instructed
the security
employee on duty to provide him with the particulars of all persons
entering and exiting the concentrator gate.”
[81]
Mr. Philip Phetlhane (hereinafter referred
to as “Phetlhane”) was called to testify on behalf of the
Respondent in respect
of the events that transpired at the
concentrator gate on 22 June 2007. In brief it was his evidence that
he was instructed by
Bray to guard the concentrator gate and to
provide access to those people that wanted to enter the mine and
work. Whilst
he was on duty he saw a Bantam bakkie approaching
the concentrator gate with two occupants. He recognised Van den
Heever
who was driving. He testified that he was asked if the route
was used by cars or trucks. He testified that he was told that people
were angry and that they are going to burn. He said that Van den
Heever gave him an order to register cars gaining access and exit
to
the premises and that Van den Heever would come back to collect the
registration sheet. He did not recognise the passenger in
the
vehicle. He reported the incident to Captain Grey. It was put to him
under cross examination that he had said at the hearing
that he did
not know Van den Heever.
[82]
Despite the fact that Phethane was a
difficult witness who refused to answer any questions that were not
contained in his statement,
I did not perceive him to be a dishonest
witness. He stuck to his version. When it was put to Phetlhane that
it was not Van der
Heever who spoke to him but a man with the name of
Tanyane, he was adamant that he spoke to Van den Heever and not
Tanyane.
[83]
The Court was thus confronted with two
mutually destructive versions. What is, however, common cause was
that Van den Heever was
at the gate. It is only in dispute who spoke
to Phetlhane. It must be pointed out that it was accepted by Mr.
Kahanovitz that there
were contradictions in the evidence of Van den
Heever. On the other hand we had the evidence of Phetlhane (although
he was a difficult
witness) which was in all respects consistent. I
have, however, also taken note of the fact that Van den Heever did
not call Tanyane
to corroborate his version despite it being on
record that his whereabouts (i.e. his place of work) were known to
the applicants.
In view of the aforegoing I am persuaded that Van den
Heever was guilt as charged.
Procedural
fairness of the dismissal of Vass and Van den Heever
[84]
Two procedural issues were raised. The
first is that there was an undue delay between the factual events and
the taking of disciplinary
action against both applicants. The second
is bias. Only the procedural complaint in respect of bias was
pleaded.
[85]
Because the complaint about the delay was
not pleaded the issue need strictly not be considered. I have
nonetheless considered this
point. It appears that various events
took place after the May and June incidents which formed the basis of
the complaints against
the Applicants. After the strike was called
off, the workers were locked-out. The lock-out was finally called off
on 14 August
2007. On that day the union was given notice of the
respondent’s intention to investigate allegations of misconduct
against
shop stewards. The union and the respondent exchanged
correspondence and various meetings took place between the parties
between
27 August 2007 and 7 September 2007. On 11 September the
respondent informed the union that the hearings will commence.
The
hearings were scheduled for middle September. I have considered
the reasons for the delay and I am satisfied that the period leading
up to the hearings were taken up by the strike, the lock-out, the
exchange of correspondence and various meetings. Once the process
was
concluded, the respondent instituted disciplinary action. I am thus
not persuaded that there was an undue delay in bringing
the charges.
Also, I should reiterate that this issue was, in any event, not
before the Court.
[86]
The second complaint is the alleged bias of
the chairpersons. At the outset it should be pointed out that it is
quite clear from
the record of the disciplinary enquiries that no
objections were made in respect of the chairpersons of the hearings.
Neither applicant
sought the recusal of their chairpersons. Apart
from the fact that neither applicant ever objected to their
respective chairpersons,
no factual basis has been laid to
substantiate a claim of bias. At the very least the applicants should
have produced evidence
that would have persuaded this Court that the
chairpersons were bias. Presiding officers need not recuse themselves
merely because
an accused employee alleges bias: some foundation must
be laid for the claim. A measure of “institutional bias”
has generally also been accepted in the Labour Court. I am therefore
not persuaded on the evidence and a perusal of the record
of the
disciplinary hearings that this claim is substantiated. As far as the
procedure is concerned I am of the view that the dismissal
of both
applicants was procedurally fair.
Appropriate
sanction in respect of Vass.
[87]
I have already indicated that I am of the
view that Vass is guilty as charged. Although I would not have
imposed the sanction of
dismissal if charge 1 was the only charge
against Vass, I am, however, of the view, especially having regard to
charges 2 and 3
that dismissal is an appropriate sanction. The
actions of Vass were serious. Although he was a shop steward and
although a certain
degree of latitude should be allowed, Vass grossly
overstepped the line. His unsubstantiated allegations of racisms
against senior
management were clearly unwarranted. Moreover, Vass’
threats against the person of Van der Mescht are extremely serious
and
cannot be condoned. In these circumstances I am of the view that
the sanction of dismissal is warranted. In respect of charge 5,
Vass
willfully absented himself from the workplace. This conduct made him
guilty of gross insubordination and insolence. Taking
into account
all the charges (except for charge 1) I am of the view that dismissal
is an appropriate sanction.
Appropriate
sanction in respect of Van den Heever
[88]
In respect of Van der Heever, I am less
inclined to impose the sanction of dismissal. Although I am of the
view that Van den Heever’s
misconduct was also serious
(although not nearly to the extent of Vass’ misconduct), I am
of the view that his personal circumstances
outweigh imposing the
sanction of dismissal. His evidence was that he and his wife had to
leave Aggenys because Aggenys is a mining
town. His plan had been to
remain in the employ of the respondent until his retirement. He also
had strong ties with the community.
His evidence also was that he had
worked himself up. I have therefore decided to order his
reinstatement but not fully retrospective
in light of the seriousness
of his misconduct. I therefore order Van den Heever’s to be
reinstated but limit his retrospective
reinstatement to 6 months. Van
den Heever is further ordered to report for duty no later than 1
February 2010.
The
automatically unfair dismissal dispute
[89]
One final point must be made in respect of
the claim of automatically unfair dismissal. It is trite that the
applicants have an
evidential burden to prove the true reason for the
dismissal. The applicants bear an evidential burden to produce
evidence which
is:
“
sufficient
to raise a credible possibility that an automatically unfair
dismissal has taken place”
,
after which the company is required to “
produce
evidence to show that the reason for the dismissal did not fall
within the circumstance envisaged in s187 for constituting
an
automatically unfair dismissal
”.
[7]
[90]
No
such evidence was placed before this Court. In fact, the respondent
has provided clear evidence that the reason for the dismissal
of Vass
and Van den Heever was misconduct. Dismissal for misconduct must be
adjudicated by the CCMA. This Court does, however,
has a discretion
to assume jurisdiction. See in this regard the decision of the Labour
Appeal Court in
Wardlaw
v Supreme Mouldings (Pty) Ltd
(2007) 28
ILJ
1042 (LAC) where the LAC confirmed that the Labour Court does not
have jurisdiction in respect of disputes which must be referred
to
adjudication in terms of the provisions of the LRA.
[8]
This Court, may, however continue with hearing the dismissal dispute.
It was on that premise that this Court proceeded to hear
the unfair
dismissal dispute on the basis of misconduct:
“
[18]
The exception to the general rule referred to above is the one
provided for in s 158(2). Section 158(2) of
the Act provides:
'(2)
If at any stage after a dispute has been referred to the Labour
Court, it becomes apparent
that the dispute ought to have been
referred to arbitration, the Court may -
(a) stay the
proceedings and refer the dispute to arbitration; or
(b) with the consent
of the parties and if it is expedient to do so, continue with the
proceedings with the Court sitting as an
arbitrator, in which
case the Court may only make any order that a commissioner or
arbitrator would have been entitled to make.'
[19]
It seems to us that the effect of s 157(5) read with s 158(2) is in
part that the only situation
where the Labour Court has jurisdiction
to deal with a dispute that is otherwise required to be referred to
arbitration in
terms of this Act is a situation that falls
within the ambit of s 158(2). Leaving out s 158(2)(a) which does not
seem to contemplate
the Labour Court adjudicating such a dispute,
that scenario seems to be only the one contemplated by s 158(2)(b) of
the Act. Even
if both parties to a dispute were to agree to ask the
Labour Court to resolve a dispute which ought to have been referred
to arbitration,
for example, a dispute concerning a dismissal for
misconduct that would not be enough to confer jurisdiction on the
Labour Court
to resolve such a dispute. In addition to the consent of
both parties, it would have to be shown that it is expedient for the
court
to continue with the proceedings but, even then, it will not
sit as a court but its judge will have to sit as an arbitrator.”
Costs
[91]
Despite the fact that the applicants have
been partly successful I am still awarding costs in favour of the
respondent as it has
been substantially successful.
Order
[92]
In the event the following order is made:
1.
The dismissal of the second applicant, Mr.
John William van den Heever was substantively unfair but procedurally
fair.
2.
The respondent is ordered to reinstate the
second applicant retrospectively but limited to six months.
3.
The second applicant is ordered to report
for duty no later than 1 February 2010
4.
The dismissal of the third respondent was
substantively and procedurally fair.
5.
The applicants are ordered to pay the costs
including the costs in relation to the employment of senior counsel.
AC
BASSON, J
DATE
OF TRIAL:
8 – 12 June 2009
and 30 – 31 July 2009
DATE
OF JUDGMENT:
2 December 2009
FOR
THE APPLICANTS:
CS
Kahanovitz
Instructed
by Cheadle Thompson & Haysom
FOR
THE RESPONDENTS:
PJ
Pretorius SC.
Instructed
by Edward Nathan Sonnebergs Inc.
[1]
Both parties have submitted comprehensive heads of argument and I
have relied liberally on the heads in summarizing the facts
and the
evidence.
[2]
“
4.1
The full-time shop steward shall report to the Senior Human
Resources Officer at the Company.
The Senior Human
Resources Officer shall be responsible for the supervision of the
full-time shop steward during his normal working
hours in respect of
all procedures, terms and conditions of employment, which apply to
the full-time shop steward.
4.2
The full-time shop steward shall,
during normal working hours, solely concern himself with matters
relating to the Company and
shall not conduct any non-Company Union
business during such normal working hours, except with the Company’s
prior consent.”
[3]
My
emphasis.
[4]
At
paragraphs [53] to [54].
[5]
Section
192(2) of the LRA.
[6]
Ad paragraph [15].
[7]
Kroukam
v SA Airlink (Pty) Ltd
(2005)
26 ILJ 2153 (LAC) at para 28
[8]
“
[17]
It is clear from s 157(1) that the Labour Court does not have
'exclusive jurisdiction where this Act provides
otherwise'. It has
'exclusive jurisdiction in respect of all matters that elsewhere in
terms of this Act or in terms of any other
law are to be determined'
by it. However, all of this is subject to the Constitution and
s 173 of the Act. Section 173
of the Act deals with the jurisdiction
of this court and is of no relevance to the issue before us. Section
157(5) is very important.
It provides:
'(5)
Except as provided in section 158(2), the Labour Court does not have
jurisdiction
to adjudicate an unresolved dispute if this Act
requires the dispute to be resolved through arbitration.'
This
provision lays down a general rule to which there is only one
exception. The general rule is that '[t]he Labour Court does
not
have jurisdiction to adjudicate an unresolved dispute if this Act
requires the dispute to be resolved through arbitration'.
This contemplates,
for example, a dispute concerning the fairness of a dismissal where
the reason for the dismissal as alleged
by the employee is
misconduct or alleged misconduct on the part of the is of the view
that reasons other than those employee.
This means that as a general
rule the Labour Court has no jurisdiction to adjudicate such a
dispute.”