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[2010] ZALCJHB 9
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Autoparts Distributors (Pty) Ltd v Hlongwane NO and Others (JR1393/07) [2010] ZALCJHB 9 (14 May 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE
NO: JR 1393/07
In the matter between:
AUTOPARTS DISTRIBUTORS
(PTY) LTD
Applicant
and
HLONGWANE, RAYMOND
N.O.
1
st
Respondent
THE DISPUTE RESOLUTION
CENTRE OF
THE MOTOR INDUSTRY
BARGAINIG COUNCIL
2
nd
Respondent
THE COMMISSION FOR
CONCILIATION
NUMS
obo A LUDIDI & 2 OTHERS
3
rd
Respondent
JUDGMENT
LAGRANGE,
AJ
1.
This is an application to review and set
aside in an arbitration award in terms of section 145 of the Labour
relations act, 66 of
1995 (the ‘LRA’). In
terms of the award issued by the first respondent on 14 may 2007, the
arbitrator found
the dismissal of three shop stewards, Mr A Ludidi,
Mr C Matyolo and Mr A Mojela (‘the shop stewards’) by the
applicant
on 10 August 2006 to have been procedurally fair and
substantively unfair. The arbitrator ordered the applicant to
reinstate all
three shop stewards within 48 hours of the award and
pay them back pay equivalent to nine months’ salary each.
2.
No transcript of the arbitration
proceedings was available because the taped record of the proceedings
was lost. The parties agreed
that the handwritten notes of the
arbitrator, which had also been transcribed, would serve as a record
of the proceedings. As much
of the evidentiary narrative appears to
be common cause between the parties, the absence of a full transcript
did not preclude
a review on the available record.
Factual
background
3.
The three shop stewards were charged and
dismissed for misconduct described as follows:
“
On
Friday 30 June 2006, you abused your position as a shop steward by
instigating and/or causing workers to perform unprocedural
,
unprotected and unlawful industrial action. Your conduct is
unjustifiably prejudiced the operations of the business and put the
companies named in a bad light.”
4.
On Thursday 29 June 2006, Ludidi had
requested the branch manager to make transport available for workers
to attend the funeral
of a colleague in Kwazulu Natal. The branch
manager requested Ludidi to provide a list of names of those wanting
to attend the
funeral.
5.
The next day, Friday 30 June 2006, the
applicant issued a memorandum to its workforce stating that employees
who wished to attend
a funeral of a colleague, would have to make
their own way to the funeral and the applicant would not assist with
transport. The
memorandum was handed to employees and also placed on
the notice board.
6.
When the memorandum came to the employees’
attention, they embarked on a work stoppage and demanded to meet with
the applicant’s
management.
7.
According to the testimony of one of the
shop stewards’ witnesses, Ms S Moloi, the workers were angry
that management had,
at the eleventh hour, refused to make transport
available for the funeral as the applicant had always done so in the
past. Her
testimony was largely confirmed by Ms T Sikiti.
8.
The Branch Manager of the applicant, Mr Du
Toit, was not on the premises when the work stoppage commenced.
9.
When the Branch Manager arrived he called
the three shop stewards to his office where he issued an ultimatum to
them, instructing
workers to resume their duties. The shop stewards
would not sign the ultimatum because it was addressed to all workers
and not
them alone. The shop stewards read the ultimatum to the
workforce, but the workers persisted with their strike action.
10.
Mr M Odayan, the applicant’s branch
warehouse manager, testified that he had heard the shop stewards
addressing the meeting
and heard the word ‘management’
mentioned about four times. However, he agreed he could not
understand what was being
said at the meeting as people spoke in
their mother tongue.
11.
Another of the applicant’s witnesses,
Mr P Mashabane, who was employed as a picker, testified that after
the memorandum had
been distributed, a meeting of the workers was
convened with the permission of a supervisor. Mashabane also
testified that Ludidi
addressed the workers and advised them that
what they were doing was illegal, but they had refused to return to
work. He agreed
that the employees had taken action collectively and
were not influenced by the shop stewards. Importantly, his testimony
confirmed
that the employees had decided themselves to stop working
after management advised it was not prepared to provide transport.
12.
When Matyolo gave evidence he stated that
workers had rejected the ultimatum and said they were not prepared to
return to work until
their demand for transport to the funeral was
met.
13.
Later, after workers had been addressed by
a union official, whom it appears had been requested to intervene by
Ludidi, they agreed
to return to work.
14.
Following the strike other workers who
participated in the strike action were given final written warnings,
but, according to the
testimony of Du Toit, the shop stewards were
treated differently because they had been elected as leaders of the
workers.
The
Arbitration Award
15.
After giving a comprehensive summary of
each witness’s testimony, the commissioner made factual
findings, which can be summarised
as follows:
15.1.
When workers became aware of the memorandum
they gathered and engaged in a work stoppage, demanding to see
management.
15.2.
When Du Toit arrived at the premises he
summonsed the shop stewards to his office and issued them with the
ultimatum which they
refused to sign.
15.3.
The shop stewards then met with the
workers.
15.4.
There was nothing odd about the fact that
the shop stewards did most of the talking in a union meeting and no
inference could be
drawn from that fact.
15.5.
Odayan had conceded that he never heard the
shop stewards advising employees to go on strike, and the only thing
he understood of
what he heard was the word ‘management’.
The arbitrator found he could not rely on Odayan’s evidence as
corroborating
the alleged misconduct.
15.6.
Mashabane, who was present when the
stoppage took place, had confirmed that it was the workers who had
embarked on a strike and
the shop stewards had not instigated them to
do so. On the contrary, they cautioned workers about the illegal
nature of their action.
16.
The commissioner summed up his assessment
of the evidence thus:
“
The
applicants and their witnesses gave corroborative and consistent
evidence that workers upon receiving a memo from management,
decided
to engage in work stoppage. The applicants and their witnesses also
gave corroborative and consistent evidence that the
shop stewards
(applicants) played a positive role in the situation, in that they
discouraged workers from embarking on an illegal
strike. This
evidence is consistent with the evidence tendered by the respondent’s
third witness.
The
applicants conceded that they did not sign the ultimatum, and
provided a satisfactory explanation for not doing so. It must
be
noted that shop stewards are not managers, and therefore they have no
powers to instruct striking workers resume their duties.
Their role
as explained by them in this arbitration was to advise and guide the
workers, which is what they did.” (sic)
17.
The arbitrator concluded that the applicant
had failed to discharge the burden of proof by failing to show on a
balance of probabilities
that the shop stewards had committed the
misconduct, whereas the shop stewards had adduced sufficient reliable
evidence that they
were not guilty of the alleged misconduct.
18.
Having found that there was no evidence of
an irretrievable breakdown in the relationship, the arbitrator held
that the shop stewards
were entitled to reinstatement. The
commissioner then ordered the applicant to reinstate the shop
stewards, within two days of
the receipt of the award, with nine
months’ backpay as compensation.
Grounds
of review
19.
As far as can be made out from the
applicant’s founding affidavit in this application, the grounds
of review raised were the
following:
19.1.
the commissioner wrongly attributed weight
to the corroborative value of the shop stewards’ witnesses’
testimony, because
it was to be expected that their version would
amount to a denial that they acted wrongfully and would contradict
the applicant’s
evidence;
19.2.
it was ‘quite possible’ to have
found that the shop stewards had instigated the industrial action,
despite ‘no
direct/on the spot’ evidence being presented;
19.3.
the sequence of events showed that the work
stoppage took place after the workforce had been addressed by the
shop stewards and
it followed that they must have incited workers;
19.4.
the sanction of reinstatement took no
account of evidence of a breakdown in the relationship and the
disruptive effect of
the strike action, and
19.5.
lastly, that the applicant had attempted to
subpoena certain employees who had been present but they had not
complied with the subpoenas
and the arbitrator still proceeded with
the matter even though they had not attended.
20.
The applicant submitted that the
abovementioned acts of the commissioner showed that he had misapplied
his mind to the evidence
before him, had exceeded his powers under
the LRA and had committed a gross irregularity in the conduct of the
proceedings. In
the founding affidavit the applicant made no attempt
to match any one of the grounds of review with any of the factual
assertions
in the affidavit. No supplementary affidavit was filed by
the applicant, so the grounds of review set out in the founding
affidavit
remained unaltered. On the face of it, it must be said that
the factual basis of the applicant’s grounds of review
summarised
in paragraphs 19.1, 19.2 and 19.3 above look very much
like grounds of appeal, because they essentially boil down to
contentions
that the commissioner’s findings were simply wrong.
21.
At the hearing of the review application,
the applicant only seriously pursued two grounds of review. Firstly,
more flesh was added
to its claim that the arbitrator failed to draw
the ‘necessary’ inference that the probable cause of the
unprotected
strike was the incitement of the workforce by the shop
stewards. Secondly, the applicant contended that the arbitrator had
paid
mere lip service to the criteria determining substantive
fairness when he concluded that the applicant had failed to prove its
case on a balance of probabilities. This claim was not contained in
the applicant’s grounds of review in its founding affidavit,
and was not explained at the hearing of the application. Accordingly,
it falls away.
The
arbitrator ‘s failure to conclude that the shop stewards had
incited workers
22.
In support of this argument, the applicant
contends that when the shop stewards used the term ‘management’
when addressing
the workforce it could only have been an endeavour to
incite the workforce that management had created the situation which
culminated
in their unlawful action. The applicant further
cites the fact that there was a considerable amount of noise and
commotion
generated by the workers which caused customers to leave
the workplace.
23.
Secondly, the applicant submits that it
incontestable that the shop stewards were in a position of authority
over the workforce.
24.
The company’s disciplinary code also
imposed on shop stewards the obligation to “guide and direct
the behaviour and
expectations of Union membership in accordance
with, agreements and the law”. The code, as quoted in the
applicant’s
heads of argument, goes on to state, “…(i)n
this respect, shop stewards will be held accountable for the
collective
union membership. Where shop stewards…fail to guide
their members to adhere to procedures and agreements (the Applicant)
will count on them, as duly elected representatives of the Union on
site to answer for the actions of their members and their Union.”
25.
The applicant submitted that the shop
stewards failed to exhaust all peaceful avenues and negotiation
channels between the workforce
on the one hand and ‘management’
on the other. In parenthesis, I note that the applicant uses
the term ‘management’
in its heads of argument to
designate the employer. Presumably, the use of the term here
was not seen as having the same
pejorative connotation as the
applicant attributes to it when it was used by the shop stewards in
the course of addressing the
workers.
26.
The applicant further submits that the shop
stewards failed to forge labour peace and thus comply with one of the
fundamental objectives
of the LRA. It also attributed what it called
‘the defiance and needless confrontation’ of the
employees, to the shop
stewards “failure to appease the
workforce sufficiently”.
27.
The applicant then proceeded to cite
various case authorities to demonstrate that incitement to engage in
an unprotected strike
constitutes dismissable misconduct, that
inflammatory language can lead to the dismissal of shop stewards and
that intimidation
of fellow employees by shop stewards is not to be
tolerated.
28.
As mentioned before, none of the
applicant’s submissions amount to grounds of review. Moreover,
even if this were an appeal,
there is simply no factual basis for the
applicant’s submissions. It is absurd to suggest that the
commonly used noun ‘management’,
which the applicant
itself uses in its heads of argument, should be construed as having a
pejorative connotation when used by the
shop stewards. It certainly
couldn’t be construed as incendiary language designed to incite
the workforce.
29.
The only other fact which the applicant can
identify as indicative of the shop stewards’ supposed
instigatory conduct is the
supposed sequence of events, namely that
workers went on strike only after they were addressed by the shop
stewards. But this contention
is not borne out by the evidence. Even
the applicant admits there was a work stoppage after employees were
given the memorandum.
It is clear from Du Toit’s own
evidence that he had been advised of the work stoppage before he
arrived at work and spoke
to the shop stewards.
30.
Further, as the third respondent
pertinently asks rhetorically in its answering affidavit, why would
Du Toit have issued the shop
stewards with an ultimatum telling
workers to return to work if they were not already on strike when he
met the shop stewards ?
At that stage the shop stewards had not yet
addressed the workers.
31.
Further, the preponderance of evidence
including evidence of one of the applicant’s own witnesses
supports the shop stewards’
version of events. What caused the
stoppage was management’s announcement, just before the weekend
when the funeral was going
to take place, that it was not going to
provide transport assistance to workers to attend their former
colleague’s funeral.
It seems that transport had been provided
on a previous occasion where the funeral was local, and the same
procedure of taking
a list of names of those who wanted to attend the
funeral had been followed.
32.
Shop stewards reacted to the stoppage
by trying to persuade workers that their action was unprotected.
They conveyed management’s
ultimatum to the workers themselves,
and when they were unsuccessful in persuading workers to return to
work a union official was
summonsed.
33.
I am of the view that even if I ignore the
question whether or not the applicant’s grounds of review pass
muster as review
criteria, the evidence before the arbitrator could
not reasonably support the findings the applicant believes the
arbitrator should
have made. Moreover, the grounds of review are
actually grounds of appeal and even if this were an appeal, the
applicant could
not succeed, on the evidence before the arbitrator,
in persuading me that he had erred in his assessment of the facts.
34.
The applicant also relies on a contention
that the shop stewards ought to have been held liable for the action
of their members,
on the assumption that shop stewards have some
direct authority over union members, and that if the members are
guilty of unlawful
mass action, the shop stewards are directly
responsible for that. Firstly, there was no evidence that the shop
stewards enjoyed
such influence over the union members at the
workplace. On the contrary, the conduct of the workforce showed just
the opposite:
it was only when a union official was called in that
workers could be persuaded to return to work. The evidence
shows that
the shop stewards did in fact attempt to persuade workers
that their action was unlawful. Far from inciting the workforce, the
shop stewards tried to end the unprotected strike.
35.
Secondly, the notion that the shop stewards
could somehow have ordered members to return to work if they had
wished to, reflects
a confusion on the applicant’s part between
the role of a shop steward and that of a foreman or supervisor. The
latter will
usually have managerial authority to issue instructions
which employees must comply with by virtue of their subordinate
status
in the employment relationship. If instructions are not
obeyed, disciplinary sanctions can be invoked to ensure compliance.
By
contrast, shop stewards ordinarily have only their persuasive
skills to convince union members to adopt a particular course of
action. If the majority of members choose not to accept the advice of
the shop stewards, there is little more they can lawfully
do.
The fact that the employer had entrenched its perception of shop
stewards’ obligations and liability in its code,
does not make
disciplinary action pursuant to that code fair. Such provisions would
probably not comply with the provisions of
Item 7(b)(i) of Schedule 8
to the LRA, namely that the rule or standard which has been
transgressed should be valid or reasonable.
To the extent that the
commissioner disregarded the provision in the employer’s code
which purports to hold shop stewards
liable for the actions of union
members, he would have been entitled to do so in this instance, as
such as it would be difficult
to demonstrate that the rule was valid
or reasonable.
The
question of subpoenaed witnesses
36.
The applicant makes an allegation that
certain of its own employees who were present when the strike
occurred, had been subpoenaed
to attend the arbitration hearing as
witnesses at the arbitration hearing. However, they failed to comply
with the subpoenas because
they were not present at the enquiry. It
contends the arbitrator should not have proceeded without securing
their attendance.
37.
The third respondent denies this allegation
and contends that there was nothing in the record or award to suggest
the arbitrator
denied the Applicant and opportunity to obtain its
witnesses. There is also no mention made of this issue in the heads
of argument
submitted by the applicant in the arbitration
proceedings, which one would have expected if the applicant felt it
had been prevented
from presenting an adequate case. Moreover, in its
founding affidavit the applicant failed to even provide the
identities of the
witnesses who did not attend, nor did it furnish
any details as to why those witnesses were needed. Certainly, on the
record of
the proceedings there is no basis for accepting the
applicant’s contentions. The applicant also failed to rebut any
of the
third respondent’s allegations on this issue which were
set out in the answering affidavit. This ground fails for lack of
sufficient evidence to support the applicant’s contentions.
The
breakdown of the trust relationship
38.
The applicant claims the arbitrator failed
to give proper consideration to evidence of the breakdown of the
employment relationship
in deciding to reinstate the shop stewards.
However, on the basis of the available record of the arbitration
proceedings,
I could not find any evidence of testimony on this issue
being adduced, nor was I alerted to any other basis for reaching this
conclusion at the hearing. Accordingly, this ground of review must
also fail.
Conclusion
39.
In the light of the analysis above, I am
satisfied that there is nothing defective about the arbitrator’s
award, which is
well reasoned and reasonable. The applicant has
failed to advance any cogent grounds to set it aside on review.
40.
The third respondent has also applied to
have the arbitration award made an order of court and there is no
reason why this ought
not to be granted.
Costs
41.
I was advised at the hearing of the
application, that the applicant had made an offer, with prejudice, to
the third respondents
at some stage prior to the matter coming to
court. Accordingly, the determination of the matter of costs will be
deferred.
Order
Accordingly,
it is ordered that:
42.
The application to review and set aside the
arbitrator’s award issued on 14
th
May 2007 under case number MINT 7033 S is dismissed.
43.
The arbitrator’s award, issued on
14
th
May 2007 under case number MINT 7033 S is made an order of court.
44.
The determination of an order of costs, if
any, is deferred to a hearing to be held on a date to be determined
by the Registrar
of this Court.
ROBERT LAGRANGE
ACTING JUDGE OF THE
LABOUR COURT
Date
of hearing : 19 March 2010
Date
of judgment: 14 May 2010
Appearances:
For
the applicant: Mr C Ascar
Instructed
by Fluxmans Attorneys
For
the third respondent: Mr A Goldberg
of
Nomali Tshabala Attorneys