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[2010] ZALCD 25
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National Union of Metal Workers of South Africa and Others v Toyota South Africa Motors (Pty) Ltd (D241/07) [2010] ZALCD 25 (21 May 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA HELD IN DURBAN
CASE
NO: D241/07
NOT
REPORTABLE
In
the matter between
NATIONAL
UNION OF METAL WORKERS OF
SOUTH
AFRICA
First
Applicant
G.
KHUMALO & B.
NYADI
Second and further Applicants
And
TOYOTA
SOUTH AFRICA MOTORS (PTY) LTD
Respondent
Judgment
Cele
J
Introduction
[1]
This is a claim of unfair dismissal of the second and third
applicants by the respondent after they had been subjected to an
internal disciplinary hearing which was precipitated by an
unprotected industrial action by some of the employees of the
respondent.
The applicants seek a reinstatement, failing which they
ask for compensation. The claim is opposed by the respondent on the
basis
that the dismissal of the two employees was well supported by
evidence and that a fair procedure was followed.
Background
facts
[2]
The second applicant, Mr. Given Khumalo commenced his employment with
the respondent, hereafter referred to either as the company
or the
employer, on 22 April 1994. He served in various capacities, and was
on the date of his dismissal a full time Shop Steward
of the first
applicant, the union, looking after 7 departments. The Paint Plant
was one the 7 departments. He had served in that
capacity for about
four years. He had been a departmental Shop Steward for another four
years before that. His salary and the total
allowances he received
just before his dismissal were R12000.00 to R13000.00 per month. The
third applicant, Mr. Bongani Nyadi
commenced his employment with the
company on 3 May 1991. He similarly served in various capacities
within the company but on the
date of his dismissal he was a part
time Shop Steward, since 2004. He did not do any particular
production work as he had to represent
his constituency.
[3]
The employer is accompany duly incorporated in term of the company
laws of the Republic of South Africa and it carried on business
as a
manufacturer of motor vehicles based in Prospecton, Durban.
[4]
Various collective agreements were in place at the times material to
this matter so as to guide the parties in the event of
them being
faced with work related problems. The relationship between the
company and the union has a long standing history which
did not
escape the influence of the country’s politics and the
development in industrial relations. The collective agreements
were
then reached between the parties as a means of, inter alia,
developing trust and mutual respect between Management and the
union.
There is an understanding between them that the fate of the business
and all employees will, to a significant extent, be
determined by the
ability of Management and the union leadership to jointly manage the
challenges facing them. These agreements
included the Masibambane
Pact, the Rajah Naidoo settlement agreements and the Riverside
Declaration.
[5]
In terms of the Masibambane Pact the company and the union understood
and identified themselves with work related challenges
and they
jointly committed themselves to the following shared objectives as
the cornerstone of the “Toyota way”:
Ø Open and
honest communication – no surprises
Ø Trust and
mutual respect;
Ø Sharing of
all relevant information timeously;
Ø Respect
for each other’s rights and obligations;
Ø Practicing
shared values of openness and integrity.
[6]
In terms of the Rajah Naidoo agreement of 24 November and 1 December
2000 a compromise was reached between the company and the
union on
TAC workers that had participated in an unprotected strike and the
company agreed to pay then for the hours during which
there was a
work stoppage. It was further agreed that:
Ø Management
and the union acknowledged that unprocedural industrial action was
detrimental to the employer –
employee relationship and such
action was denounced in the strongest terms;
Ø In so far
as reasonably possible Numsa pledged not to engage in unprotected
industrial action and to discourage such
action taken or to be taken
by its members;
Ø Management
was also to take precautionary measures to ensure that Managers did
not indulge in conduct that could
provoke conflict;
Ø Management
also undertook not to embark on unprovoked unprocedural lockouts;
Ø Both
parties committed themselves to a relationship that was based on a
constructive engagement and a joint problem
solving;
Ø The Toyota
Governance document in existence then, relating to payment during
work stoppages was to be jointly signed
and approved by Numsa and
Management, as part of the agreement.
[7]
There are three interaction levels that the parties agreed to and
they are the industry level, the company level and the plant/
divisional level. Various communication and interaction structures
were agreed upon being:
Ø Auto
Industry National Bargaining Forum (NBF);
Ø
Totota/Numsa Central Negotiation Committee (CNC);
Ø
Manufacturing IR Committee (MIRC Dbn) and Parts Distribution Center
IR Committee Meeting (PDCIRC Jhb);
Ø
Divisional/ Plant Shop Steward/Management Meetings;
Ø
Departmental/ Shop Steward/ Management Meetings;
Ø Green
Area Meetings & Management Briefs;
Ø Quarterly
General Meetings and
Ø Ad Hoc
Management/ Labour General Meetings.
[8]
A full time Shop Steward was not attached to any operational
functions and only did union work. The company supplied him or
her
with offices, a motor vehicle, computers and the necessary
stationary. The Masibambane Pact outlines the roles of Management
and
of the Shop Stewards. Shop Stewards must, within the context of the
union’s constitution, at all times act in the interest
of their
members and the company. The Departmental Shop Steward reports
directly to the nominated Line Manager and must, at all
times be
available to his/ her department in order to attend to matters of
concern. Departmental Shop Stewards are primarily responsible
for
matters pertaining to their constituent areas, and should refrain
from getting involved in other areas within the Plant unless
authorized by the Chairman of the Shop Stewards Council.
[9]
On 2 August 2006 an expedited dispute resolution forum meeting was
held at the communication centre of the company. Members
of
Management, the Shop Stewards and the union Organiser, Mr. Hlatshwayo
were in attendance. A Senior Manager, Mr. Gazendam chaired
the
meeting. According to Mr. Gazendam the main issues for consideration
had been dealt with at various company stages and had
reached the
ultimate forum. The issues were described as being about Mr. Emanuel
Killian, the TAC environment and the TAC employees.
The trigger to
the issue was said to be a contractor who was employed incorrectly,
where no due process was said to have been followed.
When the
Shop Stewards approached Management on the issue they said that they
were told by Management that correct procedures were
followed only to
later concede to the contrary. Mr. Killian had taken responsibility
for the mistake. He was subsequently charged
with poor performance
and was given counseling. The union was not satisfied with the manner
in which Management handled the matter
and believed it was a cover
up.
[10]
The response by Mr. Gazendam was that he could not conclusively say
whether the process followed was correct. He said that
he had
instructed the department to put all the information on the matter on
his table so that he could make his decision on it.
He pointed out
though that the union had many options of finding a solution, such as
lodging a grievance, to ask for an Expedited
Resolution Forum and to
utilize legal remedies. He pointed out that the clear intention to
act illegally was not acceptable. Referring
to a suspected, looming
and unprotected strike, he said that it would amount to a
contemplated and premeditated unlawful action
which the company would
seriously challenge. He said that the Rajah Naidoo Governance did not
apply to premeditated unlawful action
and would not be applied in
that case as there would be no protection against dismissal.
The union held a caucus after which
they suggested that Mr. Killian
was to be suspended pending a finding by the chairperson or in the
alternative, that he be put
on leave. Management declined to put Mr.
Killian on suspension or leave but said that the company would ensure
that he did not
provoke the situation while a remedy was being
sought. The meeting was then ended.
[11]
On 4 August 2006 workers within the company’s paint shop
department started their work normally and went out for their
tea
break, during which they held a meeting. They thereafter refused to
resume work. Meetings took place between Management of
the company
and the Shop Stewards in an attempt to resolve the problem and to
persuade the employees to return to normal work.
The first was
held at about 10h25. Messrs Khumalo and Nyadi attended it. It was
recorded in the minutes that
·
Mr. Steynmetz had requested employees to return to work but that they
just sang;
·
The refusal to return to work amounted to an unprocedural work
stoppage
·
Management needed to know the concerns of the employees;
·
The Shop Stewards were to address the employees and to normalize the
Plant;
·
Employees were to follow the internal grievance procedures;
·
Management would follow the Rajah Naidoo Document.
·
Mr. Khumalo confirmed that the Shop Stewards were not aware of the
problem as
they had been attending to other commitments;
·
Mr. Nyadi requested Management to address the workers so as to source
out their
concerns but that Management confirmed that they would not
address the workers as they regarded it as being the responsibility
of the Shop Stewards.
[12]
The meeting was ended on the basis that the Shop Stewards would go to
speak to the employees. At about 11h10 the meeting resumed.
The
Shop Stewards reported that the employees wanted the General Manager
to address them and not the Shop Stewards. The Manager,
Mr. Stephen
Nel said that Management needed to give a feedback to their seniors
and that meeting was ended. The next meeting was
held at 11h30. It
was still noted that the stoppage was premeditated and unacceptable.
The union was urged to get workers back
to work as soon as possible
as it was said that there was no way that the union could absolve
itself from the consequences. The
union delegation undertook to relay
the message to the committee, saying that they did not know what was
happening at the Paint’s
department as the Shop Stewards of
that department had not reported the issue to them. The union was
urged to display responsible
leadership and the meeting was ended.
[13]
After 11h00 the Paint Shop employees that were gathered at their
canteen, after refusing to resume work, began to march out
of the
canteen. Mr. Khumalo was with them. They were singing and dancing as
they went passed the spray booth area to the air blow
off booth. One
of the marchers opened the roller up door and the group exited the
colour preparation area. The group then moved
to the dojo area where
there was a dojo trainer, Mr. Christopher Burger. Mr. Burger asked
Mr. Khumalo to close the roller up door.
He did not. The marchers
proceeded to the buy off area and finally returned to the canteen
where they were addressed by various
speakers. A video recording of
some of the events of that day was captured.
[14]
The next meeting was held at 13h00 but it did not last that long as
the Paint department Shop Stewards were yet to brief the
committee of
Shop Stewards. The meeting afforded the Shop Stewards an opportunity
to normalize the situation and to return to the
discussion. The next
meeting resumed at 14h30. Mr. Hlatshwayo reported that the workers
had returned to work even though their
demands had not been met.
Management complimented the union for normalizing the situation and
urged them to use the available channels
to process the existing
grievance. Management however undertook to exercise its reserved
rights on Monday regarding the unprocedural
action. Management
advised the union to process any grievance with the Paint Shop
Management but the union felt that the
issue was beyond the Paint
Plant and that they would resort to a higher level structure once
they would have studied the dispute
resolution process.
[15]
One issue that had been of concern to the Paint Shop workers was the
respondent’s intention to introduce a change in
its Management.
An Engineering Manager, Mr. Logan Naicker was to take over at the
Paint Shop. Workers were not in agreement with
that proposal as they
felt uncomfortable in working with him due to the previous experience
they had had with him. The issue pertaining
to the change had been
raised by an address that Mr. Steven Nell had made to the workers at
the Paint Shop in what was known as
the Soft Box meeting. Workers
informed Mr. Nell that they did not want Mr. Naicker back as he was
regarded as a strong or less
accommodating Manager. Mr. Nell was then
to report back to them on the issue. On 4 August 2006, Mr. Nell had
not yet reverted to
the workers on the issue. It had taken a position
that the report back was to be given by the Shop Stewards but the
Shop Stewards
did not agree that they were the ones to make that
report.
[16]
In Paint Plant 2 a shop was to be replaced in the old plant.
Management had decided that another shop was to be demolished
to make
space for a warehouse. Plant 2 was to be maintained on contract on a
fixed term basis and Messrs Andrew Muller and Martin
Saunders were to
maintain Plant 2 while a Mr. John Welsh who had been retired was to
be retained on day shift. However, the union and workers did
not
agree with the retention of Mr. Welsh as they preferred a younger
person to take over as a Manager.
[17]
The respondent reflected on the events of 4 August 2006. It then
decided to issue a final written warning to each of the workers
it
deemed had taken part in an unprotected strike. It then charged the
two applicant employees and a third employee for an act
of misconduct
which it described as:
“
It
is alleged that you incited/furthered, perpetuated or instigated and
participated in an illegal work stoppage on 4 August 2006
and through
your commission/omission failed to comply with your obligations as
employees and employee representatives thereby resulting
in a
situation where the company incurred massive financial losses in lost
production.”
[18]
The two applicants were found guilty and on 19 December 2006 a
sanction of dismissal was imposed on them on the basis that
they had
rendered a continued employment relationship intolerable. The third
employee, a Mr. S. A. Sikhosana who was also a Shop
Steward, was
given a final written warning on the basis that he had a limited
involvement in all aspects of meetings with Management,
discussions
with workers and participation in the march through the Paint Shop.
The applicants felt aggrieved by the dismissal
and through the
assistance of the union referred an unfair dismissal dispute for
conciliation. When the dispute could not be resolved
they referred it
to this court by means of a statement of claim.
The
issue
[19]
The crisp issue is whether or not the employees planned and therefore
premeditated the unprotected strike and whether Messrs
Khumalo and
Nyadi did as much as was expected of them, in terms of the existing
collective agreements, to stop the unprotected
strike from commencing
and continuing.
The
evidence.
[20]
It remained common cause between the parties that the respondent
dismissed Messrs Khumalo and Nyadi. The company had subjected
them to
an internal disciplinary hearing together with a Mr. Sikhosana who
was also a Shop Steward. He was also found guilty of
the misconduct
but was given a final written warning. The respondent had therefore
to show that their dismissal was substantively
and procedurally fair.
Six witnesses testified for the respondent while three testified for
the applicants.
Respondent’s
version
Cyril
Nkosinathi Khambule
[21]
He was the Group Human Resources Director of McCarthy Limited but was
with the respondent as a Vice President in Human Resources
Department
in 2006 when the incidents in issue took place. He was taking part in
a 10h25 Management and Shop Stewards meeting when
the news of an
unprotected strike by the Paint Shop workers came in. Messrs Khumalo
and Nyadi were not attending that meeting.
He confirmed the minutes
of the meeting and those of the meeting held on 2 August 2006. He did
not attend the 11h30 meeting but
did attend the rest of the meetings
which followed thereafter and he confirmed the minutes kept. It was
the Shop Stewards who were
to report to employees on the recent
decision taken by Management and not Mr. Steven Nel as demanded by
workers. Shop Stewards
often complained about Management addressing
workers, saying it was their job to do so. Messrs Khumalo and Nyadi
had persuaded
striking workers to return to work on that day.
[22]
On 8 August 2006 Management decided at an Expedited Dispute
Resolution Forum that a misconduct charge be preferred against
Messrs
Khumalo, Nyadi and Sikhosana as a result of the unprotected strike of
4 August 2006. It was felt that the three employees
had been
participants in the Rajah Naidoo agreements and the Riverside
Declaration and therefore that they had breached the agreements.
Prior to the commencement of the strike, verbal warnings had been
issued to the three Shop Stewards in the presence of Mr. Gazendam
that if the unprotected strike started, there would be serious
consequences. Management had formed the view that there was no
transparency on the Shop Stewards and that a trust relationship had
been broken down. He then drew the charge sheet and served it
on the
three.
[23]
In relation to the disciplinary code of the company, it was the
policy of the company to ensure that formal corrective or
disciplinary measures are applied by duly authorized supervisory and
managerial employees, in a manner which was fair, just and
consistent
and in the best interest of the company and its employees. The
disciplinary measure should be corrective and not punitive.
The
disciplinary code has a guide to fair and progressive discipline and
is divided into four categories of transgressions. Within
each
category there are levels of transgressions, each with a
corresponding sanction. An example is of an unprotected strike. It
falls within category one. The first transgression is punishable by
counseling, the second by a written warning 1; the third by
a written
warning 2; the fourth by a final written warning and the fifth by a
dismissal. The sanction given to all Paint
Shop workers was a
final written warning and was a sanction for a fourth transgression.
Management decided on that sanction on
the basis that the unprotected
strike was premeditated. In the meeting of 2 August 2006, Mr.
Gazendam had warned that the clear
intention to act unlawfully would
not be acceptable. The warning was not just limited to Mr. Killian’s
issue but it was directed
as well to the Paint Shop workers. Mr.
Khambule had reported to Mr. Gazendam that there were tensions in the
Paint Shop Department.
[24]
Not much could be said against the version that Mr. Nyadi was with
his medical doctor at the time of the unprotected strike.
To the
version that Mr. Khumalo was not aware of the strike before its
commencement, management had been told that he knew about
it but
there was no proof that the company could produce and his ignorance
of it was then acceptable. That is why he was charged
for not
stopping the strike in terms of the agreements. The video recording
of the unprotected strike did not have a sound track
with the result
that whatever was said by Messrs Khumalo and Nyadi to workers could
not be recorded. Messrs Zwane and Zuma appeared
in the video
addressing workers on strike but whatever they said could not be
heard and that explained why they were not similarly
disciplined.
There was no evidence of Messrs Khumalo and Nyadi having incited the
workers further, as alleged in the charge. At
13h00 they were given
time to go and persuade workers to stop the strike and at 14h30 they
reported back that the strike had ended.
Byron
Hartze
[25]
He was the Human Resources Manager of the respondent but in 2006 he
was the Human Resources Manager for the Paint Plant.
There were
bi-weekly meetings held between the Divisional Shop Stewards and the
Departmental Managers where a number of issues
would be discussed.
Any issues that could not be resolved would be escalated to the
monthly Shop Stewards and Management meetings.
The minutes of the
meeting of 25 July 2006, the personnel and the structural changes
that were planned for Paint Plant 2 were confirmed.
The personnel
changes included Messrs Naicker and Welsh who were to support the
operation in that plant.
[26]
On 3 August 2006 he attended a general meeting at the canteen with
workers. The workers did not want the meeting to continue
because of
the problem they had with the return of Mr. Naicker to the Plant. The
meeting did continue and Management presented
their plan with Messrs
Naicker and Welsh having to support the Plant operation. The issue
was discussed and at the end Management
undertook to call another
meeting to give a feedback. Mr. Nel did not make an undertaking that
the feedback would be given directly
to the staff. In a
previous meeting workers had been very vocal and so Management wanted
the Shop Stewards to give that feedback
so as to avoid an unprotected
strike as the company had just launched a new Toyota Corolla. The
company had therefore to avoid
a strike during which low volumes of
production are usually incurred.
[27]
On 4 August 2006 in the morning he met Mr. Khumalo outside the Shop
Stewards’ offices and he told Mr. Khumalo that, as
he had heard
that there was to be an unprotected strike, the workers had to comply
with procedures. Mr. Khumalo told him that he
was not aware that
there would be such a strike. It was unlikely that Mr. Khumalo did
not know about the strike as the information
came from the shop
floor. The company did not have any other information that Mr.
Khumalo knew about the strike before it commenced.
Tea time commenced
at 09h30 and at 09h50 workers have to return to work. Mr. Hartze
heard at about 09h50 that workers were not
resuming work. Messrs Nel,
Khambule, Zyman and himself met the workers at the canteen. Mr. Zyman
requested the workers to return
to work but workers continued with
their singing and dancing (toy toying).
[28]
Mr. Hartze attended the meeting of 4 August 2006 held at 10h25. It
was the first meeting held in terms of the Rajah Naidoo
agreement to
determine the concerns of the workers. While there was a rumour about
the strike Management did not know what the
concerns of the workers
were. One the meeting ended senior Management were informed of the
strike. It was the responsibility of
the Shop Stewards to give a
feedback and to file a grievance, if necessary. No grievance was
filed and it was unusual for Management
to address workers during the
strike. Shop Stewards ought to have done so and to have encouraged
workers to return to work while
they escalated their grievances to
Management. It was Mr. Nyadi’s specific shift that was on
strike and it was his
responsibility with Mr. Khumalo to get workers
back to work in terms of the existing agreements and because they
were leaders.
Management had been shouted at on the previous meeting.
The e-mail issued by the Shop Stewards that it was not their
responsibility
to give a feedback but that of Management was not
correct.
[29]
The company believed that the strike was premeditated and that the
Shop Stewards furthered it by taking part in it. The strike
ended
because of the intervention of the members of the Regional office of
the union, including Mr. Hlatshwayo. The dismissal of
the two
applicants was fair. They were told by senior management that they
would be met with serious penalty if a strike took place.
The
chairperson of the enquiry had found that dismissal was proper. The
company code was a guideline and therefore there was no
departure
from the prescribed disciplinary action when a dismissal sanction was
imposed by the chairperson. Mr. Sikhosana received
a lesser sanction
because it was not his shift or constituency that was involved.
Emmanuel
Killian
[30]
He was the Senior Industrial Relation Manager of the company for the
last two years and had been with the respondent for the
last 20 years
in different positions. He had not always been in the management. In
1995 or 1996 he was elected as a Shop Steward
for Numsa. In 1998 he
was elected as the chairperson of the Toyota SA Shop Stewards Council
and in 2003 he became the Human Resources
Manager at the respondent.
Before he joined management he had been a full time Shop Steward in
the company. A Shop Steward
was a leader who represented the
workers. There would be unprotected strikes when he was a Shop
Steward, although not in his section.
As a chairperson he would
ascertain the reasons for it, tell them to the Management and then
normalize the situation. To join the
strike so as to normalize it was
a view that came up lately and he did not know where that view came
from. Since the August 2006
strike, there have been more other
unprotected strikes in the company. To know the reason for the strike
was very easy as one had
just to go to that area where it came from
and they would tell him the reasons.
[31]
The company did incur a loss due to the unprotected strike in
question and it came to the total of R817 110.00. The cost of
the
Paint Shop losses came to R312 077. The associated costs came to R293
082.00 and the assembly hall cost of replacing units
lost on overtime
basis came to R211951.00. Mr. Killian did not witness the strike.
[32]
The main aim of the Masibambane Pact was to get stability in the
industry. Toyota was getting to export its product to Europe
which
had very particular customers and Toyota was regarded as unreliable.
A number of the provisions of the Rajah Naidoo of 15
November 2000
were confirmed. The code was a guideline. If there were justifiable
reasons the provisions of it might be differed
from. An example was
of an offence that was not included in the code. In this case there
was premeditation. The Human Resources
Manager had spoken to them
before the strike and they denied knowing about it.
[33]
While being a Shop Steward could be very difficult, Mr. Killian did
not share that experience. One had to avoid going against
one’s
mandate which entailed looking after the interests of the members and
doing what was right. That would help to avoid
being labeled as a
sellout by members. The role of the Shop Stewards was contained in
the Masibambane Pact and in the minutes of
the meeting that had been
held over years. It was important to be honest with members and tell
them the truth. In relation to the
fact that the Shop Stewards
managed to get workers back to work, a loss of about R30m had been
incurred. The loss of R817 110.00
was not the total cost of
production lost. Mr. Killian had heard that Mr. Khumalo told the
workers that if they did not return
to work he would resign as a Shop
Steward. Mr. Sikhosana’s position was not comparable to that of
the applicants in that
it was not his shift that was on strike.
Bradley
Feldt
[34]
He was the Acting General Manager of the company. In 2006 he was the
Shift Manager of the Paint Plant. He was on duty on 4
August 2006
when the news reached him that workers of the Paint Plant were
refusing to resume work after their tea break. He went
out to the
floor and confirmed that workers were not at work and then saw them
singing and dancing as they went passed him. He
saw the two
applicants and Mr. Sikhosana in the group. The two applicants were
raising their arms as they were singing as did the
group but Mr.
Sikhosana was just following from behind and he was not raising his
hands and that was why he was not dismissed by
the company.
[35]
He testified in the disciplinary hearing of the applicants. He could
not remember if he did say in the enquiry that it was
wrong for the
company to act against the disciplinary code when imposing a sanction
on the two applicants. Acting against the disciplinary
code would
indeed be wrong. Messrs Zwane and Zungu did address the meeting of
striking workers but Mr. Hartze advised him not to
take disciplinary
hearing steps against them for addressing an unauthorised meeting. He
therefore found it very strange that the
company did not take any
disciplinary steps against them when it decided to discipline the
applicants. The Shop Stewards could
not force workers to go back to
work if they did not want to. He would not have any problems in
working with the applicants if
they were to be reinstated.
Robert
Thomas Aldworth
[36]
He was the Senior Manager Maintenance of the Paint Plant but in 2006
he was the Maintenance Manager. He heard about the strike
on 4 August
2006 and while he was at the buy off area, the place where vehicles
were inspected before shipment, he saw the employees
on strike
singing and dancing and moving towards the Paint Plant. Messrs Nyadi
and Sikhosana were in the group. Mr. Nyadi was actively
involved with
the group while Mr. Sikhosana was a lot more reserved. As they came
back from the Paint Plant Mr. Khumalo was there
walking through with
the procession. He just walked in the same manner as did Mr.
Sikhosana and was in the middle of the crowd.
At the disciplinary
hearing he had testified and he said that he had good relations with
the applicants.
Christopher
William John Burger
[37]
He was the Dojo Trainer at the company and was at work on 4 August
2006 when workers embarked on an unprotected strike. He
first heard
of the strike from workers who came to the Dojo for training that
there would be a strike which, it was said would
commence after lunch
and it would be about a Manager who was to return to the Paint Plant.
At about 11h00 there was a lot of noise
and it came from the striking
workers who were calling other workers to join them. In the spray
area there were workers waiting
for vehicles to come in. They refused
to join the strike when they were invited to.
[38]
The two applicants and Mr. Sikhosana were among the group of strikers
and they called other workers to join them but Mr. Sikhosana
was
standing on the side observing. The group came to the lower boot area
and one of the strikers opened the big roller door using
a chain. He
could not remember that person and whether or not he was disciplined.
That door would always be kept closed to prevent
dirt from going to
the preparation area to dirty cars. Opening it was a very serious
offence under schedule three of the disciplinary
code while the
unprotected strike fell under schedule one. The group came through
the Dojo area to the preparation area. Mr. Khumalo
was the last to
come in. Mr. Burger told him to close the door as he also knew it had
to be closed but Mr. Khumalo told him to
do it himself.
[39]
The procession went through to the preparation area. Workers who were
in the Dojo joined the procession. Mr. Nyadi was then
walking in
front, Mr. Sikhosana on the side and Mr. Khumalo was at the back.
There had been unprotected strikes before but
Shop Stewards did not
join them. In the years he had been at the company he had a good
working relationship with Mr. Khumalo. In
fact the three dismissed
Shop Stewards had been very hard working employees. He had hoped that
nobody would be dismissed.
Applicants’
case.
Given
Themba Khumalo
[40]
He attended the meeting of 25 July 2006 between Management and the
Shop Stewards where an announcement was made for the rotation
of
Managers which included Mr. John Welsh who was to assist in the Paint
Plant 2 until December 2006 and Mr. Logan Naicker was
to manage the
Engineering Department in the Paint Plant 2 and 3. The General
Manager apologised for having had a meeting with the
work force in
the absence of the Shop Stewards. Mr. Khumalo’s response,
although couched in a jest was that there was nothing
wrong in having
such meetings as the previous General Manager held them. Such
meetings were called the “soft box meetings”
and the
practice prevailed nationally. There were also “Green Area
meeting” and “Management Briefs” which
were
considered essential for the flow of information. At Green Area
meetings employees received a uniform message from Senior
Management
and they had an opportunity to ask questions which would be answered
immediately by the Group Leader or Supervisor if
possible. If not
possible, an answer would be obtained as soon as possible and the
information would be relayed to the employees
at the next Green Area
meeting or before the next meeting. The Shop Stewards would not be
involved in such meetings as it would
be strange and they placed
their trust on the Managers.
[41]
He did attend the meeting of 2 August 2006 with Management. The
complaint was about the appointment of females by Mr. Killian.
The
meeting had nothing to do with the Paint Plant issues. When Mr.
Gazendam gave a warning about a clear intention to act illegally
being not acceptable, he was referring to a TAC matter. Mr. Khambule
confused issues in his evidence in this regard.
[42]
On 4 August 2006 Mr. Khumalo arrived a little late and was in a hurry
to go and cloak in at 07h00 and to attend a morning meeting
when he
met Messrs Hartze and one Humphrey, who said there was a serious
issue about the Paint Plant. It was a Friday and he had
a series of
meeting to attend. He responded by telling Mr. Hartze that he was
skipping hierarchy as he should have first spoken
to Mr. Nyadi about
that issue. It was not true that Mr. Hartze asked him if he knew
about the looming strike about which he bore
no knowledge. He was at
a meeting with senior officials when the report of a strike came
through. He then suggested that the meeting
was to stop so that he
would go to address the situation. Mr. Hlatshwayo had been attending
that meeting with him and he took him
along.
[43]
Mr. Khumalo then telephoned Messrs. Nyadi and Mbuso Shezi to join
him. Mr. Nyadi said that he was at the surgery but would
come to join
them, which he did and all proceeded to the Paint Plant to find out
why there was a strike. Mr. Nyadi attempted to
talk to the workers
first but was not successful as workers were very angry. It appeared
that they did not relate well to him.
Mr. Khumalo then address them,
again with no success as workers were saying they wanted to talk to
Management and in particular
to the General Manager. The Shop
Stewards left the workers and proceeded to Management and reported
the demand of workers. Management
did not agree to go out to address
workers and the Shop Stewards left the meeting and went to report
back to workers. They were
told that some of the workers had already
left to the Department to take other employees out.
[44]
It was agreed that all workers would go out from the canteen to the
Department to recall the workers who had gone out. It was
agreed that
Mr. Nyadi would lead workers so that they could negotiate with the
ones that had left the canteen and to stop them
from what they were
doing. Mr. Zulu was to be in the middle and Mr. Khumalo was at the
end of the procession. Later they returned
to the canteen. Various
people addressed the meeting. Mr. Khumalo also addressed the meeting.
He urged the workers to listen to
him as their Shop Steward, failing
which they had to pass a vote of no confidence on him. He threatened
to resign as a Shop Steward
if workers refused to listen to his
advice of returning to work and leave him to talk to Management.
Workers agreed and they returned
to work. He then attended the next
meeting with Management which was at 14h30 where he reported that
workers had returned to work.
[45]
Mr. Hlatshwayo was not the one who ended the strike. On the contrary
he had been too scared to go to the work force to address
it. There
had been a Durban Shop Steward meeting on that day and a Mr. Ndaba
attended it. The strike issue was discussed and Messrs
Hlatshwayo and
Ndaba had an argument when Mr. Hlatshwayo showed his reluctance to go
with Mr. Khumalo to the work force. His presence
at the meeting did
not have any effect.
[46]
To the allegation that he associated himself with the strike, the
situation was fairly tricky. He had to win the hearts and
minds of
the strikers and to do so, he had to join them in their procession.
Workers had said that they did not want to talk to
the Shop Stewards.
He had not been aware of the strike. Had he known it was coming he
would have investigated the rumour about
the strike, speak to Mr.
Nyadi and advise him to seek a meeting to clarify the position
failing which he himself would intervene,
well knowing that the union
detested an unprotected strike. It was not improbable that he and Mr.
Nyadi were the only two workers
who did not know that the strike was
looming, taking into account all that he had done hitherto in order
to avoid unlawful thing
happening in the company. The issue of
workers had arisen in the soft box meeting. The Shop Stewards decided
that Management had
to address the problem as it was likely to cause
problems for them. Their meeting of 3 August 2006 finished late.
Where employees
disregarded procedures, he would not be seen
condoning it and that was why he fought to the end to stop the
strike. An example
was of an instance where an employee destroyed a
“buy off” during an unprotected strike, Shop Stewards
prevented that
and they reported the incident to Management and that
employee was dismissed.
[47]
Mr. Khumalo did try to keep the employees within the canteen to avoid
those assaulting non striking workers or to force them
to join the
strike but it was not easy. While employees did leave the canteen,
with other Shop Stewards they were able to bring
them back to the
canteen. While he was in the procession, he had to prevent damage
from occurring. In doing so he could not just
address them but had to
be part of them. The remark by Mr. Burger that he refused to close
the roller door was unfair as he was
the closest to it as Mr. Khumalo
was busy calming workers down.
[48]
Throughout all the years Mr. Khumalo worked as a Shop Steward, the
company had used the disciplinary code as a bench mark.
The code
would also be used as a tool in all grievances. It came to him as
news that the code was only a guideline. There was no
other incident
where there was a deviation from the code. When Mr. Gazendam issued a
warning he never said that there would be
a deviation from the code,
except for the TAC event. In terms of the code the work stoppage was
not a serious transgression. It
fell under category 1 with the
sanction of counseling, if found guilty. The length of the strike and
damage resulting from it did
not make an unprotected strike more
serious. In 1994/5 there was an unprotected strike which lasted for
about 3 months. Mr. Khumalo
was not yet a Shop Steward and he was
counseled. In relation to this matter, Mr. Gazendam said that he
would go all out to fight
this case till the union gave up and he
said that he would take our homes so that we would know who he was.
Until the incident
of the unprotected strike at issue, Mr. Khumalo
had no record of wrong doing or any warning. He had done nothing to
perpetrate
the strike. He was merely trying to assist to end it and
he succeeded. Since he was dismissed he never found any other
employment
although he tried. He asked to be reinstated.
Bongani
Nyadi
[49]
On 4 August 2006 he arrived at work at about 07h00 and proceeded to
the change room to change his clothing. He was alone in
the change
room as other workers had already checked in and would have been at
the “Green Area” discussing problems
of the previous day
with their Supervisors. He had not spoken to any of them on
that morning. He was also surprised by the
strike and it was not part
of his plan as a means of shedding responsibility. He was not
feeling well and so took a medical
card where after he proceeded to
the surgery. He waited in the queue with other workers to be attended
to. The surgery was used
by all employees and not just those from the
Paint Plant. None of the Paint Plant staff had telephoned him to
inform him about
the strike. That him more than anybody should have
known about the emotions running in the Department, was partly true.
After changing
his clothing, he would walk to various sections
checking if there were any problems. On that day he was not fine and
had no one
to tell him those problems.
[50]
A Human Resources Manager telephoned him saying that workers had not
returned to work from their tea break. He went outside
to make or
receive a call from Mr. Khumalo who told him that he had also
received a similar report. He went to meet with Mr. Khumalo
and both
proceeded to check the situation. They found workers at the canteen
and were surprised by their anger. When they asked
for a reason for
the work stoppage, they were hauled at and told it did not concern
the Shop Stewards as workers needed the General
Manager, Mr. Nel.
Workers sent them to go and call Mr. Nel. Mr. Khumalo’s attempt
to settle the matter came to naught and
they had to go and report to
Management as the situation was beyond their control. They still did
not know why workers wanted Mr.
Nel. Management did not help the
situation as they sent them back to go and find out the reason for
the stoppage.
[51]
When they arrived back at the canteen they found that some of the
workers had left to go and pull out other workers. The remaining
workers stood up to go and join the group that went to the Department
to pull out other workers. He discussed the unfolding events
with
Messrs Khumalo and Sikhosana within the short time span they had and
they decided to escort the group to avoid any of them
damaging one
another and the company property. Theirs was a unique Department in
that it had flammable substances such as thinners
and paint which
they worked with and some of the workers were smokers who might use a
match to cause damage.
[52]
As they were escorting workers they considered the union culture and
decided to be part of the group so as to capture their
attention.
Otherwise he was not part of the activities of the group. He did not
encourage the strike. To address the strikers,
slogans were used to
draw attention and to command them to sit down and lessen when they
had to be addressed. To a person who looked
at a distance you could
be seen as taking part in the strike. They escorted the group to and
from the Plant.
[53]
There had been a Durban Shop Stewards’ meeting which had been
in progress on that day. They went to its venue to report
what had
happened and were told that Management had enquired about the
situation. Therefore they proceeded back to Management for
another
meeting. They were told to go and normalize the situation. In the
canteen Mr. Nyadi attempted to calm them down and told
them to
respect the full time Shop Steward and the union official. Mr.
Khumalo took the stand and explained that the work stoppage
was
illegal. He reported that they had been to senior Management who
requested that they calm down as the matter would be addressed.
It
was difficult. Mr. Khumalo went so far as to threaten to step down as
a Shop Steward if workers were not respecting them. Workers
succumbed
and returned to work although they were still very angry. The union
officials stood behind and did nothing to persuade
the strikers to
return to work.
[54]
Since his dismissal he was never able to find another employment. He
survived through the R66 000.00 that was paid out to him
but his
house bond had fallen into arrears. He asked to be reinstated.
Thembelihle
Limo Mbhele
[55]
He commenced his employment with the company in 1993. From 1996 he
worked at the Paint Shop. On 4 August 2006 he was at work
and at
about 09h50, after tea break, the work stoppage started at the
canteen. Workers held a discussion among themselves about
the
structural change they had been told of and their reaction to it. Mr.
Nel had promised to report back on their concerns. They
did not want
to work with Mr. Naicker because of his relations with workers. Mr.
Nel knew that there had been problems with Mr.
Naicker. They also had
problems with Mr. Welsh who was old and near retirement and they
preferred a younger person to take the
job of a Manager. Mr. Nel
undertook to discuss the matter with Senior Management and to revert
to them. Workers discussed when
there was likely to be such a report
back as they would be working on the night shift on the following
week and Mr. Nel would not
be able to see them. They decided not to
go back to work after tea break.
[56]
There could not have been any rumour about the strike as the decision
was taken at the canteen. As such not all employees were
at the
canteen. Some were in the “Green Area” eating while
others were at their work stations waiting to resume work
because
nothing had been planned. There was no leader in the discussion and
Mr. Zwane, an employee volunteered to chair the meeting.
As he was
speaking, Mr Gary Steinitz and his team came in. They had to wait
until Mr. Zwane finished what he was saying. Mr. Steinitz
told them
three times that the stoppage was illegal. Workers mumbled, demanding
that Mr. Nel was to give them a feed back. They
then left.
[57]
After a short while the Shop Stewards came in and wanted to know what
the problem was. They pleaded with workers to return
to work. Tempers
were high. The Shop Stewards then left to go to Management. Some of
the workers in the canteen went down stairs
to go and call those who
were at the work stations. The Shop stewards returned to report back.
It was decided to first go and call
those that had left before the
report could be given. The Shop Stewards offered to escort the group
as the procession left and
later returned to the canteen. Workers
were angry because of:
·
The pain that Mr. Naicker had caused them before;
·
Promises that had been made but not fulfilled on their further
education and
on affirmative action implementation.
[58]
Mr. Khumalo succeeded in calming the situation down and workers
agreed to return to work. He did so by threatening to resign
if
workers would not listen to him. He was not aware that the Shop
Stewards had discussed the issues of their concerns with Management
on the previous day. To his knowledge, Shop Stewards were not
involved in that matter as workers had raised it with Mr. Nel who
undertook to revert to them. They knew that Shop Stewards would
convince them to go back to work without getting Mr. Nel to address
them. The issue was a “soft box matter” and Management
owed them a response. There was no premeditation of the strike.
[59]
Some time after the strike ended, the rest of the employees who had
taken part in the unprotected strike were each given a
final written
warning for 24 months. They believed that the sanction was not
provided for in the disciplinary code and asked the
union to take the
matter up with Management. It was realized that the sanction was a
mistake and it was corrected by the reduction
of 12 months period.
Submissions
by the parties
Submissions
by the respondent.
[60]
Mr. Maeso appeared for the respondent and his submissions will
henceforth be dealt with. Save on sanction, procedural fairness
was
not challenged. The conduct of the applicants was found unacceptable
when seen against the various applicable pacts. Through
the
Masibambane agreement certain obligations were created for the
applicants being:
Ø
Open and honest communication – no surprises
Ø Trust and
mutual respect;
Ø Sharing of
all relevant information timeously;
Ø Respect
for each other’s rights and obligations;
Ø Practicing
shared values of openness and integrity.
[61]
Similarly the pact also lists out the role of Shop Stewards. There
are bilateral relations which however do not make Shop Stewards
part
of Management. They are paid by the respondent to be Shop Stewards.
They therefore have to perform. There should be no surprise
but
instead a trust relationship should be practiced. In terms of their
obligation, the applicants failed. They claim to be ignorant
of the
strike. The second applicant said that he came late and the third
said that he was at the surgery. Respondent’s witnesses
were
not shaken about knowing of the rumour. Mr. Burger said that people
told him that there would be a work stoppage. The probability
is that
the applicants knew about the looming strike. They attended the
meeting of 25 July 2006 where the proposed structural change
in the
Paint Plant was discussed as minutes of that day showed. There were
subsequent meetings on the issues developing at the
Paint Plant.
These make the improbability of the applicants not knowing about the
strike profound. The issue was escalated to a
higher level of
Management. Mr. Khumalo even said that there was a serious issue he
was told of by Mr. Hartze. Mr. Hartze told
him to make sure that they
filed a grievance. Yet Mr. Khumalo made no attempt to handle the
matter seriously. His walking away
was reckless. That he had meeting
to attend to was not disputed but he knew what was about to happen.
He never communicated that
to Mr. Nyadi who would have similarly
known about the strike. The referral he said he made to Mr. Nyadi was
rather mechanical,
yet they attended the same meeting where this
issue was discussed.
[62]
The bubbling issue was alluded to by Mr. Gazendam in a meeting he had
with the applicants. The Numsa delegated were to give
a feed back to
the employees at lunch time on Friday on the issue. People in the
Dojo said that the stoppage would commence at
lunch time. This is
surely not a co-incidence. The strike had been thought about and
planned. That is why the respondent said that
it was premeditated.
[63]
The Rajah Naidoo agreement of 24 November and 1 December 2000 was
binding on Numsa and Management. Reference to Numsa on clause
3.2 of
the agreement was a reference to the Shop Stewards as well and they
conceded that they had to avoid the unprotected strike
as stipulated
in clause 3.1. At the 10h25 meeting Mr. Khumalo said that he did not
know what the issues were. Given the knowledge
of issues he had by
then, he did not make a full disclosure to Management which was a
breach of the Masibambane Pact.
[64]
Mr. Mbhele never dealt with the reason why Mr. Nel had to address the
employees. The issue would have been escalated to a higher
level. No
logic or any principle justified a demand to have Mr. Nel address the
workers. It was never clear why workers refused
to get a report back
and to get back to work. If Shop Stewards would report back at lunch
time on 4 August 2006, why not report
back at tea time. At 11h30 and
at 13h00 they were still saying that the issue was unknown which
means that they had not reported
back to the workers. Yet they had
joined the toy – toy by then to win the hearts. If they had
control of the workers, they
would have by then ascertained the
reason for the strike. The joining was contrary to the Rajah Naidoo
agreement.
[65]
Mr. Nyadi said that he was ill and had to attend to the Doctor and
yet he took part in the toy – toy. The three witnesses
of the
respondent who watched the toy – toy gave evidence in a
forthright manner. They had no axe to grind with the applicants.
When
dealing with challenges of being a Shop Steward, Mr. Killian said
that he never lost control of his members. Mr. Khumalo listed
his
challenges but did not include one of losing control. There was no
attempt to get workers back to work when all the time there
was
control of the situation. According to Mr. Mbhele when workers
returned to the canteen, they were angrier and yet Mr. Khumalo
said
that he was able to control them. At 14h30 workers had returned to
work. It was because of the intervention of Mr. Hlatshwayo
and not
the applicant.
[66]
The code provides a set of guidelines. It indeed provides for
different levels of sanctions. Deviation from it may occur if
it can
be justified. The final written warning for 24 months to other
employees was indeed out of kilter with the code provisions.
It was
reduced to 12 months. The claim of the applicants ought to be
dismissed. If not, the time when dismissal took place is to
be
considered. It has been along time. An appropriate relief should be
compensation.
Submissions
by the applicants
[67]
Mr. Purdon appeared for the applicants. His submissions will follow
hereafter. The second and third applicants did not commit
the
misconduct with which they were charged, any misconduct which
justified the sanction of dismissal. The respondent’s actions
towards them were inconsistent and unfair. Essentially the version of
the respondent was that:
·
Messrs Khumalo and Nyadi played a measure role in the unprotected
strike and
actively encouraged employees to down tools and join a
match through the Paint Shop.
·
During the march they refused to comply with an instruction to close
the roll
up doors of the Paint Shop in an attempt to limit the
unprotected strike.
·
Normal work only resumed once officials of Numsa arrived at the
respondent and
addressed the striking employees.
[68]
The respondent has failed to prove fairness on the substantive level
when the facts placed in dispute are considered. The misconduct
was
to be proved and whether it was of sufficient gravity to justify a
dismissal which is reserved for the most serious of the
misconduct.
While there was loss incurred, the respondent failed to prove the
amount thereof.
[69]
The applicants were extremely reliable and honest witnesses. Mr.
Mbhele was not broken down. It was conceded that if the applicants
tried but failed to stop the strike that would not be misconduct. The
case of the respondent is based on hearsay evidence. Yet
the minutes
of 4 August 2006 at 13h00 indicate that the applicants requested and
were granted an opportunity to normalise the situation
and to return
to the meeting. They did just that. There is overwhelming evidence
that they stopped the strike. It is trite that
an ultimatum was never
issued against the striking employees. Mr. Killian conceded that the
applicants normalised the situation
but he said it should have been
sooner in that he should have told workers at 10h25 to stop the
strike or he would resign. A Shop
steward was an employee and
deserved to be disciplined as such and not as a Shop steward.
[70]
According to Messrs Khambule, Killian and Hartze the respondent was
entitled to deviate from the code. They only placed their
reliance on
the warning issued by Mr. Gazendam. There must be a compelling
reason for a deviation and none was put forward
by the respondent.
The code is part of a contract of employment. The employee can insist
on the employer to abide by the code.
In this case the code is a
collective agreement. Court is asked to find on a balance of
probabilities that the strike was
premeditated and to rely on hearsay
evidence. It is difficult to rely on a rumour which cannot even be
tested by cross-examination.
For instance Mr. Burger said that the
strike was to start at lunch time. It did not. Mr. Mbhele’s
evidence on the other side
was direct. He said that there was no
premeditation otherwise there would ever employee at the canteen.
Therefore court should
find that there was no premeditation.
[71]
Mr. Sikhosana was not on duty on the day of the strike and that was
not in dispute. He might have had prior knowledge of the
strike. He
was present during the strike. Anybody could have told the strikers
the outcome of the meeting of the previous day.
It could have been
one of the members of Management. There should have been no
distinction in their treatment.
[72]
The dismissal of the applicants was unfair. They are entitled to the
primary remedy of reinstatement with an increase in the
benefits they
would have received but for the dismissal. A final written warning
would be appropriate. Costs should follow the
results.
Evaluation.
[73]
The dismissal of the two applicants has always remained common cause
in this matter. The respondent had then to prove that
it had a fair
reason as a basis for their dismissal, see section 192 (2) of the
Act. Through this trial the respondent had to prove
that the
applicants:
·
incited/furthered, perpetuated or instigated
and participated in an illegal work stoppage on 4 August 2006 and
·
through their commission/omission failed to
comply with their obligations as employees and employee
representatives;
·
thereby resulting in a situation where
the company incurred massive financial losses in lost production.
[74]
It was never disputed by the applicants that the unprotected strike
of 4 August 2006 caused the respondent or the company massive
financial losses in the production. What the applicants challenged
though was the amount of such financial losses. Reference to
a
failure
to comply with their obligations as
employees and employee representatives in the context of the evidence
led, is reference to a
failure to stop the unprotected strike, where
the respondent averred that it was Mr. Hlatshwayo whose intervention
led to the end
of the strike. None of the witnesses called by the
respondent were able to produce a shred of evidence of Mr. Hlatshwayo
stopping
the strike. On the contrary, the applicants’ version
that they were responsible for the end of the strike not only stood
uncontested, some of the respondent’s own witnesses accepted
the proposition when it was put to them. Accordingly, I accept
the
applicants’ version that the unprotected strike of 4 August
2006 at respondent’s company was stopped by the intervention
of
both applicants. In so doing the two applicants were acting in
compliance with their obligations as employees and employee
representatives. Their obligations flew from the Masibambane Pact,
the Rajah Naidoo settlement agreements and the Riverside Declaration.
[75]
The minutes of the meetings held by Management and the Shop Stewards
on 4 August 2006, suggest that Management accepted the
bona fides
of the two applicants in not knowing that there was to be an
unprotected strike on that day and that the strike was ended by their
intervention. The minutes do show, however that Management did
reserve its right to later take disciplinary actions. Reports
of those members of Management who witnessed the procession of
striking workers marching from the canteen through the Paint Plant
and back to the canteen, probably account for the change of heart of
the respondent. The respondent must thereafter have entertained
doubt
about the
bona fides
of the applicants’ role in the
strike and decided to charge them. In his evidence Mr. Killian went
so far as to suggest that
the applicants should have stopped the
strike as early as 10h50. He took issue with the applicants stopping
it some three hours
later. The minutes of the meetings and the
subsequent charging of the applicants must therefore not be seen as a
contradiction
on the part of the respondent. The next probe must
therefore be whether or not the applicants incited, furthered,
perpetuated,
or instigated and participated in an illegal work
stoppage of 4 August 2006.
[76]
It was common cause that the two applicants were part of the
procession of the employees who left the canteen, marched through
to
the Paint Plant and back to the canteen. To those that were watching
this march, the applicants were willingly participating
in an
unprotected strike they had an obligation to stop. They well knew
that the work stoppage was illegal as no attempts had been
prior made
to comply with the provisions of the Act to make the strike
protected. It therefore behoved the applicants to
explain their
conduct. Their explanation was that it lay in the culture of
addressing union members to shout slogans when addressing
meetings.
This they said was of help to the speaker who would be identifying
himself or herself with the group so that he or she
could then win
the hearts and minds of the group having to be spoken to. I indicated
to the parties during their closing submissions
that I was aware of
that practice and gave them a chance to address me on why I was not
to take judicial notice of the practice.
Mr. Maeso agreed with the
approach but expressed his concern when it came to Mr. Khumalo
leaving the roller door opened after being
asked to close it. In my
view the two are separate issues.
[77]
Judicial notice is accordingly taken that when addressing union
members in their meeting, slogans are often shouted with a
view to
identifying one’s self with the group so as to win their heart
and minds. In so doing one could be seen as championing
the course of
that group. The applicants said that they did the same with a view to
taking control of the group that was becoming
too dangerous to the
company property and to other employees. There was no evidence of any
workers who were assaulted by this group
or any property that was
vandalized in the cause of the strike, except the opening of the
roller door with the possibility of causing
damage to the vehicles
that were to be inspected. The costs associated with the plant
stoppage related to the costs incurred because
of lost production
only.
[78]
After the workers had returned to the canteen they were addressed and
thereafter the unprotected strike ended. There was no
evidence that
the march was protracted. Part of the delay in bringing the strike to
the end was due to the various meetings that
the applicants were
involved in about the strike. It remained beyond dispute that Mr.
Khumalo went so far as to put his own job
of being a Shop Steward on
the line, due to a tense atmosphere that was prevailing in the
meeting. Mr. Nyadi had just been hauled
at. The evidence of the
applicants stood unchallenged in this regard. It was always open to
the respondent to produce that evidence
which it sought to rely on to
prove the misconduct complained of.
[79]
The two applicants must have clearly understood the pressure they
were in, of ensuring that the unprotected strike ended without
delays, in line with their obligations as employee representatives.
There is thus overwhelming evidence that the applicants succeeded
in
controlling what otherwise might have been an explosive situation.
The criticism of their approach by Mr. Killian was unwarranted
and
was more theoretical than real in the circumstances. The
purported incitement, furtherance, perpetuation or instigation
and
participation in an illegal work stoppage on 4 August 2006 was a
means to an end. It lacked the necessary turpitude for it
to amount
to an act of misconduct. In my view the respondent did not have
sufficient evidence on which it had to convict the two
applicants of
the misconduct they were charged with. If they were not guilty of the
misconduct, they would not have premeditated
it. In any event the
evidence of the respondent on the premeditation of the strike was
based on hearsay evidence that lacked reliability.
The hearsay
evidence led to speculation in this regard.
[80]
The applicants have asked for the primary remedy, in the event of
being successful. Witnesses of the respondent who were asked
about
re-instatement were not averse to it.
Section 193 of the Act
provides for remedies where a dismissal of an employee has been found
to have been unfair and it reads:
“
193
Remedies for unfair dismissal and unfair labour practice
(1)
If the Labour Court or an arbitrator appointed in terms of
this
Act
finds that a
dismissal
is unfair, the Court or the
arbitrator may-
(a)
order the employer to reinstate the
employee
from
any date not earlier than the date of
dismissal
;
(b)
order
the employer to re-employ the
employee
, either in the work in which the
employee
was
employed before the
dismissal
or
in other reasonably suitable work on any terms and from any date not
earlier than the date of
dismissal
;
or
(c)
order
the employer to pay compensation to the
employee
.
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the
employee
unless-
(a)
the
employee
does not wish to be reinstated or
re-employed;
(b)
the circumstances surrounding the
dismissal
are
such that a continued employment relationship would be intolerable;
(c)
it is
not reasonably practicable for the employer to reinstate or re-employ
the
employee
;
or
(d)
the
dismissal
is unfair only because the employer
did not follow a fair procedure.”
[81]
None of the provisions of section 193 (2) (a) to (d) find application
in this matter. It will be fair in the circumstances
if the two
applicant employees were reinstated. I was asked by the respondent’s
counsel to consider the length of period
that has endured since the
dismissal of applicants and to lean in favour of compensation. I
entertain no doubt that such a remedy
would be unfair to the
applicants who have for so long been unfairly deprived of their
jobs. I am alive to the fact that
the applicants were posted as
Shop Stewards, positions that are dependent on the decisions of the
union members and that the respondent
may not be able to put them in
such positions now. I have also considered the issue of costs.
[82]
The following order will therefore issue:
1. The
respondent is ordered to reinstate Messrs Khumalo and Nyadi into its
employment and into positions favourably
similar to those they held
on the date of their dismissal, with no loss of earnings or benefits
that would have accrued to them
but for their dismissal.
2. The
two applicants are to report for duty on 28 May 2010 at 07h00.
3. The
respondent is ordered to pay the costs of this application.
_____________
Cele
J.
DATE
OF HEARING
: 03
December 2009
DATE
OF JUDGMENT
: 21 May
2010
APPEARANCES
FOR
APPLICANT
: Brett
Purdon of BRETT PURDON
ATTORNEYS
FOR
RESPONDENT
: M G
Maeso of SHEPSTONE &
WYLIE ATTORNEYS