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[2011] ZALCJHB 199
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NUPSAW obo Mani v National Lotteries Board (JR953/2008) [2011] ZALCJHB 199 (3 February 2011)
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JR953/2008
NOT
REPORTABLE. NOT OF INTEREST TO OTHER JUDGES
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN BRAAMFONTEIN)
CASE NUMBER: JR953/2008
In the matter between
NUPSAW obo MANI AND 9 OTHERS
........................................................
APPLICANT
V
NATIONAL LOTTERIES BOARD
...........................................................
RESPONDENT
JUDGMENT
AC BASSON, J
The ten applicants (represented by
their union NUPSAW – hereinafter referred to as “NUPSAW”
or “the union”)
were dismissed following a disciplinary
hearing chaired by Prof. A van Niekerk (as he then was –
hereinafter referred to
as “the chairperson”). The said
10 applicants initially formed part of a much large group all of
whom were charged
with three acts of misconduct. (I will return to
what happened to the other employees hereinbelow.) The respondent is
the National
Lotteries Board (hereinafter referred to as “the
respondent or the NLB”). The CEO of the NLB is Professor Ram
(hereinafter
referred to as “Ram”).
The ten applicants were charged with
the following three charges. They were found guilty on charges 1 and
2:
“
Charge 1
Insubordination and disrespectful
behaviour making the continued employment relationship intolerable by
associating yourself with
and supporting:
●
the contents of the union’s
letter dated 23 May 2008 and the petition dated 3 June 2008 in which
the CEO is grossly defamed
by the false accusations of ineptitude,
favourtism, racial bias, unlawful acts and mismanagement;
●
the statement that you are
not prepared to continue working with the CEO in the same building
with him at the helm; and
●
the call to the NLB to
relieve the CEO of his duties.
Charge 2
Bringing the name and integrity of
the NLB and the CEO into disrepute and making the continued
employment relationship intolerable
by associating with and
suporting:
●
the contents of the union’s
letter of 23 May 2008 in which the CEO is falsely accused of
ineptitude, favouritsm, racial bias,
unlawful acts and mismanagement.
●
the publication of the
contents of that letter in the media; and
●
the union’s stated
intention in its letter dated 5 June 2008 to make the contents of its
correspondence with the NLB available
to the media whenever it deems
fit.
Charge 3
A material breach of the general
duty to act in good faith, to co-operate with and the refusal to work
under the supervision and
control of the duly appointed CEO.”
The transcript of the disciplinary
hearing was placed before the court and the parties agreed that it
will form part of the evidence
in these proceedings. Both parties
also stood by the evidence that was led before the disciplinary
hearing. It appears from the
transcript of the disciplinary hearing
that the individual applicants pleaded not guilty to the charges. In
fact, the applicants
maintained throughout the proceedings in this
court that they are not guilty and that they do not acknowledge any
wrongdoing
on their part.
The case in the pleadings
The applicants claim that their
dismissals were automatically unfair in that the respondent violated
section 187 of the Labour
Relations Act 66 of 1995 (“the LRA”)
and more in particular section 187(d) of the LRA.
In
the alternative
, the
dismissals of the applicants were substantively and procedurally
unfair and the dismissal sanction was inconsistent and
unfair. They
claim reinstatement.
The parties have requested this court
to assume jurisdiction in so far as the alternative claim is
concerned even though such
claim may strictly fall within the
jurisdiction of the CCMA.
1
I have indicated to the parties
during the proceedings that this court is willing to assume
jurisdiction in the event of a finding
that the dismissals were not
automatically unfair in order to bring this dispute to a finality. I
have also in making this decision
taken into account that many days’
of evidence were led in this court. To refer the matter back to the
CCMA will only result
in a duplication of the proceedings and an
even longer delay in bringing this saga to an end.
Background facts
The facts leading up to the
dismissals are largely common cause. The respondent is established
in terms of the
Lotteries Act no 57 of 1997
. Ram was appointed by
the Board as the CEO in June 1999 and has held this position ever
since. It is evident from Ram’s
curriculum vitae
that
he is a person with outstanding academic and management
qualifications and credentials obtained here and abroad. Ram was
the
only witness on behalf of the respondent.
It is common cause that, at the time
of the dispute and the subsequent dismissals, NUPSAW was the
recognised collective bargaining
entity. It is also common cause
that NUPSAW has lost its representivity and recognition since the
events that led to the dismissal
of the applicants. There is
therefore no longer any relationship between NUPSAW and the
respondent. At the time of the events
a collective agreement existed
between the respondent and NUPSAW which provided,
inter alia,
for the recognition of the trade union as being sufficiently
representative in terms of Chapter III of the LRA (clause 6.1 of
the
agreement). NUPSAW was also recognised as the collective bargaining
representative of its members (clause 6.2 of the agreement).
In
terms of clause 6.3 recognition was also afforded to the status and
authority of the employer. This clause reads as follows:
“
The Trade Union recognizes
management’s authority and responsibility to plan, organize and
manage.”
This clause is significant in that it
confirms an undertaking by NUPSAW to respect the respondent. As will
become clear later in
this judgment, the union disregarded this
undertaking and decided to defy the authority of the respondent.
On 20 March 2008 three of the
respondent’s shopstewards (Mr. Mokgatlha; Mr. Mani and Mr.
Ramatseba) wrote a letter to Mr.
Sikonela (Manger of HR and
Administration) in terms of which they requested to meet with the HR
Committee in respect of the following
three matters: Firstly they
wanted to meet about the employment contract of the Chief Executive
Officer of the Board (Ram). Secondly
they wanted to discuss the
nature of Ram’s employment contract and particularly “
as
to whether it is within the Generally Acceptably Practice where
occupation of similar positions within the public sector and
government agencies is governed by a set of rules and prerequisite
”.
Thirdly the three shopstewards wanted to raise complaints “
on
,
inter alia, the leadership style and modus operandi of the
current CEO and the bad causal effects this has had on staff and
that
we’re no longer prepared to bear with his leadership
style any longer”.
On the same day, the same three
shopstewards wrote another letter on the letterhead of NUPSAW (NLB
Branch). In this letter the
three shopstewards complained about the
fact that they were not invited to the interview for the position of
the COO of the respondent.
The shopstewards demanded to be invited
to the interview despite the fact that they had no right to attend
such interview. In
fact, when Mani (on behalf of the union)
testified, he admitted that NUPSAW has not previously been invited
to the interviews
of senior management. The letter goes on to inform
the respondent in no uncertain terms that should the shopstewards
not be invited
to the interview, they will make life extremely
difficult for the new COO. In fact, they threatened to “isolate”
the new appointment. The salient part of this letter reads as
follows:
“
We therefore question
objectivity and fairness of the process. We further would like to
inform you that we do not recognise the
interviews and the due
appointment that would emanate from them. We shall therefore not
recognise the person appointed and further
not give him or her any
kind of cooperation and assistance in whatever way. We will isolate
such a person and ensure that he or
she does not feel welcome until
due processes are followed with the Union involved.”
It is clear from these two letters
that, as early as 20 March 2008, the union consciously decided to
embark on a path of confrontation.
The message is clearly conveyed
to the respondent that the shopstewards and the union do not accept
the right of the employer
to make senior appointments (without their
input) nor do they accept the CEO and his leadership style (despite
the fact that
the CEO is accountable to the Board). Moreover, a
clear message is conveyed to the respondent that should the
shopstewards and
the union not be given their way, they will isolate
the COO and will refuse to cooperate with him.
The respondent replied on 1 April
2008 to the union’s General Secretary regarding the request
for copies of Ram’s
contract. The respondent states in this
letter that the union and the shopstewards have no right to a copy
of Ram’s contract.
The union is further expressly informed by
the respondent that any aggrieved employee has the right to follow
the grievance procedure
if he or she has a grievance. Mani, in his
evidence, admitted that he had seen this letter. This is important
as the evidence
on behalf of the union was that the shopstewards and
the union were not aware of the fact that there was a grievance
procedure
in place at the respondent. However, even if it is
accepted that the shopstewards and the union were genuinely unaware
of the
existence of a grievance procedure, it is clear from the
evidence of Mani that, at least as of 1 April 2008, the union and
the
shopstewards must have been aware of the existence of the
procedure. I must also add that the grievance procedure formed part
of the documents before this court. It is clear from this document
that a detailed grievance procedure was in fact in place. However,
despite the existence of a grievance procedure and despite the fact
that the union and the shopstewards were aware of the procedure,
the
union and the individual applicants refused to use this procedure
and rather opted to persist with a confrontational process.
On 1 April 2008 the respondent
replied in a further letter to the request by the shopstewards to be
allowed to attend the interview
for the position of COO. In this
letter the General Secretary of NUPSAW was informed that it is the
prerogative of the Board
to interview and employ personnel and that
the union and its representatives have no right to be involved in
the interviews.
The letter further warned the union that the threats
of non-recognition of the COO and non-cooperation with the COO will
constitute
insubordination and that any misconduct will result in
disciplinary action which may include dismissal.
Instead of pursuing the grievance
procedure to resolve the issues regarding the interviews and the
contract of Ram (as requested
by the respondent in the letter dated
1 April 2008), the union sent a further letter dated 3 April 2008.
In this letter the union
accused the respondent of “snubbing”
the union and of threatening the staff with dismissal on the basis
of insubordination.
NUPSAW then referred a dispute to the
CCMA about its demand to obtain the contract of Ram. An interim
agreement was reached at
the CCMA and Commissioner Hofmeyer issued a
ruling in terms of which the union was directed to draft a
motivation and submit
it to the Board setting out the reasons for
wishing to obtain the contract of the CEO. On 23 May 2008 the union
wrote a letter
in which it motivated the request for the contract of
the CEO. In this letter a number of complaints against the CEO was
also
listed. This letter was leaked to the Mail & Guardian a few
days later. In the article that was published, the allegations
as
set out in the letter of 23 May 2008 were referred to. It was the
leakage of this letter and the publication thereof that
formed the
basis of the second charge on which the applicants were found
guilty.
I do not intend to go into the detail
of these grievances for purposes of this judgment as it is not
strictly necessary to do
so. What is at issue in this case is the
conduct of the applicants and the manner in which they pursued their
concerns. Some
of the complaints included the following: The CEO
displays a lack of business leadership and has prompted staff to
leave the
employment of the NLB “in scores”; the CEO has
opted to purchase flat screen televisions sets and a digital
satellite
television decoder instead of upgrading the organisations
ITC system; Staff does not have unhindered access to the only fax
machine
located on the first floor; Staff at registry cannot easily
deliver mail at other sections of the building “
without
prior appointment to the relevant section
”; The CEO has
failed to ensure employment equity in the organisation.
The Petition
On 3 June 2008 the NLB Branch of
NUPSAW submitted the following petition, signed by 41 employees, to
the respondent:
“
VOTE OF NO CONFIDENCE
IN THE CEO OF THE NATIONAL LOTTERIES BOARD, PROF VEVEK RAM
We, the undersigned employees of
the National Lotteries Board and as citizens of the Republic of South
Africa, hereby submit a
VOTE OF NO CONFIDENCE
in the CEO of
the National Lotteries Board, Prof Vevek Ram.
In addition to the letter dated 23
May 2008, attached herein as “Appendix A”, we the
employees of the Board have lost
confidence in him and his ability to
run the organisation. We, the employees of the Board have suffered
adversely under his bureaucratic
leadership style and his inept
management approaches. We, as the employees of the Board are no
longer prepared to bear with him
anymore.
In light of the above, we urge the
Board to request Prof Vevek Ram to resign and further look at a
suitable settlement for him as
deemed fit by the Board, Failing
which, Prof Vevek Ram must be relieved of his duties due to the
reasons stated in “Appendix
A”.
We do not only submit this vote of
no confidence on our behalf, but for fellow South Africans who are
currently adversely affected
by the bureaucratic leadership style of
Prof Ram. The poor, victims of crime, the homeless, the future
sporting stars and the future
artists of this country are dependent
on the public-centered service delivery which they are currently
being denied.
We further urge the Board to take
this matter seriously as we are no longer prepared to spend a day
with Prof Ram in the same building
with him at the helm of this
organisation. We further urge the Board to ensure that June 30
th
,
2008 is the last day of his employment.
We the undersigned whole-heartedly
support the vote of no confidence in Prof Vevek Ram. We further state
that we were neither coerced
or misled into signing this vote of no
confidence. We fully understand our actions.”
It is clear from the last paragraph
of this petition that the 41 applicants who signed this petition
understood and accepted the
consequences of signing this petition
and that they supported the vote of no confidence in Ram. It is
furthermore clear from
this petition that the individual employees
were no longer prepared to “
bear
” with Ram and
that he must be relieved of his duties. In fact, the employees
demanded that 30 June 2008 should be his last
day.
I am in agreement with Mr. Kennedy
that this petition is grossly disrespectful, confrontational and
insubordinate. This petition
not only is a personal attach on the
CEO, but clearly conveys to the respondent that the 41 workers who
signed the petition will
not respect Ram. In fact they were clearly
no longer willing to even spend another day in the same building
with him. I am of
the view that in supporting this petition the
union and the individual employees overstepped the boundaries in the
campaign to
have their grievances addressed (even if this court
accepts that some of the grievances were legitimate).
On 5 June 2008 the union informed the
Board that it had the right to communicate the contents of its
correspondence to the public
through the media without any fear from
the board. The letter stated that the union would “
when it
deems fit, publish information to the public for information and
support.”
On 6 June 2008 the attorneys of the
Board wrote a letter to the union in which it noted,
inter alia
,
the fact that the CEO was solely accountable to the Board for the
performance of all financial, administrative and clerical
function
and that the union had no right to the CEO’s contract. The
attorneys further informed the union that the delivery
of the
ultimatum was “
subversive to the integrity and authority of
the Board and its capacity to perform its statutory functions
”
and that the threat that the employees would not work should Ram
continue to serve as the CEO after 30 June 2008, constituted
an act
of insubordination. The attorneys further requested the union and
each of the members who signed the petition to withdraw
the petition
unequivocally by 9 June 2008 failing which the Board will institute
disciplinary action against the signatories.
Notwithstanding the
express invitation to withdraw the petition, only three of the 41
employees retracted their support for the
petition at an early
stage. These three employees were not subsequently charged.
On 9 June 2008 the union’s
Provincial Organiser replied to the letter. He stated in the letter
that the petition was lawful
and that their actions were protected
by the constitutional rights to freedom of expression, assembly,
demonstration, picket
and protest. (I will return to this aspect
hereinunder.)
Disciplinary action
The remaining 38 employees (all of
whom refused to retract their support for the petition) were
subsequently charged. At the conclusion
of the hearing the
chairperson delivered his judgment and found the 38 employees guilty
on charges one and two. In his finding
the chairperson pointed out
that he was of the view that it was not necessary to analyse each of
the allegations made by the
union in the letter dated 23 May 2008
and that it was not necessary to make a finding as to whether or not
the allegations can
be substantiated because it is not Ram’s
conduct or his performance that was at issue but whether or not the
individual
employees were guilty as charged. The chairperson however
noted that the vast majority of the allegations made concerned
archetypal
workplace grievances that ought appropriately be
addressed by the use of internal grievance procedures. The
chairperson was further
of the view that the individual employees
have all identified themselves with the actions taken by the union
and that they clearly
had expressed their support for those actions.
He further held that it was clear from the evidence that the
individual employees
had all assumed accountability for the actions
of the union. The chairperson further concluded that the union never
formally
tabled the issues listed in the letter dated 23 May 2008 as
grievances and further concluded that the union had consciously
resolved
to adopt a confrontational stance rather than seeking
alternative ways to resolve the issues raised in the petition. The
chairperson
accordingly found that the employees had made themselves
guilty of insubordination and disrespectful behaviour. In respect of
the second charge, the chairperson was of the view that the union
had leaked the letter to the Mail & Guardian.
After finding the 38 individual
employees guilty as charged, the chairperson (persuaded by a remark
by Ram that some of the individual
employees were probably unwilling
participants in the activities initiated by the union) instead of
imposing a sanction, invited
the employees to reconsider their
actions and to sign a retraction. 28 of the 38 employees thereafter
signed the document prepared
by the chairperson and apologised to
Ram and disassociated themselves from the letter dated 23 May 2008
and the petition dated
3 June 2008. These employees were each given
a written warning and were allowed to return to work. The remaining
10 employees,
however, decided not to apologise or to disassociate
themselves from the petition. They were thereafter afforded an
opportunity
to submit arguments in respect of mitigation in writing
to the chairperson. The chairperson found that the belated statement
of apology contained in the written submissions was “
too
little, too late
” and that the apology was not sincere.
The chairperson then considered what an appropriate sanction would
be and concluded
that dismissal was appropriate in circumstances
were the conduct of the employees were both deliberate and serious.
Automatically unfair dismissal
I have already pointed out that the
main case of the union was that the dismissal was automatically
unfair in that the applicants
were dismissed for associating
themselves with the legitimate activities of the union.
It is accepted that it may sometimes
be difficult to distinguish between misconduct committed in the
context of lawful union activities
and misconduct committed by an
employee (as an individual or as part of a group). It is also
accepted that a union has an important
roll to play in protecting
the legitimate concerns and demands of its members. It is equally
accepted that workers have the right
to associate with a trade union
of their choice and that they must be able to associate and
participate in the lawful activities
of the union without any fear
of reprisal from their employer. It is likewise accepted that a
trade union has the right to petition
as one of the means to pursue
the legitimate demands of its members. It is equally accepted that
no person should be dismissed
or prejudice in employment by reason
of trade union membership or legitimate trade union activities. In
fact, the LRA expressly
grants statutory protection to employees to
associate and to participate in the lawful activities of a trade
union.
2
I am, however, not persuaded that the
applicants in this particular case were dismissed for having
participated in the activities
of the trade union. Mr. Voyi for the
union argued,
inter alia
, that, because the charge sheet
stipulates that the applicants were charged for associating
themselves with and supporting the
contents of the union’s
letter dated 23 May 2008 and the petition dated 3 June 2008, it is
clear that they were dismissed
for having participated in the
activities of the union. I accept that this is what is stated in the
charge sheet. However, nowhere
in the pleadings nor in the evidence
presented on behalf of the union has any case been made out that the
individuals were dismissed
for having participated in the activities
of the trade union. The employees themselves took a conscious
decision to commit acts
of insubordination. This much is clear from
the petition and especially the declaration made by each person when
signing the
petition. The employees cannot now hide behind the
confrontational path chosen by their union to justify their own
conduct. The
individual employees clearly and equivocally declared
in the petition that they accepted the consequences of their conduct
which
was to defy the authority of the CEO and demand his dismissal.
I do not accept that these acts of subordination were committed
as
part and parcel of the (legitimate) activities of the union. The
employees themselves decided to repudiate the authority of
their
CEO. This is insubordination. The fact that the acts of
insubordination emanated from the trade union or were instigated
by
the union does not, in my view, transform these acts of serious and
deliberate insubordinate conduct into the legitimate activities
of
the trade union. As I will indicate in the paragraphs hereinbelow,
what the trade union did can, in any event not, in my view,
be
classified as “
legitimate
” trade union
activities. It is simply not acceptable for employees to behave
themselves in such a manner and then try to
hide behind the excuse
that their actions constitute legitimate trade union activities. I
have already stated that it is accepted
that a trade union can
strongly and even robustly pursue grievances on behalf of its
members. However, what the union and the
applicants did in this case
went far beyond what is considered to be acceptable and legitimate
trade union activities. In this
regard I am in agreement with the
following sentiments expressed by the chairperson in his findings:
“
Secondly, the union failed
to bring the subject matter of the accusations to the attention of an
appropriate manager, or failing
redress at that level, to the
attention of a higher level of management, through the grievance
procedure. It also failed to utilize
the statutory mechanisms at its
disposal. Instead, as I have already noted, it chose a
confrontational path, one that involved
an attack on the personal
integrity of Prof Ram. In sporting parlance, the union decided not to
play the ball but rather to play
the man. By associating themselves
with these actions, and in particular by stating that Prof Ram should
resign, failing which
he should be dismissed, by stating that they
“were not longer prepared to spend a day with Prof Ram in the
same building
with him” and that the Board is urged “to
ensure that June 30
th
,
2008 is the last day of his employment”. The individual
employees made themselves guilty of insubordination and disrespectful
behaviour.”
In the event, the claim of
automatically unfair dismissal is dismissed. I now turn to the
alternative claim of unfair dismissal.
Alternative claim of unfair
dismissal
I am in agreement with Mr. Kennedy
that this is a sad case in the sense that this case involves the
dismissal of ten workers who
could easily have avoided their
dismissal. As the evidence clearly illustrates, these individuals
followed the lead of their
union leadership (two of whom are amongst
those who were dismissed) and that led to their dismissal. The ten
applicants embarked
on acts of gross insubordination and despite
having been offered an olive branch by the chairperson, persisted
with supporting
and defending their actions in this court. They were
afforded various opportunities to redeem themselves and save their
jobs
in the exact same way the other 28 individuals did. However,
they remained defiant throughout this case and refused to
acknowledge
any wrongdoing on their part. They should blame
themselves for the fact that they are today without work.
The union’s two witnesses Mr.
Makatu and Mr. Mani tried to persuade this court that the threats
(most notably those contained
in the petition) were not serious and
that it was merely a “
strategy
” to get the
attention of the respondent. According to them they merely wanted a
meeting to discuss the matter with management.
I do not accept this
explanation. There is no doubt in my view that the union (and the
individuals who signed the petition) knew
exactly what message they
were conveying to their employer. To suggest that the employer
should not have taken the words seriously
is ridiculous. Moreover,
the letter from the respondent’s attorneys clearly conveyed to
the union that the respondent regarded
the petition in a serious
light. If there was any truth in the averment that the petition was
merely a “
cry for attention
”, the union should
have known after this letter that the respondent was taking the
letter and the threats seriously. If
the union and the shopstewards
really was of the view that this was merely a cry for attention it
would have conveyed this to
the attorneys. In fact, the attorneys in
no uncertain terms informed the union that the contents of the
petition amounted to
gross insubordination which would result in
disciplinary action unless it was withdrawn. The union responded to
this letter without
making any attempt to dispel the notion that the
threats contained in the petition were not meant to be taken
seriously.
What makes matters worse is the
startling confession by Makatu that they had made no attempt to
inform the employees that the
petition was merely “a cry for
attention” (which I, in any event, do not accept) and that
they did not really mean
what was contained in the petition. I also
do not accept that the employees individually did not mean what was
stated in the
petition. Not one of the other employees came forward
to give evidence and refute this evidence. Moreover, it is clear
from the
petition that each employee confirmed that they “
were
neither coerced nor misled into signing this vote of no confidence.
We fully understand our actions”
. There can only be one
explanation for the inclusion of these words and that is that the
union sought to protect itself against
any claim later by the
members who might complain that they had been misled by the union.
The union in my view was bent on
pursuing a path of confrontation without any regard to the
individual welfare of the initial
41 employees. If the union was
concerned about the welfare of the individual employees it would
have advised its members after
the letter from the attorneys to
withdraw their support for the petition and apologise to Ram. Also,
the union should have then
used the proper channels to pursue the
grievances. The union made no attempt to do so and also no attempt
to pursue the grievances
through the appropriate grievance
procedures. I will return to this issue hereinbelow.
I must however, stress, that although
I am of the view that the union dismally failed the individual
employees, the 10 remaining
employees can hardly blame the union for
the fact that they were eventually dismissed. Three employees and
later 28 employees
realised that they were on a path of
self-destruction and as a result of accepting the olive branch
extended to them by the chairperson
(when the very person the
workers had wanted to get rid of indicated to the chairperson that
certain employees may not have been
willing participants in this
whole saga), retained their employment. In other words, although
this court may have been sympathetic
up until the guilty finding,
this sympathy cannot extend to the 10 remaining applicants who took
a conscious decision not to
apologise to Ram after having been found
guilty and after they have been afforded an opportunity by the
chairperson to withdraw
their petition. To make matters worse, they
sat in court and listened to the evidence of Mani and Makatu who
tried to convince
the court that the petition was merely a “cry
for help”. Yet not one of them took the stand to distance
themselves
from the union. There is therefore no evidence before
this Court that any of the ten individuals who were ultimately
dismissed
were in fact misled throughout by the union nor is there
any evidence that they did not understand what was offered to them
by
the chairperson when he offered them an opportunity to save their
jobs. The ten applicants must therefore stand and fall by their
own
decision to support the petition and to remain steadfast in
associating themselves with the union’s confrontational
stance.
The actions of the individual workers
constituted gross insubordination. Not only were they insolent by
repudiating their duty
to show respect to the CEO of the respondent,
they were also grossly insubordinate in refusing to obey the
instructions of their
employer. See in this regard:
CCAWUSA
v Wooltru Ltd t/a Woolworths (Randburg)
(1989)
10
ILJ
311
(IC);
3
Acrylic Products (Pty) Ltd v CWIU
& Another
[1997[ 4
BLLR 370
(LAC);
Slagment
(Pty) Ltd v Building Construction and Allied Workers Union
(1994) 15
ILJ
979 (A);
Johannes
v Polyoak Industries
[1998]
1 BLLR 18
(LAC);
Air
Products (Pty) Ltd v CWIU
[1998]
BLLR 1
(LAC).
As far as the first charge is
concerned, I find the applicants guilty.
Grievance procedure
I have pointed out that the
chairperson was of the view that it was not necessary to consider
the merits of the demands made by
the union in the letter dated 23
May 2008. I am in agreement with this finding. Ram’s
performance is not the issue. The
issue is the conduct of the
individual employees. I am, however, prepared to accept for the sake
of argument that the union had
legitimate demands and grievances.
Furthermore, I have already pointed out that the union should have
followed the grievance
procedure. It is simply not acceptable to
submit a petition containing the allegations that it did. I have
already indicated
that I do not accept the union’s averment
that there was no grievance procedure in place. Even if the union
was genuinely
unaware of the existence of the grievance procedure,
the union could not have been unaware of the existence of the
grievance
procedure after having received the letter from the
respondent dated 1 April 2008. I also do not accept the allegation
that the
grievance procedure would not have been suitable for a
collective dispute. This averment also refutes the assertion that
the
union was unaware of the grievance procedure. The letter from
the attorneys also informed the union that it could use the
grievance
procedure. Moreover, on their own evidence the union had
been told by the chairperson of the Board’s Human Resources
Committee
(a sub-committee of the Board of Directors), Ms Nora
Fakude that her door was always open for discussion about grievances
and
complaints. Despite all of these invitations and opportunities,
the union decided not to process a proper grievance procedure but
rather to follow a confrontational route – a route that was
supported by these 10 applicants until the bitter end. Lastly,
the
union’s witnesses tried to persuade this court that all
attempts to meet with the Board fell on deaf ears. This is
patently
false. The chairperson of the Board, Mr. Jo Foster who himself was
for many years a trade unionist, called the representatives
to a
meeting where he expressed his concerns about the strategy that was
adopted by the union. On the union’s own version,
they walked
out of the meeting.
I also cannot lose sight of the fact
that Commissioner Matje of the CCMA concluded subsequent to the
ruling by Commissioner Hofmeyer
that the union did not make out any
case for their claim that the respondent discloses the contract of
Ram. The union also subsequently
did not pursue the matter any
further.
I am therefore of the view that the
union could have used other means of dealing with their grievances
and that it was certainly
not warranted to have opted the
confrontation route that resulted in the dismissal of ten of its
members.
Did the union engage in lawful
union activities?
I have already pointed out that I am
not persuaded that the union engaged in lawful union activities. In
this regard the union
argued that they were entitled to use the
petition as a means of pursuing their grievances and that they were
justified in expressing
their concerns in the manner that they did.
Although I do accept that a union may
vigorously and in somewhat strong terms pursue the rights of its
members, I do not accept
that the constitutionally guaranteed right
of freedom of expression affords a union and its members the right
to engage in acts
of grossly disrespectful insubordination without
consequences. To suggest that the Constitution grants a union and
its members
the license to commit acts of gross insubordination is
simply ridiculous. I am in agreement with Mr. Kennedy that just as,
under
the Constitution, a person who exercises his or her right to
freedom of expression may still be held liable for defamation, so
too can an employee be found guilty of insubordination if, through
his or her statement (whether in a petition or otherwise),
he or she
acts in a grossly disrespectful manner, rejecting the authority of
management, and manifesting gross insubordination.
Moreover, this
court acknowledges that an employee must accord a reasonable degree
of respect towards his or her employer and
that the failure to do so
may destroy the employment relationship. Although it is not expected
that an employee be subservient
it is at the very least expected
that an employee show respect for the authority of the employer and
behave in a respectable
and responsible manner towards the employer.
The conduct of the applicants in this case was anything but
respectful. In fact,
they calculatedly decided to defy the authority
of their employer. The fact that they were frustrated with their
working conditions
(assuming that their grievances had merit) does
not entitle them to act in the defiant manner that they did.
4
The majority of the employees,
however, came to their senses and apologized for their behavour. The
ten applicants have decided
not to do so and continue to defend
their insolent and insubordinate behavour. I am in agreement with
the following comments
by Grogan
5
:
“
Disrespect to an employer
justifies termination of the employment relationship only when it is
either so gross (ie insulting and
abusive) or so frequent as to
suggest that the employee has repudiated the employer's lawful
authority, or, in more modern terminology,
if it has rendered the
continuation of the employment relationship “intolerable'. Each
case must be considered on its own
merits to establish whether these
inferences can be drawn
.”
Inconsistency
I need to deal with one last aspect
and that it the allegation of inconsistency. I accept that
consistency is an element of disciplinary
fairness and that all
other things being equal it is unfair to dismiss only some of a
number of employees who are guilty of the
same offence. (See
SACCAWU
v Irvin and Johnson Ltd
6
and
NUMSA
v Henred Fruehauf Trailiers
7
.)
The union’s argument was that
the ten employees who were dismissed committed the exact same
offence as the 31 others (three
of whom were not charged as they had
distanced themselves from the union and the petition at a very early
stage and the 28 employees
who were found guilty of the same offence
but were punished simply with a warning). I do not agree with this
submission as it
loses sight of the fact that there is a clear
factual distinction between the fate of the 10 applicants before
court and the
28 others who, although having been found guilty,
voluntarily decided to acknowledge their wrongdoing and tendered an
apology.
The remaining ten employees were all given the exact same
opportunity but they had elected, of their own accord, not to sign
the acknowledgement and the undertaking. In these circumstances it
can hardly be said that the chairperson treated these ten applicants
inconsistently and unfairly.
I am therefore of the view that the
dismissals of the ten applicants were fair and that no case has been
made out that the dismissal
was inconsistent. The dismissal of the
ten applicants are therefore upheld
Re charge 2
The individual applicants were also
found guilty on the second charge in that they had brought the
employer into disrepute by
associating themselves with the
allegations against the Board and the CEO which were leaked to the
Mail and Guardian.
It is, in my view, not strictly
necessary to deal with this charge in light of my finding that
dismissal was warranted in respect
of the first charge standing on
its own. However, for completeness sake I intend to deal with the
second charge briefly.
I am in agreement with the finding of
the chairperson that the applicants were also guilty of the second
charge. The test is the
balance of probabilities. The fact is that
within days after the union had sent its letter of 23 May 2008, the
Mail and Guardian
had the letter in its possession. I do not accept
that it is probable that the respondent would have leaked the
letter. The letter
contains highly damaging accusation against
management (and especially the CEO) and to suggest that management
would have leaked
such a letter to the press is, in my view, highly
improbable. Furthermore, the union, in a letter dated 5 June 2008 –
merely
a few days after the publication of the article in the Mail
and Guardian on 30 May 2008 - stated the following:
“
The Union has a right to
communicate the contents of its correspondence to the public through
the media without any fear from the
board”.
Why would the union write such a
letter merely 5 days after the letter was leaked? Furthermore, when
the respondent’s attorneys
in the letter of 6 June 2006
complained that the union was involved in making information to the
media, the union in its reply
dated 9 June 2008 made no attempt
whatsoever to deny the allegation.
I am therefore satisfied that the
applicants are also guilty on the second charge.
Procedural fairness
Although the statement of claim
pleads that the dismissals were also procedurally unfair, I could
find no basis for finding that
the dismissals were procedurally
unfair.
The union attempted to persuade the
court that the chairperson ought to have recused himself from the
proceedings because he received
the bundle of documents from the
respondent’s attorneys prior to the disciplinary hearing
formally convening. The test
for recusal is whether a reasonable
person might justifiably in the circumstances have had the
reasonable perception that the
chairperson was or may have been
biased. See
President of the Republic of South Africa v SA Rugby
Football Union
2000 (a) SA 1 (CC). There is in my view nothing
improper in having received the bundle of documents prior to the
commencement
of the hearing. There is no justification for the
argument that by furnishing the chairperson with the bundle of
documents the
chairperson displayed bias. In fact, if the record of
the hearing is perused it is clear that the chairperson conducted
the hearing
fairly and evenhandedly. In fact, the chairperson by
extending an olive branch to the individual employees showed that he
had
approached the whole process fairly and with an open mind. There
is also no indication that the chairperson did not apply his mind
to
the evidence. In fact, the chairperson submitted a comprehensive and
well-reasoned finding. I can also not find fault with
the manner in
which the chairperson offered the individual employees the
opportunity to sign the acknowledgment. To suggest that
there was
“duress” is baseless. It is clear from the chairperson’s
findings why he offered the employees an
opportunity to disassociate
themselves from the petition. As a result of this opportunity 28
employees are today in employment.
Lastly, a concern was also raised
that the ten employees who did not accept the olive branch were not
given an opportunity to
present their submissions in respect of
sanction orally. There is no merit in this argument. Fairness does
not require an oral
hearing. Moreover, the union utilised the
opportunity to present the submissions in respect of mitigation in
writing in the form
of “collective submissions”. There
is no suggestion in this document that the union was dissatisfied
nor did the
union convey to the chairperson that it wished an
opportunity to present the submissions orally. In the event I find
that the
dismissals were procedurally fair.
In respect of costs, I am of the view
that the applicants should be ordered to pay the costs jointly and
severally. The applicants
misguidedly approached this court with a
claim without any merit. There is also, as already pointed out, no
longer any relationship
between NUPSAW and the respondent.
In the even the following order is
made:
The dismissals of the applicants
were substantively and procedurally fair.
The applicants are ordered to pay
the costs jointly and severally.
AC BASSON, J
DATE OF PROCEEDINGS
:
19, 20 and 21 November 2009
6, 7 and 17 December 2010
DATE OF JUDGMENT
:
3 February 2011
FOR THE APPLICANT
:
Mr. Voyi of Ndumiso Voyi Incorporated
FOR THE RESPONDENT:
Paul Kennedy SC: Instructed by
Cheadle, Thompson and Haysom
1
In
terms of section 158(2)(b) of the LRA, this Court may assume
jurisdiction where the parties consent and it is expedient to
do so.
2
Section
4 and 6 of the LRA.
3
The
Industrial Court distinguished between insubordination and
insolence: “
It is clear that (even though he can be both at
the same time) an employee can be insolent (impudent, cheeky,
disrespectful or
rude) without necessarily being insubordinate
(disobedient or challenging authority). Mere disrespect for the
employer (or insolence,
impudence, cheekiness or rudeness) cannot by
itself constitute insubordination which by its very nature requires
disobedience
or an outright challenge to authority. As has been
fully explained above, insubordination can manifest itself in the
refusal
to obey a reasonable and lawful command or in the challenge
(or resistance) to or defiance of (see especially The Shorter Oxford
English Dictionary above) the authority of the employer. It is, of
course, required that the insubordination must be deliberate
(wilful) and serious (above). This is not to say that
contemptuousness of authority (insolence, impudence, cheekiness,
disrespect
or rudeness) cannot constitute a ground for dismissal
(provided, of course, that it is wilful and serious). One should,
however,
always distinguish between insubordination on the one hand
and insolence on the other hand because they are definitely not the
same kind of offence.
In
line with the principle that the insubordination should be serious
enough to justify or warrant dismissal, prior warnings should
be
issued for insubordination before resorting to the final act of
dismissal (see Brassey et al The New Labour Law at 432 where
the
case of Metal & Allied Workers Union v SA Traction Manufacturers
case no NH 13/2/225 of 26/11/1984, (1984) ICD (1) 31
(IC) is
referred to). Prior warnings relate to the question of substantive
fairness because (unless the gross insubordination
is so serious
that dismissal without warning is justified) the employee should be
put on his guard that a further act of insubordination
might lead to
his dismissal before insubordination becomes a fair and valid reason
to dismiss.
“
4
Slagment
(Pty) Ltd v Building Construction & Allied Workers Union &
Others
1994 (15)
ILJ
979 (A): “
(4) Even if one
were to assume that management was guilty of insensitivity, its
relevance to the fairness of the dismissals was
questionable. The
employees had been guilty of sustained disobedience. They had
deliberately set themselves on a collision course
with management.
They were insubordinate and insulting. Their conduct was such as to
render a continuance of the relationship
of employer and employee
impossible. The court did not agree with the employees' contention
that their resentment at the manager's
appointment, although it did
not justify or excuse their conduct, was a mitigating factor - if
the employees had a grievance,
the grievance procedure in the
recognition agreement between the appellant and the union provided
the route that they should
have followed. (5) Although the employees
did not stop working, they insolently refused to perform in the way
required by their
employer. (6) It mattered not that the employees
were dismissed after only three days of recalcitrance, during those
three days
management showed exemplary patience in the face of
severe provocation. Obviously matters could not be allowed to
continue in
this way. There was an impasse that had to be unblocked
and there was no way out except the holding of a disciplinary
inquiry,
which might possibly result in dismissal.
The
court therefore found that the dismissals were not substantively
unfair and that they were fully justified.”
Quoted from
the headnote.
5
“
Workplace
Law” 10
th
edition at 51 – 52.
6
(1999)
20
ILJ
2392 (LAC).The following appears from the headnote:
“The appellants argued that the compan
y had applied
discipline inconsistently by not dismissing four employees who had
also participated in the demonstration. The court
was of the view
that too great an emphasis is frequently placed on the 'parity
principle'. There is really no separate 'principle'
involved;
consistency is simply an element of disciplinary fairness. Where one
is faced with a large number of offending employees,
the best one
can hope for is reasonable consistency. Some inconsistency is the
price to be paid for flexibility which requires
the exercise of a
discretion in each individual case. If a chairperson conscientiously
and honestly, but incorrectly, exercises
his or her discretion in a
particular case in a particular way, it does not mean that there has
been unfairness towards the other
employees. It means no more that
that his or her assessment of the gravity of the disciplinary
offence was wrong. It cannot be
fair that other employees profit
from that kind of wrong decision. In a case of a plurality of
dismissals, a wrong decision can
only be unfair if it is capricious
or induced by improper motives, or, worse, by a discriminating
management policy. Even then,
it might not be so unfair as to undo
the outcome of other disciplinary enquiries. If, for example, one
member of a group of employees
who committed a serious offence
against the employer is, for improper motives, not dismissed, it
would not necessarily mean that
the other miscreants should escape.
Fairness is a value judgment. It might or might not in the
circumstances be fair to reinstate
the other offenders. The point is
that consistency is not a rule unto itself. “
7
(1994)
15
ILJ
1257 (A).