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[2011] ZALCCT 53
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Khawusele and Others v Fidelity Cash Management (C826/2006) [2011] ZALCCT 53 (15 June 2011)
not
reportable / of interest to judges
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NUMBER: C826/2006
In the
matter between:
B.
KHAWUSELE
...................................................................................
First
Applicant
K. MAHO
..........................................................................................
Second
Applicant
A.S.
MADIKIZELA
...............................................................................
Third
Applicant
M.
BENYA
..........................................................................................
Fourth
Applicant
A.
MAKETA
...........................................................................................
Fifth
Applicant
S. HALU
...............................................................................................
Sixth
Applicant
L.
MAJALAZA
.................................................................................
Seventh
Applicant
Z.
MKHUMBUZI
.................................................................................
Eighth
Applicant
and
FIDELITY
CASH MANAGEMENT
............................................................
Respondent
JUDGMENT
Rabkin-Naicker A.J.
INTRODUCTIO
N
[1]
The Applicants were dismissed on the 23
rd
October 2006 for participating in an
‘illegal work stoppage/ unprotected industrial action’.
Before this court, the
Applicants contended that they had not been
involved in an unprotected strike but instead, after being given a
lawful instruction
by the senior manager of the branch to go to the
Bargaining Council regarding their grievance, they left the premises
on 19 October
2006 in the early morning. [2] The court is required to
decide whether the action taken by the Applicants amounted to
unlawful
industrial action, and whether their subsequent dismissal by
the company was procedurally and substantively fair.[3] In making
this decision regard must be had to section 68(5) of the LRA which
states :“Participation in a strike that does not comply
with
the provisions of this Chapter, or conduct in contemplation or in
furtherance of that strike, may constitute a fair reason
for
dismissal.”[4] In determining whether or not the dismissal is
fair, the Code of Good Practice : Dismissal in Schedule
8 of the LRA
must be taken into account. Item 6 of the Code of Good Practice :
Dismissal provides as follows :“6 Dismissals
and industrial
action(1) Participation in a strike that does not comply with the
provisions of Chapter IV is misconduct. However,
like any other act
of misconduct, it does not always deserve dismissal. The substantive
fairness of dismissal in these circumstances
must be determined in
the light of the facts of the case, including- (a) the seriousness of
the contravention of this Act; (b)
attempts made to comply with this
Act; and (c) whether or not the strike was in response to unjustified
conduct by the employer.(2)
Prior to dismissal the employer should,
at the earliest opportunity, contact a trade union official to
discuss the course of action
it intends to adopt. The employer should
issue an ultimatum in clear and unambiguous terms that should state
what is required of
the employees and what sanction will be imposed
if they do not comply with the ultimatum. The employees should be
allowed sufficient
time to reflect on the ultimatum and respond to
it, either by complying with it or rejecting it. If the employer
cannot reasonably
be expected to extend these steps to the employees
in question, the employer may dispense with them.”[5] First
Applicant
was not present at trial, nor had he deposed to an
affidavit setting out his earnings with the company having been
requested to
do so by the Applicants’ legal representative, and
his colleagues. Thus for the purposes of the order emanating from
this
judgment I am unable to regard him as a party in the dispute.
The Second to Eighth Applicants seek reinstatement into their
previous
positions with the company. BACKGROUND TO THE DISPUTE[6] The
Respondent operates a cash in transit business and falls under the
scope of the National Bargaining Council for the Road Freight
Industry. It is common cause that at the time of the dispute and
referral to this court, the company was called Fidelity Cash
Management Services, which has subsequently been changed to G4S Cash
Solutions.[7] In 2006 the Applicants were employed by the company
with the job title of ‘vehicle security guards’ (VSGs).
They commenced employment with effect from 1 July 2006 after
completing a month’s training on a fixed term contract. Their
contracts set out that their remuneration would be an amount of R2170
per month with an additional fire arm allowance of R330 per
month.[8]
It was common cause that subsequent to their appointment as VSGs,
there were at least three meetings held between the
Applicants and
their union on the one hand, and the company on the other, in
relation to the Applicants’ grievance that they
were being
underpaid. The President of the Motor Transport Workers Union (“the
union”) and a senior manager from the
company’s head
office travelled to Cape Town to discuss the issue.
[9] The
grievance arose from the fact that applicants were being paid
substantially less than the other employees (with whom the
applicants
travelled in cash in transit vans), who drove vehicles or who
actually handled the cash. The industry standard at that
time for the
drivers and crew was at least R4500 per month. The applicants alleged
that although they were doing very dangerous
work in the cash in
transit industry their salary was equivalent to an ordinary security
guard.[10] It was common cause that the
company informed the
Applicants and other employees in their position, that they would be
“promoted” to crew when vacancies
arose. It was the
company’s case that the Applicants did not drive or actually
deliver the cash as did other crew members
and that they were
therefore not employed at the same level of seniority.[11] The
Applicants were informed by the company that
in March 2007, there
would be a possibility of a rise in wages in terms of negotiations
under the Main Collective Agreement of
the Road Freight Industry
under which the parties fell. No progress was made in resolving their
grievance before the alleged illegal
work stoppage took place in
October 2006.Was there an illegal work stoppage?[12] This question
was hotly contested at trial. The
company was without its principal
witness to the events of the morning of the 19
th
October 2006, and in particular to the
meeting that had taken place with the VSGs on the morning of the
alleged work stoppage. This
witness, Mr Nico de Jager (“de
Jager”), the branch manager of the company, had emigrated to
Australia by the time the
trial was enrolled.[13] The applicants
insisted in testimony that de Jager had instructed them to go to the
bargaining council
on the day in question and they were therefore
only obeying a lawful instruction when they left the premises before
the morning
shift. It is necessary to evaluate whether the applicants
have discharged the onus of proving that the work stoppage was legal,
see
Modise & Others v
Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC) at paragraph
10
.[14] The third applicant
(Madikezela) testified as to what had happened on the 19
th
October 2006. He stated that the VSGs
were sitting chatting in the recce room and that when de Jager came
there:
“
he was very
upset and he told us that he hear we are claiming we are going to be
promoted……And he’s not going
to do so because we
are not productive. So if we think maybe there is any place that can
change what he told us, we can, we can
go to the Bargaining
Council”
.[15]
According to the Eighth Applicant (“Mkhumbuzi”), de Jager
just said:
“
I hear
that you want promotion. You want more money. You will never get
that. You can go whenever you like. You can even go to the
Bargaining
Council and find out there.”
[16]
Mkhumbuzi’s evidence regarding what happened when the
applicants went to the bargaining Council is particularly revealing.
He testified that:
“…
the
day we were there by the Bargaining Council, we also told that guy
who was there that day, we don’t even know that we
are still
having jobs, because we have to go back base. He say no, they can’t
do to you that because you are here and then
we have marked here on
our visitation register that you were here”.[17] A further
piece of evidence of significance to the
version that applicants were
simply following a lawful instruction when they left the premises,
was that given by the seventh applicant
(“Majalaza”) in
chief, when he stated that on the 19th October 2006, de Jager had
told them: “…if we think
that what they are doing is
unfair to us we must leave and go and report to the Bargaining
Council and see if we are going to win.
So we accepted his
instructions, we left the premises”.[18] In view of the
applicants own testimony referred to above, and
taking into account
that the ‘lawful instruction defence’ was raised for the
first time at trial, I find that the probabilities
do not favour the
applicants on the issue of the legality of the work stoppage. I find
instead that the applicants walked out in
frustration after de Jager
had basically told them that they would never get more money, and
that as Mkuh
umbuzi testified, they did not know if
their jobs would be safe when they returned to base. They were in
fact suspended pending
their disciplinary hearing on the 19th October
2006,the day of the work stoppage.
[19] I now turn to consider whether the company has discharged the
onus of establishing that their dismissal was procedurally and
substantively fair.
Procedural Fairness of the Dismissal
[20] It was submitted on behalf of the company that there had been
substantial compliance with the audi rule in respect of the
dismissals.
Mr Samuel Raubenheimer (‘Raubenheimer’) of
Danshall Consulting chaired the disciplinary hearing and gave
evidence in
respect of this process. He explained to the court that
he had grea
t trouble recalling the factual nature of the evidence
at the hearing, and that unfortunately his notes taken there had been
mislaid.
He knew the form the disciplinary hearing took because it
would have been the format he always used. He conceded under
cross-examination
that it might be a fair assumption that certain of
his evidence in chief may not be a correct version of what occurred.
[21] It was
the applicants’ case that two of their number were not present
at the hearing and had informed the company of
their inability to
attend. It was further their evidence that they were not given a
chance as individuals to give evidence or to
challenge the evidence
at the hearing. They were however represented by a shop steward, a Mr
Coordon (“Coordon”). Coordon
(who had since 2006 joined
the ranks of management and gave evidence for it) was unable to
dispute that the applicants were not
given an opportunity to state
their case at the disciplinary hearing.[22] Given the above, the
applicant’s version of the
disciplinary hearing is to be
preferred, I do not deem it necessary to deal with the appeal
process. What is of importance to consider
in respect of overall
procedural fairness in the context of this case, is the issue of
whether the Schedule 8: item 6 guidelines
were followed.[23] The
company was unable to provide evidence that an ultimatum as
contemplated in Item 6 of Schedule 8 was given
to the applicants. Mr
Dean Bryte (‘Bryte’) the operations manager of the branch
at the time confirmed that there had
been illegal work stoppages
before, and was asked under cross-examination what the company had
done previously. He stated that
‘you give them ultimatum and
then you give them second ultimatum and then you just suspend’.
He testified that in this
instance there was no time to give the
applicants an ultimatum as they just walked off. He was unable to
answer as to whether an
ultimatum was issued to the union as this was
de Jager’s department.[24] The purpose of an ultimatum is to
afford striking
employees an opportunity to consider their position
before action which may have dire consequences is taken against them.
Sufficient
time must be given to them in this regard i.e. to entice
them back to work. See Professional Transport workers Union &
Others
v Fidelity Security Services (2009) 30 ILJ 1129 (LC) at
paragraphs 41 and 44 and the authorities there incited.[25] In this
matter,
it is undisputed that no ultimatum was issued by the company
and that further, there was no consultation with the applicants union
as to the course to adopt. On the company’s own evidence, this
practice had been observed in the past. I am therefore of
the view
that it is reasonable to expect that it should have been observed in
this case.[26] Even if the court accepts that the
applicants were
warned they would face dismissal if they walked out, such a warning
would not meet with the standard of fairness
required in these
circumstances. I am in respectful agreement with Molahlehi J in the
Professional Transport Workers Union v Fidelity
Case Management case
(supra) that to comply with principles of fairness an ultimatum
must:(i) be communicated to the striking employees;(ii)
the
communication must be in a language easily understood by the
employees - preferably it should be their home language;(iii)
the
terms of the ultimatum must clearly indicate what is expected of the
employees, including the time frame within which they
are expected to
comply and where compliance must be carried out;(iv) more importantly
indicate the possible consequences of their
failure to comply with
the terms of the ultimatum, and (v) the employees must be given
sufficient time within which to consider
their position in relation
to compliance or otherwise with the terms of the ultimatum. [27] In
all the circumstances therefore,
I am of the view that the company
has failed to prove that the dismissal of the applicants was
procedurally fair.Substantive Fairness
of the Dismissals[28] Having
concluded that the applicants were involved in an illegal work
stoppage which constitutes misconduct,
the enquiry into substantive
fairness will focus on the seriousness of the contravention of the
LRA; attempts made to comply with
the Act; and whether or not the
illegal work stoppage was in response to unjustified conduct by the
company. (Item 6(1) of Schedule 8.)[29] The applicants made
relatively prolonged attempts to find a solution to their grievance
and their demand for the same pay as other members of the crew.
It
was common cause that the union did not take steps to refer the
matter to the bargaining council althought it was applicant’s
evidence that the national leadership of the union had undertaken to
do.[30] Although the evidence does point to attempts to comply
with
the LRA by Applicants in attempting to get their union to refer the
dispute, this cannot excuse the applicants conduct. This
court, in
upholding the overarching principles of our employment legislation,
must express its disapproval at unprotected industrial
action,
whatever its duration.[31] The next question to consider is whether
the strike was in response to unjustified conduct on
behalf of the
employer. During the trial the company gave evidence on the binding
nature of the main agreement of the Road Freight
Industry. It was the
company’s case, through the testimony of one of its consultants
Mr Manthey (“Manthey”),
that prior to 2007, persons such
as the applicants were in a recognised category of ‘security
guard’ in terms of the
Main Agreement and that after that date
the title changed to ‘vehicle security guard’. During
2006, the company could
not pay wages outside of the negotiated
category of security guard.[32] The main agreement that applied at
the time of the dispute
was not discovered by the company who relied
instead on references to an unsigned later agreement. Subsequent to
the filing of
written submissions by the parties, I requested them to
supplement these, in respect to the relevance of the main agreement
that
actually governed the parties at the material time. I am
indebted to the legal representatives for filing same.[33] Mr
Makapane
for the applicants, argued that since the company had failed
to discover the relevant agreement even when it was raised in court,
that I should not have regard to it. I must disagree given that a
published collective agreement has the status of subordinate
legislation. See
Platinum Mile Investments (Pty) Ltd t/a
Transition Transport & Allied Workers Union & Others (2010)
31 ILJ 2037 (LAC).
The court may therefore take judicial notice
of its contents.[34] In as far as the Road Freight Collective
Agreement and amendments
for the period of May 2004 and July 2006 are
concerned, its contents are of relevance to this case in that they
assist in the determination
of whether the applicants had a valid
grievance. The definition section of the agreement reveals that a
‘
security guard’
means an “
employee,
other than a security officer, who is engaged in one or more of the
following duties: Guarding, protecting or patrolling
premises,
buildings, structures or other fixed or moveable property, whether or
not he handles or controls dogs in the performance
of any or all of
the said duties”.
[35] There are three categories of
‘
security officers”
defined in the said Agreement.
Ms Potgieter for the company submitted that the applicants fulfilled
the function of security guards,
and not that of security officers,
in that they did not drive the vehicles or handle cash. Majalaza
confirmed the role he and his
colleagues played in evidence when he
testified as follows:“…
as the vehicle security guard
you will work there as the third man, that means you must be the
first person that must go out of
the vehicle, and then when you go
out, after you go out then you must take cover, and see if there is
any suspicious surroundings
around the vehicle or around the vicinity
in which you are working at, and then if the situation is fine then
you will make a sign
to your colleagues in the vehicle……..and
then you will escort him (the crewman) into the client’s
premises.”
[36] In her submissions, Ms Potgieter quoted the
relevant definitions of the security officers in the Main Agreement,
who drive
and handle the cash, but failed to include that part of the
stated definition of the three types of ‘security officers’,
which includes the words “
and who may have to carry
firearms”
. It was common cause that the applicants were
required to handle firearms. The description of the applicants
precise function set
out above makes it abundantly clear why.[37]
This court does not have jurisdiction to interpret the collective
agreement and make
findings as to its meaning. I have considered the
agreement’s terms to assist me to ascertain the issue of
substantive fairness
and whether it can be said that the conduct of
the company was in anyway blameworthy. It was not disputed by the
company that at
other branches of its operations, employees working
as crew on the cash and transit operations were not paid the security
guard
rate. [38] Taking judicial notice of the 2007 collective
agreement (Regulation Gazette No. 30041), I record that in fact the
definition
of a VSG was included in 2007 for the first time, and is
defined as: “
an employee who is engaged to provide a
protective, armed service to the security officer 11, in securing an
area, guarding of cash
and valuables, securities and negotiable
documents in transit.”
I note that in this Agreement while
the Paterson grade of a VSG is category B2, the security guards grade
is category A. Security
officers are at category B3 and B4.[39] There
is no doubt that it is arguable that the rate of pay being earned by
the applicants
(ie. as security guards) was not commensurate with the
dangers of the work they undertook. Whether they should have been
paid according
to the ‘security guard’ category at the
time, given the need for them to carry firearms, was a matter than
should have
been resolved through interpretation of the collective
agreement at the Bargaining Council. I can only infer that the union
at
national level, and the company were not overly concerned to
ensure a determination take place.[40] The question of whether the
employer was involved in unfair conduct could only be answered if
there had been a definitive ruling on whether the applicants
should
have been categorised as ‘
security officers’
or
‘
security guards’
under the applicable collective
agreement. In the same vein, whether the applicants in fact were
making a lawful demand for more
pay would have been settled had the
matter been referred to the Council in terms of section 24(1) of the
LRA.[41] This court must
decide on the fairness of the dismissals.
Taking into consideration all the circumstances of this case,
including the short duration
of the work stoppage and the legitimate
grievance of the Applicants in respect of their remuneration as tied
to the category ‘security
guard’, I find that dismissal
was too harsh a penalty.
Remedy
[42] Having found that the
dismissals were both procedurally and substantively unfair, I must
consider whether the primary remedy
of reinstatement is apposite.
Generally, a court is loath to grant reinstatement in the
circumstances of an unprotected strike
in order to show its
disapproval of the contravention of the provisions of the LRA. [43] I
do not consider that the company’s
conduct contributed
negatively to the circumstances leading to the work stoppage in
distinction to the factual matrix in
Professional Transport
workers Union & Others v Fidelity Security Services (2009) 30 ILJ
1129 (LC),
where there had been no engagement with the union over
the implementation of a new roster. The company did engage with the
applicants
and their union representatives on their grievances and
demands on at least three occasions between July and October 2006. I
have
stated above that I am unable to find the company’s
categorisation of the employees in terms of the collective agreement
as unfair. This arguable case should have been taken to the
bargaining council for determination. I therefore do not consider
reinstatement
to be appropriate. The applicants are however entitled
to compensation in view of the company’s scant regard for
procedural
fairness and imposition of too harsh a penalty in the
circumstances.[44] In as far as costs are concerned, I note that the
attorneys
for the applicants, who have represented them on a pro bono
basis have not made submissions in this regard. I do not consider
that
fairness dictates that costs are awarded in this matter save for
the wasted costs which were tendered by the company in respect
of a
postponement of the matter on the 14
th
February 2011.[45]
In conclusion, I make the following order:45.1 The dismissals of the
Second to Eighth Applicants were procedurally
and substantively
unfair;45.2 The respondent is hereby ordered to pay Second to Eighth
applicants an amount equivalent to 12 months
remuneration calculated
at their salary as of the date of their dismissals;45.3 There is no
order as to costs. Rabkin-Naicker A.J.Date
of Hearing: 14/2/2011;
22-23/2/2011; 3-4/5/2011Date of Judgment: 15 June 2011Appearances:
For the Applicants: Mr K. Makapane Edward
Nathan Sonnenberg Attorneys
For the Respondent: Ms C. Potgieter Blake Bester Incorporated