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[2011] ZALCCT 15
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South African Municipal Workers Union obo Abrahams and Others v City of Cape Town and Others (C655/2009) [2011] ZALCCT 15; [2011] 11 BLLR 1106 (LC); (2011) 32 ILJ 3018 (LC) (17 June 2011)
SHAI AJ
IN THE LABOUR COURT OF SOUTH
AFRICA
(HELD AT CAPE TOWN)
Reportable and of interest to
other Judges
Case No: C655/2009
In
the matter between
SAMWU
obo M ABRAHAMS & 90 OTHERS
…...........................................
Applicants
and
CITY
OF CAPE TOWN
…......................................................................
First
Respondent
SA
LOCAL GOVERNMENT BARGAINING
COUNCIL
(SALGBC)
…....................................................................
Second
Respondent
ADVOCATE
C DE KOCK N.O.
….......................................................
Third
Respondent
Date of Hearing
:
1/3/2011
Date of Judgment
:
17/06/2011
JUDGMENT
SHAI,
AJ
Introduction
[1] This is an application
whereby the applicant seeks to review and set aside the arbitration
award granted by the third respondent,
the “arbitrator”,
issued under case number PSH447-08/09, dated 14 October 2009. The
applicant seeks to have the finding
of the arbitrator that the
dismissal of the first to ninety first applicants is fair be
substituted by the one which says that
such a dismissal was unfair.
The facts
[2] On 3
rd
July 2007,
there was an alleged unlawful collective work stoppage by members of
the first respondent’s Law Enforcement Department
who allegedly
unlawfully gathered at the Civic Centre after receiving their
placement letters. Similar incidents had occurred prior
to 3
rd
July 2007.
[3] Following the last of the
alleged unlawful work stoppages, the first respondent’s
Executive Director: Safety and Security
and the Chief of the
Metropolitan Police circulated a memorandum to all the first
Respondent’s safety and security staff,
explaining that it was
a matter of serious concern that safety and security staff were not
adhering to the first respondent’s
grievance procedures when
raising grievance and that it was manifestly unacceptable for
employees, and particularly essential service
employees, to simply
ignore such grievance procedures and embark on unlawful work
stoppage, strikes or other collective actions.
The memorandum
however, explained that such behaviour would not be tolerated and
that staff guilty of such actions would be disciplined.
[4] It appears that during 2007,
first respondent was engaged in a restructuring process to ensure
that employees were placed in
correctly graded posts. Comprehensive
consultations had occurred in relation thereto between the third
respondent and employees
and their trade unions. Employees were
assured that the process will not affect them in so far as their
terms and conditions of
employment are concerned.
[5] On 14 August 2007, the first
respondent received reports that a mass strike and traffic blockade
was planned for the next day
by the Metropolitan Police who are
members of SAMWU. In the late afternoon of 14 August 2009, the
respondent through Mr. Kevin
Maxwel, the Director of the first
respondent Metropolitan Police Force communicated to all city police
members that:
- Any disruption of traffic in
any form would be considered criminal and result in the arrest of any
city police officer who participates
in such unlawful action.
- Any strike action by city
police was illegal an unprotected.
- Any employee participating
either in the disruption of traffic or any other form of strike or
protest would face disciplinary
action. Any employee found guilty of
such action would face summary dismissal.
[6] E-mails communicating the
above facts were sent to officers in command of various Metropolitan
Police depots and read out to
employees on duty at their depots.
[7] On the morning of 15 August
2007, a great many Metro Police officers, including officers who were
not from the Bonteheuwel prescint,
gathered at the Bonteheuwel depot.
About 06h45, Acting Director Swan Peterson addressed a group of about
100 officers in the Bonteheuwel
parade room. Peterson conveyed to
those present the content of the e-mail outlined about in paragraph 5
and 6. Some of those present
at the parade tried to disrupt his
briefing by behaving in a rudely fashion.
[8] This large group left the
Bonteheuwel department in a convoy between 06h50 and 07h00. The
manner in which they turned their
convoy blockaded the public road
running along side the Bonteheuel station, and the noise level
created by them was so unacceptable
that two members of the public
from across the road came to complain.
[9] The convoy proceeded on to
the N2. The CCTV footage was taken, the authencity of which is not
disputed, was played as part of
the disciplinary proceedings. The
footage, taken from the point on the N2 near the Raapenberg off-ramp,
shows that between 07h24
and 07h29 no traffic was coming from
Athlone, and that the traffic entering the N2 from Pinelands off-ramp
was flowing freely for
approximately five minutes. From the footage
it was quite clear that the convoy was travelling at an inordinately
slow speed. Metro
Police vehicles were riding abreast one another,
and obviously endeavouring to span the entire breath of the highway –
such
endeavour included Metro Police vehicles illegally riding on the
shoulder of the road. Vehicles in the convoy also, on occasion,
moved
diagonally across the high way in an endeavour to prevent public
vehicles from passing. One or two public vehicles succeeded
in
finding gaps in the convoy; but these gaps were rapidly filled,
ensuring that the vast majority of public vehicles were stuck
behind
the convoy. The public vehicles were, to in increasing extent,
hooting in order to show displeasure and in an endeavour
to get the
Metro Police drivers to move on, and allow public vehicles to pass
them.
[10] The convoy reached the
Civic Centre at approximately 08h30, wishing to hand their memorandum
to the Mayoress personally or
alternatively the Deputy Major. Neither
was available as they were in important meetings. The group then
gathered at the eastern
entrance to the Civic Centre until about
10h00, before handing the memo to General Jones, the chief of Metro
Police and dispersing.
[11] The applicant had made no
arrangement with the office of the Mayoress to have her receive the
memorandum nor to address them
on their issues of concern to them.
[12] The first respondent
regarded the conduct of the applicant in participating in the events
described above, in the serious light.
The first respondent contends
that the seriousness of the offence was aggravated by the following:
- The applicants are law
enforcement officers whose most important function is to uphold the
law and ensure that others comply there
with. For persons in that
position to deliberately and publicly, transgress the law is a matter
of the gravest concern.
- They deliberately planned
their aforesaid unlawful action to coincide with peak traffic hours,
so as to cause maximum disruption
to the largest number of people
possible.
- The action caused the
extensive disruptions and financial losses.
- The fact that it was illegal
for law enforcement officers to participate in strike action, and
that this would lead to disciplinary
consequences, had more interest
in the memorandum of 6 July 2007, than in the warnings that were
issued at the various depots and
thereafter at the Bonteheuwel depot,
on the morning of the strike action.
[13] Initially, first respondent
attempted to have the disciplinary enquiries proceed in a certain
manner, in order to expedite
the finalization of such enquiry. First
respondent endeavoured to hold consultations with the applicants and
with IMATU, the other
representative trade union involved, with a
view to securing agreement as to the disciplinary procedure to be
followed. The applicant,
SAMWU objected to the form of the
proceedings which first respondent indicated that it intended
following, and in due course, obtained
a Court Order interdicting the
first respondent from holding any disciplinary enquiries in
accordance with the procedure first
respondent proposed. The said
Court Order is subject to an appeal to the Labour Appeal Court and
not related to the proceedings
herein.
[14] Thereafter, the following
charges were brought against each of the said applicants:
“
The
allegations against you are that you have grossly misconducted
yourself, in that; you collectively, and with common purpose,
alternatively by association or making common cause with the
collective, on the 15 August 2007;
1. Participated in an illegal
and unlawful strike, whilst being an essential service employee and
in breach of the collective agreement
and your contract of
employment.
2. Deliberately and
intentionally blockaded the N2 freeway into Cape Town during peak
traffic hour causing extensive disruption
to thousands of commuters
utilizing such freeways, causing such commuters to be late for work
and other appointments, and occasioning
consequential disruption of
businesses employing such commuters and necessitating the City to
incur additional financial expenses,
through payment of additional
overtime in the amount of R115 000,00.
3. Committed further unlawful
acts by taking part in an illegal gathering in contravention of the
gatherings Act.
4. Your and the collective’s
aforesaid conduct brought the City, your employer into disrepute,
disrupted the lives and activities
of a great many members of the
public, and businesses, and undermined law enforcement in the City.”
[15] The disciplinary hearing
took place over an extended period between 17 March and 11 July 2008.
The parties entered into a so-called
common cause agreement which set
out common cause facts and the manner in which the hearings were to
be conducted on a practical
level which included the following:
[15.1] The first respondent was
also to produce various photographs from which it was able to
indentify 98 of the applicant’s
members. The persons included
the 91 employees subjected to these proceedings. The photographs were
taken at the Civic Centre during
the handing over of the memorandum
to the Mayor.
[15.2] 17 Persons could be
identified from the photographs, but were not charged.
[15.3] 10 Persons had charges
withdrawn following undisclosed submissions from their Directors or
Commanders.
[16] It was agreed between
parties that a single hearing be held for all those charged without
admitting that the first respondent
and the chair of the hearing were
entitled to adopt the doctrine of “collective guilt” or
common purpose.
[17] After the conclusion of the
disciplinary hearing, the applicants together with the other two
employees were not found guilty
on charge 3, and guilty on other
charges. The chairperson imposed a sanction of dismissal. An appeal
to an appeal tribunal was
unsuccessful as a result of which the
applicant’s referred an unfair dismissal dispute to the SALGBC.
[18] In terms of the agreement
concluded at the Bargaining Council on 18 March 2009, the parties
agreed that
viva voce
evidence which was led at the
disciplinary hearing, together with the documentary, photographs and
CCTV material, would be placed
before the arbitrator and serve as
evidence for purposes of the unfair dismissal dispute to be
determined by him. Further that
it was agreed that except if the
arbitrator gave a directive to the contrarily, no further witnesses
would be called by them.
[19] On 31 July 2009, the third
respondent delivered his award, which award confirmed the dismissal
of all the employees (applicants)
save Messrs Ludick and Lyons who
were reinstated with no back pay.
Applicants’ grounds of
review
[20] The applicants raise the
following grounds of review against the award of the arbitrator:
Collective misconduct
[20.1] The third respondent
committed gross error of law in finding that the employees could be
dismissed on the basis of having
been part of a collective and
without any individual proof of their misconduct. The third
respondent therefore failed to distinguish
adequately between the
holding of a single collective hearing and the need to establish
guilt in respect of each individual employee,
so it is argued.
Further that the third respondent committed a gross error of law in
finding contrary to Section 192(2) of the
LRA, that the employees
were obliged to demonstrate their non-involvement in the blockade.
Collective agreement
[20.2] The third respondent
committed a gross error of law in finding that the disciplinary
procedure collective agreement did not
require the first respondent
to demonstrate the individual misconduct of each and every employee.
Employees not properly
identified
[20.3] The third respondent made
a award which no arbitrator, acting reasonably, could make in finding
the following employees guilty
of charge 2, (a) R Jeptha, (b) M
Matthys, (c) Van Rynevled, (d) B Koopman, (e) J Snyman, (f) M Marbe.
In respect of Mr. Jeptha,
no photograph was produced no evidence led
at the hearing placing him at the Civic Centre. In so far as others
are concerned evidence
was led at the hearing that they either did
not travel on the N2 to the Civic Centre, or else did so after the
blockade had ended.
Therefore there was no rational basis to find
them guilty on charge 2.
Inconsistency
[20.4] The third respondent
acted unreasonably in failing to find that the first respondent had
acted inconsistently and unfairly
in either not charging or
withdrawing charges, for no good reasons. No evidence was led to
explain this inconsistency.
Preliminary Applications
[21] Two applications for
condonation were made:
[22]
The
factors that need to be taken into account when determining whether
there is sufficient cause to grant condonation were set
out in
Melane
v Santam Insurance Co Ltd
1
and involves weighing together the following
factors; which are
_____________________
1
1962
(4) SA at 532
interrelated : degree of
lateness, explanation thereof, the prospects of success and the
importance of the case. The court went
on and said that although
these factors are interrelated, they are not individually decisive,
if there are no prospects of
success there would be no point
in granting condonation.
[23]
In the
case of
Kritzinger v CCMA and Others
2
,
Molahlehi J
said the following in
relation to the test as inunciated in
Melane
case:
“
These
factors are not individually decisive but are interrelated and must
be weighed against each other. In weighing the factors
for instance,
a good explanation for the delay in lateness may assist the applicant
in compensation for weak prospects of success.
Similarly strong
prospects of success may compensate for the inadequate explanation
and the long delays”
[24] The first respondent filed
it’s answering affidavit late by 8 days hence this application
for condonation of the said
late filing. There is no opposition to
the application. The reasons for lateness is stated as that the
process of compiling the
__________________________
2
JR2254/05
(2007) ZALC 85
November 2007
brief, voluminous documentation
and instruction to Senior Counsel to draft first respondent’s
answering affidavit was a lengthily
one and time consuming and that
the Senior Counsel was indisposed for a 3 week period in May. As a
result indulgence was sought
from the applicant’s
representative and was granted. Owing to the fact that the delay is
short and that the other party was
engaged throughout the process, I
see no reason why I should not grant condonation. Condonation is
therefore granted.
[25] The second application for
condonation relate to the first respondent’s heads of arguments
which are late by one week.
The reason for lateness is states as
unavailability of the briefed Counsel who was on leave. Another one
could not be appointed
due to the fact that the first counsel was
already familiar with the record which is extensive and to brief
another one would have
resulted in further delay due to the extend of
the record. Secondly the first respondent realising the delay asked
for extension
from the applicant’s attorneys which was granted.
I’m of the view that a proper case for condonation has been
made
and hence I grant condonation for the late filing of the heads
of argument.
[26] The third preliminary
application concerns application for joiner in respect of the second
to the nineth applicants. The application
is unopposed. Having read
documents and heard Counsel herein I grant the application.
The Test for Review
[27] The law is now settled with
regards to the test for review as enunciated in the well known case
of
Sidumo & Another v Rustenburg Platinum Mines LTD &
Others
3
:
“
is the
decision reached by the commissioner one that a reasonable decision
maker could not reach?”.
[28] In Sidumo Ncgobo J was of
the opinion that although the provisions of Section 145 of the LRA
have been suffused by the Constitutional
standard, that of a
reasonable decision maker, when a litigant who wishes to challenge
the arbitration award under Section 145(2)
must found his or her
cause of action on one or more of these grounds of review and at 186
he said the following:
“
The
general powers of review of the Labour Court under Section 158(1)(g)
are therefore subject to the provisions of Section 145(2)
which
prescribe grounds upon which arbitral awards of CCMA Commissioners
may be reviewed. These grounds are misconduct by the
____________________________
3
2008
(2) SA 24
CC
Commissioner in relation to his
or her duties; gross irregularity in the conduct of the proceedings;
where Commissioner exceeds
his or her powers; or where the award was
improperly obtained. These are the only grounds upon which arbitral
awards of CCMA Commissioners
may be reviewed by the Labour Court
under Section 145(2) of the LRA. It follows therefore that a litigant
who wishes to challenge
an arbitral award under Section 145(2) must
found his or her cause of action on one or more of these grounds of
review”
[29] In
Southern Sun Hotel
Internationals (PTY) LTD v Commission for Conciliation, Mediation and
Arbitration & Others
4
, the Court
acknowledged the test for review of Commissioner’s award as
enunciated in the Sidumo decision (reasonable decision
maker test)
but said:
“
Section
145 of the Act clearly invites a scrutiny of the process by which the
result of an arbitration proceedings was achieved,
and a right to
intervene if the Commissioner’s process related to conduct is
found wanting. Of course, reasonableness is
not irrelevant to this
inquiry – the reasonableness requirement is relevant to both
process and outcome”
_________________________
4
[2010]
31 ILJ 452 (LC)
[30] To succeed in its
application the applicant must therefore show that the decision
reached by the commissioner is not the one
that a reasonable decision
maker could reach.
[31] The first attack on the
award of the arbitrator is that the arbitrator committed an error of
law in finding that the employees
could be dismissed on the basis of
a collective and without any individual proof of their misconduct.
[32] Item 7(a) of the code of
Good Practice requires the employer to prove on a balance of
probabilities, that the employee was
actually guilty of misconduct.
This may be easy in some cases and prove difficult in others. Proof
is particularly difficult in
cases where a number of employees are
involved in the same misconduct, collective misconduct. In such
circumstances, it is required
that it be shown on a balance of
probabilities that each employee was actually involved before a
disciplinary action can be taken
against them. This therefore means
that there needs to be proved that the employee was actually involved
and that no one should
be found guilty in circumstances where no
proof can be presented showing that the employee was involved in the
identified acts,
merely because he or she was part of a collective.
[33] In the case of
NSCAWU
& Others v Coin Security Group (Pty) Ltd
5
there was a strike, and workers
engaged in acts of misconduct. The employer dismissed all of them on
the basis that the misconduct
was committed in furtherance of a
collective aim (common purpose). The Industrial Court found that
while the workers engaged in
a collective action, there was no
indication that any of the employees were directly involved in the
relevant misconducts. The
Court found further that the employer
relied on collective guilty than on the doctrine of common purpose.
[34] With regard to the above
situation
Grogan
6
,
had this to say:
“
However,
there are exceptions to the principle that employees cannot be held
collectively liable for misconduct in circumstances
where a
particular culprit cannot be identified”.
[35] In the case of
Chauke
and Other v Lee Service Centre t/a Leeson Motors
7
the Labour Appeal Court
commented on the dilemma caused by the above situation as follows:
“
The
case presents a difficult problem of fair employment practice. Where
misconduct is necessitating disciplinary action is proved,
but
management is unable to pinpoint the perpetrator or perpetrators, in
what circumstances will it be permissible to dismiss
a group of
workers which incontestably includes them?
Two different kinds of
justification may be advanced for such a dismissal. In Brassey &
Others, The New Labour Law (1987)
at 93 – 5, the situation is
posed where one of only two workers is known to be planning a major
and irreversible destructive
action, but management is unable to pin
point which. Brassey suggests that; if all avenues of investigation
have been exhausted,
the employer may be entitled to dismiss both.
Such a case involves, the dismissal of an indisputably innocent
worker. It posits
a justification on operational grounds, namely
that action is necessary to save the life of the enterprise. That
must be distinguished
from the second category, where the
justification advanced is not operational and no innocent workers
are involved. Management’s
rational is that it has sufficient
grounds for inferring that the whole group is responsible for or
involved in the misconduct.”
[36] In
casu
, the
appellants who worked in certain sections of the respondent had
committed acts of sabotage pursuant to the dismissal of
a
fellow-employee. After several incidents of damages to the motor
cars, the unsuccessful intervention of the police, the respondent
issued an ultimatum to the employees to the effect that any further
sabotage where the culprit could not be identified would
result in
their instants dismissal. After a further damage of the motor cars,
and after a meeting with the union, the respondent
dismissed 20
employees.
[37] The Court in
Chauke
8
went further and laid the applicable principles as follows:
“
In
the second category, two lines of justification for a fair dismissal
may be postulated. The first is that a worker in the group
which
includes the perpetrators may be under a duty to assist management
in bringing the guilty to book. Where a worker has or
may reasonably
be supposed to have information concerning the guilty, his or her
failure to come forward with the information
may itself amount to
misconduct. The relationships between employer and employee is in
its essentials one of trust and confidence,
and even at common law,
conduct clearly inconsistent with that ‘essenlia’
warranted termination of employment (
Council
for Scientific & Industrial Research v Fijen
(1996)
17
ILJ
18 (A) at 26 D – E.) Failure to assist an employer in bring
the guilty to book violates that duty and may itself justify
dismissal”.
__________________________
8
n
7 at paragraph 35
[38] The Court cited with
approval the case of
Food and Allied Workers Union and Others v
Amalgamated Beverage Industries Ltd
9
where the
above principles were laid down as follow:
“
In
the field of industrial relation, it may be that policy
considerations require more of an employee that he merely remained
passive in circumstances’ like the present, and that his
failure to assist in an investigation of this sort may in itself
justify disciplinary action.”
[39] This the Court termed
derivative justification as it stemmed from an employees failure to
offer reasonable assistance in
the detection of actual culprits.
[40] In both the above cases,
although the Court laid down the principles of derivative
justification did not rely thereon. Instead,
both cases relied on
the principle of common purpose.
[41] In
Chauke
10
,
the application of principle of common purpose was formulated as
follows:
________________________________
9
[1994] 15 ILJ 1057 (LAC) at
1063 A-B
10
n 8 at paragraph 37
“
There
was no suggestion that any individual worker had an isolated motive
for attempting to sabotage production. The evidence
points straight
the other way. The workers had a collective motive, stemming from
grievance at the refusal of their pay demand,
the dismissal of
Hlogwane and other complaints ……… This suggests
that the misconduct was perpetrated by
the workers collectively, or
on behalf of, and with the approval of, the collective.
On one of the repeated
occasions on which the workers were confronted with sabotage was any
effort made to provide assistance
or to volunteer any suggestion as
to how to solve the problem. The workers silence here is
significant. As already indicated,
it is not necessary to decide
whether a derivative interference of misconduct by non-cooperation
would have justified their dismissal.
The physical circumstance of
the workplace and in particular the workers’ proximity to each
other and to the damage that
occurred in my view warrant the primary
factual interference that they all remained silent because they were
all themselves complicit
in the sabotage.”
[42] In the case of
FAWU
11
,
the Court held that the employee’s silence justified the
inference that they had either participated in the assault or
supported it. This was therefore justification based on common
purpose.
________________________________
11
[1994] 15 ILJ 1057 LAC
[43] In
NUM and Other and
RSA Geological Services, a Division of De Beers Consolidated Mines
LTD
,
12
the arbitrator relying on residual
misconduct (derivative justification), stated the two requirements
thereof as follows:
“
First,
that the employees knew or could have acquired knowledge of the
wrongdoing; second, that the employee failed without justification
to disclose that knowledge to the employer, or to take reasonable
steps to help the employer acquire that knowledge.”
[44] From the above, it is
clear that the exception to rule herein is to be found in the
principle of derivative justification
and the principle of common
purpose.
[45] In our given case, the
applicant, SAMWU, mobilized its members, planned to move in a convoy
from Bonteheuwel through the
N2 to the Civic Centre. The plan was
executed as planned. However, the identification could only be made
at the Civic Centre
and indeed all the applicants were identified
there. No identification was made from Bonteheuwel through the N2 to
the Civic
Centre. The question that needs to be answered is whether
their guilty in respect of the blockade and can be imported from the
fact that they were present at the Civic Centre and had given no
explanation of how they got there.
____________________________
12
(2004)
25 ILJ 410 (ARB) at paragraph 30...
[46] The arbitrator found as
follows at p15 of the award:
“
There
is therefore a sufficient close link between the applicants before
me and the events that had occurred on the N2 freeway
on route to
the Civic Centre to find that the respondent was entitled to charge
applicants as a collective. Once charged as a
collective, it was for
the applicants to present evidence, as some of them did, as to why
they should not be found to have been
part of the group of offenders
on the N2 freeway…….”
[47] The applicants seem to be
of the view that the circumstances of the case are such that they
cannot give rise to a derivative
justification mainly because the
applicants had not given explanation as to how they got there and
therefore their participation
in this misconduct cannot be
established on a balance of probabilities.
[48] In line with the comments
made by Labour Appeal Court as I outlined in paragraph 37, the
applicant had a duty to assist the
management to bring the guilty to
book and a failure to assist in this respect amounts to misconduct.
A disciplinary hearing
is a process by which the employer used in an
endeavour to establish the truth. The applicants were given the
opportunity to
tell the employer the truth at the disciplinary
hearing, they chose not to do so. For the fact that the whole
scenario was planned
and executed as planned by the applicants and
its members, had the desired effect and applicants were warned that
participation
would lead to disciplinary action, it is reasonable to
find that on a balance of probabilities the applicants were involved
with
the events along N2 freeway.
[49] In
Chauke
13
, the Court said the following:
“
FAWU
v ABI
involved
a group of more than 100 workers. On an abstract appreciation of the
evidence, the inference that any individual present
that morning at
the workplace was actually involved in the assault, by approval or
direct participation, was not the most probable.
It became the most
probable only because none of the individuals concerned came
forward, either at the individual disciplinary
hearings, or in the
Industrial Court, to absolve themselves”.
[50] The applicant is of the
view that the requirement that employees have a duty to assist the
management in bringing the culprit
to book, which involves them
stating their non- involvement, is contrary to Section 192 (2) of
the Labour Relations Act
14
. Section 192 (2) puts
the
onus
to proof the fairness of the dismissal on the
employer. It appears that the applicants are of the view that by
_____________________
13
n
10 at paragraph 41
14
66
of 1996 (LRA)
expecting the employee to
assist the employer in the circumstances outlined above is to shift
such
onus
to the employee. I do not think
so. This situation is, in my view, akin to the question of
inconsistency where an employee alleges
inconsistency. The employee
must show the basis thereof, for example he must reveal the name of
the concerned employee and also
the circumstances of the case. This
is necessary for the employer to respond properly to the allegation.
Failure to do so, may
lead to a finding that no consistency exists
or was committed by the employer. This situation never shifts the
onus
from
the employer to the employee to prove that there is no consistency.
Of course, it should be understood that one’s involvement
or
failure to do so may have adverse consequences both ways. If one
keeps quite an inference that he supported or was actually
involved
may be made. While on other hand revealing ones involvement may lead
to a finding of guilty. I do not think that this
is in conflict with
Section 192 (2) of the LRA at all as it is the consequence of the
nature of employer -employee relation.
[51] In the premise, I am of
the view that the arbitrator correctly found that the circumstances
of this case are such that the
misconduct committed at along N2 can
be imported on those who were identified at the Civic Centre for
reasons stated above.
[52] The second attack on the
arbitrator’s award is that he committed an error of law in
finding that the Disciplinary Procedure
Collective Agreement (DPCA)
did not require the first respondent to demonstrate the individual
guilt of each and every employee.
[53] Clause 7.1 of ‘DPCA’
provides that the hearing shall be conducted by the presiding
officer who may determine
the procedure to be followed subject to
the following:
“
7.1.1
the rules of Natural justice must be observed in the conduct of the
proceedings”
[54] Clause 7.2 provides that
the prosecutor shall bear the duty to commence and, the burden to
prove each and every allegation(s)
on a balance of probabilities.
[55] The applicants are of the
view that by approaching the matter from collective misconduct
approach, the arbitrator has failed
to apply the above agreement in
so far as individual proof of involvement is concerned. I am unable
to understand why the applicants
would say that because all the
applicants were given an opportunity to inform the respondent of
their non involvement if any,
they were present or properly
represented at the hearing. It also appears that those who gave
account of themselves were not
dismissed by the first respondent.
[56] In so far as collective
misconduct (derivative misconduct) is concerned, I have indicated
above that in principle it is required
that individual guilt be
proved before one is found guilty. However, as illustrated above
there are exceptions in the circumstances
of derivative misconduct
or common purpose. The circumstances of this case fall squarely
within the principles as I said above.
I cannot see how the DPCA was
violated because every applicant was given opportunity to defend
himself or herself. It will serve
no purpose to repeat it here.
Consequently I find no irregularity on the part of the arbitrator.
[57] The third attack on the
award of the arbitrator is twofold. First is that during the
disciplinary hearing, no photograph
was produced in respect of Mr. R
Jeptha, nor did any witness give oral evidence placing him at the
Civic Centre and therefore
there was no basis to find him guilty, or
to confirm his guilt.
[58] The first respondent
through the answering affidavit of Marion Jacobs as follows at
paragraph 9 thereof:
“
Jeptha
was one of the employees who, in terms of clause 1.3 of the Common
Cause Agreement admitted to being present at the Civic
Centre. No
evidence was given by him and no questions were posed to any of the
applicant’s witnesses, to the effect that
he had not travelled
to the Civic Centre as part of the aforesaid convoy and procession
but had arrived there by other means,
the contentions set out in
paragraph 8.4 and 8.5 above apply to Jeptha as well.”
[59] The applicant in its
replying affidavit failed to deal with this matter further. I have
also noted that Jeftha’s name
does not appear in clause 1.3 of
the common cause lists but A5 of the record and classified under
names of officers involved
in protest A4 – A13 of volume 6 and
under a list of accused persons contained at page 5-10 of the index.
[60] The applicant in its Heads
of Argument at page 9 paragraph 28 describes volume 5 and 6 of the
record as follows:
“
Volumes
5 and 6 of the Record constitute the two bundles of documents used
at the disciplinary hearing and thus were part of the
evidential
material that the third respondent (arbitrator) was obliged to
consider ...”
[61] There is no where in the
record indicating that he was not part of the protest and hence was
correctly included therein.
I therefore find no irregularity in this
respect.
[62] Secondly, it is contested
that evidence was presented in respect of Messrs Matthys, Van
Ryneveld, Koopman, Snyman and Marbe
to the effect that they either
did not travel on N2 to the Civic Centre or else did so after the
blockade. Thus, there was no
rational basis for them to have been
found guilty of charge 2.
[63] On the day in question,
Neville Matthys travelled with Van Ryneveld and Beula Saal. They
went to the Civic Centre through
N2. This is not disputed. However,
what is disputed is the time they left Bonteheuwel. According to
them, they left at 07h40.
However, the time reading equipment
recorded that they left at 07h16. This is the time the convoy left
Bonteheuwel to the Civic
Centre through N2. The record further
indicates that Beula Saal was the one who was in possession of the
memorandum to be handed
to the Mayoress. Further that the record
shows that Beula Saal remonstrated with the police to give way to
the convoy on route
to the Civic Centre and was in front. Neveille
Matthys confirms that Beula and Van Reyneveld got out of the car to
be in front
of the convoy which means that Matthys could not pass
through the convoy to be in front. Beula had to be in front because
of
the memorandum. On balance of probabilities, they were part of
the convoy at N2 and were correctly found guilty of charge 2 (see
record pages 1103, 1105, 1120, 1122, 1202, 1356, 1357, 1358, 1359,
1367, 1369, 1370, and 1384)
[64] Koopman and Beula Saal
testified that commander Tuck encouraged them to deliver the
memorandum to the Mayoress as he was
also not happy. The plan was to
drive in a convoy through N2 to the Civic Centre. Mr. Kooopman was
at Bonteheuwel when the convoy
left for N2 but he had to wait for
one Ludik who arrived allegedly at 07h30. It was testified that they
and Ludik used another
road other than N2 because they were informed
that N2 was congested (‘vol’). This is more or less the
time the convoy
left for N2. The reason to move in a convoy was to
cause congestion or blockade. The fact that they used another road
is inconsistent
with the intention to cause a blockade of N2. All
these factors make it more probable that they used N2 and I
therefore find
that he was correctly found guilty of charge 2.
[65] As for Mr. Marbe it was
testified that he had permission to be in Cape Town and also around
the vicinity of the Civic Centre
to do other lawful assignments.
However, it is clear from evidence that he took part in the
proceedings of the day. On the record
I could not find any credible
evidence indicating that he may have used another road other then
the N2 freeway. Hence I find
no irregularity in this respect.
[66] It is the principle of our
law that discipline should be applied consistently.
Grogan,
15
had this to say:
_____________________________
15
n
6 at paragraph 33, at page 163
“
The
Labour Courts have for many years stressed the principle of equality
of treatment of employees – the so called parity
principle.
Other things being equal it is unfair to dismiss an employee for an
offence which the employer has habitually or frequently
condoned in
the past (historical inconsistency), or to dismiss only some of a
number of employees guilty of the same infraction
(contemporaneous
inconsistency). As the Labour Appeal Court held in one case:
36
“
The respondent and Maziya
were guilty of the same offence, the theft of chicken pieces.
Prima facie,
they should have received the
same penalty. I say
prima
facie,
because
an employer may justified in differentiating between employees,
guilty of the same offence, on the basis of differences
in the
personal circumstances of the employees (such as their length of
service and disciplinary record) or the merit (such as
the roles
played in the commission of the misconduct).”
[67] In the case of
SACCAWU
v Irwin and Johnson Ltd
16
the Court said the
following:
“
Discipline
must not be capricious. It is really the perception of bias inherent
in selective discipline that makes it unfair.
Where, however, 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
__________________________
16
(1999)
20 ILJ 2303 (LAC)
exercise of 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 would not mean that there was unfairness to the
other employees.
It would mean no more than 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 plurality of dismissals, a wrong decision can
only
be unfair if it is capricious, or induced by improper
motivating or, worse, by a discriminatory management policy.... Even
then
I dare say that it might not be so fair as to undo the outcome
of other disciplinary inquiries. 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,
in my
view, 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 offender. The point is
that consistency is not a rule unto itself.”
[67] The above judgment was
tempered as follows in the case of
Cape Town City Council v
Masitho and Others
17
“
In
SACCAWU
& Others v Irvin & Johnson
[1999]
8 BLLR 741
(LAC) at 751B this Court reiterated that
______________________________
17
(2000)
21 ILJ 1957 (LAC) at paragraph 14
consistency is an element of
disciplinary fairness, and that it is really the perception of bias
inherent in selective discipline
that makes it unfair, but went on
to observe that the flexibility which in inherent is the exercise of
discretion will inevitably
create the potential for some
inconsistency. I am not all sure that disciplinary decisions involve
the exercise of discretion,
but even if that is so, fairness would
seem to me to generally require any such discretion to be exercised
consistently. While
if it is true that an employer cannot be
expected to continue repeating a wrong decision in obeisance to a
principle of consistency
(751D), in my view the proper course in
such cases is to let it be known to employees clearly and in advance
that the earlier
application of disciplinary measures cannot be
expected to be adhered to in the future. Fairness, of course, is a
value judgment
to be determined in the circumstances of a particular
case, and for that reason there is necessarily room for flexibility,
but
where two employees have committed the same wrong, and there is
nothing else to distinguish them, I can see no reason why they
ought
not generally to be dealt with in the same way, and I do not
understand the decision in that case to suggest the contrary.
Without that, employees will inevitably, and in my view justifiably,
consider themselves to be aggrieved in consequence of at
least a
perception of bias.”
[69] In this instance, the
applicants base their argument on withdrawal of charges against
certain employees. The arbitrator dealt
with this extensively and
the award alluded to the fact that first respondent offered all
employees plea bargain arrangement
and in particular invited the
applicants to take part in such arrangement. The applicants
vehemently rejected the arrangement
(so-called Steenkamp ruling). In
terms of these arrangement, the respondent categorised the
misconducts as (1) those employees
who blocked out or drove the
City’s vehicles and blocked the N2 and or drove to the City
Centre to participate in an unlawful
strike or protest action and or
drove to the City Centre to participate in unlawful strike or
protest action or for removed number
plates and or instigated and or
facilitate and / or played a leadership role in the unlawful strike
or protest action and or
unlawful conduct associated with it and (2)
those employees who attended the unlawful strike or protest action
in the City Centre
but did not partake in any serious misconduct
related to (1) above which, on the basis of the previous sanction,
present dismissal.
The disciplinary hearing would proceed in respect
of category 1, and those who fall in category 2 would get final
written warnings
valid for 12 months and complied with two months
suspension with no right to appeal.
[70] The arbitrator dealt with
the matter as follows:
“
I
must find, based on this plea bargain arrangement that was offered
to the applicant at such an early stage, that the respondent’s
actions were very fair towards the applicants and that the
applicants, in deciding not to accept the plea bargain arrangement
did so at their own peril. It is clear, looking back to this offer
today that the majority of the applicants before me would
not have
been dismissed. In terms of the categorization, only some 42
employees were identified as falling under the first category.
The
respondent further offered, in respect of this first category of
employees that a formal disciplinary hearing be held in
order for
the employees so identified to be able to defend themselves. The
rejection of what I belief was a very fair offer can
only be blamed
on those members who mandated SAMWU to reject the offer. I can
further not understand why the applicants argued
that it was sought
from SAMWU to agree to dismissal for some and no dismissal for
others, as this was not what was stated in
the “without
prejudice” letter sent to SAMWU. ”
[71] It is clear to me that the
commissioner applied his mind properly to the facts when he reached
the conclusion he reached.
I agree with him that the fact that all
employees were offered the arrangement and the applicants having
rejected it cannot now
be heard to say it was unfair to them because
those who embraced it had some advantages of withdrawals of charges
or charges
not being pursued against them. The advantages were open
to all and were not hidden in any way. The arbitrator lamented also
the fact that when he looked at the whole scenario some of the
people appearing before him would not be appearing had they took
the
advantage.
[72] I may also add that from
the record and the papers, it is clear that some of the employees
who were party to proceedings
of the day in question were identified
at the disciplinary hearing. It cannot be said therefore that
because there were not disciplined
together with the others that
amounts to inconsistency. Indeed it appears from the papers that the
respondent disciplined the
other employees who were identified at
the disciplinary hearing and also those that were identified at the
arbitration hearing
as fellow wrongdoers but not disciplined. On
this basis, I agree with the arbitrator that discipline was not
administered capriciously.
[73] Can it be said that the
arbitrator arrived at a decision a reasonable decision maker could
not reach? I do not think so;
in the premises, my order is as
follows:
(1) The application for review
and setting aside of the arbitration award issued under case no
PSH447-08/09 is dismissed.
(2) The applicants to pay costs
of the application.
SHAI AJ
For the Applicants
:
J. Whyte
Instructed by:
Cheadle,
Thomson, Haysom.
For the Respondent:
A
Oosthuizen S.C.
Instructed by:
Herold HE Attorneys
5
[1997]
1 BLLR 85
(LC).
6
Gogan
Workplace Law,
8
th
ed (Juta & Co Ltd 2005 )
at 160
7
(1998)
19 ILJ 1441 (LAC) at para 27.
1