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[2012] ZALCJHB 82
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Henred Fruehauf (Pty) Ltd v Hlongwane NO and Others (JR1982/2009) [2012] ZALCJHB 82 (8 August 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR1982/2009
In the matter between:
HENRED FRUEHUAF (PTY) LIMITED
............................................................
Applicant
and
HLONGWANE, R N.O.
........................................................................
First
Respondent
(cited in his capacity as First respondent of the
Motor Industry Bargaining Council)
MOTOR INDUSTRY BARGAINING COUNCIL
.
............................
Second
Respondent
DISPUTE RESOLUTION CENTRE
NUMSA obo MSIMANG, N AND 2 OTHERS
..............
Third
and further Respondents
Heard: 12 July 2010
Delivered: 8 August 2012
JUDGMENT
DODSON AJ:
Introduction
This is an application for the review and setting aside of an award
of an arbitrator declaring the dismissal of three shop stewards
employed by the applicant to have been unfair and reinstating them
with retrospective effect.
The shop stewards, being the third, fourth and fifth respondents,
(“the respondents”) were dismissed for failing
to honour
a picketing agreement. The picketing agreement required them to act
as marshals for a picket which turned violent.
Factual context
During September 2007, there was a strike in the motor industry. The
strike was a protected strike as contemplated in section
67(1) of
the Labour Relations Act No. 66 of 1995 (“the LRA”).
In anticipation of the strike, which was due to commence on 12
September 2007, the Retail Motor Industry Organisation (“RMI”)
and the National Union of Metal Workers of South Africa (“NUMSA”)
concluded a picketing agreement on Monday 10 September
2007.
The agreement included the following provisions:
‘
2.
PURPOSE
OF THE PICKETING
The purpose of the picket must
be
peaceful demonstrations
in support of any protected strike,
to encourage non-striking employees and members of the public to
support the strike….
…
4.
WHERE CAN THE PICKETING
TAKE PLACE
In respect of employees of the
establishment, it may be on the company’s premises or outside
the company premises in the designated
areas as agreed upon by the
parties at enterprise level, provided that consent to picket on the
employer’s premises shall
not be unreasonably withheld.
However, any picket by
supporters of the picket who are not employed by the company must be
conducted outside the company premises.
Under no circumstances shall
picketers not employed by the company be allowed within a 25 metres
radius of the premises, gates,
entrances and/or exists.
…
5.
CONTROL OF THE PICKET
The unions appoint their shop
stewards of Union Officials (sic) as convenors to oversee the picket.
The
shop stewards shall act
as marshals
to monitor the picket and the trade unions shall
instruct the marshals on the law and any picketing rules that may be
decided upon.
The prime function of the
convenor / marshal shall be to ensure that the picket is conducted
peacefully.
…
During the period of the
picketing management and employee representatives will meet as often
as it is necessary and is reasonably
practicable to discuss any
matter which directly flows from these rules. Any misconduct by
picketers or management shall be referred
to the National Offices of
the Employers Organisation and the trade unions, as the case may be,
so that any misconduct might be
resolved as soon as possible,
provided that any apparent breach of law and order, will be reported
to the SAPS.
6.
FACILITIES AVAILABLE TO
PICKETERS
…
Access shall be provided to
employees (who are employed at the particular establishment) to water
and toilet facilities which access
will not be unreasonably withheld.
Where this is not possible employers need to ensure availability of
water and toilets in the
way agreed to between the employer and its
employees.
…
The Company shall make
reasonable telephone and fax facilities available to union officials
and union shop stewards of the said
company under controlled
circumstances in order to allow them to communicate with the Union.
7.
CONDUCT
Section 17 of the Constitution
of the Republic of South Africa recognises the right to assemble, to
demonstrate, to picket and
to present petitions.
This constitutional right
can only be exercised peacefully and unarmed.
Section 16 of the Bill of
Rights [dealing with freedom of expression] shall also be observed.
…
Recognition of the right to
picket also reflects this society’s commitment to the
fundamental human rights of freedom of
expression and freedom of
assembly.
Picketing shall be carried
out in a lawful manner.
Employees
participating in the industrial action and picketing
agree
not to intimidate
non-striking
employees or any other person who may enter upon the company’s
premises for the purpose of carrying out the
business of the
company. In particular, they may not compel people to stop and to
listen to their demands.
Picketers will not obstruct
vehicles or traffic entering or leaving company premises.
Those
taking part in the picket,
under the leadership of their
shop stewards
, shall ensure
that they
yield right of way promptly and courteously
to any traffic moving on roads
which may wish to pass (sic).
…
Management
of the company and picketers
will refrain from behaviour
which is provocative or which could incite violence or intimidation
.
No weapons
,
including but not limited to iron bars, knives, pangas, sticks,
knobkerries, stones and firearms may be carried by a person
who is
picketing, or by any member of management who has contact with them.
The union must ensure that
shop stewards are present at the picket from the start to the end of
the picket each day.
If
picketers are picketing at different locations,
a
sufficient number of shop stewards
(no
less than 2) must be present at each location.
The shop stewards must ensure
that the behaviour and conduct of the picketers are acceptable
(sic).
The
shop stewards must wear an armband or vest showing clearly that
they
are the picket leaders
.
Participation in a protected
picket does not exempt picketers from their obligation not to commit
[any] criminal offences. Accordingly
any picketers who intimidate
any person or who damage property or who assault any person or who
engage in any criminal act may
be liable to arrest and criminal
prosecution.
Picket organisers or their
representatives, i.e. shop stewards, must ensure that the language
which is used during a strike /
picket is not insulting or defaming
of any person.
Pickets
will not
damage or threaten to damage
the
Company property or property of personnel or the property of
customers or suppliers.
8.
ROLE OF POLICE
The police have the
responsibility to enforce criminal law, to protect the public and to
assist where there is a breach of peace,
law and order. The police
have no responsibilities for enforcing the
Labour Relations Act.
…
9.
ISSUES
TO BE DEALT WITH AT
AN ENTERPRISE LEVEL
The following issues which are
to be dealt with at enterprise level must be in terms of this
agreement and agreed to prior to the
picket between shop stewards and
management representatives:
Whether the picketing is
inside or outside the premises.
Designated picket area and
number of picketers.
Access arrangements.
Designated union picket
convenor, marshal and management liaison person.
The company shall make
reasonable telephone and fax facilities available to officials and
union shop stewards of the said
company…
10.
IMPLEMENTATION
The
union shall
inform and explain the rules
contained
in the agreement and
shall
make all the necessary arrangements for the appointment of marshals
and convenors
.’
(emphasis added)
As appears from the agreement, it was a central concern of both the
trade union and the employers’ organisation that picketing
should take place in an orderly and non-violent manner under the
leadership of the shop stewards.
The day after conclusion of the agreement, on Tuesday 11 September
2007, a meeting was held between the shop stewards (excluding
Msimang, the third respondent) and management of the applicant. The
purpose of the meeting was to discuss the strike which was
due to
commence the following day. Management insists that the meeting was
held specifically and expressly pursuant to the terms
of the
picketing agreement. The shop stewards deny that any reference was
made in the meeting to any picketing agreement and
allege that they
were unaware of it.
The minutes of the meeting kept by the applicant purport only to be
a “summary of discussions” and provide in relevant
part
as follows:
‘•
Danie
welcomed everybody and asked for feedback in terms of the meeting
held at the union at 13h00 today.
Steven responded that they
would be on strike tomorrow and will enter the premises and meet at
the Union Hall. Other sections
will also enter the premises.
The company explained that
their position is that employees partaking in the strike will not be
allowed on the premises.
The Picketing Agreement
indicates that parties may agree to picketing on – or outside
the premises. Management will not agree
to picketing on the premises.
Management reasons for disallowing strikers on the premises is [the
reasons are then given as being
that the company considered itself
obliged to protect employees who wished to exercise their right not
to strike and to protect
the property of the company and that this
was the only way in which employees who wished to work rather than
strike could be clocked
in so that the no work no pay rule could be
applied during the strike period].
The company’s position is
that the workers can report to the gates as of 06h00 am. The company
will determine which employee
wants to work or participate in the
strike. Those employees who indicate that they are to work will be
allowed on the premises
and will sign that they are there to work.
Should an employee want to
participate in the strike the employee will not be allowed on to the
premises.
The union requested minutes of
the meeting to forward the company’s position to their
official.
The shop stewards are to act as
Marshals during the strike and the company representative will be
Rosita Lubbe.
The aim of the marshals is to
regulate the conduct of the workers and communicate any problems
experienced.
The workers can make use of the
changing room bathrooms at Gate 1 and the women will be allowed to
report to security that will
then escort them to bathrooms closest
to Gate 1 to make use of.
Shop stewards need to
communicate the position to the other employees as they move to
their workstations and that no formal meeting
with the workers will
allowed to be called.
The shop stewards indicated
that they will first inform their official of the company’s
position and then communicate to
the workers.
Signed on 11 September 2007 at
Wadeville
________________________
___________________
Shop Steward Representative I.R.
Manager’
The provision for signature by the IR Manager is signed by Ms Rosita
Lubbe. The provision for signature by the shop steward
representative has the following noted in handwriting :
‘
Shop
Steward informed not to sign. The official will be informed of
meeting.’
It is common cause that the shop stewards were handed the minute on
the same day, but were unwilling to sign it.
Attached to the minute is an attendance register from which it
appears that 11 shop stewards attended. These included two of
the
respondent shop stewards, Messrs Lumkile Simon Tekane and Joseph
Pule, but not Mr Msimang, the third respondent.
On Wednesday 12 September 2007, the strike commenced. Immediately
there were difficulties with the picketing employees not allowing
access into and from the company premises, notwithstanding this
conduct being prohibited by the picketing agreement.
The respondents admitted that this was so but averred that the
employees were provoked by the company’s failure to pay
their
wages for the preceding week when they had not been on strike. On
the respondents’ version, these wages were due,
insofar as
employees banking with Absa were concerned, on Wednesday 12
September 2007 and insofar as the remaining employees
were concerned
on Thursday 13 September 2007. The applicant did not dispute that
the wages were not paid or that it gave conflicting
reasons for such
non-payment.
On the same day, 12 September 2007, the applicant addressed a letter
to NUMSA, RMI and to the trade union official, Mr Eric Nyekemba.
The
letter is headed ‘
Conduct of picketers participating in
strike’
. The letter commences –
‘
A
meeting was held with Shop Stewards on 11 September 2007 wherein the
area that picketing would take place was discussed. Such
minute is
attached for your attention. However we have met with dissatisfaction
in terms of the identified areas.
In accordance with the agreement
where parties are in disagreement such matters should be brought to
the attention of the relevant
involved parties.’
The letter then goes on to explain the dispute pertaining to where
the picketing should take place and the parties’ competing
contentions in this regard. The concluding paragraphs of the letter
then read as follows:
‘
We
are experiencing problems as the union members are not honouring the
agreement reached in that they are blocking the access to
the
premises and not allowing the vehicles to pass and are also
obstructing the roads and not allowing the traffic through.
Should such behaviour continue,
the Company will exercise its right to contact the local police
station in order for them to assist
with the regulation of traffic
and ensure free access to the roads and premises.
Please feel free to contact the
scriber hereof should there be a need to clarify any issues.’
The letter was signed by Rosita Lubbe, the IR Manager.
On Thursday 13 September 2007, the applicant procured the services
of some 150 temporary employees. The picketing employees then
proceeded to threaten and swear at the temporary employees and to
inform them that they knew where they lived and they would
get them
at home.
Again this is not disputed by the respondents, although they say
that the picketing employees were provoked by the non-payment
of
wages.
On the same day, a meeting was held between management and the shop
stewards. A minute of the meeting was kept by management.
Management
complained that they were not willing to accept the intimidation and
the threats to burn trucks and insisted that
the strikers must
accept the right of the company to do business. It was suggested
that the applicant was being targeted on account
of differences
between Cosatu and the ANC.
The minute records further that the respondent, Msimang, responded
on behalf of the workers. According to the minute, “he
started
by indicating that nothing can be done by negotiations but that
there would be results achieved only through iron and
blood
actions”. (This allegation is not disputed by the respondents
in their answering affidavit). Msimang pointed out
that the matter
of negotiations was something for which the union officials and not
the shop stewards were responsible. The minute
goes on to record as
follows:
‘
Nephtal
[Msimang] responded by stating that the company needs to remove the
casual labour from the premises and that it is a request
on behalf of
the strikers. They know these people live in the location and are
therefore at risk.’
The minute records that management responded by saying that they
were entitled to ensure that the company remain profitable and
that
they would not allow such threats and intimidation. The final
paragraph records that the shop stewards questioned why the
wages
had not been paid and management responded by saying that the staff
responsible for payment had been redeployed to production
away from
the administration of wages. The minute does not reflect that any of
the shop stewards sought to distance themselves
from what had been
said by Msimang. In their answering affidavits, the respondents do
not dispute the accuracy of the minute
of the meeting.
Following on the threats directed at and the intimidation of, the
temporary employees that had been recruited, the majority of
them
left the applicant, with only about 30 remaining.
On Friday 14 September 2007 the striking employees continued to
block access to the premises and to intimidate non-striking
employees. The respondents contend they could not contain the
employees from this conduct.
On Monday 17 September 2007 a complete blockade was imposed on the
applicant’s premises, with any customer or person attempting
to enter the premises being turned away. A meeting was held between
management, the shop stewards and Mr Nyekemba. Management
alleges
that the shop stewards and Nyekemba refused to discuss the issue of
the violence and intimidation and left the meeting.
The respondents
contend that the meeting ended because the person responsible for
payment of salaries was not present. (The versions
are not
necessarily mutually exclusive.) Later that day, the police had to
be called to intervene to enable the administrative
personnel on the
premises to leave because the striking employees were preventing
them from doing so.
On Tuesday 18 September 2007, the shop stewards and Mr Nyekemba
entered the premises without the applicant’s permission
and
entered the reception. The police were then called to escort them
off the premises. The respondents said they were there
to discuss
the non-payment of wages.
While this was going on, a vehicle seeking to enter the premises was
stopped and the driver was assaulted. One of the applicant’s
managers attempted to intervene but he too was assaulted and the
vehicle was also damaged.
On Wednesday 19 September 2007, a truck belonging to a supplier
attempted to enter the premises but was stopped by the striking
employees from doing so. The applicant’s managing director, Mr
Coetzer, arrived at the premises while this was happening
and
instructed the striking employees to allow the truck to enter. They
allowed Mr Coetzer to enter but still prevented the truck
from
entering and threatened to kill Mr Coetzer. The truck driver was
eventually intimidated to the extent that he left without
entering.
Several other trucks were also stopped and stoned that day. Mr
Coetzer’s vehicle was also stoned. Whenever members
of
management emerged from the building, they were pelted with stones
by the striking employees.
None of this is disputed by the respondents, although they say that
they were not able to prevent the conduct from taking place.
On the same day, the applicant brought an application to the Labour
Court to interdict the unlawful conduct on the part of the
striking
employees. An order was duly granted on Thursday 20 September 2007
inter alia
interdicting the striking employees from coming
within 100 metres of the perimeter of the premises, from barring
access to the
premises and from-
‘
interfering
with, threatening, harming, or damaging, intimidating, harassing
and/or assaulting any clients, customers, suppliers,
vehicles,
non-striking employees, replacement labourers, and goods of the
applicant.’
Pursuant to the order, a semblance of normality returned to the
applicant’s premises.
Following on these events, all 14 shop stewards employed at the
applicant were charged with misconduct and disciplinary enquiries
held before an independent chairperson. They faced three charges.
The first charge was that they failed to honour the picketing
agreement in their capacities as marshals appointed in terms of that
agreement for the period of the strike. The second charge
was that
the shop stewards were grossly negligent in that they failed to
ensure order and compliance with the picketing rules,
such
negligence leading to numerous incidents of misconduct causing
prejudice and loss to the company (the various incidents
referred to
above were then listed). The third charge was a charge of
instigation and intimidation by the shop stewards themselves
resulting in unacceptable conduct on the part of the picketers.
A disciplinary hearing took place over a period of 12 days
commencing on 27 November 2007 and finally ending on 27 March 2008.
The end result was that all of the shop stewards were found guilty
on the first two charges. They were found not guilty of the
third
charge of having been guilty of instigation and intimidation
themselves.
As far as sanction was concerned, save for the three respondents who
form the subject matter of this review, all the remaining
shop
stewards were given a final written warning. The three respondents
were summarily dismissed. Essentially, the independent
chairperson
found dismissal to be the appropriate sanction in their case because
they had earlier been issued with two separate
final warnings for
participation in an unprotected strike and related issues in
September 2002 and again in November 2006. The
trade union had
argued that the November 2006 warnings had lapsed, but the
independent chairperson held that, at the time that
the conduct
complained of took place, the 12 month period of the warning had not
lapsed.
An unfair dismissal dispute was then referred to the Motor Industry
Bargaining Council, the second respondent. When conciliation
failed,
it was referred for arbitration before the first respondent.
Arbitration Proceedings
Arbitration proceedings took place during March and April 2009. The
applicant, then respondent, led the evidence of Lubbe, Mr
Daniel
Fourie, its group HR manager, Ms Christel Esterhuizen, its HR
manager and Ms Elmarie Grant, the independent chairperson.
The three
respondents testified themselves and in addition led the evidence of
Mr Eric Nyekemba and another shop steward, Mr
Simon Machaka.
Unfortunately, the transcript of the evidence of the first three
witnesses called by the applicant and of one of the respondents,
Tekane, is missing. The parties are nonetheless agreed that the
matter must be decided on the available evidence.
1
It is also of assistance in this regard that much of the factual
evidence is common cause, as appears from the founding and answering
affidavits in the review application.
The only issues before the first respondent as first respondent were
whether or not the dismissal of the respondents was substantively
fair and, if not, what the appropriate relief should be. It was
common cause that the dismissals were procedurally fair.
In his award, the first respondent analysed the evidence and the
arguments with reference to the following questions:
whether the respondents contravened a rule or standard regulating
conduct in the workplace (he found that they had not);
whether the respondents were aware of the rule or could reasonably
be expected to be aware of the rule (he appeared to find
that the
respondents were unaware of the picketing agreement and of the
consequences of its breach);
whether the rule has been consistently applied (he found that it
had not been inconsistently applied because most of the shop
stewards were only issued with a final written warning);
whether dismissal was an appropriate sanction for the contravention
of the rule (the first respondent found that it was not
because
management had acted provocatively by failing to pay wages and the
respondents had been available when management wanted
to talk to
them).
Accordingly, the first respondent held the dismissal of the
respondents to have been substantively unfair and ordered their
retrospective reinstatement which, at that stage, required back pay
equivalent to 14 months’ salary. No order was made as
to
costs.
Legal Context
Picketing
Section 69(1)
of the LRA expressly protects the right to picket in
the following terms:
‘
A
registered trade union may authorise a picket by its members and
supporters for the purposes of
peacefully
demonstrating
…
in
support of any protected strike.’
(emphasis
added)
In terms of
section 203(3)
of the LRA, any person interpreting or
applying the LRA must take into account any relevant code of good
practice. NEDLAC issued
a code of good practice on picketing.
2
In terms of item 1(1) the code is ‘intended to be a guide to
those who may be contemplating, organising or taking part
in a
picket, and for those who as employers or employees or members of
the general public may be affected by it.’
In item 1(2) of the code there is an express cross-reference to
section 17 of the Constitution. Section 17 provides that –
‘
Everyone
has the right,
peacefully
and unarmed
,
to assemble, to demonstrate, to picket and to present petitions.’
(emphasis added)
Item 1(3) provides that the code does not impose any legal
obligations, but item 1(4) requires various institutions, including
this court, to take the code into account when “applying the
Act in respect of any picket”.
Item 3 of the code deals with the “purpose of the picket”.
Item 3(1) records that:
‘
The
purpose of the picket is to
peacefully
encourage
non-striking employees and members of the public … to support
strikers involved in a protected strike. The nature
of that support
can vary. It may be to encourage employees not to work during the
strike … It may be to dissuade replacement
labour from
working. It may also be to persuade members of the public or other
employers and their employees not to do business
with the employer.’
(emphasis added)
Item 4 of the code deals with “picketing rules”. Item
4(1) provides that-
‘
The
registered trade union and employer should seek to agree to picketing
rules before the commencement of the strike or picket.’
Item 4(2) of the code provides for factors which should be
considered when a collective agreement is negotiated to deal with
picketing. A number of these factors coincide with what was
canvassed in the picketing agreement which forms the subject matter
of this case.
Item 6 of the code deals with “conduct in the picket”.
Item 6(4) states that the registered trade union should appoint
picket marshals to monitor the picket. It provides further that-
‘
The
marshals should wear armbands to identify themselves as marshals. The
trade union should instruct the marshals on the law, any
agreed
picketing rules … this code of good practice and the steps to
be taken to ensure that the picket is conducted
peacefully
.’
(emphasis added)
This item goes on to include the following provisions:
‘
(5)
Although the picket may be held in any place to which the public has
access, the picket
may
not interfere with the constitutional rights of other persons
.
(6)
The picketers must conduct themselves in a
peaceful
and
lawful manner
and must be
unarmed. They may-
(a) carry placards;
(b) chant slogans; and
(c) sing and dance.
(7) Picketers may not –
(a) physically prevent members
of the public, including customers, other employees and service
providers, from gaining access to
or leaving the employer’s
premises;
(b)
commit any action which may be unlawful, including but not limited to
any action which is, or may be perceived to be
violent
.’
(emphasis added)
Item 8 deals with “general rights, obligations and immunity”.
Item 8(1) provides that-
‘
A
person who takes part in a picket protected in terms of the Act does
not commit a delict or a breach of contract.’
Item 8(2) provides that-
‘
The
employer may not take disciplinary action against an employee for
participating in a lawful picket. Where the employee’s
conduct
during a picket constitutes misconduct the employer may take
disciplinary action in accordance with the provisions of the
Act.’
The emphasis in a number of the provisions referred to is that
picketing is required to be conducted in a peaceful, non-violent
manner. Also of significance is that the protections or immunity
provided for in item 8 of the code apply to the circumstances
of a
lawful picket. By contrast, the right of an employer to take
disciplinary action where an employee’s conduct during
a
picket constitutes misconduct is expressly protected.
Test on review
The arbitration in the present matter was conducted under the
auspices of a bargaining council. In terms of section 51(8) of
the
LRA, section 145 applies to such an arbitration. Having regard to
section 145(2)(a) of the LRA and the decision of the Constitutional
Court in
Sidumo and Another v Rustenburg Platinum Mines Ltd and
Others
,
3
the Labour Appeal Court in
Andre Herholdt v Nedbank Ltd
4
and of this court in
Southern Sun Hotel Interests (Pty) Ltd v
CCMA and Others
,
5
amongst others, the decision of an arbitrator in an arbitration
subject to section 145 is reviewable with reference to-
the substantive reasonableness of the decision, with the focus
being on whether the result or outcome of the decision-making
process was one which a reasonable decision-maker might reach; and
the dialectical or procedural or “process-related”
reasonableness of the decision, with the focus being on the
logical
path by which the decision-maker arrived at his or her decision.
With reference to dialectical reasonableness, the Labour Appeal
Court in
Herholdt v Nedbank
approved the following extract
from the decision of this court in
Southern Sun Hotel Interests-
‘
If
a commissioner fails to take material evidence into account, or has
regard to evidence that is irrelevant, or the commissioner
commits
some other misconduct or a gross irregularity during the proceedings
under review and a party is likely to be prejudiced
as a consequence,
the commissioner’s decision is liable to be set aside
regardless of the result of the proceedings or whether
on the basis
of the record of the proceedings, that result is nonetheless capable
of justification.’
6
The Labour Appeal Court concluded as follows:
‘
In
short, if the conduct of the commissioner prevents a fair trial of
the issues, even if perfectly well-intentioned and
bona
fide
,
but mistaken, then such conduct will amount to a gross irregularity,
and that will be enough to successfully found a review under
section
145(2) of the LRA. The court by necessity must scrutinise the reasons
of the commissioner not to determine whether the
result is correct;
or for that matter substantively reasonable, but to determine whether
there is a latent irregularity, that is,
an irregularity that has
taken place within the mind of the commissioner, which will only be
ascertainable from his or her reasons.’
7
Was the first respondent’s decision reasonable?
In analysing the first respondent’s decision, I will follow
the headings under which he analysed the evidence and arguments,
which were based on item 7 of the Code of Good Practice: Dismissal
contained in schedule 8 to the LRA.
Whether the applicants contravened a rule or standard regulating
conduct in the workplace
In dealing with this aspect, the first respondent’s reasoning
incorporated
inter alia
the following elements:
the respondents gave corroborative evidence that they continuously
tried to speak to their members to tell them that their
actions
were unlawful and there was no evidence that the shop stewards did
nothing when the strikers were acting violently;
there was uncontrollable anger on account of management’s
failure to pay wages;
the fact that the police as experts in crowd control could not
control the employees behaviour is evidence which goes to show
that
the shop stewards could not be criticised for failing to do so;
the shop stewards version that there were 400 strikers was truthful
(and the applicant’s version that there were around
50 was,
by implication, untruthful) because the strikers included
solidarity strikers;
the rule contended for by the respondents that the applicants were
required to marshal the picketers does not form part of
the
disciplinary code.
I will deal with each of these elements in turn.
The respondents continuously spoke to the strikers
With reference to the first respondent’s finding that the
respondents continuously urged the strikers to act lawfully,
there
is no attempt in this part of the award to conduct any weighing up
whatsoever of the competing evidence and contentions
advanced by the
applicant on the one hand and the respondents on the other.
The finding that there was no evidence that the shop stewards did
nothing when the strikers were violent is in error. In the
first
respondent’s own summary of the evidence of Rosita Lubbe he
himself records that-
‘
It
was her testimony that the shop stewards failed to act as marshals
because on some occasions, she could not see even one of them
when
there was chaos. She testified that this was in violation of the
picketing agreement, which clearly states that shop stewards
must be
present at the picket from start to the end of each picket day.’
Later, again in his own summary of her evidence, he says that-
‘
The
witness testified that she did not agree with the evidence given by
the shop stewards during their hearing … that they
also tried
to control picketers, but failed.’
A careful, fair scrutiny of the evidence given by the applicant’s
witnesses, on the one hand, and that given by the shop
stewards and
their witnesses, on the other, was required, including an assessment
of the credibility of the witnesses of both
the applicants and the
respondents. Reasonable scrutiny of this nature would have required
the following to be taken into consideration:
The abovementioned evidence of Lubbe as to the failure of the shop
stewards to fulfil their duties as marshals.
In fact, closer scrutiny of the evidence of Msimang shows that he
did not testify that he continuously tried to speak to the
union
members about their conduct being unlawful. It is so that at the
commencement of his evidence he testified that –
‘
I was
doing the marshalling of the strikers showing them the demarcation
showing them that they didn’t need to pass there.
I was the one
that was … directing them.’
However, in his evidence under cross-examination, he backed away
from that version and described himself as a shop steward
and not a
marshal and repeatedly insisted that he was only responsible for
ensuring that traffic was not disrupted and motorists
were not
distracted. He was at pains to avoid any concession of an
assumption of responsibility in relation to preventing violence
by
picketers.
Significantly, he went on to concede that –
‘
I
don’t remember talking to the employees not to disturb or to
maybe block the gate I don’t remember talking to them
about
that, but what I know is that as a … veteran I know what to do
on a daily strike.’
Had he taken any steps to prevent the violence, and had these then
been disregarded by the strikers, he no doubt would have
had a
strong and lasting recollection of that.
Moreover, in evaluating Msimang’s evidence, the first
respondent was required to deal with the events that took place
at
the meeting on 13 September 2007 when, on the undisputed evidence,
he indicated that nothing could be done by negotiations
but results
would only be achieved through “iron and blood actions”,
and when he also conveyed the demand of the
strikers that the
casual labour be removed from the premises because the picketers
knew where they lived in the location and
their lives were
therefore at risk.
If regard is had to the transcript, when referred to the minute of
the meeting on 13 September 2007 in his evidence in chief,
Msimang
responded evasively. He abandoned his attempt to explain the
paragraph of the minute dealing with the threats. He referred
instead to the portion of the minute where management had spoken
about differences between the ANC and Cosatu. He then apparently
attempted to justify the threats by claiming that management acted
provocatively in mentioning the ANC and Cosatu.
Msimang’s evidence that he was simply conveying a request on
behalf of the strikers was also manifestly unreasonable.
A shop
steward who was properly carrying out his duties would never have
conveyed threats of that nature to management. Instead,
he would
immediately have pointed out to the striking employees that the
threat was entirely unlawful and under no circumstances
should the
striking employees threaten or contemplate violent action against
temporary employees in their homes. If there was
to be any report
to management, it should have identified which employees were
making the unlawful threats with a view to disciplinary
action
being taken against them. That is certainly not the context in
which Msimang conveyed the threats.
In any event, it emerged under cross-examination that on his own
version, Msimang had not had any opportunity before the meeting
to
speak to the employees and it was therefore difficult to understand
how he could have been acting simply as a messenger.
The version
that he was acting as messenger is also difficult to reconcile with
his complaint in evidence that management acted
provocatively by
referring in the meeting to the ANC and Cosatu.
If then the threats were made by Msimang, not as a messenger, but
of his own accord, as seems probable, there was no basis
for
finding or inferring that he was attempting to dissuade the
strikers from unlawful action. On the contrary, he was at the
forefront of it.
Also of considerable significance is that the meeting was a meeting
with the shop stewards generally. Yet there is no suggestion
either
in the minute or in the evidence that the other shop stewards
distanced themselves from what Msimang had to say.
Coming to the evidence of Pule, in response to a leading question,
he said that ‘I tried to … do my level best
to warn
the … workers’, an answer that he repeated again later
in his evidence.
Having regard to the detailed evidence that was given about the
various incidents of violence that took place, a reasonable
decision-maker could hardly have concluded on this basis that there
was a continuous and on-going effort by the shop stewards
to
dissuade their members from unlawful action.
A reasonable decision-maker would have required evidence from the
respondents in relation to each of the incidents which took
place,
how they developed, how the shop stewards each claim to have acted
in order to prevent the violence and how it came
about that their
efforts in this regard were not successful.
Moreover, Pule’s evidence in this regard is contradicted by
his insistence in his evidence that he had no duties whatsoever
in
relation to the picket different from that of an ordinary
participant. If he was of the view that he had no supervisory
obligations whatsoever in relation to the picket arising from his
position as shop steward, then the question arises why he
found it
necessary to testify that he warned the strikers to behave? A
reasonable decision-maker would have examined this question.
His evidence that he warned the workers is also inconsistent with
his evidence and that of the other shop stewards that they
were
completely unaware of the picketing agreement or of any obligation
on their part to act as marshals and saw themselves
as being in the
same position as any of the other strikers participating in the
picket.
None of this evidence, or its implications, was dealt with at all by
the first respondent in his award. Nor is there any fair
attempt to
make a rational assessment of the credibility of the witnesses.
Insofar as the witness Tekane is concerned, it is so that we have no
record of the transcript of his evidence. However, from
the first
respondent’s summary in his award, it followed almost exactly
the same pattern as that of Pule and ought accordingly
to have been
subject to the same critical scrutiny required in respect of Pule’s
evidence. Yet there was no such analysis
on the part of the first
respondent. Nor is Tekane’s credibility assessed.
A further difficulty with the first respondent’s reasoning in
finding that the respondents continuously tried to dissuade
the
strikers from unlawful action is his complete failure to deal with
the countervailing, common cause evidence, that there
were a series
of extremely violent incidents throughout the strike. Crowd violence
takes place when a crowd is out of control.
The fact of the repeated
incidents of violence was
prima facie
evidence of an absence
of control of the picket by those responsible for doing so. A
reasonable decision-maker would have appreciated
that.
Although the onus ultimately lay on the applicant to prove
misconduct on the part of the respondents, the fact of the violence,
along with the evidence of threats conveyed at the meeting with
management on 13 September 2007, placed an evidentiary burden
(as
distinct from an onus) on the respondents to adduce evidence in
rebuttal showing with a reasonable degree of precision what
steps
were taken to exercise control and how it transpired that those
steps failed.
Even if the first respondent was of a different view, at the very
least, reasonable decision-making required him to deal with
this
evidence, which formed a central strut of the applicant’s
case, and to give reasons why he did not consider this evidence
as
giving rise to a
prima facie
case on the part of the
applicant. On the other hand, if he agreed that this evidence gave
rise to a
prima facie
case against the respondents, an
analysis was required as to why the evidence led by the respondents
was sufficient to rebut
the
prima facie
case. Instead, there
is a void in the first respondent’s reasoning in this regard.
Uncontrollable anger due non-payment of wages
The next element of the first respondent’s reasoning was his
finding that the crowd was uncontrollable on account of anger
generated by management’s failure to pay wages. Once again,
there is no logical path setting out the first respondent’s
reasoning in arriving at this finding. The common cause evidence is
that there was violence from the inception of the strike
on 12
September 2007. Nyekemba’s evidence was that the only
employees due to be paid that day were those who banked with
Absa.
Employees who banked with other banks were only due to be paid on
Thursday 13 September 2007, so for them it would not
have been an
issue. There was no evidence as to the time of day at which payment
was usually made. However, it is unlikely that
this would have been
a burning issue and a cause of uncontrolled violence from the moment
that the strike commenced on the morning
of 12 September 2007.
It is also unclear how employees actively engaged in a picket would
have been able to know from the commencement of the strike
that
morning that their bank balances did not reflect their salaries as
having been credited. Also of significance is Nyekemba’s
evidence that he advised the employees through the shop stewards at
least to wait until Friday 14 September 2007 to see if the
payments
did not come through.
Once again, any analysis of these considerations is entirely lacking
in the first respondent’s award. Even if it is accepted
that
the employees were aware of the non-payment from the inception of
the strike, there is no rationalisation as to why the
first
respondent considered that this was a sufficient basis to infer that
the strikers became so angry that they were beyond
the control of
the shop stewards. There is no evidence on the part of the shop
stewards of any attempt on their part to explain
to the strikers
that whilst management’s conduct was unacceptable, it did not
justify a violent response and that there
were lawful avenues for
challenging management’s conduct. A reasonable decision-maker
would have had regard to this.
Comparison with the police
The next element of the reasoning was that if the police as experts
in crowd control were not able to control the strikers, it
could not
have been expected of the respondent shop stewards to do so.
This represents an uncritical and unexamined acceptance of a
contention advanced by the respondents.
In the first place, there was no analysis of precisely what
transpired when there was a police intervention. On the available
evidence the police were at least able to exercise some control at
the times when they were there.
In any event, a reasonable decision-maker would have scrutinised
the contention that inability on the part of police to control
a
crowd necessarily meant that the shop stewards would have been
unable to do so.
In fact, shop stewards are in a unique situation and are perhaps
better placed than anyone else to exercise control over striking
employees. Shop stewards are elected by, and have the trust of,
their fellow employees. They are elected to those positions
because
they are considered to have leadership qualities. Msimang, for
example, had been a shop steward since 1994 and described
himself
as a veteran in that position.
Moreover, shop stewards exercise a well-recognised liaison function
between the trade union organising the strike and the strikers.
That too placed them in a unique position to exercise control over
the manner in which the strike was conducted.
The award does not grapple with these matters.
The number of strikers
The next element of the first respondent’s reasoning is his
finding that the respondents were truthful in their evidence
as to
the number of people in the picket, and, by implication, that the
applicant’s witnesses’ version was untruthful.
This was
important because it formed part of the basis for the respondents’
contention that they were unable to control
the crowd.
Once again, there is no attempt to conduct any detailed analysis of
the evidence. At least three of the respondents’ witnesses
gave evidence about the number of strikers at the picket. Their
estimates of the numbers varied considerably. In the case of
Pule
the number moved from “480 something” to more than 500
as between his evidence in chief and his evidence under
cross-examination.
If regard is had to the photographs which formed part of the
documentary evidence before the first respondent, these tended to
support the version of the applicant. A reasonable decision-maker
was required to explain why in the face of that evidence, the
applicant’s witnesses were found not to be truthful. The first
respondent makes no reference to the photographic evidence.
No reference to the rule in the disciplinary code
The next component of the first respondent’s reasoning related
to his finding that the rule that the respondents were required
to
marshal and control the picketers, did not form part of the
disciplinary code and that for this reason the respondents could
not
be considered to be in breach of a workplace rule.
Implicit in this finding was a rejection of the applicant’s
contention that the conduct was covered by clause 1.2.1 of
the
disciplinary code which stipulated that-
‘
Employees
must comply with the various rules of the company, and must carry out
reasonable instructions given to them, and at all
times behave in a
lawful and orderly manner.’
Again, no reason is provided by the first respondent as to why the
applicant’s contention in this regard was rejected.
The first respondent also failed in his award to have regard to the
fact that a disciplinary code is not the only potential source
of a
workplace rule. Contracts of employment and collective agreements
are also sources of workplace rules.
8
The duties contemplated by such agreements may be either express,
implied or tacit. The picketing agreement was a collective
agreement
which defined the rights and duties of the respective parties
surrounding picketing. It was a potential source of workplace
rules.
Again, none of these considerations were factored into the first
respondent’s reasoning in his award. A reasonable
decision-maker
was required to consider them.
Whether the applicants were aware of the rule or could reasonably
be expected to be aware of the rule
In the second paragraph under this heading, the first respondent
held that there was ‘no conclusive evidence that [the
respondents] were aware or unaware of the picketing agreement’.
In the next paragraph of the award, the first respondent
referred to
“the fact that the applicants were not aware of the picketing
agreement”. These two conclusions are contradictory.
Having
arrived at the first conclusion, it was not open to him to arrive at
the second conclusion.
In any event, both conclusions were unreasonable. Three of the
applicant’s witnesses testified at the hearing that they
were
present at the meeting held on 11 September 2007, that the picketing
agreement was shown to the shop stewards in the course
of the
meeting and that the meeting on 11 September 2007 was specifically
held in order to discuss the implications and implementation
of the
picketing agreement at the applicant’s enterprise.
The circumstantial and documentary evidence corroborated the
applicant’s version. The picketing agreement was signed
between NUMSA and RMI on 10 September 2007, the day before the
meeting between management and the shop stewards. As appears from
the extracts quoted above, the picketing agreement included in
clause 9, ‘issues to be dealt with at enterprise level’
.
If regard is then had to the minute of the meeting held between
management and the shop stewards on 11 September 2007, it closely
corresponds with the items required to be discussed under the
bullets in clause 9 of the agreement.
The respondents faced a further difficulty. It was common cause that
the shop stewards, which included Pule and Tekane, were
provided
with the minute shortly after the meeting on 11 September 2007, but
refused to sign it because of its content. Whether
or not they
agreed with its content, it quite clearly referred to the picketing
agreement. Thus even if one was to accept the
unlikely version of
the respondents that there was no reference to the picketing
agreement during the meeting, they were alerted
to the fact that the
picketing agreement existed at the latest when they received and
read the minute. Any reasonable shop steward
would immediately have
demanded of his or her trade union that it furnish him or her with a
copy if it had not hitherto been
provided.
It is also telling that in Nyekemba’s version of the telephone
call that he received from the shop stewards to discuss
whether or
not the minutes should be signed, the only objection to the minute
he refers to as having been raised by them was
that the company was
not allowing picketing to take place on its premises. This
corresponds neatly with the minute which, upon
analysis, shows that
as being the only issue on which agreement could not be reached at
the meeting and as being the issue which
they wished to take up with
Nyekemba and for which purpose they ‘requested minutes of the
meeting to forward the companies
(sic) position to their official’.
It is so that Msimang was not present at the meeting on 11 September
2007. However he was cross-examined on the basis that he
must have
learned of the information emanating from the meeting from his
fellow shop stewards who did attend. He denied this
but could not
provide a cogent reason for his denial.
Notwithstanding all of this corroboration, the first respondent
rejected the applicant’s version of what took place at
the
meeting on 11 September 2007 and accepted that the respondents were
unaware of the picketing agreement, on the basis that
the minute did
not expressly record that the picketing agreement was shown to the
shop stewards. This notwithstanding the fact
that the minute
specifically states that it is a “summary of discussions”.
The finding of the first respondent in this respect is manifestly
unreasonable and in disregard of the evidence before him.
Whether the rule has been consistently applied?
The first respondent found inconsistency in the sanctions imposed
insofar as the remaining shop stewards were only issued with
a final
written warning, yet the three respondents were dismissed. The
applicant’s reliance on the final written warnings
pertaining
to the three respondents was rejected on the basis that these
related to conduct constituting an unprotected strike
and were
therefore irrelevant.
Again, the first respondent’s award reflects no attempt to
analyse the evidence relating to each infringement or to explain
why
he rejected the applicant’s contentions as to why the
misconduct on each occasion was similar.
The earlier final warnings on which the applicant relied for the
more severe sanctions imposed on the respondents pertained to
their
participation in an unprotected strike during scheduled working
hours on 19 October 2006. The warnings included the following
express provisions:
‘
The
accused are informed that any further transgressions of this nature
may result in the termination of his services. (sic) The
accused are
further informed that this warning is valid for a period of 12 months
from receipt of this recommendation and covers
all aspects relating
to the charges of which he has been found guilty including but not
limited to the following: …
any refusal to comply with …
reasonable and lawful instructions;
any failure to observe agreed
upon procedures in respect of the convening of meetings, union or
otherwise.’
Above the place where the respective respondents signed the final
written warning appear the following words:
‘
I
acknowledge receipt of this warning and understand that, in the case
of a final warning, further similar offences may lead to
my
dismissal.’
Chapter IV of the LRA delineates what constitutes lawful conduct
both in respect of the procedure to be followed preceding a
lawful
strike and the actual conduct of a lawful strike. Both the earlier
final written warning and the dismissal pertained to
conduct in the
context of a strike which fell outside of the protections provided
by chapter IV of the LRA.
The first respondent was required to provide cogent reasons why, in
these circumstances, the misconduct was dissimilar. None
are
provided.
Whether dismissal was an appropriate sanction for the
contravention of the rule?
In holding that dismissal was not the appropriate sanction, the
first respondent referred to his finding that the applicant’s
failure to pay wages had provoked the violent conduct and held that
this mitigated the conduct of the respondents. I refer to
what I
have already said above in regard to the finding regarding
provocation on the part of the applicant.
He also referred to the fact that the shop stewards were at all
times available to speak to management and that they were not
in his
view negligent. However, this does not address the fact that the
picketing agreement also required them to act as marshals
to ensure
that the picket was conducted in a lawful manner.
First respondent’s conclusion
As pointed out above, the first respondent concluded that the
dismissal was substantively unfair and ordered retrospective
reinstatement in terms of section 193(1)(a) of the LRA. He found
that none of the circumstances contemplated in section 193(2)(a)
–
(d) of the LRA were present, thereby leaving him with no discretion
to refuse reinstatement. The applicant challenges
the finding in
this respect and insofar as he awarded reinstatement with full
retrospectivity to the date of dismissal.
For reasons which will become apparent below, it is not necessary
for me to consider the applicant’s argument in this regard.
Conclusion on the reasonableness of the award
For the reasons outlined above, the award of the first respondent
was neither dialectally nor substantively reasonable. The extent
of
the departure from what was reasonable prejudiced the applicant and
precluded a fair trial of the issues. The award finding
the
dismissal to be substantively unfair stands to be reviewed and set
aside.
In those circumstances, it is not necessary for me to consider the
reasonableness of the award insofar as it pertained to the
relief
granted by the first respondent.
Substitution or remittal
In
Sidumo
the Constitutional Court held as follows:
‘
[98]
The powers of the Labour Court set out in section 158 of the LRA
differ significantly from the powers of a court set out in
section 8
of PAJA. The powers of the Labour Court are directed at remedying a
wrong and, in the spirit of the LRA, at providing
finality speedily.
If an application in the normal course for the review of an
administrative action succeeds an applicant is usually
entitled to no
more than the setting aside of the impugned decision and its remittal
to the decision-maker to apply his or her
mind afresh. Section
(1)(c)(ii) of PAJA provides that only in exceptional cases may a
court substitute the administrative decision
or correct a defect
resulting from the administrative action. This is a significant
difference between the LRA and PAJA.’
9
It is apparent from this extract from
Sidumo
, that this court
is not subject to the same constraints as a court performing the
judicial review function under the
Promotion of Administrative
Justice Act No. 3 of 2000
, when it comes to substitution of its own
decision for that of the original decision maker. An important
consideration in this
regard will be the need for finality in the
context of labour disputes.
In the circumstances of this particular matter, the strike which
gave rise to the events took place during September 2007. The
respondents were dismissed on 3 April 2008. The arbitration award
was handed down on 5 June 2009. In less than two months’
time,
five years will have passed since the strike took place. To remit
the matter for a fresh, lengthy arbitration will lead
to a further
lengthy delay, with the potential for further review and appeal
proceedings.
Against that there is the difficulty, for purposes of substitution
of this court’s decision for that of the first respondent,
that the transcript of a significant part of the evidence led at the
arbitration has been lost.
Given the delays and the need for finality, I am of the view that if
substitution is possible without any party being seriously
prejudiced by the missing portions of the transcript, this court
should substitute its decision for that of the first respondent.
I
return to this issue below.
In my view the applicant proved on a balance of probabilities that
the shop stewards, including Pule and Tekane, were indeed
aware of
the picketing agreement. It is most improbable that they were not
alerted to it prior to the meeting with management
on 11 September
2007, particularly bearing in mind that it manifestly provided the
very basis and impetus for the meeting. Even
if they were not aware
of the picketing agreement beforehand, the applicant showed in its
evidence that the shop stewards were
made aware of its material
provisions in that meeting. At the latest they were alerted to the
existence of the picketing agreement
shortly after the meeting when
the minute of the meeting was handed to them and they read it.
Msimang’s version that he
never discussed what took place at
the meeting with the shop stewards was not plausible.
Moreover, Mr Cartwright who appeared on behalf of the respondents in
this court, correctly submitted that, regardless of whether
or not
there was a picketing agreement, the shop stewards by virtue of
their position as such owed a duty of care to the applicant
employer
to ensure that the picket was properly controlled and marshalled.
Indeed he went so far as to say that the existence
or otherwise of
the picketing agreement was for this reason largely irrelevant.
Accordingly, I am satisfied, on a balance of probabilities, that the
respondents were well aware of their duty to act as marshals
and to
ensure that the picket was conducted in a peaceful manner, as
required by the Constitution, the
Labour Relations Act, the
picketing agreement and their employment contracts.
Further, I am satisfied that in proving the specific range of
incidents of uncontrolled crowd violence which took place and the
threats which were conveyed by the shop stewards at the meeting on
13 September 2007, the applicant made out a
prima facie
case
for the failure by the shop stewards to exercise the control over
the picket which they were required to exercise. In coming
to this
view, I have taken into account that what did or did not take place
on the part of NUMSA and the shop stewards in relation
to the
organisation of the picket, are matters peculiarly within the
knowledge of the respondents. Whilst this does not excuse
the
applicant of its onus it enables it to discharge it with:
‘
less
evidence than otherwise would suffice to establish a
prima
facie
case’
.
10
Faced with a
prima facie
case, the respondents failed to put
up any detailed or convincing evidence to rebut the case of the
applicant that they failed
in their duty to marshal and control the
picket. On the contrary, the respondents sought to advance a case
that they bore no
duty to control the picket at all and contended
that they were in the same position as any other striker on the
picket. The most
probable inference to be drawn from this approach
was that the respondents were conscious of the fact that they failed
to exercise
any control over the picket and sought to justify their
omission by contending that they had no duty to do so.
If the respondents were to have put up a case in rebuttal one would
have expected detailed evidence from each respondent as to
his
whereabouts at the time of each of the admitted incidents of
violence, if he was absent, why this was legitimately so, if
he was
present, what reasonable steps he took to prevent the particular
incident of violence from occurring and why those steps
failed to
prevent the violence.
Nothing approximating this was put up by the respondents Msimang or
Pule or by the witness and fellow shop steward Simon Machaka.
The
transcript of Tekane’s evidence is missing. However, if regard
is had to the summary of his evidence in the award,
it is clear that
his evidence followed exactly the same pattern as that of Pule.
There is no reference to any detailed evidence
of the kind required.
Nor was any such evidence put up in the answering affidavits filed
by the three respondents in the review
application. This represented
an opportunity for Tekane to supplement his evidence if he was
concerned that the award did not
fairly summarise his evidence.
It was not open to the respondents to ignore their duty to put up
cogent evidence in rebuttal and then to complain that disciplining
them amounted to the imposition of collective guilt, as was argued
before this court.
Further, the conduct of Msimang in making threats of violence at the
meeting of 13 September 2007, without any objection or contradiction
from his fellow shop stewards, supports the conclusion that they
failed to take any proper steps to exercise control over the
conduct
of the strikers.
It is significant that the Labour Appeal Court in the case of
Adcock
Ingram Critical Care v Commission for Conciliation, Mediation and
Arbitration &and Others
11
rejected an argument that a threat of violence conveyed by a shop
steward at a negotiation meeting with management was protected
by
the context in which it was made and therefore precluded the company
from dismissing the shop steward for misconduct. In particular,
the
Labour Appeal Court held as follows:
‘
One
cannot divorce the bargaining situation from reality. The negotiation
pertains to the workplace and the employment situation.
The employer
negotiates as employer and the employee as employee and the fact that
both negotiating teams represent their principals
does not alter
this. The fact that meetings often degenerate does not mean that one
should jettison the principle that as in the
workplace also at the
negotiation table the employer and the employee should treat each
other with the respect they both deserve.
Assaults and threats
thereof are not conducive to harmony or to productive negotiation …
To me it is unacceptable to hold,
as the Commissioner did, that when
one acts in a representative capacity anything goes.’
12
Having regard to –
what I have said above regarding the evidence of Tekane;
the extent to which the evidence about the incidents of violence
was common cause; and
the fact that most of the missing portions of the transcript
pertain to the applicant’s evidence at the arbitration,
I am satisfied that no party is unduly prejudiced by the missing
portions of the transcript.
Accordingly, on a balance of probabilities, I find that –
the respondents were guilty of a breach of the picketing agreement
as alleged in the first charge which they faced;
the respondents were guilty of gross negligence on the basis
alleged in the second charge which they faced;
there was a causal connection between their gross negligence and
the incidents of violence which took place; and
the misconduct of which the respondents were guilty was of a
similar nature to that in respect of which they had already
received a final written warning. Both involved conduct falling
outside the specific protections conferred by chapter IV of the
LRA;
the events which took place during the course of the picketing,
including the events at the meeting on 13 September 2007, taken
together with the existence of a similar final written warning
against the three respondents concerned, must have had a seriously
deleterious effect on the trust relationship between the applicant
and the respondents; and
dismissal was a fair sanction.
The applicant did not press strongly for a costs order and I am not
convinced that such an order is appropriate in all the
circumstances.
I accordingly make the following order:
The arbitration award issued by the first respondent on 5 June 2009
under Case No. MINT14409D, pursuant to the arbitration
proceedings
between the third and further respondents and the applicant, is
reviewed and set aside;
The arbitration award is substituted with the following award:
‘
It is
declared that the dismissal of the applicants [individual third and
further respondents in the review proceedings] was procedurally
and
substantively fair.’
No order is made as to costs.
________________
DODSON AJ
Acting Judge of the Labour Court
APPEARANCES:
For the applicant: AJ Posthuma of Snyman Attorneys
For the third and
further respondents: David Cartwright of David Cartwright Attorneys.
1
See
in this regard, for example
Bapane v Van Aarde NO &and Others
(2007) 28 ILJ 2561 (LAC) at para 28.
2
Government
Notice 765 in Government Gazette No. 18887 of 15 May 1998.
3
(2007)
28 ILJ 2405 (CC) at paras 109 – 110.
4
Unreported
judgment of the Labour Appeal Court under Case No. DA20/2010 dated 4
May 2012 at paras 33 – 41.
5
[2009]
11 BLLR 1128
(LC).
6
Herholdt
v Nedbank
above at para 36.
Southern Sun Hotel Interests
above at para 17.
7
Herholdt
v Nedbank
(supra) Aat para 40.
8
Grogan
Dismissal
pp143-144.
9
Sidumo
(supra) at para 98. See also in this regard
Pick ‘n Pay
Retailers (Pty) Ltd v The Commission for Conciliation, Mediation
&and Arbitration &and Others
unreported judgment of
Basson J under Case No. JR2289/07.
10
South
African Veterinary Council and Another v Veterinary Defence
Association
2003 (4) SA 546
(SCA) at para 30, referring to
Union
Government (Minister of Railways) v Sykes
1913 AD 156
and
Venter
and Others v Credit Guarantee Insurance Corporation of Africa Ltd
and Another
[1996] ZASCA 50
;
1996 (3) SA 966
(A).
11
(2001)
22 ILJ 1799 (LAC) at paras 4 and 12.
12
Id
at Pparas 14 and 15.