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[2012] ZALCJHB 87
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Mndebele v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant) (JS 960/09, JS 1017/09) [2012] ZALCJHB 87 (21 August 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
THE LABOUR COURT OF SOUTH AFRICA
IN JOHANNESBURG
JUDGMENT
Case
no: JS 960/09
JS 1017/09
In the matter between:
JACKSON MNDEBELE & OTHERS
1
st
to 51
st
Applicants
(JS
960/09)
TOGETHERNESS AMALAGAMATED
WORKERS UNION OF SOUTH AFRICA (“TAWUSA”) OBO MNDEBELE
& 137 OTHERS
52
nd
to 106
th
Applicants
(JS
1017/09)
and
XTRATA SOUTH AFRICA (PTY) LTD
T/A XTRATA ALLOYS (RUSTENBURG PLANT)
Respondent
Heard
:
5 – 16 September 2011
Delivered
:
21 August 2012
Summary:
(Unfair dismissal claim – unprotected strike
action – boycott of compulsory wellness day launch function –
what
constitutes ‘work’ for the purposes of a strike –
procedural fairness - sanction)
VARIATION OF JUDGMENT
LAGRANGE, J
Introduction
On closer perusal of the varied judgment, it is apparent that some
abbreviations and names were not properly reflected as well
as other
typographical errors, necessitating a further variation of the
judgment, as set out below.
Wherever the letters “WAC” or “RC” appear
these should be substituted with the word “Cilliers”.
Wherever the letters “WS” appear these should be
replaced by “Sengani”.
Wherever the letters “JN” appear these should be
substituted with the word “John Nutu”.
Wherever the letters “BM” appear these should be
substituted with the word “Bernard Mchochwa”.
Replace all references to “Mohlaba Mogale Inc.” with
“Mohlaba Moshoana Inc.”
Delete “was” from the phrase “she responded was
that there” in paragraphs [25].
Delete “Emmanuel Dzanibe, the production manager” and
replace with “Dzanibe” in paragraph [42].
Delete “were any questions, there were none.” and
replace with “were any questions: there were none.”
In
paragraph [43].
Replace “VCT” with “voluntary counselling and
testing” in paragraph [48].
Delete “in” from the phrase “after he had
addressed in the workers” in paragraph [54].
Replace “However, later seemed to agree” with “However,
he later seemed to agree” in paragraph [66].
Replace “time to do it being busy with her duties” with
“time to do it as she was busy with her duties“
and
“that day refused to attend” with “that day, they
refused to attend” , in paragraph [67].
Replace insisted on one hearing with “insisted on holding one
hearing” in paragraph [76].
For clarity, replace “There had been protest action at the
plant and a demand for management to meet Mr Masemene of TAWUSA
to
discuss the short pay received since December.” With “There
had been protest action at the plant and a demand
for management to
meet Mr Masemene of TAWUSA to discuss the short pay received since
December, which he was attending to.”
in paragraph [85].
Replace “0730 hours” with “07h30 hours in
paragraph [86].
Replace “before day of the launch” with “before
the day of the launch” in paragraph [114].
___________
R
LAGRANGE, J
Judge of
the labour court
27 August
2012
REPUBLIC OF SOUTH AFRICA
Reportable
the labour court of South Africa
in johannesburg
judgment
case
no: JS 960/09
JS 1017/09
In the matter between:
Jackson Mndebele & others
1
st
to 51
st
Applicants
(JS
960/09)
togetherness amalagamated
workers union of south africa (“TAWUSA”) obo MNDEBELE
& 137 OTHERS
52
nd
to 106
th
Applicants
(JS
1017/09)
and
xtrata south africa (PTY) ltd
t/a xtrata alloys (rustenburg plant)
Respondent
Heard
:
5 – 16 September 2011
Delivered
:
21 August 2012
Summary:
(Unfair dismissal claim – unprotected strike
action – boycott of compulsory wellness day launch function –
what
constitutes ‘work’ for the purposes of a strike –
procedural fairness - sanction)
judgment
i
LAGRANGE, J
Introduction
The applicants in this matter, who consist of two separately
represented groups, claim that they were unfairly dismissed for
allegedly participating in unprotected strike action at the
respondent's plant on 3 March 2009.
An incidental issue that arose was which of the individual
applicants were represented by the union (‘TAWUSA’) and
who was being represented by Mohlaba & Moshoane Inc (‘the
non-union group’). This is a matter which was unresolved
when
the matter came to trial. There is no dispute that the individual
applicants were represented by either the union or the
attorneys,
and for the purposes of this judgment nothing turns on it, as the
result is the same for all the applicants. Should
it be necessary to
determine this at a later stage, additional evidence will be
required and the matter may be set down to determine
this. When the
dismissal dispute was first referred to the bargaining council it
concerned 138 employees. The first referral
to this court of a
statement of claim was made under case number JS960/09 by the
attorneys’ firm mentioned above on 16
September 2009, claiming
to act on behalf of all 137 applicants. Shortly thereafter in early
October 2009 the union made its
referral under case JS1017/09,
purporting to act on behalf of 57 of the applicants. Separate
pre-trial minutes were concluded
between the parties in respect of
the two cases. The respondent then brought an application to
consolidate the two cases which
was done on 5 August 2011 following
an agreement between the union and the respondent that the matters
could be consolidated.
Initially, the union opposed the
consolidation application. At that stage, the respondent
acknowledged that the first group of
applicants represented by
Mohlaba Moshoana Inc. were 52 in number and the second group
represented by the union consisted of
55 applicants in total.
The central issues
Issues to be decided
The key issues which the court is required to decide are whether or
not:
the applicants did participate in strike action leading to their
dismissal on 9 March 2009;
the termination of employment was procedurally and substantively
unfair;
dismissal was an appropriate sanction in the circumstances,
an attempt was made with the union to discuss the course of action
which the company intended to adopt, and
if there was any ultimatum issued to the employees.
Before dealing with the events leading to the dismissals, it is
useful to consider the pleaded versions in the matter to highlight
the main differences between the parties.
The pleaded versions of the parties
The pleaded versions of the two groups of
applicants differed in some important respects, as did the two
pre-trial minutes which
were concluded between each group of
applicants and the respondent, respectively. No consolidated
pre-trial minute was concluded,
so an odd situation arises in which
the non-union group had agreed with the respondent on a number of
factual issues, whereas
the union had not agreed and accordingly
were matters that still had be established in evidence even though
two parties agreed
on them.
The
non-union group
The non-union group of applicants claimed that the dismissal was
procedurally unfair because they were not afforded an opportunity
to
state their side of the story and the dismissal was decided in their
absence. Further, they claim that no contact was made
with the union
to discuss the course of action which the employer intended to adopt
and the ultimatum which was issued.
They also pleaded that the reason they did not attend the launch of
the wellness campaign on 3 March 2009 was that they wanted
the
General Works manager to addre
s
s them on the fact that
testing for HIV and AIDS was compulsory that day, that he failed to
tell them why it was compulsory and
they decided to go back to their
workstations.
On the conduct of the disciplinary hearings, they maintained that
they attended the disciplinary hearing in terms of the notices
which
they received on 6 March 2009, but the hearing could not proceed
because the employer insisted on conducting the hearing
with 10
groups of employees at a time. Management eventually called security
guards who told the workers to go back to work.
According to them,
management did postpone the hearing to 9 March 2009, but when 10
employees went to the hearing as proposed,
they were told they had
already been dismissed. No mention was made in their pleadings of an
appeal being lodged.
The union group
The union pleaded a version in considerably more detail. It said
that about three weeks before the wellness campaign launch workers
had been advised by Mr M Molefe that testing for HIV would be
compulsory and he referred them to the General Works manager when
they complained about this. That was why, on 3 March 2009, they
asked to be addressed on the question, but when the General Works
Manager came he simply told them the furnaces were off so they
either had to attend the launch where they would be tested or
he was
going to take their names and deal with them. They said compulsory
testing was contrary to what had happened in the past
when such
testing was voluntary. Rather than attending the launch and
subjecting themselves to forced testing they decided to
return to
their workplaces and continue with their normal duties.
Contrary to the version of the other group, they pleaded that the
union's head office had been contacted by management to say
that
there was a strike in progress, and the union in turn had contacted
one of the applicants about this who had reported that
everyone was
performing their normal duties. Their pleaded version of what
happened on the date of the first disciplinary hearing
is the same
as the non-union grouping, save that they claimed not all of the
applicants received notices of the enquiry. They
also conceded that
at the toolbox meeting of 6 March 2009 the applicants were advised
that everyone should attend the disciplinary
enquiries, despite not
having received notices to that effect, and consequently they all
did.
They further pleaded that they were not informed of the date and
time of the next scheduled hearing on 9 March 2009, but nevertheless
learnt from the HR Manager, Ms F Suliman, that the hearings were to
have taken place at 07h30 that morning and they would receive
dismissal letters on 10 March 2009. The union claims that a
collective appeal was lodged by it on 12 March 2009 but it never
materialised.
Employer’s version
The respondent’s statement of case was set out in some detail.
For introductory purposes, it is not necessary to repeat
the version
except to highlight essential differences between the applicants’
accounts and its own. In this regard, it
claimed that no production
work had taken place after the plant’s furnaces had been shut
down the previous December. The
non-union group agreed in the
pre-trial minute that operations had ceased in December 2008 and
that from January to July 2009
employees only worked on a normal day
shift and did not work any overtime or night shift. Accordingly they
did not qualify for
the related allowances. They also agreed that if
they were not in their usual departments they would be requested to
assist with
certain designated duties in other departments of the
plant.
The respondent also claimed that a meeting took place on 26 February
2009 between management, union and unofficial shopfloor
representatives to discuss various employees’ queries. The
queries related, amongst other things, to annual leave, overtime
pay, night shift allowances and remuneration. At the end of the
meeting individual pay queries had not been resolved. This was
also
conceded by the non-union group in the pre-trial minute. It must be
mentioned that the union representatives at the meeting
were from
the National Union of Metalworkers (‘NUMSA’) and not
TAWUSA, which was not formally recognised by the respondent
at that
time.
As regards the interaction between the applicants and management on
the day of the launch, the respondent's version was that
when
management representatives approached the employees who had gathered
at the administration building instead of proceeding
to the launch,
the workers told them they were not interested in attending the
launch until the respondent resolved their pay
issues. The managers
responded that the pay issues had nothing to do with the wellness
launch and that if they did not attend
the launch they would be
disciplined for engaging in unprotected strike action. According to
the respondent, a further effort
was made to appeal to the workers
who did not attend the first session to attend the second session of
the wellness launch. This
message was conveyed to a meeting of all
the production workers in the canteen at approximately 11h45 hours
that day, and some
workers responded positively to this appeal. The
union was also advised about the members’ participation in the
strike
action and was asked to warn them of the consequences of the
same.
The employer essentially agreed that the first disciplinary hearings
could not proceed because no agreement could be reached
on whether a
mass hearing or hearings of groups of 10 applicants at a time would
be held, but says that the applicants were only
dispersed when they
became disruptive. The workers were further advised orally that the
disciplinary hearings would continue
that day and those which had
been scheduled in the morning would resume at 13h45 to give them an
opportunity to obtain representation
by fellow employees. The
applicants did not attend, but employees represented by NUMSA did.
The respondent pleaded that, after finding the employees guilty, the
chairperson “considered that the Accused Employees
had a
previous (albeit expired) final written warning for participation in
an unprotected strike and accordingly imposed the
sanction of
dismissal.”
It further claimed that employees whose disciplinary enquiries could
not be concluded on 6 March were issued with fresh notices
to attend
enquiries on 9 March 2009, starting at intervals from 07h30, but the
applicants did not attend. The chairpersons’
conclusions were
the same as in the previous instances. TAWUSA made a belated request
to represent the applicants on that day,
but the hearings had
already been concluded
in absentia
.
Some of the dismissed employees appealed and TAWUSA requested that a
single appeal hearing should be held at which employees
would be
represented by 10 elected representatives, but the respondent would
not agree to a hearing on this basis and advised
the union of the
scheduled dates and times of the appeal hearings. However, the union
declined to attend as did some of the dismissed
employees. Of those
who did attend their appeal hearings some were successful in
obtaining reinstatement.
The evidence
The parties called a number of witnesses. The respondent commenced
leading evidence. In order of appearance, its eight witnesses
were:
Ms F Suliman, the HR Manager ; Mr W A Cilliers, the General Works
Manager ; Mr E Dzanibe, Production Manager ; Mr M A Magatsela,
Security Technologist ; Mr S Majombosi, Skills Co-ordinator ; Mr E
Molefe, a Wellness ‘Champion’; Ms R Molabatse,
Systems
Co-ordinator, and Mr P B Hlatshwayo, Production Superintendent. The
applicants called two witnesses Mr T P Bubisi, a
tapping team
member, and Mr K Zwane, a furnace operator.
For ease of narration, the summary of evidence set out below will
follow the sequence of events rather than iterating each individual
witness’s testimony. Issues of credibility will be addressed
separately where necessary.
The relevant events and issues leading up to the dismissal may be
conveniently described under the following headings:
the nature of work being performed at the plant in the first
quarter of 2009;
the grievances lodged by a section of the workforce before the
wellness launch;
the publicity preceding the wellness day and what was conveyed to
employees about the wellness program during certain so-called
‘toolbox’ meetings;
the events of 3 March 2009 when the wellness launch took place, and
the disciplinary proceedings.
The activities of employees at the plant in the first quarter
of 2009
The question of what exactly employees were doing at the plant in
March 2009 acquired some prominence during the hearing as an
issue
because of the employees’ defence to the allegation that they
were on strike. The thrust of the applicants’
case was that
once they had received no satisfaction from Cilliers about the
question of compulsory testing, they returned to
their "normal
duties". They claimed they were engaged in production
activities, and in particular, what was referred
to as ‘hand
recovery’ of metal from slag piles. For its part, the
respondent's contention was that to the extent
employees were
engaged in activities of any sort, they were engaged in training,
painting and cleaning activities.
In any event, the essence of the respondent's case is that the
applicants were issued with a lawful and reasonable instruction
to
attend the launch of the wellness program on 3 March 2009, and their
failure to do so, coupled with their representations
to Cilliers
over their wage queries, amounted to strike action. Thus, although
evidence was led at considerable length about
training that the
applicants were supposedly undergoing and the cleaning tasks they
were performing, the charge of participating
in unprotected strike
action related specifically to their alleged boycott of the wellness
campaign launch taking place on that
day. Assuming for the time
being that they were under an obligation to attend the wellness
launch and that a failure to obey
a lawful and reasonable
instruction was sufficient to constitute industrial action and if
the other requirements of what constitutes
a strike were met, then
what the applicants were doing up to that point or afterwards is not
particularly significant.However,
as it may have some indirect
relevance to other issues in the case, the activities will be
outlined.
The nature of work performed in the first quarter of 2009
In early December 2008, the General Works Manager, Cilliers, issued
a notice to all employees of a drastic reduction in production
and
shutdown of furnaces owing to the world economic crisis and a major
slump in stainless steel demand which had impacted on
the business
more than anticipated. According to the notice, the firm's biggest
customers cancelled all their orders for December
and for the first
quarter of 2009. Consequently the firm decided to extend the leave
period so that it would last from 11 December
2008 until 18 January
2009. The additional leave would be advanced to employees as a
credit against their 2009 paid leave. Cilliers
confirmed that
continuous casting was shut down in December 2008 as it had been
decided it was better to try and sell the firm’s
excess stock.
The shutdown ended in May 2009 when production resumed on only two
of the six furnaces. There was a staggered resumption
of normal
production which was only returned to normal levels in September
that year. He confirmed that during the shutdown period,
part of the
plan was to occupy workers with training.
According to the evidence of Suliman, the period from January to
June 2009, was a period during which no production work was
done,
but employees attended various training sessions in health and
safety industrial relations and SAP systems. When she was
challenged
with the non-members’ version that they were doing hand
recovery work and cleaning, she responded that there
could not have
been any hand recovery work to do if the furnaces were not
operating. Dzanibe confirmed that training for production
workers
was scheduled during the months of January to March 2009.
Cilliers’s evidence on the question of hand recovery differed
to some extent with Suliman. He agreed that in the first
month after
the furnaces had been switched off, cleaning - up operations would
have been done and metal which had been skimmed
off with slag would
have been picked out. However, it definitely would not have been on
the work schedule in March. Under normal
production conditions,
today's spillage would be recovered the following day. The volume of
any additional recovery work after
production was shut down would
not have taken more than 2 to 3 days to complete. It was suggested
to Cilliers under cross-examination
that there would have been a
huge quantity of unrecovered metal when the plant was shut down, but
Cilliers pointed out that there
was competition between the
different plants in the company to lower costs and if all metal was
not recovered and weighed, then
this would be reflected in higher
production costs for the relevant month.
Dzanibe also confirmed that no hand recovery took place in March
2009 and would not have occurred if the furnaces were off. Majombosi
corroborated this and denied that there were heaps of slag left at
the end of the year from which metal still had to be recovered.
In
particular, he specifically denied that Paul Bubisi was performing
‘hand recovery’ work. He recollected that the
contractors who performed outside recovery had stopped working in
November 2008, contrary to the evidence of Cilliers and Hlatshwayo
who said they stopped in early December that year.
Hlatshwayo explained under cross-examination that the work process
was not designed for spillages, and that is why contractors
were
engaged for outside recovery. When it was suggested to him that the
production employees had performed this function from
January to
March 2009, he challenged them to show him the production figures
recording that, because the weight of metal recovered
would have
been recorded. This indirectly corroborated Cilliers’s
evidence that outside recovery was recorded as part of
the volume of
metal produced because it affected the plant’s production
costings.
Dzanibe was questioned closely on the scheduled training by Mr
Morwane. He agreed that the production workers would not have
been
fully occupied with training duties and would return to the plant
when they had finished where they would be assigned housekeeping
duties by their shift co-ordinators. Majombosi confirmed that apart
from training, workers were engaged in housekeeping and painting.
Dzanibe said there would not have been more than 3 to 4 days
recovery work to be done and that the type of duties assigned to
production workers would have been painting and cleaning work.
Although he insisted that workers could not have performed any
work
without supervision, he had no direct knowledge of what work was
assigned to them each day. Majombosi denied that the workers
performed cleaning or other duties without supervision. He would
delegate tasks at the toolbox meetings and inspect work before
workers knocked off.
Dzanibe stated that slag normally took a day to cool before it could
be worked on and it took the sub-contractors who previously
dealt
with recovery about a day to deal with the average day’s
spillage. He was adamant that there were no large piles
of slag
around when the plant closed in December 2008, even though the
contractors had been taken off the job in October that
year.
Majombosi was also adamant that no shifts were engaged in hand
recovery of metal from slag. However, when Bubisi testified
he
claimed that there was a slag pile twice the area of the court room
and twice his height when they returned to work in January
2009.
Excavation of the slag was being conducted by a small mechanical
excavator. He also testified under cross-examination that
slag
obtained from spillages when the furnaces were still on was combined
with the slag obtained from scavenging, even though
it was put to
him that these different materials obtained through outside recovery
are not mixed. When he continued with his
evidence the following day
he then said that such ‘mixing’ did occur during a slow
down.
Bubisi’s initial version of hand recovery work was that, it
did not require supervision. However, under cross-examination
he
said that on 3 March 2009 he was working under the supervision of
one Mr K Zwane, who was a furnace operator who was representing
Majombosi. They worked until the normal departure time at 16h30. It
is notable, that Majombosi was not challenged on his evidence
that
he would check the work that was done every day, and it was never
suggested to him that he had delegated his responsibilities
to
Zwane. Zwane’s only evidence in chief was to corroborate
Bubisi’s version that, responsibility for supervising
hand
recovery had been given to him by Majombosi. He could not explain
why the persons who supervised hand-recovery operations
for furnaces
1 and 2 and 3 and 4, under normal operating conditions, Messrs D
Magoje and E Masuku, respectively, would not have
been in charge of
supervising such activity. He also could not explain why the
applicant’s had failed to put this version
of his supervisory
role to Majombosi.
Zwane was confronted with alleged production sheets which showed
furnace production and outside recovery tonnages for the months
of
December 2008 to March 2009. The applicant’s objected to the
introduction of this evidence, which had not been introduced
in the
company’s evidence in chief, but I allowed its admission into
evidence as the company was entitled to put documents
to Zwane to
rebut his version of being delegated to supervise hand recovery work
and that the tonnage recovered was recorded.
Zwane then said that
Majombosi was responsible for recording the tonnage recovered.
At face value, the documents suggested that an amount equivalent to
about 10 % of the ordinary furnace tonnage for December 2008
was
obtained from outside recovery, but there was no outside recovery or
furnace production recorded for the first quarter of
2009. Later, in
his re-examination of Zwane, Mr Morwane sought to place the
authenticity of the signatures on the documents in
doubt and that it
was strange the production documents were not signed by Cilliers.
Zwane noted also under re-examination by
Mr Mogane that signatures
of production managers seemed for different departments appeared to
be identical and suggested the
documents could not be reliable for
this reason.
The grievance meeting of 26 February 2009
Suliman testified that she was approached by the production manager,
Dzanibe, with a request that two employees would like to
see her,
namely ‘Dannyboy’ and Mr T B Bubisi. They claimed to
represent the production workers, even though they
were not shop
stewards of NUMSA. Suliman asked the NUMSA shop steward, Wilson
Sengani to attend the meeting as well. When asked
why she had
permitted the two individuals to approach her directly, she said
that she had an open door policy and Sengani did
not know about the
issues they wanted to raise. She also mentioned that at that stage
the recognised union was NUMSA. Two of
the issues raised at the
meeting namely the absence of a nightshift allowance and overtime,
related to remuneration which was
no longer paid after the shutdown
of the furnaces and cancellation of night shifts and overtime. The
third issue concerned unspecified
individual pay queries. The
understanding reached was that the company would be provided with a
list of the individual queries,
but that never happened.
The union representative questioned Suliman closely to try and
discredit her version that such a meeting took place. Bubisi,
testifying as a witness for the employees represented by TAWUSA,
though initially he said he was neither a member of TAWUSA nor
NUMSA, strenuously denied that such a meeting had ever taken place.
Under cross-examination he said the only reason he gave evidence
was
that he had been implicated in the alleged meeting about pay issues.
He was just an ordinary member and the elected shop
stewards of
TAWUSA were J Mdebele and J Mthembu. He could not explain why the
company witnesses would have identified an ordinary
worker like
himself as having requested a meeting, rather than the shop
stewards. He further denied being dissatisfied with the
changes in
remuneration, which had occurred as a result of the reversion to a
straight day shift after the furnaces were closed.
Dzanibe said he had phoned Suliman to say that P Bubisi, one
‘Dannyboy’ and Wilson Telane had asked for a meeting
to
discuss pay issues. He confirmed that the issues raised were about
annual leave, the shift allowance, overtime pay and individual
pay
issues. The leave query concerned the issue of taking further leave
during 2009 because of the leave taken in December 2008.
They were
unhappy about the lack of overtime pay because they had budgeted on
the basis they would be receiving it. On the individual
queries,
Suliman had asked Telane to assist Bubisi and ‘Dannyboy’
to compile a list and to obtain payslips from the
workers concerned.
It was put to Dzanibe that it was unlikely such a meeting would have
occurred because it would have taken place contrary to the
procedures and protocols for raising such issues, especially as
neither of the two employees who raised the issues were shop
stewards. Dzanibe said he listened to them because he was concerned
and the HR department had agreed to the meeting provided
the shop
steward was present. Majombosi claimed not to have been aware of any
pay queries being the reason why production workers
did not attend
the launch.
Hlatshwayo was aware of individual queries arising from the loss of;
overtime, shift allowances and the like, but not of any
collective
grievance. As a result he was unaware of what he referred to as ‘the
memorandum’ submitted to the HR department
until the day of
the wellness campaign launch. He denied he should have been the
first to know of this, as the production manager
could also have
dealt with it. It appears Hlatshwayo’s recollection was that,
talk of a memorandum had first been raised
when he had attended the
gathering of the production workers on the day of the Wellness
Campaign launch. He identified the person
who mentioned it as one
“Mogoeng” who was with two other employees identified as
‘Ramodia’ and ‘Tsepo’
The Wellness Campaign
Suliman testified that the only material difference between the
wellness campaign in 2009 and the previous campaign was that
other
chronic illnesses were included in the tests which were available.
It was a national campaign launched by the parent company.
Under
re-examination, she recalled that there was also no launch day in
the 2007 campaign, and participation in the voluntary
testing
programme was poor. This was confirmed by Cilliers who said that
previously the participation rate in the voluntary counsellor
and
training campaign had only been about 50% and the CEO of the company
based in London wanted to achieve 100% participation.
To introduce
the campaign a number of so-called "wellness champions"
were appointed who briefed employees during their
toolbox meetings.
These persons were specifically trained to brief employees on the
campaign and to explain to them on a daily
basis what to expect
during the voluntary counselling and training phase. The object of
the campaign was firstly for people to
learn their status, then for
those who require treatment to receive it so that people would be
able to continue a long and prosperous
life on treatment.
The company had been advised that the low response in previous
campaigns was because it required those who wanted to be tested
to
leave the workplace to queue for testing. That unnecessarily
identified and stigmatised those who went to be tested. On this
occasion, during the second phase of the program all the employees
would be counselled by a nursing sister and they could then
indicate
whether they wish to be tested or not. In that way no one would know
who had actually agreed to be tested. The wellness
champions were
trained to convey this in the preparation for the campaign.
Toolbox meetings were held in different units before a shift started
when employees were briefed on specific work outcomes and
safety
issues. Hlatshwayo testified that the campaign built up over a
period and was regularly raised at toolbox meetings. An
example of a
minutes of such a meeting held on 11 February 2009 with the
production staff of furnaces 1 to 4 recorded the following:
"
Wellness Launch
-there will be a launch on the
03/03/2009. Every employee must attend the launch.
Closure:
Emilio to have full kit and also must report more
REDS. Also employees must not forget to attend the launch. Wellness
champions
will be given a platform to brief employees about the
wellness program and launch. This will be done every day.”
Dzanibe, attended this meeting. He said that all the production
workers and eight production co-ordinators were present. He could
not obtain attendance registers for all the teams as some
co-ordinators had lost them. Majombosi confirmed that he no longer
had his attendance register for that day, and there was no
prescribed time period for which they had to be retained. The
meeting
was also attended by the production engineer, a technologist
and the Production Superintendent, Mr B Hlatshwayo, who was
responsible
for furnaces 3 and 4, together. Hlatshwayo confirmed
that Molefe had addressed the meeting and told workers that
attendance at
the launch on 3 March was compulsory but testing was
voluntary. He also made it clear that no testing would take place on
that
day and testing would include other illnesses. Dzanibe also
confirmed that the wellness champions had a daily platform at the
toolbox meetings to address employees.
Under cross-examination, Dzanibe confirmed he had left the meeting
after Molefe’s presentation. He said that when Molefe
asked if
there were any questions: there were none. He did not hear of any
altercation taking place when he left. He agreed that
the minute of
the meeting did not reflect that the date of the launch and the date
for voluntary testing were not the same, but
said that Molefe had
told the meeting that on the day of the testing, testing would be
voluntary. Later, under re-examination
he confirmed that he did not
hear anyone asking questions about the supposed compulsory testing,
nor did he hear any report after
the meeting that there was a
concern expressed about this. Majombosi, who remained at the meeting
until it ended, did not hear
any queries of this nature being
raised. He was also confident that Molefe had clearly distinguished
between the compulsory attendance
of the launch and the voluntary
testing. Majombosi did say under cross-examination that he did not
know if Dzanibe was at the
meeting, but he did not see him on that
occasion. He maintained that it was explained that testing would be
voluntary even though
the minute of the meeting did not specifically
mention this. He also said that if there had been any complaints
about the testing
programme he would have been the first to know.
Hlatshwayo mentioned that even though there was time for questions
at the end
of Molefe’s presentation, no questions or queries
were asked. Hlatshwayo said he left after the silence following
Molefe’s
briefing, but conceded he would not have known how
the item was concluded. He said Molefe was at the meeting from the
beginning.
When he was questioned why voluntary counselling and testing was not
mentioned in the agenda, Hlatshwayo’s explanation
was that VCT
was part and parcel of the wellness campaign. Although no date was
mentioned for the voluntary testing at the toolbox
meeting, the fact
that testing would be voluntary was mentioned. Dates were on the
notices on the notice boards. As he understood
it, the importance of
the launch was the information that was going to be conveyed at that
function.
Bubisi also attended the meeting and heard Molefe address it. Molefe
told the meeting about the campaign and that testing for
all the
illnesses mentioned would be compulsory. According to Bubisi, this
was a surprise to the workers. In previous HIV campaigns
they were
never told it was compulsory and only those who volunteered to be
tested attended. When J Mndebele queried this with
Molefe he could
not ‘give them clear answers’. He never gave them an
answer to the question and told them that if
anyone wanted answers
they should go to the owner of the company because he was sent by
management to speak to them. In turn,
workers at the meeting told
him that he must call management to come to a meeting with the
workers since he was sent by management.
Under cross-examination, Bubisi went further and stated that Molefe
had also said the launch and the testing would be held on
the same
day. Bubisi was taxed in cross-examination why Molefe was not asked
about the statement that management should be approached
for
answers.
He said Dzanibe and Hlatshwayo left the meeting before Molefe did.
In the end the meeting was not ‘concluded’ and
management did not hear the worker’s side of the issue. Bubisi
agreed that Molefe had addressed the meeting on the other
ailments
such as diabetes and which they would have to be tested for.
The voluntary counselling and testing programme was scheduled to
start on 09 March and would run until 20 March 2009. The testing
was
conducted at an area outside the plant by five nursing sisters.
There was an incentive of R100 offered to everyone who underwent
testing and further incentives if they needed treatment and
subsequently underwent the treatment. Dzanibe testified that he
attended a voluntary counselling and testing session. The attendees
were shown a video after which they went to separate cubicles
where
a sister explained the nature of the tests and that the testing was
voluntary.
Events on 3 March 2009 (the launch day)
Suliman testified that attendance at the wellness launch was
compulsory and attendees had to sign the attendance register. A
program of the launch shows that the session was to be divided into
various presentations, motivational talks, a drama session,
industrial theatre, ending in a raffle draw using the tickets issued
to attendees. The agenda for the different sessions was
placed on
the notice boards according to Suliman. All employees were issued
with tickets for the launch which entitled them to
refreshments and
to participate in a raffle at the end of the launch.
Bubisi testified that workers attended the toolbox meeting as usual
that morning. They were reminded by their supervisors that
they had
to attend the wellness day event. Bubisi could not recall which
supervisor or foreman had conveyed the message. The
workers
expressed their dissatisfaction with this because they had asked
Molefe to go to management and they were still waiting
for his
response. Their foreman told them to go to the assembly area and
management would meet them there. This explanation of
how the
workers had come to assemble on the grass was never put to any of
the company witnesses.
The launch was divided into a morning and afternoon session. In the
morning session production staff from furnaces 1 to 4 would
attend
and in the afternoon staff from furnaces 5 and 6 would attend.
Dzanibe said he was told by Hlatshwayo and John Nutu that the
production workers were refusing to attend and he went to speak
to
them. Hlatshwayo says he was asked by Cilliers where the workers
were, and Hlatshwayo left the tent to find out. On his way
he met
Majombosi and Nutu. He did not get a clear explanation from them.
However, when he got to the gathering of employees and
enquired why
they were not coming to the launch they told him they were not
coming because of their issues raised in the memo
sent to the HR
department which had not been addressed. The person who gave this
response was one ‘Ramodia’. When
he told them they were
expected at the launch they told him to ‘fuck off’. He
could not say who had said it. Majombosi
tried to address the
gathering but they would not listen to him. Hlatshwayo characterised
the mood of the crowd as disruptive
and unruly. Contrary to this,
Bubisi was adamant that he was next to Ramodia in the gathering and
the latter did not utter a
word.
Cilliers described the launch as a big day for the company. The
managing director of the company arrived at about 07h15, but
by 7h45
the tent was only about half full. Cilliers said he asked Majombosi
where people were and he told them they were not
coming. He
instructed him to go and fetch them but they refused. He then sent
the production manager, JN, to talk to the workers
and they returned
saying that the employees were in front of the social services
office and will not be coming because they were
unhappy.
Cilliers was very upset and went to the group of workers himself and
asked them why they were not coming. He was told by one
employee
that they were not happy about pay. Cilliers’s view was that,
that could be discussed on another occasion and
they should attend
the launch because the managing director was waiting. Cilliers was
very upset because he tried to prevent
retrenchments and “stuck
his neck out" in asking for them to be paid. He was not
prepared to talk to them and they
wanted to strike and pointed out
to them that there was no production they could stop. He warned them
that when he returned they
would be “discussing separation".
He decided that the launch must carry on and reported to the
managing director that
there was unhappiness about pay. He also
asked the NUMSA representative Bernard Mchochwa to speak to the
workers after the morning
session. Mchochwa later reported to
Cilliers that they did not want to listen to him. Suliman
essentially confirmed what the
production coordinators had told
Cilliers at the launch tent. Cilliers had spoken to Suliman after he
had addressed the workers
on the grass and told her that they had
wanted to resolve their pay queries before they could attend the
launch. She explained
to him that they could not address those
queries because they never received the requested query list.
Cilliers denied that anyone had asked about the wellness program and
found it difficult to believe that Molefe, who was one of
the
wellness champions, would have misled employees to believe that
testing was compulsory as he was thoroughly committed to
the
campaign. Cilliers went to speak to the workers after he had
instructed Dzanibe and another production manager to speak to
them
without success. He said when he went there he asked them why they
were not attending. He was told that they have some pay
issues. He
told them that it was very important to attend to the launch as it
was for their benefit and they could gain from
it. He stressed that
he would not discuss pay issues at that time: those could be
discussed after the launch. He was accompanied
by Dzanibe and
Hlatshwayo. Hlatshwayo translated into Setswana what Cilliers said,
and workers told them to ‘fuck off’
in English and
Afrikaans. He said there was no overt intimidation he could see, but
the crowd was disruptive and was shouting
when Dzanibe and Cilliers
addressed them. He conceded he saw no evidence of violence or
weapons being brandished. There were
some contradictions between
Cilliers and Hlatshwayo’s evidence about whether Cilliers
found him at the meeting, but Hlatshwayo
recalls Cilliers joining
him and Dzanibe later at the tent.
Although Hlatshwayo said he was at the gathering when Cilliers
arrived, he confirmed he had translated Cilliers’s message
to
the gathering. It was put to him that he was not understood by the
crowd and it would have been better if Dzanibe had translated.
but
no evidence was led on this score.
Hlatshwayo said it was he who told Cilliers that the reason for the
workers not attending the launch was the pay issue. He confirmed
that Cilliers was angry and told the gathering that the issues in
the memo to HR would be sorted out but they must go to the
launch
tent. Dzanibe essentially corroborated Cilliers’s account and
that the workers were disruptive and unwilling to
listen. He also
confirmed that Cilliers was angry. It was put to Dzanibe, but not to
Cilliers, that Hlatshwayo could not have
interpreted for Cilliers
because he was Zulu speaking, but Dzanibe responded that he might
speak with a Zulu accent, but spoke
Setswana.
Bubisi contended that while he was waiting on the grass with the
others, he saw Dzanibe with one group of the workers and went
to
listen. After a couple of minutes he left and returned with
Cilliers. Cilliers told them to go to the tent and if they did
not ,
they should notice that the furnaces were not running and he would
take further steps. Asked for the words used by Cilliers,
he
answered that Cilliers had said he would note their names and there
would be ‘a separation’. After that speech,
the workers
returned to work according to him. No question was posed to the
workers by Cilliers according to Bubisi, contrary
to the testimony
of company witnesses. He claimed that the reason they had not asked
him why the testing was compulsory that
year was because he was
angry, and because he had not approached them with the purpose of
addressing the issue that concerned
them.
When asked why he did not attend the launch, Bubisi’s response
was that he wanted to attend the launch on that day. However,
Molefe
had said it was compulsory to test and the workers wanted to meet
with top management before going to the launch tent
and had
assembled on the grass to hear management’s explanation of why
they had to go to the tent. He was adamant that
pay queries were not
the reason for remaining on the lawn. At the end of his testimony he
said he wanted to go to the launch
to obtain information on
diseases, but he did not go because Cilliers never gave them a
chance to understand why testing was
compulsory. Moreover, it was
taking place on the same day as the launch.
After the morning launch session, Cilliers asked a senior NUMSA
unionist to try and persuade them to attend the afternoon session.
Dzanibe was tested on the nature of the instruction to attend the
launch. He was adamant that it was part of that day’s
schedule
of activities and part of that day’s work for everyone. He
regarded their action as strike action because they
refused to
attend the launch because of their pay queries. The launch was
compulsory and it was part of their work to attend.
He did not think
it was unfair to require employees to attend the launch.
Cilliers conceded he was angry as the event was very important for
the company, and it was the only thing the workers could disrupt
as
no production was taking place. He believed it was part of the
campaign by TAWUSA to gain more recognition to show that they
could
cause disruption. At that time, the company had only granted the
union stop order rights and NUMSA was still the recognised
union. He
disputed the contention that the queries had been about the
Voluntary Counselling and Testing. The Wellness Programme
had been
in the pipeline since the last quarter of the previous year and they
had ample opportunity to raise any concerns before
then.
Dzanibe was the master of ceremonies at the launch and could see the
production workers remained on the grass during the launch.
Afterwards, when they went to the canteen he went to the canteen
with Majombosi. The NUMSA shop steward told them they could
still
attend the afternoon session of the launch and if they did not do so
they would face disciplinary action. The workers told
him it was a
TAWUSA meeting. Nobody asked why the HIV testing was supposedly
compulsory, nor was that raised at any time during
the morning.
The majority of those who did not attend were TAWUSA members. Only a
handful of NUMSA members did not attend. She sent a letter
to the
union after the first session of the launch, concluded at about 12
o'clock. The letter stated:
"
Re: Unprotected Industrial Action
The company will would hereby like to bring to your attention that
some of your members have embarked on unprotected industrial action
on the morning of 03 March 2009.
We hereby reserved the right to take any necessary action to
remedy the situation and encourage you as a union to advise your
members
of the consequences of their actions.
Please do not hesitate to contact me if you have any queries in
this regard."
At that point, the workers who had boycotted the launch returned to
the canteen after remaining on the grass near the administration
block where the general works manager had addressed them. Cilliers
asked the chairperson of NUMSA’s shop steward committee,
B
Mchochwa to address the workers in the canteen to try and persuade
them to attend the afternoon session. A few employees responded
to
this appeal and attended the afternoon session. Majombosi also
attended the meeting in the canteen with Mchochwa at about
12h15.
Workers had turned all the chairs around so they faced the entrance
doors. Mchochwa asked them to go to the launch, as
it was ‘a
must’ and they would be making trouble for themselves if they
did not attend. However, the workers did
not respond and did not
reply when asked what was wrong. The two of them then left the
workers in the canteen. Majombosi said
none of the workers came back
to the workplace before 16h30 and denied that they had returned to
their normal duties that afternoon.
Bubisi’s version was simply that workers returned to work
after they dispersed after Cilliers spoke to them. However, he
later
seemed to agree that they went to the canteen and returned to their
work after lunch, but no meeting of any kind had taken
place there.
He returned to his hand recovery work, but their foreman, Majombosi,
was not present. The issue of whether this
work was supervised is
discussed above. Under cross-examination, Suliman conceded that if
the employees who did not attend the
launch had returned to their
workplace they would not have been on strike, though she was advised
that the employees who had
gone to the canteen remained there until
they knocked off work at the normal time.
Suliman did not personally issue any ultimatum because other
managers were assigned to address the matter and she did not have
time to do it as she was busy with her duties at the launch itself.
The employees were charged with participating in an unprotected
strike action because they had been issued with a reasonable lawful
instruction to attend the wellness launch and despite being
paid for
that day, they refused to attend. Under re-examination, Suliman said
that if the strike had not ended an ultimatum would
have been
issued. In the past three ultimatums had been issued.
Cilliers was of the view that what the workers had done amounted to
unlawful industrial action and they would follow the normal
steps
for taking disciplinary action against them.
The disciplinary process
According to Suliman, the production superintendents had collected
the tickets of the launch which had not been issued to determine
who
did not attend as a basis of identifying who should receive notices
of a disciplinary enquiry. The tickets issued to employees
bore
their company number. Production coordinators then called together
groups of employees and asked them to sign for receipt
of the
notices. Although Suliman could not testify directly about the
handing over of the notices to the employees she was advised
by the
coordinators that the notices had been handed out. In any event all
the employees arrived at the hearing venue.
However, Majombosi testified that he did issue notices to all
A-shift workers and this was not disputed under cross-examination.
The charge contained in the notices to attend the disciplinary
enquiries read:
"On 03/03/2009 at 07h30, you participated in an unprotected
industrial action, in that you refused to continue with normal
activities at the operation. Even after management had spoken to you
and requested you to attend the wellness launch you still continue
to
gather the entrance of the plant and refused to attend."
Bubisi denied receiving any notice on 4 March of the enquiry and
maintained that the toolbox meeting on that day proceeded normally
after which they returned to their duties. According to him it was
only the following day, in the toolbox meeting that their
foreman
told them in the meeting that all the workers who did not attend the
wellness campaign launch were charged and must attend
a hearing the
following day at 07h30. They were reminded again at the toolbox
meeting of 6 March to attend the hearing and they
went to the Lost
City boardroom. This version of how the employees came to know of
the hearing was never put to the company witnesses
and, under
cross-examination, Bubisi conceded that he could not say that
Majombosi had not given notices to anyone else in A-shift.
It was
also put to Bubisi that it was unlikely the employees would not have
queried being instructed to attend a hearing merely
on oral notice.
Moreover, given that TAWUSA’s own statement of case was that,
notices were issued to workers on 5 March
2009, it was inherently
improbably that some would have received notices but others not.
Hlatshwayo said he drew up the charge and signed the notices, the
day after the launch, and it was issued to workers based on
the
unused tickets that had been collected at the launch. He regarded
their failure to attend the compulsory launch as misconduct
and that
is what prompted him to initiate the charge. In reply to the
contention that since there was no work being performed
by workers
on that day, on the company’s version, they could not have
been on strike, he answered that their work for the
day was to
attend the launch. Attendance at the launch was compulsory: if you
did not attend the launch, you did not work.
Hlatshwayo appointed Dzanibe to be the chairperson because company
policy required the relevant head of department to chair enquiries
in their departments. The wisdom of this choice was questioned by Mr
Mogane, who pointed out that Dzanibe had been present when
the
recalcitrant workers had been addressed by Cilliers and Hlatshwayo.
Hlatshwayo said that no objections were raised by the
employees to
Dzanibe’s appointment as chair even at the appeal stage.
Hlatshwayo said all the employees who had been charged arrived at
the Lost City boardroom at 07h30 on 6 March 2009. The scene
at the
boardroom was chaotic and out of control. Suliman said that it was
the employer's intention to draw up schedules of groups
of workers,
ten at a time, to conduct the hearings. When she tried to address
the employees on the procedure for conducting the
hearings, she was
not given a chance to explain and she was told to shut up.
Hlatshwayo tried to convey the same message to the
employees. When
one Dumisane and Hlatshwayo tried to calm the workers down they were
told that they were her ‘dogs’.
Dzanibe confirmed the
insults hurled at the managerial personnel.
At this time Suliman estimated there were about 50 persons inside
the building and a similar number outside.
Mr A Magatsela, the firm’s Security Technologist, was
summonsed and tried to calm matters down and eventually workers left
the building. He testified that when he arrived he saw angry,
shouting people. He recalled that Hlatshwayo and Dzanibe were in
attendance when he arrived. When he stood on the table he asked
everyone to leave except those whose names were on the list he
was
given by Hlatshwayo for the first hearing, which he read out.
However, nobody remained in the hall because everyone ‘barged
out’. He conceded that when he read out the list in the
board-room, it was possible some persons did not hear him because
a
number of the crowd were still shouting. Suliman remembered that
Magatsela told her that the workers were demanding that all
of them
should attend the hearing at the same time and she explained that it
would not be practical. Dzanibe, who chaired the
enquiries, said
that the workers who had arrived for the hearings insisted on
holding one hearing and were not interested in
the proposal to
combine ten cases at a time. They were disruptive and would not let
Suliman address them even when Hlatshwayo
stood on a table in the
board room and tried to calm them down. Similarly, when Magatsela
spoke to them they would not listen.
Bubisi’s version was that workers did not want to leave
because they had been told to come to their hearing at that time.
Moreover, they were simply told to disperse. Everyone was behaving
quite normally. He agreed that Magatsela climbed on the table
to
speak to them and then they all left and returned to their
workstations. He denied hearing Suliman or anyone else saying the
company wanted to conduct hearings with 10 employees at a time, even
though TAWUSA’s statement of claim confirms that this
was
said. It was put to him that it was implausible that all of them
would have simply dispersed without anyone querying what
would
transpire regarding the enquiry. His answer was simply that he did
not know what happened to the hearing but if management
was serious
they would have repeated the process. He denied any knowledge of a
demand for a single hearing.
The crowd insulted him in derogatory terms and threatened that he
‘would pay’ if they lost their jobs. He denied
telling
them all to disperse. Outside the building he addressed them and
explained how the hearings would be conducted. Magatsela
says he
read out the list of names of those due to attend the rescheduled
enquiries at 13h45 and 16h00. Hlatshwayo says he gave
Magatsela the
list of names. Hlatshwayo claimed he was next to Magatsela when he
addressed the workers outside the building and
was convinced they
heard him reading out the names of those who should attend the two
enquiries on that day and that the remainder
would have their
hearings on Monday, 9 March 2009. Magatsela said he and Hlatshwayo
had tried to hand out notices to those outside
but they threw them
on the grass.
Magatsela did read out the names of the first ten employees who were
to attend the first session of the disciplinary enquiries
at 09h30
hours. Suliman denied that the workers returned to their workplaces
after they were addressed outside the building.
A note was made on
the individual hearing forms of the affected individuals confirming
that they had been ‘verbally’
informed of the new time.
However when the time arrived, nobody attended even after workers
who were still outside the building
were told that the hearing would
start in their absence.
The remainder were told that their hearings would be on 9 March 2009
and copies of amended notices signed by the complainant
were issued
to them on that day. It was never put to company witnesses that when
Magatsela supposedly spoke to workers outside
the boardroom, there
was nobody there to hear him. Bubisi denied that Hlatshwayo was
holding any notices in his hand, and denied
any knowledge of the
rescheduled hearing for later that day.
Suliman conceded that the amended notices did not specify the time
of the hearing. Some workers discarded the forms and these
were
collected after they had dispersed by security personnel. It was
suggested to Suliman under cross examination, that these
workers did
not know of the postponement, but she pointed out that the union
would not have written the letter (referred to below)
if they had
not known of the new date. Hlatshwayo agreed that not everyone
received revised notices of the hearing on 4 March
2009 and that
some were issued the following day only which would have been less
than the two days notice stipulated in disciplinary
code. However,
he later insisted that all employees who were required to attend
enquiries on 6 March did receive their notices
on 4 March. He also
agreed that some employees might not have heard their names called
out, but questioned why a number of the
employees refused to accept
notices of the enquiry. He also pointed out that the employees were
free to appeal if they said they
did not get notice of the enquiry.
Hlatshwayo also agreed that the hearings on 6 March were scheduled
after normal working hours.
At 13h45 on 6 March, when the first (postponed) hearing was due to
commence, nobody attended and Dzanibe conducted the hearing
in
absentia. He dismissed them for participating in unprotected
industrial action in accordance with the firm’s code of
conduct. Under cross-examination he said Hlatshwayo confirmed that
those employees who were supposed to attend had been given
notice of
the hearing. Dzanibe said Hlatshwayo had a bundle with him but did
not provide him with written proof the employees
had been notified
of the hearing. When referred to the handwritten note indicating the
new time of the hearing on the hearing
notices, he agreed that the
notification had been done ‘verbally’. He denied that it
was unfair to have relied on
this oral notification of the hearing.
He agreed that the hearing had been scheduled after the normal
knock-off time on a Friday,
namely 13h35.
Hlatshwayo, who testified as the complainant at the hearings,
confirmed that the hearings followed the sequence set out in the
blank pro-forma hearing minute. He testified on the events of the
previous day and how the workers who had not attended the launch
could be identified by the tickets picked up.
The hearing scheduled for 14h00 that day followed the same pattern.
Dzanibe conceded that he had been present at some of the
events on 3
March 2009, but insisted he was capable of not being biased and
would not agree that it might have been inappropriate
for him to act
as the chairperson of the enquiries.
Cilliers was not present at the boardroom where the above events
took place. There had been protest action at the plant and a
demand
for management to meet Mr Masemene of TAWUSA to discuss the short
pay received since December, which he was attending
to. This was not
disputed and lends credence to the claim that workers wanted to deal
with pay issues on the day of the launch.
Management sent
administration staff and to meet with Masemene. At the meeting he
was handed a letter and was told that the company
would not meet
with him under threat. The protesting workers left after this
meeting.
Hearings on 09 March 2009
Most of the remaining 70 or 80 employees with enquiries pending did
not present themselves for the hearings when they were scheduled
to
start at 07h30 hours on 09 March. Dzanibe also chaired those
hearings. Of those who did attend, some claimed to have been
intimidated and were given final warnings. Hearings proceeded in
absentia for those who did not attend and they were also dismissed.
He satisfied himself that the employees who attended had received an
amended notice of the hearing, by asking them if they had
received a
written notice of the hearing, which they confirmed. Hlatshwayo said
it took the whole day to finalise the outstanding
hearings on that
day, but later acknowledged that in fact hearings took place on 10,
11 and 12 March 2009 as well.
It was only at 10h00 on 9 March that TAWUSA sent a fax, which
stated:
"
Re: Disciplinary Hearing for Our Members
with
the above reference we are been instructed by members to request for
them to elect 10 members who will attend the hearing
on their behalf
as a
collective hearing
.
Written
warning issued We also request the memo delivered to our members
informing them not to participate in an unprotected strike
and how
you have addressed them as Management.
We
as the union of the accused would like to know how the strike action
affected the production of the employer whether schedule
8 to the
LRA was taken into account because we understand that there are
employees dismissed already in the company due to this
unprotected
strike action Tuesday the employees embarked on.
Remember
that the substantive fairness of such a dismissal of us depends on
all circumstances surrounding the strike and not merely
on the fact
that the strike is unprotected in terms of the LRA."
Apparently because the HR manager was attending the hearings which
were held elsewhere on the company premises she only received
this
letter at about 14:00. The pertinent portion of her reply stated:
Unfortunately the request to elect 10 representatives to
participate in the hearing on behalf of the accused employees cannot
be
granted. The company cannot agree to the employee not attending
his/her scheduled hearing. It is in the best interests of the
employee
to attend the scene given explanation for the alleged
misconduct. Every employee has a right to be represented by fellow
employee
at the hearing; this however does not mean that the employee
does not have too attend the hearing.
As to your question regarding how production was affected. You are
well aware that the plant is nonoperational at the moment, however
on
the date the protected industrial action took place; employees were
instructed to attend a company wellness initiative, which
they fail
to do. You are also reminded that even though the plant is
nonoperational at the moment employees are still receiving
their
salaries are required to report for work and on management
instructions in the normal course."
By that stage approximately 40 employees’ enquiries had been
processed. In response to the letter the company confirmed
that it
intended continuing with the hearings but gave the union an
opportunity to attend and represent them at the hearing.
Suliman
testified that she attended all of the enquiries.
From Bubisi’s perspective, workers were oblivious to these
developments and had not been notified of any hearings scheduled
for
9 March. It was only on 10 March that they were simply advised by
their foreman after lunch that they were dismissed and
should all
proceed to the Lost City boardroom, which they did. They were then
presented with their ‘charge form’
and notices of their
dismissal. He claimed to be still ignorant of the reason he was
dismissed. He could not offer any explanation
how TAWUSA could have
known of the dismissals on 9 March 2009 if workers were only told
the following day. Once again it was
suggested to him that it was
improbable, workers would simply accede to the instruction to
proceed to the board room without
querying how they came to be
dismissed. Bubisi said they did not ask, because he would simply
have said he did not know the reason
and would have referred them to
others. Bubisi could offer no explanation for the contents of the
letters of TAWUSA which showed
a much greater awareness of what was
happening to its members than he was prepared to admit to.
The appeals
According to Suliman all the dismissed employees appealed, but
TAWUSA made a written request for the appeal to be conducted
collectively which was sent to the company on the day the hearings
were due to take place. The union filed a collective appeal
form in
which the grounds of appeal were set out in the following terms:
"We were not informed about the hearing its date and time and
we were not engaged in strike. We only wanted to enquire why the
undergoing of HIV test is compulsory this year whereas the last
several years it was voluntary.”
Attached to this appeal form was a list of names next to 93 of which
were signatures. The company did not proceed with the appeal
hearings on that day in view of the letter but postponed them to 20
March 2012. Nonetheless, in keeping with its stance that
each
employee had to make an individual appeal it insisted that, appeal
forms should be filed for all the remaining individuals
as the
appeal form submitted only bore Mr J Mndebele’s name.
According to Suliman the reason for insisting on individual
appeal
forms was that the company was not satisfied on the basis of the
single appeal form submitted that all employees would
appeal on the
same grounds. The company also wanted an opportunity to question the
individual employees.
The union responded by implicitly confirming that all its members
adhered to the grounds of appeal set out in the single appeal
form
sent to the company. This time, the letter was addressed to Cilliers
in an apparent attempt to communicate directly with
senior
management and not through the HR manager. It stated in a letter
dated 17 March 2009:
“
We are being requested by our members to
respond to your memorandum above.
1. They all lodged an appeal which they are still waiting for a
set down date.
2. They are willing to voluntarily participate in the company
wellness campaign as it was the wish to really understand that
whether
the campaign was voluntary or compulsory as it was firstly
addressed to them.
See attached letters
3. We realised that the information brought by your line
management to the people is not what you told them to do especially
your
HR manager even wrote the letter to this office that they
instructed employees to attend the campaign because the company is
paying
them as the plant is not in operation. We request that you
intervene this matter urgently and respond to this office.
We request that you intervene to this matter urgently and respond
to this office"
On 27 March 2009, the company relented partially on its insistence
on individual hearings by offering to hear groups of five
individuals at a time in combined appeal hearings. On 30 March 2009
in a letter in reply from the union, apart from complaining
that
some of the names on the list sent by the company were not clear, it
said somewhat cryptically:
"we are being requested by the dismissed members to request
that if the company is willing to conduct the appeal hearing, then
they want to be represented by only 5 (five) elected employees to
attend to their appeal hearing and the rest of the employees
to wait
outside for the outcome in order for the appeal not to delay their
salaries which are still pending.”
It would seem from this reply that the union had not accepted the
compromise proposal of joint hearings of five appeals at a
time, but
had reduced its own demand for joint representation at a single
appeal hearing to only five representatives. The company
confirmed
in a letter on 2 April 2009 that this was its understanding of the
letter and that it could not agree to such a request.
It reiterated
that it wanted to make sure that the appeal hearings were conducted
in a fair manner and that the individuals be
present. It reiterated
its offer to hear the appeals in groups of five and undertook to pay
employee salaries on 3 April 2009
so that the appeal hearings would
not delay the payment of their salaries. Again the company
reiterated that, on receipt of acceptance
of its proposal, the
appeal hearings would be scheduled accordingly. Suliman was
challenged as to why the company did not proceed
to hear the appeals
because the workers had reported at the company premises, but she
said that because the union had not accepted
the proposal of hearing
5 appeals simultaneously, they could not proceed. Cilliers was of
the view that TAWUSA was attempting
to gain recognition through this
process as it had been refused recognition in view of the threshold
of membership in terms of
which the company recognised NUMSA.
Bubisi confirmed that the workers had been told by their leaders of
the date set for the appeal hearing but they waited in vain
at the
gate until 12h30 on the appointed day as management never attended
to them.
The sanction of dismissal and the validity of the 2007 final
written warning issued for participation in unprotected strike action
Suliman conceded that the normal period of validity for a warning
was six months, but she contended that it was still relevant
because
of the tendency of production employees to stop work if they could
not resolve their grievances. She also testified that
in the 2007
strike, employees had initially been dismissed for their
participation in unprotected strike action but subsequently
had been
reinstated in terms of an agreement with NUMSA, subject to a final
written warning being issued to them. Under cross-examination
Suliman agreed that there had been no previous strike relating to a
wellness campaign.
Suliman was also questioned about the fact that the strike did not
last for more than a day at most. Implicit in this question
was a
suggestion that dismissal had been too severe a penalty, but her
response was that the issue that was of concern was that
the strike
was ‘deliberate’. It was also pointed out that there was
no loss of production and there was no violence
accompanying the
strike, to which Suliman retorted that it was not the first time
that the workers had resorted to unprotected
strike action. The fact
that the warning had expired did not make a difference because there
was a trend in their conduct in
resorting to unprotected strike
action. Under re-examination, her attention was drawn to the records
of a couple of hearings
in which workers had complained of
intimidation and were not dismissed.
Later, when cross-examined by Mr Mogane for the non-union group, it
was put to her that in 2007, workers had not been paid when
they
went on strike yet on this occasion they were paid for 3 March 2009.
As to why the company had not adopted the same approach
of issuing a
final warning and docking workers’ pay, Suliman said that in
2007 that had been proposed by NUMSA, but on
this occasion no
similar proposal had been forthcoming from TAWUSA.
Dzanibe felt it was fair to have dismissed the employees even though
the strike endured only for a day, in the sense that they
attended
neither session of the launch, because it was clear that they would
have failed to attend the whole duration of the
launch even if it
had been longer. He also took account of the code of conduct, which
recommended dismissal for such misconduct,
and the tendency the
production workers had, of embarking on strike action. When it was
put to him that in 2007, some of those
dismissed had not been on
strike on that day, he said that he wanted to treat all of the
employees the same for not attending
the Wellness day event, and
would have dismissed all participants even if they had not
participated in action in 2007. He did
not respond when asked how
one could speak of a trend of participating in unprotected strike
action if someone had not participated
in the 2007 strike.
When asked why nothing was entered on the pro-forma minute of the
enquiry under ‘mitigating factors’ in respect of
workers
who did not attend the hearing, Dzanibe explained that because they
were not present, no mitigating evidence was given,
but they still
had the opportunity to appeal. However, he denied that he had not
considered the duration of the action, the absence
of violence, or
that productivity was not affected, or deducting pay for the day as
an alternative sanction.
The first question that needs to be resolved is whether or not the
conduct of the applicants on 3 March 2009 amounted to a strike?
The
starting point for determining the factual issue is the definition
of a strike in s 213 of the Labour Relations Act, 66 of
1995 (‘the
LRA’). A strike is defined in the following terms:
“
strike”
means
the partial or complete concerted refusal to work, or the retardation
or obstruction of work, by persons who are or have been
employed by
the same employer or by different employers, for the purpose of
remedying a grievance or resolving a dispute in respect
of any matter
of mutual interest between employer and employee, and every reference
to “work” in this definition includes
overtime work,
whether it is voluntary or compulsory;...
Two of the key requirements therefore are firstly whether the
employees refused to work, obstructed work taking place or slowed
the pace of work down and, secondly, was there some demand they were
pursuing in doing so.
1
In this instance, the applicants admit they did not attend the
launch, but argue that attending the launch did not amount to
work
and that they were performing productive work in the form of hand
recovery anyway. On the question of pursuing any demand,
they say
the only reason they did not attend was that they wanted clarity on
the requirement of compulsory testing before they
attended and since
they did not get any clarity from Cilliers, they returned to work.
Both claims are disputed by the employer,
who argues that attending
the launch did amount to work on that day and that the workers had
used the only opportunity when they
could pressurise the employer by
not co-operating with it, to raise their unresolved pay grievances.
Further, it disputes that
they were performing other productive
activities in any event.
The nature of work
Previous debates about the scope of work were primarily concerned
with whether the work which employees would not perform was
contractual or otherwise. It has been accepted that under the
current definition of a strike voluntary overtime work which an
employee is not contractually required to perform can be regarded as
work, the interruption of which would satisfy the act or
omission
part of the definition. However, in the present matter the issue
does not concern non-contractual obligations and the
characterisation of Smalburger, JA in
SA
Breweries Ltd v Food & Allied Workers Union & others
(1989) 10 ILJ 844 (A)
is apposite, viz:
“
'It would seem that the word "work"
in the phrases "to continue to work" and "to resume
their work"
encompasses , broadly speaking, that which a
particular employee factually engages in within the ambit of what are
considered to
be his normal employment duties.” .
Allowing for differences in phrasing between the strike definition
in the former LRA and the current one, it seems it would be
safe to
say that activities falling within an employee’s normal
employment duties would constitute ‘work’ for
the
purposes of the strike definition. Those normal duties would include
in my view the duty on an employee to obey the reasonable
and lawful
instructions of the employer. In this regard the following dictum
cited with approval by Basson (AM) and Hartdegen
(AM), from
Laws
v London Chronicle (Indicator Newspapers) Ltd
[1959]
2 All ER 285
at 287F remains true, despite its archaic terminology
:
'It is, no doubt, therefore, generally
true that wilful disobedience of an order will justify summary
dismissal, since wilful disobedience
of a lawful and reasonable order
shows a disregard - a complete disregard - of a condition essential
to the contract of service,
namely, the condition that the servant
must obey the proper orders of the master and that, I unless he does
so, the relationship
is, so to speak, struck at fundamentally.
'
2
In this case there is little doubt and it is common cause that the
applicants did not heed an instruction by Cilliers to attend
the
launch. It was also not seriously contended that they did not remain
on the grass for the duration of the morning session
of the launch.
Assuming for the moment that the instruction was merely that they
must attend the launch function and not that
they had to subject
themselves to involuntary medical testing, there was nothing
unlawful or unreasonable about the instruction.
However, the applicants say they were performing their normal
duties. In particular they say they were performing productive
hand
recovery work. There are a number of problems with the ‘hand
recovery’ allegation. Firstly, it was common cause
there was
no furnace operating since the previous year. Secondly, the evidence
that normally spillages could be recovered within
a few days after
they occurred. Thirdly, it was common cause that until production
was discontinued in 2008, outside recovery
work was done by
contractors. It was precisely because the need for this function
disappeared once the furnaces were switched
off that they were no
longer required. Fourthly, the applicants did not put Bubisi and
Zwane’s version of supervised hand
recovery to the company
witnesses, so the latter did not have an opportunity to contradict
that evidence when they gave evidence.
As a result the weight I can
attach to the applicant’s versions is difficult to assess and
I must give more weight to Majombosi’s
evidence that he
supervised their work and checked what was done at the end of the
day. There is also a significant weakness
in the explanation that
hand recovery was still being performed as late as March 2009. Added
to this is Bubisi’s explanation
that he was not personally
recording figures for the weight of slag recovered even though he
had supposedly been given the task
of supervising the outside
recovery, as Majombosi should have been doing that, but he was not
present.
If it had been the case that, then, there would have been a backlog
of nearly six weeks’ worth of unrecovered steel, because
no
new production had taken place from 18 January to 3 March 2009. This
must be weighed with the evidence that it normally took
three days
for the spillage to cool sufficiently before outside recovery could
start, but once it cooled the recovery would take
a day.
The next question is whether the applicants did not comply with the
instruction for the purpose of pursuing some grievance or
demand.
The employer contends they were refusing to attend the launch until
their pay grievances were addressed, whereas they
say it was lack of
clarity about the launch which prompted their reluctance to go to
the tent.
In my view, the relative probabilities of these two competing
versions are sufficient to decide the matter, without having to
make
individual credibility findings.
Firstly, on the applicants’ version, if it was correct, it
would mean that the company had changed its previous policy
of
voluntary testing, for no obvious reason. There was no evidence for
this other than what Bubisi and Zwane claim Molefe told
them. Bubisi
also testified that he wanted to go to the launch but because
management had not explained why testing was now compulsory
he
waited on the grass with the others. However, although the whole
group did not go in for that reason, not one of them was
willing to
ask Cilliers to clarify the issue when he came to address them, even
though they had supposedly been waiting over
three weeks since 11
February for an answer from senior management. The fact that they
acted as a group is difficult to reconcile
with their unwillingness
to even voice the concern that caused them all not to go to the
launch, bearing in mind that they had
told Molefe to call senior
management to explain why testing was compulsory. Bubisi said this
was because Cilliers was angry
when he approached them. However, if
they were intimidated by his anger, then it is odd they did not obey
him when he made it
clear they must go to the tent.
Secondly, there was no evidence that testing was conducted on the
same day as the launch, contrary to what the applicants claim
they
were told. In fact the evidence was that it was nearly a week later
that testing facilities were available and also that
inducements
were offered to encourage employees to undergo testing, such as
conducting it in a way that would preserve the anonymity
of those
who decided to undergo testing and providing a cash incentive. It is
hard to reconcile such undisputed features of the
scheme with an
allegation that testing was to be compulsory. Moreover, since
testing was not conducted on 3 March 2009, it raises
the question
why Molefe, who was steeped in the wellness campaign, would have
misleadingly said it was going to take place on
the same day.
Likewise, if the testing was in fact voluntary when it was
conducted, why would Molefe have said it would not be?
Thirdly, if workers were keen to go to the launch, but for the
queries they wanted answered, why did they never raise it in any
toolbox meeting between 11 February and the day of the launch if it
was a matter of such concern? Further, if, as Bubisi conceded,
he
knew that management could not force people to undergo testing, why
did he and those who shared that view not go to the launch
to get
the information they wanted to receive, but refuse any attempt to
force them to undergo testing?
Lastly, if the toolbox meeting on 11 February 2009 ended in
confusion, it is improbable, given his responsibility for the
success
of the wellness campaign, that Molefe would not have been
keen to sort this out long before the day of the launch.
In short, it seems unlikely that Molefe would have made such a
misleading statement about the testing and launch being on the
same
day, when there was nothing to support that this was indeed the
case, and he ought to have known that. Secondly, the notion
that
compulsory testing was part of the 2009 programme is at odds with
the evidence about how testing was actually conducted,
which makes
it very unlikely that it was intended to be compulsory, and that
Molefe would have said it was.
Is the respondent’s version of the reason for boycotting the
launch more plausible? It is not disputed that employees lost
a
number of allowances and overtime pay as a result of the cessation
of normal production in December 2008. We also know that
a special
arrangement was made to offset additional annual leave granted at
the end of 2008 against employees’ 2009 annual
leave. All the
queries which Suliman says were raised in the meeting of 26 February
concerned remuneration issues linked to the
consequences of the
cutback. Thus the financial impact of the loss of all the previous
allowances is consistent with an account
that these issues were
raised on behalf of employees. This meeting was also much closer to
the launch of the Wellness Campaign
than the toolbox meeting on 11
February 2009. This also supports an inference that it was an issue
that was currently in the
minds of those who raised it. There is
also the evidence that Bubisi was identified as one of the
spokespersons, whereas other
known leaders of TAWUSA members were
not identified. Had the respondents’ witnesses fabricated the
event, it seems unlikely
they would have identified someone like
Bubisi as a participant and spokesperson.
On balance, I am persuaded that the probabilities favour the
employer’s version as to why the applicants did not attend
the
wellness campaign launch, and that the real reason was that the
applicants wanted to pursue their pay issues and force management
to
address them. It is true that they never produced a list of
‘individual pay’ queries as requested, but that does
not
mean there was not a grievance they were seeking to remedy and it
must be remembered that all other queries were addressed
at the
meeting in February and it was only the unspecified ‘individual’
pay queries which remained to be addressed.
The reason they chose
that day to highlight the issue, was that the wellness campaign
launch was an important event for the company
and provided an
opportunity to put pressure on it in a way that was not possible,
given the other daily housekeeping duties the
production workers had
at the time.
Consequently, I am satisfied the applicants were engaged in strike
action. It was common cause that if their conduct was characterised
as strike action, it would be unprotected, so the next issue that
arises is the substantive and procedural fairness of their
dismissals.
Substantive and procedural fairness
In the case of unprotected strikes, guidance on the fairness of a
dismissal is provided by Item 6 of Schedule 8 of the LRA. It
states:
“
(1) Participation in a strike that does
not comply with the provisions of Chapter IV is misconduct. However,
like any other act
of misconduct, it does not always deserve
dismissal. The substantive fairness of dismissal in these
circumstances must be determined
in the light of the facts of the
case, including—
(a)
the seriousness of the contravention of this Act;
(b)
attempts made to comply with this Act; and
(c)
whether or not the strike was in response to unjustified conduct
by the employer.
(2)
Prior to dismissal the employer should, at the earliest
opportunity, contact a trade union official to discuss the course of
action
it intends to adopt. The employer should issue an ultimatum in
clear and unambiguous terms that should state what is required of
the
employees and what sanction will be imposed if they do not comply
with the ultimatum. The employees should be allowed sufficient
time
to reflect on the ultimatum and respond to it, either by complying
with it or rejecting it. If the employer cannot reasonably
be
expected to extend these steps to the employees in question, the
employer may dispense with them.”
Some features of this strike which makes it different from the
typical strike scenario. Thus, its length was effectively determined
by the fact that the action consisted of a boycott of the launch and
hence was limited by the duration of the launch which was
over in a
day. It is clear from the notice of the charges that the fact that
none of them took advantage of the second opportunity
to attend the
launch in the afternoon was seen as a continuation of the strike in
the morning. Further, its impact was not economic
but was designed
to ensure that the planned activities of the company that day would
not proceed as intended. The importance
of the launch to the company
should not be trivialised. It was part of a significant company-wide
health initiative that was
an attempt to remedy what were perceived
to be the shortcomings of the previous campaign. It also represented
an investment by
the company in the well being of its workforce,
which it was retaining in circumstances where many other empoloyers
would have
retrenched. By boycotting it, the value of the launch as
a component of the campaign was clearly compromised. It was clear
from
the design of the program that it was hoped that using a launch
as a component of the wellness programme would significantly
increase the prospect of employees opting to subject themselves to
testing, so it had an important purpose in the context of the
health
initiative.
It is true that an ultimatum in the conventional sense was not
issued. However, it was not suggested by either of the applicant’s
witnesses that they were baffled by what Cilliers meant when he told
them if they did not go to the tent then ‘separation’
would be discussed. Secondly, Bubisi did concede that the workers
went to the canteen and only claims they returned to their
workstations after lunch. Given the importance of getting workers to
attend the launch, it is more probable in my view that management
would have tried to persuade them to attend the afternoon session,
before it started. In a conventional strike, more time might
be
allowed to let employees reflect on matters, but the opportunity to
attend the launch was slipping away and would not have
been
available the following day. Having been warned to attend by
Cilliers earlier that morning and having been afforded another
opportunity at lunch time to reconsider their stance, I believe
workers had sufficient time to re-consider their position between
Cilliers speaking to them in the morning and the afternoon session
of the launch.
The strike was not spontaneous, but was clearly timed to occur at
the point that would create maximum pressure on the company
in the
context of a plant that was not engaged in productive work. Likewise
it could not be characterised as one that management
provoked given
the nature of the demand. Management has asked the shopfloor
delegation to gather the details of the alleged individual
pay
queries and submit them to management. They never did this after the
meeting in February. The next time the issue was raised
was in the
strike. Thus, it could not be said to be a result of management
intransigence or heel-dragging which caused the workers’
frustration to build up and boil over.
It is true that some reliance was placed by the chairperson on the
alleged ‘tendency’ of the production workers to
strike
and on the fact that many of them had been issued with final written
warnings in the previous unprotected strike in 2007,
which had
already expired. To the extent that reliance might have been placed
on a tendency that was not substantiated, or on
the previous
warning, that could not have been legitimately taken into account as
an aggravating factor. Therefore a question
is whether the
dismissals were fair if this consideration is ignored.
It is not disputed that the employer did contact the union, though
it could have done more than send a letter. However, given
the union
having been content to draw its own conclusion about the existence
of a strike and decided not to intervene or to contact
management,
it cannot be said that management should have done more on the day.
Before finalising the consideration of the substantive fairness of
the dissmissals, it is necessary to address the question of
procedural unfairness because the applicants conduct in relation to
the hearings also has a bearing on the issue of substantive
fairness, though not in the sense that they committed any further
misconduct.
Although there was much controversy over whether employees got
written notice of the enquiry scheduled to start at 07h30 on 6
March
2009, it was common cause that they all reported at the board room
that morning, which means they came to know about the
hearing.
Further, the applicants could not dispute Hlatshwayo’s
testimony that he drew up the notices containing the charges
and
Majombosi’s evidence that he handed notices to all A-shift
employees was not disputed which increases the probability
that it
was done.
It was argued that in terms of the company code workers should have
got two day’s notice of the hearing and its stands
to reason
that if they only learnt of the hearing on the morning of 6 March
2009, the notice was formally defective. However,
it was not part of
the applicants’ pleaded cases that their dismissal was
procedurally unfair for this reason and it was
never claimed that
they needed more time to prepare for the hearing. The claim was
rather that they were not notified of the
hearing, yet TAWUSA
conceded in its statement of claim that some employees were served
with notices to attend the hearing on
that day. Likewise the
non-union group’s pleadings also stated they received notices,
though only on 5 March.
On the applicants’ version they were simply dispersed without
being advised of any subsequent disciplinary proceedings
that day.
Thus although they had been told they had to attend a disciplinary
hearing about their non-attendance at the launch,
they assumed that
management had simply decided not to proceed. Although Bubisi
testified to this, what could not be explained
was how the union had
knowledge of dismissals already by 9 March 2012 as evidenced by its
letter of that date. It seems more
likely that in fact the workers
did know of the hearings on 6 March 2012 if the union already knew
by the next working day after
the hearings scheduled for Friday, 6
March. In any event they were still afforded an opportunity to
appeal.
A factor which bedevilled both the hearings and the appeal hearings
was how they would be conducted. It is undisputed that the
union
sought a single disciplinary hearing on behalf of members and
adopted a similar approach to the appeal hearings. This strongly
supports the company’s version that, workers did not want to
attend smaller hearings comprising ten employees at a time.
I am
therefore more willing to accept that this was the main reason the
hearings could not start at 07h30 on 6 March. The company
was
offering a comprehensive and inclusive hearing and appeal process to
employees, but they decided to make an issue of this
in order to
reinforce their ability to act collectively.
If they did not attend either type of hearing, and consequently did
not get an earlier opportunity to put to management the arguments
they have now raised in court as to why they should not have been
dismissed, they were the cause of that. I am satisfied that
the
company gave them more than a fair opportunity to present their side
of the story but they rejected it. In the circumstances,
I cannot
find that their dismissals were procedurally unfair.
This brings me back to the substantive fairness of the dismissals. I
agree that it would be wrong to dismiss employees for conduct
for
which they were not charged.
3
However, in my view it does not assist the applicants that they have
never took advantage of the opportunities offered to clarify
their
alleged understanding of the Wellness Campaign, and have waited
until this trial to do so.
Conclusion
I am satisfied the employees were fairly dismissed for
participating in unprotected strike action on 3 March 2009 and
their
dismissal was procedurally fair for the reasons above.
As the applicants might have genuinely believed they had good
prospects because of their conception of what constituted strike
action, irrespective of their conduct, I make no award of costs.
Order
In the circumstances, the applicants’ claim of substantively
and procedurally unfair dismissal is dismissed and no order
is made
as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANTS: S S Morwane for TAWUSA and the 2
nd
to 51
st
Applicants
C Mogane of Mohlaba & Moshoana Attorneys for the 52
nd
to 106
th
Applicants.
FIRST RESPONDENT: D Masher of Bell Dewar Inc.
1
In
National Union of Mineworkers obo Employees v CCMA &
others
(2011) 32
ILJ
2104 (LAC)
,
the LAC in more abstract terms expressed the requirements
of a strike thus, at 2108,[15]: “A strike, as defined,
has
three key characteristics:
1 there
must be a requisite act or omission;
2 it
must be concerted; and
3 it
must be directed at the achievement of a specified purpose.”
2
Commercial
Catering & Allied Workers Union of SA & another v Wooltru
Ltd t/a Woolworths (Randburg)
(1989) 10
ILJ
311 (IC)
at 313G-I
3
See
Flex-O-Thene Plastics (Pty) Ltd v Chemical Workers
Industrial Union
(1999) 20
ILJ
1028
(LAC)
at 1031, [11] and [12].
i
As
varied on 21/08/2012 and 27/08/12