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[2012] ZALCJHB 112
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Motor Transport Workers Union obo Sehularo and Others v G4 Cash Services (Pty) Ltd (JS1108/09) [2012] ZALCJHB 112; (2013) 34 ILJ 1221 (LC) (12 October 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
judgment
case
no: JS
1108/09
In the matter between:
MOTOR TRANSPORT WORKERS’ UNION OBO DAVID SEHULARO &
56 OTHERS
Applicants
and
G4 CASH SERVICES (pTY) LTD
Respondent
Heard
:
29, 30, 31 August and 1, 2 September 2011
Delivered: 12 October 2012
Summary:
Dismissal for unprotected strike – although
of short duration in the circumstances of respondent’s business
of cash-in-transit
dismissals procedurally and substantively fair.
JUDGMENT
BHOOLA J
Introduction
Thisis a claim for relief arising from the alleged procedural and
substantive unfairness of the dismissal of the applicants for
embarking on an unprotected strike.
Background facts
The individual applicants (‘the employees”) are members
of the Motor Transport Workers Union (“the union”)
and
were employed at the respondent’s largest branch in Gauteng,
the Cleveland branch.
The respondent conducts business as a cash-in transit company for
large corporate clients, including banks and petrol stations.Its
operations involve collection and distribution of large sums of
money (of between 20 to 50 million per day) and are subject to
substantial risks including violent robberies. Its clients require
high service levels and regular and consistent collection
of cash
and valuables and time is of the essence in its operations. Given
this operating context the respondent requires a high
level of trust
from its employees.
Following a notice issued on 16 January 2009, the union intended to
embark on a national strikefrom 19 January 2009. The proposed
strike
wasthe subject of an urgent interdict granted by this Court on
Saturday 17 January and on 20 January 2009, a final order
was
granted declaring the strike unprotected and interdicting the union
from encouraging or inciting employees to participate
in it.
It is common cause that on the morning of Tuesday 20 January
2009,the applicants embarked on anunprotected strike. It is further
common cause that the respondent issued at least one ultimatum at
8:00, and it is the respondent’s version that a second
ultimatum was issued at 8:30 and expired at 9:00. At about 9:45,the
applicants were suspended pending a disciplinary enquiry
for their
failure to comply with the second ultimatum.A disciplinary hearing
was held over a number of days and was chaired by
an independent
chairperson who is a member of the Johannesburg Bar. On 4 February
2009 the chairperson handed down a finding
recommendingdismissal of
the applicants and providing detailed reasons for this
recommendation. This sanction was confirmed on
appeal, with the
appeal conducted by a senior labour attorney.
Procedural and substantive unfairness
The applicants allege that their dismissals were procedurally unfair
in that they were not afforded the opportunity to state
their case
at the disciplinary enquiry.
In the pre-trial minute, the applicants amplified the basis for
their claim by alleging that:
the procedure in the disciplinary enquiry was not followed;
the respondent did not contact the union to inform it of the work
stoppage and no second ultimatum was issued;
the union defused the dispute but the suspensions had already been
effected;
no notice of the disciplinary hearing was issued;
there was inconsistency in discipline in that other employees were
not dismissed for embarking upon unprotected strikes.
The applicants accordingly seek an order declaring their dismissals
procedurally and substantively unfair and seek reinstatement,
alternatively compensation.
The respondent’s version
Carl Delport was the Operations Manager at the Cleveland branch and
testified about the time-critical operations of the respondent
and
that it was a common provision of service contracts with corporate
clients for the respondent to be liable for financial
levies where
services were not timeously rendered. On 20 January 2009,he reported
for work at the branch at 06:00 and noticed
that instead of
preparing for work the employees were meeting in the recreation
room. He assumed their conduct had to do with
the strike interdict
granted over the weekend. Jiggs De Wet, the Branch Manager, arrived
at about 07:00 and Delport briefed him
of the situation. De Wet
asked him to fetch David Sehularo, the shop steward. He went to the
recreation room where the employees
were toyi-toying but they
ignored him when he tried to communicate with them. Sehularo
insisted that if De Wet wanted to see
him he should come there and
Delport then returned to the office to fetch De Wet. They were
however unable to communicate with
the employees on account of the
noise. De Wet returned to the office and contacted head office who
instructed him to issue an
ultimatum. He issued the first ultimatum
at 8:00 by handing it to Sehularo and the latter read it out to the
employees. It required
the employees to return to work by 8:30 but
they failed to comply. De Wet contacted head office when the
ultimatum expired and
he was instructed to issue a second ultimatum
requiring a return to work by 09:00.
Just after 8:30 union officials Junior Gys and Raquel Saunders
arrived and after seeking permission to meet with employees, held
a
short meeting with them. The second ultimatum was handed to Saunders
while the officials went to address the employees. Thereafter,
accompanied by Sehularo, they came to the office to meet with him
and De Wet. Delport stated that the demand expressed by Sehularo
during the meeting was that “no employee will go back to work
until the alleged employees that were taken by the SAPS had
returned
and are at the branch”. Delport confirmed that De Wet informed
the union on a few occasions during the meeting
that the second
ultimatum
was about to expire and that he
would attend to their problems and the issues related to the strike
once all the employees had
returned to work. They could then “sit
down and discuss the issues and ….[he] will see what he can
do for them with
regards to their issues”. He was willing to
appoint a task team, including Charles Landman, the respondent’s
head
of security, to investigate their concerns. The union
representatives then left to discuss the issue with the employees
and only
indicated at about 9:40 or 9:45 that the employees were
prepared to resume their duties. De Wet’s response was that
the
ultimatum had already expired and that all employees had been
suspended. Delport testified that the employees did not seem to
genuinely want to return to work, they had handed in their firearms
earlier, as reflected in the kit register, and even once they
indicated they were returning to work they seemed to be on a go
slow. He issued each of them with suspension notices, which they
signed for, as they left the premises. He testified that the
employees who were allegedly tortured had been taken for questioning
by the South African Police Services (“SAPS”) as part of
an investigation into a R6,5million loss sustained by Capitec,
a
client of the respondent’s. It was put to him in
cross-examination that there had been over 10 to 15 previous strikes
where no dismissals had followed a failure to comply with an
ultimatum and he indicated that the decisions were taken by head
office and each situation was determined on its own particular
facts.
Richard Manthey, the industrial relations advisor to the respondent
confirmed that the practice of embarking upon unprocedural
strikes
early in the mornings began in about 2007. These were massively
disruptive and had a significant financial impact on
the respondent.
The management team believed that this was part of a deliberate
strategy on the part of the union. In 2008 about
40 employees were
dismissed by the respondent following an unprocedural strike at the
Silverton branch in which a demand was
made for a manager’s
dismissal. The ultimatum issued also had a duration of 30 minutes.
Manthey explained that it was necessary
to issue ultimatums of such
short duration due to the time critical nature of the respondent’s
business and the union was
fully aware of this. In relation to the
incident at Crown Mines where employees had not been dismissed
despite unprotected strike
action, Manthey testified that the
applicant union was not involved and another union at the branch had
assisted with bringing
the strike to an end resulting in employees
complying with an ultimatum 10 minutes before it expired. The
apparent difference
in treatment had been discussed with the union,
and management had also informed Beverley Fourie, a senior union
official, that
they were no longer prepared to accept the disruptive
effects of the early morning unprocedural strikes. Insofar as the
pleadings
set out 13 strikes cited as evidence of inconsistency,
Manthey testified that each strike had its own dynamics and no two
strikes
were the same and that it followed that employees involved
could not be subjected to identical treatment. In this regard, he
cited the 20 November 2008 strike where employees at 28 of the
respondent’s 37 branches embarked on an unprotected strike
but
complied with a final ultimatum and returned to work about five or
10 minutes before it expired. He indicated that the union
seemed to
be intent on undermining the Labour Relations Act 66 of 1995 (“the
Act”) by manipulating its procedures.
Their conduct also made
it clear that they understood the meaning and effect of an
ultimatum. The 2008 strike resulted in the
respondent losing a major
corporate client and as a result the respondent had to set clear
boundaries as to conduct that would
not be tolerated so as to
prevent the demise of its business and reputation.
Francois Van Wyk was previously employed as an investigator by the
respondent and is currently an investigator for Coin Security.
He
testified that he was asked to investigate the loss suffered by
Capitec which appeared to have occurred at the Cleveland branch.
An
investigation was being conducted by the Germiston branch of the
Serious Organized Crime Unit (“SOCS”). He denied
that he
had kidnapped any employee as was alleged in the Sowetan article
quoting S M Kunene, one of the employees allegedly abducted
and
tortured by police. He testified that he had consulted with the
police in their investigation and had been requested to arrange
for
certain employees to be interviewed. He spoke to the employees at
the Cleveland branch and informed them that the police
wanted to
take statements from them. The employees accompanied him voluntarily
in preference to being picked up by the police.
He took two
employees to SOCS on Friday 16 January and three on Monday 19
January. He was not involved in the investigation other
than to
deliver the employees for questioningand testified that had he
interfered with the police investigation he could have
been
arrested. He indicated that the criminal matter arising from the
Capitec theft was still pending.
Michael Eva, the former Branch Manager of the Cleveland branch
confirmed that the branch transported cash of between 20 and 50
million per day on behalf of clients. The forensic department of the
respondent was responsible for investigating shortages and
inconsistencies, which often occurred. He confirmed that the Capitec
contract was cancelled as a result of cash losses and unrest
experienced by the respondent and that it had to credit another
client (Metrorail) with R39270.00 as a result of an illegal strike
which led to its failure to meet contractual obligations. He
confirmed that there were regular meetings with shop stewards in
this regard and that there were structures in place at the branch to
deal with such issues. He was not in the employ of the respondent
when the strike occurred.
Johannes Wessels is no longer employed by the respondent and was
Financial Director of the respondent when the strike took place.
He
was at head office on the day and shortly before 8:00 he received
information that the vehicles at the Cleveland branch had
not left
for the day and that the branch manager had issued an ultimatum to
employees to return to work by 08:30 and following
this a second
ultimatum was issued at 8:30 requiring a return to work by 9:00.
When they failed to comply with the second ultimatum
De Wet
telephoned the head office and was instructed by Jack Rhode, the
then Operations Director, to suspend all employees pending
the
outcome of a disciplinary inquiry.
He testified
that this approach was motivated by concerns about the “ongoing
problem that we had that occasionally they
would go on strikes, most
of the time as I can recollect, they met the ultimatums and they
went back to the vehicles…we
were under a fair amount of
pressure from our clients, because service delivery did not take
place and we were under threat to
lose some of our key clients, and
we had then decided that we had to take the action as prescribed,
that we normally do and we
have acted accordingly.” The
respondent decided to take a firm approach in respect of continuing
unprotected strike action.
The applicants’ version
Sehularo, a union shop steward, testified that he had called a
meeting for Tuesday 20 January 2009 in order to inform members
about
the interdict issued on the weekend in respect of the national
strike. He had not been advised of the interdict by his
union but
had received a copy of the interdict from management the previous
afternoon, following which he sent a radio communication
to members
advising them that the strike scheduled for 20 January had been
called off.He arrived at the branch at 7:00 and after
collecting his
firearms from the armoury went to the recreation room for the
meeting.The first ultimatum was issued at 8:00 by
being handed to
him. It recorded that “[a]ny employee involved in this
unprocedural and unprotected industrial action and
failing to report
for duty by 08h30 will be subject to disciplinary action, which may
result in their dismissal. Any employee
wishing to make
representations prior to the expiry of this ultimatum may do so by
contacting Carl Delport/Jiggs De Wet.”
He confirmed that no
representations were made.
As they were concluding the meeting, Nkosinathi Sithole, a fellow
employee arrived and reported that he and two other colleagues
(Messrs Sithebe and Kunene) had been arrested the previous day and
taken by Van Wyk for questioning by police about missing money.
Sithole also alleged that the two colleagues had been tortured and
that the police had a list of other employees they intended
to
question.The employees were anxious and fearful and refused to
return to work until their whereabouts were ascertained. Sehularo
advised them (between 8:00 and 8:30) that the respondent would
consider their conduct an illegal strike and that they should
hand
back their firearms. He then contacted the union to
requestassistance. When Gys and Saundersarrived he accompanied them
to a meeting with management to discuss the situation.
He testified that when Gys arrived the applicants were furious and
could not communicate with Gys so he then briefed him. They
proceeded inside the office to meet with Delportand De Wet. De Wet
denied knowledge of any torture but agreed that he would approach
Charles Landman, the head of security for assistance with locating
the missing employees and proposed that they should accompany
him
and Landman.They then returned to inform the employees of De Wet’s
proposal and eventually managed to persuade them
to return to work.
They met De Wet and informed him that the situation had been
resolved and everyone was preparing to return
to work. De Wet
informed them that it was too late as the ultimatum had already
expired and theemployees were suspended in accordance
with
instructions from the respondent’s head office. This occurred
at about 9:45.
Sehularo testified that he thought De Wet was referring to the first
ultimatum because he had not seen a second ultimatum. He
conceded
that De Wet kept reminding them about the time but he did not
realise this was a reference to the second ultimatum.
He testified
that he had heard about the second ultimatum and in
cross-examination said no second ultimatum had been issued “to
him”. Despite this he continued to make constant reference
during cross-examination to “the ultimatum that expired
at
9:00” and when it was put to him that his version was
contradictory he was unable to explain.
Sehularo admitted that the procedure was for 24 hours’ notice
to be given of any meeting and the union had not complied
with this.
He said that “…
.it was beyond my
power on that day as the peoples (sic) life were (sic) in danger
because of the list which was also mentioned
by Mr Sithole on his
arrival.” In his view,
the
applicants
had no alternative but to stop work and demand the
return of their colleagues, whoin their view had been arrested
ostensibly at
the request of the respondent, and where it seemed
other arrests might be imminent.Sehularo admitted that he had known
about
employees being taken to the police for questioning that
Friday and was unable to explain why the union had done nothing at
the
time. He conceded however that theconcern of the applicants was
more about the fact that their colleagues had not reported for
work
that day than about their arrest.
It was Sehularo’s testimony that the first time the concern
about the missing colleagues was communicated to De Wet was
in the
meeting with the union. Prior thereto when they tried to explain De
Wetwould not listen to them. Incross-examination,
he denied that he
had refused to go and meet with De Wet when he was summoned by
Delport. He also insisted that they had conveyed
their concerns to
De Wet and Delport in the recreation room. This contradicted his
evidence in chief and he was unable to explain
this when it was put
to him in cross-examination. He added that when De Wet was told of
the torture concerns in the meeting with
the union he said he did
not care and that the respondent was losing money and they should
return to work. His evidence also
contradicted the evidence of
Delport that there was noise and toyi-toying and he was not able to
communicate with Sehularo or
the employees and wasignored.It also
contradicts hisown admission that Delport was “booed”although
he offered the
explanation that this was because he was smoking in
the recreation room which was not permitted.
In cross-examination, he denied that the demand of the applicants
conveyed to management in the meeting with the union was that
they
would not return to work until the missing employees had returned.
He insisted that the demand was for the missing colleagues
to be
charged before the expiry of 48 hours. When it was put to him that
this implied that they would continue to strike until
the following
day which was when the 48 hours would end he became evasive.
In regard to procedural fairness,
Sehularo
admitted that the applicants had been suspended pending the outcome
of a disciplinary hearing; that they had received
prior notice of
the disciplinary hearing that ran for almost five days; that they
were represented by Fourie, who was a senior
union official; and
that they had sufficient time to prepare for the hearing and to
present their case and to cross-examine witnesses.
Nkosinathi Sitholetestified that on 19 January 2009,he was requested
by Delport to accompany Van Wyk to the police and he agreed
to do so
because he respected Delport.Kunene was already in the reception
area of the office he was taken to and Sithebe later
emerged from
another office and was very upset. Kunene was taken into another
office for questioning about the R13 million stolen
from Capitec. He
heard Kunene crying and assumed he was being tortured. He was then
questioned by two detectives about the missing
money. The three of
them were then driven away and he was dropped off near his home.
When he got to work on 20 January 2009 there
was a meeting in
progress in the recreation room and when it concluded he asked
Sehularo if he could address the workers and
then related the
incident to them. Sithole confirmed that Sehularo had read aloud a
documenthanded to him by Delportwhich required
them to return to
work and said that the employees did not return because they had
questions which needed to be answered by management.
Sehularo then
contacted the union and when Gys arrived Sehularo explained the
situation to him and they left to speak with management.
Sithole
accompanied them. He confirmed that he heard De Wet repeating that
time was up but he did not know that this related
to the second
ultimatum. His version, in contradiction to that of Sehularo, was
that the concern of the applicants was solely
to establish the
whereabouts of their colleagues, although he knew they were in the
vehicle when he was dropped off near his
home.
Sibusiso Kunene testified that he was instructed by Delport to
accompany Van Wyk for questioning by detectives at a civilian
office. He was subjected to extensive torture whilst being
questioned about missing money and when he was released he reported
his experience to the Sowetan newspaper which published his
allegations. He was of the view that the respondent was responsible
for the torture although it was apparent from his cross-examination
(much of which was based on extracting concessions with a
view to
criminal proceedings and was irrelevant) that he knew he was being
questioned by police.
Junior Gys could not recall the exact time of his arrival at the
respondent but said that it was before 9:00 and said in
cross-examination
it could have been 8:45. He spoke to De Wet
outside the premises to request access then proceeded to the
recreation room. Sehularo
explained to him that employees had been
taken and tortured and the family of one employee could not locate
him. Gys then indicated
that he would meet with management to
discuss the situation. Sehularo told him management had refused to
engage with themto resolve
the problem. He then proceeded to De
Wet’s office accompanied by Sehularo, Sithole and Saunders.He
conveyed the concerns
about the missing employee to De Wet who
indicated that the employees were probably arrested in an
investigation into missing
money being conducted by police. Gys’s
version was that he made the proposal to De Wet that they should
search for the
missing employees and this was agreed to but De Wet
reneged on this agreement by suspending the employees when they were
about
to return to work.
Gys testified that when he returned to inform De Wet that the
employees were ready to resume work, the latter said he would
contact head office but then informed him that the decision to
suspend the applicants had already been made.He denied that he
had
testified in the disciplinary enquiry that he only became aware of
the second ultimatum when he received it from Saunders.He
confirmed
that he had never received the second ultimatum and that the
evidence at the enquiry was that Saunders had signed the
suspension
notice.
Gys further denied that the statement of case correctly reflected
the events when it stated “De Wet kept on telling them
to
check the time in terms of the second ultimatum that had been issued
that was due to expire at 09:00”.In this regard
his evidence
contradicted that of Sehularo and Sithole that De Wet repeatedly
said that time was running out. He confirmed that
Sehularo told De
Wet that “if the employees who had been taken from the company
by the police were not charged they must
be brought back to work in
order to work”. He conceded that there had been no intimation
that the respondent was involved
in the disappearance of the
employees. He advised the employees that their strike was illegal
and that they would be disciplined
if they did not resume their
duties, and said that if he had been aware of any ultimatums he
would have definitely conveyed this
to them. He confirmed that
following the Silverton dismissals it was the respondent’s
practice to issue ultimatums of 30
minutes duration.
According to his testimony De Wet’s only concern was whether
he could persuade the employees to return to work. He conceded
in
cross-examination that he had informed De Wet that they would not go
back to work because of the concern they had about Van
Wyk, and that
he tried to persuade the employees to return to work so that the
respondent and the union could investigate the
whereabouts of the
missing employees.
Like Sehularo he also sought to suggest that the offer to return to
workwas made before 09:00. He testified that “because
I did
not even speak more than fifteen minutes with the employees so it
was either after 09:00 before 09:30 or 09:00 exactly
before 09:00”.
Beverley Fourie, a retired union official, conceded that sporadic
work stoppages were common and attributed this to the acrimonious
relationship between the parties. The respondent had also granted
informal rights to a minority union (Hotelica) and this had
further
exacerbated tension between the two unions, which manifested in the
Crown Mines incident where union shop stewards had
been held
hostage. She conceded in cross-examination that the issues at other
branches of the respondent, particularly at Umtata
where no
dismissals followed notwithstanding a failure to comply with the
ultimatum, were less serious than the issue that arose
at Cleveland
and at the very least management acted hastily. She provided a
historical background of the strikes at other branches
as well as an
explanation for the fear that employees had on the day, which she
attributed to the history of the union and the
death of its
chairperson following police interrogation more than 17 years ago.
She represented the applicants in their disciplinary
enquiry and
conceded that a second ultimatum was prepared but denied that it had
ever been issued to employees. She referred
to a number of strikes
as evidence of inconsistency in treatment of striking workers but
conceded that all the incidents she
relied on preceded the Silverton
strike and that her evidence in this regard was hearsay. She also
testified that an article
published in the Sowetan about Kunene’s
arrest and torture incorrectly blamed the respondent for the torture
and abductions.
Fourie testified that at the disciplinary enquiry, in which she
represented the applicants, the union had taken the approach
of
admitting that the strike was unprotected but had relied on
circumstances which justified the conduct. She said: “[t]hat
is all that we are saying I did not want to be lying and saying Oh
no we never had ….a work stoppage, it is common cause.
They
were standing and the vehicles did not go out.” In her view,
the report from Sithole led to “extraordinary circumstances”
and justified the conduct of the applicants.
In regard to the inconsistency issue, Fourie conceded in
cross-examination that the Cleveland issue did not compare to
Silverton
which related to a dispute concerning non-receipt of
payslips and that although in Silverton the union intervened early
to try
to resolve the situation the employees were adamant about
persisting with the strike. She admitted however that save for the
Randburg incident she had no direct knowledge of the other incidents
cited as evidence of inconsistency.
Her testimony was that management then acted hastily in suspending
just when Gys had communicated with the workers and they had
agreed
to resume work. She expressed this as follows :
‘
The
union official arrives, they now goes and gets the shop steward, they
talk to the workers they now in the short period they
go and they
talk to Mr De Wet certain proposals are made. When you go and address
workers that are now steamed, up they are hot,
they are concerned,
they are frightened, they have heard that some of their colleagues,
the comrades are missing. To cool people
down you now go to them and
you say listen we come with a proposal, this is what management say.
It is customary that they will
ask questions, you need to engage them
and ultimately the union will say listen guys, let us get on the road
this is what we are
going to do. It takes a bit of time…Mr De
Wet made it clear that that decision to then suspend was not his
decision. In
fact I got the impression during the hearing that you
know he felt that maybe it was harsh, it came from head office and as
I said
earlier on it is my opinion that I think head office was now
fed-up, they had to engage the union at 12:00 that same day. It is
now nine o'clock, we are irritated by this let us just suspend these
workers and get on with that so I think that was a spur of
the moment
decision from the head office I do not think that they had known all
of the facts and thought it through properly that
they would have
acted that harshly.’
The law
Item 6(1) of the Code of Good Practice : Dismissal (“the
Code”) provides as follows:
‘
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 the dismissals
in the 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.’
Item 2 provides that prior to dismissal, an employer should, at the
earliest opportunity, contact a trade union official to discuss
the
course of action it intends to adopt. The employer should also 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 also be
allowed sufficient time to reflect on the ultimatum and respond to
it, either by complying with it or rejecting
it. The compliance with
the Code is subject to the proviso that if the employer cannot
reasonably be expected to comply with
certain of its steps it may
dispense with them.
Grogan
Dismissal, Discrimination and Unfair Labour
Practices
1
states
that in determining substantive fairness regard should also be had
to other factors including the duration of the strike,
the harm
caused by the strike, the legitimacy of the strikers’ demands,
the timing of the strike, the conduct of the strikers
and the parity
principle. In regard to procedural fairness, the Code requires an
employer to contact the union, issue a fair
ultimatum and comply
with the
audi alteram partem
rule before dismissal. The
discussions with the union are designed to enable the parties to
secure an early return to work before
drastic action may be
justified.
2
Grogan
states that this requires an ultimatum to comply with the following
requirements: (a) It must be communicated to the strikers
in clear
and unambiguous terms and in a medium understood by them; (b) it
must indicate in clear terms what is demanded of the
strikers, where
and when they are required to comply and what sanction will be
imposed if they fail to comply; and (c) sufficient
time must be
given for all strikers to be informed of the ultimatum and to enable
them to reflect on it, and to respond to it
by either compliance or
rejection.
3
The
ultimatum should in addition be a
bona fide
attempt to induce
the strikers to return to work.
Analysis
Was the contravention of the Act serious?
Respondent’s counsel submitted that the contravention of the
Act was serious if regard is had to the impact of the past
work
stoppages and strikes and the interdicts granted in November 2008
and January 2009. The applicants were well aware that
the respondent
would be compelled to deal decisively with unprotected strikers to
ensure that its business remained viable.
The applicants conceded that no attempt was made to comply with the
Act insofar as it related to their demands on 20 January
2009.
The respondent submitted that there was no unjustified conduct on
the part of the respondent as all it had done was to co-operate
with
the police in obtaining statements from employees who were
implicated in the investigation of theft of the R6, 5 million
from
Capitec. The demand was moreover illegitimate as the respondent
would had no lawful grounds to interfere in the police investigation
and the version of Kunene and Sithole that the respondent was
responsible for their alleged abduction and torture is simply an
attempt to justify their unacceptable conduct. Kunene and Sithebe
were in any event released before the 48 hours since their
arrest
ended.
The applicants’ representative submitted that the dismissals
may not have been justified as the respondent acted hastily
in
suspending the applicants for non-compliance with the second
ultimatum and even on its own version whether a second ultimatum
was
issued is unclear. Moreover, the work stoppage was not convened with
the purpose of discussing the alleged police brutality
and torture
and only for a report back on the interdict, but this became an
issue when Sithole arrived and the applicants had
a legitimate fear
for their lives and safety and sought assurance from the respondent
in this regard. He submitted that although
the respondent failed to
contact the union progress was made with resolving the dispute when
Gys arrived and the respondent could
have considered extending the
ultimatum in order to assist the union to achieve an end to the
strike. He relied as support for
this submission on
Doornfontein
Gold Mining v National Union of Mineworkers andOthers
(1994)
ILJ
527 (LAC), however the judgment is more relevant to the fundamental
right of a union to hold meetings and is distinguishable
on these
facts. I agree with his submission however that when the union
arrived progress was made to resolve the issue although
it would
appear that no effort was made to ensure that the 9:00 deadline was
met and it was only 45 minutes after it expired
that the applicants
indicated their willingness to return to work. They could easily
have done so earlier and permitted their
union to continue to
address their concerns with management. Despite the submission by
the applicants, there was no evidence
that De Wet had agreed with
Gys that he could go and address the applicants and that the union
had unlimited time to do so. There
is no basis therefore for a
finding that he reneged on this agreement by announcing the
suspensions at 9:45. A proposal had been
made by him to resolve the
issue and this was communicated by the union to the applicants,
resulting in their eventual acknowledgement
that the police would be
approached to establish the whereabouts of Kunene and Sithebe. The
union’s version attempting
to portray the situation
differently cannot withstand scrutiny on the probabilities,
particularly as both Sehularo and Gys tried
to suggest at some point
that the offer to return to work was made before 9:00.
The decision to dismiss may also have been justified by the
historically acrimonious relationship and the policy of engaging
with the union on the basis that the respondent would no longer
countenance the
sporadic disruptions that
occurred far too often and had significant financial and operational
consequences.
It was not disputed by Fourie that the
respondent had changed its approach following the Silverton strike
and that this had been
discussed with the union. The strike can
therefore not be seen in isolation but followed a pattern of
sporadic and unprocedural
work stoppages over a period of time. In
regard to the parity principle, the respondent submitted that after
the Silverton dismissals
the applicants could have been under no
misapprehension that their conduct would result in dismissal.
Moreover,
the
unequivocal demand made to De Wet that the abducted employees should
be found and brought back (despite Sehularo’s attempt
to
suggest otherwise in cross-examination which was put to him was
ludicrous), was unreasonable given that on his own admission
there
was a police investigation into a substantial theft and the
respondent was being asked not to interfere with this. It would
seem
that by the time the first ultimatum had already expired the
applicants had more than enough time to reflect on their conduct
and
make an informed decision. The first ultimatum stated in no
uncertain terms that their conduct was detrimental to the
respondent’s
operations and that they would face disciplinary
action.
Were the ultimatums fair?
It is common cause that the strike was unprotected and that the
employees admitted this at the disciplinary enquiry. It is further
common cause that the first ultimatum was issued at 8:00 by being
handed to Sehularo who read it aloud, and that it informed
employees
that the work stoppage was unprocedural, unprotected and detrimental
to the respondent’s operations. It is common
cause that no
representations were made by the applicants or the union. Even if
the document signed by Saunders and produced
at the disciplinary
enquiry was the suspension notice, in the absence of her testimony
it is not conclusive proof that the union
did not receive a second
ultimatum at all. Fourie conceded that the second ultimatum was
produced at the disciplinary enquiry
and the applicants’
evidence in this regard requires an assumption that since the only
document bearing Saunders’s
signature produced at the enquiry
was a notice of suspension, this was the only document that was
issued. Saunders did not testify
despite the union seeking a
postponement in order to arrange a date for her testimony. The
parties were then advised to file
their written submissions which
they did in April and May 2012 respectively.
Sehularo’s evidence that there was no
second ultimatum is improbable given that he made several references
in cross-examination
to the ultimatum that expired “at 9:00”.
He also testified, and this was corroborated by Sithole, that De Wet
made
constant references to “time running out”.
Furthermore, he conceded in cross-examination that the statement of
case
correctly stated that when the union left De Wet’s office
they understood that the strike “must be called off at 09:00.”
There is no doubt from the following exchange in cross examination
that whether the second ultimatum was personally given to
him or
not, the applicants were aware of the expiry of the second
ultimatum:
‘
So
when you left Mr De Wet’s office, you and Mr Gys, Mr Sithole,
knew that the demand by management was that this strike must
be
called off at 09:00. --- Yes, Sir.
The strike was not called off at
09:00. Is that correct? --- We went to discuss that what we spoke
with Mr De Wet to the workers.
The strike was not called off at
09:00. Is that correct? --- It was called off.
At 09:00? --- Yes, Sir.
So at 09:00 the employees wanted
to go back? --- Yes, Sir. It was around that time, when they wanted
to go back Sir.
Not quarter to ten? --- I cannot
remember, Sir, exactly, exactly the exact time.
Mr Sehularo, I am going to
ask... argue to this court that you are not a truthful witness and
that you adapted your evidence you
went along, because this is the
first anyone has ever said behalf the union that the workers wanted
to go back before 09:00. That
is your evidence. The workers wanted to
go back before 09:00. --- I cannot remember what time did the workers
want to go back,
because the first ultimatum which was issued, that
one was expiring at 09:00.’
The respondent conceded that an ultimatum of 30 minutes seemed
unduly short but submitted that it was standard practice and
understood and accepted by the applicants.In any event the evidence
established that they clearly understood the consequences
and were
moreover not dismissed but suspended as a result of their
non-compliance. There was no agreement between Gys and De
Wet as
suggested by the respondent’s representative in his closing
submissions, and the overwhelming probabilities favour
the version,
as confirmed by the applicants’ own witnesses, that they knew
they were required to return to work by 9:00
or face disciplinary
action. Despite this they continued the meeting with their union for
a further 45 minutes. This reflects
the utmost contempt not only for
their employer but for the law.
Was theaudi alteram partem rule complied with?
The respondent had fully complied with the requirements of
procedural fairness and this was conceded by Sehularo and Fourie.
The suspensions followed a lengthy collective disciplinary hearing
and appeal, both of which were chaired by independent chairpersons
with knowledge and experience in labour law and in which the
applicants were at all times represented. The disciplinary hearing
resulted in a fully reasoned finding which has in substance not been
challenged although some of the applicants’ witnesses
sought
to revisit concessions already made.
Were the dismissals substantively and procedurally fair?
I am satisfied that in the context of the respondent’s
operations and in applying the facts to the law, even if only the
first ultimatum was issued it was unambiguous and clearly specified
the consequences of continued strike action. Irrespective
of whether
the issue of the missing two employees arose only after the report
from Sithole (which would on the evidence have
been at about 8:30),
there was a clear demand to management at about 8:45 when the union
arrived to the effect that the missing
employees should be produced
and there would be no work before then. Despite efforts by Sithole
to deny that that they were questioned
by police it would have been
clear at the time that the two employees had been arrested by police
for suspected theft and at
one point the evidence of the applicant
was that only one of the missing employees could not be found.
Delport confirmed that
according to the register, the majority of
employees returned their kit between 08:00 and 08:30 and he
confirmed that this was
a clear indication that they were not
prepared to return to work. Sehularo said this was done on his
instructions when he received
a clear indication that the applicants
persisted in seeking resolution of the issue immediately but denied
that it was out of
safety concerns since they were not toyi-toying
but only singing. Fourie however was honest in her reflection that
the reality
of South African culture is that union meetings are
characterised by robust singing and toyi-toying, although this
evidence was
tendered to indicate that management should not have
interpreted it as a sign of aggression. Although it is common case
that
management made no attempt to contact the union when the issue
first arose, despite the evidence of Eva that there was a permanent
structure in place to deal with such problems, in the same vein the
applicants and Sehularo refused to discuss the issue with
management
when Delport first sought to enquire why the trucks were not moving.
Instead Sehularo replied that De Wet should approach
them himself.
Sehularo’s evidence, and in particular his version as to the
purpose of the meeting and the nature of the dispute that
led to the
work stoppage, was replete with contradictions. He had informed the
employees by radio on the Monday afternoon of
the court interdict
and there would have been no further need to meet the next day. His
version also represented a material departure
from the applicants’
statement of case, which being more contemporaneous, must be
accepted despite his testimony that it
had been “twisted”.
The pleaded case is that he arrived at work at 6:30 on Tuesday and
was questioned by employees
about the strike scheduled for that day
and he told them to meet in the recreation room to discuss it. His
version in cross-examination
changed when it was put to him that if
he had sent out information about the interdict the day before there
would have been no
need to meet. He then testified, for the first
time, that the meeting on the Tuesday was a normal meeting which was
held from
about 7:00 to 7:15 or 7:30 every week. This version was
disputed. It had never been put to the respondent’s witnesses
or
led at the disciplinary enquiry and must be rejected as a
fabrication.
The conduct of the employees notwithstanding the limited duration of
the strike was inthe circumstances a serious contravention
of
section 64 and the dismissals were justified. The union advanced no
explanation for its failure to make representations for
the lifting
of the suspensions and the dismissals only followed a lengthy
disciplinary enquiry and appeal process. From the evidence
of
Sehularo and Gys, it can be inferred that the union was not in a
position to instruct its members to return to work while
they
continued to pursue their concerns with management. This is
unfortunate as it not only denotes lack of leadership credibility
and inexperience but undermines the centrality of the dispute
resolution process on which the Act is premised. It is also
unfortunate
that senior union leaders like Fourie, whose evidence
displayed her heartfelt commitment to the proper and lawful exercise
of
the rights of trade unions, are making way for inexperienced
junior officials. Although her evidence linking the fears of
employees
to an incident that occurred in the apartheid era is not a
justification for the conduct of the applicants, it cannot be
disputed
that violations of human rights continue to occur in our
democratic society. This does not however justify spontaneous
unlawful
behaviour that jeopardises the business of the employer. On
the applicants’ own version the respondent had intervened in
the past when it was approached to secure the release of employees
from police custody. Sehularo confirmed that it did so in
relation
to his own allegedly unlawful arrest. There was no reason why the
respondent could not have been approached by Sehularo
to assist
expeditiously, as De Wet in fact agreed to do once the issue was
communicated to him.Unfortunately Sehularo, who could
easily have
approached Delport or De Wet,instead adopted an arrogant approach
which was also reflected in his demeanour during
his testimony and
set the tone for the rest of the adversarial engagement that day and
led to its unfortunate consequences.He
could also have discussed the
matter quietly with Sithole and then approached management instead
of allowing him to address the
workforce. This is what led to the
widespread rumours and is conduct that one would not expect from a
responsible shop steward.
The dismissal of the individual applicants was therefore
substantively and procedurally fair.In regard to costs, respondent’s
counsel submitted that it had difficulty seeking costs given its
ongoing relationship with the union, but that the court should
exercise its discretion in this regard.It is clear that once the
union arrived progress was made in resolving the dispute although
this could have been done more expeditiously without entertaining
prolonged discussion, and the employees could have been ordered
to
return to work whilst the union pursued the issue. Gys’s
evidence that he was unaware of the ultimatums issued is also
improbable. Timing was imperative in the respondent’s business
and it had already suffered harm as a result of persistent
unlawful
strike action. Sehularo’s conduct was also not conducive to
resolving the issue expeditiously and the individual
applicants
understood the consequences of their continued strike action even
though it was of short duration. In these circumstances
I see no
reason in law or fairness why the applicants should not be liable
for the costs of opposing their claim.
Order
In the premises, I make the following order :
The claim is dismissed with costs.
_______________________
Bhoola J
Judge of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANTS:
N Nkadimeng, Union
Official, Motor Transport Workers Union of South Africa
FOR THE RESPONDENT:
G C Pretorius SC
Instructed by
Lamberti Potgieter,
Johannesburg
1
1st
ed. (2005, Juta) at 451- 454.
2
Grogan
supra at p 454.
3
Supra
at p 458.