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[2012] ZALCJHB 153
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NEHAWU v Airport Company of South Africa (JS468/09) [2012] ZALCJHB 153 (6 December 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS468/09
In the matter between:
NEHAWU
...............................................................................................................
Applicant
and
AIRPORTS COMPANY SOUTH
AFRICA
........................................................
Respondent
Heard: 21-25 November
2011, 05-08 December 2011 and 21-24 February 2012
Delivered: 06 December
2012
Summary: Unfair
dismissal. Applicant accused of having participated in a go-slow. The
respondent failing to adduce evidence to show
that the applicants
committed offences they were charged with.
JUDGMENT
MOLAHLEHI, J
This matter concerns the
alleged unfair dismissal of four shop-stewards who were dismissed
arising from the incidents that occurred
on 26, 27 and 28 August
2008. The applicants contend that their dismissal was automatically
unfair because they were dismissed
for doing their work as
shop-stewards. They also, in the alternative, contend the dismissals
of each one of them were substantively
unfair.
The respondent contends
that the dismissal which arose out of an unprotected strike action
in the form of a go-slow was for a
fair reason. The respondent
further contends that the alleged unprotected strike lasted for an
hour on each of the days. The
reason for the dismissal of the
shop-stewards was mainly because they were accused of inciting the
other employees to engage
in the unprotected go-slow. The respondent
further contends that the employees had previously during 2007
embarked on an unprotected
industrial action and were issued with
final written warnings.
The respondent operates
a shift system and it was group 3 shift that the respondent alleges
participated in the go-slow on both
days. The respondent provides
security services which have been declared essential service at OR
Tambo International Airport,
which is also the national key point.
The employees, as
appears below, were dismissed on different dates and accordingly
referred their alleged automatically unfair
dismissal to the CCMA.
The four cases as were referred to the CCMA were consolidated into
one case by this court.
The dismissed employees
were prior to their dismissal employed as security officers and one
of them as a surveillance analyst,
by the respondent. As indicated
above, they were dismissed on different dates. Below is a schedule
that indicates the different
dates of dismissal, the wage rates of
each as at the date of the dismissal.
Name of applicant
Date of dismissal
Monthly salary
Mr Tiro
28 January 2009
R5 364.00
Ms Mguye
30
October 2008
R5 715.00
Mr Sithole
19
February 2009
R8 198.00
Mr Nompuku
20
March 2009;
R6
605.00
Mr
Magugu
22 December 2008
R8 652.00
The case of Ms Mguye, no
longer forms part of these proceedings the parties having reached a
settlement agreement regarding that
matter.
The applicants’
case is that their dismissal was automatically unfair as the
respondent acted contrary to section 5 of the
Labour Relations Act
of 1995 (the LRA)
1
by victimising and
discriminating against them in contravention of section 187 (1) of
the LRA
2
.
In the alternative, the applicants contend that the dismissals were
unfair in terms of section 188 of the LRA. Each of the applicants
has prayed for reinstatement if they were to be successful in their
claims.
Background facts in
general
The tension that led to
the dispute between the parties seems to have arisen on the 4 August
2008, when Mr Tiro addressed an email
to the respondent’s
managing director, raising a number of issues which were referred to
as “long outstanding employment
issues.” The issues
raised in the email includes; salary disparity, employee
empowerment, the "mushrooming of contractors,"
transformation, management leadership style, lack of union
involvement in key decision-making, hostility towards employees and
further that the employees have been worse of since the managing
director joined the respondent. It was further indicated in
that
e-mail that the union on was intent on not honouring the road-show
which had been arranged by management for 27 August 2008,
unless
these issues were resolved. The managing director, Ms Hlahla,
responded on the same day and indicated that the road-show
was a
business imperative which was critical in relation to the
operational plans for the 2010 Soccer World Cup.
The respondent regarded
the refusal to participate in the road-show as a business risk
because that had a potential to impact
negative on the business
plan. The respondent is required to regularly submit business plans
in terms of the Airports Company
Act, 44 of 1993 (the Act) as
failure to do so could result in the Regulating Committee suspending
or withdrawing the respondent’s
licence. According to the
respondent, it was necessary for the employees to attend the
road-show in case the committee was to
require information in terms
section 12(4) of the Act.
The managing director
advised the shop-stewards to raise the employment issues they had
through the established employment forums.
According to the
respondent, it experienced long passenger queues following the
refusal by the shop-stewards to join the road-show.
The respondent
says it received complaints from both the airlines and passengers
about the long queues. The respondent relying
on the video clippings
which were shown in the court says the following are facts that
support their averment that the employee
embarked on a go-slow:
‘
Equipment
placed deliberately so as to block the flow of passengers;
Passengers waiting and not being
processed;
Staff “standing around”,
as Mr Serobe commented “nothing is happening
;
”
Passenger queues snaking all the way
to check-in counters;
Buckets piling up and not being sent
back for passengers to use;
An employee (Hlengiwe) hiding buckets
underneath the roller belt; and
“
Very soon”
after replacement labour (G4) arrived, operations normalise.’
It is common cause that
the employees of group 3 who were charged with participating in the
go-slow were issued with final written
warnings and not dismissed.
As indicated earlier,
the applicants contend that their dismissal by the respondent was
automatically unfair or alternatively
substantively and procedurally
unfair.
The applicants were
charged individually and separately. Their charges were, however,
very similar. In the case of Mr Magugu,
he was charged with an
additional charge of deserting his post by leaving the control room
to attend at the terminals. The charges
which were proffered against
the individual applicants are essentially the same and were
formulated along the following lines:
‘
1 Incitement
in that you incited, promoted that employees should participate in
unprotected industrial action at the domestic and
international
terminals on the 27
th
August 2008;
2 Promotion of unprotected industrial
action in that you congratulated employees who participated in
unprotected industrial action
on the 27
th
August 2008 at
the parade room;
3 Gross insubordination in that you
refused the Head of Security to address employees who participated in
industrial action on the
27
th
August 2008;
4 Breach of essential service
exemption in that you were fully aware that Security Services cannot
embark on unprotected industrial
action as per the Department of
Labour Government Gazette: Notice 304 of 2008;
5 Breach of Recognition Agreement in
that you breached the recognition agreement in terms of clause 8.
6 Breach of Recognition Agreement in
that you breached the recognition agreement in terms of clause 17.1.’
The case of Mr Tiro
In support of its case
that the dismissal of Mr Tiro was for a fair reason, the respondent
relied on real evidence in the form
of video clippings of what
happened on the days in question including the testimony of several
witnesses. Mr Tshabalala was the
first to testify relating to the
dismissal of Mr Tiro. He testified firstly about the email which Mr
Tiro addressed to Ms Hlahla
and copied to the management team.
Paragraph 6 of the email
which was read into the record reads as follows:
‘
On 21 July
2008 the union held a general meeting and a resolution was passed to
refrain from participation in the 2010 road show
organised by the
employer. The union took this resolution because it was of the view
that the employer either did not want to or
refused to commit itself
to resolving long outstanding employment issues.’
The managing director
responded to the email and sated the following:
‘
There are
adequate forums for you to deal with the issues you have raised, and
you must utilise them fully to the benefit of everyone
in the
company. The ACSA labour-management process also provides you with
avenues to deal with disagreements and disputes. Please
use them
fully and avoid situations that will make it impossible for ACSA to
deliver its licence to operate it obligation to the
country.’
The procedure which the
managing director was referring to in her email is clause 17 of the
recognition agreement which reads
as follows:
“
Either party
may declare a dispute with in five working days of the dispute
arising by presenting a written notice to the other
party, which
notice shall set out the nature of the dispute and the comment the
resolution to the dispute.’
In relation to the
events of 26 August 2008, Mr Tshabalala, testified that Mr Serobe
reported to him that there was a problem
at international north in
that there were long queues of passengers. He then instructed him to
go there to check what was happening.
The details regarding the
checking process and the time it took to conduct the checking of
passengers, which has been referred
to briefly above, is not
relevant for the purpose of this judgment as the existence of the
long queues was not seriously challenged
by the applicants.
Mr Tshabalala testified
that whilst at the checking point he was confronted by Mr Mabena,
the chairperson of the union. He stated
that he took him aside and
enquired from him whether he was aware of the chaos that was going
on. Concerning the possible cause
of the go-slow, Mr Tshabalala says
he was informed by Mr Serobe that it was possibly because of the
issue of the payment of overtime.
The respondent did not dispute the
problem of the overtime payment. The cause of the non-payment of the
overtime was because
of the change in the salary payment system that
the respondent had introduced.
The discussion between
the two ended with Mr Mabana undertaking to speak to the employee
about their alleged conduct. The situation
returned to normality
after Mr Mabena spoke to the employees and that took about 20
minutes.
On 27 August 2008 and on
his return from the road show, Mr Tshabalala received a report from
Mr Serobe that there were long queues
at domestic terminals. He then
instructed Mr Serobe to deploy the G4S security who had been placed
on standby the previous day
as a contingency plan in case the
alleged industrial action was to continue the following day. He then
moved from international
departure where he was based and preceded
to domestic terminals. On arrival there, he was approached by Mr
Sithole and Mr Nompuku
who said that they wanted to engage with him
on what was happening. He refused to engage with them and told them
that if they
had an issue they should have phoned him. He further
told them to get their members into the rest room so that he could
address
them. They both according to him told him that he could not
address their members. They persisted with the attitude even after
he told them that they had no right to stop him from addressing the
employee and persisted with their attitude even after he
told them
that what they were doing was gross insubordination.
According to Mr
Tshabalala, Mr Sithole and Mr Nompuku informed him that they wanted
to address their members. He permitted them
to do so and after 15
minutes, the employees came out of the rest room and handed over
their identity cards and left.
During cross
examination, Mr Tshabalala conceded that Mr Tiro was not on duty on
the 26 and 27 August 2008. He also conceded that
the employees who
participated in the go-slow on those days were not dismissed but
were given final written warnings. It took
some effort to have Mr
Tshabalala to concede that it took 20 minutes to resolve the problem
of the long queues. He further stated
under cross examination that
the go-slow went on for about 45 minutes.
Another concession which
Mr Tshabalala made was that his evidence was in conflict with some
aspects of what was shown on the video
clip, in particular as
concerning the arrival of Mr Mabena at the domestic terminals. He
also conceded after a lengthy cross
examination that he could not
provide an explanation why the evidence that he gave the previous
day and during the morning of
22 November 2011 was in conflict with
what was shown on the video clip in particular about the arrival of
Mr Mabena and his testimony
that the employees checked every
passenger’s bags.
In relation to the video
clip that showed one employee removing the bucket, Mr Tshabalala
presented a version that did not only
sought to say that what the
employee was doing was wrong but also that it was indicative of a
go-slow. It was however more than
an effort to get him to explain as
to why if that was wrong what that employee was doing, was she not
confronted by a supervisor
about it.
Mr Tshabalala says that
he was not there when the two shop stewards approached Mr Serobe. He
later says he was with Serobe when
the two shop stewards arrived and
in fact told the employees to go into the rest room. He in this
respect disputed the applicants’
version that he was not there
when they arrived at the domestic terminal.
As concerning the
allegation that the employee handed in the cards as they were
leaving the rest room, he conceded that management
stood outside the
door leading into the rest room and collected the cards from the
employees.
The conversation between
Mr Tshabalala and the two shop stewards, in relation to the
allegation of insubordination arising from
the shop-stewards
refusing him to speak to the employees, is quite telling when
assessing the fairness of the dismissal. Contrary
to the picture he
sought to present with his version, there is very little, if any,
evidence that support that version. The picture
that comes out of
the analysis of the conversation between the three as presented by
Mr Tshabalala reveals nothing but a fabrication.
That together with
other aspects of his testimony projects him as a very subjective and
unreliable witness. The conversation
between them as presented by Mr
Tshabalala, and which is quite telling, is recorded as follows in
the transcript of the proceedings:
‘
Mr
Tshabalala, you cannot speak to our members.” The response from
Mr Tshabalala was: “You do not have any right to
tell me when
to address the staff members. I am the manager of security, I need to
go and discuss with the members.”’
[29] At that stage the
shop stewards were according to him standing in front of him. He then
said to them:
‘
You are shop
stewards, you cannot dictate to me when I must address the staff
members.’
[30] On his version,
after being told that he could not speak to employees and after some
altercation with the shop-steward he then
surprisingly says to them:
‘
You can go
ahead and address your members.’
[31] It would seem,
following on the chronology of his testimony, that after giving the
two shop stewards permission to speak to
their members he then said
the following to them:
‘
I am warning
you, what you are doing is gross insubordination . . . it totally
unacceptable.’
[32] At some point during
cross examination, Mr Tshabalala said that he gave the employees five
minutes within which the shop stewards
were to address their members.
A simple point like this took some effort for him to concede that
this point was not made earlier
in his evidence in chief. He also
evaded the question as to why did he not mention this point earlier.
It was also apparent that
whenever he was confronted during cross
examination with the stark contrast in his earlier version he would
seek refuge in the
lapse of time since the incident took place. This,
in my view, did not assist him because this applied even to a version
which
was set out in the respondent’s pleadings.
[33] The strange thing
about the case of the respondent is that it is pitched on the high
note of the sensitivity of risk to security
because of the
environment within which it operates but at the same time Mr
Tshabalala says he did not want to solicit the assistance
of the
police who were present at the time, in bringing order to a situation
which was both a thread to the respondent’s
business operations
and conduct that was not only criminal but contravened the principles
that locates the respondent within the
national key point.
[34] The other witness
who testified in support of the respondent’s case that the
dismissal was for a fair reason was Mr Munengwana,
who was at the
time head of security for Group 3. He testified that after the
employees went into the rest room on the day in question,
Mr
Tshabalala proceeded to the rest room but was denied access to the
restroom by Mr Sithole and Mr Nompuku.
[35] As concerning what
transpired at the parade Mr Munengwana testified that he arrived at
the parade at about 13:30 and five minutes
after his arrival, the
shop stewards requested that they be allowed to address their members
at the parade. The shop stewards that
addressed the parade were Mr
Sithole, Mr Nompuku, Mr Sadike and Mr Prince Mabena.
[36] According to Mr
Munengwane the first person to address the parade was Mr Sithole who
told the employees that there was nothing
wrong with what they did
the previous day and that he was “encouraging you to go and
comply as you did yesterday.”
This statement was according to
him repeated by Mr Nompuku. Mr Mabena also spoke and essentially
repeated what was said by Mr Sithole.
The other person who spoke at
the parade was Mr Magugu who according to Mr Munengwane, told the
parade that he had checked the
cameras as to what happened the
previous day and found that there was no deviation from the standard
of working.
[37] Mr Munengwana
conceded when asked about the possibility that the slow processing of
passengers and development of the long
queues could have been that
there were no supervisors at the time of the changeover of the
shifts, and also that he was not there
at the time. He conceded that
if the changeover of the shifts were not going smoothly then the role
of the supervisor becomes crucial.
He also conceded that the long
queues could on that particular day have been caused by uncooperative
passengers, by for instance
failing to remove their cellular phones
resulting in delaying the others in the queue. This he accepted as a
variable that even
with the best plan cannot be anticipated and be
controlled.
[38] In contrast to what
Mr Tshabalala said in relation to what transpired between him and the
shop steward, Mr Munengwana said
that the shop steward physically
blocked Mr Tshabalala from entering the rest room.
[39] Mr Munengwane
further conceded that he did contact Mr Sadiki who was on duty on 26
August 2008 to inform him that management
had a problem because
employees were on a go-slow. When questioned why did he not speak to
a shop steward about the problem of
a go-slow he stated that he spoke
to the employees and that the respondent did not have a procedure
that directed that management
should speak to shop-stewards whenever
there was a go-slow. However he did not disagree when it was put to
him that if the employees
were involved in an procedural action, he
needed to deal with the union. He also conceded that there was no
entry in the occurrence
book (OB) regarding the alleged go-slow on
the 26 August 2008.
[40] The other concession
made by Mr Munengwane is that he never confronted the shop stewards
when they allegedly told the employee
to continue working as they did
the previous day i.e. continue with the go- slow.
[41] The third witness of
the respondent was Mr Serobe who at the time of the incident was
assistant aviation security officer.
He testified that on 26 August
2008 whilst attending a meeting he received a call at about 16h00
from Mr Munengwane informing him
that the employees had embark on a
go-slow. He relayed the same message to Mr Tshabalala and Mr Anton.
Mr Tshabalala instructed
him to go and check what was happening and
report back to him. On arrival at the international terminal, he
found long queues of
passengers. He testified further that he went to
each machine to observe what was causing the long queues.
[42] Mr Serobe testified
that the cause of the long queues was because the x-ray operators
were screening each and every bag of
passengers. According to him
when he checked from one of the x-ray operator why he was checking
the bags even when there was no
thread. The response according to him
was that he was doing his job. The same process was according to him
applied by the body
searchers also. The person’s name was not
disclosed neither was she or he called to testify. After observing
what was happening
he then called the private security service
provider, BOSASA. The BOSASA security members were deployed amongst
the employees and
after their deployment there was a significant
improvement in the movement of the queues.
[43] Soon after the
arrival of the BOSASA members, Mr Mabena arrived at the scene. Mr
Serobe says he told him to see Mr Tshabalala.
In the supervisor’s
office, Mr Tshabalala is said to have told Mr Mabane to speak to his
members about their go-slow.
[44] The problem of the
previous day repeated itself after about 20 minutes on the 27 August
2008 according to Mr Serobe. He testified
that he phoned Mr
Munengwane and informed him that he was picking a problem similar to
the one of the previous day. Mr Munengwane
informed him that he was
still having a meeting with the supervisors.
[45] Mr Serobe testified
that he went to each of the employees and gave them an ultimatum,
telling them that they would be suspended
if they continued operating
as they did. The employees did not respond but continued with their
attitude according to him. The
Group 4S which was on stand-by were
then called in to assist. Mr Serobe was then joined by Mr Tshabalala
and both observed how
as soon as Group 4S had taken over the queues
started moving much faster. Whilst observing how Group 4S was
working, Mr Tshabalala
was approached by Mr Nompuku and Mr Sithole.
[46] As concerning the 28
August 2008, Mr Serobe testified that Mr Tiro and Mr Motloung were
observed talking to employees who are
responsible for operating the
X-ray machines. Mr Motloung and Mr Tiro were then summoned to Mr
Serobe’s office. In the office,
the two were asked as to why
they were talking to people who are busy with their duties. According
to Mr Serobe, the answer was
‘You know you have suspended our
people yesterday, so we want to engage with our members…’
The two were then
told to go back to their respective posts which
were domestic and international terminals respectively. They left the
office but
because Mr Makhondo was suspicious as to whether they
would comply with the instruction he is said to have followed them.
He found
them repeating the same thing they were told not to do. Mr
Makhondo phoned Mr Serobe and told him about the fact the two were
repeating
what they were told not to do. Mr Sorobe advised him to
take their identification cards and suspend them immediately.
[47] Mr Serobe disputed
that the processing of the passengers had anything to do with the
fact that the supervisors remained behind
after the parade and were
therefore not available to assist with the changeover of the shifts.
He stated that that could never
have been the cause of the delay
because the morning shift supervisors were still present when the
afternoon shift came on board.
[48] It is important to
note that in evidence in-chief Mr Serobe never mentioned that the
morning shift supervisors were still present
when the applicants’
shift came on board. It is also important to note that he initially
said that all the seven machines
were open when the group3 shift came
on board but later during cross examination changed to say that he
was referring to the stage
at which G4S had taken over the operation
.
[49] As concerning the
events of 27 August, Mr Serobe testified that, after observing the
repeat of the go slow of 26 August, he
gave the employees an
ultimatum. In contrast to the case pleaded by the respondent which is
that things improve, after the ultimatum
was issued, Mr Serobe stated
that because the employees did not respond when he issued the
ultimatum he had to bring in additional
people to assist. He later,
however, when questioned further in this regard stated that the
employees complied with the ultimatum.
Mr Serobe could not explain
why his testimony was at odds with the case pleaded by the
respondent.
[50] As concerning the
case against Mr Tiro, Mr Serobe testified that he was called to the
screening section by Mr Makhondo who
told him that Mr Tiro and Mr
Motloung are talking to employees whilst busy at the x-ray machine.
He further stated that after looking
through the window from where he
was and observing what was happening, he requested Mr Makhondo to
call the two to his office.
However, he conceded during cross
examination that the video clip, which was shown, did not support the
version that the two spoke
to a number of employees. He stated that
the video clip showed them talking to two people operating the AMD
machine. The changed
version that the two spoke to other employees,
was not sustained during cross examination because when asked as to
whether he insisted
that he spoke to employees, he responded by
saying ‘even if he spoke to one the other one was also
concentrating.’
[51] Mr Serobe, disputes
that Mr Sithole and Mr Nompuku could have addressed the employees at
the car park after the parade
.
According
to him, they could not have spoken to the employees at the car park
because, at that stage, the HR had already sent letters
to the
employees about the problem regarding overtime payment. He could not
explain why this was not pleaded and why it was not
included in the
bundle. He also could not explain why the version about the letter of
the HR was not mentioned in Mr Tshabalala’s
version.
[52] Whilst the
respondent’s pleaded case is that the police went into the rest
room and told the employees that they had
two minutes to leave the
room, this is disputed by Mr Serobe. According to him, for the first
time and towards the end of his cross
examination, he indicated that
the employment identity cards of the employees were collected by the
police officers as the employees
were leaving the rest room.
[53] The other witness
who testified about Mr Tiro and Mr Motloung, regarding the incident
of the 28 August 2010, is Mr Makhondo.
He testified that on that day
he observed Mr Tiro and Mr Motloung speaking to “the staff and
some people.” He then
in accordance with the instructions from
Mr Serobe went and called the two of them to an office. In the
office, Mr Serobe told
them according Mr Makhonto not to disturb
employees with their duties.
[54] The two employees
were told to go back to their work stations. After they had left the
office, Mr Serobe and Makhondo followed
them to check whether they
had gone to their working stations. According to Mr Makhondo, the two
were found at the international
terminal again talking to machine
operators. During cross examination, when asked what he meant by
saying that they spoke to “the
staff”, he responded by
saying: ‘there were two or three people there.’ He
conceded that they spoke to the employees
for not more than 50
seconds.
[55] Mr Makhondo had
difficulties during cross examination with dealing with a simple
matter of what is recorded by the chairperson
of the disciplinary
hearing. The recording made by the chairperson of the disciplinary
hearing reads as follows:
‘
Mr Tiro does
not dispute this account. However, he does claim that he and Mr
Mokhonto had a discussion... where he requested to
speak to Doller.
Mr Mkhonto does not recall this conversation, but did not dispute
that it either.’
[56] He initially said
that he could not recall but later said that, ‘it should be
correct.’ He then changed later to
say, ‘no, but I think
on the hearing I told them that he did not speak to me.’ This
is in total contrast to the finding
of the chairperson of the
disciplinary hearing.
Mr Tiro’s
version
[57] At the time of the
dismissal, Mr Tiro was a security officer and a deputy secretary of
the shop steward committee. In testifying
about the e-mail he sent to
the managing director, he stated that the e-mail was consequent to
the resolution taken by the union
branch that the union should not
participate in any management activity.
[58] He does not deny
speaking to Doller on the day in question but stated that he was
granted permission to do so by Mr Mkhonto.
[59] It was not disputed
that there is a rule that prohibits shop stewards from speaking to
employees whilst they are on duty. It
seems to follow that if there
is a need for the shop stewards to speak to members on duty they
would need permission from their
managers to do that. The case of Mr
Tiro is that he did seek permission and was granted the same by Mr
Makhondo. On the other hand
Mr Makhondo, disputes having giving him
permission.
The case of Mr Sithole
[60] The case of the
respondent against Mr Sithole is that he was off duty on 26 August
2008. On 27 August 2008, he arrived at work
at 11h00 even though his
shift with group 3 was only to start at 13h30. Before assuming their
duties, the employees in group 3
had to attend a parade which was
held at 13h30. At the parade, Mr Sithole addressed the parade after
Mr Munengwana had addressed
it about the issues of the go-slow the
previous day and overtime payment. According to Mr Munengwana, in
addressing the parade
Mr Sithole said something along the following
lines:
‘
Comrades, I
just want you to know that with regard to the incident of yesterday
there was nothing wrong about it because all you
did you complied and
we are hereby encouraging you to go and comply as you did yesterday.’
[61] The other shop
stewards who spoke after him echoed his sentiments about what
happened on 26 August 2008. The other aspect of
the case of Mr
Sithole is discussed under the case against him earlier and is
therefore not discussed further.
The case of Mr Nompuku
[62] The facts which the
respondent relied upon in the case of Mr Nompuku are similar to those
of Mr Sithole. He was not on duty
on 26 August 2008. On 27 August
2008, even though he was to start his shift at 13h30, he arrived very
early at work. He was accused
in particular of refusing Mr Tshabalala
the opportunity to address the employees once they were removed from
their work stations.
He also one of those who spoke at the parade and
prefixed his statement by saying:
‘
I just want
to cement whet the comrade is saying.’
Mr Nompuku’s
version
[63] Mr Nompuku testified
that he spoke at the parade and told those present that he met with
Mr Hlongwane of HR who told him that
the issue of overtime has been
resolved, and letters of apology would in that regard would be sent
to employees. The respondent
contended that the evidence about what
Mr Hlongwane told him was hearsay and should for that reason be
discarded. In my view the
objection is highly technical and does not
take the matter any further because all what it indicates is he was
telling employees
that he has been informed that their problem is
receiving attention. The crux of his statement that goes to the issue
of whether
he incited employees was not seriously challenged in cross
examination. The essence of what he said, leaving out what he says Mr
Hlongwane told him, is that he told the employee that the problem of
overtime has been resolved and therefore there was in a sense
no need
to be aggrieved. This in my view is far from someone who is seeking
to have the employee excited about partaking in an
industrial action.
[64] As concerning the
allegations that he prevented Mr Tshabalala from addressing the
employees, he testified that he met him the
first time when they went
into the rest room and denied ever refusing to allow him to address
the employees.
The case of Mr Magugu
[65] The main witness in
the case of Mr Magugu was Ms Monyeke who at the time was employed as
the head of compliance and surveillance.
She testified that, on the
26 August, she was part of the budget meeting when at about 15:00
they received information that there
was a problem at international
departure. On arrival at the international departure, she enquired
from one of the supervisors as
to what the problem was and was told
that the staff was not paid over time. That seemed to her to have
been the cause of the long
queues that had developed.
[66] After observing what
was happening at international departure, Ms Monyeki proceeded to her
department where she addressed her
subordinates about what she had
observed at international departure. She also enquired from them
whether they were also affected
by the problem of overtime and they
answered in the affirmative. After addressing them and requesting
that they should focus their
surveillance also on the baggage area,
she then address Mr Magugu directly and said:
‘
Wena Magugu,
please make sure that you do not leave this area. I know my brother,
that you are a comrade and you would want to go
out there and try to
talk to the guys or do whatever. Please do not get involved, let the
managers sort the problem that is downstairs
and will make sure that
I resolve the issue here.’
[67] After speaking to Mr
Magugu, Ms Monyeki then left. She later, according to her received a
call from Mr Kekana requesting to
leave the surveillance room to go
downstairs to speak to someone there who had reported a problem. He
was granted permission to
go downstairs. It is important however to
note that on his version by the time he requested permission he had
already left the
control room.
[68] The following day,
27 August 2010, Ms Monyeke was confronted by Mr Serobe who informed
her that Mr Magugu and Mr Kekana were
walking up and down at the
screening area the previous day. It was arising from this that Mr
Magugu was charged with deserting
his post.
[69] Ms Monyeki conceded
during cross examination that her version before this court was
different to what she is stated to have
said during the disciplinary
hearing. In terms of the disciplinary report, it is recorded that on
the day in question Ms Monyeki
was informed that Mr Magugu was at the
terminal. She confirmed at the disciplinary hearing that she looked
at the cameras and she
saw him at the terminals.
[70] The version that Mr
Serobe contacted her the following day was initially changed to say
that she never in court said that Mr
Serobe confronted her the
following day about Mr Magugu being at the terminals. She also during
cross examination sought to avoid
the question of whether Mr Serobe
confronted her the following day or the same day by seeking to limit
her answer to saying that
she was confronted by Mr Serobe, however on
further questioning she conceded and said, ‘yes, Mr Serobe
confronted me the
next day.’
[71] Another concession
made by Ms Monyeki was that on numerous occasions previously, Mr
Kekana and Mr Magugu left the control room
and went to the terminals
to investigate whatever they may have observed on the cameras.
[72] The leaving of the
control room to go to the site by the surveillance was not regarded
as irregular by the respondent. In fact,
in response to an email
which Mr Magugu send to management regarding this issue management a
month before the incident in question
informed him that he was doing
a good job with his walkabout and informed him that he had 150%
support from them in that regard.
Although the response came from Mr
Magugu’s immediate supervisor, Ms Monyeke was also copied on
the email. She never responded
to the email but sought during cross
examination to distance management’s responsibility in the
assurance given by the supervisor
by saying that it was the
supervisor’s view. It is quite strange and difficult to accept
that Ms Monyeki would fail to respond
to an email which on her
version indicated that an employee was doing something that she says
she had ruled was no longer permissible.
In any case, she says that
in her directive stopping the practice she told the employees that
they could only do walkabouts with
her permission or that of their
immediate supervisors. In the case of Magugu, he had approval and
support from his supervisor and
for that matter in writing.
[73] The version of
Monyeki does not assist the case of the respondent even if it was
accepted that she did direct that the employees
should no longer do
the walkabouts. If she did in fact regarded the offence as serious
enough to warrant termination of the employment,
the question is why
did she not take prompt action against Mr Magugu as soon as the
alleged misconduct came to her attention. If
she regarded the conduct
as a serious offence, why did she not summon him immediately to the
office and reprimand him or inform
him that he would be disciplined
for what he had done. It is apparent that nothing was said to Mr
Magugu regarding the alleged
offence he was alleged to have committed
in full view of management until he knocked off on 26 August 2010. In
fact nothing was
done or said to Mr Magugu about the offence he was
alleged to have committed for over a week, from 26 August to 3
September 2010.
[74] The other witness
who testified on behalf of the respondent in the case of Mr Magugu is
Mr Kekana who confirmed that Ms Monyeki
had told them to focus to
focus their cameras at the terminals because there was a go slow.
[75] In relation to the
issue of Mr Magugu leaving the control room he testified that he told
other employees in the control room,
including the immediate
supervisors Mafudi and Gladys that he wanted to go and do the patrol
on the ground floor.
[76] Mr Kekana testified
further that after he and Mr Magugu had left the control room he
phoned Ms Moyeki and informed her that
he wanted to go and find out
from Estelle what was happening downstairs. The version of Mr Kekana
does not assist the respondent
because the essence of what he says is
that the immediate supervisors who had the power to authorise the
walkabouts in line with
the directive made Ms Monyeki, did not say
anything when he told them in the presence of other employees that he
was going downstairs.
[77] As concerning the
charge of inciting the industrial action Mr Munengwana testified that
Mr Magugu encouraged the employees
during his address at the parade
to continue with what they did the previous. In this regard, he is
accused of having said the
following:
‘
Comrades,
indeed there is nothing improper about what happened yesterday. I
have checked the cameras and there was no deviation
to standard. What
you have done is in compliance. But I am talking as a surveillance
analyst, but not on behalf of a Department…’
Mr Magugu’s
version
[78] At the time of the
dismissal, Mr Magugu was employed as a surveillance analyst. He
testified how on the day in question Ms
Monyeki told them to focus
their cameras on the security points.
[79] As concerning the
allegation, that he incited employees to engage in industrial action
Mr Magugu deny the allegation and stated
that all what he said was
that from his observation from the cameras he did not see any
industrial action all what is so was free
from him in the work.
Evaluation/ Analysis
[80] The applicants have
pleaded that they had been victimised and discriminated against by
the respondent in contravention of the
provisions of section 187 (1)
of the LRA.
[81] It is trite that in
the case of an automatically unfair dismissal, the evidentiary burden
rests with the applicant to raise
credible possibility that an
automatically unfair dismissal has taken place. In the present case,
there is some evidence that points
towards the fact that the
applicants were dismissed because of doing their work as shop
stewards. This is particularly so in the
case of Mr Tiro and Mr
Nompuku. There is however some doubt in my mind as to whether the
evidence is sufficient to establish a
credible basis upon which it
can be said that the dismissal was automatically unfairly.
[82] It would however
appear to me that the real issue in this case which stands out
clearly and provides an appropriate basis upon
which the dispute
between the parties can effectively be resolved concerns the fairness
or otherwise of the dismissal. In this
regard, there is overwhelming
evidence that the dismissals of the individual applicants were
substantively unfair.
[83] It is apparent from
the above discussion that there are several dispute of facts in
almost every aspect of this matter. Accordingly,
the technique to
apply in this regard is that which was set out in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martel and Cie SA and
Others
.
3
The
essence of the technique to apply when confronted with versions that
are mutually destructive of each other is to consider the
credibility
of the witnesses that testified and to weigh the balance of
probabilities.
[84]
The respondent in support of its case that the dismissal was
substantively fair rely on the testimony of five witnesses. The
other
witnesses who testified in support of the case of the respondent were
chairpersons of the disciplinary hearings who testified
mainly about
the procedural fairness of the dismissals.
[85]
It is apparent from the above discussion that the evidence of the
managers who testified about the substantive fairness of
the
dismissal left much to be desired and without any doubt was
unsatisfactory. Each one of them with no exception was highly
subjective and seems to have adopted an attitude that they would not
accept anything that may seem to support the cases of the applicants.
In this respect, I agree with the submissions made on behalf of the
applicants and as the above discussion also indicates that,
the
respondents witnesses in a material way contradicted each other,
contradicted each other’s evidence in a number of respects
and
contradicted in certain respects the respondents own pleaded case. It
is for this reason that I am of the view that the testimony
of the
respondent’s witnesses who testified about the substantive
fairness of the dismissal should be rejected.
[86]
I further found that the respondent has failed to discharge its
burden of showing on the balance of probabilities that the
dismissal
of the applicants were substantively fair.
[87]
In support of the contention that the dismissal was unfair, each of
the applicants testified in general about their case and
specifically
as concerning their own individual cases. I do not agree with the
respondent's counsel in the heads of argument when
he says that
applicants’ witnesses were not credible. I have found each one
of the applicant’s witnesses to have been
consistent in the
versions about their respective cases and came across as being honest
and objective about their cases.
[86]
Turning to the cases of each of the applicants, I make the following
findings: In relation to the case of Mr Tiro, he was found
guilty of
disrupting operations at the terminals in that he is alleged to have
had discussions with employee who were busy at the
x-ray machine. He
was also found guilty of insubordination because he ignored the
instructions to return to his post on three occasions.
[87] The substantive
fairness of the dismissal of Mr Tiro in the first instance turns
around whether he had permission to approach
Mr Letshaba and speak to
him whilst he was busy at the x-ray machine. The evidence of Mr
Makhondo, who was the main witness in
relation to the charge of
speaking to employees during working hours, was the most unreliable.
The evidence he presented before
this court was in conflict with his
testimony at the disciplinary hearing. He failed to provide any
satisfactory explanation as
to the conflict between the two versions.
It would seem to me that the balance of probabilities support the
version that Mr Mkhonto
did grant permission to Mr Tiro to speak to
Mr Letshaba particular when regard is had to the fact he ultimately
during cross examination
conceded that he did speak aside with Mr
Tiro on the day in question.
[88] The dismissal would
still have been unfair, even if it was to be concluded that Mr Tiro
did not have the permission to speak
to Mr Letshaba, if the totality
of the evidence and the circumstances of this case are taken into
account. On the version of the
respondent, Mr Tiro spoke to the
person in question, for not more than a minute. It has also not been
disputed that he did not
speak to him about private matters but spoke
to him regarding employee issues and that Mr Tiro, did that in his
capacity as a shop-steward.
The cases of Mr
Sithole and Mr Nompuku
[89] The two applicants
were dismissed because they were accused of encouraging employees who
had participated in the alleged go-slow
on 26 and 27 August. They
were also dismissed for insubordination in that it is alleged that
they refused to allow Mr Tshabalala
the opportunity to address the
employees after they had been removed from their workstations.
[90] The version of Mr
Munengwane about what happened at the parade is both strange and
illogical. He firstly, say the shop stewards
requested to address the
parade, which is a meeting convened by management to deal with
operational issues. After granting them
the permission, he stood by
and did nothing after listening to each one of them, according to
him, encouraging employees to continue
with an unlawful activity in
an environment of high security and in an area declared national key
point. It is also surprising
that Mr Munengwana did not find it
important to inform both Mr Tshabalala and Mr Serobe about such a
serious matter involving security
risks in particular those relating
to the allegations that employees were encouraged to embark on an
illegal strike.
[91] The same applies to
the version that the two applicants denied Mr Tshabalala the
opportunity to speak to employees. The probabilities
do not, even on
the version of the respondent, support the allegation that Mr
Tshabalala was denied the opportunity to address
the employees. It is
not clear why Mr Tshabalala needed permission from the shop-stewards
to speak to employees. What is even more
surprising is that Mr
Tshabalala granted the shop-steward permission to speak to their
members after they refused him that opportunity.
[92] In my view, Mr
Tshabalala came to testify determined not to give away anything that
may be seen to support the case of the
applicants even if the
objective facts may to contrary show that they had a case. He was
asked as to whether it has ever happened
that the long queues had
gone beyond the maze. He initially projected a picture that says that
that could never happen because
the respondent has systems in plays
that would deal with that eventuality. It was after some effort that
he finally said that it
could happen particularly when supervisors
had not opened enough machines.
The case of M Magugu
[93] Mr Magugu, was also
strangely not confronted by management at the parade when he is
alleged to have incited employees to continue
with the strike action
which they embarked upon the previous day. The issue of him deserting
his post is dealt with earlier in
the judgement. It is clear from the
discussion that, if at all there was in rule that prohibited security
analysts from leaving
the control room to do walkabout on the ground
floor, that was not consistently applied such that the breach thereof
could not
in the circumstances be regarded as serious enough to
warrant a dismissal. In any case, in the particular circumstances of
the
case of Mr Magugu, was encouraged to do what he did on the day in
question by management. The charge of breach of trust was not
substantiated neither was there evidence as to, how serious was it to
have warranted a dismissal. There was also no evidence as
to what
impact it had on the trust relationship between the parties.
[94] In relation to the
charge of the breach of the recognition agreement and non compliance
with its provisions, it needs to point
out that there are no merits
in this charge. A collective agreement creates a relationship between
a union and the employer. If
any breach occurs in that regard the
employer shall have recourse against the union and not the individual
employees. There are
also no merits in the charge relating to breach
of essential service exemption.
The relief
[95] The applicants have
each pleaded for reinstatement. The respondent on the other hand has
argued that reinstatement is an inappropriate
remedy because each of
the applicants accused their managers of not telling the truth in
their testimony.
[96] The remedies for
unfair dismissal is dealt with in terms of section 193 (2) of the
LRA. It is trite that in terms of this section
that the primary
remedy when the dismissal is found to be unfairly is reinstatement
unless:
‘
(a) the
employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the
dismissal are such that a continued employment relationship would be
intolerable;
(c) it is not reasonably practicable
for the employer to reinstate or re-employ the employee or;
(d) the dismissal is unfair only
because the employer did not follow a fair procedure.’
[97] The essence of the
respondent’s case is that reinstatement would be inappropriate
where the employee simply presents
a version different to that of the
employer. This approach, in my view is untenable because if it was to
be adopted it would then
mean that anything provided for in section
193 would be in effectual. Any dismissed employee is in law entitled
to challenge whatever
version of the employer puts before the court
to justify the dismissal. In other words, the relationship between
the parties cannot
be said to have broken down simply because the
employee presented a different version to that of the employer.
[98] The onus is on the
employer to establish a factual and legal basis for holding that it
is not reasonably practicable to reinstate
a dismissed employee. In
the present instance, there is no basis in facts and law to conclude
that it is not reasonably practicable
to reinstate the individual
applicants.
[99] It was suggested
that in the case of Mr Tiro, account should be taken of his
correspondence. I have already stated earlier
that Mr Tiro acted in
his capacity as a shop-steward, and therefore any wrong doing in that
regard should be attributed to the
union.
[100] In my view, the
respondent has failed to discharge its onus of showing that the
individual applicants are in fact guilty of
misconduct and as
indicated earlier why reinstatement is not an appropriate remedy. I
am, accordingly, satisfied that the applicants
stand to succeed in
their claims that they were unfairly dismissed.
[101] In light of the
above, I do not deem it necessary to deal with the issue of
procedural fairness.
[102] I see no reason, in
the circumstances of this case, why costs should not follow the
results.
Order
[103] In the premises,
the following order is made:
1. The dismissals of each
of the applicants, Mr Tiro, Mr Sithole, Mr Nompuku and Mr Magugu were
unfair.
2. The respondent is
ordered to reinstate the individual applicants retrospective from the
date of their respective dismissals without
loss of any benefits that
may have accrued.
3. The respondent is
ordered to pay the costs of the applicants.
_______________
Molahlehi, J
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant : Adv
H.Van der Riet
instructed by Cheadle
Thompson Haysom Attorneys
For the Respondent: Adv
Ngalwana Instructed by Mkhabela Huntley Adekeye Attorneys
1
The
relevant provisions of Section 5 (1)of the LRA reads as follows: (1)
No person may discriminate against an employee for exercising
any
right conferred by this Act.
2
Section
187 of the LRA reads as follows:
187. Automatically
unfair dismissals
(1) A
dismissal is automatically unfair if the employer, in dismissing the
employee, acts contrary
to section 5
49
or, if the
reason for the dismissal is- that the employee participated in
or supported, or indicated an intention to participate
in or
support, a strike or protest action that complies with the
provisions of Chapter IV;
50
that the employee refused, or
indicated an intention to refuse, to do any work normally done by
an employee who at the time
was taking part in a strike that
complies with the provisions of Chapter IV or was locked out,
unless that work is necessary
to prevent an actual danger to life,
personal safety or health;
(c) to
compel the employee to accept a demand in respect of any matter of
mutual interest between the employer and employee;
that the employee took action, or
indicated an intention to take action, against the employer by-
(i)
exercising any right conferred by this Act; or
(ii)
participating in any proceedings in terms of this Act;
the employee's pregnancy, intended
pregnancy, or any reason related to her pregnancy;
(f)
that the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground,
including, but not
limited to race, gender, sex, ethnic or social origin, colour,
sexual orientation, age, disability, religion,
conscience, belief,
political opinion, culture, language, marital status or family
responsibility;
(g) a
transfer, or a reason related to a transfer, contemplated in section
197 or 197A; or
(h) a
contravention of the
Protected Disclosures Act, 2000
, by the
employer, on account of an employee having made a protected
disclosure defined in that Act.
(2)
Despite subsection (1)(f)-
(a) a
dismissal may be fair if the reason for dismissal is based on an
inherent requirement of the particular job;
a dismissal based on age is fair if
the employee has reached the normal or agreed retirement age for
persons employed in that
capacity.
3
2003
(1) SA 11
(SCA) at para 5. The SCA stated that the
technique to apply in the following terms:
On
the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So too on a number of peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual
disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court must
make findings on
(a) the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to
(a), the court's
finding on the credibility of a particular witness will depend on
its impression about the veracity of the witness.
That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness's
candour and demeanour in
the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv)
external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements
or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance
compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness's reliability will depend,
apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities he had
to experience or observe
the event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an
analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues. In the light
of its assessment of (a), (b) and (c) the court
will then, as a final step, determine whether the party burdened
with the onus
of proof has succeeded in discharging it. The hard
case, which will doubtless be the rare one, occurs when a court's
credibility
findings compel it in one direction and its evaluation
of the general probabilities in another. The more convincing the
former,
the less convincing will be the latter. But when all factors
are equipoised probabilities prevail.