About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2012
>>
[2012] ZALCD 3
|
|
SACCAWU and Other v Check One (Pty) Ltd (D826/2009) [2012] ZALCD 3; (2012) 33 ILJ 1922 (LC) (24 January 2012)
13
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case no: D826/2009
In the matter between:
SACCAWU
…..........................................................................................
First
Applicant
NOMFUNDO NXUMALO AND
OTHERS
….................
Second
and Further Applicant
and
CHECK ONE (PTY) LTD
….....................................................................
RESPONDENT
Date of hearing: 12
September 2011
Date of Judgment: 24
January 2012
___________________________________________________________________
JUDGMENT
CELE J
Introduction
[1] It is pursuant to
their dismissal on 1 June 2009, that the applicants have instituted a
claim against the respondent of unfair
dismissal while they took part
in an unprotected strike. They seek an order of reinstatement
alternatively, compensation. The respondent
relied upon the evidence
of four witnesses to oppose this claim.
Background facts
[2] The respondent
operates a chain of supermarkets nationally. The second to the tenth
applicant (“the applicants”)
were employed at the
respondent’s branch in Margate, KwaZulu Natal. Most of them
were in charge of cash registers at the
shop of the respondent.
[3] In August 2008, the
first applicant (the union) referred a dispute regarding a refusal to
bargain to the Commission for Conciliation,
Mediation and
Arbitration, (the CCMA), which it said arose on 16 July 2008. The
union had made various attempts to engage the respondent
to discuss
wages and the conditions of employment of the employees of the
respondent. At the conciliation hearing, the parties
agreed to meet
on 16 September 2008 at the Margate store in order to discuss the
union’s concerns. Mr Ivan Bonga Phuthini,
the union’s
organiser, conceded that he failed to attend the meeting scheduled
for 16 September 2008 as he was attending
to a strike at Woolworths
stores. Mr Phuthini further conceded that he did not make any contact
with the respondent for over four
months thereafter until he issued a
letter on 20 January 2009, requesting a meeting on certain proposed
dates. The respondent replied
on 10 February 2009 and proposed a
meeting for 4 March 2009 but Mr Phuthini was not available for 4
March 2009. Mr Phuthini was
approached by the third and fourth
respondents sometime after 25 February 2009 to enquire about the
progress in the matter. He
informed them that he was still waiting
for the respondent to respond to his letters of 11 and 25 February
2009 in which he proposed
certain dates on which they could meet. Mr
Xulu denied receiving those letters. Mr Phuthini did not contact the
respondent thereafter
until the day of the strike on 30 March 2009.
In 2009 there is no organisational rights dispute which the union
referred to the
CCMA in respect of the Margate store nor was there
any dispute in respect of a refusal to bargain referred to the CCMA
preceding
the strike.
[4] On 30 March 2009 and
at approximately 08h00, a group of 38 employees, including the
applicants, embarked on an unprotected strike.
The employees demanded
that a meeting be held between Mr Xulu, the respondent’s
Industrial Relations Manager who was based
at the respondent’s
head office in Durban and their union organiser, Mr Phuthini. At
approximately 08h05, the manager of
the store, Mr Govender, informed
the employees that Mr Xulu was on his way to Margate to meet with
them.
[5] Several verbal and
written ultimatums, calling upon the employees to return to work or
face disciplinary action and possible
dismissal were issued by the
respondent but were ignored by the employees. Mr Govender
communicated such ultimatums to the employees.
The strike took place
during a busy trading period for the respondent and also on the day
that pensioners came to collect their
pension pay at the store.
[6] When the applicants
failed to comply with a verbal ultimatum and the first written
ultimatum to return to work, the respondent
arranged to transport
employees from its branches in Harding and Umzinto to enable it to
open the store in Margate as all the cashiers
were on strike.
Mr
Billy Jooma drove into the yard at the receiving entrance of the
Margate store with four employees who were in uniform from the
Harding store. The striking employees were carrying various weapons
ranging from sticks, pipes, planks and bottles which they waved
around. Mr Jooma alighted from the vehicle whilst the other employees
he brought along remained in the vehicle. After a brief moment
Mr
Jooma took his employees away to wait at the beach for further
instruction. Mr Bilal arrived at the Margate shop shortly thereafter
in another vehicle filled with employees from the Umzinto store. Mr
Bilal also left the store with his staff and went to the beach
area
to wait with Mr Jooma for further instructions. On two occasions the
respondent elicited the help of the South African Police
Services
(SAPS) members who came to the Margate shop to maintain peace. Mr
Xulu finally arrived at the Margate store and as he
did so, the
striking employees sang and “toy toyed” even louder. Mr
Xulu was accompanied into the store by Mr Steven
Bobby, a security
official in the employ of the respondent.
[7] The respondent sent a
letter to the union’s regional office to report that its
employees had embarked on an unprotected
strike at its Margate store.
That information was sent to Mr Phuthini by the regional office with
an instruction to attend to the
situation. Mr Phuthini left Durban
for Margate but
en route
he went to Pick ‘n Pay Shelly
Beach to collect the union’s local chairperson. Mr Owen Phewa.
They arrived at the Margate
store at about 13h00 but were allowed
into the meeting room at about 13h30. They were with officers of the
SAPS and Mr Conrad Mkhize,
the fourth applicant. There is a dispute
about whether Mr Clement Cele, the third respondent attended the
meeting. Mr Xulu refused
to enter the discussions while the employees
continued with the strike. The union officials left the meeting and
went to the strikers
to persuade them to return to work, undertaking
to deal with the issues at hand. The employees finally returned to
work at 14h00.
The meeting resumed between the union officials and
management of the respondent.
[8] On 1 April 2009, the
respondent gave notice of its intention to charge all the employees
with participation in an unprotected
strike. The applicants faced a
further charge of gross misconduct relating to intimidating and
threatening other employees and
preventing them from working. On 8
April 2009, the charge sheets were handed to the employees and the
disciplinary enquiries were
scheduled for 16 April 2009. The
enquiries were postponed on several occasions at the instance of the
applicants. The enquiry in
respect of the 29 employees who faced one
charge of gross misconduct relating to their participation in an
unprotected strike took
place on 24 April 2009. The employees were
found guilty and were issued with final written warnings.
[9] On 19 May 2009, the
applicants who faced two charges of gross misconduct were suspended
pending the outcome of the disciplinary
hearing. The hearing took
place on 25 May 2009 and on 1 June 2009 and the applicants were found
guilty of both charges of gross
misconduct and were dismissed. On 3
June 2009, the 29 employees who were on final written warnings
embarked on another unprotected
strike in protest against the
dismissal of the applicants. The strike was peaceful and was resolved
in a short space of time.
[10] On 4 June 2009, the
first applicant made representations to the respondent not to dismiss
the employees who were on a final
written warning. The union then
referred an unfair dismissal dispute for conciliation which failed to
resolve it. The dispute was
then referred to this court in terms of
section 191(5)(b)(iii) of the Act.
1
The issue
[11] The trust of the
applicants’ case was that:
The respondent has
failed to apply its discipline consistently as only certain
individuals were charged.
The work stoppage on 30
March 2009 was in response to unjustified conduct on the part of
the respondent.
The applicants were not
intimidating and threatening any employees as they were not
carrying sticks or bottles.
[12] The position taken
by the respondent was that an employer acts within its rights if it
singles out employees guilty of misconduct
and disciplines them. It
remained common cause that the respondent dismissed all the applicant
employees. At issue is the substantial
fairness of the dismissal
which the respondent had to prove.
An alleged failure to
apply discipline consistently.
[13] According to the
respondent, there is no merit in the allegation that only the
applicants were disciplined and that the rest
of the employees were
not charged nor given any kind of warning as has been pleaded. The
other 29 employees were found guilty of
participating in an
unprotected strike, causing the respondent to suffer a financial loss
and were given a final written warning.
It was because of the
additional charge that the applicants were dealt with differently. To
the extent that the applicants have
sought to extend their evidence
to the strike action on 3 June 2009, Mr Xulu and Mr Govender gave
undisputed evidence that the
work stoppage was peaceful and endured
for a very short period of time. The union made representations to
the respondent not to
dismiss the employees.
[14] The applicants’
case in this respect is that of refuting that any of them were
properly identified as having committed
the second acts of misconduct
and therefore that they were entitled to be treated as the other 29
employees.
Work stoppage was in
response to unjustified conduct of the respondent.
[15] The respondent’s
version was that the applicants were dismissed for misconduct
relating to violent, threatening and intimidating
behaviour and not
for their participation in an unprotected strike. Mr
Xulu
testified that the union issued a demand to the respondent to
negotiate wages before it had demonstrated the requisite
representivity
and acquired organisational rights at the Margate
store. The union had never issued a demand or referred a dispute
about organisational
rights in respect of the Margate Store and the
respondent was of the view that this was a necessary precursor to
negotiating issues
such as wages. All the correspondence as well as
the dispute referred to the CCMA in August 2008 related to a refusal
to bargain
and not to organisational rights.
The
respondent contended that it also could not be said that the
employees took a conscious collective decision to go on strike
as a
result of the respondent’s alleged unjustified conduct in
that:15.1 The Applicants testified that they were happy with
the
Respondent as their employer;
The union was unaware
of the strike until notified by the respondent;
Mr Mkhize who was a
shop steward did not know that the employees were going to strike;
Mr
Patrick Cwele, the 9
th
applicant, did not even know why he was on
strike.
[16] Mr Phuthini
testified that the respondent initially avoided the union and failed
to respond to a number of its correspondence.
He conceded though that
he failed to attend the meeting of 16 February 2008 due to other
commitments and he did not make any further
contacts with the
respondent for over four months thereafter, until he issued a letter
of 20 January 2009, requesting a meeting
to be held on certain dates
he proposed. In its response the respondent suggested the date of 4
March 2009, which was not suitable
to Mr Phuthini.
The intimidation and
threatening of other employees and weapons carried.
[17] This forms the
subject matter of the second charge. The probe turns on whether the
employees armed with various weapons and
other objects were reliably
identified to have been the applicant employees. This charge arose
from three incidents where it was
alleged that the applicants
threatened and intimidated other employees and prevented them from
doing their work. The evidence of
Mr Govender is accordingly
important in this respect. He worked with all the applicants for
about 6 months and knew them well.
Mr Jooma, Mr Bilal and Mr Xulu
admittedly did not know the applicants well enough to be able to put
a name to their faces. For
whatever reason, Mr Govender did not
testify during the internal disciplinary hearing of the applicants.
[18]
Mr
Govender testified that when the applicants failed to comply with a
verbal ultimatum and the first written ultimatum to return
to work,
the respondent arranged to transport employees from its branches in
Harding and Umzinto to enable them to open the store
in Margate as
all the cashiers were on strike. When Mr Jooma drove into the yard at
the receiving entrance of the store with the
employees from the
Harding store, Mr Govender witnessed the applicants storm and
surround the vehicle. The applicants were carrying
various weapons
ranging from sticks, pipes, planks and bottles which they waved
around and used to intimidate the occupants of
the vehicle who were
in uniform. Mr Cele and Ms Nqoko threatened to cut the throats of
those employees who had just been brought
in to help run the shop. He
said that the other seven applicants told the employees not to alight
from the vehicle; calling them
“rats” and that they had
to go back. The nine were separate from the other staff, who
continued with singing and toy-toying.
Mr Jooma alighted from the
vehicle whilst the other employees were too afraid to leave the
vehicle. He tried to speak to the striking
staff and was moving
forward and the staff moved backwards.
[19] After a brief
discussion, Mr Govender instructed Mr Jooma to take the employees
away and to wait at the beach for further instructions.
When Mr Bilal
arrived shortly thereafter in another vehicle filled with employees
from the Umzinto store, the applicants also threatened
these
employees and prevented them from entering the store. Mr Bilal was
also instructed to leave the store and wait with Mr Jooma
for further
instructions. Upon Mr Xulu’s arrival at the store, his vehicle
was also surrounded by the applicants who were
calling his name,
threatening to assault and kill him, and waving the sticks and
bottles in the air. Mr Xulu had to be accompanied
into the store by
security official. Mr Govender consistently and repeatedly identified
the applicants and the weapons that they
were carrying as follows:
- Conrad Mkhize –
broomstick
- Precious Nqoko –
broomstick
- Eric Ncani –
broomstick
- Javis Langa –
broomstick
- Princess Zakuza –
plank
- Nana Thitsini –
plank
- Clement Cele - green
Autumn Harvest glass bottle
- Patrick Cwele - white
pipe
- Nomfundo Nxumalo -
300ml king size Coke glass bottle.
[20] In respect of Mr
Cele, Mr Govender testified that he saw him swinging the green Autumn
Harvest bottle at him when he delivered
the ultimatum to Mr Mkhize.
Mr Govender called the police for assistance on two occasions, once
after Mr Jooma’s incident
and when Mr Xulu arrived. Mr Govender
further said that the applicants surrounded him when he delivered the
ultimatum and that
he felt threatened and scared because the
atmosphere was hostile. He said that he was present during the
meeting between the officials
of the union Mr Mkhize, Mr Cele, the
police and Mr Xulu. The meeting became heated and Mr Mkhize pointed
his finger at Mr Xulu
and threatened to assault him, speaking in
English as he did so.
[21]
Mr Govender testified that whilst the employees were striking, the
store was not trading and that he was watching them from
the
receiving door at the back of the store. He walked outside into the
yard from time to time. Mr Mditshwa, the bakery
supervisor for
the respondent, who had been with the Margate shop for three years,
testified that he was sitting with Mr Govender
at the receiving
entrance and that they could see everything that was happening
outside. He said that Mr Govender walked around,
peeped through the
door and at times walked outside and would come back and that he
continued to do so until eventually the people
from the head office
came. Mr Mditshwa said that Mr Govender did not at any stage go to
sit in his office.
[22]
Mr
Govender said that he identified Mr Mkhize and Mr Cele to Mr Jooma
and that he identified the applicants to Mr Bobby, the security
officer prior to the internal disciplinary enquiries for all 38
employees. Mr Govender testified that he was possibly not called
to
give evidence because he worked at the store with the employees and
there might have been fear of intimidation. It was
only Mr
Bobby and Mr Xulu who gave evidence at the disciplinary hearings. Mr
Jooma was supposed to give evidence but was not available
on the day
to give evidence personally.
[23] Mr Xulu testified
that, when he arrived at respondent’s shop, in addition to
employees singing and shouting, a whole
group of employees ran
towards him, shouting and calling his name. He stated that the group
was very aggressive and violent when
it was coming to him. In respect
of the incident in the meeting room, he said that Mr Mkhize walked up
to him, poked him with a
finger and in Zulu, threatened to assault
him in the presence of the police.
[24]
Mr
Bobby did not testify during the trial but he testified at the second
disciplinary hearing. He said that he arrived at the Margate
shop
between 11h00 and 12h00 on 30 March 2009 and entered through the
receiving area. When he alighted from the motor vehicle he
was
travelling in, he saw most of the applicant employees on strike. He
saw Mr Jooma there but did not see his car. He said that
the staff
collectively shouted, screamed and waved objects in the air, which he
considered to have been “toy toying”.
In respect of what
transpired when Mr Xulu emerged from the vehicle he stated only that
the noise became louder and he felt threatened
on Mr Xulu’s
behalf.
[25]
The applicant employees who testified
agreed that Mr Govender had worked with them on a daily basis for at
least six months prior
to the strike action. He knew them well and he
could easily identify them. They conceded that he knew each of them
very well and
by their names, and that out of the respondent’s
witnesses who testified, he knew them the best. The applicants said
that
they had a good relationship with Mr Govender and that he would
have no reason to falsely implicate them.
[26] On their version,
they conceded that Mr Govender could have observed them when he came
out to tell them that Mr Xulu would
be coming to the shop, when he
came to them to deliver the verbal and written ultimatums and when he
came out with Mr Bilal who
was then leaving the shop. They said that
Mr Govender was nowhere on the scene when Mr Jooma arrived at the
shop.
[27] Mr Mkhize said that
the employees sang vigorously when the vehicles with the employees
from the other shops arrived. He conceded
that none of those
employees alighted from the vehicles from Harding and Umzinto. Mr
Cele admitted that he was carrying a bottle
but said that it was
plastic made. He said that only two males carried planks. Ms Eustacia
Nxumalo, the second applicant said that
she carried a 300ml king size
Coke bottle but that it was a plastic. She used it to carry drinking
water as it was a hot day. Ms
Princess Zakuza, the sixth applicant
testified that there were many people carrying sticks, too many to
identify. She also testified
that there were many people who carried
planks. Mr Sibusiso Eric Ncani the eighth applicant confirmed that he
was at the front
of the crowd and could easily be identifiable. Mr
Patrick Cwele, the ninth applicant admitted that he was carrying a
white pipe
which he used for sound production as a “vuvuzela”.
He was standing in the middle of the crowd. Ms Precious Nqoko denied
that she carried any broomstick while taking part in the strike. She
said that only two men carried planks and none carried the
alleged
broomsticks. Ms Nana Thusini, the tenth applicant and a Till
Supervisor said that she only carried a piece of card box
to block
the sun and to fan herself therewith. She denied carrying a plank as
alleged by Mr Govender. All applicants said that
they had not been
successful in getting employment elsewhere since their dismissal by
the respondent.
Evaluation
[28]
In relation to selective discipline, the respondent submitted
that
there
was
no merit
in the allegation that only the applicants were disciplined and that
the rest of the employees were not charged nor given
any kind of
warning as has been pleaded.
29 employees
were charged with one count of gross misconduct for participating in
an unprotected strike and causing the respondent
to suffer a
financial loss
. The 9 applicants were charged with two counts
of gross misconduct for participating in an unprotected strike and
for threatening
and intimidating other employees and preventing them
from working. Pursuant to disciplinary hearings the 29 employees were
issued
with final written warnings and the applicants were dismissed
on the basis of the second charge. The applicants have not shown that
selective discipline was at play in this matter.
To
the extent that the applicants have sought to extend their evidence
to the strike action on 3 June 2009,
Mr
Xulu
and
Mr
Govender gave undisputed evidence
that the work stoppage was peaceful, endured for a very short period
of time and the union made
representations to the respondent not to
dismiss the employees.
[29]
In respect of the unjustified conduct on the part of the respondent,
the probable version is that of the respondent, namely
that when
strikers were dismissed for misconduct, they were dismissed for a
second disciplinary misconduct and not for the act
of striking
per
se.
Procedures applicable to dismissals
for misconduct ought to be followed.
I find in the
circumstances that, the applicants were dismissed for misconduct
relating to violent, threatening and intimidating
behaviour, as
submitted by the respondent and not for their participation in an
unprotected strike and accordingly the provisions
of item 6(1) of the
Code of Good Practice for dismissals were not applicable. This issue
was correctly not vigorously pursued by
Mr Schumann for the
applicants.
[30] On the final issue
of intimidation, threatening and carrying weapons the respondent
submitted that the applicants’ denial,
as pleaded was, on the
face of it, false as Mr Cele and Ms Nxumalo conceded that they were
carrying bottles which, court was asked
to find, were glass and not
plastic made. To the extent that the applicants claimed that it was a
case of mistaken identity, the
submission was that none of them could
explain why Mr Govender would identify women as carrying sticks and
planks when they claimed
that only two men carried planks. The
further submission was that Mr Govender’s version was
corroborated by the applicants’
versions in several respects
and had to prevail,
inter alia,
in that:
Mr Mkhize confirmed
that the police were called on two occasions and that they were
present during the meeting held with Mr
Xulu and the union
officials;
Mr Mkhize also
confirmed that the employees intensified the singing (“singing
vigorously”) when the vehicles with
the employees arrived;
Mr Mkhize conceded that
none of the employees alighted from the vehicles from Harding and
Umzinto but was unable to explain
why that was so.
Mr Cele admitted that
he was carrying a bottle but claims that it was plastic. This
distinction was not mentioned when he gave
evidence at the
disciplinary enquiry.
[31]
It was submitted that in the absence of any reason why Mr Govender
would implicate the applicants as opposed to any of the
other
employees, his version was to be accepted. Court was asked not to
regard as sinister the fact that Mr Govender did not testify
at the
disciplinary hearing.
It
was submitted that the respondent’s internal processes and the
legal abilities of its representative at the disciplinary
enquiry was
not be judged according to the standard that one would apply to a
judicial process where the rules of evidence were
fully understood.
[32] The defence of the
applicants was simply that they were not correctly identified by Mr
Govender whose evidence was nothing
short of a fabrication.
[33]
In respect of the issue in point, the two versions of the parties are
contradictory and cannot co-exist. The respondent bore
the onus to
prove that it had a fair reason to dismiss the applicant employees on
the basis of the additional charge. In this trial,
the applicants
have successfully shown that the evidence on the basis of which they
were dismissed, pursuant to the disciplinary
hearing, was very
unconvincing as Mr Govender did not testify and he was the only
person who could have identified them for violent
behaviour. The
respondent has had the benefit of a trial
de
novo,
during
which Mr Govender testified as the respondent was entitled to call
him.
[34]
Contrary to the submissions by counsel for the applicants, I find
that Mr Govender was a credible witness. While court has
to exercise
caution in accepting single evidence, such evidence may be accepted
if the testimony of the witness was satisfactory,
even in the absence
of its corroboration. Mr Govender had a number of occasions, some of
which were concede to by the applicants,
during which he could
observe the behaviour of the striking employees. He knew them well.
There are moments when he came very close
to their proximity, at
which instances his observation could be reliable. He was never shown
to have had any motive to want to
falsely implicate the applicants.
Some aspects of his evidence were corroborated by the applicants
which lends credence to his
version. His evidence was never shown to
have any material internal and external contradictions with what was
pleaded or put on
behalf of the respondent, see
Stellenbosch
Famers’ Winery Group Ltd and Another v Martell Et Cie and
Others.
2
When
all evidential material is considered, the version of the respondent
comes across as favoured by the balance of probabilities.
[35]
According to Mr Govender t
he
applicants were carrying various weapons ranging from sticks, pipes,
planks and bottles which they waved around and used to intimidate
the
occupants of the vehicle who were in uniform. In respect of Mr Cele,
Mr Govender testified that he saw him swinging the green
Autumn
Harvest bottle at him when he delivered the ultimatum to Mr Mkhize.
Whether the container was of plastic or glass make therefore
becomes
irrelevant as it was used as a weapon to instil fear. Mr Govender
further said that the applicants surrounded him when
he delivered the
ultimatum and that he felt threatened and scared because the
atmosphere was hostile. He said that Mr Cele and
Ms Nqoko threatened
to cut the throats of those employees who had just been brought in to
help and that the other seven applicants
told the employees not to
alight from the vehicle, calling them “rats” and that
they had to go back. The nine were
separate from the other staff, who
continued with singing and toy-toying. From this evidence it is clear
that the conduct of each
of the nine applicants could be
distinguished from the conduct of the rest of the other staff. It is
Mr Govender’s evidence
which explains the rationale behind the
departure of Messrs Jooma and Bilal and their staff from the Margate
shop. The suggestion
by the applicants that Mr Govender was not at
the scene when Mr Jooma arrived at the Margate shop is therefore not
favoured by
the probabilities of this matter.
[36] Contrary to the
detailed evidence of the respondent the applicants’ version
amounted to a bare denial of committing the
alleged misconduct. It
remained undisputed that there was a group of employees who charged
towards the motor vehicles that brought
in the relief staff in a
threatening manner. The main issue turned on who those nine employees
were. In my view the evidence of
the respondent has been satisfactory
and reliable in identifying the applicants as being the nine that
committed the second misconduct.
Correctly so, this enquiry did not
turn on the appropriateness of dismissal as a sanction.
[37] Accordingly the
following order will issue, taking into account the law and fairness
of the issue on costs:-
The application is
dismissed on the basis that the dismissal of the nine applicants by
the respondent was substantively fair.
No costs order is made.
______________
Cele J.
APPEARANCES
For the applicants: Mr P
Schumann instructed by Brett Purdon Attorneys.
For the respondent: Ms L
R Naidoo instructed by Lockhat & Associates.
1
The
Labour Relations Act 66 of 1995
.
2
2003
(1) SA 11
(SCA) at 14 - 15.