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[2013] ZALCJHB 84
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Pule and Others v Mvelatrans (Pty) Ltd t/a Bojanala Bus Services (JS 535/2010) [2013] ZALCJHB 84 (23 May 2013)
REPUBLIC OF SOUTH AFRICA
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 535/2010
In the matter between:
JACKSON PULE AND OTHERS
...............................................................
Applicant
and
MVELATRANS (PTY) LTD T/A
BOJANALA BUS SERVICES
...............................................................
Respondent
Heard: 04 May 2013
Delivered: 23 May 2013
Summary: Unfair dismissal- participating in unprotected strike.
Duration of ultimatum not affording the applicants time to seek
assistance and advice. Duration of ultimatum, is a principle issue-
no need to lead evidence. Factors to consider in not granting
primary
remedy. Employee submitting sick note- Employer’s duty to make
sure that there is effective communication system
about matters of
this nature.
______________________________________________________________
JUDGMENT
______________________________________________________________
MOLAHLEHI, J
[1] There are two groups of applicants in this matter who are
claiming that they had been unfairly dismissed by the respondent.
The
one group is represented by Modisakeng Attorneys and the other group,
on a
pro bono
basis, by Wright Rose Innes Incorporated. The
alleged unfair dismissal of the applicants arose from the alleged
failure to comply
with the ultimatum which was issued by the
respondent consequent to the unprotected industrial action embarked
upon by the applicants
over a period of three days.
[2] The applicants contend that their dismissal was both procedurally
and substantively unfair and seek an order of reinstatement.
The Parties
[3] The applicants are former members of SATAWU and TAWUSA who during
November 2009, represented by two other employees, addressed
a letter
to the respondent indicating that they no longer wished to be
represented by the unions and that the respondent should
cancel the
unions’ deductions from their wages.
[4] The respondent conducts a commuter bus service in the North West
Province and has depots at both Tlhabane and Mogwase. The
respondent
provides its services to the commuters through an agreement with the
North West Government which amongst others provides
for penalties in
the event of failure to provide the scheduled services.
Background facts
[5] The issue that led to the dismissal of the applicants arose on 11
November 2009, where at a meeting at the Tlhabane depot,
the union
representatives tabled a number of complaints, which were tabled as
part of the complaints included: (a) salary adjustments,
(b) the 15%
shares, (c) print-out on offer statement, and (d) adjustments on SNT.
[6] The issue of the shares arose as a result of the purchase of the
respondent by Unitrans Passenger (Pty) Ltd (Unitrans)
.
Apparently, the purchase agreement provided that 15% of the
shares of the respondent were to be held in trust on behalf of the
employees.
The complaint of the employees as concerning the holding
of the shares in trust was that, that did not benefit them. According
to the respondent, in order to address the problem, it purchased
these shares and thereafter paid out their values to the employees.
The payment seems not to have satisfied the employees. According to
the respondent, the dissatisfaction arose from the rumours
that the
payment was not in full of the value of the shares.
[7] On 17 November 2009, the bus drivers at the Tlhabane depot
stopped working and demanded feedback on their complaints. The
representative of the respondent, Mr Motitsoe informed them that some
of their complaints could not be resolved at plant level and
as
concerning the issue of the shares they may have to pursue that
through the High Court. The drivers, joined by other employees
refused to go back to work and later during the course of the
afternoon submitted a set of further demands, which included wage
increases and subsistence allowances.
[8] The other demands, submitted by the employees included the
following: (a) a security guard outsourcing package; (b) refund
on
leave days; (c) cell-phone, housing and car allowance; (d) bonuses;
and (e) new management.
[9] Mr Fleetwood informed the employee’s representative that he
was not willing to discuss the demands until employees returned
to
work. The employees disregarded the instruction and on 18
November, they continued blocking the entrances to both depots.
The respondent invited both SATAWU and TAWUSA to a meeting at which
both unions informed the respondent that the employees were not
willing to listen to them.
On 20 November 2009, the respondent launched an urgent application
before this Court and obtained an interdict against SATAWU
and
TAWUSA. The unions did not oppose the urgent application but instead
sent an email to the respondent indicating that they
distanced
themselves from the industrial action. The Court order and the
ultimatum were read out to the employees by members
of the South
African Police Services. The essence of the Court order was to
interdict the employees from participating in the
unprotected
strike. The respondent pointed out to the employees that the Court
had declared their strike to be unprotected and
illegal. It is
further pointed out that the unions were requested to intervene but
to no avail. The ultimatum further reads as
follows:
‘
3.
Employees are hereby instructed to return to work for the afternoon
shift of 29 November 2009.
4. Participation in illegal or
unprotected industrial action is a serious misconduct and the company
will take disciplinary action
against those engaged in misconduct.
This will lead to the dismissal of the employees.
5. The company will take
disciplinary action against those who fail to adhere to this
ultimatum and if failed to return to work
by 15h00 on 20 November
2009 this will lead to the dismissal of employees.’
[10] The respondent instituted a collective disciplinary inquiry
against the applicants following the issuing of the ultimatum.
At the
hearing, the applicants arrived accompanied by their attorney, Mr
Modisakeng. The chairperson of the disciplinary hearing
disallowed
representation by Mr Modisakeng. The applicants then requested a
postponement on the ground that they needed to prepare.
The
postponement was granted until 3 December 2009.
[11] A further postponement was sought by the applicants when the
matter resumed on 3 December 2009. And when the postponement
was
refused, the applicants handed a letter demanding that all charges
against them be dropped. When informed that their demand
would not be
entertained the applicants indicated that they would not participate
in the hearing and walked away. The hearing was
conducted in the
absence of the applicants who were subsequently found guilty and
dismissed for misconduct. The relevant clause
of the notice to attend
the disciplinary hearing reads as follows:
‘
2 You
are charged with gross misconduct in that:
2.1. On 20 November 2009 the
Labour Court issued an interdict instructing staff to return to work
immediately and you did not.
2.2. The company also gave out
an ultimatum instructing you to return to work at 15H00 on 20
th
November 2009 and you failed to do so.”
[12] The notice to attend the disciplinary hearing set out also the
rights of the applicants in as far the disciplinary hearing
was
concerned and in this regard clause 3.1 thereof reads as follows:
‘
3.1.
They (referring to the applicants) are entitled to be assisted at the
disciplinary enquiry by a fellow employee, a shop steward,
a union
official or a representative of their choice.’
[13] In the amended statement of claim, the applicants contend that
their dismissals were substantively unfair because the first
respondent dismissed them in circumstances:
‘
11.1.
where those applicants who were present at the depots returned to
work after the announcement of the ultimatum;
11.2. where the ultimatum was
announced at the Mogwase depot after expiry of the time indicated in
the ultimatum;
11.3. where some of the
dismissed applicants were not aware of the ultimatum;
11.4. those applicants who were
present when the ultimatum was announced did not have sufficient time
to reflect on the ultimatum;
and
11.5. dismissed some but not all
the employees who were on strike at the same time as the applicants.’
[14] As concerning procedural fairness, the applicants contend that
the dismissal was unfair because:
‘
12.1.
the applicants were denied the opportunity to choose their
representative, notwithstanding the contents of notice of the
disciplinary hearing;
12.2. the applicants were not
advised of their right to appeal the decision dismissing them.’
[15] In terms of the pre-trial minutes, the following facts are in
dispute:
‘
15.1.
The applicants allege that Pule had made arrangements with Letanke to
stand in for him in Mogwase depot. The respondent denies
this and
avers firstly that Pule made no such arrangement, Pule went on strike
whereas Letanke did not, and secondly that Pule
had no authority to
make such arrangement in any event;
15.2. The applicants allege that
the following applicants: Dingaan Ngobeni, Johannes Leshi, Silas
Motitsoe, Paul Malekutu, Joseph
Neef Phalole, Matthew Makgoana,
Godfrey Ntsoe, Piet Kgaswane, Ike Malungane and Ephraim Molefe
reported at their workplaces, being
workshop, at 16H00 on the 20
November 2009 but as it was closing time and therefore they
left and went home. The respondent denies this and avers that none of
them reported at the workshop either at 16H00 or at any time on the
20
November 2009. The respondent avers that the workshop
closes at 16H30.’
The issues for determination
[16] The issue for determination by this Court is whether the
dismissals of the applicants for the alleged failure to comply with
the ultimatum were substantively and procedurally unfair. The
substantive fairness of the dismissals relates to both the reason
for
the dismissal and the alleged inconsistent application of discipline
by the respondent. The issue of the inconsistency relates
to one of
the employees whose name appeared amongst the list of those who
participated in the strike action and was dismissed but
later
reinstated according to the applicants.
[17] As concerning procedural fairness, the court needs to determine
whether the dismissal of the applicants was unfair because
the
applicants were denied their representation of choice, being Mr
Modisakeng attorney for the first group who at the time was
representing both groups.
The case of the first group of applicants
Mr Nokwane
[18] The first witness, Mr Nokwane, testified on his own behalf and
on behalf of the following employees who were also dismissed:
(1) Mr
Willy Motshegoa; (2) Mr Markus Sekete; (3) Mr Nechodemus Maruapula;
(4) Mr Lucky Molatlhegi; (5) Mr Skapie Mathabathe; (6)
Mr Modisakeng
and (7) Mr Bomvise Mngomane.
[19] Mr Nokwane testified that he never heard the ultimate being read
on 20 November 2009. He states in his affidavit that the
reason for
not complying with the ultimatum was because:
‘
My
co-applicant and I went home earlier as it was raining and we were
locked out of the premises before the ultimatum was read and
we did
not know anything about the ultimatum. We all went back the following
day.’
[20] In his evidence in chief, Mr Nokwane testified that he suffers
from high blood pressure and on 20 November 2009 he had not
taken his
medication for a period of four days. He was as result of this not
feeling well and it was for this reason that he went
home, resulting
in him not being present when the ultimatum was read. Contrary to
what he stated in the affidavit quoted above,
he testified that he
was inside the yard when he decided to leave for home to fetch his
medication. In other words, he was not
locked outside the workplace.
[21] As concerning the other applicants referred to above, Mr Nokoane
testified that the only two people that he saw on the day
in question
were Mr Lucky Molatlhegi and Mr Skapie Mathabathe. He conceded during
cross examination that he had no direct knowledge
about the other
people whose names appears in the above list. There was some
suggestion that he heard about their whereabouts on
the day in
question at the attorneys’ offices when they raised their hands
to indicate that they were not present when the
ultimatum was read.
And as concerning the reason why Mr Molatlhegi and Mr Mathabathe left
the workplace he could not tell.
Ms Bertha Mfulwane
[22] In her affidavit testifying both on her own behalf and on behalf
of the others whose names appear below, Ms Mfulwane, states
that
after the ultimatum was read they all went back to work. She stated
that the following applicants went back to work with her:
(1) Lipkin
Lamola; (2) Titus Modibedi; (3) Keneth Kwena; (4) Pinky Matome (5)
Lizzy Khonou and (6) Lucky Mpipi.
[23] Ms Mfulwane’s version that the applicants listed above
went back to work soon after the ultimatum was read, is based
on
their response during the consultation with their legal
representative. Apparently, what happened at their consultation is
that their representative enquired as to who amongst them were
present when the ultimatum was read. Those who claimed to have been
present raised their hands. It is on the basis of this response given
by the people listed above during the consultation with their
attorney that Ms Mfulwane stated that they were present at the time
the ultimatum was read and that they soon thereafter reported
for
work. There is no other evidence submitted on behalf of these
applicants as to what they did after the ultimatum was read.
In terms
of the pleadings, these applicants were present when the ultimatum
was read. The respondent contends that they did not
comply with the
ultimatum.
[24] In disputing the version of Ms Mfulwane, the respondent
presented the testimony of Mr Pretorius who testified that she
(Mfulane)
and her colleague, Ms Matome arrived at the workplace at
16h00 carrying plastic backs full of groceries and that they never
tendered
their services.
Mr Paul Malekutu
[25] In the affidavit, Mr Malekutu testifies that he and those
applicants whose names appears below reported for work on 20 November
2009, at 16h00 only to find that it was already knock-off time.
According to him, he reported at the workshop with the following
people: (1) Joseph Phalole; (2) Mathews Makgwana; (3) Godfrey Ntsoe;
(4) Piet Kgaswane; (5) Issac Malungane and (6) Ephraim Molefe.
[26] He testified that when they arrive at the workshop they were
told by Mr Barney to go home and that they should come on Monday.
He
further testified that the ultimatum was read closer to the knock off
time. He could not, however, explain why they had agreed
in the
pre-trial minutes that the ultimatum was read at 13h00. When
questioned further during cross examination on this issue he
said
that the ultimatum was read at 15h00. And later on, he indicated that
he could not recall what time they were at the gate
and at what time
they were at the workshop.
Mr Thabo Molefe
[27] Mr Molefe testified that he was not present when the ultimatum
was read because he could not go to the Mogwase depot where
he was
based because there were no buses to catch because of the strike.
Mr Kenneth Matuwe
[28] Mr Matuwe testified that he did not report for work at Mogwase
on 20 November 2009 because there were no buses travelling
between
Tlhabane where he was and Mogwase and that is the reason that he was
not present when the ultimatum was read.
The case of the second group of applicants
Mr Pule
[29] The first witness to testify on behalf of the second group of
applicants was Mr Pule, who was based at the Mogwase depot.
He was,
however, at the Tlhabane depot on the day the ultimatum was read. He
testified that on that day he read both the Court
order and the
ultimatum at about 14h45 and was in doing so assisted by Mr Methi of
the South African Police Service.
[30] Mr Pule testified further that after reading the two documents,
he went to Mr Sefanyetsa’s office and requested the
use of the
phone in order to contact Mr Stuurman to inform him that he would not
make it for the deadline of the ultimatum as he
was still to travel
from Tlhabane to Mogwase. After failing to reach Mr Stuurman on his
phone, Mr Pule testified that he contacted
Mr Letanke, a route
controller and arranged that he stand in for him. According to him,
Mr Letanke agreed to his request. He further
stated that subsequent
to this arrangement he contacted Mr Stuurman again and informed him
about the arrangement he had made with
Mr Letanke. Mr Stuurman agreed
to that arrangement, according to Mr Pule.
[31] Mr Pule reported for his weekend shift on 21 November 2009. He
was thereafter served with the letter of suspension on 24 November
2009.
[32] Mr Pule was cross examined at length regarding his participation
in the strike including the 17 November 2009 when the Mogwase
deport
was not yet on strike but Tlhabane was. In his answer during cross
examination, he sought to present a picture that he was
not on strike
but reported at Tlhabane because there were no buses running between
Mogwase and Tlhabane.
[33] The respondent argued that Mr Pule was not a credible witness
and that his evidence in relation to the alleged arrangement
he made
with Mr Stuurman should be rejected as a fabrication.
[34] As concerning the fairness of the procedure, Mr Pule testified
that the chairperson of the disciplinary enquiry refused them
legal
representation during those proceedings. The unfairness of the
procedure followed during the disciplinary hearing is also
attributed
to the refusal by the chairperson to recuse himself.
[35] The other point raised by the applicant's in as far as the
fairness of the dismissal relates to the alleged inconsistent
application of the disciplinary procedure is that Mr Moalusi who is
alleged to have not complied with the ultimatum was not dismissed.
[36] Although, in the pre-trial minutes it is stated as common cause
that the ultimatum was read at 13h00, Mr Pule disputed that
it was
read at that time. He testified that the ultimatum at the Tlhabane
was read at 14h00.
[37] Mr Pule further testified that during the strike he reported
every day for work at the Tlhabane depot even though he was stationed
at Mogwase because he stays in Tlhabane and there was no transport to
take him to Mogwase during the strike. He explained that
the reason
he reported at the Tlhabane depot was to align himself with the
strike.
[38] During cross examination, Mr Pule testified that he was not on
strike but was “affected” by it in that his duties
and
function depended on the running of the busses. He also stated that
he was not able to attend at Mogwase depot because the
respondent did
not provide buses to collect him from Tlhabane as was the practice.
Although he reported at the Tlhabane depot,
he never tendered his
services there neither did he report to any manager about his
presence at that depot. When asked as to why
he did not indicate in
his affidavit that he was not on strike in his affidavit, he stated
that it was because he was never asked
about it.
Mr Leshi
[39] The second witness of the second group of applicants was Mr
Leshi who was based at Mogwase depot. He testified that on the
day in
question, he saw two police officers arrive at the workplace. The two
police officers went to the offices and on their return
went to where
the applicants were gathered. The police officers were accompanied by
Mr Mfikana, one of the managers of the respondent.
On arrival at the
area where the employees had gathered they read the ultimatum.
[40] According to Mr Leshi after the ultimatum was read he together
with the others went and reported for work at the workshop
where they
were based at about 15h45. It being a Friday and the practice being
that on such a day they normally knocked off earlier
they went
straight and took their shower, after which they knocked off. At that
time, one of the supervisors, Mr Nkoane was in
his office and the
other Mr Barney was busy cleaning the floor.
[41] Mr Leshi persisted even during cross examination that the
ultimatum was read at 15h45. He disputed that the ultimatum was
read
at 13h00. He also claimed that he knocked off at 16h15 and further
that they were not told to report to any one after the
reading of the
ultimatum.
Ms Matinku
[42] The third witness was Ms Matinku who testified that she was on
the day in question sick and had faxed the medical certificate
to the
respondent in that regard. It has not been disputed that she was
booked off sick from 19 to 20 November 2009.
[43] The respondent conceded to the version of Ms Matinku but
contended that she was not entitled to retrospective reinstatement
because she ought to have informed the respondent about her case
earlier before the commencement of these proceedings.
Ms Mothoagae
[44] Ms Mothoagae testified that the ultimatum was read at 15h45 and
soon thereafter she reported for work but found that the area
where
she worked locked and even the office of his supervisor was closed
and the lights were off.
Mr Sepotokele
[45] Mr Sepotokele testified that from lunch he went to work. He came
across Mr Sibeko who told him that the ultimatum had already
been
read. He testified that the reason for returning late at the depot
was because he had gone to buy food far away from the depot
because
the canteen that operated at the workplace and the caravan that sold
food outside the gate were not operating on that day.
He went to buy
food with Mr Setshedi.
[46] Mr Setshedi confirmed what was stated by Mr Sepotokele that they
went to buy food away from the workplace because the canteen
at the
workplace was closed. He stated that on arrival from buying food he
went to his foreman at the washing bay. He testified
during cross
examination that he did not see Mr Sibeko on his return from buaying
food.
Mr Ndlovu
[47] Mr Ndlovu states in his affidavit that on 16 November 2009 he
discussed with his supervisor, Mr Matsikoe that he required
to take
leave of absence on 20 November 2009 to attend to his son who needed
to be taken to hospital because he had a heart problem.
According to
him, permission was granted and this was not the first time that he
had arranged his leave of absence for this reason
in that manner.
[48] The respondent did not dispute that at the time of the ultimatum
was read he was not present and that he was at the hospital.
Mr Khunou
[49] Mr Khunou testified that, on the day the ultimatum was read, he
had gone to collect his TB medication and had made arrangement
in
that regard with his supervisor which arrangement he had previously
done.
Mr Ngobeni
[50] Mr Ngobeni has since the launching of these proceedings passed
away. His estate has not been substituted in these proceedings
and,
accordingly, that case has not been placed before this Court.
Legal principles
[51] It is trite that participation in an unprotected strike in our
law is misconduct which may result in dismissal of those employees
who participate in such a strike. However, participation in an
unprotected strike does not in terms of Item 6 of the Code of Good
Practice: Dismissal, automatically lead to a fair dismissal. In this
respect section 68 (5) of the Labour relations Act of 1995
provides:
‘
(5)
Participation in a
strike
that does not comply with the provisions of this Chapter, or conduct
in contemplation or in furtherance of that
strike
,
may constitute a fair reason for
dismissal
.
In determining whether or not the
dismissal
is fair, the
Code
of good practice
:
Dismissal
in Schedule 8 must be taken into account.’
[52] The fairness or otherwise of a dismissal arising from
participation in an unprotected strike action has to be assessed
taking
into account the facts and the circumstances of a given case.
The factors to take into account in terms of the Code of Good
Practice:
Dismissal, include (a) the seriousness of the contravention
of the of the law, (b) attempts at complying with the requirements of
the law and (c) whether or not the strike was in response to
unjustified conduct of the employer.
[53] The evaluation of the substantive fairness of a dismissal
arising from an unprotected strike entails also consideration of
whether an ultimatum, is clear and unambiguous. If that is the case a
further inquiry is to be conducted in terms of Item 6(2)
of the Code
of Good practice which
inter alia
provides as follows:
‘
The
employees should be allowed sufficient time to reflect on the
ultimatum and respond to it, either by complying with it or rejecting
it.’
1
[54]
The purpose of an ultimatum should be an endeavour in good faith, to
induce the strikers to return to work.
2
The
purposed of an ultimatum was set out in
Modise
and Others v Steve’s Spar Blackheath
3
set
out as follows:
‘
...
It is, in the first place, a device for getting strikers back to
work. It presupposes the unlawfulness of the strike, otherwise
it
could not be given but it does not sanction the misconduct of the
strikers. It is as much a means of avoiding a dismissal as
a
prerequisite to effecting one. One is tempted to say that strikers
are put in
mora
.
The point is that both under the 1956 regime and under the present
one the question of dismissing a striker can only logically
arise
after non-compliance with an ultimatum.’
[55] Mr Orr, for the respondent, argued that the principle of
providing reasonable time for the applicants to reflect on the
ultimatum
does not apply in this case because the applicants did not
raise that as an
issue or complained
that they did not have enough time to consider the ultimatum. He
further argued that the applicants have failed
to provide a factual
basis as to why they belief the respondent singled them out in
dismissing them.
[56] In relation to those applicants who contended that their
dismissal was unfair because they were not present when the ultimatum
was read, Mr Orr contended that it was of their own making as they
ought to have made sure that they were at the workplace at all
times
and particularly after it was indicated that the respondent was
approaching the Court for an interdict, which meant that
they were
likely to be instructed to return to work. He further contended that
they ought to have informed their leaders as to
where they would be
if they were to go away from the workplace.
Evaluation
[57] It is common cause that the applicants participated in the
unprotected strike action which lasted for just above two days.
It is
also common cause that the respondent issued the applicant with an
ultimatum on 20 November 2009. Whilst it is common cause
in as far as
the first group is concerned that the ultimate was issued at about
13h00, there is a dispute as concerning the second
group.
[58] A number of the applicants contend that they went back to their
workstations as soon as the ultimatum was read, whilst others
proffered a number of reasons as to why they did not comply with the
ultimatum.
[59] The issue of the fairness or otherwise of the dismissals of the
applicants in general turns around the fairness of the ultimatum,
in
relation specifically as to whether they were afforded sufficient
time to reflect on the matter and seek advice and assistance
in
relation to considering whether or not to return to work and also
what the consequences of the decision would if they were refuse
to
return to work.
[60] The critical issue in the assessment of the fairness of the
applicant's dismissal turns around the notice period for them
to
return to work. Whilst the first group conceded in the pre-trial
minutes that the ultimatum was read at 13h00, the second group
placed
that in dispute.
[61] The version of the second
group is that the ultimate was read later than 13h00. This version is
more probable when regard is
had to the testimony of the two
witnesses of the respondent. Mr Niemand and his colleague testified
in the affidavit in support
of confirmation of the
rule
nisi
that the
ultimatum was read at 15h00. There is strong evidence that suggests
that the ultimatum and Court order with read at the
same time. The
version that the two documents were read together is highly probable
when taking into account the version of the
respondent that the two
documents were faxed together. It would then follow on this basis
that if the Court order was read at 15h00,
then the ultimatum was
also read at that time.
[62] In seeking to challenge the version of those applicant who claim
to have complied with the ultimatum, the respondent contended
that
their names did not appear on the roll call as having clocked in at
15h00. The applicant's version is that no roll call was
made. This
evidence was not seriously challenged by the respondent. The
respondent also failed to produce proper evidence to support
its
version regarding the alleged roll call. The document which the
respondents sought to rely on in support of its version that
the roll
call was made is a mechanical register which does not show any
clocking in at 15h00. In fact, one of the respondent’s
witnesses testified that he did not know anything about the roll
call.
[63] The above analysis indicates that the notice period for
returning to work had already lapsed at the time the ultimatum was
read. The dismissal of the applicant's was accordingly on the basis
of this unfair as the deadline for reporting for work had already
expired at the time the employees were required to report for work.
In fact, this means that the purpose of the ultimatum was not
to
persuade the applicants to return to work but its underlining
objective was to precipitate their dismissal.
[64] The fairness of the dismissal of the applicants would still
remain unfair even if the version of the respondent that the
ultimatum was read at 13h00 was to be accepted. It means that the
applicants were instructed to report for work at 15h00, constituting
a two hours’ notice period.
[65] If regard is had to the facts and circumstances of this case
there can be no doubt that at the time given for the applicants
to
consider compliance with the ultimatum was insufficient. Although
there is no evidence that the applicants complained about
the extent
of the notice period, the issue is, however, raised in the pleadings.
The issue of whether the applicants were afforded
sufficient time to
consider, whether to return to work in terms of the ultimatum is a
matter of principle. I, accordingly, do not
agree with Mr Orr that
the Court should in considering the fairness of the dismissal of the
applicants disregard the notice period
because the applicant did not
in their testimony complain about it.
[66] In my view, the two hours which the respondent gave to the
applicants to revert back to work was insufficient and did not
afford
them proper opportunity to consider whether or not they should return
work and what the consequences of their failure to
do so would be.
This is more so when regard is had to the fact that the applicants at
that stage were no longer members of unions
and did not have any
formal structure or organisation to advise and assist them in terms
of the approach to be adopted in relation
to the ultimatum. In these
circumstances, it seems to me that fairness required the respondent
to have afforded the applicant's
the opportunity to go back home and
discuss with their families the implications of refusing to obey the
ultimatum. Put differently
the individual applicants needed
assistance also from their families in weighing their options in as
far as compliance with the
ultimatum was concerned.
[67] In my view, the dismissal was also unfair in relation to those
employees who stated that they comply with the ultimatum. There
is in
this regard conflicting versions between the testimony of the
respondent and that of the applicants. In my view, the version
of the
applicants is more probable than that of the respondent. The
respondent contends that the applicant could not have returned
to
work after the ultimatum was read because their names do not appear
on the record of the roll call. The version of the respondent
is not
persuasive when regard is head to the inconsistent manner in which it
would appear the roll call was made. It would appear
that the
directive that a roll call be made was given at the higher level but
turned out that it was inconsistently implemented
by those
responsible to do so. In addition to the inconsistent application of
the roll call, I find the testimony of the respondent
to be
unreliable.
[68] In seeking to show that the applicants did not report for work
as required by the ultimatum, the respondent a document showing
that
the buses left the depot at 15h00. This document, in my view, does
not assist the respondent’s case as there was no
evidence as to
how it was compiled.
The applicants who tendered the explanation
[69] As appears from above, there is a group of individual applicants
who testified that, at the time the ultimatum was read, they
were for
various reason not present at the workplace. It was for that reason
that they did not comply with the ultimatum. The fact
that each of
them was absent when the ultimatum was read was not seriously
challenged. However, what was challenged in some of
the explanations
tender were certain aspects relating to their reasons for being
absent.
[70] It cannot be disputed that despite the weaknesses in the
explanation for being absent at the time the ultimatum was read,
that
none of these applicants deliberately absented themselves to avoid
listening to or avoided compliance with the ultimatum.
It would seem
to me that had the respondent conducted an investigation prior to
hastily dismissing all the applicants as a group
it would have
discovered that dismissal was, in the circumstances, not an
appropriate sanction.
[71] I need to point out that I do not agree with the contention of
Mr Orr that this group of applicants are themselves to blame
for not
being present when the ultimatum was read as they ought to have
informed their leaders concerning their whereabouts. The
argument is
unsustainable. As indicated above, this case involves a situation
where the employees had resigned from their unions
and were dealing
with the issues without any formal structure to represent and assist
them in coordinating their affairs. There
is some evidence suggesting
that there were employees who provided some leadership for the
applicants. There is no evidence that
these two employees were
formally recognise as the leaders of the applicants.
[72] In light of the above and taking into account the totality of
the facts and circumstances of this matter, I am of the view
that on
the above grounds alone, the dismissal of the applicants was
substantively unfair. I, accordingly, do not deem it necessary
to
determine the issue of inconsistency as raised by the applicant.
The case of Ms Matinku
[73] The respondent conceded that Ms Matinku was unfairly dismissed
because she was on the day in question off sick. The respondent,
however, contended that she was not entitled to reinstatement because
she failed to raise her issue earlier. In my view, the respondent’s
contention is unsustainable. In this respect, I agree with Mr Mooki
that dismissal is a serious matter that should not be taken
seriously. It would seem that the reason that Ms Matinku case was not
picked up by the respondent was due to its poor communication
system.
In my view, Ms Matinku cannot be faulted for the deficiencies of the
respondent’s communication systems. She submitted
her medical
certificate on time and that was never challenged. It was for the
respondent to have made sure that it was acting in
the proper and
fair manner when it dealt with the case of Ms Matinku.
The case of Mr Pule
[74] The circumstances of Mr Pule are not different to the other
applicants as concerning the deadline for reporting back for work.
He
also was not afforded a reasonable time to comply with the ultimatum.
More importantly, in his case, he was not at Mogwase when
the
ultimatum was read he was in Tlhabane where he assisted with the
reading of the ultimatum.
[75] There are two conflicting versions as to whether his manager had
approved of the arrangement he had made for a colleague to
stand in
for him at Mogwase. It has, however, not been disputed that he spoken
and arranged with his colleague to stand in for
him. On the
undisputed version, it means that he did not intentionally or
deliberately undermine the instruction to return to work.
For this
reason and the broader reason relating to the notice period to return
to work, I find the dismissal of Mr Pule was similarly
unfair.
[76] In the alternative, the respondent argued that should the Court
find that the dismissal of Mr Pule was unfair, he should not
be
reinstated because of the letter he addressed to the Department of
Labour wherein he levelled several accusations against the
respondent
including the suggestion that the department should not renew the
respondent’s contract. The part of the letter,
which is
critical in considering whether Mr Pule should be reinstated reads as
follows:
‘
We
further request that Bojanala Bus Company be denied the second tender
due to corruption, oppression and discrimination. The company
has a
very strong influence of turning all the labour unions against their
members (workers). Our unions have never been of assistance
to us,
otherwise we should have not taken part in an unprotected strike nor
dismissed. Should the Minister find the need to meet
with us please
feel free to contact Jackie Pule on 0823869035 as there is more to
unfold...’
Procedural fairness
[77] Both groups of applicants contended that the dismissal was
procedurally unfair because they were denied representation during
the disciplinary hearing. It was further contended in relation to the
other group that the dismissal was in addition to the question
of
representation unfair because they were not informed of the right to
appeal.
[78] During argument, Mr Mooki contended that the issue was not about
legal representation but rather representation in general.
He
contended that the notice given to the applicant's and the
disciplinary code do not restrict representation to internal
representatives
but also allow even outsiders to represent employees
in disciplinary hearings. The suggestion from this contention is that
Mr Modisakeng
was refused representation not on the basis of him an
attorney but rather as an individual.
[79] It is quite clear from the heads of argument and the cross
examination of Mr Pule that is Mr Modisakeng was refused
representation
as the attorney of the applicants and as stated
earlier, and that stage he was representing all the applicants. The
question that
arises is whether the chairperson of the disciplinary
hearing in refusing to the presentation exercising the discretion in
a fair
manner.
[80] It is trite that the question of allowing legal representation
lies within the discretion of the chairperson of the disciplinary
hearing. On the version of Mr Pule, it is apparent that the
chairperson of the disciplinary hearing took the decision to exclude
Mr Modisakeng after listening to his submission as to why he should
be allowed to represent the applicants. It would also appear
that Mr
Modisakeng sought to represent the applicants as their legal
representative and not in other capacity.
[81] The applicants have not challenged the reasonableness of the
discretion exercised by the chairperson of the disciplinary hearing.
Accordingly, to the complaint about the fairness of the procedure in
this regard stands to fail.
[82] The complaint about the appeal also stands to fail if regard is
had to the testimony of Mr Pule. In this respect, he testified
that
after their dismissal Mr Modisakeng told them that he ‘will
appeal and take the matter further.’
The appropriate relief
[83] In light of the conclusion that the dismissal of the applicants
was substantively unfair, the next issue to determine, in
the
circumstances of this case, is the nature of the remedy to make.
[84] It is trite that the primary
relief in a case of substantive unfair dismissal, is either
reinstatement or the re-employment
unless there are circumstances
dictating otherwise.
4
The factors to bear in mind when considering whether the applicants
are to be deprived of the primary remedy, as envisaged in section
193
(2) of the LRA are discussed in
CEPPWAWU
and Others v CTP Ltd
and Another,
5
in that case the court followed the approach in
Republican
Press (Pty) Ltd v CEPPWAWU and Gumede and Others
,
6
where the Court held that:
‘
In the
present case, the passage of six years from the time the workers were
dismissed, all of which fall or consequentially in
the appalling the
failure of the union to pursue the claim expeditiously, was
sufficient in itself to find that it was not reasonably
practicable
to reinstate or re-employ the workers.’
[85] In the present instance, it was contended on behalf of the
respondent that should the court find that the dismissal was unfair,
it should not order full reinstatement because of the delay, failure
by the applicant to provide the employment details since the
dismissal and the failure by the applicant to attend the disciplinary
hearing where they could have made out the case as to why
they should
not be dismissed. The applicants were dismissed on 3 December 2009
[86] In relation to all the applicant, except for Ms Matinku, I agree
with contention of the respondent that it would not be fair
to order
full and the retrospective reinstatement of the applicants to the
date of the dismissal.
[87] It cannot be disputed that the letter which Mr Pule addressed to
the Department of labour makes serious allegations against
the
respondent. The letter also has serious implications for the
sustainability of the respondent's business. The letter was, however,
written in the context of conflict and tension between the parties
and in a situation where Mr Pule filled in the leadership vacuum
that
had arisen once the employees dismissed their unions. It would seem
the respondent in a way accept the role played by Mr Pule.
For
instance Mr Pule read the ultimatum at Tlhabane.
[88] Mr Pule whilst like all other applicants was charged with
failure to comply with the ultimatum. He was not charged with any
offence concerning the letter which had been addressed to the
department of labour. He, accordingly, did not have the opportunity
to deal with the issue of the letter. It did seem to me for this
reason it would be unfair to deny him the primary remedy provided
for
by the law. In my view, nothing stops the respondent, if it feels
that the letter constituted misconduct, from taking steps
to deal
with the issue.
Order
[89] In the premises, the following order is made:
1. The dismissal of the applicants is declared procedurally fair, but
substantively unfair.
2. The respondent shall reinstate Matinku, retrospectively to the
date of her dismissal without loss of any benefits.
3. The respondent shall reinstate all the applicants, including Mr
Pule with effect from 23 October 2012.
4. The respondent is to pay the costs of the applicants.
______________
Molahlehi, J
Judge of the Labour Court of South Africa
Appearances:
For the Applicants: Advocate Mooki
Instructed by: Wright, Rose-innes Inc
Rocky Modisakeng of Modisakeng Attorneys
For the Respondent: Advocate Orr
Instructed by: Bowman Gilfillan Inc
1
This
principle was applied even during the previous labour dispensation.
In
Liberty Box and Bag Manufacturing Co (Pty) Ltd v Paper Wood
and Allied Workers Union
(1990) 11 ILJ 427 (IC) at 435A-C and
NUMSA and Others v Dita Products (Pty) Ltd
[1995] 7 BLLR 65
(IC) at 78, the Industrial Court in dealing with this issue had,
amongst others, the following to say: ‘(c) Sufficient
time,
from the moment of giving the ultimatum, must elapse to allow the
workers to receive the ultimatum, reflect upon it, and
to respond
thereto by either compliance or rejection.’
2
See
Motor Transport
Workers Union obo
David Sehularo v G4 Services (Pty) Ltd
(JS 1108/09) [2012] ZALCJHB 112 (12 October 2012)
at para 36.
3
[2000]
5 BLLR 496
(LAC) at para 151.
4
.
See also
section 193
(2) of the
Labour Relations Act of 1995
.
5
[2013]
4 BLLR 378
(LC),
6
Republican
Press (Pty) Ltd and Gumede and Others
[2007] 11 BLLR 1001
(LC) at para 22.