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[2014] ZALCJHB 5
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National Democratic Change And Allied Workers Union (NDCAWU) and Others v Cummins Emission Solutions (Pty) Ltd (JS 484/11) [2014] ZALCJHB 5; [2014] 6 BLLR 600 (LC); (2014) 35 ILJ 2222 (LC) (14 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS 484/11
Reportable
DATE:
14 JANUARY 2014
In
the matter between:
NATIONAL
DEMOCRATIC CHANGE & ALLIED
WORKERS
UNION
(NDCAWU)
..........................................................................................
First
Applicant
MARY
MOKGALE & 8
OTHERS
................................................................
Second
to Tenth Applicants
And
CUMMINS
EMISSION SOLUTIONS (PTY)
LTD
.................................................................
Respondent
Heard:
8, 9, 10, 11, 14 and 28 October 2013
Delivered:
14 January 2014
Summary:
Automatically unfair dismissal – the case for automatically
unfair dismissal not made out – Court exercising jurisdiction
in terms of section 158(2)(b) of the Labour Relations Act, 66 of 1995
– dismissal substantively and procedurally fair save
in respect
of one individual applicant – reinstatement ordered in respect
of the one individual applicant.
JUDGMENT
MAENETJE
AJ
[1]
The respondent employed the second to tenth applicants (“individual
applicants”) until their dismissal on 28 October
2010.
[2]
All of the individual applicants were charged with intimidation,
which was allegedly committed on 6 September 2010 around 14h00
at
Rosslyn. There are differences in the detail of the alleged
misconduct (such as what happened; how it happened; who was
intimidated;
and so forth). These details appear below.
[3]
The individual applicants were all members of the first applicant.
They were among fifteen employees who were charged with intimidation
arising from incidents that allegedly took place during a protected
strike on 6 September 2010. Six of these were found not guilty
and
therefore not dismissed.
[4]
It was alleged that the individual applicants intimidated the
following non-striking employees of the respondent on 6 September
2010: Ms Mary Mokgale (“Mokgale”) was alleged to have
intimidated Ms Clyder Ndlovu (“Ndlovu”); Mr Xavier
Madras
(“Madras”) was alleged to have intimidated Ndlovu and Ms
Sylvia Mogodiri (“Mogodiri”); Mr Donald
Nkosi (“Nkosi”)
was alleged to have intimidated Ndlovu, Mogodiri and Ms Maria Mokoena
(“Mokoena”); Mr Vincent
Lephuting (“Lephuting”)
was alleged to have intimidated Mokwena; Mr Thabo Mosombuka
(“Masombuka”) was alleged
to have intimidated Mogodiri;
Mr Daniel Manekus (“Manekus”) was alleged to have
intimidated Mogodiri; Mr Jacob Monageng
(“Monageng”) was
alleged to have intimidated Mogodiri; Mr Oupa Kau (“Kau”)
was alleged to have intimidated
Ndlovu and Mogodiri; and Ms Kealeboga
Maubane (“Maubane”) was alleged to have intimidated
Mogodiri, Mokwena and Ndlovu.
[5]
The protected strike resulting in the dismissals was part of a
national strike in the automotive industry for wages. It is unclear
from the evidence presented exactly when the employees of the
respondent joined the national strike. Some of the witnesses
suggested
that the employees of the respondent joined the strike
action on 2 September 2010, whereas others believed they went on
strike
for the first time on 6 September 2010. Resolving this
difference in the evidence presented is not material to the
determination
of the dispute referred to this Court.
[6]
The individual applicants were dismissed following a collective or
mass disciplinary hearing chaired by an independent chairperson,
Mr
JC Kruger. The disciplinary hearing was conducted on 29 September and
1 October 2010.
[7]
An internal appeal against the dismissals of the individual
applicants was unsuccessful.
[8]
The first applicant referred an unfair dismissal dispute on behalf of
the individual applicants to the Dispute Resolution Centre
(“DRC”).
The dispute could not be resolved through conciliation.
[9]
It is clear from a ruling that the DRC gave in February 2011 that the
applicants contended that the dispute should be referred
to this
Court for adjudication. The ruling states the following:
‘
The
applicants are of the view that the dismissal was as a result of
harassment/discrimination. The DRC … lacks jurisdiction
to
determine the matter. This matter should be referred to the Labour
Court for determination’.
[10]
The statement of case referring the dispute to this Court on 22 March
2011 summarizes the statement of facts that were relied
upon to
establish the applicants’ claim as follows:
‘
Following
national automotive component strike which happened around September
2010. The Second Applicants that are members of first
applicant took
part in that strike. On the 6 September 2010 at about 14:30,
Respondent alleged that the Second Applicants ‘intimidated’
other fellow employees.
The
incident or alleged incident happened outside the Supplier Park where
both members of First Applicant and NUMSA gathered to
demonstrate’.
[11]
The statement of case states the legal issues that arise from the
pleaded facts as follows:
‘…
The
hearing was conducted which involved fifteen employees and was meant
to be collective.
The
First Respondent selectively dismissed 9 employees out of fifteen
(15) employees. Amongst the 9 employees 3 of them are union
representative. See annexure H.
The
First Respondent clearly shows ulterior motive by only head hunting
union activists including leaders of the First Applicant.
The
appeal was lodged but First Respondent confirmed dismissal’.
[12]
In this Court, the individual applicants contended that their
dismissal was automatically unfair, alternatively that it was
unfair
because their guilt on the charges of intimidation was not proved
and, further alternatively, that dismissal was not a fair
sanction in
all the circumstances of the case. In support of the contention that
an automatically unfair dismissal claim is before
this Court for
determination, the applicants referred inter alia to the parties’
pre-trial minute, which records in paragraph
71.2 that one of the
issues for determination is:
‘
Whether
the dismissal of the Second Applicants is due to them being on
strike’.
[13]
Thus the applicants relied for their claim of automatically unfair
dismissal on section 187(1)(a) of the Labour Relations Act,
66 of
1995 (“the LRA”). To the extent that certain of the
individual applicants appeared to also pursue a claim of
automatically unfair dismissal based on unfair discrimination, this
will also be considered under the provisions of section 187(1)(f)
of
the LRA.
Automatically
unfair dismissal
[14]
The applicants bear the onus to prove that their dismissal was for
reasons contemplated in section 187(1)(a) and/or (f) of
the LRA.
[15]
The determination of the question whether or not the dismissal was
automatically unfair depends upon what the reasons were
for the
individual applicants’ dismissals.
1
If the reasons fell within section 187(1)(a) and/or (f) of the LRA,
then the dismissal would be automatically unfair. The test
is one of
causation. Both factual and legal causation must be satisfied.
2
[16]
The individual applicants contended that they were dismissed for
their participation in strike action on 6 September 2010.
[17]
In order to support their contention that the real reason for their
dismissal was their participation in the protected strike
action,
each of the individual applicants testified and explained the
circumstances pertaining to his or her participation in the
protected
strike action. The respondent led the evidence of Mogodiri, Ndlovu
and Mokoena inter alia to prove that the dismissal
was as a result of
their intimidation by the individual applicants during the protected
strike action.
[18]
The applicants’ evidence does not bear out the contention that
their dismissal was automatically unfair, for the reasons
set out
below.
[19]
First, the individual applicants were charged with misconduct in the
form of intimidation on 6 September 2010 during a protected
strike
action. It emerged during the evidence of Mogodiri, Ndlovu and
Mokoena that the charges of intimidation were based on grievances
that were laid by them following the alleged acts of intimidation by
the individual applicants, or statements that they had made
to the
police and to the employer regarding the alleged intimidation. The
aforesaid grievances or statements were not placed before
the Court.
However, the fact that they were laid soon after the alleged acts of
intimidation could not be seriously challenged.
[20]
Secondly, the findings of the chairperson of the disciplinary hearing
make it plain that he found the individual applicants
guilty of
intimidation, which resulted in their dismissal.
[21]
Thirdly, whereas a large number of the respondent’s employees
took part in the protected strike action on 6 September
2010, only
fifteen employees were charged with intimidation, nine of which were
ultimately dismissed. In his evidence, Nkosi estimated
that about
ninety-six or ninety seven percent of the respondent’s
employees took part in the protected strike action on 6
September
2010.
[22]
The respondent’s contention carries weight that if it intended
to dismiss participating employees in the strike action
merely for
their participation in it, it would not have selected to charge only
fifteen of them with misconduct. Furthermore, the
strike action
started earlier than 6 September 2010 and continued on 7 September
2010, but the individual applicants were charged
with and dismissed
for alleged intimidation on 6 September 2010.
[23]
Fourthly, during their cross-examination the individual applicants
were unable to dispute that the respondent never discouraged
its
employees from taking part in the protected strike action and that
they were charged and dismissed for intimidation.
[24]
In addition, the individual applicants were confronted with a
management record of a meeting between the first applicant and
the
respondent on 7 September 2010, which shows that instead of
discouraging participation in the protected strike action,
management’s
main focus was with picketing rules and concerns
about acts of intimidation. That the meeting did take place and that
management
raised concerns regarding acts of intimidation was not
disputed. Under “Point 4: General”, the management’s
record
of the meeting states the following:
‘
Point
4: General
Individuals
lodged complaints of intimidation to the South African Police. This
matter is in the hands of the South African Police
Service. CES
management has no say in this matter. CES management will however,
lodge their own investigation into acts of intimidation,
and deal
with this according to the Cummins disciplinary code as soon as the
employees return to work’.
[25]
Mokgale, who is a shopsteward, testified that she was present at the
meeting of 7 September 2010 and could not dispute that
the respondent
raised concerns regarding intimidation as quoted in the passage
above. When asked whether she accepted that concerns
regarding
intimidation were raised at the meeting, all she said was, ‘I
can see, here it is’. She even accepted under
cross-examination
that the basis for her dismissal was intimidation.
[26]
Madras conceded under cross-examination that he was not charged with
participating in the protected strike action, or found
guilty of
participating in the protected strike action. His contention was that
the chairperson of the disciplinary hearing did
not give reasons for
finding him guilty of intimidation.
[27]
Nkosi conceded under cross-examination that Mogodiri, Ndlovu and
Mokoena complained that he intimidated them during the protected
strike action on 6 September 2010.
He
disputed that he had intimidated anyone. He further contended that
this is the main reason why he contends that he was dismissed
for
participating in the protected strike action. He returned to work
after the strike action and was disciplined and dismissed.
[28]
Lephuting confirmed that he was charged and dismissed for allegedly
intimidating Mokoena during the protected strike action
on 6
September 2010. Save for disputing that he intimidated Mokoena as
alleged, Lephuting did not put forward any evidence to support
the
contention that he was dismissed for his mere participation in the
protected strike action.
[29]
Masombuka admitted that he was charged and dismissed for allegedly
intimidating Mogodiri on 6 September 2010 in that whilst
in the
company of the other striking employees he allegedly uttered the
words ‘we hit others and we will hit you’.
He denied the
allegations and asserted that he did not intimidate any person during
the protected strike action on 6 September
2010.
[30]
Manekus confirmed that he was charged and dismissed for allegedly
intimidating Mogodiri by physically pushing her during the
protected
strike action on 6 September 2010.He did not dispute that she then
laid a complaint against him for this, which resulted
in him being
charged and dismissed. The focus of his evidence was to deny the
alleged intimidation and explain his whereabouts
on 6 September 2010
during the protected strike action.
[31]
Kau confirmed that he was charged and dismissed for allegedly
intimidating Mogodiri during the protected strike action on 6
September 2010 by physically bumping against her chest, and Ndlovu by
holding a sjambok and telling her that they had hit others
and would
hit her. He disputed the alleged intimidation. The focus of his
evidence was to support this denial.
[32]
Monageng confirmed that he was charged and dismissed for intimidating
Mogodiri during the protected strike action on 6 September
2010 by
physically bumping his chest against hers. He denied this and
contended that it was unfair for the chairperson of the disciplinary
hearing to have found him guilty of intimidation. The focus of his
evidence was to support this denial.
[33]
Maubane confirmed that she was charged and dismissed for allegedly
verbally intimidating Mogodiri, Ndlovu and Mokoena on 6
September
2010 during the protected strike action. She denied the alleged
intimidation and testified in support of the denial to
prove her
innocence. When she was asked in her evidence in chief what her
comment was regarding the finding of guilty, she said
that the
chairperson of the disciplinary hearing discriminated against all of
those who were charged with misconduct. When she
was pressed under
cross-examination to explain the reason for which the chairperson
discriminated against all those that were charged
with misconduct,
Maubane said the employees charged with misconduct were fifteen but
that six were found not guilty and reinstated.
She said that the
chairperson of the disciplinary hearing did not say why the six were
reinstated whereas the individual applicants
were dismissed. When she
was asked to explain why the chairperson discriminated against the
individual applicants, she said she
did not know the reason. She was
then referred to the chairperson’s findings where he stated
that he did not accept the evidence
of the individual applicants, and
thus accepted the evidence of their accusers, i.e. Mogodiri, Ndlovu
and Mokoena, that the individual
applicants had intimidated them on 6
September 2010 during the protected strike action.
[34]
It is correct that the findings of the chairperson show that he
rejected the evidence of the individual applicants and accepted
that
of Mogodiri, Ndlovu and Mokoena regarding the alleged intimidation.
[35]
In light of the evidence summarized above, as well as the reasons
given, it is difficult to find that the individual applicants
were
charged and dismissed for merely participating in the protected
strike action on 6 September 2010 or on any other days.
[36]
In their evidence, the individual applicants appeared to contend that
their dismissal was for participation in the protected
strike action
because it was for conduct in connection with the strike. This is not
sufficient because a protected strike action
does not insulate
participating employees from disciplinary action and dismissal for
misconduct, such as intimidation committed
during the strike action
or in connection with the strike action.
3
[37]
For their part Mogodiri, Ndlovu and Mokoena testified that it was
their reports to the police and to management regarding alleged
intimidation by the individual applicants on 6 September 2010 that
led to the individual applicants being charged with misconduct
and
ultimately dismissed. They gave evidence to explain how the
intimidation happened and by whom on the part of the individual
applicants. Their evidence implicated each of the individual
applicants. They said that this was the evidence that they had led
at
the disciplinary hearing. Whether or not the evidence proved the
alleged intimidation by the individual applicants is only relevant
to
the question of substantive fairness under section 188(1)(a) of the
LRA, which is a separate issue from the alleged automatically
unfair
dismissal.
[38]
Fifthly, the individual applicants did not prove that their dismissal
was the result of unfair discrimination as contemplated
in section
187(1)(f) of the LRA. The evidence of Maubane summarized above was
woefully inadequate in this regard. She did not even
attempt to
identify any of the grounds contemplated in section 187(1)(f) of the
LRA as a ground for the alleged discrimination.
In contrast, it is
clear from the findings of the chairperson of the disciplinary
hearing that he, rightly or wrongly, accepted
the evidence of the six
employees who he found not guilty and rejected that of the individual
applicants. The finding of not guilty
in respect of these six
employees was not based on any ground that falls within the grounds
of discrimination listed in section
187(1)(f) of the LRA. There was
no suggestion by any of the individual applicants, including Maubane,
that this was the case.
[39]
In the circumstances, the individual applicants have failed to prove
that they were dismissed for their mere participation
in the
protected strike action on 6 September 2010 or for any reason that
renders their dismissal automatically unfair. The evidence
shows that
they were dismissed for misconduct, in the form of intimidation.
Whether or not the alleged intimidation was proved
relates to the
substantive fairness of the dismissals under section 188(1)(a) of the
LRA, which is dealt with below.
Jurisdiction
in terms of section 158(2) of the LRA
[40]
It is common cause that only the automatically unfair dismissal claim
fell within the jurisdiction of this Court. The unfair
dismissal
claim, based on the substantive and/or procedural fairness of the
dismissals ought to have been referred to arbitration
unless this
Court exercised jurisdiction in terms of section 158(2) of the LRA.
[41]
Section 158(2) of the LRA provides as follows:
‘
(2)
If at any stage after a dispute has been referred to the Labour
Court, it becomes apparent that the dispute ought to have been
referred to arbitration, the Court may —
(a)
stay the proceedings and refer the dispute to arbitration;
(b)
with the consent of the parties and if it is expedient to do so,
continue with the proceedings with the Court sitting as an
arbitrator, in which case the Court may only make any order that a
commissioner or arbitrator would have been entitled to make’.
[42]
This is not a case in which the proceedings could be stayed for the
entire dispute to go to arbitration. The automatically
unfair
dismissal dispute had to be determined by the Court exercising its
jurisdiction as such, albeit that the evidence underlying
the
automatically unfair dismissal dispute overlapped with the evidence
relating to the alternative claim of unfair dismissal.
[43]
The parties consented that the Court should sit as an arbitrator and
determine the unfair dismissal dispute as an arbitrator
in terms of
section 158(2)(b). For this purpose, the Court has to determine
whether or not it would be expedient for it to arbitrate
the unfair
dismissal dispute.
4
[44]
In the Mias case referred to above, the LAC identified certain of the
difficulties that may arise where this Court sits both
as a Court and
as arbitrator:
‘
Inferring
consent, and allowing for the overlapping evidence it may at first
blush appear expedient for the court a quo to have
decided the item
2(1)(b) issue as well. There are, however, some difficulties in the
way of this course. In contrast to the Reactor
case supra, the trial
court would have sat in two capacities at the same time: both as
court and as arbitrator. Its decision on
the first item was
appealable (with leave) while a decision on the merits of the second
item was not. On appeal it is open to this
Court to correct the
decision on the first item but save on review, not the second.
Depending on the reasoning of the court a quo
and on this Court’s
view of the merits, this could lead to inconsistent findings or
conclusions, which would be undesirable.
Furthermore, we do not have
the benefit of the trial court’s reasoning and conclusions on
the merits of the second item.
We may, as a court of appeal,
interfere with the trial court’s decision not to exercise
jurisdiction, but what then? Absent
a review, and there is none, we
cannot in our appellate capacity simply substitute our view on the
merits of item 2(1)(b), whether
favourable to the appellant or not.
The most we could do would be to remit the item 2(1)(b) issue to the
tribunal below for a decision
on the merits, which may or may not
prompt review proceedings. In such event it would, I think, be
inadvisable for this Court to
dispose of the appeal on item 2(1)(a)
while leaving item 2(1)(b) hanging potentially in the air. If there
is to be a review, which
we cannot predict either way, then appeal
and review should be heard together’.
[45]
Brassey Commentary on the
Labour Relations Act Volume
Three also
expresses the view that it is unenviable for this Court to sit as an
arbitrator and that cases in which jurisdiction
is assumed will be
rare.
5
[46]
There may be such rare cases, in which expedience could justify this
Court sitting as a Court in respect of that part of the
dispute that
falls within its jurisdiction, and as an arbitrator in respect of an
alternative claim that falls outside its jurisdiction.
[47]
In this case the alleged facts and the evidence underlying the
automatically unfair dismissal claim and the ordinary unfair
dismissal claim are the same. The parties presented evidence over a
period of five days. They submitted written submissions on
23 October
2013, and oral submissions on 28 October 2013. If the alternative
claim is referred to arbitration in light of the Court’s
findings on the automatically unfair dismissal claim, then the
parties would have to incur further costs in the arbitration in
presenting the same evidence before an arbitrator.
[48]
I am persuaded that this is a case in which expedience justifies this
Court sitting as an arbitrator in respect of the alternative
claim of
unfair dismissal. There are cases in which this Court, in fairly
similar circumstances, has exercised jurisdiction in
terms of
section
158(2)(b)
of the LRA to determine an alternative claim of unfair
dismissal where an automatically unfair dismissal claim failed.
6
Ultimately, it is a question that turns on the facts and
circumstances of each case.
Unfair
dismissal
[49]
As explained above, Mogodiri, Ndlovu and Mokoena testified in support
of the allegations of intimidation against the individual
applicants.
[50]
Mogodiri testified first. She testified that the respondent employs
her as an operator. She has been in the respondent’s
employment
for about six years. She chose not to participate in the protected
strike action in September 2010. On 31 August 2010,
a representative
of the first applicant had told all employees that they had a choice
whether or not to take part in the strike
action.
[51]
She reported for work on 6 September 2010 at 6h00. She left work at
14h00. As she walked towards the entrance security gate
a group of
striking employees confronted and surrounded her. She was placed in
the middle of the group. She identified Masombuka,
Kau, Monageng,
Manikus, Nkosi, Madras, Maubane and Eunice Sithebe (“Sithebe”)
as part of this group of striking employees.
[52]
Prior to her being surrounded by the group of striking employees, she
heard an employee that she could identify only as “Teacher”
shouting out from amongst the group of striking employees that here
comes a rat.
[53]
It is common cause that a “rat” refers to a traitor. This
means someone who betrayed others by going to work whilst
other
employees are on strike.
[54]
The group of striking employees obstructed her movement. She then
described what some of them did. Masombuka pushed his hands
almost
against her face. He pushed her backwards and said they were going to
hit her because she was working whilst others were
on strike.
[55]
Mr Siphiwe Mokoena appeared in front of her. Monageng, Manikus and
Kau took turns pushing her forwards and backwards, bumping
her with
their chests. Nkosi pointed her with his finger and said that they
would burn her shack.
[56]
Madras also pushed her with his hands.
[57]
Security officers rescued her from the group of striking employees.
Before she could be rescued, Kau said that they would give
her
(Mogodiri) to the ladies to deal with her. Maubane shouted at her
that she was reporting for work whilst they were on strike.
Eunice
Sithebe said the same thing to her.
[58]
Mogodiri said that after being rescued by the security officers she
took a bus home. She said the whole incident in the middle
of the
group of striking employees lasted between fifteen and twenty
minutes.
[59]
On 7 September 2010, Mogodiri reported for work again at 6h00. She
then reported to her foreman and management what had happened
to her
on 6 September 2010. She also laid a charge with the police. This
evidence was not challenged.
[60]
Mogodiri denied the version of the individual applicants that they
had formed a human chain, through which she had forced her
way and
called the striking employees crazy. She emphatically denied that the
striking employees had formed such a human chain,
through which she
forced herself, and that she insulted them.
[61]
The cross-examination of Mogodiri focused largely on putting versions
of the individual applicants to her. It was put to her,
in line with
the evidence of the individual applicants, that they all denied that
they were near her on 6 September 2010 close
to the security gate.
She insisted that the employees that she identified as having been
part of the group of striking employees
were there at the time on 6
September 2010 and did what she alleged.
[62]
Ndlovu testified next. The respondent employs her as a team leader,
production. She chose not to participate in the strike
action. She
reported for work on 6 September 2010 at 6h00. She worked the whole
day until 14h00. After work she left in a motor
vehicle belonging to
Mr Khomotso Duiker (“Duiker”). She was in the motor
vehicle with Mr Albert Ndlovu (“Mr Ndlovu”),
who is her
husband, one other employee who she identified as Mr Jimmy Mangayi
(“Mangayi”), and two of their students
whose names she
could not recall.
[63]
She, Mr Ndlovu, Mangayi and the two students got off Duiker’s
motor vehicle at the traffic lights next to a Zenex garage.
The
traffic lights are next to a bus stop where they intended to catch a
taxi home. They waited at the bus stop.
[64]
Whilst waiting at the bus stop, she saw four motor vehicles stop next
to them. The people in the motor vehicles alighted. They
were all
fellow employees at the respondent. These employees approached them
and surrounded them. Nkosi was amongst them and was
the first to
speak. He said to her that they were there to warn them not to come
to work the next day. She responded that she would
report for work.
Madras then spoke and said to her that they were there to warn her
not to come to work the next day. She testified
that she asked them
to stop and said that Mr David Maluleka, the union organizer, had
told everyone that joining the strike action
was a choice. She had
heard him well. Maubane then pointed a finger at her and said that
she was lying. Kau came forward with a
sjambok. He hit it on the
ground next to Ndlovu’s feet. She started shivering and asked
Kau what he was doing. Kau lifted
the sjambok and said to her
(Ndlovu) “do you see this? We have hit others, we will hit you
too”.
[65]
Ndlovu said that she responded that no one would hit her and she
would report for work. Mokgale responded to this and said
they would
deal with her.
[66]
Ndlovu testified that Nkosi dispersed the group of employees. They
all got into their cars and drove off. She, Mr Ndlovu and
the two
students caught a taxi and went home. Upon arrival at home, Ndlovu
and Mr Ndlovu reported the incident to the police and
laid a charge
of intimidation.
[67]
All of the individual applicants denied Ndlovu’s allegations.
Kau even suggested that he never held a sjambok. Instead,
he
testified that he was carrying a car component to fix his car, which
was very small.
[68]
Mokoena was the third witness to testify for the respondent. She is
employed as an operator and has been working as such for
seven years.
[69]
Mokoena reported for work on 6 September 2010. Whilst at work two
individuals came into where she was working and warned her
and other
employees who were at work that the striking employees were waiting
for them. The two individuals were Ms Apesage Sefike
and Ms Idah
Phalwane.
[70]
She heeded the warning and asked for a lift with one of the managers
when she knocked off at 14h00. The manager dropped her
off at the
traffic lights next to the bus stop for her to catch a bus.
[71]
Mokoena testified that when she arrived at the traffic lights she
found a gentleman sitting on a rock and joined him. She did
not know
his name. It is common cause that he was not an employee of the
respondent at the relevant time. Whilst waiting for a
bus with the
unknown gentleman, certain employees of the respondent arrived in
motor vehicles. They alighted from their motor vehicles.
Amongst them
were Nkosi, Maubane, Kau, Lephuting and Mr Oupa Masango (“Masango”).
These employees approached her.
[72]
She testified further that Nkosi then poked her with his fingers in
her face and asked why she was working whilst others were
on strike.
He said she was betraying them. Masango warned her that she should
not report for work the next day or else they would
deal with her.
Maubane shouted that they needed her support. Kau had a sjambok with
him and hit the ground with it.
[73]
Lephuting did not speak to her at all or do anything to her. He,
however, hit the unknown gentleman who was sitting on the
rock next
to her. In his evidence Lephuting explained that he had an
altercation with the gentleman regarding a cell phone that
the
gentleman had not returned to him. They quarreled with each other and
Lephuting hit him. This seems to be a matter for the
police.
[74]
Except for Lephuting who explained that hitting the unknown gentleman
had nothing to do with the strike action or attempting
to intimidate
Mokoena to join the strike action, all the other individual
applicants implicated by Mokoena denied her allegations.
[75]
Having listened to the evidence of all the individual applicants and
the respondent’s three witnesses discussed above,
I have no
reason to disbelieve Mogodiri, Ndlovu and Mokoena. They all testified
that they reported the incidents to management
on 7 September 2010
when they reported for work. Mogodiri and Ndlovu reported the
incidents to the police on the day that the incidents
allegedly
happened. It is unlikely on the probabilities that they would have
reported the incidents as they did if the incidents
did not happen at
all.
[76]
Any threat of violence in the work place is serious misconduct that
warrants dismissal. This is particularly so in circumstances
where
the union organizer and management, recognizing the right of each
employee to choose whether or not to engage in strike action,
had
assured all employees that it was their choice whether or not they
wanted to join the strike action.
[77]
It was made clear in argument for the respondent that the alleged
intimidation is based on the individual actions of the individual
applicants, albeit as members of a group of striking employees. Hence
only employees who did something to intimidate any of Mogodiri,
Ndlovu and Mokoena were charged, disciplined and dismissed. On this
reasoning, I find that all of the individual applications,
with the
exception of Lephuting, were correctly found guilty of intimidating
Mogodiri, Ndlovu and Mokoena on 6 September 2010 to
prevent them from
reporting for work on 7 September 2010 as they had chosen to do.
Mokoena could not link Lephuting’s conduct
of hitting the
unknown gentleman with any alleged intimidation for her not to report
for work. The others’ conduct complained
of was linked to the
alleged intimidation of Mogodiri, Ndlovu and Mokoena to prevent them
from reporting for work on 7 September
2010.
[78]
In my view, and on the evidence presented, the respondent has proved
that the dismissal of the individual applicants, except
for
Lephuting, was for a fair reason. In all the circumstances, dismissal
is a fair sanction for misconduct in the form of intimidation.
The
contention by the applicants that the respondent’s disciplinary
code does not indicate dismissal as a sanction for intimidation,
however, serious, is unhelpful. The disciplinary code expressly
states that it is a guideline. Mr Xolani Mashinini (“Mashinini”),
the respondent’s Employee Relations Manager, confirmed this.
Mashinini also drew the Court’s attention to the fact
that the
disciplinary code expressly states that intimidation could lead to
dismissal in the case of unprotected strike action.
There is no
rational reason why intimidation during a protected strike cannot in
all circumstances carry the sanction of dismissal.
[79]
There was no challenge to the fairness of the dismissal based on the
requirement of procedural fairness. In any event, the
applicants did
not present a case that would render the dismissal of the individual
applicants procedurally unfair.
[80]
In the circumstances, I conclude that the dismissal of the individual
applicants, except for Lephuting, was substantively and
procedurally
fair.
[81]
The respondent did not lead any evidence to show that if any of the
individual applicants was found not guilty of intimidation,
reinstatement, being the preferred remedy under the LRA, should not
be granted. This was despite the Court drawing the respondent’s
attention to this issue. There is therefore no basis upon which the
Court should deprive Lephuting of the remedy of reinstatement
without
any loss of benefits.
[82]
The applicants raised the issue of inconsistency because six of the
employees who were originally charged with the individual
applicants
were found not guilty by the chairperson of the disciplinary hearing
and were not dismissed.
[83]
It is clear from the findings of the chairperson of the disciplinary
hearing that he accepted the defences put up by the six
employees in
question. No admissible and cogent evidence was presented to this
Court to enable it to assess whether the chairperson
of the
disciplinary hearing, and consequently the respondent, failed to
treat like cases similarly without any objective justification
at
all. Thus I am unable to find for the individual applicants on this
issue.
Order
[84]
I therefore make the following order:
1.
The dismissal of Mr Vincent Lephuting is substantively unfair.
2.
The respondent is directed, within five days of the date of this
order, to reinstate Mr Vincent Lephuting without any loss of
salary
or benefits.
3.
The unfair dismissal claim in respect of the other eight individual
applicants is dismissed.
4.
There is no order as to costs.
Maenetje
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Mr H Kgotleng (Kgotleng Attorneys)
For
the Respondent: Advocate T Manchu
Instructed
by Norton Rose
1
Kroukam
v SA Airlink (Pty) Ltd
[2005]
12 BLLR 1172
(LAC) at para 20.
2
SACWU
& Others v Afrox Ltd
[1999]
10 BLLR 1005
(LAC) at para 32.
3
CEPPWAWU
and Others v Metrofile (Pty) Ltd
[2002] ZACC 30
;
[2004]
2 BLLR 103
(LAC) at paras 53-54].
4
Mias
v Minister of Justice and Others
[2002]
1 BLLR 1
(LAC) paras 32-33. The LAC has confirmed that when this
Court exercises jurisdiction in terms of
section 158(2)(b)
of the
LRA it does not adjudicate the dispute – it arbitrates it. See
Wardlaw
v Supreme Moulding (Pty) Ltd
[2007]
6 BLLR 487
(LAC) paras 19-20.
5
At
A7-151.
6
See
for example,
NUM
and Others v Black Mountain Mining (Pty) Ltd
[2010] 3 BLLR 281
(LC);
NUPSAW
obo MANI and 9 others v National Lotteries Board
,
(JR953/2008) [2011] ZALCJHB 199, (3 February 2011)
.