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[2014] ZALCJHB 154
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Modibedi and Others v Medupi Fabrication (Pty) Ltd (JS742/10) [2014] ZALCJHB 154; (2014) 35 ILJ 3171 (LC) (6 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE NO: JS 742/10
In
the matter between
:
MODIBEDI
AND 205
OTHERS Applicants
And
MEDUPI
FABRICATION (PTY)
LTD Respondent
Heard:
26, 27, 28, 29, 30 August 2013; 2 and 3 September 2013
Delivered
on: 6 May 2014
Summary: Employees
embarking on unprotected industrial action in pursuance of
unreasonable demands:- Dismissal fair where employees
ignored final
written warnings, undertakings to desist from such conduct, letters
of caution, internal policies relating to ‘peace
obligation’,
and the general provisions of the LRA.
Substantive fairness:
Dismissal substantively fair where employees fail to demonstrate
provocation on the part of the employer.
Also fair where the employer
has demonstrated that employees had a propensity to embark on such
unlawful action on the spur of
the moment.
Mitigating
circumstances: Cannot be pleaded in a vacuum where employees have
waived right to be heard. A waiver of such a right
extends to right
to plead in mitigation
Procedural fairness:
Ultimatum; Sufficiency thereof.
Dismissal procedurally
fair where employees waive rights to present their case and walk out
of disciplinary hearing, or where employees
refuse to participate in
a pre-dismissal arbitration process as per internal dispute
resolution procedures.
JUDGMENT
TLHOTLHALEMAJE AJ
Introduction:
[1]
The applicants were dismissed by the respondent on 30 March 2010
following upon their participation in an unprotected industrial
action. Following the non-resolution of the dispute at the Metal and
Engineering Industries Bargaining Council, the applicants
approached
the court to challenge the substantive and procedural fairness of
their dismissal. They sought retrospective reinstatement,
or in the
alternative, compensation equivalent to 12 months remuneration in the
event that it is found that their dismissal was
unfair.
The
Medupi project:
[2]
Medupi Power Station is a green-field coal-fired power plant project
built by Eskom, and is located west of Lephalale in the
Limpopo
Province. The project began in August 2007, and according to the
power utility, Eskom, the power station will be the fourth
largest
coal plant in the southern hemisphere, and will be the biggest
dry-cooled power station in the world. The new power station
will
comprise of six units with a gross nominal capacity of 800MW each,
resulting in a total capacity of 4 800 MW.
[3]
When construction activities commenced in 2007, Eskom envisaged that
Medupi would join its national grid in July 2012, and that
the first
of the six units of the power plant would produce the first power by
the end of 2014. It is apparent that the completion
of this project
is crucial for the long term ability of Eskom to continue to supply
power to consumers, as it would ease pressure
on existing power
stations and prevent blackouts, such as those recently experienced.
The applicants, as attested to by one of
them, Mr. Zwelakhe Nkosi
(“Nkosi”), understood the significance of this project.
In Nkosi’s words, it was their
dream to get the project
completed, and all the employees involved in the project understood
the implications of any form of disruptions
that may have occurred
during construction.
The
role players in the project:
[4]
As per the testimony of the respondent’s former Financial
Director, Mr. Siven Maistry (Maistry), the respondent is a partly
owned subsidiary of Energy Fabrications (Pty) Ltd (“EF”),
which is wholly owned by Murray and Roberts Projects (Pty)
Ltd
(“MRP”). EF holds 49% and Elgin Engineering held 51% in
the respondent. The respondent provided labour whilst EF
was
responsible for material management. MRP had concluded a sub-contract
with Hitatchi Power Africa (Pty) Ltd (“HPA”)
to fabricate
and install the ducting which forms part of the boiler system during
construction of the power station. EF concluded
a sub-contract with
MRP to build the components for the ducting, and EF in turn
sub-contracted the labour to the respondent.
[5]
HPA is one of the three main contractors to Eskom. It is responsible
for the construction of the mechanical works, including
boilers. The
second main contractor is Medupi Power Station Joint Venture, which
is responsible for the civil works. The third
main contractor is
Alstom, which is responsible for the Turbine and electrical works.
[6]
In terms of the contract between the respondent and EF, the
respondent was only entitled to payment for the work it performed
upon the production of ducting components, based on tonnages
produced. The scope of the project required that 32 000 tonnes of
ducting components be produced at a rate of 800 tonnes per month over
40 months. To break even the respondent had to produce 680
to 700
tonnes per month.
[7]
The respondent only had the capacity to produce 800 tonnes per month.
If it missed a production target in any one particular
month, then
the period of 40 months within which it had planned to complete the
work would have to be extended. The consequences
thereof was an
increase in its fixed costs and payment in respect of only what was
produced, regardless of how long it took it
to produce, and the
associated expenses it took to complete the project. To this end lost
production could not be afforded as it
meant if monthly targets were
not achieved the respondent could incur losses which it could not
make up. Maistry further testified
that the respondent did not
achieve its monthly targets as a result of a variety of factors and
was desperate to increase productivity.
It had only achieved its
targets in mid 2010 following the dismissal of the applicants.
The
Project Labour Agreement:
[8]
Given the importance of the project, and in an endeavour to avoid any
delays or disruptions in its completion, all the employer
organisations alligned to the project and representatives of
recognized unions concluded a Project Labour Agreement (The ‘PLA”),
which was binding on all employers and employees engaged on site. The
rationale behind the PLA was to maintain labour peace during
the
construction of the project and to ensure consistency on site by
subjecting all employees under the different contractors to
common
terms and conditions of employment, rules and policies. Consistency
was paramount in that if one part of the contract stalled
as a
consequence of a labour dispute, this had a knock-on effect on other
contracts, which invariably caused disruptions and delays
for the
entire project.
[9]
The PLA formed part of the terms and conditions of employment of all
employees. In terms of its provisions, all employees employed
on the
project had to go through an induction process which focussed on the
important aspects of the PLA including the site of
construction,
health and safety, grievance and discipline, and industrial relations
policies and procedures. It contained detailed
grievance procedures
which were intended to channel grievances for speedy resolution.
Discipline was the responsibility of contractors
and had to be dealt
with expeditiously in terms of the standardized procedures found in
Annexure A of the PLA. The PLA also imposed
a peace obligation on the
parties.
[10]
Clause 4.6.3 of the PLA provided that strike action in pursuit of
matters of mutual interest already regulated by the PLA was
prohibited. As an incentive to avoid any form of industrial action or
absenteeism amongst employees, the PLA provided for a project
bonus
equal to 10 hours’ wages for each completed month worked on the
project, provided
inter alia
, the employees did not
participate in an unprotected strike or refused to work overtime.
The
applicants:
[11]
The respondent operated fabrication on site. Its facility consists of
three fabrication bays where core material was prepared,
sandblasted
and then cut into required components which were then packed and
distributed to bays where the artisans would weld
them together. The
vast majority of the applicants were employed as artisans (welders,
boilermakers, machine operators and riggers).
They fell under the
category of core employees and commenced employment at varying times
during 2009. They were employed in terms
of project and task specific
limited duration contracts. Their shift patterns included overtime
which was not voluntary. In a normal
week, they were required to work
a 54 hours, of which 14 constituted overtime. At month end, they
worked a shortened 33⅓
hour week. They were provided with
single status accommodation in park homes some 17 kilometres away
from site, and also with meals
three times a day. Two meals were
prepared and served at their accommodation site whilst the third was
a daily lunch pack provided
on the construction site.
The
induction:
[12]
The respondent’s contention was that all employees had attended
the compulsory induction programmes which dealt with
elements of the
PLA including its matters pertaining to industrial relations, peace
agreement and dispute resolution procedures.
Ms. Shevaughn Guilbride
(Guildbride), the respondent’s and Murray & Roberts
Project/Corporate Manager had testified that
every employee undertook
mandatory induction which covered issues such as the general
construction on site, medical, health and
safety, and the terms and
conditions of employment as contained in the PLA. She was personally
involved in the inductions over
time which also dealt with overall
conditions of employment, bonuses, and obligations on employers and
employees. The induction
was in two parts as new recruits arrived.
The first part allowed an employee access to the construction site,
whilst the second
part was contractor site specific.
[13]
Guilbride denied under cross-examination when it was put to her that
the induction only pertained to health and safety and
environment.
She insisted that the induction also covered the PLA, and copies in
this regard were given to employees during their
induction.
[14]
The applicants however through the evidence of Nkosi denied that the
employees undertook induction in respect of the PLA. His
testimony
was that the induction he had attended pertained to health, safety
and environment. He denied ever having seen a copy
of the PLA before
as it was not part of the induction programme. He and other employee
representatives had only received a copy
of the PLA in 2010.
Events preceding
the dismissals:
The incident of 17
October 2009.
[15]
On 15 October 2009, the respondent called a meeting with the
representatives of recognized unions to discuss the need to employ
a
limited number of expatriate artisans in order to boost production.
The employees were assured that these moves would not in
any way
jeopardise their employment opportunities. On 17 October 2009 the
majority of the applicants who were unhappy with these
developments
refused to commence the day shift, and insisted on being addressed by
management. The work stoppage took place for
one hour. After the
employees went back to work, they were issued with final written
warnings. Other than this sanction, the respondent
deducted a
pro-rata portion of the applicants’ bonus and also one hour’s
pay from their salaries.
[16]
Nkosi confirmed that two meetings were held with management before 17
October 2009 with regard to this issue. He and another
employee
representative, Mr. Eric Kganaga reported to the employees what
management’s intention was, and the employees were
unhappy
because they were of the view that this could lead to job losses.
Management was given a report back on the employees’
attitude
towards its intentions, and nevertheless indicated that it would go
ahead and employ the expatriates. When Nkosi and Kganaga
gave the
employees feedback, they demanded that management should address them
on the issue in the morning of 17 October 2009.
[17]
According to Nkosi, in the morning of 17 Octobr 2009 the employees
met Mr. Frank Erasmus, the applicants’ supervisor
at the
entrance to the site. They told him that they wanted to have a
meeting with him. Erasmus’ response was that he could
only meet
with the representatives. At some point, Erasmus then agreed to meet
with all the employees at a designated venue. He
again explained to
them the need to employ the expatriates and also reassured them that
their jobs were not in danger. Whilst the
meeting was in progress,
Mr. Buster McDonald, the respondent’s director arrived and
expressed his unhappiness about employees
not being at their
workstations. The employees explained to McDonald the reason they
were not at their work stations. McDonald
again explained to them the
reason the expatriates were to be employed. Nkosi’s contention
was that upon this explanation,
the employees then resumed their
duties.
[18]
Nkosi denied that employees were issued with final written warnings
for being off their workstation for under two hours on
17 October
20109. He further denied that there were any deductions made to
employees’ salaries as a result of the incident.
He attributed
the whole incident to a misunderstanding, and further denied that the
employees embarked on a work stoppage on that
day. He could not
however dispute it when it was put to him that employees had refused
to sign acknowledgement of the written final
warnings after this
incident, and not that these warnings were not issued at all.
[19]
Mr. Modibedi Beleng also testified on behalf of the applicants and
stated that he had not seen a copy of the final written
warning
before until these proceedings, and was surprised as he was never
issued with one. Under cross-examination however, Beleng
confirmed
that he had heard about deductions that were made to employees’
salaries.
[20]
Mr. Raymond Phillips also testified on behalf of the applicants and
confirmed that he was issued with a copy of the final written
warning. He had however refused to sign acknowledgement of it. He
further confirmed that there were many other employees who were
called to an office where the final written warnings were issued. He
also confirmed that he and other employees were told that
their
project bonus would be affected. He conceded that he was not the only
one that received the final written warning.
The
incident of 7 - 8 January 2010 and the Peace undertaking:
[21]
In December 2009, the respondent instituted disciplinary proceedings
against one of the employees, Mr. Mokoena, following allegations
of
misconduct against him. According to Guilbride, Mokoena had failed to
attend a disciplinary enquiry scheduled, and had instead
taken his
annual leave from 15 December 2009 to 2 January 2010. The Guilbride
had testified that as they were unable to contact
Mokoena from his
home in Kwazulu Natal whilst he was on leave, he saved the trip of
travelling back to Limpopo by dismissing him
via SMS in the light of
his failure to attend the disciplinary enquiry and also in view of
the serious allegations against him.
This did not go down well with
Mokoena’s co-workers and they embarked on an illegal strike on
7 and 8 January 2010, which
was also precipitated by other
grievances.
[22]
Nkosi confirmed the incident and further testified that other than
the dismissal of Mokoena, another employee, Mr. Dlamini,
was also
unfairly suspended whilst two others were issued with unfair
warnings. As a result of these disciplinary measures against
their
co-workers and other concerns pertaining to catering, the employees
had lodged a grievance, and when there was no agreement
with
management on how to resolve those issues, the employees embarked on
a work stoppage. The employees according to Nkosi, demanded
that
management must ‘remove’ those disciplinary measures
against their co-workers.
[23]
The strike ended after the NUMSA Regional Official intervened and
implored the employees to go back to work. At the time, the
applicants were members of NUMSA. After this incident, NUMSA no
longer represented the applicants and another union, BCAWU came
on
board as their representative. Guilbride testified that the employees
were unhappy with the NUMSA official who had told them
to go back to
work failing which if they were to be disciplined, NUMSA would not
defend them.
[24]
The employees resumed their duties with effect from 11 January 2010
but only after management had insisted that they should
sign a peace
undertaking. After they resumed their duties, management also
furnished the employee representatives with copies of
the PLA. In
terms of this ‘full and final settlement agreement’
[1]
which was signed by individual employees;
i.
They agreed to return to work on 11 January
2010 at 07h00;
ii.
They confirmed that the contents of the PLA
was known, understood and fully accepted.
iii.
They confirmed that they would adhere to
the PLA agreement for all future grievances and any deviation “to
the procedure”
could lead to dismissal.
iv.
They committed to conduct themselves in
accordance with the code of conduct as defined in the PLA ‘Employees
Undertaking’.
v.
They had acknowledged that their services
could legally be terminated should they participate in any form of
work stoppage, sit
down or unprotected strike during the duration of
the project.
vi.
They understood that the employer would not
accept circumstances where the employees do not follow procedures and
engage in breaches
of their conditions of employment, PLA and the
Labour Relations Act.
The
disputes surrounding catering:
[25]
Amongst the grievances raised by the employees that led to the work
stoppage of 7 and 8 January 2010 was the issue of catering.
Although
this issue was seen by the applicants as crucial, it was curiously
listed under “General Grievances” handed
to management
during that work stoppage. During the meeting held on 11 January
2010, the employees also complained about the standard
and quality of
food supplied by the contracted caterer, IPS. Amongst the complaints
raised was that the cooks appeared not to be
trained, meat was served
burnt and rotten on occasion.
[26]
Nkosi testified to the effect that the issue of catering was ongoing
and was initially discussed in weekly meetings held with
the
respondent’s Ronny Hockly, who had handled Human Resources and
Industrial Relations matters. Nkosi further testified
that when they
initially joined the respondent they were given food that they were
not used to and were at times served chicken
thighs which were
‘unusually large’. The menu was changed and for some time
they were fed food they were familiar with.
However, as the number of
employees increased overtime, the standard of food deteriorated, and
they were given rotten food and
drinks which had passed their expiry
dates. This problem was further discussed with management after the
signing of peace undertakings,
and was nevertheless not resolved.
[27]
Maistry confirmed that at the meeting held on 11 January 2010 in
order to resolve the work stoppage, other grievances pertaining
to
catering were also discussed. He and Erasumus had attended that
meeting and were tasked by the respondent with dealing with
the issue
of catering by engaging with IPS which provided catering for the
whole site. According to Maistry, a meeting was arranged
to be held
later in the evening of 11 January 2010 where IPS was invited. The
employee representatives, despite having agreed to
attend the meeting
had failed to do so in the evening.
[28]
One of the employees, Beleng, informed Maistry that they were too
tired to attend that meeting as they had attended the previous
meeting during the course of the day to resolve the work stoppage.
Nevertheless, the meeting between management and IPS went ahead
without the employees, and was followed by an inspection of the
catering facilities. According to Maistry, although the employees
had
complained about not being served name brand food, and also about the
state of the facilities where food was kept, he and Erasmus
had
discovered that there was no truth in the allegations, and that IPS
was providing name brand food.
[29]
On 3 February 2010 the employees’ representatives showed
management a sample of raw meat that was served by IPS, and
which
they had also alleged was rotten. Erasmus had immediately confronted
IPS, and the latter had agreed that poor quality meat
could have been
supplied by the contracted supplier, which IPS advised it was to be
replaced with another supplier. However from
3 to 5 February 2012,
the employees, and mainly artisans, had refused to consume lunch
packs provided by IPS. The respondent had
in the light of the
boycott, taken the meals to local communities. In response, the
artisans had on 5 February 2010 accepted their
lunch packs, but had
discarded it into rubbish bins in support of their food boycott.
[30]
Both Maistry and Giulbride testified that management personnel
including themselves had consumed food prepared by IPS and had
found
nothing wrong with it. Although most of the artisans had boycotted
the lunch packs, they had still continued to consume their
breakfast
and dinner meals as prepared by IPS. On 5 February 2010, a meeting
was held with the employee representatives, with an
official from
BCAWU, Mr. Masuku in attendance. The employees had
inter alia
,
demanded that the contract with IPS be terminated, and that the Camp
Manager, Mr. Thompson, be suspended.
[31]
The contract with IPS also involved the provision of cleaning
services by a number of female employees, and according to Maistry,
when the employee representatives were informed that the termination
of the IPS contract would affect the employment of the female
employees who also provided a service in the kitchen, their response
was that they would clean their own accommodation.
[32]
The contract with IPS was then suspended on 5 February 2010. The
respondent then secured the services of a local, Catering
Dave, which
was not equipped to cater for large groups. As the arrangement with
Catering Dave was obtained at short notice, members
of management had
to drive to Lephalale to buy and distribute food to employees over
the weekend of 6 and 7 February 2010. Since
the employees could also
not clean their own accommodation, an arrangement was also made with
IPS to continue to provide cleaning
services.
[33]
The respondent had continued to look for a suitable service provider,
and had on 10 February 2010, received a proposal from
a Cape Town
caterer, C3 Food Services. This company had made a presentation to a
joint sitting of employees and management. Amongst
other things
agreed to during the discussion of the C3 presentation was the
formation of a “Camp Committee” which was
to deal with
issues surrounding catering in the camp. C3 was ultimately appointed
on 28 February 2010, after Catering Dave had
indicated that it was
unable to provide further services. In the interim, another caterer,
Hainshaven Wildsplaas was also brought
in to assist.
[34]
A camp committee elected by the employees met with management and C3
representatives to discuss the menus, and the committee
had agreed to
give C3 a trial for three weeks. On 4 March 2010, the employees
complained that the breakfast served by C3 was inadequate.
They had
also presented management with a sample of the breakfast served.
Management had agreed that the quantity was small, but
that there was
nothing wrong with the quality. To supplement the small rations of
breakfast served in that morning, management
had then arranged for
pies to be bought and supplied to the employees at 10h00.
[35]
As a result of this incident, and following upon meetings held with
the employee representatives on 4 March 2010, a decision
was taken to
suspend the services of C3 for a week. In the same meeting, the
employees had nevertheless demanded that the services
of C3 should be
terminated, and that management should buy groceries for the
employees who would then co-ordinate their own cooking.
Maistry
denied that the suggestion of groceries was made by management.
Notwithstanding management’s concerns surrounding
the logistics
in regard to such arrangements, the employees had stuck to their
demand, and threatened to work only forty hours
a week if management
did not comply.
[36]
Maistry testified that this demand was unreasonable in that the only
complaint raised with C3 was the quantity of food. Be
that as it may
be, the employees were informed that since the demand had financial
implications, it was for the respondent’s
board of directors to
make a final decision on the matter. The employees were also
requested to compile a grocery list whilst the
board considered the
matter.
[37]
Maistry had testified that IPS provided catering for the whole site
and employees on other contracts. It was only the respondent’s
employees who had problems with IPS. Management had according to
Guilbride, decided not to acceed to the proposals by the employees
that management must buy them groceries. This was due to the reason
that any such arrangements would be contrary to the provisions
of the
PLA which required that the respondent should provide its employees
with meals. Furthermore, the accommodation site did
not provide
facilities for employees to prepare their own meals, and had this
been allowed, it would have created logistical problems
for the
respondent.
[38]
Management had then taken a decision to terminate the services of C3
and to reinstate the contract with IPS. A meeting was
convened with
the employees and Guilbride gave management feedback on 5 March 2010.
The employees were not pleased with management’s
feedback, and
their response was that they would only work forty hours per week
with no overtime effective immediately. Management
was also informed
that employees would henceforth buy and prepare their own food. The
employees stopped working on that day at
15h30 and clocked out. On
the Saturday of 6 March 2010 the employees failed to report for the
07h00 to 14h00 shift. Nkosi’s
contention was that this was due
to the reason that employees had to go to the shops to buy their own
groceries and food as the
shops closed early. He gave the same
explanation in respect of the events of 8 and 9 March 2010 when the
employees left work at
15h30 instead at the normal time of 17h30.
[39]
Another meeting was held with employees on 8 March 2010 which was
also attended by the respondent’s Managing Director,
Mr. Simon
Mordecai-Jones. The employees insisted on being granted grocery
vouchers in the amount of between R1000.00 and R2000.00
per week.
Masuku of BCAWU had then requested to have a caucus with the
employees and when they reconvened with management, ten
‘non-negotiable’ demands were made. These were;
i.
“
Bring back C3 as Service provider
for provision of meals immediately.
ii.
A full time monitoring of kitchen at C3
kitchens on a rotation basis (members from camp committee to monitor
quality and quantity).
iii.
Breakfast to be prepared in the park homes
by the ladies appointed to clean and cook in the park homes.
iv.
Communication between camp committee, C3
and management to continue on an ongoing basis.
v.
Any delays to be communicated to camp
committee in advance.
vi.
C3 to stick to Menus and any changes to
menu to be agreed to by camp committee before changes are implemented
vii.
All food to be brand names.
viii.
Energy supplements to be provided on a
regular basis.
ix.
Working hours for artisans to change from
15h30 (8 hours shift) and local to 17h00 (9.5 hour shift).
x.
The letter of confirmation by the Managing
Director of the Respondent clearly outlining that should C3 default
in any aspect of
quality and quantity that meal vouchers in the form
of monetary vouchers be provided by the company”.
[40]
Management acceded to eight of the ten demands. It could not however
agree on the changing of working hours, nor give an undertaking
that
if C3 defaulted, employees would be issued with meal vouchers. Its
contention was that acceding to the two demands would have
been in
conflict with the provisions of the PLA. Furthermore, complying with
these two demands would have created logistical problems,
which would
have impacted on the whole site as targets would not have been met.
When management refused to agree to these two demands,
the employees
had knocked off at 15h30 instead of 17h00 on 8 March 2010. They also
refused to work the full shift on 9 and 10 March
2010.
The
disciplinary proceedings:
[41]
Following a meeting held by Medupi Execution Team (Consisting of M&R,
Eskom and Hitachi) in regards the continuous work
stoppage the
respondent, on 10 March 2010, issued letters of caution to the
employees. The letters (dated 9 March 2010) read as
follows;
“
Letter
of caution: Illegal industrial Action
On
the 8
th
of March and 9 March you unlawfully left the job by leaving the work
premises at 15h30 which is in direct contravention of the
Labour
relations Act and the Project Labour Agreement and your contract of
employment. This is an unlawful illegal action on your
side
.(Sic)
You
currently have a final written warning on file for illegal work
stoppage you also have signed a peace agreement which states
your
full understanding of your action and the consequences should you
repeat this action
(Sic)
You
are cautioned that should you continue to take this action going
forward with illegal industrial action; the Employer will engage
its
right to take immediate action. The consequences to yourself will be
severe and will result in your dismissal
.”(Sic)
[42]
On 11 March 2010, the respondent had in view of the events of the
past three days, not provided the employees with the usual
transport
from their accommodation site, and had instead issued them with
letters of suspension. It had also on the same date issued
notices to
attend disciplinary enquiries to answer to the following allegations;
“
You
participated in an illegal work stoppage on Saturday 6 March 2010,
Monday March 2010 and Tuesday 9 March 2010 and Wednesday
10 March
2010, in that you left the site at 15h30 on Monday. Tuesday and
Wednesday and did not report for work on Saturday. You
are in
violation of your signed peace agreement, your employment contract,
the Labour Relations Act and the Project Labour Agreement”
[43]
The respondent had also written letters to NUMSA, BCAWU and
Solidarity informing them that disciplinary processes were to be
invoked against the employees who had embarked on industrial action
since 5 March 2010. Masuku, who had not been seen by management
since
8 March 2010 appeared on the scene on 11 March 2010 and sought to
give management assurances that the applicants would be
implored to
go back to work. The respondent would however have none of it and
informed him that the disciplinary enquiries would
proceed as
scheduled. The respondent had intended the enquiries to proceed on 15
and 16 March 2010, with different chairpersons
dealing with a group
of up to 15 employees at a time.
[44]
On 12 March 2010, BCAWU had declared a dispute in terms of the
provisions of the PLA by completing a Con-Arb referral form.
It
further proposed that the dispute be dealt with prior to the
disciplinary enquiries being held. BCAWU was of the view that the
employees had been provoked by being provided with ‘
rotten
food’.
The respondent’s response was that it was
entitled to proceed with the disciplinary enquiries in terms of the
provisions
of the PLA, and that the resolution of the dispute as
referred should run parallel with the disciplinary enquiry, and that
the
chairpersons of the enquiries will withhold their findings
pending the determination of the dispute referred.
[45]
The disciplinary enquires commenced as scheduled on 15 March 2010.
Masuku represented the employees and requested a postponement.
His
view was that there should be one collective disciplinary enquiry to
proceed on 16 March 2010. This request was granted. On
16 March 2010
however, Masuku did not make an appearance. He was according to
Nkosi, replaced by another official, named Tony.
The enquiry
commenced with Maistry acting as the initiator. The employees raised
certain objections at the commencement and during
the disciplinary
hearing. Some of the objections were valid according to
Maistry, and were dealt with by the chairperson.
Maistry’s
testimony was however that the employees were generally disruptive
and noisy, and amidst these objections and disruptions,
he had
presented the respondent’s case.
[46]
After Maistry had presented the respondent’s case, the
applicants declined to present their case despite being afforded
an
opportunity to do so. They walked out of the process. Maistry had
then urged the chairperson of the enquiry, Ms. Greyvenstein,
to
consider a dismissal of the employees. His reasoning was that there
was now a breakdown of a relationship between the applicants
and the
respondent, and that the respondent had done everything it could to
deal with issues and grievances raised the applicants.
Greyvenstein
had then closed the proceedings and did not immediately issued her
outcome in view of the dispute referred.
The
arbitration proceedings:
[47]
The issue whether the applicants should have been subjected to a
disciplinary enquiry or pre-dismissal arbitration was on 12
March
2010, referred by BCAWU to the Centre for Dispute Resolution of the
MEIBC in terms of the PLA. The matter was heard under
the auspices of
TOKISO by Patrick Deale on 17 and 19 March 2010. The issues for
determination were;
a)
Disciplinary Enquiry: When is it
appropriate for a disciplinary enquiry to be conducted in terms of
the PLA?
b)
Work Stoppage: Whether the employees’
refusal to work between 15h30 and 17h00 on 5, 8, 9 & 10 March
2010 and between 07h00
and 14h00 0n 6 March 2010 constituted
unprocedural work stoppages.
c)
Provocation: Whether the employees’
actions on the dates above were provoked by the company’s
conduct in serving rotten
food to the employees concerned.
[48]
In his carefully crafted and detailed award, Patrick Deale determined
that firstly, disciplinary enquiries (Level 5 cases),
which may
result in a dismissal must be referred to an external disciplinary
arbitration process as per Annexure A Clause 5.6.1
[2]
.
In this regard, the pre-dismissal procedures in the PLA were to
apply. Secondly, the employees’ refusal to work between
15h00
and 17h00 on 5, 8, 9 & 10 March and between 07h00 and 14h00 on 6
March 2010 constituted unprocedural work stoppage. Thirdly,
it was
determined that the company’s conduct did not provoke the
employees’ action on the dates in question.
The
pre-dismissal arbitration and the dismissal of the applicants:
[49]
Upon receipt of Patrick Deale’s award the respondent requested
a pre-dismissal arbitration on 24 March 2010. The matter
was set-down
for 26 March 2010 by TOKISO by way of notices issued on 25 March
2010. On 25 March 2010 Masuku of BCAWU, by way of
e-mail to
Guilbride, objected to the pre-dismissal arbitration proceedings, and
indicated that they were still waiting for the
outcome of the
disciplinary hearing conducted on 16 March 2010.
[50]
On 26 March 2010, the applicants and BCAWU failed to attend the
pre-dismissal arbitration as scheduled. The appointed arbitrator,
Mr.
Ebrahim Patelia did not proceed in the absence of the applicants in
view of the provision in clause 5.6.1 that there must be
consent from
the employees. Guilbride’s contention was that since the
employees had failed to subject themselves to the pre-dismissal
process as per the Deale arbitration award, management was left with
no option but to request Greyvenstein to issue the outcome
of the
disciplinary enquiry held on 16 March 2010. The outcome was released
on 29 March 2010 and the chairperson had recommended
the dismissal of
the applicants. Management then informed the applicants of their
dismissal on 30 March 2010.
Issues
for determination:
[51]
Amongst the issues agreed upon by the parties in the signed pre-trial
minute is that the conduct of the applicants, i.e refusal
to work the
full shift on 5, 8, 9 and 10 March 2010, and to work at all on the
Saturday of 6 March 2010 amounted to a strike which
was unprotected.
The issues for determination before the court are firstly, whether
the dismissal of the applicants by the respondent
was substantively
unfair, and if so, the relief to which the applicants are entitled.
Secondly, whether the dismissal of the applicants
by the respondent
was procedurally unfair, and if so, the relief to which the
applicants are entitled. The applicants sought relief
either in the
form of retrospective reinstatement, or in the alternative, maximum
compensation. The nature of the relief sought
was raised as an issue
of dispute on its own, but this shall be dealt with at a later stage
when it is deemed appropriate to grant
any form of relief.
The
legal framework and discussion:
Substantive
fairness of the dismissal:
[52]
Employees who participate in an unprotected strike may be dismissed
in terms of section 68(5) of the Labour Relations Act,
which provides
that;
“
Participation
in a
strike
that does not comply with the provision of the 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.”
[53]
The fact that a strike is unprotected does not automatically call for
a dismissal
[3]
. A dismissal
should in all circumstances, be used as a sanction of the last
resort
[4]
. There should
therefore be a careful consideration of surrounding circumstances
prior to dismissal, including those as contemplated
in item 6(1) of
the Code of Good Practice, which provides that;
‘
Participation
in a strike that does not comply with the provisions of Chapter VI is
misconduct. However, like any other act of misconduct,
it does not
always deserve dismissal. The substantive fairness of dismissal in
these circumstances must be determined in the light
of the facts of
the case, including-
a)
the seriousness of the contravention of
this Act,
b)
attempts made to comply with this Act; and
c)
whether or not the strike was in response
to unjustified conduct by the employer.”
[54]
Since participation in an unprotected strike ordinarily constitutes
misconduct, there are other general provisions in Schedule
8 which
should also be taken into account. These are those in item 3(4),
which provides that;
“
Generally,
it is not appropriate to dismiss an employee for a first offence,
except if the misconduct is serious and of such gravity
that it makes
a continued employment relationship intolerable”.
Item
3(5) which provide that;
“
When
deciding whether or not to impose the penalty of dismissal, the
employer should in addition to the gravity of the misconduct
consider
factors such as the employee’s circumstances (including length
of service, previous disciplinary record and personal
circumstances),
the nature of the job and the circumstances of the infringement
itself”.
Item
3(6) which provide that;
“
The
employer should apply the penalty of dismissal consistently with the
way in which it has been applied to the same or other employees
in
the past, and consistently as between two or more employees who
participate in the misconduct under consideration”
[55]
In
NUMSA
& others v CBI Electric African Cables
[5]
,
the LAC recently confirmed that in determining the fairness of the
dismissal effected on the ground of employees’ participation
in
an illegal strike, the court should consider not only item 6 of the
Code but also item 7
[6]
. In this
regard, the LAC per Zondi AJA held that;
“
In
my view the determination of substantive fairness of the
strike-related dismissal must take place in two stages, first under
item 6 when the strike related enquiry takes place and secondly,
under item 7 when the nature of the rule which an employee is
alleged
to have contravened, is considered. It follows that a strike-related
dismissal which passes muster under item 6 may nevertheless
fail to
pass substantive fairness requirements under item 7. This is so
because the illegality of the strike is not “
a
magic wand which when raised renders the dismissal of strikers fair”
(National Union of Mineworkers of SA v VRN Steel (1991) 12 ILJ 577
(LAC)). The employer still bears the onus to prove that the
dismissal
is fair”
[7]
.
[56]
In view of the common cause fact that the work stoppage was illegal,
the first issue to dispose of is whether there is any
merit in the
applicant’s contention that they did not know of the provisions
and procedures set out in the PLA. Other than
the provisions of
section 64 of the Labour Relations Act, if the employees were
aggrieved about some issue and intended on embarking
on industrial
action, the provisions of the PLA were also applicable. Clause 12.1
of the PLA made provision for “Peace Obligation”,
and
parties were prohibited from sanctioning, promoting or participating
in industrial action until procedures in the PLA were
exhausted.
Nkosi’s had testified to the effect that he or any of the
applicants were not aware of the provisions of the PLA
until after
the employees were made to sign peace agreements on 11 January 2010.
He and Beleng were insistent that employees were
only inducted on
health and safety matters and nothing else.
[57]
The PLA was negotiated between employers and recognised unions and
was endorsed by Eskom. As per its executive summary, the
PLA put in
place, the structures, processes and procedures that needed to be
followed by all parties on site in order to facilitate
sound labour
relations practices. It
inter alia
, established disciplinary
and grievance procedures as well as for the review and negotiation of
site specific terms and conditions
defined in it. It established
dispute resolution mechanisms and procedures for the resolution of
all labour disputes that may arise
on the project and also put in
place rules relating to procedural and unprocedural strike action.
[58]
Clause 8.2 of the PLA provided for induction programmes lasting up to
one day to cover salient points such as a detailed outline
and
understanding of the industrial relations policies, standards,
procedures and other important aspects of the agreement. Clause
8.2.4
provides that the Contractor shall be required to provide, at its own
cost, a Contractor-specific induction program for each
of its
employees covering industrial relation, occupational health and
safety, and environmental and site rules and regulations
applicable
to the area where the employees are working.
[59]
In the light of the importance of the PLA, which the employees
regarded as a ‘holy book’
[8]
,
it is strange, if not improbable, that the respondent would during
the induction of its employees, concentrate only on the health
and
safety, and environment, to the exclusion of all other things, and
more pertinently, labour relations. Even if Nkosi’s
version
that he only got a copy of the PLA on 11 January 2010 is to be
believed, it is indeed improbable that he and all the other
employees
would not have known or heard of the PLA before then. They could not
have regarded the PLA in the terms they had ascribed
to it unless
someone had informed them about it.
[60]
Nkosi further conceded that he had signed an annexure to his contract
of employment, which in many instances made reference
to the PLA, and
in terms of which as per its clause 13, all employees had made
certain undertakings including to channel all grievances
through the
correct procedures, and to comply with the PLA. Nkosi further
conceded during cross-examination that employees were
told to use
relevant procedures if they had issues to raise with management.
Taking all these factors into account, it is found
that it is
improbable that Nkosi and any applicants could not have known of the
PLA and its provisions. The applicants had not
only completely
disregarded its provisions in embarking on the work stoppages, but
also those of the Labour Relations Act. No attempt
was made in this
regard, notwithstanding the further undertakings made on 11 January
2010.
[61]
The next issue to determine is whether the work stoppages were in
response to any unjustified conduct on the part of the respondent.
In
this regard, it was argued on behalf of the applicants that they had
demonstrated that the issue of the poor quality of meals
had been
there for some time since 2009, and that action was taken by the
respondent only after the meal boycott in February and
March 2010.
Even if this was the case, to the extent that the employees had laid
a grievance in this regard, and countless meetings
were held to
address the issue, this adds credence to the view that as the matter
was on-going and under sustained discussions,
this could not serve a
provocation to the extent that the whole procedures designed to deal
with such matters under the PLA could
be completely ignored. To this
end, there is no basis for a conclusion to be made that there was
provocation that compelled the
applicants to ignore the provisions of
the PLA and embark on the path that they took.
[62]
The crux of this matter is whether the question of food and the
manner with which the respondent had responded to it constituted
unjustified conduct on its part. In argument, Mr. Watt-Pringle
advanced various points in support of the contention that in regard
to the issue of food, the applicants had not raised a genuine
dispute, nor did they genuinely seek resolution of the food issue.
In
this regard, it was argued that:
62.1
There was no credible evidence that the food supplied by IPS caused
health problems or was indeed unacceptable
on any reasonable basis.
It was argued that the applicants had failed to explain the reason
management and other artisans ate the
food supplied by IPS without
complaints.
62.2
Wild and unsubstantiated allegations of rotten food, sub-standard
kitchens and employees getting food
poisoning were not credible.
62.3
The applicants had failed to respond reasonably, or to give any
credit to management for the extreme
efforts to which management went
in order to meet their demands. It was argued that instead, the
applicants saw an opportunity
to hold to ransom, a management team
desperate to keep production going.
62.4
In pursuit of their own agenda to obtain cash or groceries instead of
catered meals, the applicants
continuously moved the goal posts so as
to thwart any attempt by management to reach a lasting compromise.
62.5
The evidence of Maistry and Guilbride that the employment
relationship and the relationship of trust
between the applicants and
the respondent had irretrievably broken down was not disputed, and
that Nkosi had instead conceded that
this was the case.
62.6
The failure of the applicants to offer any explanation for their
conduct either at the disciplinary
hearing or at the arbitration
hearing.
62.7
The failure of the applicants in these proceedings to show any
appreciation for their wrongdoing or express
regret.
[63]
Nkosi testified that the complaints surrounding food started to
surface some time after their employment. At that point, the
problem
had nothing to do with the quality or quantity of the food, other
than that they were given food they were not used to,
including
‘unusually large chicken drumsticks’. Having complained,
the menu was then changed to accommodate them, including
being served
with normal sized drumsticks.
[64]
The quality of food according to Nkosi deteriorated when the number
of employees on site increased in or around July 2009.
Nkosi’s
contention was that the employees were served rotten food and expired
drinks. Notwithstanding the supposedly contentious
nature of the food
issue, it was again raised as part of the general concerns
surrounding the work stoppage of 7 and 8 January
2010. In an
endeavour to attend to the problem, a meeting was arranged between
management, employee representatives, and IPS, which
was to be
followed by an inspection of the catering facilities. The employees
however did not attend that meeting or inspection,
as they were
‘tired’ from attending other meetings pertaining to the
work stoppage. The attitude of the employees indicated
the
seriousness with which they regarded the issue of catering. Be that
as it may be, management had on its own, had a meeting
with IPS and
done an inspection. Nothing untoward was found, and it was
established that there was no merit in the complaint that
IPS did not
serve name brand food.
[65]
Any evidence of problems with the food came to the fore on 3 February
2010 when the employees produced a sample of raw meat
that appeared
to be spoilt. Erasmus had immediately acted by confronting IPS in the
presence of employee representatives. IPS had
conceded that there was
indeed a problem, and it had in turn acted against its meat supplier.
In this regard, it cannot be said
that the respondent had ignored the
problem or had acted in a dilatory manner in addressing it.
[66]
Notwithstanding the due haste with which the respondent had dealt
with the problem, the employees nevertheless embarked on
a food
boycott with immediate effect. Nkosi’s explanation in this
regard was simply that the problem had been on-going since
2009. In
my view, the incident with the raw and spoilt piece of meat,
albeit
an isolated incident which was immediately attended to, proved to be
an excuse for the employees to confront the respondent. This
conclusion is reached on the basis that in the past, as is evident
with the incidents of 17 October 2009 and 7 and 8 January 2010,
the
employees were quick to be confrontational and embark on any
industrial action even in circumstances that did not warrant such
action. It is as if the employees, like recalcitrant bullies, were
always looking for a street fight.
[67]
The employees had boycotted the meals between 3 and 6 February 2010,
during which time, meetings were held to address the issue,
the IPS
contract was suspended, and the services of other caterers were
secured. At a meeting of 5 February 2010, the employees
had demanded
the termination of IPS contract, which the respondent temporarily
acceded to. This was notwithstanding the fact that
IPS also provided
other forms of service like cleaning in the accommodation site. The
employees, self-righteous as they were, were
least concerned with the
plight of other vulnerable employees, and had insisted on the
termination of the contract with IPS.
[68]
During the period that IPS was suspended or temporarily terminated,
around 6 and 7 February 2010, the respondent’s management
team
had taken upon itself, at great cost, sacrifice and time, to provide
and distribute food amongst the employees. The respondent
had secured
the service of other caterers in the area which were clearly out of
their depth in view of the number of employees
to be fed. C3 came
into the picture and was temporarily engaged. The employees however
found fault with it on the basis of one
breakfast meal which was
clearly small in quantity. There was however nothing wrong with the
quality of food. The respondent’s
management team acknowledged
that the quantity was inadequate and went out of its way to
supplement the breakfast with pies. Still
this was not good enough
for the employees because on 4 March 2010, some four days after C3
was officially appointed, the employees
had demanded its contract to
be terminated.
[69]
Amongst other demands made by the employees was that the respondent
must buy them groceries and that they would prepare their
own meals.
This notwithstanding the impracticalities with this approach. When
the respondent refused to consider this option, like
the bullies they
were, the employees threatened retribution in the form of work
disruption. Notwithstanding the problems with the
grocery option,
employees were told to compile a list whilst the respondent’s
board was to consider their demand. The grocery
lists compiled by the
employees
[9]
according to their
houses/units range from basics like mealie meal to luxuries such as
prawns. In some instances, the grocery list
included red wine, and
toothpaste. Probably this was meant to be flippant.
[70]
The response that the employees got from Guilbride on 5 March 2010 is
clearly not what they had expected in view of the respondent’s
past practice of appeasing them and giving in on their demands. The
respondent had decided to re-engage the services of IPS and
rejected
the grocery list option. In response, and in the presence of Masuku,
the employees decided to flex their muscles by stating
that they
would henceforth only work forty hours per week with no overtime;
that they would continue the food boycott and prepare
their own
meals. The threat was merely to continue with their illegal action
from 5 and 6 March 2010. The industrial action continuing
into 8,9
and 10 March 2010 was clearly precipitated by the respondent’s
refusal to yield to the unreasonable demand for groceries
to be
bought. The focus had now shifted from the food issue to the
unreasonable demand for groceries to be bought. As was correctly
pointed out on behalf of the respondent, the employees kept on
shifting the goal posts as if in a street fight.
[71]
The unreasonableness of the applicants’ attitude in my view
became abundantly clearer with the list of ten ‘non-negotiable’
demands tabled on 8 March 2010. Despite the respondent having acceded
to eight of those demands, the employees were uncompromising
nevertheless in respect of the other two, which the respondent could
not yield to on the basis of practical considerations and
the fact
that to give in to them would clearly put the respondent in conflict
with the provisions of the PLA. Nkosi and the other
employees were
aware of this conflict, but his view was that the respondent could go
contrary to the provisions of the PLA in order
to meet their demands.
This sense of self-righteousness was to prove to be the demise of the
applicants. In my view, whatever solution
the employees were looking
for was in respect of a problem which they had created themselves.
They were unrelenting in respect
of demands which were clearly
unreasonable. In the interim, C3 was reinstated as per the employees’
demands, despite their
previous demands that its contract be
terminated.
[72]
As already indicated, the employees were always looking for a fight,
and ultimately, it was no longer clear what their grievances,
if any
were, as they kept changing their demands with little regard to the
consequences of those demands or their actions. If ever
there was any
form of provocation, it was instead on the part of the employees. In
my view, they were looking for a reason for
the respondent to
terminate their services, and unfortunately, they got their wish.
[73]
Item 3(4) of the Code of Good Practice provides that;
‘
Generally,
it is not appropriate to dismiss an employee for a first offence,
except if the misconduct is serious and of such gravity
that it makes
a continued employment relationship intolerable’
There can be no doubt
that the applicants’ decision to embark on industrial action
between 5 and 10 March 2010 was well thought
out
albeit
ill-conceived. It is one thing to embark on unprotected industrial
action for a few hours and something else to do so on four
consecutive days in pursuance of unreasonable demands. The applicants
knew the seriousness and impact of their actions on the entire
Medupi
Project. They knew that disruptions experienced in their contract
impacted negatively on other projects. The respondent
had more than
bend backwards in accommodating them insofar any perceived grievances
they may have had with catering. At no stage
did the applicants pause
to take stock of their actions.
[74]
The last industrial action embarked upon was not the employees’
first. They had already received final written warnings
for similar
conduct some five months earlier in October 2009. Attempts by Nkosi,
and Beleng to deny the existence of these final
written warnings
ultimately proved to be futile in the light of the evidence and
concessions made by Phillips. Mr. Baloyi on behalf
of the applicants,
argued that there may have been one or two individuals who had signed
acknowledgment of these final warnings,
and that not much evidential
value should be attached to Phillip’s testimony. These
arguments cannot be sustainable in view
of the fact that it is
unlikely that one or two individuals could have embarked on a strike,
and furthermore, the concessions made
by Phillips went beyond merely
refusing to sign acknowledgement of receipt of a copy of the final
warning. Phillips had conceded
that he and many other employees were
called to the office to sign and collect these warnings, and were
told that this would affect
their project bonus. He and most if not
all of the employees had refused to sign for acknowledgement of
receipt of those warning.
The fact that the employees had refused to
sign acknowledgement or accept these warnings does not however imply
that they were
never issued.
[75]
Other than the final warning, the applicants had following another
unprotected industrial action on 7 and 8 February 2010,
signed peace
agreements in terms of which they made certain undertakings. These
undertakings however proved to be hollow and meaningless,
as within
two months, they had embarked on an unprotected strike for four
consecutive days. It is my view that viewed as a whole,
the
applicants’ conduct was so serious and of such gravity that it
made a continued employment relationship intolerable.
This conclusion
is reached when regard is also had to their propensity to embark on
unprotected industrial action at the drop of
a hat, their complete
disregard for previous undertakings, warnings, the provisions of the
PLA and letters of caution, the respondent’s
sustained and over
the top attempts at meeting the employees’ unreasonable need
and demands, and the impact the applicants’
conduct had not
only on the respondent’s operations but also on the entire
Medupi Project. Guilbride and Maistry were correct
in contending that
in these circumstances, it could not have been expected of the
respondent to continue to trust the applicants
when it was clear that
disciplinary measures and undertakings they had made had not yielded
the results expected.
[76]
In my view, the respondent had reached a point where it had to draw
lines in the street fight picked up by the applicants.
It had come to
a point where it had to confront the bullies head on after all the
efforts it had made to appease them had failed.
I have no reason to
doubt the respondent’s contention that the decision to dismiss
the applicants was not taken lightly in
view of the fact that it was
thereafter, required to recruit new artisans in a middle of a vast
project. In my view, that decision
cannot be faulted in the light of
the circumstances already pointed out.
[77]
It cannot be doubted that the applicants were well aware of the
importance and the enormity of the Medupi Project. In my view,
they
had in the light of the importance of that project, misjudged their
own importance and the vulnerability of the respondent,
hence they
had embarked on their path of seeking confrontation. At no point
during these proceedings had any of their witnesses
showed any form
of contrition or acknowledged their wrong doing. Instead, the
applicants sought to absolve themselves from any
wrong-doing and
pointed the finger at the respondent for every misfortune that has
befallen them. Nkosi went at length in seeking
to portray the
respondent as being provocative and unresponsive to the catering
issue when in fact it was the employees’
conduct and
unreasonableness that was provocative if not daring. In the end, the
bully that started the street fight cannot claim
to be a victim when
it comes second best in that fight.
[78]
On the whole, the catering issue was a farce if not insignificant,
and was used by the applicants to pursue their confrontational
path
and to provoke the respondent. Notwithstanding the insignificance of
the catering issue, the respondent had over time like
a long
suffering victim, shown restraint, and did all that it could to
address whatever perceived problems the employees may have
had.
Nkosi’s show of any emotion during these proceedings was in
regards to the fact that the he and others remain unemployed
and have
suffered untold hardship since their dismissal. That emotion was not
out of contrition. Given all these considerations,
I am satisfied
that the respondent has discharged the onus of proving that the
dismissal of the applicants was substantively fair.
As this was the
first time that the respondent was required to dismiss employees
under such circumstances, there is no other incident
to measure
whether it had acted consistently or not. In any event, this was not
an issue raised on behalf of the applicants.
Procedural
fairness of the dismissal:
[79]
Item 6 (2) of the Code of Good Practice provides that;
“
Prior
to dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of action
it
intends to adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of
the employees
and what sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient
time to reflect
on the ultimatum and respond to it, either by complying with it or
rejecting it. If the employer cannot reasonably
be expected to extend
these steps to the employees in question, the employer may dispense
with them.”
[80]
The
above requirement is meant to afford the union an opportunity to
persuade the strikers to resume work and secondly, provides
a
safeguard against possible rash action by the employer. If an
employer decides to issue an ultimatum, it should meet the
requirements
of the Code, and the employer must ensure that it allows
employee sufficient time to reflect on the ultimatum and to respond
to
it
[10]
.
[81]
In this case, after the applicants were issued with letters of
caution, letters of suspension and notices to attend the disciplinary
enquiry, the respondent had also on 11 March 2010, sent letters to
the recognized unions, including BCAWU. The unions were informed
that
the employees had been on illegal industrial action since 6 March
2010 in violation of their signed peace agreement, employment
contracts, the LRA and the PLA. The unions were also advised that the
employees were also issued with cautionary letters which
had had no
effect, and that the respondent therefore had no alternative but to
proceed to suspend the workers with full pay. The
respondent had also
indictated that it was in the process of notifying the employees of
the date and time to attend a disicplinary
hearing. None of the
unions respondend to such correspondence.
[82]
The applicants’ main contention in regards to procedural
fairness was that the respondent relied on an adverse finding
made by
Deale that the employees’ refusal to work constituted unlawful
work stoppage and that the work stoppage was not provoked
by the
respondent. It was common cause that the refusal to work the full
hours, and not at all on 6 March 2010 constituted illegal
strike.
Furthermore, a similar finding has been made in this judgment that
the illegal strike action was not provoked by the respondent.
To this
end, there is no merit in the applicants’ arguments.
[83]
It was further submitted on behalf of the applicants that the
dismissal was unfair as it was hopelessly premature since it
was not
preceded by a proper disciplinary hearing subsequent to the
abandonment of the pre-dismissal arbitration hearing before
Patelia.
Furthermore, it was contended that the respondent had relied on
Deale’s adverse finding in arriving at a sanction
of dismissal,
and without giving the applicants an opportunity to plead in
mitigation.
[84]
The procedural fairness of the dismissal should be viewed in the
light of the timeline of events. In this case, Masuku of BCAWU
had
been engaged in meetings with management sporadically. He had failed
to attend a high profile meeting scheduled for 7 March
20110, but had
nevertheless attended such a meeting on 8 March 2010. At that last
meeting, the employees tabled the ten ‘non-negotiable’
demands and Masuku was not seen until 11 March 2010 after the letters
of caution, suspension and notices of disciplinary enquiry
were
issued. At that point, Masuku had attempted to make assurances that
he would pursuade the employees to return to work, but
the respondent
would have none of it.
[85]
The respondent viewed these letters as serving as ultimatum in that
the employees were cautioned that should they continue
with their
illegal industrial action, it would engage its right to take
immediate action. The consequences thereof were said to
be severe and
could result in their dismissal. Notwithstanding the issuing of these
letters, the employees nevertheless left their
workstations at 15h30
instead of the normal 17h00. In this regard, it was submitted that
the ultimatum was issued on the back of
repeated warnings that
unprocedural, unlawful industrial action result in dismissal. The
respondent’s contention was that
there was no evidence that the
applicants did not have sufficient time to consider their position as
they had been in discussions
with management since 4 March 2010, and
on a collision course since the meeting of 8 March 2010.
[86]
In the light of the applicants’ specific contentions in regard
to alleged procedural unfairness, even though the letters
of caution
issued to the employees and those sent to the unions fell short of
specifying what exactly was required of the employees
and when, and
also when if any, action was to be taken if there was no compliance,
I am satisfied that these served as proper ultimatum
for the purposes
of item 6 (2) of the Code of Good Prctice. This conclusion is reached
when the timeline of the events is taken
into account, the continuous
meetings held with the employees between 5 and 10 March 2010, the
unreasonable demands made by the
employees, the confrontational
stance adopted by the employees, the previous final warnings issued
in regard to the same circumstances,
the employees’ failure to
abide by the ‘peace obligations’ as contained in the PLA
or undertakings made in January
2010, and most importantly, the clear
wording of the letters of caution.
[87]
There is furthermore no suggestion that Masuku had other than the
approaches he had made to Guilbride, taken any steps in pursuading
the employees on 10 or 11 March 2010 to return to work. In view of
the respondent’s failed attempts at contacting Masuku
after the
letters of caution were issued and further after letters were sent to
the unions, and in view of the stance adopted by
the employees, it is
unlikely that any further engagement with them would have yielded
desired results. As already indicated earlier
in the judgment, the
applicants chose to dare the respondent, and they cannot complain
that they were not given sufficient time
to reflect on their actions,
when they knew of such consequences as per the final written
warnings, the peace undertakings, and
the letters of caution. No
clearer message could have been sent to drive the point home.
Furthermore, given the limited confines
of the applicants’
arguments in this regard, I did not understand their argument to be
that had they been given further sufficient
time, they would have
reflected on their course of action and relented.
[88]
The applicants were further invited to attend disciplinary enquiries
on 15 and 16 March 2010, and these had turned into a collective
disciplinary enquiry to be held on 16 March 2010 as per the request
of Masuku. Masuku however did not attend the disciplinary enquiry.
Maistry’s testimony was that the disciplinary enquiry had
proceeded amidst objections and disruptions. The applicants had
not
taken the opportunity granted to them to present their case and had
instead walked out of the disciplinary enquiry. Even in
argument,
there was no suggestion that this disciplinary enquiry had not taken
place as the only issue raised on behalf of the
applicants was that
they were not afforded an opportunity to make submissions in
mitigation of sanction. To this end, the applicants
cannot complain
that the disciplinary enquiry was unfair, when they had consciously
turned down an opportunity to be heard. In
view of the dispute that
was referred by BCAWU pertaining to whether an arbitration process
rather than a disciplinary enquiry
should have been followed, the
chiarperson of the disciplinary enquiry held on 16 March 2010 was
correct in reserving her findings
pending the determination of that
dispute.
[89]
The Patrick Deale arbitration had taken its course, and with a
finding that the applicants should have been subjected to a
process
of pre-dismissal arbitration in terms of the provisions of the PLA.
That process, which the applicant had in any event
contended to be
the correct one, was put in motion and arrangements were made in that
regard. Rather than attending to that process
as this was what Masuku
and the applicants had always wanted, Masuku instead as per his
e-mail of 25 March 2010, sought the chairperson
of the enquiry held
on 16 March 2010 to make her findings known. It was correctly
submitted on behalf of the respondent that the
applicants could not
be allowed to approbate and reprobate. It is not known whether the
applicants were intent on playing games
with the respondent, or
whether they genuinely did not know what they wanted in view of the
quackmire they had created for themselves.
Be that as it may, the
applicants were granted their wish by the chairperson of the enquiry,
who had announced her findings and
the dismissal of the applicants on
30 May 2010.
[90]
One of the procedural irregularities alleged was that the applicants
were not afforded an opportunity to make submissions in
regard to
mitigation of sanction. Item 3(5) of the Code of Good practice
requires
inter alia
that prior to deciding whether or not to
impose the penalty of dismissal, the employer should in addition to
the gravity of the
misconduct, consider factors such as the
employee’s circumstances (including length of service, previous
disciplinary record
and personal circumstances), the nature of the
job and the circumstances of the infringement itself”.
[91]
It might be argued in this case that to the extent that the
respondent had reverted back to the Greyvenstein disciplinary enquiry
when the Patelia pre-dismissal arbitration failed to take place, the
applicants should have been afforded an opportunity of
pleading
in mitigation prior to the findings being announced on 30 March 2010.
Ordinarily, in misconduct cases, it would be required
of the
chairperson of a disciplinary enquiry to first make a finding of
‘guilt’ on the allegations made against the
employee, and
for the latter to be afforded an opportunity to make submissions in
regard to the sanction to be considered.
[92]
The difficulty however in following this ‘standard’
procedure in disciplinary enquiries arises when an employee
as in
this case, walks out of the enquiry or refuses to participate in that
enquiry at all. Aspects of mitigating and aggravating
factors even
though ordinarily treated as stand alone matters, are intrinsically
linked to the merits of the case. Where the chairperson
of the
enquiry was presented with the undisputed version of the employer in
circumstances where an employee failed to exercise
his or her right
to be heard, I fail to appreciate how that employee can present his
or her mitigating factors in a vacuum. In
my view, since the employee
waived his or her rights to be heard, it would place an onerous
burden on the employer to make a finding
on ‘guilt’ and
thereafter call upon that employee to plead in mitigation. There
would be no logic in this approach
as in my view, the employee has
waived his or her rights for all intents and purposes, and that
waiver cannot be merely in respect
of presenting one’s case.
The waiver should be construed as being in respect of the
disciplinary process as a whole. To this
end, the applicants in this
case by refusing to take part in the disciplinary enquiry waived
their rights to be heard, including
the right to plead in mitigation.
[93]
Other than the above difficulty, it is my view that even if an
opportunity to plead mitigating factors was not granted, an
employee
is still obliged to demonstrate what those factors are before the
court, and for the court to make its own determination
that if they
were indeed presented at the disciplinary enquiry, the chairperson
would have looked at the matter differently, and
considered a lesser
sanction. This was however not the case in these proceedings, and as
already pointed, none of the three of
the applicants’ witnesses
had at the very least, shown some contrition, let alone demonstrate
why they deserved a lesser
penalty.
[94]
It is further trite that dismissal is not
per
se
punishment. It is a rational response to risk management in the
affected enterprise. The factors that should be taken into account
in
considering mitigating factors should be relevant to the risk of
further instances of misconduct in the future, and the risk
of harm
to the enterprise as a whole
[11]
.
In this case, I am satisfied that the respondent has indeed
demonstrated that in view of the propensity of the applicants to
embark on illegal industrial action on the spur of the moment, the
harm posed as a result of this conduct was not only to its enterprise
by to the Medupi Project as a whole, and the decision to dismiss the
applicants was clearly in response to the operational risks
they had
posed by their conduct. To this end, I am satisfied that the
respondent has demonstrated that the dismissal of the applicants
was
procedurally fair.
Other
preliminary matters:
[95]
The respondent had at the commencement of these proceedings raised
objections in regard to the mandate of the applicants’
attorneys of record. In the middle of trial on 26 August 2013, Mr.
Baloyi had presented an amendment to the annexure containing
the list
of the names of the applicants. Mr. Watt-Pringle in his closing
submissions had accepted that those applicants listed
in both
annexure M1 to the statement of case and on the handwritten list
submissted on 26 August 2013 were properly before the
court as
represented by Mr. Baloyi.
Costs:
[96]
Mr. Watt-Pringle submitted that the applicants never had reasonable
prospects of success in this matter, and that the respondent
was put
through great trouble and expense. He had further submitted that
there was no on-going relationship between the parties,
and that
costs, including the costs of two counsel should follow.
[97]
In exercising its discretion when it comes to the issue of costs, the
court has has to take into account considerations of
law and fairness
as dictated by the provisions of section
162
of the Labour Relations Act. The aspect of requirement of the law has
been interpreted by the courts to imply that costs would
ordinarily
follow the results. In other words a successful party would be
entitled to costs
[12]
.
The aspect of consideration of fairness on the other hand implies
that the Labour Court, it being a court of equity, would not
necessarily order costs against a party saddled with an adverse
decision unless there are special or exceptional circumstances
justifying the costs order.
Mala
fides
,
unreasonableness and frivolousness have been found to be factors
justifying the imposition of a costs order
[13]
.
[98]
In this case, inasmuch as there is a basis for a conclusion to be
made on the issue of costs purely on the aspect of law, it
is my view
that on the other hand, equity dictates that it must be taken into
account that the applicants had on their own contributed
to the legal
costs regarding this matter having been abandoned by BCAWU. Secondly,
although it can be said that the applicants’
prospects of
success appeared remote from the beginning, it is however my view
that it cannot be said that the matter before the
court was motivated
by
mala fides
. In the end, I cannot find any exceptional
circumstances that would justify a cost order, more specifically as a
majority of the
applicants remain unemployed. The court cannot be
seen to be encouraging a plethora of frivolous cases. However at the
same time,
the court cannot be seen to be dissuading employees
dismissed
en masse
from approaching it for relief.
Order:
i.
The dismissal of the applicants on account
of participating in an unprotected industrial action was
substantively and procedurally
fair.
ii.
There is no order as to costs.
Tlhotlhalemaje AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicants:
Mr. MM Baloyi of Baloyi Attorneys.
For the Respondent:
Adv C Watt-Pringle
SC with Adv MA Van der Merwe
Instructed
by:
Fluxmans INC
[1]
As
contained on p291 of the respondent’s bundle
[2]
5.6
Level
Five- Formal Disciplinary Enquiry/Arbitration
5.6.1
If subsequent to issuing a written warning, the supervisor is still
not satisfied with the performance
or behavior of the employee, or
the employee commits a further offence within the prescribed period
of twelve months, or if an
employee commits an offence which could
render him/her liable for a possible dismissal, then the supervisor
shall request a formal
disciplinary /arbitration hearing or if the
employee agrees to a pre-dismissal Arbitration
[3]
NUM
obo Employees v CCMA [2012] 1 BLLR 22 (LAC)
[4]
WG
Doney (Pty) Ltd v National Union of Mineworkers (1999) 20 ILJ 2017
(SCA)
[5]
Case
number: JA51/11 at para 27
[6]
Guidelines
in cases of dismissal for misconduct ;
“
Any
person who is determining whether dismissal for misconduct is unfair
should consider –
(a)
Whether or not the employee contravened a rule or standard
regulating conduct in,
or of relevance to, the workplace; and
(b)
If a rule or standard was contravened, whether or not –
(i)
the rule was a valid or reasonable rule or standard;
(ii)
the employee was aware, or could reasonably be expected to have been
aware,
of the rule or standard;
(iii)
the rule or standard has been consistently applied by the employer;
and
(iv)
dismissal was an appropriate sanction for the contravention of the
rule or
standard.”
[7]
At
para 29
[8]
A
comment made by one of the shop stewards during the disciplinary
enquiry held on 16 March 2010 that “PLA is our holy book”
(sic) at p240 of the respondent’s bundle.
[9]
As
contained on pages 356 to 419 of the respondent’s bundle
[10]
NUMSA
& others v CBI Electric African Cables at para 35
[11]
The point is made at paragraph 104 in the CCMA Guidelines:
Misconduct arbitration
[12]
See City of Cape Town v SAMWU (2008) 7 BLLR 618 (LC).
[13]
See Apollo Tyres (Pty) Ltd (formally Dunlop Tyres Internal
(Ladysmith (Pty) Ltd) v NUMSA & Others
2009 JOL 24326
(LC)