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[2014] ZALCJHB 221
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NEHAWU obo Mpahle and Others v Department Of Health (Free State) (JS437/2007) [2014] ZALCJHB 221 (23 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG
JUDGMENT
OF
INTEREST TO OTHER JUDGES
CASE
NO: JS 437-2007
In
the matter between:
NEHAWU OBO MPHALE
AND 4 OTHERS
Applicant
AND
DEPARTMENT
OF HEALTH (FREE STATE)
Respondent
Heard:
27 – 31 August and 19 November 2012
Delivered:
23 June 2014
Summary:
(Dismissal for participating in a strike in an essential service and
for influencing employees to participate
in a strike –
differential treatment of shop stewards upheld).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This matter was originally part heard by
the Honourable Mr Justice Mthembu on 5 and 6 May 2009. The hearing
was due to resume on
14 and 15 October 2009 that at the request of
the applicant union was removed from the roll because the union
representative conducting
the case at the time,
Mr
Dladla
, was appearing in another case
in the Eastern Province. For reasons unknown to myself the trial
could not be finalised by the honourable
judge and the parties
eventually agreed the matter could proceed as a
de
novo
trial before another judge save
that the record of the proceedings before Mthembu, AJ would form part
of the record of the new proceedings.
In consequence, the respondent
was not required to present its evidence twice. A transcript of the
first two day’s proceedings
was made available to the court for
this purpose.
[2]
The matter was eventually re-enrolled for a
hearing on 27 August 2012 and ran until 31 August 2012, at which
point it was adjourned
to 19 November 2012 to conclude the
applicant’s evidence. However, when the hearing resumed on that
date, no further witnesses
were called and oral argument was heard.
The parties were given an opportunity to file written arguments as
well.
[3]
The matter originally concerned the alleged
unfair dismissal of four staff of Katlego District Hospital in
Virginia ('the hospital')
in May 2006 for allegedly participating in
an unprotected or unlawful strike at the hospital on 15 November 2005
or for instigating
others to participate or embark on such action.
Although the citation appears to identify five individual applicants,
there were
in fact only four, namely Mr M J Phukuntse, Mr T L Mcandi,
Ms M Masama (a senior nursing sister) and Mr T J Mphale (an auxiliary
nurse), all of whom were shop stewards of the applicant union,
(‘Nehawu’) save for Mr Mcandi. By the time the applicants
came to lead their evidence during the second part of the trial in
2012, Mr Mcandi had advised Nehawu he was no longer interested
in his
claim being pursued. Consequently, the only individual applicants are
the remaining three.
[4]
Some of the issues identified by the
parties to be determined were:
4.1
Whether or not strike action took place
and, if so, if it was protected or lawful.
4.2
Whether the respondent was entitled to
investigate, charge and dismiss the applicants.
4.3
Whether the misconduct necessitated
dismissal as a relevant punishment.
4.4
Whether the disciplinary action taken
against the applicants met the requirement of consistency in terms of
the LRA.
4.5
Whether the chairperson of the hearing
ought to have recused himself on account of being involved in the
investigations into the
alleged misconduct.
4.6
The appropriate relief if any to be awarded
if the applicants’ dismissals were found to be unfair.
Ultimately,
the second issue fell away after the CEO testified on these issues.
[5]
The respondent’s witnesses were: Mr M
Mokgosi (formerly a Senior Administration Officer: Employment
relations in the Human
Resouces Directorate and currently Clinical
Programme Co-ordinator at Thusanong District Hospital); Mrs P Chaka
(at the time of
the incident she held the post of CEO of Katlego
Winburg Hospital Complex); Ms K Mofokeng (Head of Nursing at Katlego
District
Hospital); Ms N Moletsane (a Patient Care Manager at
Katlego District Hospital) and Ms D Malebu (an Assistant Manager in
the Employee Relations sub-directorate of the Department of Health).
Mr T Mphale and Ms M Masama (identified above) gave evidence
for the
applicants.
The material evidence
The origination of the
grievance over appointments
[6]
Mr Mofokeng testified on the background
events giving rise to the alleged strike which took place on 14
November 2005. Following
the appointment of seven nurses on 18
October 2005 the existing unions at the workplace being NEHAWU, PSA,
DENOSA and HOSPERSA
filed a joint grievance with the CEO on 24 and 25
October 2005 complaining about the appointments. The gist of the
letter recorded
a lack of confidence in the CEO with whom the unions
had deliberated in the joint Union Management Committee at the
hospital ('the
UMC') and a decision to refer the matter to a higher
structure. At the same time the letter called for an investigation
into the
management of the hospital arising from the recent
appointments to determine if there was corruption involved and
"recommended"
that the matter be addressed within ten
working days.
[7]
At the same time, a more detailed grievance
was submitted by the unions to the Head of Department, Dr Mokada.
That document expanded
on the unions’ unhappiness about the
lack of consultation over the recent appointments and a failure to
give prior notice
to the UMC that the vacancies now existed. It
complained of the nepotism by the head of nursing in employing staff
from her previous
workplace, and a failure to follow the headhunting
process properly. The more detailed recommendations asked for the
cancellation
of the appointments with immediate effect and for a
proper procedure to be followed to favour those "who have been
sidelined".
[8]
When Mphale testified, he struggled to
explain the reason for the grievance, except to suggest that the
problem was not with the
persons who were appointed but with the
process by which they were appointed, in particular that the posts
were not advertised.
He did not add much clarity under re-examination
when he suggested that it was a second batch of seven appointments
that had caused
the problem because they were not advertised.
It was also only under re-examination that he suggested there should
have been
consultations in the UMC before the second batch of nurses
was employed.
[9]
When Masama testified she identified four
tranches of appointments in March, August, September and October 2005
and said it was
appointments from August onwards that were the cause
of the grievance, because the unions were not consulted about them
and hiring
procedures were not followed in that the posts were not
advertised and they were not aware of any short-listing or interviews
conducted.
Under cross examination it seems there were no
appointments in September but seven in August and three in October,
which were contentious
because of the manner in which they had been
done. She did not know why the figure of ten appointments had
never been mentioned
previously in the trial.
[10]
The UMC was a structure comprised of
management representatives and two representatives from each union.
It was a measure to democratise
the workplace and to deal with
employment-related issues. Mofokeng did not attend the UMC meetings
except when requested to assist.
The shop steward representatives of
Nehawu on the UMC were Mr Phalane and Ms Masana. Mphale agreed the
UMC had been established
as a body to address workplace related
dissatisfactions and to ensure it functioned properly, it met
frequently. According to Mphale,
if a problem could not be resolved
in the UMC then the respective unions could refer it to their
respective regional structures
which in turn would address the issue
with the employer’s regional counterparts. If it still could
not be resolved there,
the next step was to refer it to the parties’
respective provincial structures.
[11]
According to Mphale, the reason the unions
had referred the issue which led to the events on 14 November to the
level of the Premier’s
office was that the lower levels had
failed to resolve the matter. Masama confirmed the basic dispute
process hierarchy sketched
somewhat confusingly by Mphale, but she
said that if the matter could not be resolved at the level of the
UMC, then it would be
referred to the regional levels of the union
and the department respectively. Dr Mokada would then come to the
hospital to try
and resolve the issue with the UMC. After that, the
union would involve regional representatives in the issue. The union
at branch
level would give a mandate to regional representatives to
deal with Dr Mokada. She differed with Mphale in that she did not
understand
the branch level would be involved at all levels except in
the sense of mandating the higher levels. It was up to the regional
level of the union to initiate further steps.
[12]
A meeting of the committee had taken place
on 10 October 2005 at which one of the long-standing issues at the
hospital, namely a
shortage of staff had been discussed. At that
meeting in relation to a standing matter, it was recorded that in the
previous meeting
on 25 August 2005 management had reported that for
the time being it was not able to make appointments due to financial
constraints.
The extract of the minutes from the August meeting read:
"9. Standing matters
9.1
Budget
Management reported that
they are currently overspending on personnel and as a result of
having difficulties in terms of filling
the vacant posts. Management
further indicating that they had a meeting with the General Manager
about the issue of overspending
on personnel, and the general manager
indicated that the institution should not fill vacant post for now."
(
sic
)
[13]
According to Mofokeng, this statement was
not intended to be a reference to the entire financial year but
simply a reference to
the financial position at that point in time.
Masama said that it was after the UMC meeting on 8 August 2005 had
passed, that the
appointments in August became known and hence the
matter was raised with the Head of Department, the CEO and Dr Mokada.
As she
did not attend all UMC meetings, she could not say if the
issue was specifically raised in that forum, but conceded that as far
as she knew it was not discussed there. Likewise the October
appointments were also not raised in a UMC meeting.
[14]
By the next meeting on 10 October 2005, it
was apparent that appointments would be made and Nehawu is recorded
in the minutes as
raising a query about the change in circumstances
as follows:
"From the report
that was provided by management Nehawu request to be provided with a
policy for Headhunting, also from the
report that was presented
by management, Nehawu indicated that they were informed in the
previous meeting that due to budget
constraints in the financial
year, there will be no appointments, Nehawu requested management to
explain how the Management managed
to make the appointments.
Management responded by
saying that the decision of not feeling the posts in this financial
year was taken by the General Manager,
and after the presentation to
the General Manager by the institution, in relation to the problems
of under staff and the utilisation
of agencies, the General Manager
gave the institution a go a head in terms of filling the posts.
Nehawu responded by
saying that they should have been consulted after the general manager
gave a go a head. Nehawu further indicated
that seeing the management
took a unilateral decision in the matter, Nehawu will take the matter
through their respective structures."
(
sic
)
[15]
When Mphale testified, he referred to an
initial letter written to the Premier by the unions on 22 October
2005, but the existence
of this letter was not canvassed with the
employer’s witnesses, nor was it produced in evidence.
[16]
Mofokeng said that nursing personnel were
scarce and since 2002 it had been difficult to make successful
appointments by means of
internal and external advertising. In
consequence of these difficulties, the head of Department in the
provincial Department of
Health had granted permission to
institutions to deviate from the normal recruitment procedures by
means of conducting a headhunting
exercise, which was set out in a
Human Resource Management Circular number 80 of 2004 issued on 22
November 2004. In practice this
meant that the headhunting process
was used in conjunction with the normal recruitment process. The
difference is that suitable
candidates would be identified and
requested to apply for the advertised posts after which the normal
recruitment processes would
be followed, including shortlisting and
interviews. The circular also made provision for the delegation of
approval for headhunting
to different levels of management according
to the salary levels of those to be appointed. He also testified that
the circular
would have been distributed to various levels of
management including middle managers such as Ms Masama.
[17]
In accordance with this policy, in March
2005 approval was sought by the head of nursing at the hospital, and
recommended by the
CEO, for authority to head hunt six professional
nurses, five enrolled nurses and three assistant nurses for the
hospital. The
authority was approved on 15 March 2005 by Dr Makada
under his title General Manager: NFSHC. According to Mofokeng, the
UMC was
aware of the difficulties of obtaining suitable candidates
for nursing posts, which is why it was a standing item on the agenda.
It was also a matter of great concern to the unions who wanted to
ensure that there would be correct staffing levels especially
when it
came to nursing personnel. He could not say whether they were aware
of the headhunting process that conveyed the impression
they were
unaware of the circular mentioned.
[18]
At a meeting of the hospital board which
included the hospital management the vote of no confidence in
management was brought to
the board's attention. It was determined
that the board and management and the unions should meet at 10H00 on
7 November 2005.
The meeting was convened and at the meeting the
unions asked management to initiate the discussion as it was the
board which had
called the meeting. The chairperson advised the
unions that management had been advised of the concern raised by the
unions about
the appointments and allegations that there might be a
strike if management did not respond. The union spokesperson
responded that
there was no strike anticipated, but that if there was
no response from management within the timeframe given the unions
would
meet with their members and advise them of the outcome on 9
November 2005, the day after the unions’ 10 day deadline or
resolving
the grievance was due to expire. The unions complained that
management had failed to respond to their concerns and the CEO
replied
that she had not been in office for three weeks and had not
seen the documents from the unions but emphasised that the concerns
raised in the grievance had not been raised in UMC meetings.
Initially, the unions indicated that they would meet with management
at the scheduled UMC meeting on 14 November 2005, but after a caucus
were not prepared to commit themselves with meeting with management
unless they were given the go-ahead by members.
[19]
Mphale commented that he had suggested that
the unions could meet with management during the scheduled UMC
meeting on 14 November
2005. He also confirmed that at the meeting
with the board and management on 7 November 2005 the unions had
declined to discuss
the matter in a meeting in view of having written
to the Premier because they could not discuss the matter in a meeting
before
they had received her response.
[20]
The CEO, Ms P Chaka, testified that it was
only on 7 November 2005 that she learnt of the unions’
dissatisfaction with the
appointments that have taken place as she
had just returned from three weeks compassionate leave. Hence, at the
meeting on that
date the she asked the unions to give her chance so
that the issue could be discussed but they would not do so then and
said that
perhaps it could be discussed at the UMC meeting on 14
November 2005. When confronted with a letter dated 31 August 2005
written
to the management of the hospital by Nehawu Chaka denied ever
having seen it. The letter raised a concern about interviews held
on
29 August 2005 and referred to a report at the UMC meeting of 8
August that there would be no staff hiring during the financial
year.
The letter warned that the union will not recognise interviews unless
the procedure was followed
[21]
It is common cause that on 10 November
2005, the day after the meeting at which the unions were due to
report back to their members
four separate letters were sent to the
Premier of the Free State Province, the head of Department of the
Department of Health in
the Province, the General Manager in the
Northern Free State region and to the CEO of the hospital. The letter
to the Premier demanded
a meeting with her on 14 November 2005 over
the grievances which the unions had submitted and which they felt had
not been resolved.
The letter to the Premier also stated: “Failure
to attend an action will lead to an action been decided" (
sic
).
Each of the other letters were similar to each other in that they
were titled "NOTICE OF AN ACTION TO BE TAKEN ON 14/11/200”.
The letters also contained an unequivocal statement that the unions
would be “taking action” in the hospital because
their
“demands” had not been met. Mofokeng said that management
interpreted the letter to mean that whatever action
the unions
intended to embark on, it was to remedy the grievance that they
claimed was not addressed.
[22]
Mphale claimed that the unions realised
that they were not getting assistance on the issue from the hospital
management at the UMC
level and decided to escalate the matter to the
level of the Premier. Commenting on the meaning of the threat that
the premier’s
failure to attend would lead to an action been
decided meant that the unions would need to see what the next step
would be if they
did not get assistance. He placed the same
interpretation on the references to action being taken in the other
letters sent out
by the union. He denied that it was intended to
refer to strike action. He claimed that an earlier meeting had been
requested with
the Premier, but she had been unable to make it. The
Premier had agreed to a meeting on 14 November and the letter of 10
November
was merely a reminder to him of the previous letter
requesting a meeting. It was not a threat of action but an expression
of ‘frustration’
because action was needed. He could not
adequately explain why the Premier had not been furnished with a copy
of the grievances
or why the letter made no reference to the alleged
previous letter of 22 October 2005.
[23]
He was also tackled on why the letters sent
on the same date as the letter to the Premier made no mention of the
supposed meeting
with the Premier on 14 November and made no mention
of the referral of the matter to her office. Mphale could not adduce
any evidence
to show that Chaka knew of the alleged arrangement for
the meeting with the Premier at that stage. When pressed in
cross-examination
he changed his testimony from saying that Chaka had
been notified of the Premier’s visit to saying that they had
asked orally
for her permission for the Premier to be invited, which
is yet another allegation not put to her during her testimony. Mphale
also
claimed that if she had refused that would have been the end of
the matter.
[24]
Mphale also could not provide an
explanation why the anticipated meeting with the Premier was not
mentioned in the minutes of the
meeting with the board and management
on 7 November 2005. The minutes of that meeting in fact contain a
suggestion by the unions
that there was a possibility of a meeting
with management under the auspices of the UMC meeting scheduled for
the same date. Although
the minutes of the joint meeting were not
disputed by the applicant’s when they were referred to in
earlier evidence, Mphale
now claimed that the unions had expressly
told the chairperson that they would be meeting with the Premier and
had written a letter
to that effect. Consequently, the union’s
advised the meeting that they would not air their grievances in the
joint meeting
and the meeting agreed there was nothing that it could
discuss since the unions had already approached the Premier.
[25]
Under cross-examination he could not
explain why the unions had supposedly escalated the matter to the
level of the Premier directly
from the local level, except to assert
what he believed was the union’s right to raise matters at any
level if they needed
assistance. When pressed, Mphale claimed that
the region had been advised telephonically of the letter sent to the
Premier and
that both the region and the provincial structures of
NEHAWU were aware of the letter.
[26]
Masama readily agreed that the branch had
referred the issue directly to the regional level even though it had
not been tabled first
at the UMC. She was the drafter of the letter
to the HOD, Chaka and Dr Moraka, though oddly she claimed to have no
knowledge of
the letter to the Premier until 14 November 2005. In her
view they had taken it to the person in charge of the institution and
her understanding was that if that person failed to deal with it,
they could take it ‘outside’. Under cross-examination
she
could not give a clear answer as to which of the persons to whom the
letters of 10 October had been addressed were expected
to respond
first. She also commented that even though Dr Mokada was the person
to whom the matter should have been referred on
account of them
having no confidence in Chaka, he had not responded to a previous
letter on the same issue. By implication, she
saw the approach to the
HOD as appropriate, even though this did not explain the simultaneous
referral of the other letters. No
physical evidence of the prior
letter to Dr Mokada was provided.
[27]
However, Masama said she first became aware
that a letter had been written to the Premier when she attended the
gathering at the
hospital on 14 November 2005. Mphale had addressed
the gathering around 11h00 and advised the employees that a letter
about their
grievances had been written to the Premier for her
attention but unfortunately she was not coming. Similarly, Masama
said she only
learnt of the letter from Dr Mokada of 10 November at
the gathering.
[28]
Under cross-examination, Mofokeng, Chaka
and Moletsane agreed that the notices did not specify strike action
as such and that the
letter written by the General Manager on 10
November 2005 to the provincial and branch offices of the unions
explicitly acknowledged
that the notice did not say what type of
industrial action was contemplated. Moletsane commented that even
though it had not been
clear what kind of action was being
contemplated in the letter it was clear that when the incident took
place on 14 November it
was industrial action. She also dismissed a
suggestion that people had gathered simply to wait for the Premier
because the actions
of the demonstrators that day were at odds with
such an intention.
[29]
Initially, Mphale acknowledged seeing the
General Manager’s letter after receiving a copy from the
union’s regional
office. Later he backtracked on this
statement, saying the contents of the letter had merely been conveyed
telephonically. He stated
that the regional organiser had responded
to the letter saying that they were not on strike but were going to
welcome the Premier
and denied that they had simply ignored Dr
Mokada’s letter. Mphale further stated that no arrangements to
invite regional
or provincial representatives to attend the meeting
because no proposal to do this had been agreed on with the committee
and employees.
The intention was simply to assemble at 09h00 to
welcome the Premier. The intention had been that the committee would
meet with
the Premier and the employees were just advised that they
should come and greet him. They knew where they should assemble to do
this as it was not the first time there had been such an event.
Masama claimed ignorance of why regional officials of the union
were
not invited to such an important meeting. On the one hand she said
they had not been invited to attend by the branch and on
the other
said they knew of the invitation to the Premier and it was for them
to decide.
[30]
The General Manager's office responded to
this notice by issuing an urgent memorandum to the provincial offices
of the various unions
warning them that their members at the hospital
including the shop stewards intended on embarking on an unprotected
strike on 14
November 2005. The letter reminded the unions that the
contemplation of industrial action by the unions would be
unprocedural and
unlawful. It also reminded them that the Department
of Health was an essential service and such action would be viewed by
the employer
in a very serious light as it might compromise or
disrupt essential services and held potentially life threatening
consequences.
The letter called upon the unions to advise their
members of the ramifications of embarking on an unprotected strike or
of inciting
employees to do so. It expressly warned that the letter
would serve as notice to the union members to refrain from the
contemplated
action or face disciplinary measures which could include
dismissal. It must be mentioned that, this was the only portion of
Mofokeng’s
evidence which was disputed. Chaka was also
questioned about the meaning of the term industrial action and agreed
that the term
could also refer to industrial action and that was not
a strike and that management was not sure what type of action unions
would
embark on at that stage.
Events of 14 November
2005
[31]
According to Mofokeng, the scheduled UMC
meeting on 14 November could not take place because the shop stewards
and their union constituents
had gathered in front of the
administration block of the hospital as early as 07h00 to 07h30 where
they were singing and shouting
slogans. Chaka found the demonstration
in progress when she arrived on duty at 07h30 in the morning. She
said the workers were
‘toyi-toying’ and were singing
songs belittling management saying management was ‘full of
shit’. Chaka
also identified Masama and Phukunzi as part of the
group that was singing in front of the administration block when
management
left to attend the UMC meeting scheduled for 10h00. She
said that the group was comprised of various staff including nurses,
administrative
staff and cleaners. Similarly, Mofokeng testified that
when she arrived at about 07H15, nurses and other staff were gathered
in
what she described as the ‘foyer’ area between the
administration block and the wards. Mphale testified that the
distance
between the wards and the administration block at this point
was about 30 metres.
[32]
Moletsane, the Patient Care Manager, said
she became aware of the noise of singing when she was doing her
report taking at about
06H45 that morning and on visiting the patient
care units realised that some of the nursing staff who should have
been on duty
were missing. She also verified this by going to see
what was happening outside. This necessitated her making arrangements
to deal
with the shortage by reorganising patient care in all the
nursing units, and nurses who were on duty were stretched as a
result.
[33]
According to Mphale, workers had simply
gathered to welcome the Premier when she arrived as it was known that
when an outside person
paid a visit to the hospital they would be
welcomed in this way, such as they had when Provincial Head of
Department, Mr Tshuping
had visited the hospital. He denied that this
constituted a strike and expressed the belief that most of the
persons participating
in the welcoming activity were not on duty.
According to him the singing of the crowd was peaceful and singing
freedom songs and
songs of happiness. While denying hearing the kind
of chanting testified to by management witnesses, he conceded that
such singing
would not have been proper and would have been
belittling and humiliating.
[34]
Masama, who was the other Nehawu shop
steward member of the UMC, testified that she was on leave but was
visited by another shop
steward who told her that the Premier was
going to be welcomed. She arrived at the hospital at about 11h00 and
found night shift
nurses sitting nearing the administration block.
She joined them and was told shop stewards were in the CEO’s
office, but
she was not informed why they were there. Masama could
not explain why Chaka was not challenged when she testified having
seen
Masama before 10h00. Likewise her explanation of why she only
attended at 11h00 was somewhat vague, varying from an explanation
that she only went when it seemed the Premier might arrive to one
that she went when she had finished attending to other matters
she
was busy with that day. She did emphasise that she was bound to be
there as a branch secretary, because she was not on leave
from her
union activities and she was a co-author of the letter written to the
HOD. She did not dispute that she was associating
herself with the
activities of the union members that day, but did not see anything
wrong with what they were doing.
[35]
According to Masama there was no singing or
chanting at that time: it was only after that when Mphale had
reported to them about
thePremier that they started singing
‘revolutionary songs’. According to her this ended at
12h00. When asked to elaborate
on the singing, she said she was
referring to songs sung at union meetings and when politicians, such
as the Premier, were welcomed.
She confirmed that the singing was
peaceful but that the employees were ‘toyi-toying’. Under
cross-examination Masama
gave an accomplished rendering of an example
of a peaceful song which she translated loosely as meaning
‘Communists are people
who appreciate peace.” Like Mphale
she denied hearing the kind of singing Chaka had
testified to, but agreed
it would not have been proper. Like Mphale
she could not explain why Chaka’s version of the singing was
not challenged. Interestingly,
when asked why workers were gathered
outside if the shop stewards were already present, she suggested that
they probably had come
to hear the outcome of the grievances and
wanted to hear of developments first hand.
[36]
Under cross-examination, Chaka said that
she believed the action constituted industrial action because the
group was blocking the
entrance to the wards and the administration
block and the people participating could not have been performing the
normal duties
and were' threatening' the patients because they were
singing loudly. Mphale said that if the singing had been disruptive,
management
would have asked them to speak to the workers. Moletsane
corroborated evidence of the singing in the course of her testimony
and
distinguished the singing of the demonstrators from that of
church singing which sometimes took place at the hospital. Apart from
testifying that the singing continued until lunchtime, she also
stated that, amongst the many things they sang, the demonstrators
repeatedly chanted “Chaka is a stupid fool. Nkwani is a stupid
fool, Nsthiba is a stupid fool and leave[s] Mofokeng to do
as she
like. Molotsane beware, Rakatyane beware...”,apart from singing
that management was corrupt and that they were fighting
for their
rights. Neither Chaka nor Moletsane were challenged during their
evidence about the nature of the charting and singing.
Moletsane also
confirmed that nurses only returned back to their units at 13H00.
Mphale confirmed, without admitting the insults
had been uttered,
that the named persons were all part of management.
[37]
Moletsane explained that as a result of
employees participating in the action, patients had been neglected
because even personnel
like cleaners had an obligation towards the
patient to perform their duties to ensure a safe and healthy
environment.
[38]
Chaka entered the office and Mr Mphane and
Mr Motapanyane ( a shop steward from one of the other unions arrived.
They told her they
were waiting for the Premier and want to find out
when she was coming. She said she was unaware that the Premier was
coming and
refused to phone the Premier because he was not in her
line of command to speak to him directly. They then asked for, and
took,
her phone and called the Premier's office and spoke to someone.
The shop stewards said they were expecting the Premier to address
them in connection with the grievance they had lodged with him.
Mphale confirmed that the shop stewards did not attend the UMC
meeting because they were expecting the Premier. As she was leaving
the office, Mr Mcandi came in. Moletsane agreed that there
was
nothing inherently improper about shop stewards going to the CEO's
office but they were not supposed to stay in the office
when
management left to attend the meeting and they were not entitled
simply to use the office to communicate with whomever they
wanted to.
[39]
Mphale largely confirmed Chaka's version
that they had asked to speak to the Premier and that she had told
them she had no authority
to do so. However he also claimed that the
CEO was also aware that the Premier was coming through correspondence
sent to her office,
a point that was not raised with Chaka when she
was cross-examined. He claims that they spoke to the Premier's
secretary who told
them that he was due to attend a meeting at 10
o'clock and when the meeting was finished she could advise them. The
secretary asked
them to phone her back. He further claimed that when
they phoned later they were told the Premier's meeting was finished
and that
he had received a message and was going to consult with the
MEC for health. They were also requested to write a report and on the
same day they received a copy of the Premier's letter to the MEC at
about 12H00. In the letter the Premier said once she had got
all the
information she would come back to them. After this response was
conveyed to the gathered workers, who had continued singing
until
12h00, they dispersed. He could not say when the workers had first
gathered that morning.
[40]
Shop stewards occupied the office of the
CEO and demanded to use her phone to communicate directly with the
Premier's office. Management
pleaded with the shop stewards to
refrain from conducting the protest action and to leave the manager's
office, but this appeal
fell on deaf ears. According to Chaka, Mr
Mphane went to speak to the group that was demonstrating that
reported back that they
did not want to meet with management because
they only wanted the Premier. Employees who were participating in the
demonstration
outside the administration building had left their
workstations and were not performing their duties, which was
obstructing the
hospital services. As far as Mofokeng was concerned
the unions did not give the hospital a chance to resolve the problems
because
on the day of the action they would not communicate with
management about the issues. She also pointed out that the meeting on
7 November between the board, management and unions had been an
attempt to engage with the unions involving the governance of the
hospital and there was also the UMC forum for addressing those
issues.
[41]
Mofokeng testified that hospital management
accompanied by himself and the general manager for the Northern Free
State region, Dr
Mokada attempted to meet with the shop stewards who
were gathered together with the crowd which was singing. Chaka said
that she
asked the shop stewards if they were coming to the meeting
but they said they were not because they were waiting for an answer
from the Premier so she left the office.
[42]
Despite the occupation of the CEO's office,
at 10h00 management proceeded to the nurses’ hall where
the UMC meeting
was supposed to take place and discuss the grievances
but the shop stewards did not attend the meeting and then returned to
the
CEOs office at approximately 10H45. The shop stewards told
management that they were expecting correspondence or a meeting with
the Premier on that day to deal with the grievances. Management was
unaware of any anticipated visit by the Premier and would have
been
involved if the Premier, as a political figure, was going to visit
the institution.
[43]
Mofokeng and Chaka testified that
supervisors had been instructed to monitor who was still at their
workstations and who was absent.
Mofokeng dismissed any contention
that the action had taken place during the participants’ tea
intervals because the action
had placed considerable strain on the
nursing personnel and the supervisor of nurses was kept busy trying
to reorganise services
on the day. Lists of participants in the
action drawn up by the health and nursing departments indicate
approximately 36 staff
who were absent from duty owing to their
participation in the action in those lists where the time off duty
was recorded their
absence was recorded as lasting from 07H00 to 13 H
30, a period of six hours.
[44]
The absence of Mr Nyandi’s name on
any of the lists appearing in the respondent’s bundle was
explained by Mofokeng on
the basis that Mr Nyandi was a supervisor in
his own right and should have been recording those absent on strike,
but he was one
of the shop stewards present in the CEO's office.
Mofokeng disputed the reliability of documents apparently signed by
Mr Nyandi
indicating that he was taking x-rays of patients on the day
in question because the original documents did not indicate any times
when the x-rays were taken or the name of the patient which was
contrary to the normal procedure, even though the forms used did
not
provide for the entry of the time.
[45]
When Chaka testified, she stated that the
general list of health staff who participated in the stoppage had
been supplemented with
an additional seven names when it was realised
that not all personnel who had participated were recorded on that
register. When
trying to explain how the additional names came to be
added to the list, Chaka said that she did not know who was
specifically
missing from the list, but on counting those listed she
realised there were names missing and instructed staff to check the
list
again against the original lists. Although the union initially
objected to the admission of the amended list as evidence, it
eventually
agreed after cross-examining Chaka on the document that it
could be admitted and the issue arising from the two versions of the
document would be addressed in argument.
[46]
It is common cause that on 18
November 2005 the hospital requested a consultation meeting with
Nehawu over the disciplinary
action it intended taking in respect of
the shop stewards, of whom three were identified in the letter namely
T Mphale, M Phukuntsi
and M Masama.
[47]
Chaka testified that she notified
applicants of the charges against them, on behalf of the HOP, towards
the end of November 2005.
The charge sheet consisted of two charges
namely:
"
Charge 1
That you are allegedly
guilty of misconduct in terms of the resolution in that on 14
November 2005, between 07H00-13 H00, you participated
in an and
procedural, unprotected and/or unlawful industrial action at Katleho
District Hospital.
Charge 2
That you are allegedly
guilty of misconduct in terms of the resolution in that you
influenced and/or incited your fellow employee
is to embark and/or to
participate in an unprotected siege rule, unprotected and/or unlawful
industrial action at Katleho District
Hospital on 14 November 2005."
[48]
Chaka agreed that out of the approximately
42 employees who had participated in the action, only six shop
stewards were dismissed.
Mofokeng agreed that some of the persons
participating in the action had not been on duty at the time and
conceded that they could
not be accused of neglecting their work in
the strict sense of the word but had been acting unprofessionally.
Moletsane was also
tested under cross-examination how someone who was
participating in the demonstration but who had just finished their
night shift
could have obstructed services. Her response was that
such a person contributed to the disturbance at the hospital. She
remained
adamant that the person in question was participating in the
strike action even if they were not supposed to be on duty at the
time, and accordingly was correctly recorded on the register of those
employees involved in industrial action on the day.
[49]
Ms MalebuMalebu testified on her refusal to
recuse herself as the chairperson of the disciplinary enquiry when it
convened in March
2005. A few days prior to the hearing Nehawu had
raised in a letter an urgent concern about the appointment of Mr
Lekgela from
the Department of Health labour relations Sub
Directorate as the presiding officer. The complaint was that he had
been involved
in a number of issues relating to the dispute, had
advised management on matters relating to the incident and was
appointed as
an investigator in the matter. The letter called upon
the Department to appoint someone from outside of the sub
directorate. Malebu
testified that she was not aware of the letter as
such but confirmed she was asked to recuse herself at the enquiry
because she
was from the same office of the person who investigated
the matter and as such was believed to have been privy to the case
itself.
She testified that the first time she became aware of the
case was shortly before the hearing was due to take place when she
was
simply told that she had to go preside in a matter in Virginia.
She testified that she knew nothing about the case and did not share
office space with Mr Lekgele. In the circumstances, in her view there
was not sufficient reason for her to recuse herself.
[50]
On the question of why she had not agreed
to postpone the hearing when the union claimed that it received the
employer's documents
late and was unable to prepare properly, Malebu
said that the matter had already been postponed having been scheduled
for a sitting
two months earlier and the employer had stated that the
documents had been given to the individual employees during earlier
consultation
meetings even before the first sitting of the hearing.
She could not recall the exact dates when the documents had been
exchanged
but remembered that she was satisfied that they had been
exchanged previously and insufficient time for the union to prepare.
This
issue was canvassed more extensively under cross-examination of
Masama. It was pointed out to her that in the letter dated
18
November 2005 advising Nehawu of the consultation meeting for shop
stewards, reference is made to attached documents. Masama
denied ever
seeing any documents in the consultation meeting that was
subsequently held on 25 November 2005, but did not have an
answer why
the issue of missing documents was not raised at
that meeting if they had not been received. At best
she could not
remember if it was raised.
[51]
Mphale claimed that the union raised the
issue of the late receipt of documents as they had only been received
by the shop stewards
the previous Friday for the disciplinary hearing
which was starting on Monday. They had only been able to give them to
the union
representative, Mr Natedi, on the morning of the hearing.
They had not been able to give them to him on the weekend because he
was based in Kroonstad. They had been unable to fax the documents to
him as they only received them when they knocked-off at about
16h00
on that day. According to Mphale, when the chairperson refused to
grant a postponement Natedi advised her that he would remain
seated
and the proceedings could continue but the chairperson insisted that
they should leave. The enquiry appeared to end about
30 min after the
unions had left and he doubted that it had continued in their
absence. None of this evidence, except for the request
to postpone
the matter had been put to the chairperson when she testified. Mphale
also oddly could not recall the recusal point
being raised in the
hearing before they left. However, Masama remembered that both the
late receipt of documentation and recusal
issues were raised. She
also claimed that it was after some other issues had been raised that
the chairperson said they must leave
the hall. They left singing,
thinking they would be recalled to the hearing, but after some thirty
to sixty minutes, the remaining
persons in the hall left as well.
[52]
Malebu confirmed that in the original
enquiry she had dismissed all the employees but that on appeal she
understood that some had
been given a two-month suspension without
pay if they were on duty and had participated in the strike, and
staff who are not on
duty were given one month's suspension without
pay, but the shop stewards were still dismissed. This was largely
confirmed by Mphale
except that he said that seven shop stewards were
dismissed and one was taken back. Later, under cross-examination he
said that
the shop steward in question was never charged. Under
re-examination he identified the individual as Mr Thinane, a PSA shop
steward.
This apparent anomaly was never canvassed with the
employer’s witnesses.
[53]
Ultimately, a ruling was required on
whether the alleged discriminatory treatment within the shop stewards
was something that
could be canvassed in evidence or whether the
applicants were confined to a claim of inconsistent treatment based
on the treatment
of shop stewards and other employees who
participated in the action. In the result, I made a ruling that the
applicants were confined
to lead evidence on the latter issue. When
asked what he saw as unequal treatment, Mphale emphasised the fact
that some persons
were not on duty, or were on leave but were also
charged and the charges and the sanctions were different. He
eventually agreed
that the differentiation of charges was only
between ordinary employees and the shop stewards, who were charged
with incitement
as well as participating in strike action. He also
clarified that it was wrong to say that he alone was encouraging
employees to
participate as all shop stewards were doing so.
[54]
When it was put to Mphale that dismissal
was an appropriate sanction given that the shop stewards never
advised employees to stop
singing and return to work, he simply said
it was unfair. Elaborating further to additional questions about the
second charge against
shop stewards, he conceded that they had a duty
to observe the dispute resolution structures agreed on with the
employer and that
they could have distanced themselves if employees
embarked on a strike. However, his answer as to why they could not do
this as
shop stewards was that they were bound by what their members
decided they needed. Masama’s sense that the treatment was
inequitable
was that some people were ‘part of the strike’
but were not charged. As far as she was concerned she was not on
strike
but was only there to welcome the Premier. Under
cross-examination Masama emphasised that it was unfair to charge the
shop stewards
with the second charge when they were only pursuing
their member’s mandate, but agreed that if members wanted to
embark on
unlawful action, she would not participate and would try to
guide members. She also felt it was unfair she had been dismissed
whilst
on leave, while other employees who participated on their day
off were subjected to suspension without pay. Had she been guilty
of
the charges, she believed she should merely have been warned.
She insisted that even if she was guilty of both forms
of misconduct
her dismissal would have been unfair because she did not influence
anyone.
Evaluation
[55]
It should be mentioned that much of the
version of the employer’s witnesses was unchallenged which
significantly affects the
strength of the applicant’s case. I
have made occasional references to this above. Similarly, much
of the individual
applicant’s evidence was not really tested
with the employer’s witnesses who might have been able to
contradict them.
Were the applicants
engaged in unprotected strike action?
[56]
It is not in dispute that the applicant’s
were engaged in an essential service. In terms of s 65(1)(d)(i) of
the Labour Relations
Act, 66 of 1995 (‘the LRA’), no
person may participate in a strike or in conduct in support thereof
if they are engaged
in an essential service. In terms of section 74
of the LRA such employees only have recourse to compulsory
arbitration both in
disputes of interest and right, unless a minimum
service agreement has been reached and ratified under section 72
which would permit
some employees in the essential service to strike.
[57]
There is no minimum service agreement
applicable
in casu.
Therefore
any strike action by the applicants would be automatically
unprotected. Section 213 of the LRA defines a strike
in the
following terms:
““
strike”
means the partial or complete concerted
refusal to work, or the
retardation or
obstruction of work
, by persons who are
or have been employed by the same employer or by different employers,
for the purpose of remedying a grievance
or resolving a
dispute
in respect of any matter of
mutual interest
between employer and
employee
,
and every reference to “work” in this definition includes
overtime work, whether it is voluntary or compulsory.”
(emphasis
added)
[58]
The evidence shows that between 44 and 46
staff were attending a gathering held in the area in front of the
administration building
of the hospital and the access point to the
wards, which began some time around 07h00 and ended around 13h00 on
14 November 2005.
MasamaMasama was on leave at the
time of the event but participated in it. Mphale spent most of the
morning in the
CEO’s office communicating with Premier’s
office or awaiting communications. Phukuntse, even on MasamaMasama’s
own account, was outside in the gathering. At best for the
applicants, neither Phukuntse nor Mphale were performing their
duties
at least for a considerable part of that morning, but were engaged in
the events relating to the ostensible anticipated
welcoming of the
Premier. Though not obliged to be at work and therefore not
personally absent from duty, Masama was engaged in
the event activity
as well. It is noteworthy that Masama was noticed by Chaka by 10h00
together with Phukuntse at the time management
proceeded to the UMC
venue. Chaka was not challenged on her observation when she gave
evidence.
[59]
Was the activity retarding or obstructing
work? There was cogent evidence that the absence from duty of a
number of employees meant
that services to patients were negatively
affected. There was also evidence that the singing by the gathering
not far from the
entrance to the wards was a disturbance. When
management witnesses testified to the type of singing and chanting
that took
place the impression is created that the event was noisy
and intended to make a disturbance. Their evidence was not materially
challenged under cross-examination, so the contrary evidence of the
applicants was not really tested against that version, rendering
their evidence of little value on the issue. If employees had indeed
sung songs in the dulcet tones of Masama, no doubt the singing
would
have been anything but offensive and would probably have lulled most
listeners to sleep, but given the failure to materially
contradict
the employer’s witnesses when they testified, I believe I must
accept their evidence as more probable.
[60]
Much of the evidence was spent trying to
establish that the gathering had no purpose other than to act as a
welcoming party for
the Premier if and when she arrived. As one
of the employer’s witnesses stated, that motive did not square
with the
conduct. It was clear even on the union’s best
version, that the shop stewards in the CEO’s office knew that
the visit was no longer certain before 10h00, yet it was only around
13h00 that employees went back to work, even though it was
known by
about 11h00 that the Premier would not be coming.
[61]
Also, the tone of the singing was not
joyous and welcoming but was aggressive and directed at management.
This is not the conduct
of employees who were jubilant at the
prospect of the arrival of the political executive head of the
Province: it was the conduct
of employees who wanted to make clear
their critical feelings about management. Masama herself volunteered
that the reason the
employees were gathered was to pursue their
grievance. This also makes sense because, on the union’s
version, the anticipated
visit of the Premier was not a formal or
ceremonial event but was in response to their demands that the
Premier should meet with
them about their grievances. In this
regard, it must also be remembered that the shop stewards boycotted
the meeting of the
UMC that morning even though at that time the
Premier’s attendance at the hospital was not confirmed. This
was consistent
with the union’s approach that it had no
confidence dealing with hospital management on the issue and could
only engage with
other levels of the Department once they had met
with the Premier.
[62]
The most probable explanation for the union
activity that morning was to emphasise the importance that was
attached to their demands
relating to the grievance. It may only have
been the shop stewards’ hope that the Premier would get
involved in the dispute,
but the activities were clearly intended to
drive home how strongly they felt about the grievances, whether the
Premier did arrive
or not. Thus there was not the slightest
attempt to time the activities of the gathering with the probable
arrival of the
Premier and the activity endured for half a day
irrespective of the likelihood of the Premier coming to attend the
supposed meeting.
[63]
In the circumstances, I am satisfied that
the activities of the shop stewards and the other employees who
participated in the activities
of the morning had the effect of
obstructing normal operations at the hospital, and participants were
either absent from duty when
they should have been on duty, or were
simply supporting the obstructive action. Consequently, they were
either on strike as in
the case of Mphale and Phukunste or, as in the
case of Masama, were participating in conduct in support of the
strike.
Were the applicants
also influencing or inciting other employees to embark or participate
in such action?
[64]
It is clear from the summary of evidence
above, that the applicants were not dismissed simply because of their
participation in
the strike or conduct in support of it. No
other participants in the unprotected strike action were ultimately
dismissed,
even though that was the original sanction decided upon by
Malebu. On appeal, different sanctions short of dismissal were
applied
depending primarily on whether the employee in question was
on duty or not at the time. When it came to the shop stewards
who participated, the second charge weighed heavily against them
receiving the same sanction.
[65]
It may be so that other employees were
angered by what they perceived to be irregular appointments of
nursing staff. It is
unlikely that the union would have been
able to win the support of 46 staff to participate in the
demonstration without their willing
support. The question is did they
encourage or influence such participation by their own actions?
[66]
Certain facts are particularly relevant to
determining this question. It is apparent that the issue of
appointments was a standing
item on the agenda of the UMC meetings.
It is also not true that the issue of the appointments which
aggrieved the unions was not
raised in the UMC. It was clearly
referred to in the minutes of the meeting of 10 October 2005.
However, what is equally clear
from those minutes, is that the unions
expressed no intention of using the UMC as a vehicle for trying to
resolve the grievance.
Nehawu shop stewards merely recorded their
discontent and announced their intention to pursue the matter through
their structures.
By the time they attended the joint meeting with
management and the hospital board on 7 November 2014, they had
already sent off
the four letters to the various levels of executive
authority governing the hospital and were certainly not willing to
engage with
the board and management on the issue at that meeting.
Although there was a hint that they might be willing to meet with
management when the next UMC meeting was scheduled on 14 November,
that suggestion was a tentative one and was subject to their
members
mandating them to do so. If one has regard to the letters sent
out at the end of October, it is difficult to read
any willingness to
engage with management at a local level on the issue.
[67]
Quite apart from not showing any real
interest in allowing the UMC to be a forum in which the grievance
could initially be thrashed
out, the intent which emerges was that
the shop stewards sought an escalation of the dispute. What emerges
later from the train
of events is that, from the perspective of the
Nehawu shop stewards, the only way of addressing the grievance was to
focus on convening
a meeting with the Premier at the hospital.
It is also clear that the regional level of the union played no
active role in
this agenda which was driven from the branch level.
There was no real interest that was expressed in involving regional
Nehawu
leaders or officials in the matter even when the shop stewards
had escalated the matter to the highest executive political level
in
the province. In short, not only was there no intention of giving the
UMC one meaningful opportunity of resolving the matter,
but the union
structures at the level of the hospital were not even interested in
following a progressive dispute resolution process
using their own
avowed dispute hierarchy. Their contempt for the UMC as a forum to
resolve matters was starkly illustrated by their
boycott of the
meeting on 14 November. Rather than use the opportunity to at least
attempt to resolve the matter at the forum which
had never been used
for that purpose, the unions’ leadership at the institutional
level chose to rather wait and see if the
Premier’s office
reacted to them, while the hospital’s operations were
obstructed.
[68]
There was no effort by the shop-stewards to
follow the acknowledged procedures and nothing to indicate that they
tried to do so
but it was their constituents who refused to allow
them to pursue the normal channels. Masama was party to this
initiative and
there is nothing to suggest she sought to caution any
Nehawu members that they were embarking on a path out of line with
accepted
procedures. Mphale also did not dispute that they were aware
of the explicit and cautionary letter from the HOD on 27 October
2005.
They consciously chose to minimise it by characterising their
planned action on 14 November as merely a planned welcome for the
Premier.
[69]
However, their own letter to her shows that
they expected the Premier to meet with them to address the
grievances. Moreover, the
other letters make it clear that action was
planned for 14 November irrespective of what happened.
Additionally, it is apparent
that there was no clarity even on that
day if and when the Premier would come, but employees were singing
and chanting from early
that morning and persisted with the action
until lunchtime.
[70]
The pretence that this prolonged disruptive
activity was merely aimed at welcoming the Premier is patently
transparent. The shop
stewards made no attempt to curtail it or
minimise it by discouraging the gathering from continuing until such
time as the Premier’s
arrival was more predictable.
Essentially, on the union’s version they would have the
court believe that they thought
nothing was amiss with letting the
gathering continue for the best part of the morning shift. Notably,
on the union’s own
version workers were content to return to
work when they were told after several hours that the Premier was not
coming. If
the intention was solely for workers to be there to
greet the Premier and it was dispersed when it was known she would
not be coming,
it surely would have been just as easy to convene the
gathering when it was known the Premier was actually on her way. It
is highly
improbable the prolonged gathering in the absence of a
clear indication the meeting would take place, would have continued
if a
welcome was its main purpose.
[71]
The shop stewards did nothing to dissuade
employees from participating in the action, and there was no evidence
they conveyed the
warning from the General Manager about how he saw
the planned action. Masama acknowledged that she was ‘a leader’
and
that is why she had to attend the event. That could only
have been to lend support to the action and so that others would
be
encouraged by her presence and participation. She might not have been
striking herself but it is most probable she attended
to demonstrate
her support for the action that was being undertaken.
[72]
In light of the evidence, I am satisfied
the applicants’ participation in the events of the day was
intended to support the
disruptive stoppage and would have encouraged
or influence other participants’ participation in the stoppage
because of their
role as leaders. All their actions showed their
support for the stoppage and nothing suggested they used their
leadership function
to try and curtail the event or persuade
participants to return to work until there was certainty about the
Premier’s attendance
or non-attendance that day.
[73]
In fact everything indicates that the shop
stewards believed they were acting within their rights and there was
no reason to believe
that in their interactions with employees over
the grievances and on the day of the strike that they would not have
influenced
employees in conformity with that view. Masama recognised
her role as a leader in participating in the event. It is also
significant
that there were no further developments after Mphale made
the announcement at 11h00 that the Premier was not coming to the
hospital,
but no mention was made that he then encouraged the
gathering to disperse and return to work, which would be the natural
expectation
if the gathering was purely to welcome the Premier.
Instead the stoppage continued for at least another two hours before
ending.
Mr Jonas
in
his cross-examination of the applicants repeatedly emphasised the
complete absence of any attempts by them to persuade employees
to
return to work and they never contended that they had. It is also
noteworthy that the applicants led no evidence of how they
had
obtained a mandate for issuing the letters to a multiplicity of
authorities, nor indeed of any consultative process between
themselves and the members to support an inference that they were
merely reflecting their members’ wishes in every initiative
they took.
[74]
Everything points to a conclusion that the
shop stewards conduct would have positively influenced employees to
participate in the
action on 14 November 2014 and it seems reasonable
to conclude that they were not simply the passive instruments of
their members’
will. I am satisfied that the second charge
against the shop stewards was well founded and that they were guilty
of influencing
employees to participate in the strike action.
Sanction
[75]
It is clear that the employer singled out
the shop stewards for different treatment because of the role they
played as leaders in
undermining the established dispute resolution
mechanisms and in supporting unprotected strike action and the
employees’
participation in it. It was conceded that the
contents of the letter warning that the employer viewed any
threatened strike
action as potential strike action and the possible
consequences thereof was conveyed to the shop stewards. Their
response
indicates they did not take it seriously. They did not even
seek to curtail their planned ‘welcoming’ of the Premier
to minimise any disruption it might cause. They proceeded with the
action in circumstances where the consequences of doing so had
been
made clear.
[76]
In the trial neither Masana nor Mphale
showed any regret or contrition for what had transpired, but defended
every aspect of their
actions. What makes it worse is they showed no
concern for the disruptive effect of the action on the hospital
services and at
the time made no attempt to assist management in
minimising the disruption caused by, for example, discussing staffing
arrangements
beforehand. They displayed no concern for the fact that
the action occurred in an essential service and they initiated a
course
of action which knowingly tried to short circuit established
dispute processes and involved recourse to industrial action.
[77]
Their attitude demonstrated that they had
no regard for management of the institution as they had lost faith in
them. There is no
reason to believe that they would feel any less
righteous about repeating similar action in the future. In the
circumstances, I
do not think their dismissal based principally on
the second charge was unfair.
Procedural issues
[78]
Two procedural matters were canvassed. The
first relates to Malebu’s failure to recuse herself. It is well
established that
a suspicion of bias must have a reasonable basis to
justify a chairperson’s recusal. In this case, the request was
based
entirely on a perception that someone working in the same
Sub-Directorate of the Department as the person first appointed to
chair
the enquiry must necessarily have been influenced by the first
appointee.
[79]
In
the
BTR
Sarmcol
[1]
case, the Appellate Division,
as it then was, considered the test of bias in the context of when an
Industrial Court judge should
recuse himself or herself. The court
found that
E
the
existence of a reasonable suspicion of bias satisfied the test for
recusal.
1
The
test was further tightened up by the decision of the Constitutional
Court in the SARFU
[2]
case
and elucidated by it in the SACCAWU
[3]
case.
Without detracting from the nuanced reasoning expressed in those
judgments, a major theme in the Constitutional Court's refinement
of
the test was to emphasize that not only must the apprehension of bias
be that of a reasonable
person
in the position of the person being judged who has an objective
factual basis for their suspicion, but the apprehension of
bias they
have must be one that in law would be recognized as raising a
legitimate concern about the adjudicator's impartiality.
[80]
The applicants had no other factual basis
for their suspicion than this. Anything else in the applicants’
minds regarding
the working relationship between Malebu and the
previous appointee was purely speculative on their part. When
Malebu testified
on the limited notice and information she had
received when she was appointed to chair the enquiry in March 2006,
the hypothetical
basis of their preconceptions became even more
stark.
[81]
On the basis of the information about
Malebu available to the applicants at the time, there was
insufficient grounds for them to
expect Malebu to recuse herself and
her decision not to was not incorrect.
[82]
The second matter concerns the
documentation which was supposedly only received by the applicants
the Friday before their hearing
and was only conveyed to the union
official representing them on the morning of the hearing. What
this complaint did not
adequately explain away was the prior
consultation over the intended disciplinary measures which took place
in 2005. The notice
advising of that consultation clearly referred to
attached documentation and yet there was no evidence at that stage of
the union
raising any query about missing documentation, whereas it
is a natural inference to assume that an issue would have been made
of
it if no documentation was received.
[83]
Moreover, it was also not explained how the
applicants’ preparation would actually have been hampered if
they had the documentation
over the weekend and only gave it to the
organiser on the morning of the hearing. It may not have been ideal
for the representative,
but I cannot say Malebu was unfair in
deciding that there was sufficient reason to believe that the
documentation had been provided
previously and that the enquiry
should not be delayed. Accordingly, I am not satisfied the
applicants ought not to
have been a position to defend
themselves in light of the first occasion when documentation was
exchanged, and they did not suffer
any procedural unfairness as a
result of Malebu not postponing the enquiry.
Costs
[84]
The trial was lengthy, but I cannot say the
applicants did not pursue their claim in good faith albeit
misguidedly so. The dismissal
of the applicants was no doubt a
serious matter for them and the union. Accordingly, I do not think it
is appropriate to order
costs in this matter.
Order
[85]
The dismissal of Messrs T J Mphale, M J
Phukuntse and Ms M Masama for participating in unprotected strike
action in an essential
service and for influencing other employees to
do so was both procedurally and substantively fair.
[86]
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Mr Dladla of NEHAWU on 5 and 6 May 2009 and
M
Mamorobela of Mamorobela Attorneys for the remainder of the
proceedings
FIRST
RESPONDENT : S S Jonase of the State Attorney’s Office.
[1]
BTR
Industries SA (Pty) Ltd & others v Metal & Allied Workers
Union & another
1992
(3) SA 673 (A);
(1992)
13 ILJ 803
(A)
[2]
President
of the Republic of SA & others v SA Rugby Football Union &
others
[1999] ZACC 9
;
(1999
(4) SA 147
(CC) at at 177 para 48
[3]
SA
Commercial Catering & Allied Workers Union & others v Irvin
& Johnson Ltd (Seafoods Division Fish Processing)
2000
(3) SA 705 (CC);
(2000)
21 ILJ 1583
(CC),
per Cameron AJ at 714-5