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[2015] ZALCCT 61
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Stocklush (Pty) Ltd t/a Meadow Meats v FAWU obo Setouto and Others (C880/14) [2015] ZALCCT 61 (8 October 2015)
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Not Reportable
Case Number: C880/14
In the matter between:
STOCKLUSH
(PTY) LTD T/A MEADOW MEATS
Applicant
And
FAWU obo
SETOUTO & OTHERS
First
Respondent
TSILISO
SHASHA N.O
Second
Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION
Third
Respondent
Date heard: June 2
2015
Delivered:
8 October 2015
JUDGMENT
RABKIN-NAICKER J
[1] This is
an unopposed application to review and set aside an arbitration
awarded under case number FSWK486-14. The second respondent
(the
Commissioner) found that 48 employees who were dismissed for
misconduct during a legal strike were substantively unfairly
dismissed and reinstated them all.
[2] The
strike started on 22 September 2013 and the employees were dismissed
on 26 February 2014 after a disciplinary hearing on
allegations of
intimidation, assault and blockading the entrance of the applicant
company.
[3] There are
a number grounds of review set out in the application before me. One
of these is directed at the following statement
by the Commissioner
in his Award:
“
[63]
The notion that all
members of a group can be punished for a misconduct of some
is
repugnant to law and the rule of natural justice. Most especially
where common purpose was not proven.”
[4]
This it is submitted on behalf of the applicant is a mistake of law.
I agree. It appears that the Commissioner did not understand
the
distinction between 'collective guilt', which assumes that all
members of a group were guilty simply because the perpetrator
belonged to that group, and 'collective misconduct' in which
employees took part for a common purpose, and which involved
individual
culpability. As John Grogan
qua
arbitrator
[1]
has pointed out:
“
The
term 'collective responsibility', …..refers to situations in
which all members of a group are punished because of the
actions of
some of them. The term 'collective misconduct', as I understand it,
refers to misconduct in which a number of employees
participate with
a common purpose. The term is generally used with reference to
illegal work stoppages and stay-aways: see, for
example, SACTWU &
others v Nylon Spinners (Pty) Ltd
[1999] 11 BLLR 1157
(LC). In such
cases, although the individual members of the group act in concert,
they are liable for the consequences of their
collective action
because each is individually culpable. Used in this sense, the term
'collective misconduct' is to be distinguished
from the notion of
'collective guilt', which assumes that all members of a group are
guilty (and deserving of punishment) simply
because the perpetrator
belonged to that group. The notion of 'collective guilt' is a
method of ensuring that a guilty person
does not go unpunished. As
was point out in Pep Stores (1) , its application is unfair because
it inverts the maxim that it is
better for a guilty person to go free
than to punish an innocent person. The notion of 'collective guilt'
is conceptually flawed
because it is not possible in law or logic to
attribute criminal liability to a group. The only way in which
individuals can be
held accountable for the wrongful acts of members
of a group of which they form a part is by virtue of the doctrine of
common purpose,
in terms of which the actions of one or more members
of a group (the actual perpetrators) are attributed to others by
virtue
of their association in the common goal (S v Safatsa &
others
1988 (1) SA 868
(A)), or by virtue of the concept of
'derivative misconduct', which locates the misconduct not in the
primary misconduct of the
perpetrator, but in the refusal by his
colleagues to inform the employer of the identify of the actual
perpetrator: Chauke &
others E v Lee Service Centre CC t/a
Leeson Motors (1998) 19 ILJ 1441 (LAC). However, the doctrine of
common purpose rests
in the final analysis on individual culpability:
S v Singo
1993 (1) SACLR 226
(A); NSCAWU & others v Coin Security
Group (Pty) Ltd t/a Coin Security
[1997] 1 BLLR 85
(IC) at 90G-91B.
So, too, does the notion of derivative misconduct.”
[5] The above
passage was quoted with approval in
Foschini Group v
Maidi & others (2010) 31 ILJ 1787 (LAC)
, a judgment dealing
with team misconduct in which dismissal was found to be justified
because each individual as a component
of the group culpably failed
to ensure that the group complied with rule in question.
[6] Over and
above this latent defect in the Award, the Commissioner reinstated
all of the employees despite the fact that they
were not all present
at the arbitration. Further he reinstated some of them who he found
to have been guilty of the misconduct
alleged, without any
explanation therefore.
[7] The
quality of his assessment of the evidence of the company’s
witnesses is well reflected in the following paragraph
of his Award:
“
Shadrack
Sekwati Rakwata testified that he was attacked by a group of four
striking workers. In his statement (page 57 of Bundle
A) he stated
that he was hit with sticks (kirries) and stones. In his evidence in
chief he only identified Matolong as the one
who hit with a stick and
could not identify who hit him with a brick. His statement was
inconsistent with what he was testifying
in chief. He further
implicated William Nkone as one of the people who assaulted him, but
apparently
this person was not event part of the striking workers or near the
Respondent’s place. I found his testimony unreliable and
inconsistent. No medical report or certificate or SAPS case number
was submitted to substantiate the assault”(my emphasis)”
[8] It is
clear from all of the above that on its face this Award is
susceptible to review at the very least, on the basis that
that the
Commissioner reinstated all the employees who referred the dispute
when some of them were not even present at the arbitration.
He
further failed to distinguish or consider why even those he himself
found guilty of serious misconduct should be reinstated
along with
everybody else. The Award is one that a reasonable decision-maker
could not make.
[9] I therefore make the following
order:
Order
1.
The award under case number FSWK 486-14 is reviewed and set aside.
2.
The dispute is remitted back to third respondent for hearing de novo
before an arbitrator other than second respondent.
_____________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances:
Applicant:
Adv Venter instructed by Du Randt Attorneys
___________________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances
:
For the Applicant:
[1]
Federal Council of Retail & Allied Workers
and Snip Trading (Pty) Ltd (2001) 22 ILJ 1945 (ARB)