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[2016] ZALCD 9
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Dunlop Mixing and Technical Services (Pty) Ltd and Others v National Union of Metalworkers of South Africa (NUMSA) obo Nganezi and Others (D345/14) [2016] ZALCD 9; (2016) 37 ILJ 2065 (LC); [2016] 10 BLLR 1024 (LC) (11 May 2016)
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: D345/14
In
the matter between:
DUNLOP MIXING AND
TECHNICAL SERVICES (PTY) LTD
First
Applicant
DUNLOP
BELTING PRODUCTS (PTY) LTD
Second
Applicant
DUNLOP
INDUSTRIAL HOSE (PTY) LTD
Third
Applicant
and
NATIONAL UNION OF
METALWORKERS OF SOUTH AFRICA (“NUMSA”) obo
KHANYLIE,NGANEZI AND OTHERS
First Respondent
COMMISSION FOR
CONCILIATION MEDIATION AND ARBITRATION
Second Respondent
COMMISSIONER
ALMEIRO DEYSEL
Third Respondent
Heard:
27 January 2016
Delivered:
11 May 2016
Summary:
Review.
Derivative misconduct Application granted
JUDGMENT
GUSH,
J
[1]
This
is an application by the applicants to review and set aside portion
of the award handed down by the third respondent pursuant
to an
arbitration conducted into a dispute declared by the first respondent
on behalf of certain of its members (the respondent
employees)
arising from their dismissal by the applicants.
[2]
The
applicants are all wholly-owned subsidiaries of Dunlop Industrial
Products (Pty) Ltd and all carry on business at the factory
situated
at Induna Mills Road Howick.
[3]
During
August 2012 the applicants’ employees (the striking employees),
all of whom were members of the first respondent, embarked
on
protected industrial action “in furtherance of a wage
dispute”
[1]
. During the
course of the industrial action the striking employees became
involved in serious acts of misconduct all of which are
described in
detail in the third respondent’s award and the applicants’
evidence.
[4]
The
strike took place at the respondents’ premises in Induna Mills
Road and commenced on 22 August 2012. It is apparent from
the papers
that from the outset of the industrial action the strike was
characterised by violent confrontations between the striking
employees and supervisors, managers and representatives of the
applicants. In his award the third respondent described evidence
relating to the striking employees’ conduct as “painting
a picture of a dangerously volatile situation” involving
attacks on vehicles and “tantamount to placing the company’s
premises under siege.”
[2]
[5]
The
conduct of the striking employees was the subject of an interdict
granted by this court on 22 August 2012
inter
alia
restricted the striking employees from being within 50m of the access
road to the applicants’ premises and interdicting the
unlawful
conduct.
[6]
It
is apparent from the record of the arbitration that despite the
interdict the misconduct continued unabated until the dismissals.
[7]
On
26 September 2012 the applicants’ terminated the striking
employees’ employment for derivative misconduct. The third
respondent found the derivative misconduct arose from the failure of
the striking employees to provide particulars to the applicants
of
the identities of the perpetrators of the “acts of violence
intimidation and harassment committed from 22 August 2012
to 26
September 2012”.
[3]
[8]
At
the conclusion of the arbitration the third respondent found that
those employees listed in paragraphs (a) (b) and (c) (the respondent
employees) of the award had been unfairly dismissed and ordered the
first second and third applicants to respectively reinstate
the
respondent employees listed under each paragraph from the date of the
award.
[9]
The
applicants apply to review and set aside paragraphs (a) (b) and (c)
of the third respondent’s award and for the award
to be
corrected by determining that the dismissal of those employees was
fair.
[10]
The
pre-arbitration conference minute referred to in the award by the
third respondent listed that of a total of 107 striking employees,
all members of the first respondent Union, who had been dismissed. 29
had been dismissed for specific misconduct as well as derivative
misconduct and “the remaining 78 union members were dismissed
for derivative misconduct.
[4]
[11]
Although
not specifically included in the third respondents order that appears
under the under the heading AWARD, during the course
of the award the
third respondent concluded that the dismissal of 42 of the striking
employees dismissed by the applicants was
both substantively and
procedurally fair.
[5]
Whilst
some of these employees had been found guilty of direct misconduct a
number of these employees who were found to have been
fairly
dismissed were dismissed for derivative misconduct only.
[12]
The
65 respondent employees listed in paragraphs (a) (b) and (c) of the
award had all been found guilty of derivative misconduct
by the
applicants and dismissed.
[13]
The
review is confined only to the conclusion by the third respondent
that the dismissal of the listed respondent employees for
derivative
misconduct was unfair. There is no cross review regarding the finding
by the third respondent that the dismissal of
the remainder of the
employees by the applicants was fair. The respondents do not take
issue with the third respondents decision
that the applicants’
procedure was fair or that the sanction of dismissal for derivative
misconduct was appropriate.
[14]
The
first respondent confines it opposition to the applicants’
application to the simple averment that there was insufficient
“evidential basis” for a finding of derivative misconduct
as the respondent employees “were not mentioned”
in the
evidence before the arbitration; and that the “evidence led by
the applicants that it could not trust any of the striking
workers,
whether there was evidence of misconduct on their part or not, is
irrational and irrelevant in the absence of any evidence
of
wrongdoing on the part of such employees”.
[6]
[15]
This
approach ignores the fact that the nature of the derivative
misconduct lies in the failure of the striking employees to come
forward and assist the employer to identify the perpetrators. This
issue is dealt with in detail below.
[16]
The
background to and the circumstances and detail of the misconduct that
led to the dismissal of the employees is comprehensibly
set out in
the award. The third respondents summary of the background, the
survey of evidence and argument is not challenged by
respondents or
the applicants.
[17]
The
review is confined to the third respondent’s finding that the
distinguishing factor between those employees fairly dismissed
for
derivative misconduct and those found to have been unfairly dismissed
for derivative misconduct was simply whether or not the
applicants’
had discharged the onus of establishing that those employees listed
in paragraphs (a) (b) and (c) of the award
were present during the
commission of the “acts of violence, intimidation and
harassment” (the “direct or principle
misconduct”)
and therefore obliged to provide the applicants with the “particulars
of the identities of the perpetrators”.
[7]
[18]
The
third respondent in addition held that the derivative misconduct for
which the employees were dismissed for “was misconduct
relating
to an alleged failure on their part to provide the [applicants] with
particulars of the identities of the perpetrators
of acts of
violence, intimidation and harassment committed from 22 August 2012
to 26 September 2012”
[8]
[19]
Based
on the evidence adduced by the applicants the third respondent was
satisfied that they had established the serious acts of
direct
misconduct described in the award and that those striking employees
involved in this direct misconduct had been fairly dismissed.
[20]
Specifically,
the third respondent was also satisfied that those striking employees
who were identified in the evidence as being
present during the
direct misconduct were guilty of derivative misconduct, serious
enough to justify their dismissal. In particular
the third respondent
found that these striking employees were, by failing to provide the
applicants with particulars of the identities
of the perpetrators,
guilty of derivative misconduct and accordingly had been fairly
dismissed. The first respondent has not challenged
this finding by
the third respondent.
[21]
The
essence of the applicants’ ground of review is directed at the
third respondent’s conclusion that the applicants
had not
discharged the onus of establishing that respondent employees, who
were not specifically identified as having been present
during the
“direct misconduct”, were accordingly not guilty of
derivative misconduct.
[22]
In
their evidence, the applicants’ witnesses amplified and
explained the basis of their averment that the respondent employees,
despite not being identified, were guilty of derivative misconduct
and therefore fairly dismissed as it could be inferred that
they were
present during the acts of misconduct.
[23]
The
applicants’ evidence went further than simply relying on the
respondent employees’ failure to provide “particulars
of
the identities of the perpetrators”. In their pleadings and
during the evidence the applicants aver that the respondent
employees
are guilty of derivative misconduct in that they committed a breach
of the trust relationship by failing to come forward
and either:
a.
exonerating
themselves by explaining they were not present during the “picketing”
and “direct or principle misconduct”
or could not
identify the perpetrators: or
b.
come
forward and identify the perpetrators.
[9]
[24]
The
applicants’ aver it was “illogical and unreasonable [for
the third respondent] to hold that such respondents were
entitled to
decide not to testify because there was no evidence against
them”.
[10]
[25]
The
applicants aver that accordingly the decision of the third respondent
is not one which could be reasonably reached on the evidence
and
other material placed before him.
[26]
Crucial
to the enquiry is firstly a careful consideration of the nature and
extent of the derivative misconduct. The third respondent
concluded
that the derivative misconduct related only to a failure on the
employees part to provide the applicants with particulars
of the
identities of the perpetrators of the acts of violence, intimidation
and harassment.
[27]
This
finding by the third respondent was made seemingly despite the
evidence of the applicants regarding the essence of the derivative
misconduct relied upon by the applicants’
viz
that it amounted to more than simply a failure to provide particulars
of the identities of the perpetrators. The applicants clearly
relied,
in addition to the employee’s failure to come forward and
identify the perpetrators, on a breach of the trust relationship
between employer and employee by the respondent employees who by
remaining silent commit derivative misconduct in circumstances
where
it can be inferred from the evidence that they were present during
the direct misconduct. The issue is whether it is consistent
with the
evidence that the inference can be drawn that all the respondent
employees were present during the strike and if so whether
that
placed an obligation on the striking employees to provide an
explanation and whether their deliberate refusal to do so strikes
at
the heart of the employment relationship.
[28]
The
applicants evidence regarding the nature of the derivative
misconduct, as set out in the award, is:
“
It refers to
a situation where there is a form of misconduct and that misconduct
cannot be attributed to any one specific individual
but when it
occurred in agreeable collective manner. The notion of derivative
misconduct stems from the trust relationship which
is embodied in a
contract of employment. In such a relationship … Where there
is knowledge amongst the group that these
misconduct were performed
and on the basis of trust it is expected of any one with such such
knowledge to come forward and assist
the employer in correcting such
misconduct…”.
[29]
In
this regard what requires consideration is the extent to which it can
inferred that the respondent employees were present during
the
misconduct and, in the light of nature of the employment
relationship, whether in the specific circumstances of this matter
there was an evidentiary burden on both those respondent employees
who were present to give evidence regarding the perpetrators
as well
as those if they were not present to come forward and exonerate
themselves.
[30]
The
evidence clearly establishes that right from the commencement of the
strike, given the extent of the violence, that the applicants
had
called upon the first respondent to obtain details of the identity of
the perpetrators of the violence from the striking employees
and that
this had been communicated to the striking employees and the first
respondent Union. The third respondent in fact finds
that all the
striking employees knew that the applicants required them to provide
information about the perpetrators of the misconduct.
[31]
It
is clear from the record that the employees relied solely on the
argument that if they had not been identified during the arbitration
as being present during the acts misconduct that they had no
obligation whatsoever to come forward either to exonerate themselves
or identify the perpetrators.
[32]
The
issue to be determined therefor is whether the inference can be drawn
that the employees (including the respondent employees),
all of whom
were on strike at the time, were present during the many and repeated
acts of direct misconduct.
[33]
It
would follow that in the light of the trust nature of an employment
relationship there is an evidentiary burden on those it can
be
inferred were present to give evidence or provide some explanation.
That explanation could serve either to identify the perpetrators
or
equally importantly to exonerate the respondent employees who were
not able to identify the perpetrators or who were not present.
[34]
What
is abundantly clear from the record of the arbitration is that the
applicants adduced clear and unequivocal evidence of serious
acts of
unacceptable misconduct during the strike by the striking employees.
The applicants lead the evidence of nine witnesses,
eight of whom
dealt the acts of misconduct and one who translated what could be
heard from the recordings of the actions of the
striking employees.
The third respondent found this evidence to be “highly
probable” and accepted it.
[35]
The
third respondent went further in his award by finding variously that:
a.
The
applicants’ “witnesses proved on an overwhelming balance
of probabilities that the acts of misconduct … did
occur”.
Their evidence was probable in a was in many respects supported by
photographic evidence and further because it explained
why the
respondents had to obtain the interdict, why the respondent secured
the presence of a number of security officials to effectively
form a
barricade between the strikers and the company premises and why there
was a police presennce throughout most of the strike.;
b.
“
The
evidence as a whole proved on a balance of probabilities that the
so-called strike that was embarked on was tantamount
to placing
the company premises under siege.”
c.
“
The
evidence proved on a balance of probabilities that the lease during
the first few days of the strike the strike has blocked
the access
road to the company premises by some of them armed with sticks.
During this period they attacked vehicles going to and
from the
respondents premises”; and
d.
“
The
most probable inference is that they did so in order to intimidate
non-striking employees such as managers not to work during
the strike
in order to intimidate the drivers of vehicles such as supply of
vehicles to refrain from going to the respondents premises.
The video
footage shown during the arbitration did not relate specifically to
incidents that the applicants were dismissed for
but it painted a
picture of a dangerously volatile situation existed during the
strike.”
[11]
[36]
In
response to this evidence the first respondent called three
witnesses. The third respondent refers to this evidence in his award
as follows:
“
The
[respondents] denied at the time that any misconduct occurred and
also denied any knowledge who perpetrated such acts of misconduct
as
may have occurred. That continued to be the main defence that the
applicants during the arbitration”
[12]
[37]
Two
of the three witnesses called by the first respondent were employees
and applicants before the arbitrator (Duma and Grantham).
The third
respondent dealt with their evidence as follows:
“
Mr
Grantham and Mr Duma, in their evidence in effect denied seeing any
blocking of the road or stone throwing, but that was in keeping
with
the general tenor of the evidence which was that they did not see any
of the significant incidents. Their evidence in this
regard was so
improbable that it rendered the whole of their evidence
unreliable”
[13]
[38]
It
is not unreasonable to infer not only from the applicants”
evidence but from the evidence of the respondents at the arbitration
that the all striking employees were engaged in and participated in
the strike and accordingly, in the absence of any explanation,
were
present.
[39]
The
third respondent in considering whether the applicants’ had
established that the employees were guilty of derivative misconduct
starts by referring to the matter of
CEPPWAWU
v NBCCI & Others
[14]
.
In the judgement the court held that:
…
In cases
of collective misconduct an employer can only act against those
employees can prove to have
committed
the misconduct complained of
.
[15]
(my emphasis)
[40]
It
is important to repeat the third respondents finding regarding the
nature of the derivative misconduct for which the employees
were
dismissed.
I
accordingly find that [the employees] were dismissed for
derivative
misconduct relating to an alleged failure on their part to provide
the [applicants] with particulars of the identities
of the
perpetrators of acts of violence, intimidation and harassment
committed from 22 August 2012 to 26 September 2012
”
[16]
(my emphasis)
[41]
The
third respondent concluded that the applicant bore the onus of
“proving on a balance of probabilities
that
the [employees] knew who the perpetrators of the principal misconduct
were and that they failed to disclose such information
to the [applicants]”.
[17]
[42]
This
conclusion ignores the fact, as dealt with above, that the derivative
misconduct the applicants relied upon related, in addition
to failing
to identify the perpetrators, to a breach of trust arising from the
failure to come forward. Either to identify the
perpetrators or
exonerate themselves.
[43]
It
is necessary however to place the decision in the
CEPPWAWU
matter in the context in which it was held. The issue in question
related to an argument by the applicants relating to selective
application of discipline. The union had suggested that where the
employer had not disciplined all the employees involved in the
strike
that this rendered the dismissal of those charged with misconduct
during the strike unfair.
[44]
In
this matter the issue is whether the dismissed employees’ (all
of whom were on strike) failure to give evidence and/or
come forward
to exonerate themselves or provide the names of the perpetrators of
the direct misconduct constituted dismissible
derivative misconduct
despite not being directly identified as being present during the
misconduct.
[45]
When
dealing with derivative misconduct the third respondent relied on the
matter of
Chauke
& Others v Lee Service Centre t/a Leeson Motors
[18]
and in particular the following:
…
Two lines
of justification for a fair dismissal may be postulated. The first is
that the worker in the group which includes a perpetrator
may be
under a duty to assist management in bringing the guilty to book.
Where a worker has or may reasonably be supposed to have
information
concerning the guilty, his failure to come forward with information
may itself amount to misconduct. The relationship
between employer
and employee is in its essentials one of trust and confidence, and,
even at common law, conduct clearly inconsistent
with that essential
warranted termination of service. Failure to assist an employer in
bringing the guilty to book violates this
duty and may itself justify
dismissal.
[19]
This approach
involves a derived justification, stemming from an employee’s
failure to offer reasonable assistance in the
detection of those
actually responsible for misconduct.
Though
the dismissal is designed to target the perpetrators of the original
misconduct,
the justification is wide enough to encompass
those
innocent
of
it, but
who through their silence make themselves guilty of a derivative
violation of trust and confidence.
[20]
(The words in bold are omitted from the quoted passage in the third
respondents award).
[46]
The
third respondents conclusion that the derivative misconduct was
simply confined to
proving
“…that the [employees] knew who the perpetrators of the
principal misconduct were and that they failed to disclose
such
information
to the [applicants]”
[21]
ignores not only the applicants’ evidence regarding the breach
of trust but the inference that the respondent employees were
present
and accordingly guilty of derivative misconduct by remaining silent.
[47]
The
third respondent in the award then proceeds to consider the onus on
the applicant in proving the derivative misconduct. In this
regard
the third respondent relies on the decision
RSA
Geological Services v Grogan NO & Others
[22]
and in particular:
The employer must
prove on a balance of probabilities that the employees knew or must
have known about the principle misconduct
and elected without
justification not to disclose what they knew.
[23]
[48]
In
analysing the evidence it is apparent that the third respondent in
determining whether the applicants had discharged the onus,
lost
sight in the final analysis of that aspect of the derivative
misconduct for which the employees were found guilty and dismissed.
The third respondent failed to consider firstly whether a reasonable
inference could be drawn that the respondent employees were
present
and secondly if such an inference could be drawn whether the failure
of the employees to come forward and provide
either
an explanation exonerating themselves or providing the names of the
perpetrators constituted derivative misconduct.
[49]
The
third respondent, having determined that the derivative misconduct
was only a “failure on their part to provide the [applicants]
with particulars of the identities of the perpetrators of acts of
violence, intimidation and harassment committed from 22 August
2012
to 26 September 2012
”
appears
to have proceeded on the premise that the only misconduct the
applicants were required to prove on a balance of probabilities
was
that
the [employees] knew who the perpetrators of the principal misconduct
were and that they failed to disclose such information
to the [applicants]”
[24]
[50]
This
raises two issues.
[51]
Firstly:
there is a clear distinction between:
a.
Proving
on a balance of probabilities that the employees knew who the
perpetrators were and failed to come forward and disclose
this
information as was found by the third respondent to be the onus
resting on the applicants; and
b.
Considering
whether, as was postulated in the
Leeson
Motors
matter
[25]
, the respondent
employees were under a duty, consistent with the “essential …
trust and confidence” of an employment
relationship to come
forward with an explanation.
[52]
Secondly
the third respondent does not consider whether the evidence of the
applicants’ witnesses was sufficient to require
the respondent
employees to do more than simply remain silent.
[53]
In
Leeson
Motors
the Court, referring to the decision in
FAWU
v ABI
[26]
said the following:
None came forward at the workplace
hearings or in the industrial court to affirm the innocence or to
volunteer any evidence about
the perpetrators. Nugent J …
suggested that “In the field of industrial relations, it may be
that policy considerations
require more of an employee than that he
merely remained passive in the circumstances like the present, and
that his failure to
assist in an investigation of this sort may in
itself justify disciplinary action.”
This approach involves a derived
justification, stemming from an employee’s failure to offer
reasonable assistance in the
detection of those actually responsible
for the misconduct. Though the dismissal is designed to target the
perpetrators of the
original misconduct, the justification is wide
enough to encompass those innocent of it, but who through their
silence make themselves
guilty of a derivative violation of trust and
confidence.
In
FAWU
v ABI
,
the court held that, on an application of the evidentiary principles
of failure by any of the workers concerned give evidence
either in
the workplace hearings or in the Industrial Court justified the
inference that all those present at the workplace on
that day either
participated in the assault and the support to it. There were other
inferences compatible with the evidence. But
the inference of
involvement was most likely since “this is pre-eminently a case
in which, at one or more of the appellants
had innocent explanation,
they would have tended it, and in my view that failure to do so must
be weighed in the balance against
them.”
[27]
[54]
It
is abundantly clear from the record and the evidence as summarised
and analysed by the third respondent that the applicants themselves
regarded the failure of the employees to come forward with
information relating to the perpetrators of principal misconduct
or
to exonerate themselves constituted a breach of the relationship of
trust and confidence.
[55]
In
analysing the evidence and considering the various incidents the
third respondent appears to concentrate only on the simple issue
of
whether the applicants were able to identify who was present or not.
This approach is inexorably linked to the third respondent’s
failure to consider whether it could be inferred that the respondent
employees were present and “through their silence make
themselves guilty of a derivative violation of trust and
confidence”.
[28]
[56]
The
third respondent despite referring to the inference to be drawn from
the evidence only relies on a consideration of whether
the employees
were identified by the witnesses. The third respondent does not
appear to consider whether the evidence adduced by
the applicants was
sufficient to create an inference that the respondent employees were
all on strike and present.
[57]
The
third respondent finds that the parties were subject to a picketing
rules agreement; that it was proved by the evidence of the
first
respondent’s Mr Sibisi that it had been conveyed to the
respondent employees that the applicants’ required information
regarding the perpetrators of the misconduct and that they should
provide such information. The third respondent also finds that
the
defence raised and relied upon by the respondents at the time of the
misconduct and the arbitration was to deny the misconduct.
[58]
The
record reflects that it was not the respondents’ case that the
respondent employees were neither on strike nor present
during the
acts of misconduct. The respondent employees simply remained silent.
The witnesses who gave evidence on behalf of the
respondents simply
denied any misconduct, breach of the strike and picketing rules or
the interdict.
[59]
It
is trite that the arbitration was a hearing
de
novo
.
The respondent employees had been afforded an opportunity to come
forward before they were dismissed. This opportunity was again
available to them at the arbitration. In the face of the extensive
evidence relating to the presence of the striking employees
and of
the serious misconduct the first respondent and the employees elected
deliberately not to give evidence or an explanation.
(Besides Duma
and Grantham whose evidence was simply to the effect that no
misconduct took place, which evidence was rejected by
the third
respondent.) The right to remain silent is sacrosanct in criminal
matters where accused persons are presumed to innocent
until found
guilty. This is not a criminal investigation and the presumption of
innocence does not apply.
[60]
The
issue in question in this matter is whether the respondent employees
were entitled despite the nature of the employment relationship
to
passively remain silent in the face of an opportunity to assist in
the investigation. The Courts have repeatedly stressed the
nature and
essence of the employment relationship which is based on trust and
good faith. The response by the respondent employees
in this matter
particularly taking into account the evidence adduced by the
applicants to simply remain silent was a breach of
that trust.
[61]
In
the course of the award the third respondent recognises that an
inference may be drawn from the applicants’ evidence but
limits
that inference only to where the employees are identified:
In respect of the
misconduct relating to the blocking of Induna Mills Road and damaging
of vehicles and acts of intimidation including
the carrying of sticks
and other weapons, if an applicant was present on any day on which
such misconduct was committed, and acceptable
explanation was called
for and in the absence of such explanation the most probable
inference to be drawn is that such applicant
at best for him or her
committed derivative misconduct by not supplying the [applicants]
with information regarding the perpetrators
of such misconduct. In my
view it would not make a difference to the outcome of this matter to
make findings with such [respondents]
committed principal misconduct
or derivative misconduct. Either misconduct destroyed the trust
relationship and warranted the sanction
of dismissal.
[29]
And
If any of the
applicants were present in the group of strikers who blocked the road
and the entrance to the respondents premises
and/or attacked vehicles
and/or intimidated anybody by standing in the road singing and
dancing while some were armed with sticks
they would either have been
perpetrators of the principal misconduct or be liable for derivative
misconduct on the basis that they
knew the perpetrators of the
principal misconduct were and failed to disclose that information to
the respondent. If such applicants
had a defence one would have
expected them to give evidence and explain what the defence was. Mr
Grantham and Mr Duma testified
but their evidence was rejected …
[30]
[62]
The
applicants argued that the evidence adduced was sufficient to create
an inference in respect of the respondent employees, whether
they
were identified or not that required them to provide an explanation.
The applicants’ regarded the failure or refusal
to come forward
as a breach of the trust relationship. The evidence clearly
established that all relevant times the first respondent
and the
employees were well aware of the applicant’s attitude towards
the failure of the employees to come forward and identify
the
perpetrators as well as its intention to rely upon derivative
misconduct arising from that failure.
[63]
Insofar
as the employees identified as being present during the direct
misconduct there is no dispute. The inference was properly
drawn that
their failure to come forward and give evidence justified their
dismissal for derivative misconduct.
[64]
The
question arises is whether the evidence adduced by the applicants was
sufficient to create the inference that the employees
were present
during the misconduct and that in turn placed a burden the employees
exonerate themselves or identify the perpetrators
of the misconduct.
[65]
The
evidence clearly established that the dismissed employees (the
applicants before the arbitration) were members of the first
respondent and were all on strike. The applicants on numerous
occasions during the duration of the strike communicated to the first
respondent that they sought particulars of those directly involved in
the principal misconduct from the employees and they regarded
the
failure by the striking employees to assist as a breach of the trust
relationship constituting derivative misconduct.
[66]
In
response the evidence adduced by the applicants, the respondent
employees simply remained silent.
[67]
The
only evidence adduced by the respondent was that of Sibisi (the union
organiser) and
Grantham
and Duma
employees
whose evidence was discredited. Mr Sibisi gave evidence that he
addressed the strikers, warned them not to commit misconduct.
His
evidence was that the strikers at all times denied any misconduct or
any of the incidents the applicants had complained of.
[68]
The
third respondents in the award finds that it was proven that:
It was conveyed to
the striking union members i.e. the applicants [the employees], that
the respondents [applicants] were seeking
information about the
perpetrators of the misconduct and they should let the union know if
they had any information. …
Some of the applicants [the
employees] had not received the message one would have expected them
to give evidence to such effect.
In the absence of such evidence I
find that all applicants knew that the respondents required of them
to provide information about
the perpetrators of misconduct.
[31]
[69]
The
employees were given an opportunity to explain, either to identify
the perpetrators of the direct misconduct or to exonerate
themselves
both prior to their dismissal and at the arbitration. The employees
eschewed such opportunities. The only evidence adduced
by or on
behalf of the first respondent and the employees relating to was
present was confined simply to denying any direct misconduct.
It was
never suggested by the employees that they were not present during
the direct misconduct that took place during the strike.
[70]
In
FAWU
v ABI
[32]
matter the Labour Appeal Court held the following:
In argument before us it was accepted
by the appellants' counsel that if it was found that each of the
appellants had associated
themselves with the assault in one or other
of the forms alleged by the respondent, the dismissal was justified.
It was submitted by the appellant's
counsel that the onus of establishing this was upon the respondent,
and that the onus was to
be discharged as a matter of
probability. I have assumed for purposes of this appeal that that
submission is correct.
There was no direct evidence linking
any of the appellants to any particular act in relation to the
assault, and the respondent's
case was based on inference alone. None
of the appellants gave evidence, either in the court a
quo
or in the course of the disciplinary hearing. The attitude adopted by
the appellants throughout was that it was for the respondent
to
establish their complicity, and that no case had been made out
against any of them which called for a reply.
The extent to which
a party's failure to give evidence may properly give rise to an
inference against him has received considerable
attention from the
courts. What emerges from the decided cases is that his failure to do
so cannot by itself constitute proof of
what is alleged against him.
Nevertheless the evidence against him, though not conclusive, may be
such that an explanation would
be expected if one was available. In
such cases his failure to provide an explanation may be placed in the
balance against him.
In the field of
industrial relations, it may be that policy considerations require
more of an employee than that he merely remain
passive
in circumstances like the present, and that his failure to
assist in an investigation of this sort may in itself justify
disciplinary action.
[33]
[71]
More
recently the issue of derivative misconduct was considered by the
Labour Appeal Court in the matter of
Western
Platinum Refinery Ltd v Hlebela & Others
[34]
where
the Honourable Judge of Appeal Sutherland, after considering the
judgment in
Chauke
& Others v Lee Service Centre t/a Leeson Motors
[35]
stated
the following:
The effect of these
dicta
is to elucidate the principle that an employee bound implicitly by a
duty of good faith towards the employer breaches that duty
by
remaining silent about knowledge possessed by the employee regarding
the business interests of the employer being improperly
undermined.
And controversially, and on general principle, a breach of the duty
of good faith can justify dismissal. Nondisclosure
of knowledge
relevant to misconduct committed by fellow employees is an instance
of a breach of the duty of good faith. Importantly
the critical point
made by both
FAWU
and
Leeson
Motors
is that a dismissal of an employee is derivatively justified in
relation to the primary misconduct committed by unknown others,
where
an employee, innocent of actual perpetration of misconduct,
consciously chooses not to disclose information known to that
employee pertinent to the wrongdoing.
[36]
[72]
The
third respondent held that an employer that relies on derivative
misconduct is obliged to prove on a balance of probabilities
that the
employees knew or must have known about the principle misconduct and
did not disclose it. The issue is whether on the
evidence the
inference can be drawn that the employees in this matter were
present.
[73]
The
third respondent in referring to the respondent employees who were
not identified as being present indicates that he took into
account
that it was “possible they did not testify in order to
implicating themselves” and “in my view however
equally
possible that they did not testify because they were of the view that
the respondent had not made out a case for them to
meet”. The
third respondent simply concluded that “in the circumstances
respondents failed to prove on a balance of
probabilities that the
applicants falling into this group of applicants committed
misconduct.”
[37]
[74]
By
failing to consider whether or not the applicants evidence created
inference that the respondent employees were present or under
an
obligation to exonerate themselves the third respondent does not
consider whether the failure to give evidence or provide an
explanation was acceptable or whether such conduct constituted
derivative misconduct.
[75]
In
the
ABI
matter the court when considering the inference to be drawn said the
following:
The inference which the respondent
seeks to draw from the evidence is that all the appellants were
present at the time the
assault took place, and either actively
participated in the assault or at least supported and encouraged the
actual perpetrators.
It is a cardinal rule of logic when reasoning by
inference that the inference sought to be drawn must be consistent
with all the
proved facts. If it is not, the inference cannot be
drawn (
R v Blom
1939 AD 188
at 202-3). In my view all the
evidence in the present case is consistent with that inference.
The appellant's counsel submitted that
the evidence shows no more than that most of the crewmen were present
when the assault took
place, and that this does not assist in
establishing as a matter of probability the presence of any one
of the appellants.
The reasoning is undoubtedly correct, but in my
view none of the evidence establishes that it was only a majority of
the appellants
who were present. The evidence is equally consistent
with them all being there.
The fact that the
evidence is consistent with the inference sought to be drawn
does not of course mean that it is necessarily
the correct inference.
A court must select that inference which is the more plausible or
natural one from those that present themselves
(
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982 (2) SA 603
(A)). In the present case however no alternative
inferences have been advanced which have a foundation in the
evidence. It
was suggested in argument that one or more of the
appellants may have been absent, or may have been unwittingly caught
up in the
events. This, however, is no more than speculation, as
there is no evidence to suggest that this is what occurred. In my
view this
is pre-eminently a case in which, had one or more of the
appellants had an innocent explanation, they would have tendered it,
and
in my view their failure to do so must be weighed in the balance
against them.
[38]
[76]
I
am satisfied that the only reasonable and plausible inference that
can be drawn from the evidence is that the respondent employees
were
present during the strike and accordingly during the misconduct. If
they weren’t present or had no information regarding
the
perpetrators they would have said so. They, despite the opportunities
afforded them, did not.
[77]
It
is entirely reasonable for an employer to expect protected industrial
action to be accompanied by orderly conduct by those employees
who
have embarked on the industrial action. This is particularly so in
circumstances where the employer has not only entered into
a
picketing rules agreement with the representative trade union
regulating the conduct of striking employees but has as a result
of
the conduct of the employees been forced to obtain an interdict
restraining the striking employees from committing misconduct.
That
strikes are often visited with violence and misconduct does not
justify such acts.
[78]
Despite
the fact that tension often runs high during industrial action the
level of misconduct and violence and the duration thereof
in this
matter reinforces the necessity for employers to be able on to rely
on the “duty of good faith towards the employer”
and that
the employee “breaches that duty by remaining silent about
knowledge possessed by the employee regarding the business
interests
of the employer being improperly undermined.”
[39]
This duty must extend to the opportunity to exonerate oneself.
Specifically when the employer has repeatedly requested information
regarding the perpetrators of the misconduct and the striking
employees are well aware of this.
[79]
In
the circumstances of this matter and in particular given the serious
nature of the misconduct suggests the failure to provide
an
explanation constituted misconduct and justified the disciplinary
action. The evidence adduced by the applicants created an
inference
that the respondent employees were present Accordingly, as employees
of the applicants, the “essentials of trust
and confidence”
[40]
demanded that they do more than simply remain silent. Their failure
to come forward and provide an answer constituted derivative
misconduct. The third respondent did not consider whether such an
inference could be drawn and in so doing did not take into account
material that was properly placed before him. This constitutes a
valid ground of review.
[80]
[81]
As
far as the sanction of dismissal is concerned there was no suggestion
by the first respondent the sanction of dismissal for derivative
misconduct was inappropriate. The respondents relied solely on the
respondent employees not being identified.
[82]
Given
the nature of this matter I am not satisfied that it is appropriate
to make a costs order.
[83]
In
the circumstances and for the reasons set out above I make the
following order:
i.
Paragraphs
(a), (b) and (c) of the third respondents award dated 16 March 2014
under case reference KNPM 2439 – 12 are reviewed
and corrected
by the deletion of paragraphs (a), (b) and (c) and substituted with
an order that the dismissals of those persons
whose names appear in
paragraphs (a), (b) and (c) were substantively and procedurally fair.
ii.
There
is no order as to costs.
__________________
Gush J
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv
A J Dickson SC
Instructed
by:
Farrell
and Associates
On
behalf of the Respondent:
Adv
P Schumann
Instructed
by:
Brett
Purdon Attorneys
[1]
award paragraph 14
page 23
[2]
Award paragraph 76
page 35
[3]
Award paragraph 60
page 32
[4]
Award paragraph39
and 40 page 28
[5]
Award page 50
[6]
Answering
affidavit para 12 page 65
[7]
Award paragraph 60
page 32
[8]
Award paragraph 60
page 32
[9]
Pleadings
paragraphs 53 and 54
[10]
Applicants’
heads paragraph 5.4
[11]
Award paragraph 76
page 35
[12]
Award paragraph 75
page 35
[13]
Award paragraph 94
page 38
[14]
[2011] 2 BLLR 137
(LAC)
[15]
paragraph 20 page
141
[16]
Award paragraph 60
page 32
[17]
Award para 65 page
33
[18]
(1998) 19 ILJ 1441
(LAC)
[19]
Para 31 page 1447
[20]
Para 33 page 1447
[21]
Award para 65 page
33
[22]
(2008)29 ILJ 406
(LC)
[23]
Para 49 page 419
[24]
Award para 65 page
33
[25]
Supra
at page 1447
[26]
(1994) 15 ILJ 1057
[27]
At paragraph 32 –
34 pages 1447/8
[28]
Leeson Motors
supra
[29]
Award paragraph 81
page 36
[30]
Award paragraph77
page 35
[31]
Award paragraph 74
page 34 is
[32]
(1994) 15 ILJ 1057
[33]
Pages 1062-1063
[34]
(2015)
36
ILJ 2280 (LAC)
[35]
supra
[36]
Paragraph 8 page
2285
[37]
Awardpragraph79
pages 35/36
[38]
Pages 1062/3
[39]
Western
Platinum Refinery supra
page 2285
[40]
Per Cameron J
Leeson
Motors supra
page 1446