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[2017] ZALCJHB 24
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South African Clothing and Textile Worker's Union and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR686/2015) [2017] ZALCJHB 24 (26 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not reportable
Case no: JR 686 /2015
In
the matter between:
SOUTH
AFRICAN CLOTHING AND TEXTILE
WORKERS’
UNION
First
Applicant
ALFRED
LETIMELA Second
Applicant
RONNIE
APOLS
Third
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
M
MANTSHULE
N.O
. Second
Respondent
HELM
TEXTILE MILLS (PTY)
LTD Third
Respondent
Heard:
12 October 2016
Delivered:
26 January 2017
Summary:
Review application. Applicant challenges findings on consistency and
sanction. No merit in the grounds for review and the
arbitration
awards is not to be interfered with on review.
JUDGMENT
PRINSLOO J.
Introduction
[1]
The
Applicants seek to review and set aside an arbitration award issued
on 13 March 2015 wherein the Second Respondent (the arbitrator)
found
the Second and Third Applicants’ (the employees collectively or
Letimela and Apols individually) dismissal substantively
and
procedurally fair and dismissed their cases.
[2]
The
Third Respondent (Respondent or employer) opposed the application.
Background facts
[3]
The
background facts are herewith summarised as follows:
[4]
The
members of SACTWU embarked on a national protected strike as from 24
July 2014 and as the Respondent is a textile manufacturer,
its
employees participated in the said strike action.
[5]
It is
common cause that the striking employees made a small fire on 28 July
2014 to keep warm and this fire was made with grass
and dry wood on
the bare ground and out of the way where it posed no risk or threat
to any person or property. The Respondent was
aware of this fire and
had no problem with it.
[6]
It is
also common cause that on 4 August 2014 the employees made a fire in
front of one of the gates using old tyres. The Respondent’s
managing director, Mr Willy Lochman (Lochman) came out of the factory
with the general manager, Mr Norbet Jaeger (Jaeger), and
shouted at
Apols to stop what they were doing and Jaeger extinguished the fire
with a fire extinguisher where after Lochman and
Jaeger took the
tyres inside the factory.
[7]
On 5
August 2014 more tyres were burnt until the South African Police
Service (SAPS) told them to stop burning tyres. The Respondent’s
case is that the tyres were burnt under trees with low, dry branches
near the building with the intention to ignite the tree.
[8]
On 11
August 2014 the Respondent issued a notice of lock out and on 20 and
25 August 2014 the employees were issued with notices
to attend a
disciplinary hearing. The charges related to intimidation and taking
the lead in burning tyres at or near the workplace
with the intention
to display an act of intimidation, causing damage to the company
property through arson, disrupting operations
by blocking the
entrance to the premises with burning tyres and inciting other
employees.
[9]
The
disciplinary hearing was held on 5 September 2014 and the
Respondent’s case was that the employees were the only ones
actively involved in the act of arson by either starting or
propagating the burning of tyres and all other employees who appeared
on the video footage taken by the Respondent, were bystanders and the
arson charges against them were withdrawn.
[10]
On 8
September 2014 the employees were found guilty of misconduct and they
were dismissed with effect from 9 September 2014. An
unfair dismissal
dispute was referred to the CCMA and the matter was arbitrated.
The evidence adduced
[11]
The
issue to be decided by the arbitrator was whether the employees’
dismissal was substantively and procedurally fair. It
is evident from
the application and the grounds for review raised by the Applicant
that issue is not taken with the findings on
procedural fairness. For
purposes of this judgment it is not necessary to consider the
evidence or findings pertaining to procedural
fairness.
[12]
In
order to assess the arbitrator’s findings in respect of
substantive fairness and the award he issued, it is necessary to
consider the charges the employees were dismissed for and the
evidence adduced.
[13]
The
Respondent’s general manager, Jaeger, testified that a national
protected strike action was ongoing during July and August
2014 and
the strike action commenced at the employer’s premises on 24
July 2014. Wage negotiations were done at national
bargaining council
level and the employer had no say in the outcome of those
negotiations. Whether the Respondent’s employees
went on strike
or not, it had no impact on the outcome of the national wage
negotiations.
[14]
On
Monday 28 July 2014 the striking employees were standing at gate 3 in
front of the building and they made a small wood fire to
keep warm.
The employer made an interim offer of 8% increase to the employees
pending the outcome of the national wage negotiations
and Letimela
conveyed the proposal to the striking employees. Instead of
responding to the offer, the conduct of the striking employees
changed. They started to carry sticks and they moved to gate 1, which
gate gives access to the yard for deliveries and parking.
The
strikers intimidated customers, suppliers, drivers and they sent
threatening messages to working employees. Drivers could not
enter
the premises to make deliveries and as a result the employer lost
orders for 37 000 metres of fabric.
[15]
On
Monday 4 August 2014 Jaeger was called by Lochmann to assist with a
fire at gate 1 which prevented customers, suppliers and staff
from
entering the premises. He took a fire extinguisher and ran to gate 1,
where he extinguished the fire and pulled the tyres
away. The fire
was made directly in front of gate 1 in order to block access.
[16]
On
Tuesday 5 August 2014 Jaeger was working in his office when he saw a
yellow glow through the glass windows on the first floor.
When he
investigated he saw that several tyres were burning and were placed
in front of the building under low hanging branches
of dry trees.
Lochmann called the SAPS and when SAPS arrived, they told the
strikers that they could not burn tyres as part of
industrial action.
In the afternoon of the same day, more tyres were burnt and SAPS had
to be called once again. The employer subsequently
locked out the
striking employees with effect from 11 August 2014.
[17]
On 20
August 2014 the employer issued notices of a disciplinary hearing to
all employees who behaved violently or who displayed
acts of
aggression by carrying and waving sticks during the strike. The
strikers were disciplined depending on the nature of the
misconduct
during the industrial action and the employees were categorised by
looking at pictures and video footage taken during
the strike. All
the employees, except Letimela and Apols, were issued with written
warnings and the lock out was uplifted with
effect from 25 August
2014 and they were allowed to return to work.
[18]
Letimela
and Apols were not allowed to return to work on 25 August 2014, as
their disciplinary hearings were still pending. The
misconduct they
were charged with, was far more serious than the misconduct the other
striking employees were charged with and
for which they were issued
written warnings.
[19]
Jaeger
testified that the employees were dismissed for serious misconduct in
that they burnt tyres in front of the gates and the
employer’s
building on three occasions despite being told to refrain from doing
so by Lochmann and the SAPS. Riotous behaviour
is prohibited in the
employer’s disciplinary code and burning of tyres is riotous
behaviour.
[20]
On
the issue of inconsistency Jaeger testified that there was no
evidence to implicate any other employee in the act of misconduct
the
employees were dismissed for.
[21]
It
was never alleged that any other employee was involved in the burning
of tyres and no pictures or video evidence showed any other
employee
involved with the burning of tyres. The mere fact that other
employees were standing around or looking at the Second and
Third
Respondent, was not enough to charge those employees as the employer
charged the ones who started the fire, not the ones
who were standing
around the fire. No evidence was adduced to implicate any other
employee and all the evidence adduced portrayed,
only the two
employees as playing a leading role in the burning of tyres. The SAPS
had to be called and came on two occasions,
still the employees
persisted with their conduct to burn tyres.
[22]
The
employees were not dismissed for their participation in the strike,
but for their misconduct committed during the strike. The
conduct of
the employees was not justified as it was not promoting protected
industrial action. The trust relationship was destroyed
and the
sanction of dismissal was appropriate.
[23]
In
cross-examination Mr Hadebe (Hadebe) focussed most of his questioning
on issues relating to procedural fairness, which is not
relevant for
this application. Hadebe further focussed on the fact that the
burning of tyres did not affect the employer’s
production.
Jaeger explained that although no trees or buildings caught fire as a
result of the burning tyres, the burning tyres
still prevented
suppliers from coming to the factory and it resulted in the loss of a
big contract for the employer. The fires
were not made to keep the
strikers warm, but were made to threaten and it displayed riotous
behaviour.
[24]
The
employer’s second witness was the managing director, Mr
Lochmann. He testified that he saw Apols lighting paper and starting
a fire by burning tyres in front of the employer’s entry gate.
He shouted at Apols to stop and to think about what he is
doing, but
he ignored Lochmann and ignited the fire. Apols was assisted by
Letimela. Lochmann made a video recording of this, where
after he
went to call Jaeger to assist him to extinguish the fire. By the time
they extinguished the fire, the flames were quite
high. They moved
the tyres into the employer’s driveway.
[25]
The
next day, 5 August 2014, it became worse when a number of tyres were
placed in front of the building and set alight. Some tyres
were
placed so that they could cause the dry trees to catch fire. At that
point the employer called the SAPS who responded quickly
and told the
strikers to extinguish the fires. Later the same day the employees
ignited the fires once again. Lochmann testified
that he never saw
any other employee involved in the igniting of the fires, it was just
Apols and Letimela. They showed not only
disrespect towards him, but
also towards the SAPS and any kind of authority. Lochmann testified
that the employees could not return
to work as they disregard
authority and they are expected to work with supervisors, taking
instructions from them. This to him
was worse as the employer had no
say in the wage increases and only implemented what was decided on a
national level.
[26]
On
the issue that the employees used the fires to keep warm, Lochmann
testified that one does not burn tyres to keep warm as it
makes
really big flames and it gives off toxic fumes that a human being
cannot inhale, but has to move away from. He further explained
that
the tyres were placed strategically to ignite the trees and to try to
burn down the building and to intimidate suppliers,
customers and
staff who wanted to enter the premises. He testified that the
strikers initially had a small wood fire at the side
of the building
to keep warm, which is much different from igniting tyres in front of
the entrance gate. Lochmann testified that
no one was standing around
the fires to keep warm. This was done to block the gate, not to keep
warm.
[27]
Lochmann
rejected the employees’ version that they did not know that
they were not allowed to make fires. He testified that
he personally
told them to stop that and that they were told by the SAPS, yet they
persisted to burn tyres.
[28]
In
cross examination Hadebe put it to Lochmann that it was not disputed
that tyres were burnt, but what was disputed was the intention.
Hadebe’s version was that the fires were made to keep the
strikers warm and not to burn the employer’s property. This
was
disputed by Lochmann as his testimony was that the trees and building
would have caught fire if they had not used the fire
extinguisher to
extinguish the fire and if the SAPS did not come to the premises and
told the employees to extinguish the fire.
He further testified that
the fires were not to keep the strikers warm because of the size and
location of the fires and the fact
that people were not milling
around those fires to keep warm. Furthermore, the employees
disregarded all instructions not to burn
tyres, even the instructions
from the SAPS.
[29]
Apols
testified that they burned tyres as it was the only option because
there was no more wood to make a fire with. He also testified
that
the tyre burning never caused any fire to the trees or building and
it was never a threat to anything. In respect of the issue
of
consistency Apols presented evidence and put forward versions that
were never put to the employer’s witnesses. Be that
as it may,
Apols conceded that the acts of misconduct he was charged with and
dismissed for differed from the charges of the misconduct
levelled
against the employees who received written warnings.
[30]
Apols
testified that he was able to go back to work if he would be
reinstated. He testified that he would participate again in protected
strike action but he would conduct himself in a different way. Apols
confirmed in his testimony that others brought the tyres,
but he lit
the fire. He also persisted that tyres were burnt to keep warm and
that he was unaware that it was wrong to burn a tyre
outside the
Applicant’s premises.
[31]
Apols
conceded that the positioning of the tyres right in front of gate 1
interfered with access to the employer’s premises.
He further
conceded that it was wrong to put a tyre there in front of the gate
where there is an entrance of vehicles and trucks
to deliver. He also
conceded that he lit the fire.
[32]
Letimela
testified that they did not burn tyres in front of gate 1. He
contradicted the evidence of Apols who testified that the
fire was in
front of gate 1. Lochmann also testified that the fire was in front
of gate 1.
[33]
It
was common cause that tyres were burnt outside the employer’s
premises. Letimela testified that the intention was to keep
warm and
not to burn any property. He stated that if he knew that to burn
tyres was wrong, he would not have continued. If he were
to
participate in strike action again, he will not burn tyres as it is
wrong.
[34]
In
his evidence in chief Letimela conceded that he took the lead in the
burning of tyres but insisted that the intention was to
keep warm.
Analysis of the
arbitrator’s findings and grounds for review
[35]
On
substantive fairness the arbitrator found that the employees burnt
the tyres and the only issue in dispute was their intention
when
doing so. The employees insisted that they burnt the tyres to keep
warm whereas the Respondent viewed the burning of tyres
differently
and regarded it as an act of intimidation, causing damage and
disrupting its operations.
[36]
The
arbitrator considered the Code of Good Practice in Schedule 8 of the
Labour Relations Act
[1]
in
determining the substantive fairness of the employees’
dismissal. The arbitrator accepted that there was a rule of which
the
employees should have been aware and which they contravened. He
rejected their version that they were unaware of a rule that
prohibited the burning of tyres during a strike as they were shop
stewards and should be aware of the general rules regulating
a picket
during strike action. The employees burnt tyres in front of gate 1
which was used by staff and suppliers and had the potential
to
interfere with the operations of the Respondent.
[37]
The
arbitrator considered the appropriateness of the sanction and found
that dismissal was appropriate and that the Respondent consistently
applied its rules and disciplinary action.
[38]
The
Applicants’ case is that the arbitrator committed a gross
irregularity in the conduct of the proceedings, committed misconduct
in relation to his duties as an arbitrator, failed to apply his mind
to the evidence and rendered an award that no reasonable decision
maker could have reached. It is also the Applicants’ case that
the arbitrator misconceived the enquiry insofar as sanction
is
concerned and he did no more but to rubber stamp the employer’s
decision.
[39]
In
argument before Court Mr Makhura on behalf of the Applicants
submitted that the review application is limited to two issues and
he
persisted with the review application on two grounds only. The
Applicants’ case before Court was that the arbitrator
misconstrued the nature of the enquiry in respect of sanction and
inconsistency.
Sanction
[40]
Mr
Makhura submitted that the arbitrator made a material error in
approaching the issue of sanction in that he approached it as
an
appeal and he failed to assess the appropriateness of the sanction
afresh.
[41]
Specific
reference was made to paragraph 37 of the arbitration award where the
arbitrator held as follows: “
In
the circumstances I am satisfied that the Respondent has proven that
it acted appropriately in dismissing the Applicants. I thus
accept
that the Respondent has on a balance of probabilities proven that the
dismissal of the Applicants was substantively fair.
No evidence as
such has been presented before me to interfere with the sanction
imposed.”
[42]
Mr
Makhura argued that the arbitrator approached the sanction as whether
there was evidence to interfere and in his approach, he
shifted the
onus of prove and expected the employees to adduce evidence that
their dismissal was indeed unfair, which is not the
correct approach.
[43]
There
is no merit in the argument. Paragraph 37 of the arbitration award is
a concluding paragraph and should not be read and considered
in
isolation. The arbitrator dealt with the issue of substantive
fairness comprehensively and from paragraph 31 – 37 of the
award he dealt with the appropriateness of the sanction, after he was
satisfied that the employees were indeed guilty of the misconduct
they were dismissed for. It is evident from a holistic reading of the
award that the arbitrator considered and applied the test
whether an
employer could have fairly imposed the sanction of dismissal in the
circumstances because the conduct of the employee
on its own rendered
the continued employment relationship intolerable or because of the
cumulative effect of the misconduct when
weighed together with other
instances of misconduct. The arbitrator considered the gravity of the
misconduct, the impact it had
on the employer and its operations, the
employees’ length of service, the employees’ failure to
take responsibility
for their actions and the breakdown of the trust
relationship. Considering all these factors, the arbitrator concluded
that the
Respondent acted appropriately in dismissing the employees.
In other words, considering all the relevant factors, the arbitrator
concluded that dismissal was an appropriate sanction.
[44]
In my
view this finding is reasonable and is based on the evidence that was
before the arbitrator. I fail to see where the arbitrator
shifted the
onus, as submitted by Mr Makhura.
[45]
Mr
Makhura also argued that the arbitrator did not consider the issue of
remorse when he decided the appropriateness of the sanction.
The
argument is that there is no analysis of the apology tendered by the
employees where they tendered an apology at the first
opportunity.
[46]
Mr
Makhura referred to the transcript of the arbitration proceedings and
specifically the evidence of Letimela
[2]
where he testified that “
We
will never burning the tyre because of we do not know to burning tyre
it is a big mistake (sic).”
[47]
Mr
Makhura submitted that this is an apology and a clear indication that
they would not do it again. I fail to see an apology in
the portion
of the testimony Mr Makhura referred to. At best there is an
acknowledgement that the burning of tyres is a mistake
and they won’t
do it again. There is no apology.
[48]
Apols
in his testimony persisted
[3]
“
Because
I do not think I have done something wrong. I have done nothing
wrong.”
[49]
The
arbitrator found that the employees failed to take responsibility for
their actions, but instead continued to claim that they
burnt tyres
as a means of keeping warm. He also found that it was clear when the
Respondent extinguished the first fire caused
by the burning of
tyres, the Respondent did not want the employees to burn tyres.
Notwithstanding that the employer made this clear,
the employees
continued to burn tyres. Although the employees claimed to be
remorseful, the arbitrator found that they saw no wrong
doing on
their part, persisted with their claim that they wanted to keep warm
and therefore their remorse is not sustainable.
[50]
A
holistic reading of the transcribed record shows that the employees
believed that they did nothing wrong and that they burnt tyres
to
keep warm. They claim that it was a mistake they were not aware of at
the time and they won’t do it again.
[51]
In my
view there is a contradiction as on the one hand the employees claim
that they did nothing wrong and merely wanted to keep
warm and on the
other hand they claim it was a mistake they would not repeat. This
does not give the impression of a genuine apology
or remorse. In
fact, it is not clear what the employees apologised for as they
believed they did nothing wrong. At best they acknowledged
that the
burning of tyres offended the employer. The arbitrator was not
unreasonable when he concluded that the employees’
claim to be
remorseful cannot be sustained because they don’t see any wrong
in their actions and persisted to justify what
they did.
[52]
There
is no merit in the first ground for review.
Inconsistency
[53]
The
Applicants’ case is that the arbitrator failed to apply his
mind to the fact that the Respondent did not dismiss the other
employees who associated themselves with the employees’ conduct
or those who brought the tyres to be burnt. Letimela stated
in the
founding affidavit that “
The
only difference is that we lit the fire and that is what the company
meant by saying that we took the lead.”
The
Applicants’ case is that had the arbitrator considered and
applied his mind to the fact that no other employee was dismissed,
his decision would have been different.
[54]
Mr
Makhura submitted that the only distinguishing factor between the
conduct of Letimela and Apols and the other employees is that
Apols
and Letimela lit and made the fire and this is not a justifiable
differentiation. The Applicants’ case is that the
employer
applied discipline inconsistently and provided no justifiable
explanation for that and the arbitrator’s finding
that the
employer was consistent in its application of discipline is
unreasonable.
[55]
The
arbitrator considered the issue of inconsistency and found that the
case of Letimela and Apols is not similar to the other employees
as
by their own admission, they were the only ones who took part in the
burning of tyres and the other employees were not charged
with the
same charges, but faced charges relating to carrying sticks while
picketing.
[56]
These
findings accord with the testimony of Jaeger.
[57]
On
the issue of inconsistency Jaeger testified that there was no
evidence to implicate any other employee in the act of misconduct
the
employees were dismissed for. He testified that the employees were
dismissed for serious misconduct in that they burnt tyres
in front of
the gates and the employer’s building on three occasions
despite being told to refrain from doing so by Lochmann
and the SAPS.
Riotous behaviour is prohibited in the employer’s disciplinary
code and burning of tyres is riotous behaviour.
[58]
The
Respondent’s case is the mere fact that other employees were
standing around or looking at the Second and Third Respondent,
was
not enough to charge those employees as the employer charged the ones
who started the fire, not the ones who were standing
around the fire.
No evidence was adduced to implicate any other employee and all the
evidence adduced portrayed only the two employees
as playing a
leading role in the burning of tyres. That is the misconduct the
employees were dismissed for.
[59]
In
SA
Commercial Catering and Allied Worker’s Union and others v
Irvin and Johnson Ltd
[4]
the
LAC held that:
“
In
my view too great an emphasis is quite frequently sought to be placed
on the 'principle' of disciplinary consistency, also called
the
'parity principle'. There is really no separate 'principle'
involved. Consistency is simply an element of disciplinary
fairness.
Every employee must be measured by the same standards (
Reckitt
and Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union and
others
(1991)
12 ILJ 806 (LAC)
at
813H-I). Discipline must not be capricious.”
[60]
In
casu
the
Respondent provided an explanation for disciplining and dismissing
the employees. There was no allegation of capricious conduct
made.
There is no merit in the Applicants’ argument that the employer
applied discipline inconsistently and provided no justifiable
explanation for that. The evidence shows that an explanation was
indeed tendered.
[61]
The
arbitrator’s finding that the employer was consistent in its
application of discipline is reasonable and there is no merit
in this
ground for review.
The test on review
[62]
The
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable has been rehashed innumerable times
since
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others;
[5]
as ‘whether the conclusion reached by the arbitrator was so
unreasonable that no other arbitrator could have come to the
same
conclusion.’ The Constitutional Court very clearly held that
the arbitrator's conclusion must fall within a range of
decisions
that a reasonable decision maker could make.
[63]
Having
considered the evidence adduced at the arbitration proceedings, the
findings made by the arbitrator and the grounds for review
as raised
by the Applicant, I cannot find that the arbitrator ignored material
facts, committed a material error or that he ignored
evidence and
made findings not supported by the evidence or that he misconceived
the nature of the enquiry.
[64]
I am
not convinced that the arbitrator should have come to a different
conclusion based on the evidence that was before him. The
arbitrator's findings and conclusion fall within a range of decisions
that a reasonable decision maker could make.
[65]
The
award and the findings contained therein are reasonable and are not
to be interfered with on review.
Costs
[66]
In
Wallis
v
Thorpe and another
[6]
the
Court held:
“
In
relation to costs, this court has a discretion in terms of s 162 to
make an order for costs according to the requirements of
the law and
fairness. The ordinary rule, ie that costs follow the result, is a
factor to be taken into account, but it is not a
determinative
factor…….”
[67]
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
others
[7]
it was emphasized that:
“……
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.”
[68]
Mr
Makhura argued that there is an ongoing relationship between the
parties, but he ultimately left the issue of costs in the hands
of
the Court.
[69]
Mr
Schmidt for the Respondent argued that the application should be
dismissed with costs. I can see no reason to disagree.
[70]
I
accept that there is an ongoing relationship between SACTWU and the
Respondent. However, this matter will not affect the collective
bargaining relationship that is ongoing between the parties.
[71]
The
Respondent was compelled to engage in litigation and oppose an
application that had no merit from the onset. The Applicants
came to
Court without merit and with no consideration of the prospects of
success, causing the Respondent to incur legal costs
and the
Respondent is entitled to costs.
[72]
A
cost order is a method of ensuring that decisions to litigate in this
Court are taken with due consideration of the law and the
prospects
of success. A review application is not the next automatic step after
arbitration and the practice to review arbitration
awards where the
decision is reasonable, should be discouraged.
[73]
In
the premises I make the following order:
Order
1.
The
application for review is dismissed with costs.
______________
Connie Prinsloo
Judge
of the Labour Court
Appearances
Applicants:
Mr Makhura of Cheadle Thompson & Haysom Attorneys
Third
Respondent:
Advocate M J Schmidt
Instructed
by: H
B L Klopper Attorneys
[1]
Act
66 of 1995.
[2]
Page
289 line 8 of the transcribed record.
[3]
Page
260 lines 23- 24 of the transcribed record.
[4]
(1999)
20 ILJ 23-2 (LAC).
[5]
(2007)
28 ILJ 2405 (CC) at para 110.
[6]
[2010]
31 ILJ 1254 (LC)
[7]
2012
33 ILJ 2117 (LC).