AMCU obo Sibiya and Others v Shanduka Coal (Pty) Ltd (JS649/13) [2017] ZALCJHB 134 (25 April 2017)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 134
|

|

AMCU obo Sibiya and Others v Shanduka Coal (Pty) Ltd (JS649/13) [2017] ZALCJHB 134 (25 April 2017)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS649/13
In
the matter between:
AMCU
obo JOHN SIBIYA AND 151 OTHERS
Applicant
And
SHANDUKA
COAL (PTY) LTD, GRASPAN COLLIERY
Respondent
Heard:
8; 9; 10; 11; 12; 15; 16; 17; 18 & 19 February 2016
Written Heads of
Argument filed on 14 March 2016;
4 April 2016 and 11
April 2016
Delivered:
25 April 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
[1]
The
applicant, AMCU, acting on behalf of its members (the Employees)
referred a dispute to this Court in terms of the provisions
of
sections 186(1)(d) and 191(5)(b) of the Labour Relations Act (the
LRA).
[1]
The reliance on these
provisions is curious in that it was common cause that the Employees
were dismissed for alleged participation
in an unprotected strike and
violent conduct. No offer was made by the respondent at any stage to
re-employ any other employees
dismissed as a consequence of the said
allegations, and those that were reinstated had successfully appealed
against their initial
dismissal. The dispute initially involved 152
former employees. When it came before this Court for trial, the
number had been reduced
to 60 in accordance with the applicants’
amended statement of claim.
[2]
The
Employees contend that their dismissal by the respondent on
allegations that they had embarked on an unprotected strike action

was both substantively and procedurally unfair. They seek
retrospective reinstatement, or in the alternative, just and
equitable
compensation. The respondent opposed the claim. It is
further common cause that a similar matter emanating from the same
set of
facts was referred to this Court by the National Union of
Mineworkers acting on behalf of its members under case number
JS839/13.
Background
[3]
The
respondent carries out various mining operations in Mpumalanga
Province. The Employees were previously employed at the respondent’s

Shanduka Coal (Pty) Ltd Mine (the Mine) until 20 March 2013 when they
were dismissed.
[4]
The
majority of the Employees involved in this matter were employed in
the opencast mining section of the Mine in various capacities,
the
remainder of the Employees were employed in the Eskom Plant. The
respondent operates on a shift system with the opencast mining

operations being conducted in two shifts, viz, shift A and shift B.
One shift reported at 07h11, the day shift and one shift that

reported at 16h30, followed by the night shift.
[5]
The events
preceding the dismissals, to the extent that they are common cause,
are summarised as:
5.1
On 7 March
2013 several employees were instructed to be transported on the back
of the respondent’s personnel carriers to
the working sites.
They had raised concerns surrounding the safety of these carriers.
The dispute necessitated the involvement
of officials from the Mine
Health and Safety Inspectorate (the Inspectorate).
5.2
As a result
of the above incident, several employees were suspended from duty on
10 March 2013 flowing from a refusal to be transported
in those
carriers. Those suspensions were however uplifted on 12 March 2013,
following an agreement between the parties,
which had also addressed
other outstanding contentious issues pertaining to production targets
and bonuses. In terms of the agreement,
the use of the carriers was
suspended pending investigations by the Inspectorate.
5.3
Production
bonuses are paid to employees on the 15
th
of every month upon the achievement of certain set targets. Payments
in this regard ranged between R80.00 and R1,400.00. The Employees’

contention is that flowing from the above agreement, they had
expected payment of production bonuses on 15 March 2013, but this
was
not to be so. The respondent’s position was that a production
bonuses could not be paid as the performance targets had
been missed
by a significant margin, and that the Employees had been so advised.
5.4
The
incident leading to the dismissal took place from 18 March 2013,
when the Employees on shift B voiced their dissatisfaction
about the
non-payment of bonuses. It was common cause that they had only been
paid the safety bonus component.
5.5
The
Employees on shift B voiced their concerns with the Mine overseer, Mr
Johan van Eeden (Van Eeden), on the morning of 18 March 2013

and requested that he arrange a meeting with the General Manager, Mr
Mark Cunney (Cunney), during lunch at 12h00 to discuss the
matter.
5.6
The
Employees were requested by the Mining Manager (Jordaan) and the
Human Resources Manager, Joubert as per Cunney’s request
to
send a delegation of employees to address their concerns with him.
The Employees however refused to nominate and send a delegation,
and
insisted that they be met and addressed as a group. The meeting did
not occur at 12h00. It was postponed to 14h00 and then
to 16h30.
Eventually, it did not take place.
5.7
The
Employees on shift B congregated at or near the management office
from about 16h30 on 18 March 2013. They were later joined
by
Employees on shift A as they arrived on site to commence their shift.
shift A did not commence work in solidarity with their
colleagues.
5.8
At about
17h30, the group of employees had moved to the respondent’s
Hard Park area, where the respondent keeps and stores
about R1.6
billion worth of mobile equipment including heavy duty vehicles,
trucks, and tippers. The group of employees was then
joined by other
Plant employees from different parts of the Mine. The group was
predominantly composed of the opencast mining shifts.
The group, of
about 240 employees, remained in the Hard Park area overnight, having
also been joined by those on shift A, that
had knocked off at 02h30.
5.9
During the
period that the Employees stayed in the Hard Park area, they
maintained their demand that Cunney should address them.
It is common
cause that the Employees were not union led and were acting on their
own. At that stage the NUM was the recognised
majority trade union.
AMCU, UASA and Solidarity also had members at the respondent. AMCU
however was not formally recognised.
5.10
NUM was
contacted by the respondent for assistance in resolving the
situation, however they were unsuccessful in achieving this.
The
respondent contended that AMCU, even though not officially
recognised, was aware of the situation,
albeit
not formally so advised at that stage.
5.11
Communication
was established with the Employees gathered at the Hard Park area
through a two-way radio system between the respondent’s
offices
and radios installed in the vehicles. Mr Jan Tlou (Tlou), an AMCU
member spoke on behalf of the Employees during that communication.

After protracted negotiations over the two-way radio, it was agreed
that the Employees would put their demands in writing and that
Cunney
would go to the Hard Park area to accept them.
5.12
The South
African Police Service (SAPS), comprising of members from the local
police station as well as members from the Public
Order Policing Unit
(POP) had been called to the site and were present for the most of
19 March 2013. Private security
personnel employed by the
Mine was also present.
5.13
Cunney was
then accompanied by both SAPS’ members and private security
when he went to the Hard Park area to receive the demands.
The
Employees sent a delegation of employees, comprising of both AMCU and
NUM members, to meet with Cunney, and to hand over their
handwritten
demands.
5.14
After
handing over the demands the Employees were requested to disperse,
and to return to work from 05h30 in the morning of 20 March 2013.

The Employees however demanded that Cunney immediately resolve their
concerns. It was common cause that some of the issues raised
in the
demands were a subject matter of a dispute pending before the CCMA.
5.15
In the
light of the Employees’ insistence that their demands be
resolved immediately, Cunney left the Hard Park area in the
control
of Captain Jack Scholtz (Scholtz). The delegation was informed by
Captain Scholtz that it had 30 minutes within which to
address the
Employees and advise them to disperse failing which they would be
forcibly removed. The period was subsequently reduced
to 15 minutes.
5.16
An
altercation thereafter ensued between the Employees and members of
the SAPS when the deadline was not met. Tear gas, live ammunition
and
rubber bullets were fired at the Employees. A number of Employees
were arrested as a consequence of the incident.
5.17
The
respondent, upon receipt of a report back from Captain Scholtz
decided to close the mine and ceased production. The unrest
that had
started at the mine site spiralled into the local community during
the night of 19 March 2013. Local roads were blockaded
and private
vehicles linked to the Mine’s security were torched. Some of
the Employees reported for duty in the morning of
20 March 2013 but
were not permitted to enter the Mine premises.
5.18
A
management decision had further been taken during the night of
19 March
2013
to summarily dismiss the Employees as a result of the incidents since
18 March 2013. The notice of dismissal issued to the
Employees dated
20 March 2013 and posted at the Mine entrances read as follows:
“
3.
This notice serves to confirm that you have been dismissed for
participation in unprotected
industrial action and subsequent acts of
violence; your dismissal is effective as from Wednesday, 20 March
2013.”
[2]
5.19
Other than
the notices being placed at entrances, correspondence was also sent
to unions advising them of the decision to dismiss.
The Employees
were afforded a right to appeal. AMCU assisted them in this regard by
drafting a standard document outlining the
grounds of appeal.
5.20
The
Employees at the appeal proceedings requested to be represented by
their shop stewards, Tlou or Mr John Sibiya (Sibiya). However,
these
were not recognized shop stewards and the requests were refused.
Management had further declined the request on the basis
that both
Tlou and Sibiya had also been summarily dismissed with the remainder
of the group, and thus were not eligible to represent
others.
5.21
The
respondent’s approach at the hearings was to categorise
employees into three distinct groups. The first group of employees

was reinstated because there was no evidence that they had
participated in the events of 18 to 19 March 2013. The second group

was issued with written warnings where the respondent was unable to
prove their participation in the events. The third group had
their
dismissals upheld as their participation in the events could be
established.
5.22
The
employees falling in the third group were issued with notices
confirming their dismissals in the following terms:
“
This serves to
advise you, following your appeal process which was concluded on
[date], that the decision of dismissal has been
upheld due to your
participation in unprotected industrial action and subsequent acts of
violence.”
[3]
[6]
AMCU had
then referred an unfair dismissal dispute to the CCMA. Following
unsuccessful conciliation, the CCMA declined to arbitrate
the matter
on account of lack of jurisdiction because the dismissals related to
the Employees’ participation in strike action.
The matter was
subsequently referred to this Court for adjudication.
Issues
for determination and the evidence
[7]
This Court
is tasked with deciding whether the dismissals of the Employees were
substantively and procedurally unfair, and if not,
to determine the
appropriate relief. Several witnesses were called upon to testify on
both sides. Video material in respect of
the events that took place
at the Hard Park area was also presented in Court.
[8]
Cunney’s
evidence regarding the events leading to the dismissals was as
follows:
8.1
During
October 2012, there was a strike in the form of a go-slow on the Mine
related to the payment of production bonuses. The strike
ended after
the respondent had obtained an interdict from this Court. The issue
of production bonus was encompassed in the ongoing
wage negotiations
and presentations were made on how the bonus scheme was to be
applied. The presentations were circulated, and
the Employees were
also briefed on the scheme by their managers.
8.2
During the
meeting on 12 March 2013 with the delegation about the safety
concerns surrounding the personnel carriers, the issue
of production
bonus was again raised by Employees, and Cunney advised them that the
payment would only be made in terms of the
bonus scheme, and only if
production targets were met. He denied under cross examination that
the Employees were not, during the
month of February 2013, given an
update on production targets. He contended that they were made aware
that they had not met the
production targets.
8.3
Cunney
further denied that the management had left early at 13h00 on Friday
15 March 2013 to avoid meeting with the Employees from
the next shift
who would have spread the word about the non-payment of the bonus. He
testified that the informal policy was that
management usually left
early at 15h00 on Fridays, but that the Mine operations continued.
8.4
On the
morning of 18 March 2013, Cunney was informed that Employees wanted a
meeting with him relating to unhappiness surrounding
non-payment of
production bonuses. He denied that the Employees could have expected
to receive both the production and the safety
bonus on 15 March 2013
as it had been made very clear to them that they would only get the
safety bonus portion.
8.5
Cunney
could, however, not meet with the Employees during their lunch break
between 12h00 and 12h30 as he had a pre-arranged meeting
with NUM at
another mine. He also could not meet with them at the end of the
shift as he had to leave early due to family commitments.
8.6
Cunney
testified that from the moment that the Employees raised their
concerns and sought to meet him, he had requested that a delegation

be sent to meet him. This according to him was the standard
procedure. He had also informed the Employees that he was willing to

return to the Mine after his engagements should the Employees agree
to nominate a delegation. He testified that it was not possible
to
negotiate with the large group of Employees hence the need for the
Employees to send a delegation.
8.7
Cunney
further denied under cross examination that the Employees could not
have sent a delegation on the basis of fearing that they
could be
victimised. He contended that it was standard procedure to have a
delegation to meet with management as the Employees
had done so in
the previous week when other matters like the issue of the safety
carriers were raised by them.
8.8
After he
left the premises, Cunney was in contact with the Mine manager during
the night of 18 March 2013, and was advised that
the Employees had
moved to the Hard Park area. He was concerned with these turn of
events as the equipment in the Hard Park area
was valued at about
R1.6 billion, and loss of or damage to the fleet would have resulted
in closure of the mine for a minimum of
6 months.
8.9
On 19 March
2013, NUM’s officials became involved, and went to the Hard
Park area to speak to the Employees. On their return,
they advised
Cunney that the Employees refused to listen to them, and that the
strike had nothing to do with the union and subsequently
left. Cunney
denied that only NUM was contacted about the situation at the Mine
and testified that even though AMCU was not recognised,
its official,
Mr. Nxumalo was informed of the situation but had failed to respond.
8.10
It was
pointed out to Cunney that the first formal correspondence sent to
AMCU by the respondent was on the 20
th
and 21
st
of March 2013, and that it could therefore not have engaged with AMCU
earlier as alleged. Cunney nevertheless maintained that the

respondent had engaged with the recognised union.
8.11
Cunney
testified that he had issued an ultimatum to the Employees during
discussions over the two-way radio and told them to disperse.
He had
referred to the transcripts of that conversation which formed part of
the trial bundle
[4]
, and in
particular, his conversation with Tlou, wherein he had informed him
that the Employees were are not authorised to be in
the area at that
time as their shift has ended, and implored them to leave and to
return the next morning on 20 March 2013.
He had informed
Tlou that the Employees were also trespassing on Mine property and
could face disciplinary action that may lead
to their dismissal if
they did not vacate the property and return to their normal shift the
next day.
[5]
8.12
At about
15h30 on 19 March 2013, and following an agreement reached between
Captain Scholtz of the SAPS and the Employees as represented
by a
delegation, Cunney agreed to meet the delegation at the Hard Park
area to accept a list of their demands. The delegation comprised
of
five AMCU members and three NUM members. At the time, and out of
concern for his safety, he was provided with a bullet proof
vest and
escorted by mine security as well as SAPS members to meet the
delegation. He was presented with a list of handwritten
demands
[6]
which read as follows:
“
1.
Housing Allowance R4500-00 (compared to optimum).
2.
Basic salary adjustment (R2000-00 on top of current basic).
3.
Bonus.
4.
Referring to management brief pertaining bonus payment as it was
agreed and signed
that it will be paid as normal.
5.
Facilitation on bonus by selected task team from employees.
6.
Bonus should be standardised, irrespective of our categories.’
N.B. We as employees
hereby wish to give notice that we will kindly wait for your response
on our current position.” (Sic)
8.13
Having
accepted the list of demands, Cunney reiterated to the delegation
that Employees should return to work the following morning.
To make
his point, he further wrote on the list of demands handed to him
that:
“
employees must
desist from their illegal strike, they must leave site peacefully and
they must return to their normal shifts commencing
05h30 on Wednesday
20th March 2013.”
8.14
Despite
agreement with Captain Scholtz that the Employees would leave the
site after the demands were accepted, they nevertheless
through their
delegation changed their stance, and insisted that Cunney must
resolve the demands immediately. Cunney had explained
that he could
not respond to the demands as they formed part of the wage
negotiations that were the subject of a dispute before
the CCMA.
8.15
The
Employees accordingly refused to leave the site until their demands
were met. Subsequent attempts made to resolve the matter
and to
ensure that the Employees left the site proved unsuccessful, and
again Cunney issued a written ultimatum to the delegation.
Video
material presented showed that indeed the delegation had accepted the
written ultimatum, read it and returned it to Cunney
and refused to
take it to the Employees.
8.16
Cunney left
the Hard Park site as the situation turned volatile and tense. A
management meeting and debriefing later occurred at
the central
office of Shanduka Coal (Pty) Ltd. At a later stage, Captain Scholtz
also briefed management about subsequent events
that had occurred
after the Hard Park area was handed over to him and his team.
8.17
Based on
the events that had had unfolded at the Hard Park area, a decision
was then taken by management to dismiss the Employees
en
masse
.
No disciplinary hearings were held as it was believed that it was
within management’s rights to dismiss due to exceptional

circumstances that prevailed at the time. The decision was also taken
irrespective of the ultimatum to return to work on 20 March 013,

because management held the view that it had no other option after
the events that took place subsequent to Cunney leaving the
Hard Park
area.
8.18
Cunney’s
testimony was that the Employee’s refusal to leave the Hard
Park area as agreed had a big impact on the decision
to dismiss them,
because they had broken their promise even though management had
negotiated with them in good faith.
8.19
The
dismissal notices were posted on the Mine gates on 20 March 2013,
and correspondence to this effect was also sent
to the unions and
posted to the Employees. The respondent’s stance was that
everyone in the Hard Park was dismissed as they
were all presumed to
be involved in the violence.
[9]
Captain
Scholtz is a member of the SAPS’s Public Order Policing (POP)
unit with a total of 28 years of service in the SAPS.
His testimony
is summarised as follows:
9.1
He was made
aware of the situation unfolding at the Mine on 18 March
2013
and could only attend to it on 19 March 2013 where he had found a
commander from the local police station busy with negotiations
with
the Employees. Upon arrival, he was briefed by management. The POP
unit was responsible for making available the video evidence

presented at the trial, and was recorded by Warrant Officer
Hlatswayo. Not every event that took place was however captured on

video due to the limited battery life of the recorder.
9.2
Further
information received by the SAPS according to Captain Scholtz was
that the Employees gathered at the site were in possession
of fire
arms, which posed a concern for safety. However, no fire arms were
ultimately found on the Employees that were searched
and/or arrested.
9.3
Captain
Scholtz spoke to the Employees’ delegation and it became clear
that they would not leave the Hard Park area until
Cunney came down
to speak to them. An agreement was reached that Cunney would come to
the Hard Park to meet the delegation.
9.4
Initially,
the group that Captain Scholtz negotiated with agreed to disperse
after they had met Cunney. However, the Employees changed
their
stance and refused to do so. Captain Scholtz then issued an ultimatum
through the delegation that the Employees should disperse
peacefully
failing which they would be forcefully removed, including by use of
live ammunition.
9.5
The
delegation was given 15 minutes to address the group of employees
during which period Captain Scholtz briefed the SAPS members.
It was
put to Captain Scholtz under cross-examination that before the
15-minutes period was up, teargas was fired at the Employees
by
private security members who had surrounded the group of Employees,
and that the Employees had in turn used the front loaders
to put sand
on it to neutralise it. He maintained that members of the private
security he had seen after arriving had remained
with him and his men
throughout.
9.6
Other
Employees then started moving the heavy-duty vehicles on site
including front loaders/tippers in a line form towards members
of the
SAPS, in preparation of a what Captain Scholtz considered to be a
‘fight’, and started throwing stones at members
of the
SAPS.
9.7
The
Employees’ defence to their actions was that they had merely
utilised the equipment to defend themselves against the effects
of
teargas as the intention was to scoop up sand and pour it on
canisters as they were being shot at. Captain Scholtz’s view

however was that the Employees used the equipment to advance towards
members of SAPS.
9.8
Captain
Scholtz testified that he briefed the SAPS members to use whatever
means necessary, to stop the machines, search and arrest
the drivers
and push the Employees out of the Mine premises. Teargas canisters
were also fired into the moving equipment, and this
had deterred the
Employees from advancing any further.
9.9
After
running battles, the Employees were ultimately pushed out of the Mine
area and onto the main road outside the Mine. The altercation
was
over within about 45 minutes of the SAPS taking action. The whole
incident according to Captain Scholtz had been very violent,
as a
result of which he had to send his members for treatment as they were
traumatised. A total of 9 Employees were arrested. Prosecution
was
however not pursued as the SAPS’ members were unable to
identify the Employees other than by their names. Captain Scholtz

confirmed that he had briefed management about the events that took
place, but contended that he was not involved in the discussions

relating to whether Employees should be dismissed.
[10]
Tlou was
employed from 5 May 2008 and was a member and secretary of the AMCU
branch at the workplace. He was part of the opencast
B shift at the
time of his dismissal. The nub of his testimony on behalf of the
Employees was as follows:
10.1
Employees
had expected to be paid the production and safety bonus for the month
of February 2013. They had however not been updated
about the
progress in production for the month of February 2013.
10.2
The first
time that he and others were informed that the target was not
achieved for the month was on 11 March 2013, and it was
only then
that they were made aware that they would not be receiving the
production bonus for the month of February. Tlou was also
one of the
Employees who were suspended for refusing to use the personnel
carriers.
10.3
On 18 March
2013, the Employees had requested a meeting with Cunney. Tlou however
was not aware that Cunney had requested a delegation
of Employees to
be sent to him. He contended that even if he was aware of such a
request, he would not have agreed to be part of
any delegation out of
fear that he might be victimised in view of his previous suspension.
10.4
He
nevertheless conceded under cross-examination that he was not
suspended for being part of the delegation but for his refusal
to
comply with an instruction. He insisted however that his fellow
employees were also too afraid to be part of the delegation.
This was
despite it being common cause that a week prior to the incident,
management had met a delegation of Employees to discuss
similar
issues.
10.5
Tlou
confirmed that Employees initially gathered at management offices and
then moved to the Hard Park area. He contended that Employees
were
not on strike, but that they were merely waiting for Cunney to come
and address them on the issue of non-payment of bonuses.
He could not
however dispute it when it was put to him that the Employees were
aware that the respondent’s position was that
they were on an
illegal strike and that they could face dismissal.
10.6
Tlou
further confirmed that he was part of the delegation that represented
the Employees in the Hard Park area, and had also been
the person who
represented them in the two-way radio conversation with Cunney whilst
they were in the area.
10.7
He conceded
that the Employees had not contacted AMCU during the incident, and
his contention was that the Employees did not see
the need to involve
the union at that time. He further confirmed that when Cunney came to
the Hard Park area to accept the list
of demands, an agreement was
reached that they would return to work on 20 March 2013,
and that Cunney had advised them
that he would not be able to respond
immediately to the demands as he needed to meet with other managers.
He confirmed that Cunney
had also informed them that some of the
demands were subject to CCMA proceedings, and needed to be addressed
at those proceedings.
10.8
Tlou
complained that the 15-minute period given to the delegation by
Captain Scholtz to address Employees was insufficient. He conceded

that the delegation did not however request more time.
10.9
He could
not dispute it when it was put to him that there had been numerous
requests for the Employees to leave the site; that they
were warned
that they were engaged in an illegal strike; and had refused to heed
the warnings. Tlou further conceded that the delegation
had informed
Cunney that the Employees would not leave the site until their
demands were addressed.
10.10
Tlou
conceded that one of the delegates, Mr Joseph Motswene had at the
time that the demands were handed over, told Cunney that:
“
We
are not leaving, if they want to kill us they can kill us”
[7]
as was captured on video material viewed in Court.
10.11
Tlou
testified that while giving feedback to the Employees, they noticed
security personnel running around the safety beams and
coming around
the trucks. This caused panic amongst Employees, causing them to
climb into trucks or hide behind the trucks as shots
and teargas were
fired at them.
10.12
Employees
who were operators had then started the machines and used them to
extinguish the tear gas canisters and in order to stop
the SAPS
coming closer, and also to enable others to flee from the site.
10.13
Tlou
further denied that the Employees were armed or that they threw
stones at members of SAPS. He blamed the SAPS and private security

for initiating the altercation. He testified that the SAPS members
and security were standing between the Employees and the entrance
of
the Hard Park area. The Employees could thus not get out especially
after they were shot at. This had necessitated that the
Employees
flee the site by crossing over the trenches at the other side of the
area and towards the main road.
10.14
Tlou had
not returned to work on 20 March 2013. He was however informed on
that day by a fellow employee that he was included in
the list of
dismissed employees which was posted at the mine gates.
[11]
Mr Kingsly
Jonkers’ (Jonkers) testimony on behalf of the Employees was
that he was also part of the delegation of employees
in the Hard Park
area. After the delegation had handed over their written demands to
Cunney, and further after Captain Scholtz
had given them 15 minutes
to give feedback and disperse, the period given had hardly expired
when members of SAPS surround them,
fired tear gas and shot at them,
causing them to flee the area.
[12]
Jonkers
testified that he did not see any of the trucks moving in the Hard
Park area and that there was no violence. He denied having

participated in an unlawful strike, climbing into any truck, throwing
stones or participated in any violence. It was further put
to him
that during his appeal hearing, his testimony was that he had been
forced to join the strikers. He nevertheless refuted
that version,
contending that he had joined voluntarily and also waited for Cunney.
Upon his arrival at the Mine on 20 March 2013
he had found it closed
and saw his name on the list of dismissed employees as displayed at
the entrance.
[13]
Mr Lindani
Khumalo (Khumalo), was employed as an operator in the Eskom Plant of
the respondent’s operations at the time of
his dismissal.
Having reported for the night shift on 18 March 2013, he went to the
Hard Park area to fetch his machine and found
the other Employees who
were waiting for Cunney in the area and he joined them.
[14]
Khumalo
testified that he was amongst the Employees who were arrested during
the altercation in the Hard Park area. He denied having
thrown stones
or having driven one of the trucks. The criminal case against them
was withdrawn due to lack of evidence.
[15]
Mr John
Sibiya (Sibiya) was employed as an operator on the opencast B shift
on 18 March 2013. He was also an AMCU shop
steward and part
of the employee delegation in the Hard Park area. Like other
Employees, he had expected the payment of the production
bonus and
only became aware on 11 March 2013 that payments would not
be made. There was an expectation that the bonus
would be paid
because Cunney had undertaken to discuss it with his superiors. Under
cross examination however, he conceded that
Cunney had advised the
delegation that the production bonus would not be paid as targets had
not been met.
[16]
Sibiya
testified that when Captain Scholtz gave the delegation time to
address the Employees, he had an exchange of words with him
and told
him that 15
minutes
was not enough. As they went back to the Employees to give feedback,
members of the SAPS and private security started to
surround the
Employees and fired tear gas at them, causing them to run away in all
directions.
[17]
He
confirmed that he went into one of the trucks, but his only motive
was to “park it”. He denied that he saw any employee

driving any of the machines as he was busy speaking to the members of
SAPS. He further denied that the Employees were violent or
had
participated in a strike.
[18]
Mr Amon
Nxumalo (Nxumalo) was an organiser of AMCU in 2013 and was assigned
to the Shanduka Mines. He testified that he had engaged
with the
respondent in the past on different matters as an organiser including
at the level of the CCMA. He had dealt with Joubert
and Stanley as
well as another member of HR, Mr Sigago, and had communicated
directly with them either telephonically or in writing
previously.
[19]
Nxumalo
testified that in 2013 AMCU had been making meaningful growth in
terms of recruiting members at Shanduka but was not recognised.
It
only enjoyed limited organisational rights in terms of sections 12,
13, 14 and 15 of the LRA.
[20]
Due to
AMCU’s growth there was pressure for recognition but the
respondent had not made things easy for AMCU because they
did not
like it. The respondent appeared to have favoured NUM because of the
recognition agreement between them, including granting
NUM full-time
shop stewards’ rights.
[21]
Nxumalo
testified that he had not been contacted by Joubert or anyone else
from the respondent on 18 or 19 March 2013 about the
situation at the
Mine. He testified further that he had not called Joubert either as
he was not aware of the situation until it
was publicized in the
newspapers.
Evaluation
(i)
Was
there a strike on 18
th
and 19
th
March 2013?
[22]
Central to
the determination of this dispute is whether the Employees had
embarked on an unprotected strike action.
[8]
Their main contention as further advanced in their written heads of
argument was that on 18 and 19 March 2013, they never
intended
to embark on unprotected strike action, and that they were merely
waiting for Cunney to come and address them on the issue
of unpaid
production bonuses. Furthermore, as per the pre-trial minute,
[9]
their contention was that the only time that they had received any
indication that their action was unprotected was when they were

handed back their demands by Cunney (at the Hard Park area).
[23]
It is my
view that from the events as summarised above, the actions of the
Employees between the afternoon of 18 and 19 March 2013
undoubtedly
constitute a strike. My conclusions in this regard are fortified by
the following:
23.1
The events
preceding 18 March 2013 reveal that on 11 March 2013, and during
discussions surrounding the safety of the carriers,
the Employees
were advised that no production bonus payments would be made.
23.2
On 12 March
2013, the issue of the production bonus came up again during
discussions surrounding the suspension of other employees
emanating
from the concerns in regard to the safety of the carriers. In terms
of an agreement
[10]
reached
between the parties at the time, it was recorded that “
Production
targets will be communicated to all employees every Thursday after
the weekly survey report has been issued”.
23.3
The
Employees’ contention that they were not briefed on production
targets is without merit, in that as at 11 March 2013,
and on their
own version they knew that payments would not be made and that could
only have implied that targets were not met.
Their contention
therefore that their understanding from that agreement was that
Cunney would have further discussions over the
matter with Van den
Berg, and that the bonuses would thereafter be paid is equally
disingenuous.
23.4
Despite
their knowledge that no payments would be made, as at 15 March 2013
(Friday), they were still expecting payment
and could not secure a
meeting with management. On Monday of 18 March 2013, the
Employees sought to confront Cunney about
the non-payment of the
bonus as early as in the daily morning meeting.
23.5
It is
common cause that the Employees did not secure a meeting with Cunney
on 18 March 2018. I have no reason to doubt that Cunney,
upon hearing
that the Employees wanted to meet him, had requested that they sent a
delegation rather than being met as a group.
This, in my view, made
sense as a meeting with a large group of employees, and who were
later in the afternoon joined by the afternoon
shift, would not have
been fruitful in any event.
23.6
The
Employees’ contention that they were scared that they would be
victimised if they formed part of any delegation to meet
Cunney is
equally without merit. They had previously agreed to nominate a
delegation regarding other issues discussed with management

previously especially on 12 March 2014. There was no evidence to
suggest that anyone of them had been victimised as they had alleged,

and Tlou’s suspension in regard to the events relating to the
safety of carriers had more to do with his conduct than being
part of
a delegation. The Employees’ contention therefore that they
were scared that they may be victimised if they formed
part of a
delegation as requested by Cunney is mere red-herring, and their
refusal in that regard was clearly unreasonable.
23.7
What is
also significant is that on 18 March 2013, the Employees on the
morning shift did not leave the premises after their shift
as
expected, with their contention being that they were waiting for
Cunney. They were then joined by the afternoon shift employees
and
the Employees had then moved to the Hard Park area at about 17h00,
where they were also joined by their plant colleagues.
23.8
It is
apparent from these events that those employees that had gathered at
the Hard Park area had not reported for their normal
duties or had
not left after their shifts, and had clearly plotted on that course
of action with a view of conveying and persisting
with their demands.
There can therefore no basis not to conclude that their actions were
intentional nor planned.
23.9
There can
further be no doubt that the Employees’ actions were in
pursuance of demands which they wanted management to address.
Their
actions fell squarely within the definition of a strike. A demand to
meet with Cunney over non-payment of bonuses had precipitated
other
demands as demonstrated by the list handed to Cunney at the Hard Park
area.
They
had refused to report for their normal duties as instructed by Cunney
over the two-way communication with Tlou. They had occupied
the Hard
Park area and in the process, seized control of the respondent’s
machinery, thus interrupting and/or retarding its
normal operations.
23.10
The
Employees were advised that their actions were unlawful, but they had
nevertheless persisted, even after initially making undertakings
to
Captain Scholtz that they would disperse after handing in their
demands.
23.11
There
is further no merit in the contention that the Employees had acted
reasonably or followed proper procedures in trying to meet
with
Cunney. It is acknowledged that Cunney, Van Eeden, Jordaan and
Joubert had created an expectation that the Employees might
be met to
address the issue of the bonus on 18 March 2013, but as at the
evening of that day, it was apparent that any meeting
would not take
place. Rather than going home or reporting for their shifts, they had
persisted with their unlawful conduct.
23.12
There
is further no merit in the contention that the Employees could only
have realized that their actions were unprotected on 19 March 2013

after they had handed over their demands. The unprotected nature of a
strike is not only determined by when Employees were informed
that
their actions were unprotected, but also by the fact that they had
not, in pursuing their demands, complied with procedural
requirements
in the LRA.
23.13
If
the Employees were indeed reasonable in their actions, nothing
prevented them from first, nominating a delegation as requested
by
Cunney, and second, to wait until the next day to meet Cunney. The
fact that an expectation was created that Cunney might meet
them on
18
March
2013
did not in my view justify the Employees’ subsequent conduct of
occupying the Hard Park area,
[11]
nor can it be said that the failure of Cunney to meet them in effect
provoked the strike. The excuse that the Employees were not
on strike
and were simply waiting for Cunney to address them is therefore
contrived and without merit, and cannot be justification
for their
conduct.
23.14
The
Employees were hell-bent from the evening of 18 March 2013
to pursue their demands. They were not deterred from their
course of
action despite being repeatedly informed that the bonus would not be
paid as targets were not met, and that the issues
were in any event,
before the CCMA for determination. They were prepared in pursuance of
their demands, to disrupt the normal operations
of the respondent. As
Mr
Joseph
Motswene, one of the delegates had unequivocally put it to Cunney and
others, the Employees were not deterred, and were not
going to leave
the site even if they were killed.
(ii)
Where
the dismissals substantively fair?
[24]
The right
to strike is constitutionally guaranteed in section 23(2)(c) of the
Constitution of the Republic.
[12]
Section 64(1) of the LRA further reinforces that right, with the
proviso that certain processes and procedures contemplated in

subsections 1 (a) and (b) are followed to ensure that the strike
action embarked upon is protected. Section 65 equally places
limitations on the right to strike.
[13]
[25]
In
Performing
Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union and Others,
[14]
it was held that an illegal strike constitutes serious and
unacceptable misconduct by workers. The consequences of embarking on

an unprotected strike action may be dire as explained by the
Constitutional Court in
National
Lotteries Board
[15]
as follows:
“
Employees have a
constitutional right to strike. The [Labour Relations] Act regulates
the manner in which that right can be exercised.
There is no
obligation on employees to use the regulated dispute-resolution
procedures under the Act, but there are consequences
if they do not.
If they start by using these regulated procedures, but then abandon
them and simply stop working, they are not
committing a crime. They
are, in that sense, still acting “lawfully”. But that
“lawfulness” does not afford
them the benefits of a
protected strike under the Act. By failing to adhere to the Act the
strike becomes unprotected, and an employer
will be in a position to
take disciplinary steps against them for not coming to work. . .
”
[16]
[26]
Flowing
from the conclusions reached elsewhere in this judgment, it is
apparent that the strike action embarked upon by the Employees
was
unprotected. The legal principles applicable in dismissals emanating
from unprotected strike action are largely trite and further
codified
in the LRA
[17]
and Schedule 8:
Code of Good Practice: Dismissal. Item 6(1) of the Code provides
that:
“
Dismissal and
industrial action
.
(1)
Participation in a strike that does not comply with the provisions of
Chapter IV is
misconduct. However, like any other act of misconduct,
it does not always deserve dismissal. The substantive fairness of
dismissal
in the circumstances must be determined in the light of the
facts of the case, including—
(a)
the seriousness of the contravention of this Act;
(b)
attempts are made to comply with this Act; and
(c)
whether or not the strike was in response to unjustified conduct by
the employer.”
[27]
In
NUMSA
and Others v CBI Electric African Cables
,
[18]
the Labour Appeal Court held that from a reading of the provisions of
section 68(5) of the LRA, a judge called upon to determine
the
fairness of a dismissal flowing from participation in an unprotected
strike should consider in addition to Item 6 of the Code,
the
provisions of Item 7,
[19]
which regulates dismissals for misconduct more generally, and
requires a determination of
inter
alia
,
whether the dismissal was an inappropriate sanction or not. The Court
further held that:
“
In my view the
determination of substantive fairness of the strike-related dismissal
must take place in two stages, first under
item 6 when the strike
related enquiry takes place and secondly, under item 7 when the
nature of the rule which an employee is
alleged to have contravened,
is considered. It follows that a strike-related dismissal which
passes muster under item 6 may nevertheless
fail to pass substantive
fairness requirements under item 7. This is so because the illegality
of the strike is not “a magic
wand which when raised renders
the dismissal of strikers fair” (
National
Union of Mineworkers of SA v VRN Steel
(1991)
12 ILJ 577 (LAC)). The employer still bears the onus to prove that
the dismissal is fair.”
[20]
And
further:
“
In his work Grogan
expresses the view that item 6 of the Code is not, and does not
purport to be, exhaustive or rigid but merely
identifies in general
terms some factors that should be taken into account in evaluating
the fairness of a strike dismissal. He
therefore opines that in
determining substantive fairness regard should also be had to other
factors including the duration of
the strike, the harm caused by the
strike, the legitimacy of the strikers’ demands, the timing of
the strike, the conduct
of the strikers and the parity principle. I
agree with this view as the consideration of the further factors
ensures that the enquiry
that is conducted to determine the fairness
of the strike-related dismissal is much broader and is not confined
to the consideration
of factors set out in item 6 of the Code.”
[21]
(Footnote omitted.)
(iii)
Non-compliance
with the provisions of section 64 of the LRA
[28]
The conduct
of the Employees between 18 and 19 March 2013 constituted a strike.
It was further common cause that no attempt was
made whatsoever to
comply with the provisions of section 64 of the LRA, and the strike
was therefore unprotected. Even more important
in this case is that
some or most of the issues that led to the strike as demonstrated
with the list of demands handed to Cunney
were at the time, a subject
of dispute before the CCMA. The Employees, despite being reminded of
that fact by Cunney, however appeared
to have either forgotten or
abandoned the process before the CCMA, and had accordingly taken
matters in their own hands.
[29]
It has also
been concluded in this judgment that the actions of the Employees
could not have been justified by any conduct on the
part of the
respondent, more particularly since the Employees’ main demand
from 18 March 2013 was that they wanted
to meet Cunney
about the issue of non-payment of bonuses. Even though there was no
need for Cunney to meet the Employees over the
issue, he had
eventually met them at the Hard Park area and accepted a list of
their demands.
[30]
Before
meeting Cunney, the Employees had agreed that they would disperse
after their demands were handed over, but had subsequently
changed
their minds, and insisted on their demands being addressed
immediately. Combined with the fact that the non-compliance
with the
provisions of section 64 (1) of the LRA was serious, these
factors should weigh heavily against the Employees
as explained in
Mzeku
and Others v Volkswagen SA (Pty) Ltd and Others
[22]
in the following terms:
“
Once there is no
acceptable explanation for the [workers’] conduct, then it has
to be accepted that the [workers] were guilty
of unacceptable conduct
which was a serious breach of their contracts of employment . . . The
only way in which the [workers’]
dismissal can justifiably be
said to be substantively unfair is if it can be said that dismissal
was not an appropriate sanction.”
[23]
(iv)
Other
considerations
[31]
Flowing
from a conclusion that there was a strike, which was unprotected and
unprovoked, it is further acknowledged that the strike
action took
place over two days involving various shifts. What precipitated the
strike action was a demand to see Cunney in respect
of the
non-payment of production bonuses, and that demand, in view of it
having been made clear to the Employees prior to 15 March
2013 cannot
by all accounts be deemed to have been legitimate.
[32]
Even if
there might have been an inclination to see any legitimacy in the
demand, the fact that other demands were added as demonstrated
with
the list handed over to Cunney at the Hard Park area is indicative of
the fact the Employees nevertheless had a different
agenda. They had
persisted with their unlawful and reasonable conduct by occupying the
Hard Park area, and were aware that their
demands were a subject of a
dispute that was pending at the CCMA. In essence therefore, since
they had not met the production targets,
and were made aware of that
fact prior to 15 March 2013, they were not entitled to any production
bonus.
[33]
Central to
a determination of the fairness of the dismissal is also the conduct
of the Employees whilst on strike. Prior to Cunney
meeting them at
the Hard Park area, they had undertaken to leave the site after their
demands were accepted. They were on no less
than three occasions
instructed to leave the site and had refused to do so.
[34]
Other than
the fact that by embarking on unprotected strike action the Employees
were in breach of their contractual obligations,
they had effectively
retarded and/or obstructed the respondent’s normal operations
in view of their literal hijacking of
its equipment in the Hard Park
area, and placed such valuable equipment at risk. During skirmishes
with members of the SAPS and
private security in the Hard Park area,
the Employees had also unlawfully and without authorisation (as they
were on strike), utilised
the equipment to charge towards members of
the Police and private security.
[35]
Sibiya’s
version, that by getting into one of the vehicle during the
skirmishes he merely meant to “park” it,
borders on the
ludicrous and is rejected. It is further improbable that any of the
applicants’ witnesses had not seen any
of these vehicles being
moved around. The vehicles had been parked all along and there was no
need to interfere with them. All
that the Employees could muster
through the evidence of Sibiya, Jonker, Tlou and Khumalo was to make
bare denials in regards to
the violence that took place at the Hard
Park area. Overall, I am satisfied that the Employees’ conduct
after their demands
were handed over to Cunney and upon being issued
with an ultimatum to leave the site was sufficiently gross to justify
a serious
sanction.
(v)
Inconsistent
application of discipline?
[36]
It was
submitted on behalf of the Employees that the respondent was not
consistent in its application of discipline in view of a
variety of
factors including that it failed to act against employees who had
participated in an unprotected strike action (go-slow)
between 15 and
19 October 2012 over the same issue.
[37]
The
respondent however took issue with these submissions, pointing out
that the issue of alleged inconsistency was not pleaded in
the
statement of claim, and nor was it raised in the signed pre-trial
minute. Having had regard to the pleadings and the pre-trial
minutes,
the only arguments raised pertaining to “inconsistency”
was in respect of the issuing of the ultimatums. In
this regard, the
Employees’ argument was that only NUM was sent an ultimatum
prior to the dismissals. The issue of ultimatums
will be dealt with
shortly.
[38]
I am
inclined to agree with the submissions made on behalf of the
respondent that the issue of inconsistent application of discipline

was not specifically raised in the statement of case or the pre-trial
minute. To the extent that the allegations of inconsistency
were
raised in respect of the respondent’s response to the go-slow
of October 2012 and the latter strike, in
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & Others
,
[24]
this Court having alluded to the fact that courts have over the years
recognized a distinction between “
historical”
and “
contemporaneous”
inconsistency, held that inconsistency claims more particularly
within the context of similarity of circumstances will fail, where

the employer is able to differentiate between employees who committed
similar transgressions on the basis of,
inter
alia
,
differences in personal circumstances, the severity of the misconduct
or on the basis of other material factor.
[39]
Flowing
from the above and other authorities, it is accepted that for a claim
of inconsistent application of discipline to succeed,
the Employees
must demonstrate that they were treated differently from others; or
that the same form of misconduct in the past
was treated differently,
and that the differentiation could not be justified. The burden is on
the Employees to present at least
prima
facie
evidence of inconsistency to which the employer must respond to.
[40]
In the
absence of evidence to demonstrate that the employer had acted
capriciously or was motivated by some irrelevant or unfair

considerations in instituting disciplinary measures or handing out
sanction between employees in the same or similar circumstances,
it
should be concluded that the employer’s decision to
differentiate was fair. As it was stated in
SACCAWU
and Others v Irvin and Johnson (Pty) Ltd,
consistency
is not a rule unto itself, but rather an element of fairness that
must be determined in the circumstances of each case.
[25]
[41]
In this
case, it was correctly pointed out on behalf of the respondent that
the go-slow embarked upon by the Employees in October
2012 was
clearly distinguishable from the events of 18 and 19 March 2013. The
go-slow may have been over a longer period, but the
latter action was
a full-blown strike over a short duration, which had retarded the
respondent’s operations over a period
of four shifts as a
result of the occupation of the Hard Park area. Furthermore, the fact
that the same issues leading to the go-slow
precipitated the latter
strike should weigh heavily against the Employees. The fact that the
Employees got away without any form
of sanction as a result of the
go-slow did not entitle them to the same leniency after the strike
action. The facts and circumstances
of the two industrial actions
were clearly distinguishable, and there is no merit in the contention
that the respondent had acted
inconsistently.
(vi)
Procedural
fairness of the dismissal
[42]
The
provisions of Item 6(2) of the Code are to be considered in
determining the procedural fairness of a dismissal related to
unprotected
strike action. These provide that:
“
Prior to dismissal
the employer should, at the earliest opportunity, contact a trade
union official to discuss the course of action
it intends to adopt.
The employer should issue an ultimatum in clear and unambiguous terms
that should state what is required of
the employees and what sanction
will be imposed if they do not comply with the ultimatum. The
employees should be allowed sufficient
time to reflect on the
ultimatum and respond to it, either by complying with it or rejecting
it. If the employer cannot reasonably
be expected to extend these
steps to the employees in question, the employer may dispense with
them.”
(vii)
Was
AMCU contacted between 18 and 19 March 2013?
[43]
It was the
respondent’s case that on 19 March 2013, it had sought the
involvement of NUM in resolving the strike. After NUM
officials spoke
to the Employees, the feedback received was that the strike had
nothing to do with the union; that the Employees
would not listen to
the officials, and were intent on continuing with their action.
[44]
The
Employees however involved in this matter were members of AMCU, and
on Tlou’s version, they had not seen the need to contact
the
union at that stage. It was further common cause that AMCU was not
officially recognized. I however did not understand the
respondent’s
case to be that it had not dealt with AMCU in the past on a variety
of other matters concerning its members
even if it was not
recognized. The respondent’s contention that AMCU was aware of
the events as they took place, hence it
was not contacted is not a
reasonable excuse for not contacting it. This approach is equally
baffling in view of the seriousness
of the events as they unfolded.
[45]
The
respondent’s approach, and to its detriment, appeared to be
that AMCU was not recognized and therefore there was no need
to
formally engage with it. However, the mere fact that AMCU was
contacted after the dismissals were effected can only be a
realisation
by the respondent that it should have been engaged
earlier. AMCU may not have been recognised. Its influence and
presence at the
mine could not however have been ignored.
[46]
In
attempting to demonstrate that AMCU was contacted prior to the
dismissal, the respondent had called upon Daniel Joubert to testify

on alleged telephonic contact made with Nxumalo. Joubert had been
sitting in Court during Cunney’s evidence, and it was contended

on behalf of the respondent that there was no initial intention to
call him as a witness until the issue of whether AMCU was contacted

became in dispute.
[47]
Joubert had
made reference to his telephone account itemised bill
[26]
which was meant to demonstrate that AMCU was contacted. The itemised
bill however did not reflect any incoming calls. The only
calls made
to Nxumalo were reflected as having taken place between 11 and 12
March 2013, and at the time that the suspension of
some of the
Employees arising out of the issue in respect of the safety of the
carriers was being discussed. Joubert alleged that
he nevertheless
had a telephonic discussion with Nxumalo between 18 and 19 March
2013. A copy of the itemised bill however does
not support his
evidence, and he had confirmed under cross-examination that he had
not made any calls to Nxumalo. There was no
explanation as to the
reason his itemised bill had not reflected the alleged incoming call
from Nxumalo.
[48]
Even
worrisome is that the itemised bill was belatedly discovered during
these proceedings, and after Cunney had led his evidence.
The only
probable conclusion to be drawn is that neither Joubert nor anyone
from the respondent had called Nxumalo between 18 and
19 March 2013.
This was in line with the respondent’s approach that it would
not engage with AMCU at any formal level as
it was not recognised,
and this was not only foolhardy given the seriousness of the
situation, but also to its detriment.
[49]
Contrary to
the respondent’s contentions, there was no duty on Nxumalo to
present evidence of his telephonic records to prove
that he had
indeed called anyone from the respondent during the period in
question. Joubert had alleged that Nxumalo was contacted,
and the
duty was upon him to substantiate that allegation. To this end, it is
concluded that the respondent had failed to contact
AMCU as required
in terms of the provisions of Item 6(2) of the Code, and in my view,
it was irrelevant whether it was recognised
or not.
(viii)
The
Ultimatum
[50]
In
Mndebele
& Others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys
(Rustenburg Plant)
,
[27]
Murphy AJA addressed the nature and purpose of ultimatums as follows:
“
The Code does not
suggest how the ultimatum should be distributed, or require that it
must be in writing. Furthermore, it states
that the issuing of an
ultimatum is not an invariable requirement. The purpose of an
ultimatum is not to elicit any information
or explanations from the
employees but to give them an opportunity to reflect on their
conduct, digest issues and, if need be,
seek advice before making the
decision whether to heed the ultimatum or not. The ultimatum must be
issued with the sole purpose
of enticing the employees to return to
work, and should in clear terms warn the employees of the folly of
their conduct and that
should they not desist from their conduct they
face dismissal. Because an ultimatum is akin to a final warning, the
purpose of
which is to provide for a cooling-off period before a
final decision to dismiss is taken, the
audi
rule must be observed both before an ultimatum is issued and after it
has expired. In each instance, the hearing may be collective
in
nature and need not be formal.”
[28]
(Footnotes omitted.)
[51]
The
respondent’s version was that an ultimatum was sent to NUM, the
recognised union. Again, this does not assist the respondent’s

case as it was aware that some of the employees, were AMCU members.
As to the reason why the respondent had not contacted AMCU
or sent
the ultimatum to it can only be answered within the context of its
approach that AMCU was not a recognised union and there
was therefore
no need to engage with it.
[52]
The
respondent’s contention therefore that it had complied with the
requirements of the Code by sending an ultimatum to the
NUM, and that
it was not required to send one to all the other trade unions at the
workplace fails to appreciate that AMCU was
a major role player
despite it not being recognised. It is inconceivable that the
respondent would have expected that any communication
sent to NUM
including the ultimatum would have been shared with AMCU, as it was
common cause that the two unions were rivals.
[53]
The
respondent’s further contention that the complaint about the
ultimatum only being sent to NUM was merely about form and
not
substance is equally misplaced. At the stage when NUM was sent the
ultimatum, its officials had already spoken to its members,
and the
latter had in clear terms refused to heed the call to desist from
their actions. The Employees on the other hand had not
at that stage
seen the need to call AMCU to intervene, and it further appears that
they too had no confidence in AMCU at the time
to assist them in
resolving the impasse.
[54]
Notwithstanding
the Employees’ distrust of their unions, any reasonable
employer under the circumstances would still have
gone beyond issues
of the status of AMCU and the Employees’ distrust or attitude,
and sent the ultimatum to it. The chief
reason however why AMCU was
not contacted was that it was not recognized, and not that its
members distrusted it. respondent therefore
refused to go beyond the
formalities of recognition to resolve the impasse.
[55]
The fact
that the ultimatum was not sent to AMCU does not however imply that
the Employees were not issued with same. It cannot
be doubted that a
further ultimatum was issued directly to the Employees at 11h40 on
19 March 2013 via a two-way conversation
between Cunney and
Tlou in the morning of 19 March 2013 whilst the Employees were
gathered at the Hard Park Area. The communication
between Cunney and
Tlou that lasted over an hour
[29]
was initiated at the instance of the Employees and as transcribed, it
reveals that:
1)
Tlou at the
commencement of the conversation had requested that an interpreter be
made available, so that other Employees listening
through other
vehicles in the area over the two-way radio could follow the
discussion. One Daniel from the HR department was called
to interpret
the conversation between Tlou and Cunney.
2)
Cunney had
again requested the Employees to nominate a delegation.
3)
Cunney
informed the Employees that they had embarked on an illegal strike
since 17h00 the previous day; that there was a court interdict
in
place that was obtained in November 2012; and that the Employees must
leave the site failing which consequences may follow.
Cunney had
further informed the Employees that they must return to work
immediately, failing which they may face disciplinary action
which
could lead to a dismissal.
4)
Cunney had
further implored the Employees to think hard about what they were
doing, as the company could enforce the court interdict
as from 20
March 2013 if they did not go back to work. He further informed them
that those employees not on shift should leave
the site and return
the next day as they were also trespassing on mine property, and that
they could face disciplinary action which
could lead to a dismissal.
5)
Tlou’s
response was that the Employees were not on a strike, and that all
they wanted was to talk to the general manager since
the previous
day. The Employees were adamant that they would not leave the site,
and that Cunney should come to the area and address
them.
[56]
From the
above, it was conceded on behalf of the Employees
[30]
that the respondent had indeed issued an ultimatum over the two-way
radio conversation, and that the ultimatum gave them an opportunity

to reflect on their conduct seek.
[57]
It was
however argued on behalf of the Employees that the ultimatum was
unclear, and that it did not give the Employees an opportunity
to
reflect on it and their conduct, as all that it said was that they
should desist from the strike immediately and to return to
work. It
was further contended that the ultimatum as read over the radio did
not satisfy the requirements of a fair and reasonable
ultimatum,
specifically since after it was issued, Cunney had agreed to meet the
Employees at the Hard Park Area.
[58]
It was
submitted on behalf of the Employees that once Cunney had met them at
the Hard Park area and they had handed over their demands,
and
further since an agreement was reached that the Employees had until
20 March 2013 to return to work, this meant that
the
ultimatum only expired on 20 March 2013, and thus the
respondent had waived its rights to dismiss the employees until
the
expiry of the ultimatum. Thus, the argument went, since the Employees
were dismissed at 19h30 on 19 March 2013, the dismissal
took effect
prior to the expiry of the ultimatum, and was accordingly contrary to
the provisions of the LRA and the Code.
[59]
The
respondent’s approach was that since the Employees had all
heard the conversation between Tlou and Cunney, they had all
received
the ultimatum which was issued at about 11h40, and they therefore had
sufficient time to reflect on it. The ultimatum
was further repeated
when Cunney received the list of the demands, and the delegation was
also handed a copy of the ultimatum which
they had read and refused
to accept. It was also submitted that the fact that Cunney had also
written on the list of demands that
the Employees must desist from
their illegal strike and leave the site peacefully and return to work
the next day constituted a
further ultimatum, and that they failed to
heed it.
[60]
I accept
that an ultimatum was issued over the two-way radio conversation
between Cunney and Tlou, which I have no reason to doubt
was
understood by all Employees as it was it was interpreted. I further
accept that another ultimatum was issued by Cunney at the
time that
he accepted a list of demands by advising the Employees to desist
from their actions, and further that a copy of the
ultimatum was
handed over to the delegates which they had read as evident from the
video material and had refused to accept it.
[61]
The
Employees’ contentions that the ultimatum was unclear on the
basis that they were simply informed that they should desist
from the
strike immediately and to return to work is without merit. In line
with what Murphy AJA had stated in
Mndebele
& Others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys
(Rustenburg Plant)
,
the mere fact that the ultimatum was issued, and the Employees were
told on no less than three occasions that they should desist
from
their actions and return to work failing which consequences would
follow was more than sufficient.
[62]
I am
satisfied that based on the number of occasions the Employees were
advised to desist from their actions and leave the site,
they had an
opportunity to reflect on their conduct and to make informed
decisions. The intention of the ultimatums was to entice
them to
return to work. They were warned of the consequences and had failed
to desist from their conduct. They had however made
it clear that
they would not leave the site until their demands were addressed.
Accordingly, there is no substance in the contention
that the
ultimatum was vague or that it had not given them time to reflect.
(ix)
The
Appeal hearings
[63]
The
Employees’ main contention was that the respondent dismissed
them in the evening of 19 March 2013 when in accordance with
the last
ultimatum, they were supposed to return to work for the first shift
the next morning. On Cunney’s version, the decision
to dismiss
was based on the events after the Employees had handed over their
demands, and in particular, the violence that had
ensued thereafter
as per Captain Scholtz’s feedback. Cunney’s further
reasoning was that the decision was taken after
video material of the
events as they had unfolded was viewed. Accordingly, the decision to
dismissed was based on the evidence
that:
a)
Despite
repeated requests by Captain Scholtz, the Employees refused to leave
the site and desist from their actions;
b)
They threw
stones at members of SAPS;
c)
They used
large heavy duty vehicles on site to charge against members of SAPS
and were thus confrontational.
[64]
It was
submitted on behalf of the respondent that since the Employees had
insisted with their conduct and were not willing to peacefully
leave
the site, they were prepared for confrontation, and it was that
conduct and stance that ultimately led to the violent confrontation

and their dismissal.
[65]
Van Niekerk
J in
Food
And Allied Workers Union and Others
v
Fouries’ Poultry Farm (Pty) Ltd t/a Chubby Chick
[31]
held that the
audi
alteram partem
principle applies in the case of a dismissal for participation in an
unprotected strike, irrespective of whether there has been
a failure
to comply with an ultimatum. He further stated that:
“
In
Modise
v & others v Steve’s Spar Blackheath
(2000) 21 ILJ 519 (LAC), the LAC held that an ultimatum and a hearing
serve two separate and distinct purposes. A hearing serves
the
purpose ultimately of affording employees or a union acting on their
behalf the opportunity of stating why they should not
be dismissed,
notwithstanding their failure to comply with an ultimatum. In short,
the requirements of procedural fairness relevant
to dismissal for
participation in an unprotected strike are not discharged only by the
issuing of an ultimatum. When an ultimatum
has gone unheeded, an
employer must initiate further steps to afford the right to be heard
in a manner that is appropriate to the
circumstances.”
[32]
[66]
In
Steve’s
Spar Blackheath,
it
was further held that the court must not test the hearing against the
requirement of a formal hearing, and that a mere letter
to the unions
requesting them to state their side of the matter can be
sufficient.
[33]
The Appellate
Division in
Slagment
(Pty) Ltd v Building, Construction and Allied Workers’ Union
and Others
[34]
reinforced the applicable principles as follows:
“
It is within the
province of the employer who holds a disciplinary enquiry to
determine its form and the procedure to be adopted,
provided always
that they must be fair. Fairness requires, inter alia, that the
employee should be given an opportunity of meeting
the case against
him: the employer must obey the injunction
audi
alteram partem
.”
[67]
The SCA in
Old
Mutual Life Assurance Co SA Ltd v Gumbi
,
[35]
referencing
Reckitt
& Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union &
Others
[36]
further held that the right to a pre-dismissal hearing imposes upon
employers nothing more than the obligation to afford employees
the
opportunity of being heard before employment is terminated by means
of a dismissal. Should the employee fail to take the opportunity

offered, in a case where he or she ought to have, the employer’s
decision to dismiss cannot be challenged based on procedural

unfairness.
[37]
[68]
In this
case, in view of the Employees’ recalcitrance, and continued
occupation of the Hard Park area after repeated requests
to desist
from their conduct, and the events that followed after the handing
over of demands, I am satisfied that the respondent
was within its
rights to effect the dismissals at that point without the benefit of
a prior hearing. This was so notwithstanding
the fact that they were
to return to work on the morning of 20 March 2013.
[69]
The
respondent’s contention was that the strike action had turned
violent after the last ultimatum was issued, and this was
based on
the feedback from Captain Scholtz and after viewing video material of
the events at the site. To the extent that the Employees
had
persisted with their unlawful conduct and sought to be
confrontational with members of the SAPS as demonstrated by the use

of heavy duty vehicles on site, that conduct on its own in my view
entitled the respondent to take action, even prior to the expiry
of
the ultimatum. The expiry of the ultimatum cannot be looked at in
isolation from supervening events that takes place after it
was
issued. If those events call for action from the employer prior to
the expiry, such action should be taken.
[70]
The
Employees’ contention that they were not given sufficient time
to reflect on the feedback after their demands were submitted
and
accepted by Cunney cannot by any accounts be justification for their
subsequent conduct. If indeed they were prepared to leave
the site
even after Captain Scholtz’ ultimatum of 15 minutes was
too short, they should have left the site rather than
engaging in
confrontation with the members of SAPS in the manner that they did.
But as per their stance, they were not prepared
to leave the site
until their demands were met.
[71]
The
Employees’ contention was further that the respondent breached
its own disciplinary code when dismissing the Employees
without a
disciplinary hearing. The starting point is that in terms of the
provisions of Item 6(2) of the Code, an employer,
if it cannot
be reasonably expected to extent the steps provided therein to the
employees may dispense of them. In essence, the
provisions of this
Code do not envisage a formal disciplinary hearing prior to the
dismissal of employees participating in unprotected
industrial
action.
[72]
A second
consideration is that in line with the principles set out in
Steve’s
Spar Blackheath,
the
form that the hearing, if any may take, will depend on the
circumstances. In some cases, a formal hearing might be required

whereas in other circumstances it will suffice to send a letter to
the strikers or the union inviting them to make representations.
The
ultimate test is whether the strikers were given a fair hearing.
[73]
In this
case, I have accepted that AMCU was not contacted prior to the
dismissal, and the only contact made with it was after the
dismissals
had been effected. Be that as it may be, other than this criticism,
the circumstances of this case were such that in
view of what had
been already stated in regard to the Employees’ belligerence
and refusal to leave the site after repeated
requests, the respondent
was entitled to take action.
[74]
To the
extent that it might still be argued that the dismissals were
procedurally unfair, it was further common cause that the Employees

were afforded an opportunity to appeal against the dismissals which
they did. A meeting was subsequently held with AMCU and other
unions
and it had made representations in regard to those dismissals. AMCU
subsequently assisted the Employees in preparation for
their appeals,
and drafted the standard grounds of appeal as follows:
·
“
As
part of the employees who mandated worker committee to take up our
bonus problem with management on the
18
th
March 2013
.
·
I was
hoping that our bonus problem would be amicably resolved with
management as we were waiting for the General Manager Mr Mark
Cunney
to address us on this matter.
·
What
transpired on the 19
th
March 2013 was undesired and unforeseen. I honestly do not praise or
applaud same.
·
If I was
afforded a disciplinary hearing opportunity before my dismissal, I
could have explained my side of the story.
I pray to be
reinstated back to my original position of work.”
[38]
[75]
Evidence in
regard to what had transpired during those hearings was presented by
Gasper of the respondent. Her testimony pertained
to her involvement
as the HR Development Manager, which was limited largely to sending
out communication to dismissed employees
and the unions. She
confirmed that notwithstanding the respondent’s position in
regard to the status of AMCU, a decision
was ultimately taken by Van
der Bank to have a meeting with all unions involved in the mine, to
appraise them on the events. Representatives
from AMCU, UASA and
Solidarity had attended that meeting.
[76]
Stanley
Joubert, the respondent’s then Human Resources Officer and
currently Human Resources Manager was involved in the appeal
process
as assistant to chairpersons in an advisory capacity. He testified
that three independent chairpersons were utilised to
conduct the
appeal hearings. He was referred at length to transcripts of the
appeal proceedings of selected Employees
[39]
as well as forms completed during the appeals.
[40]
[77]
The parties
present during the appeals included the chairperson, a representative
from HR, a complainant on behalf of the respondent
as well as the
relevant employee. The Employees however were not allowed to be
represented by Tlou and Sibiya, as none of them
were no longer
employed by the respondent. Furthermore, the Employees were permitted
to be represented by persons not employed
by the respondent.
[78]
Joubert
further testified that Employees were identified through video clips.
He nevertheless conceded that the identification was
not sufficient
to prove participation in the strike or violent conduct, but
testified that it was part of the evidence presented.
His impression
of the Employees during the appeal proceedings was that they showed
no remorse, and just wanted the proceedings
to be over. They had
simply handed in their appeal documents as drafted by AMCU and
refused to add anything further despite being
asked by chairpersons
of the appeal hearing.
[79]
He
testified that the Employees had been afforded an opportunity to
state their case to the chairperson but had elected not to.
It was
put to Joubert that the chairperson had an obligation to satisfy
himself that the relevant employee was aware of the appeal
process
and that he should have explained it at the start of a hearing. He
conceded that the chairpersons did not necessarily explain
the
proceedings to Employees at the start of the proceedings, but held
the view that this was done during the proceedings. He further

contended that the Employees must have been briefed by AMCU of those
proceedings.
[80]
Joubert
further conceded that in some cases, the only evidence relied upon
was where the employee could be identified on video material,
which
sometimes showed Employees dancing with sticks in their hands. He
however contended that the dismissals were fair because
the Employees
had chosen to be at the strike. He also denied that the chairpersons
of the appeal merely carried out their mandate
to confirm the
dismissals.
[81]
The
Employees, through the evidence of Tlou, confirmed that they had not
advanced further grounds of appeal other than those contained
in the
document prepared by AMCU. Tlou nevertheless as further supported by
the evidence of Jonkers, and Khumalo, contended that
the appeal
proceedings were procedurally flawed in that:
a)
They were
denied representation of their choice; the opportunity to call
witnesses; to hand in further documents; to plead in mitigation,
and
that the appeal process was not explained to them.
b)
The
chairpersons had pre-determined the matter as they had merely
confirmed their dismissal without applying their minds to the

evidence;
c)
No evidence
of violence was led, and video clips shown to them to confirm their
alleged participation in violent conduct only indicated
that they
were merely standing or dancing amongst a group of other employees,
and that they could not be properly identified in
the video material
presented.
[82]
The appeal
proceedings were the Employees’ last opportunity to state
reasons why their dismissals should not be confirmed.
The general
reasons as prepared on their behalf and presented at the proceedings
pertain to issues which have been dealt with in
this judgment. Thus,
the issue of the bonus could not have been regarded as a legitimate
basis of their conduct in that they had
been told that it would not
be paid on 15 March 2013. Their contention that they were simply
waiting for Cunney to address them
on the matter was found to be
without merit. Their further contention that “
What
transpired on the 19
th
March 2013 was undesired and unforeseen”
is
disingenuous in that they had intentionally planned not to leave the
workplace after their shifts on 18 March 2013, had not reported
for
their shifts (the 16h30 shift), and had consciously taken a decision
to occupy the Hard Park area
.
They were on numerous occasions requested to leave the site and told
of the consequences if they did not, and had nevertheless
persisted
with their unlawful conduct. The consequences of their conduct were
clearly foreseen.
[83]
I do
however accept that the appeal proceedings were not perfect,
particularly regarding the argument that the Employees were not

allowed representation of their choice. The respondent in my view
acted unreasonably in denying the Employees the right to be
represented by Tlou and Sibiya. The fact that they were already
dismissed was not justification to prevent them from representing

other Employees in that since AMCU could not represent them, the two
were at the fore front of the strike and were better placed
to plead
the Employees’ case. The reliance by the respondent on its
disciplinary code and procedure in denying the Employees
the
representation of their choice was misplaced, as it is trite that a
disciplinary code and procedure merely serves as a guideline,
and
exceptions could have been made where warranted.
[84]
I further
accept on the evidence of Joubert that that the identification of
employees through video material was not sufficient
to prove acts of
violence. Such evidence had in some instances merely demonstrated
participation in the strike action. Be that
as it may, even if acts
of violence in certain circumstances could not be attributed to
certain individuals, the fact remains that
the Employees were part of
the group that had voluntarily participated in the strike and
occupied the Hard Park area, which conduct
on its own constituted
serious misconduct.
[85]
I have
further no reason to doubt Joubert’s evidence that the
Employees showed no remorse, and simply handed in their appeal

documents as drafted by AMCU. They had refused to add anything
further despite being asked by chairpersons of the appeal hearing
and
in my view, this should be held against them. In circumstances where
an employee, notwithstanding the fact that he or she had
been denied
representation of his or her choice, is afforded an opportunity
motivate why a dismissal should not be upheld and chose
not to take
that opportunity, that employee cannot complain of procedural
fairness. This is particularly so in circumstances where
that
dismissal arose from unprotected strike action.
[86]
The
complaint raised that the chairpersons played the role of company and
chairperson, does not in my view take the Employees’
case any
further in view of the principle that the appeal hearings did not
need to take a formal nature. What is important is that
the Employees
were indeed afforded an opportunity to state their case, and had
merely relied on the grounds of appeal as drafted
by AMCU on their
behalf without adding anything further.
[87]
The
Employees can further not complain about not being afforded an
opportunity to plead in mitigation. Given the serious consequences

that flowed from their conduct, it is not sufficient in my view, for
the Employees to simply allege that “
I
honestly do not praise or applaud same”.
If this was an attempt at showing contrition on their part, it was
indeed lame, and did not appear to be genuine. I therefore have
no
reason to reject Joubert’s evidence that the Employees showed
no contrition for their actions.
Conclusions
[88]
To
summarise then, it is accepted that in determining the
appropriateness of a dismissal as a sanction for the striking
workers’
conduct, consideration must be given to whether a less
severe form of discipline would have been more appropriate, as
dismissal
is the most severe sanction available.
[41]
In this case, I am satisfied that the sanction of dismissal was
appropriate when regards is had to the following factors which
are
worth repeating.
[89]
The
Employees had embarked on a strike which was unprotected. They failed
to comply with any strike procedures as contained in the
LRA, and
that failure was serious, particularly since some of their demands
were a subject of dispute before the CCMA. Furthermore,
the conduct
of the Employees was not in response to any unjustified conduct on
the part of the respondent.
[90]
The
Employees’ conduct of insisting on seeing Cunney; of not
leaving the workplace after the shift on 18 March 2013, or of
not
commencing their shifts at 16h30 as expected; and further of
deliberately occupying the Hard Park area, and thus retarding
the
respondent’s operations was not a reasonable means by which to
advance their demands. The Employees had all voluntarily
participated
in the conduct in question. They were afforded an opportunity to
desist from their conduct and to leave the site,
but had persisted
with their unlawful conduct. Other less disruptive and
non-belligerent ways to resolve the issues were available
to them. In
the light of these considerations, it is concluded that the
respondent has discharged the onus placed on it to prove
that the
dismissals were substantively fair.
[91]
In regard
to the procedural fairness of the dismissal, I had not found any
merit on most of the submissions made on behalf of the
Employees
other than that the respondent had not complied with the provisions
of Item 6(2) of the Code as it failed to contact
AMCU prior to the
dismissal, let alone furnish it with an ultimatum. I am further
satisfied that the Respondent acted procedurally
unfairly by not
allowing the Employees to be represented by representatives of their
choice during the appeal proceedings.
[92]
Given the
procedural irregularities as identified, it follows that the only
remedy available to the Employees is that of compensation.
Any amount
of compensation to be awarded for a dismissal that is only
procedurally unfair is the subject of a discretion to be
exercised by
the Court. Section 194(1) of the LRA requires that any award of
compensation must be just and equitable taking into
account all
relevant facts and circumstances, but which may not be more than the
equivalent of 12 months calculated at the employees’
rate of
remuneration on the date of dismissal.
[93]
In this
case, factors to be taken into account include those already
mentioned in paragraph [89] and [90] above, including the nature
of
the strike, its duration, the impact on the respondent’s
operations, the Employees’ belligerence and the events
that
followed after the demands were handed over.
[94]
It is
further taken into account that but for the fact that AMCU was not
contacted prior to the dismissals and the fact that the
Employees
were denied an opportunity of representation by representatives of
their choice in the appeal proceedings, the appeal
proceedings
overall complied with the
audi
alteram partem
principle. In the light of all these considerations, it is concluded
that compensation equivalent to two months’ salary is
just and
equitable in the circumstances.
[95]
Regarding
the issue of costs, it is taken into account that the Employees were
partially successful with their claim, and the requirements
of law
and fairness in these circumstances militates against any cost order.
Order
[96]
In the
premises, the following order is made:
1.
The
dismissal of the 60 individual applicants as identified in Annexure
‘A’ to the applicants’ amended statement
of claim
was substantively fair, but procedurally unfair.
2.
The
respondent is ordered to pay to each of the individual applicants as
identified in (1) above, compensation in the amount equivalent
to two
(2) months’ salary calculated at the rate of their remuneration
as at the date of their dismissal.
3.
There is no
order as to costs.
__________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
On
behalf of the Applicants:

Adv. C Malan
Instructed
by:

Larry Dave Inc
On
behalf of the Respondent:

Adv. T Manchu
Instructed
by:

Hogan Lovells (South Africa) Inc
[1]
Act 66 of 1995, as amended.
Section 186(1)(d) provides:
“
(1)
“Dismissal” means that—
. . .
(d)
an employer who dismissed a number of employees for the same or
similar reasons
has offered to re-employ one or more of them but has
refused to re-employ another.”
Section
191(5)(b) provides:
“
(5)
If a council or a commissioner has certified that the dispute
remains unresolved, or if
30 days or any further period as agreed
between the parties have expired since the council or the Commission
received the referral
and the dispute remains unresolved—
. . .
(b)
the employee may refer the dispute to the Labour Court for
adjudication if the employee
has alleged that the reason for
dismissal is—
(i)
automatically unfair;
(ii)
based on the employer’s operational requirements;
(iii)
the employees participation in a strike that does not comply with
the provisions
of Chapter IV; or
(iv)
because the employee refused to join, was refused membership of or
was expelled
from a trade union party to a closed shop agreement.”
[2]
Page 130 of the trial bundle.
[3]
Page 242 to 246 of the trial bundle.
[4]
Page 77 to 89.
[5]
At page 88 of the trial bundle.
[6]
Page 118 of the trial bundle.
[7]
Translated into English.
[8]
Section 213 of the
LRA provides that—
““
strike”
means the partial or complete concerted refusal to work, or the
retardation of obstruction of work, by persons who
are of 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.”
[9]
Paragraph 20.3.1.
[10]
Page 74 of the
bundle.
[11]
See
National
Union of Metalworkers of South Africa (NUMSA) and Others v CBI
Electric African Cables
[2014]
1 BLLR 31
(LAC); (2014) 35 ILJ 642 (LAC) at para 38 where it was
held that:
“
. . . [T]he
employees’ response, I do not, however, agree that the means
they employed justified the end they sought to
achieve. Abandoning
their work stations and leaving the respondent’s premises was
not a conduct, which in all the circumstances
of the case, could be
said to have been a reasonable means by which to respond to the
respondent failure to comply with its contractual
obligations.”
[12]
Section 23(2)(c)
provides:
“
(2)
Every worker has the right—
. . .
(c)
to strike.”
[13]
Section 65 is entitled “
Limitations
on right to strike or recourse to lock-out.
”
and states:
“
(1)
No person may take part in a strike or a lock-out or in any conduct
in contemplation or
furtherance of a strike or a lock-out if—
(a)
that person is bound by a collective agreement that prohibits a
strike or lock-out
in respect of the issue in dispute;
(b)
that person is bound by an agreement that requires the issue in
dispute to be referred
to arbitration;
(c)
the issue in dispute is one that a party has the right to refer to
arbitration or
to the Labour Court in terms of this Act or any other
employment law;
(d)
that person is engaged in—
(i)
an essential service; or
(ii)
a maintenance service.
(2)
(a)        Despite section 65 (1)
(c), a person
may take part in a strike or a lock-out or in any
conduct in contemplation or in furtherance of a strike or lock-out
if the issue
in dispute is about any matter dealt with in sections
12 to 15.
(b)
If the registered trade union has given notice of the proposed
strike in terms of
section 64 (1) in respect of an issue in dispute
referred to in paragraph (a), it may not exercise the right to refer
the dispute
to arbitration in terms of section 21 for a period of 12
months from the date of the notice.
(3)
Subject to a collective agreement, no person may take part in a
strike or a lock-out
or in any conduct in contemplation or
furtherance of a strike or lock-out—
(a)
if that person is bound by—
(i)
any arbitration award or collective agreement that regulates the
issue in
dispute; or
(ii)
any determination made in terms of section 44 by the Minister that
regulates
the issue in dispute; or
(b)
any determination made in terms of Chapter Eight of the Basic
Conditions of Employment
Act and that regulates the issue in
dispute, during the first year of that determination.”
[14]
[1993] ZASCA 201
;
1994 (2) SA 204
(A) at 216E.
[15]
National Union of Public Service &
Allied Workers obo Mani and Others v National Lotteries Board
2014 (3) SA 544
(CC);
2014 (6) BCLR 663
(CC);
[2014] 7 BLLR 621
(CC); (2014) 35 ILJ 1885 (CC).
[16]
Id at para 69.
[17]
Section 68 is headed “
Strike
or lock-out not in compliance with this Act”
and
subsection (5) and provides as follows:
“
Participation in a strike that
does not comply with the provisions of this Chapter, or conduct in
contemplation or in furtherance
of that strike, may constitute a
fair reason for dismissal. In determining whether or not the
dismissal is fair, the Code of
Good Practice Dismissal in Schedule 8
must be taken into account.”
[18]
Above n 11 at para 28.
[19]
Item 7 provides that:
“
Guidelines
in cases of dismissal for misconduct.–
Any
person who is determining whether dismissal for misconduct is unfair
should consider –
a)
Whether or not the employee
contravened a rule or standard regulating conduct in, or of
relevance to, the workplace; and
b)
If a rule or standard was
contravened, whether or not –
i.
the rule was a valid or
reasonable rule or standard;
ii.
the employee was aware, or
could reasonably be expected to have been aware, of the rule or
standard;
iii.
the rule or standard has been
consistently applied by the employer; and
iv.
dismissal was an appropriate
sanction for the contravention of the rule or standard.”
[20]
NUMSA and Others v CBI Electric
African Cables
above n 11
at para 29.
[21]
Id at para 30.
[22]
[2001] 8 BLLR 857 (LAC).
[23]
Id at para 17.
[24]
[2009] ZALC 68
; (2010) 31 ILJ 452
(LC);
[2009] 11 BLLR 1128
(LC) at para 10.
[25]
(1999) 20 ILJ 2302 (LAC) at 2313 C-J.
[26]
Page 442 –
448 of the bundle.
[27]
(
2016)
37 ILJ 2610 (LAC).
[28]
Id
at
para 27.
[29]
Pages 76 to 110 of the bundle.
[30]
Paragraphs 55 –
56 of the written heads of argument.
[31]
(JS163/12) [2014] ZALCJHB 335
at
para 37.
[32]
Id.
[33]
Modise & others v Steve’s
Spar Blackheath
(2000) 21
ILJ 519 (LAC) at para 96.  (
Steve’s
Spar Blackheath
)
[34]
1995 (1) SA 742
(A);
[1994] 12 BLLR 1
(A) at 11.
[35]
[2007] 8 BLLR 699
(SCA) at para 8.
[36]
(1991) 12 ILJ 806 (LAC) at 813 C-D.
[37]
Above n 26.
[38]
Page 144 to 239 of the trial bundle.
[39]
Presented in a separate bundle of
transcripts from page 1 to page 131 thereof.
[40]
Contained in the main trial bundle.
[41]
See the minority judgment of Mhlantla
J in
TAWUSA obo MW Ngedle
and 93 Others v Unitrans Fuel and Chemical (Pty)Ltd
(2016)
37 ILJ 2485 (CC) at para 50.