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 271
|
|
National Union of Mine Workers obo Shayi and Others v Sishen Iron Ore Company (Pty) Ltd (JS318/13) [2017] ZALCJHB 271 (30 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JS318/13
In
the matter between:
NATIONAL
UNION OF MINE
WORKERS
First
Applicant
obo
MARUPING
ALFRED SHAYI & 186
OTHERS
Further
Applicants
and
SISHEN
IRON ORE COMPANY (PTY)
LTD
Respondent
Heard: 1 to 4 December
2014, 29 June 2015 to 3 July 2015, 5 December 2016 and 12 December
2016 (oral argument)
Delivered: 30 June
2017
JUDGMENT
MOKOENA,
AJ:
Introduction
[1]
On or about 15 October 2012, the Respondent dismissed the Applicants
on the allegations that they embarked and participated
in an
unprotected strike which caused severe damage to the Respondent.
[2]
Subsequent to the Applicants being dismissed by the Respondent, the
Applicants referred their dispute to the CCMA.
[3]
On or about 12 November 2012, the CCMA conciliated the dispute
between the parties and issued a certificate to the effect that
the
dispute between the parties remained unresolved.
[4]
On the strength, of the CCMA certificate indicating that the dispute
between the parties remain, unresolved, on or about 11
February 2013,
the Applicants referred their dispute to arbitration.
[5]
On 22 January 2013, the Respondent concluded a settlement agreement,
wherein the parties agreed that the Applicants must refer
their
dispute to this court within 90 days of the signature of the
settlement agreement, which was 22 January 2013.
[6]
The
Applicants’ statement of case was delivered, late, on 31 May
2013. The Applicants initiated a condonation application,
which
was granted, by this court.
[7]
These
proceedings relate to the dismissal of the Applicants who were
employed by the Respondent. The Applicants contend that
their
dismissals were both procedurally and substantively unfair.
[1]
[8]
The
Applicants contend that, should this court find their dismissal to be
both procedurally and substantively unfair, the Applicants
should be
retrospectively reinstated to the positions that they occupied
immediately prior to their dismissal without any loss
of their
benefits.
Representation
of the parties
[9]
At the
commencement of the trial, I was informed that the Applicants are
divided into two groups. In terms of the citation
of the
parties, these proceedings were brought on behalf of 187 Applicants.
[10]
From the
187 Applicants, 18 Applicants were initially represented by Adv
Nxumalo who was briefed by Cloete Attorneys. The
rest of the
Applicants were represented by Mr Mafa from Mafa Attorneys. The
Respondent was represented by Adv Mosam and Adv
Itzkin who were
briefed by Edward Nathan Sonnenbergs Attorneys.
[11]
The names
of the Applicants who were, initially, represented by Adv Nxumalo and
Cloete Attorneys, were contained in a document which
was submitted to
the court, as Exhibit A, consisting of 18 names. While on the
other hand, the Applicants who were, initially,
represented by Mr
Mafa, were contained in a document, submitted as Exhibit B, during
these proceedings, which reflected and/or
contained 91 names.
[12]
As the
trial proceeded, the representation of the parties changed. The
18 employees who were initially represented by Adv
Nxumalo, were,
subsequently represented by Adv Makoti and Adv Kunene. While
the remaining Applicants who were initially represented
by Mr Mafa,
were, subsequently represented by Adv Tutubalang.
[13]
I am
highlighting this change of representation of the parties as it
impacted on the different approach adopted by the Applicants’
old and new legal teams. I deal more full, with this aspect,
elsewhere, in this judgment.
Analysis
of the Pleadings
Applicants’
statement of case
[14]
The
centrepiece of the Applicants’ case as formulated in their
statement of case, can be summarised as follows:-
‘
The dismissal
of the Applicants was substantively unfair in that:
(i)
None
of the Applicants, alternatively, not all Applicants participated in
any strike action;
(ii)
In
the further alternative to the above, and in the event that the
Honourable Court finds that Applicants did in fact participate
in
strike action, and that the said strike action was unprotected, the
sanction of dismissal was unfair and unreasonable.
(iii)
Respondent
dismissed Applicants inconsistently and arbitrarily, in that it
dismissed Applicants, whereas a large number of employees
who
participated in the work stoppage were not disciplined or dismissed.
The dismissals were
procedurally unfair in that;
(i)
No
charges were brought against the Applicants, and no disciplinary
hearings were held, and the Applicants were dismissed in absentia;
Applicants were not given a proper hearing before the dismissal.
(ii)
The
appeal hearings of 46 Applicants who were in custody at the time of
such hearing, were unfair in that such Applicants were denied
to be
present at such hearings and fully present their appeals.
Annexure
“B”
hereto
contains the names of such Applicants.
(iii)
No
fair ultimatums were issued
(iv)
First
Applicant was ignored and not consulted adequately during the work
stoppage and prior to the dismissals.’
[2]
[15]
In the
circumstances, the Applicants seek the following order:-
‘
RELIEF
Retrospective
reinstatement of Applicants in their positions on the same terms and
conditions that governed their employment prior
to their dismissal,
with no loss of salary and benefits.’
[3]
Respondent’s
statement of defence
[16]
The
Respondent’s defence is captured in paragraphs 65.1 to 65.4 of
its statement of defence, couched in the following terms:-
’
65.1 The Second to
Further Applicants were dismissed after being found guilty of the
charges as set out in paragraph 44 above.
65.2 An illegal strike
occurred from 3 October 2012 until 16 October 2012.
65.3 It is denied that
Sishen implemented a lockout during the period 3 October 2012 to 16
October 2012.
65.4 Due to the
exceptionally high levels of violence and intimidation, Sishen
however, for health and safety reasons, as set out
above, instructed
its employees who did not participate in the illegal strike not to
attend at its premises. These employees
were paid in full for
this period.’
[4]
The
burden of proof
[17]
Section 192
of the LRA provides as follows:-
‘
(1)
In
any proceedings concerning any dismissal, the employee must establish
the existence of the dismissal.
(2)
If
the existence of the dismissal is established, the employer must
prove that the dismissal is fair.
’
[18]
It is trite
that in dismissal proceedings, the
onus
rests with the employees to establish and prove that they were
dismissed. On the other hand, the employer has to demonstrate
and/or show that the dismissal was fair. In general, this means
that the Applicants must prove that the Respondent has taken
some
initiative to terminate the contract, and that the Respondent’s
action has caused the termination.
[5]
[19]
As
envisaged in section 192 of the LRA, on the first day of the trial,
it became apparent that the parties were
ad
idem
that the duty to begin and the
onus
of justifying the fairness of the dismissal, lied with the
Respondent. On those bases, the Respondent was the first to
adduce
oral testimony through various witnesses.
[20]
This matter
proceeded before me on the following dates:-
20.1
1 to 4
December 2014;
20.2
29 June
2015 to 3 July 2015;
20.3
5 December
2016;
20.4
12 December
2016 (oral argument).
[21]
After
having reserved my judgment on 12 December 2016, Adv Tutubalang,
representing the employees described in Exhibit B, on 15
December
2016, despatched further heads of argument (after the parties having
advanced their oral submissions).
[22]
As a
result, I afforded the parties, to react to the new further
submissions delivered by Adv Tutubalang, by submitting their further
heads by no later than 24 February 2017.
[23]
I have
considered all these further submissions by the parties. It
would appear from having perused the further submissions
from the
other counsel involved in this matter, that I should not consider
these further submissions as they were delivered under
extraordinary
circumstances (i.e. post the parties having submitted their oral
argument and the matter being adjourned, as the
judgment was
reserved).
Oral
Evidence
Respondent’s
witnesses
[24]
The
Respondent called the following witnesses:-
24.1
Mr Marius
Jakobus Matthee (“
Mr
Matthee
”);
24.2
Ms Tanya
Aucamp (“
Ms
Aucamp
”);
24.3
Mr Craig
Owen Malander (”
Mr
Malander
”);
24.4
Mr Nico
Smit (“
Mr
Smit
”).
The
evidence of Mr Matthee
[25]
In October
2012, he was employed by the Respondent. He has been working
for the Respondent for 33 years. He is employed
in a capacity
of the Head of Employee Relations.
[26]
He
witnessed the unprotected strike that took place during October 2012
at the Respondent’s premises. This unprotected
strike was
different from the ones he had experienced before as it was a violent
strike action wherein individuals were assaulted
and the Respondent’s
huge mining equipment, including big trucks were seized by those
employees who participated in this
unlawful strike.
[27]
The
Respondent is mining iron. It produces approximately 35 million
tons of iron ore per annum. The Respondent is part
of the
Sishen Iron Ore Group.
[28]
The wage
increments and wage disputes are dealt with by means of a collective
wage agreement which is negotiated on a central basis
for all
participating mines. Such wage agreements will cover a period
of two years. The employees are normally represented
by NUM and
Solidarity.
[29]
The witness
was referred to page 201 of bundle A and identified that document as
an interdict for the unprotected strike.
The witness was
referred to the founding affidavit in the interdict application which
indicated that “
On
Tuesday, 25 September 2012, employees handed the memorandum of
demands to Sishen management. In terms of the memorandum
the
employees demanded a basic wage of R15 000 … The
employees gave Sishen management a deadline to respond to their
demands by Wednesday, 3 October 2012
”.
[6]
[30]
He
testified on a document on page 221 of bundle A and identified it as
a letter from the employer in response to the employees’
demands which recorded that all the demands of the employees can only
be dealt with through the officials of the recognised unions.
[31]
The witness
also testified on a document on page 348 which is a signed wage
agreement concluded between the employer, Solidarity
Union and
National Union of Mineworkers. Fundamentally, this agreement
contained an express term to the effect that “
This
agreement shall be valid and enforceable for the period 1 July 2012
to 30 June 2013
”.
[7]
[32]\
The
Respondent would not be able to afford the demand of R15 000
increment which was demanded by the employees as this would
represent
130% increment on the salaries which they were already being
receiving from the Respondent.
[33]\\
On Sunday,
30 September 2012, the employees working in morning shift, handed the
same memorandum of demands, as the one already
alluded to above.
The employees were informed by means of a document on page 194 of the
bundle that they are engaged in an
unprotected strike action.
The employer will automatically apply the no-work-no-pay rule.
The conduct of the employees
constitute a serious misconduct which
may lead to their dismissal.
[8]
[34]
Throughout
this illegal unprotected strike, NUM was engaged by the Respondent.
During the interaction between the Respondent
and NUM, NUM informed
the Respondent that it was not in charge and/or responsible of the
strike action.
[9]
[35]
The strike
was interdicted by this court and confirmed to be an unprotected
strike as per the court order dated 3 October 2012.
[10]
[36]
The court
order of 3 October 2012 was served on the Applicants and distributed
to the employees through different means.
[11]
[37]
On 4
October 2012, a NUM delegation from NUM Regional Office in Kimberly
arrived at the employer’s premises. This delegation
attempted to engage with the striking employees but their attempts
were in vain as they were chased away.
[12]
[38]
A meeting
was held with the representative of the striking employees. The
meeting was attended by Loots, Matthee, Malander,
Mokwana, Thue,
Khairone, Botleng and Khasebe. However, the meeting did not
yield any positive results as the employees who
engaged in the strike
persisted with their conduct. The management was concerned
about the value of the trucks which costs
approximately R50-million
and the safety of other employees. The strike action resulted
in a total mine closure.
[13]
[39]
The
employees were aware of the court interdict. Furthermore, they
were informed that they were in contempt of the court interdict
as
they persisted with their illegal strike. The Respondent issued
various notices to the employees which yielded no results.
[14]
[40]
On 7
October 2012, a further meeting was convened between representatives
of the employer and the striking employees. The
employees
persisted with demanding an increment.
[15]
[41]
The illegal
unprotected strike was violent in nature as the employees drove the
big trucks onto the fence which resulted in the
fence being flattened
and destroyed. The strike posed a real threat to property being
damaged and people being injured.
[42]
The witness
was referred to page 258 of the bundle which confirmed that employees
were engaged in an illegal strike and these employees
did not only
include those from shift D but it included shifts A, B, C and D.
[16]
[43]
The witness
was taken through other documents in the bundles which confirmed that
there was an unlawful unprotected strike.
The employees
persisted with the strike. The employees were acting outside
the mandate of their unions and outside their
bargaining structures.
Furthermore, that the employees were afforded an amnesty which they
declined. Fundamentally,
that the employees proceeded with the
strike despite the court orders made by this court.
[44]
The
Respondent was left with no option but to notify all the striking
employees of the disciplinary proceedings initiated against
them.
The notice to attend the disciplinary inquiry were distributed by
means of a helicopter, bulk SMS messages, copies
of the notices
distributed to the employees together with their food parcels, there
was a continues broadcast on the local Kurara
radio station wherein
the employees were informed of the disciplinary inquiry.
[17]
[45]
The strike
action became worse. The Respondent had to approach this court
for a second interdict. The Respondent sought
the intervention
of the police in order to regain its property and for its properties
to be secured.
[18]
[46]
The witness
was referred to a document on page 33, paragraph 51 wherein NUM
sought a postponement of the disciplinary inquiries
which were
scheduled for 15 October. This demonstrates that NUM and the
Applicants were indeed aware of the disciplinary
inquiries as they
have received the notices, to that effect. The Respondent
refused to grant the Applicants’ postponement.
[19]
[47]
During the
set down of the disciplinary inquiry, NUM did not attend.
However, there were employees who attended the disciplinary
inquiry.
From 3 to 15 October, the Respondent was in constant engagement with
NUM. In some instances, the Respondent
would engage two to
three times a day with NUM discussing the illegal strike.
[48]
The strike
action cost the Respondent to lose an amount of $14-million in
revenue, per day. The trust relationship between
the Respondent
and the employees were broken down irretrievably as a result of the
damage caused by the employees to the Respondent.
[49]
There are
no longer positions available as the vacant positions were all filled
subsequent to the employees being dismissed.
[20]
[50]
The witness
was cross-examined at length. The issues canvassed during
cross-examination sought to exonerate all the striking
members and/or
the Applicants before court premised on the employer’s failure
to demonstrate that it was able to identify
each and every employee
who was on strike.
[21]
[51]
The witness
was also challenged on his evidence pertaining to whether or not the
court order was served to all the Applicants.
The witness
testified that the Respondent did everything possible to convey the
court order to the Applicants and their representative.
[22]
[52]
The witness
was also cross-examined on the disciplinary notices which were
distributed by the Respondent to the Applicants.
It was
suggested to the witness that because of the volatile environment it
was possible that some of the employees did not receive
the notices.
It was suggested that some of the witnesses might not have attended
the disciplinary inquiry as it was not safe
for them to travel to the
venue where the disciplinary hearing was held.
However,
no witnesses was called by the Applicants to testify on this
issue
.
[23]
[53]
The witness
was also challenged on the SMS’s which was despatched to the
Applicants notifying them about the disciplinary
inquiry. It
was suggested that because the Respondent did not have any record of
the list of the Applicants who received
the SMS’s, it was
therefore possible that the Applicants did not receive same.
What is
evident from the record is the fact that NUM did request a
postponement and this is indicative of the fact that the Applicants
were aware of the date, time and venue of the disciplinary
inquiry
.
[24]
[54]
The witness
was also questioned on the appeal hearing. It was suggested to
the witness that it was dangerous to attend the
appeal hearing and
that was a justification for some of the employees not to attend the
appeal hearing.
[25]
The
evidence of Ms Aucamp
[55]
In October
2012, she was employed by the employer at Sishen Mine in Kathu.
During the unprotected strike, she was still employed
by the employer
as the Communication Manager.
[56]
She was
responsible for all communication, strategic planning and the
execution of the communication plan pertaining to the strike
and
managing the crises communication.
[26]
[57]
During the
unprotected strike, she was responsible for both internal and
external communication which was directed to the specific
audience
groups. The communication was directed at the community,
stakeholders and employees.
[58]
The
employees were informed about the unprotected strike by means of SMS
system which has over 17 000 people that are registered.
The employer utilised radio communication and newspaper communication
in various newspapers. The employer also used flyers.
Furthermore, the employer used helicopters to distribute the notice.
In addition, the employer used emails and information
billboard, as
well as screens inside the mine.
[27]
[59]
In relation
to the communication through radio, the employer focused on radio
adverts which were aired on the local community radio
station called
Kurara FM. There were interviews conducted through Motsweding
radio station.
[60]
In terms of
the print media, the employer posted adverts in the local newspapers
which are distributed within the community and
covers the area as far
as Upington. Other adverts were posted in Media 24, Northern
Cape newspaper and the Volksblad.
[28]
[61]
More
specifically, in relation to the notices distributed during the
strike, the witness testified that the employer used SMSs and
flyers. The cellphone numbers of the employees were obtained
from the HR system. The notices were also wrapped with
the food
parcels which were offered to the employees. In addition, the
notices were dropped through helicopter. Furthermore,
there
were posters which were placed as strategic shopping points.
[62]
In relation
to the two interdicts, the same methods of notifying the employees
were utilised (i.e. flyers despatched with the food
parcels, SMS
notifications, helicopter drop-offs and posters at the shopping
centres).
[63]
The witness
was cross-examined but her evidence remained consistent throughout
pertaining to how the employees were engaged and
notified about their
illegal conduct, including how the employees were notified about the
disciplinary inquiry and the two interdicts.
The
evidence of Mr Malander
[64]
During
October 2012, he was employed by the Respondent in the capacity of HR
Operations Manager. He was later promoted to
a position of
Senior Specialist: Transformation. He testified in relation to
annexure H.
[65]
The
employees who were participating in the unprotected strike as listed
on annexure H, were identified by using the time and attendance
register, the clocking system and the access control system.
The clocking system will indicate when the respective employees
went
into the mine and/or clock in and out from their respective shifts.
The assumption was made that the employees that
had failed to clock
out, were therefore participating in the unprotected strike.
[29]
[66]
He also
testified in relation to annexure A which contained a list of
employees who have abandoned the strike. Some of these
employees reported to management that they were no longer
participating in the strike.
[67]
He also
testified in relation to annexure I. Annexure I shows when the
employees on that list entered the mine and when they
exited the
mine.
[68]
He was
referred to a document on page 397, which listed the employees that
were identified as participating in the strike through
various means
of identification, which was utilised by the employees.
[69]
The other
means of identifying the employees that were on strike was by means
of the list received from the South African Police
Services which
contained the names of the employees who were arrested on 16 October
while being at the G80 dump.
[30]
[70]
If one has
regard to annexures H, I and J including the 49 employees who were
arrested, this indicates that all the Applicants who
were accounted
for as having engaged in the unprotected strike were totalling to
110.
[71]
There were
three meetings which were held with the employer representatives.
These meetings were held on 4, 7 and 9 October.
The minutes of
those meetings were also identified by the witness.
[31]
[72]
The witness
was cross-examined and the contents of the minutes were placed in
dispute including the individuals who attended the
meeting.
[73]
Furthermore,
it was suggested to the witness that the Respondent was unable to
demonstrate through annexures H, I and J as to which
of the employees
actively participated in the unprotected strike.
The
evidence of Mr Smit
[74]
In October
2012, he was employed by the employer as the Plant Manager. He
is currently employed by Diro Resources and he is
the CEO of the
aforesaid company.
[75]
In October
2012, he was appointed as the chairperson of the disciplinary hearing
which were held on 15 October 2012. During
the disciplinary
inquiry, he was satisfied that the employees who were absent from the
disciplinary inquiry were indeed notified
about the set down of the
disciplinary inquiry.
[32]
[76]
He was
referred to bundle A, page 346 and identified that document as a
notice to attend the disciplinary inquiry. He testified
that
NUM sought the disciplinary inquiry to be postponed.
[33]
[77]
He further
testified that there was a response to NUM’s request for
postponement. NUM was informed that it must attend
the
disciplinary inquiry in order to move an application for postponement
on behalf of the employees.
[34]
[78]
During the
disciplinary inquiry, no request for postponement was made. The
representative of NUM, were not present at the
disciplinary inquiry.
Only 7 employees attended the disciplinary inquiry on 15 October.
There was sufficient security
at the venue of the disciplinary
hearing.
[79]
He
reiterated that he was satisfied with the methods which the company
utilised to notify the employees about the disciplinary inquiry
and
he was contend that the employees were aware and did receive the
notice of the disciplinary inquiry.
[35]
[80]
The 7
employees who attended the disciplinary inquiry were informed of
their rights. He testified about the minutes of the
disciplinary inquiry which was held on 15 October 2012 and confirmed
the correctness of same.
[36]
[81]
The witness
was cross-examined. It was put to him that in the capacity in
which he was employed by the Respondent, he would
do everything to
protect the interest of the employer.
[37]
[82]
He was
asked at length about NUM’s request for a postponement.
He testified clearly that during the disciplinary inquiry,
NUM did
not bring any formal application for postponement on behalf of the
employees despite being informed to do so by means of
the
correspondence which the parties referred to.
[38]
[83]
He was
questioned whether during the disciplinary inquiry evidence was led
demonstrating how each and every employee participated
in the
unprotected strike. He was questioned about annexures H, I and
J which contained the different names of employees.
[39]
[84]
It was put
to him that before he was appointed the chairperson of the
disciplinary inquiry, he already had a view that the employees
were
engaged in an unprotected strike.
[40]
[85]
The
Respondent closed its case and it was the turn of the Applicants to
adduce their oral evidence.
Applicants’
witnesses
[86]
The
Applicants called the following witnesses:-
86.1
Ms Kehilwe
Jane Maruping (“
Ms
Maruping
”);
86.2
Mr Moses
Khewagele Kgabutswe (“
Mr
Kgabutswe
”);
86.3
Ms
Constance Kelebogile Kgosimele (“
Ms
Kgosimele
”);
86.4
Mr Thue
(“
Mr
Thue
”);
86.5
Mr Bongani
Emmanuel Kies (“
Mr
Kies
”);
86.6
Mr George
Meyer (“
Mr
Meyer
”);
86.7
Mr Poloko
Vincent Moruti (“
Mr
Moruti
”);
86.8
Mr Mosala
Abel Tsheko (“
Mr
Tsheko
”).
The
evidence of Ms Maruping
[87]
She
testified that she still remembers what occurred on 2 October 2012,
as there was a strike. She was doing a dayshift and
was
supposed to knock off at 20:00 in the evening. She was
operating under the C shift.
[88]
The strike
started during the night and at that time D shift was at work.
The Respondent never told the employees to stay
at home, instead, it
suspended their access cards so that they were unable to enter, at
the employer’s gate.
[41]
[89]
At the end
of her shift, she exited the employer’s premises. She
used her access card, as it was still functional.
On 3 October
2012, she was supposed to do a night shift, and she discovered that
her card was deactivated. She does not have
proof that the
employees who commenced the unprotected strike from D shift were
aggressive.
[42]
[90]
On 3
October 2012 when she arrived at the employer’s premises, she
witnessed that there were other employees who were waiting
at the
gate trying to gain access to the employer’s premises as their
cards were deactivated. The security guards told
them to go
back home.
[43]
[91]
On 3
October 2012, she did not participate or take part in the unlawful
strike. She was not among the employees from the B
shift who
broke the gates in order to gain access to the employer’s
premises and to join the other employees at the G80 dump.
[44]
[92]
On 4
October 2012, she was supposed to do a nightshift. She went to
the employer’s premises and waited at the gate.
She
observed that there were other employees who were waiting at the gate
who could not access the employer’s premises.
She then
went back home. In essence, she testified that on 3 and 4
October 2012, she was unable to gain access to the employer’s
premises.
[45]
[93]
On 5
October 2012, she telephoned Mr Loots and asked him about when was
she expected to return to work and asked him about the situation
at
work. At the time when she called Mr Loots, she was at the
gate. Mr Loots informed her to call Mr Marius.
She called
Mr Marius who in turn requested the witness and others to form a
delegation. This delegation was the one which
was supposed to
hold a meeting with the management of the employer.
[46]
[94]
The people
who constituted the delegation of the employees,
inter
alia
,
included the witness, Bongani Kies and Ben Makhutle as all of them
were standing outside, at the Respondent’s premises.
The
security official opened the gate for them, in order for the
delegation to access the gate. They followed Mr Marius to
his
office.
[95]
In the
meeting discussions related to how to resolve the problem of the
employees who were at the mountain (G80). They were
informed by
Mr Matthee about the demand of the employees who were at the mountain
that they were demanding an amount of R15 000.
She only
became aware of the demand on 5 October 2012.
[47]
[96]
On 6
October 2012, they had a meeting with the management. The
purpose of this meeting was to discuss what to do with the
people who
were still at the mountain. There was no agreement. In
the words of the witness, she states that “
We
never had an agreement
”.
[48]
[97]
Mr Loots
indicated that there is only one union that was recognised which the
employer can discuss with. That union was NUM.
A meeting
took place with NUM. At this meeting,
there
was no agreement
.
The employee left for the day. On 7 October 2012, there was a
meeting with the employer, but she does not remember
what was
discussed.
[49]
[98]
Her
employment was terminated by means of an SMS which she received on 15
October 2012. The SMS message indicated that she
was not
present at the hearing and as a result, she was dismissed.
Prior to 15 October 2012, she did not receive anything
from the
employer and that is the reason why she was surprised by the SMS she
received on 15 October 2012.
[50]
[99]
After
having received the SMS of 15 October 2012, NUM intervened on behalf
of all the employees and instituted an appeal on behalf
of the
employees.
[51]
[100]
The witness
testified that she did not receive a notice informing her about the
disciplinary inquiry. She was not aware of
any notices which
were dropped off by means of a helicopter. She was not part of
the employees who were engaged in the unprotected
strike.
[52]
[101]
She did not
hear any adverts broadcast by the employee at the local radio station
(Radio Kurara). She was not aware, at all,
about the rights of
the employees which were provided for to the employees pertaining to
being represented at the disciplinary
hearing.
[53]
[102]
The witness
was cross-examined and the cross-examination revealed the following:-
102.1
the witness
conceded that there was an unprotected strike;
[54]
102.2
during the
strike she was elected as a delegate;
[55]
102.3
the
employee was confronted with her version which she gave during the
appeal proceedings and it was demonstrated that in material
way
contradicted her evidence in court. The employee was unable to
explain these contradictions except to lay the blame on
her legal
representative as she said “
Which
mean, M'Lord, I did not understand my lawyer well, I thought that we
were talking about the 7
th
and we ended on the 7
th
,
so I never knew, I never understood I had to explain further after
the 7
th
”;
102.4
this
evidence is indeed contradictory as the witness in her evidence in
chief only testified about the events until the 7
th
October and in so many words testified that she did not recall what
transpired on 7 October. Yet, the record of appeal clearly
demonstrates that she participated beyond 7 October 2012;
[56]
102.5
the witness
also materially contradicted herself when it was demonstrated that
she was in fact elected by the employees to represent
them and that
she was not chosen by Mr Marius or Mr Loots as she testified, before
this court;
[57]
102.6
the witness
was confronted with the minutes of 7 October 2012 and it was
demonstrated that the minute was correct to the extent
that it
referred to her;
[58]
102.7
it was put
to the witness that the minutes demonstrate that Mr Kies, who was
part of the team and the other three, including the
witness were
there for the same purpose and supporting the demands of the
employees. The witness answered that “
I
will not be able to answer that
”;
[59]
102.8
more
fundamentally, on page 371, line 2 to page 372, line 12, the witness
testified as follows:-
“
Okay,
now, I want to take you down two paragraphs to where your name
appears. It says here, and this is what you then say:
“
We
want you to know, it is not just B and D shift on strike. A, B, C, D
shift are all with us, also, if we were satisfied with the
union, we
would not have been here.”
---
What I said there, M'Lord, is that all the shifts, they are affected
by the strike and the NUM is supposed to be with us as
the delegation
in the meetings that we are having.
Okay,
so these are the words you said and that is what you meant, you are
telling this court? --- That is true.
Okay,
and when you say: “A, B, C, D shifts are all with us,”
who is the “Us” there? --- The delegation,
M'Lord.
Oh,
so you had the A, B, C, D shifts in that meeting with you in the
delegation?
INTERPRETER:
Pardon?
MR
ITZKIN: Are you saying the A, B, C, D shifts were all with you as
part of the delegation? --- Yes.
Okay,
so we had a delegation of hundreds of workers that was meeting with
management? --- In the delegation that was meeting with
the
management, there was skof A, skof B, skof C, skof D.
What
is “Skof”?
INTERPRETER:
Shift, sorry, M'Lord.
MR
ITZKIN: Shift. And were you representing them, you say? --- I do not
under that, question ...[intervenes]
Okay,
which shift were you representing? You say they were delegates from
each shift, which shift were you there to represent? ---
Maybe you
did not understand me. What I meant is that the delegation that was
selected, was selected to represent all the four
shifts.
Oh,
so you were representing all of them? --- It is true.
And
in this first line you say:
“
We
want you to know, it is not just B and D shift on strike.”
So
you are saying, all of the shifts are on strike, it is not just B and
D, correct? --- I said all the shifts are being affected
by the
strike and the situation that was there.”
[60]
102.9
the witness
was confronted with the document on page 259 and she appeared to not
remembering the contents of what was contained
in the aforesaid
document. In fact, there were other parts she remembered and
others which she said she did not remember.
[61]
The
evidence of Mr Kgabutswe
[103]
On 3
October 2012, he was working in the plant. He was operating
under B shift. He knocked off in the morning on 3 October
2012. After work, he went to the hostel. He became aware
of the strike when he knocked off as he saw people who were
waiting
outside.
[104]
On 4
October 2012, he was at the hostel. He heard people saying that
the mine has been shut down.
[62]
[105]
He normally
uses his clock card to access the employer’s premises.
The last time when he used his clock card was on
3 October 2012, in
the morning. On 5 October, he spend most of his time in the
hostel.
[106]
When he
knocked off on 3 October 2012, he was supposed to return to work on 7
October 2012 and he did not go back to work on 7 October
2012 as the
gates at the employer’s premises were closed. He did not
take part in the strike.
[63]
[107]
He
sustained injuries during the strike. He was assaulted during
the strike. He received medical attention at the Kimberley
Hospital. He was admitted as a patient.
[108]
After he
was discharged from hospital, he received a notification about the
appeal. He attended the appeal. He was not
aware of any
disciplinary inquiry that took place before the appeal.
[64]
[109]
During the
appeal proceedings, he was represented by NUM. He did make a
statement at the appeal hearing. He was not
given any reasons
for his dismissal.
[65]
[110]
The witness
was cross-examined. The cross-examination revealed the
following:-
110.1
he stayed
at G80 overnight because of lack of transport. Furthermore, he
stayed at G80 overnight as he was waiting for a report
from the
person in charge;
[66]
110.2
it was
further put to the witness that on probabilities he was at the G80 as
he was supporting the demand of R15 000 increment.
The
witness said he was not going to answer that question;
[67]
110.3
it was put
to him that on probabilities, the witness was in fact at G80 in order
to support the unprotected strike and the demand
of the employees
pertaining to the salary increment to R15 000;
[68]
110.4
the witness
conceded that he was not prevented to leave G80 on 15 October
2012;
[69]
110.5
he disputed
the evidence which was put before the employer’s witnesses that
he was arrested on 16 October 2012. He said
that he was not
arrested but he was assaulted. However, when pressed for
answers, he then conceded that he was in fact arrested;
[70]
110.6
he was
referred to the appeal record on page 114. He agreed that he
was represented by NUM during the appeal proceedings.
It was
demonstrated to the witness that during the appeal proceedings,
nowhere was it ever submitted on his behalf that he did
not know the
charges against him;
[71]
110.7
it was also
demonstrated to the witness that during the appeal proceedings there
was no defence which was advanced on his behalf;
[72]
110.8
it was
demonstrated to the witness that during the appeal proceedings, he
did not deny that he participated in the unprotected strike.
[73]
The
evidence of Ms Kgosimele
[111]
On 3
October 2012, she was operating on B shift. She was supposed to
do the dayshift on 3 October 2012. She did not
go to work on 3
October 2012, as she was booked off duty by the doctor, for medical
reasons. In essence, from 3 to 8 October,
she was not at work,
as she was on sick leave.
[74]
[112]
She was
supposed to go back to work on 12 October 2012. However, she
was unable to work as there was a lockout. When
she went to
work on 12 October 2012, her card was deactivated. She also
remember that the reason why there was a lockout
is because the
employees were demanding R15 000 from the memorandum and also
raising other issues pertaining to SARS.
[75]
[113]
When she
went to work on 12 October 2012 and discovered that her card was
deactivated, she went back to the hostel, where she stayed.
On
13 October, she stayed at home.
[114]
On 14
October, there were cars which were taking food to the workers who
were at the stockpile (G80) and she then also went at the
stockpile.
She went to the stockpile because she wanted to hear the feedback
from Andrew Loots as the other employees were
also waiting there to
hear the feedback. She wanted to hear the feedback first
hand.
[76]
[115]
She went to
the stockpile on 14
th
and remained there until the 16
th
when she was arrested. According to her, forty seven (47)
employees were arrested at the stockpile. After she was
released on bail, she did not receive any communication from the
employer. She received a message from the union that she
was
due to appear on her appeal.
[77]
[116]
Prior to
receiving the notice of appeal from the union, she never received any
notification entailing her charges. In essence,
she testified
that she received nothing from the employer pertaining to the
disciplinary inquiry.
[78]
[117]
She
attended the appeal and she was represented during the appeal
proceedings by NUM. She disputes the fact that the appeal
record indicates that she was afforded an opportunity to present her
defence.
[118]
The witness
was cross-examined. Fundamentally, her cross-examination
revealed the following:-
118.1
she
participated in the unprotected strike as she was arrested by the
police while being there;
118.2
she was
represented during the appeal proceedings and there was no challenge
pertaining to the substantive component of her dismissal;
118.3
she was
aware of the demand of the employees and supported the aforesaid
demand.
The
evidence of Mr Thue
[119]
When the
unprotected strike commenced, he was operating under B shift.
When he arrived at work on 3 October 2012, he noticed
a group of
employees waiting at the employer’s gate. His clock card
was not working as it was deactivated.
[120]
They went
to the office of Mr Loots in order to obtain a feedback. They
were told by Mr Loots that the workers had taken possession
of the
employer’s equipment and they are at G80 dump. He was not
aware of the employees’ demand as he was on
sick leave.
[121]
The witness
testified that Mr Loots asked him and other employees to go to G80
dump in order to speak with the other employees.
He went to G80
and met with the employees who informed him that they were waiting
for a feedback from the employer. He then
decided to stay over
at G80 with the rest of the employees who were engaged in the
unprotected strike. His justification
is that there was no
transport to take him back to the hostel.
[122]
He left the
premises of the employer on 5 October 2012 as Mr Loots has informed
them that they were not a recognised union and there
was nothing more
forthcoming from the employer.
[79]
[123]
His next
interaction with the employer, it was during the appeal proceedings.
He was represented by a union official.
He was taken through
the appeal record with the emphasis that the chairperson did not sign
the minute.
[124]
The witness
was cross-examined. The cross-examination revealed the
following:-
124.1
the witness
denied the obvious, that there was a strike at the time when he went
to the G80 dump;
[80]
124.2
the witness
was confronted with his statement he made during the appeal
proceedings which is on bundle 4, page 1363 where it is
recorded that
“
I
joined the strike on the 3 October 2012 and pulled out
on the 5
October because the General Manager did not want to talk to us as
delegates
”.
This statement clearly demonstrates that the employee was part of the
individuals who were involved in the unprotected
strike. I do
not accept the employees explanation that he wrote what he was told
to write by Mr Van Der Merwe as there is
no evidence justifying such
an assertion;
124.3
furthermore,
the witness was confronted with this document and asked whether at
any stage did he inform his representative that
he did not agreement
with the contents of same and the witness answered no;
[81]
124.4
he was
aware of the employees’ demand of R15 000 increment, as
recorded in the memorandum. Furthermore, he supported
the needs
of other employees, pertaining to the R15 000 increment
demand;
[82]
124.5
the witness
was confronted with the transcript of the appeal which also clearly
indicated that he accepted the statement which he
made and
furthermore that he joined the unprotected strike voluntarily.
[83]
The
evidence of Mr Kies
[125]
He was
employed as a Plant operator at level Grade 2. On 3 October
2012, he was operating under shift C. He was supposed
to
commence his night duty. When he arrived at the company, he
heard a lot of rumours from people who were outside the gate.
He was told that there was a shift that was camping at G80 and
awaiting to hear feedback from the company.
[84]
[126]
After
hearing about these rumours, he called his leader at work, Mr Nicky
Beukes. Despite other people saying that their cards
were
deactivated, he discovered that his card was in fact active.
However, he went back home.
[85]
[127]
Before
going back home, he went to the turnstile in order to test that his
card was active, he realised that it was active, however,
he did not
go inside the employer’s premises, as he chose to stand
outside.
[86]
[128]
He received
an SMS from his leader informing him that they were not going to
work, on that particular day. He decided to go
back home.
On 4 October 2012, he went to the Respondent’s premises.
He stood outside the employer’s premises
and nothing happened.
[129]
He was part
of the delegation which attended the meeting with the employer.
He was told by the employer that there were employees
who were
holding and keeping the employer’s machines at G80 dump.
He testified that he was informed that the employer
received a letter
of demand from the employees who were operating under shift B.
[87]
[130]
After the
meeting, he was escorted outside the gate by Mr Marius.
[131]
He went to
G80 at the request of Marius in order to discuss with the other
employees. They returned from G80 around 18:00.
[88]
[132]
He
testified about the events at G80 and stated that while they were
discussing with the employees, the management decided to leave
them
there and told them that they will fetch them the next day.
[89]
[133]
The witness
was referred to the transcript of the appeal proceedings. He
contradicted what was contained in the appeal record.
He
confirmed that he was represented by NUM during the appeal
proceedings. He confirmed that he signed the document starting
from page 1542.
[90]
[134]
The witness
was cross-examined. The witness was evasive and argumentative.
He sought to dispute even things which he
admitted, during evidence
in chief, for instance:-
134.1
he refused
to accept that there were employees at G80 who were holding the
employer’s machinery at ransom;
[91]
134.2
he sought
to deny the obvious evidence of Ms Maruping who testified that the
workers were misbehaving and claimed that he did not
hear that,
despite the fact that he was at all material times, sitting, in
court;
[92]
134.3
as the
court, I had to intervene in order for the witness to answer the
questions.
[93]
[135]
In addition
to his evidence, under cross-examination, the witness’s
evidence revealed the following:-
135.1
it was
demonstrated to him that the version put to the other witnesses that
he only went to the employer’s premises on the
8
th
of October 2012, is in fact incorrect as the record of the
proceedings demonstrate that on the 7
th
of October 2012 he was part of the delegation that held a meeting
with the management of the Respondent;
[94]
135.2
he was
referred to the minute on page 257 and it was put to him that it
recorded the accurate events of what transpired during the
aforesaid
meeting. The witness, without furnishing any plausible
explanation, distanced himself from what was recorded in
the
minute;
[95]
135.3
it was put
to the witness that “
In
fact, you must take responsibility for all the employees that were
dismissed because of your action that you took as a leader
and as
part of the delegation, all these employees that are sitting here,
you are responsible for their dismissal. Would
you like to
comment on that?
”.
The witness responded as follows “
That
is your views. There is nothing that I can say
”.
The
evidence of Mr Meyer
[136]
He was
employed by the Respondent as a grader. On 3 October 2012, he
was operating under shift D. He went to work on
2 October 2012,
at night, his shift ended in the morning of 3 October 2012.
When he commenced his shift on 2 October 2012,
he started working at
G80 dump.
[96]
[137]
While he
was working, he saw the trucks being parked at G80. He stopped
working as the trucks occupied the area where he was
supposed to
work. He saw employees who gathered at G80 who were saying that
they were waiting for feedback from Mr Loots.
[97]
[138]
He remained
at G80 dump from the 3
rd
until the 6
th
October 2012. He was asked whether while they were at the G80
dump, did anyone inform him of what was happening and furnished
him
with any reasons for what was happening, he answered that “
I
do not remember
”.
On 6 October 2012, he decided to leave G80 and walked away from
G80.
[98]
[139]
On 6
October 2012, he walked from the G80 dump towards the mine gate.
He attempted to clock out, his card was deactivated.
He told
the security that his card was deactivated and he was taken to Mr
Loots. Mr Loots asked him how many employees were
at G80 and he
responded that there were approximately 300 employees at the G80
dump. After 6 October 2012 when he left the
employer’s
premises, he never went back to the compound.
[140]
On 15
October 2012, they were called at Mangala Lodge to attend a meeting.
However, when he arrived at that meeting, he was
told that he was not
required in that meeting. He was informed about his dismissal
by a call he received from Human Resources
(HR). He was
referred to a document on page 653. He was represented by NUM
during the appeal. He was taken through
the document like other
witnesses, he disputed the contents of the appeal record.
[99]
[141]
The witness
was cross-examined and his evidence during cross-examination,
revealed the following:-
141.1
for the
three days that he spend at the G80 with his colleagues, he did not
say a word as he was sitting alone;
[100]
141.2
furthermore,
he testified that for the period of three days even when the
management provided food to the employees who were at
G80, he did not
eat anything;
[101]
141.3
he
confirmed that he knew about the memorandum and the fact that the
employees were waiting for the feedback when he went to the
G80
dump;
[102]
141.4
he
attempted to dispute that there was a strike and sought to proffer a
very evasive answer;
[103]
141.5
he was
referred to a document on bundle B, page 658. It was identified
as a statement which the witness submitted during the
appeal
proceedings. It was demonstrated to this witness that during
the appeal proceedings and as evident in his statement
submitted
during the appeal, nowhere has he intimated that he was not supposed
to be found guilty of the misconduct that he was
charged with.
He sought to distance himself from his statement which was submitted
during the appeal proceedings.
The
evidence of Mr Moruti
[142]
On 3
October 2012, he was operating under shift A. His shift was not
working on 3 October 2012. They were all off duty
and it was
supposed to resume its duties on Friday, 5 October 2012. He was
able to access the employer’s premises through
the vehicle
gate. He went to attend the normal briefing sessions.
However, they did not take place, as other employees
did not
arrive.
[104]
[143]
He was
informed that there were workers who were at G80 and waiting for the
feedback from the employer. He was aware of a
memorandum which
was despatched to the employer around issues concerning SARS and
issues pertaining to money. He got a lift
from one Bongani
Sibuso and they went to G80 dump in order to join other
employees.
[105]
[144]
From the
5
th
to the 8
th
of October 2012, he was together with other employees at G80 waiting
to hear from management and there were no news forthcoming
from the
employer.
[106]
[145]
The witness
confirmed that during the appeal hearing, he was represented by NUM.
He was taken through the appeal record like
other witnesses who
disputed what was reflected in the appeal record.
[107]
[146]
The witness
was cross-examined, his cross-examination revealed the following:-
146.1
the witness
conceded that he was at G80 and waiting for the employer to address
them;
[108]
146.2
furthermore,
the witness conceded that they were discussing issues pertaining to
money with the employer;
[109]
146.3
he conceded
that he was at the employer’s premises from 5 to 11 October
2012;
[110]
146.4
it was put
to the witness that “
you
do confirm that you, Mr Khoto, Ms Maruping and others were there as a
joint delegation to represent the workers’ interests
and your
own, correct?
”.
The witness answered “
The
meetings that I attended, they were there
”;
[111]
146.5
the witness
was taken through various minutes. He distanced himself from
the contents of the minutes;
[112]
146.6
the witness
was taken through the appeal transcript. He admitted that he
was part of the employees who were gathering at G80
dump.
However, he denied that there was ever a strike;
[113]
146.7
he, like
other witnesses sought to distance themselves from what was said
about them in the appeal record.
[114]
The
evidence of Mr Tsheko
[147]
He was
operating under shift B on 3 October 2012. When he attended his
shift, he found employees standing in the employer’s
gate.
They were saying that their access cards were not working. When
he went to the briefing session, he was told
that the D shift was
still on site and they were gathering at the G80 dump. Mr Loots
informed them that the mine was closed
that is the reason why they
were unable to access the mine by using their access cards.
[148]
He then
decided, as a safety representative, to go to G80 in order to write a
report pertaining to safety. When they arrived
at G80, they
found that the situation was safe.
[115]
[149]
He was not
aware of the court order issued by the court on 5 October 2012.
The first time he heard about the court order was
during these
proceedings. He was referred to file 5, page 1855 where his
reasons for the appeal were recorded. Like
other witnesses, he
distanced himself from what was stated in the appeal record.
[116]
[150]
The witness
was cross-examined, his evidence during cross-examination, revealed
the following:-
150.1
it was put
to him that the version which was put to Mr Matthee was different to
what he testified before the court. In particular,
it was
demonstrated to him that it was never put to Mr Matthee that he went
to G80 in order to discharge his responsibilities as
a safety
representative;
[117]
150.2
he was
referred to the appeal record on bundle B, file 5, page 1860, he
distanced himself from what was recorded in his appeal record
and
sought to justify the contradictions by saying that no one translated
to him in Tswana language.
Was
there an unprotected strike
[151]
From having
listened to the evidence adduced on behalf of the Respondent and the
Applicants, it has indeed become common cause that
the Applicants
were engaged in an unprotected strike.
[152]
The
evidence of the Respondent’s witnesses, to wit, Matthee, Aucamp
and Malander was not challenged in any material respect
pertaining to
the fact that the Applicants were engaged in an unprotected strike.
[153]
In
addition, the Applicants’ own witnesses, in their oral
testimony confirmed the following:-
153.1
there was a
collective agreement already in existence when the employees made a
further demand for their salaries to be increased
with R15 000;
153.2
the
employees from shifts A, B, C and D were camping at the G80 dump
awaiting a response from management pertaining to their demand
as
captured in the memorandum including other SARS matters;
153.3
all the
employees that testified found themselves, voluntarily so, at the G80
dump even though some of them sought to proffer an
untenable
contradictory version to the effect that they were either requested
to be representatives of the striking employees and/or
that they were
at the G80 at the instance of the employer and/or that they were at
G80 as they were waiting for a report back from
the employer;
153.4
the
Respondent’s property including machinery were held by the
Applicants until such time that the Respondent sought the
intervention of the South African Police Services.
[154]
In
addition, the evidence adduced during these trial proceedings
demonstrates that:-
154.1
the
recognised union, NUM was chased away when it sought to intervene in
relation to the unprotected strike;
154.2
COSATU was
unable to prevail over the employees as they continued with their
unprotected strike even when amnesty was sought on
their behalf;
154.3
the
Respondent obtained two court orders which were disregarded by the
Applicants as they continued with their unprotected strike.
[155]
In fact,
the legal teams representing the parties in these proceedings, during
oral argument adopted a reasonable and sensible approach
by conceding
that there was an unprotected strike which led to the dismissal of
the Applicants.
[118]
[156]
In terms of
section 65(3) of the LRA, no person may take part in a strike action
if that person is bound by a collective agreement
that regulates the
issue in dispute.
[157]
I am
therefore satisfied that the overwhelming evidence adduced during
these proceedings demonstrates that the employees were engaged
in an
unprotected strike.
Did
the Applicants before court participate in the unprotected strike
[158]
The
evidence of Mr Malander remains largely unchallenged and not
contradicted.
[159]
He
testified with reference to annexures H, I and J. His testimony
clearly revealed the following:-
159.1
the
employees who participated in the unprotected strike were identified
through the attendance register, the clock system and the
access
control system;
159.2
furthermore,
the employees who participated in the unprotected strike were
identified through the list received from the South African
Police
Services which contained the names of the employees who were
arrested;
159.3
furthermore,
the witnesses who testified before this court furnished evidence to
the effect that the employees who were operating
under shifts A, B, C
and D were participating in the unprotected strike, in particular the
evidence of Ms Maruping;
159.4
the record
of the appeal clearly identifies the employees who participated in
the unprotected strike and in fact, all the Applicants
before the
court did not deny during the appeal that at one stage or the other
they were at G80 dump in support of the demand in
the memorandum.
[160]
I am
therefore satisfied that the Applicants before this court
participated in the unprotected strike and there is no credible
and/or convincing evidence adduced by the Applicants and/or on behalf
of the Applicants demonstrating the contrary facts.
Did
the Applicants receive the notices pertaining to the disciplinary
inquiry
[161]
It is
important to highlight from the onset that prior to the Applicants
being dismissed, NUM was engaged on a number of occasions
as the
evidence reveal. This evidence was not challenged.
[162]
Furthermore,
the unchallenged evidence of Mr Matthee reveals the following:-
162.1
the
employer distributed the disciplinary inquiry notices by means of
helicopter, bulk SMS messages, through the notices attached
to the
food parcels and continuous broadcast on the local Kurara radio
station;
162.2
fundamentally,
prior to the disciplinary inquiry, NUM through unchallenged
correspondence sought a postponement on behalf of all
the
Applicants. This clearly demonstrates that NUM and/or its
members were aware of the time, venue and date of the disciplinary
inquiry. The only way to know of these facts can only be
through having perused the notice of the disciplinary inquiry;
162.3
those
employees who chose to honour the disciplinary inquiry notice, did
appear before the chairperson the disciplinary inquiry
as they were
aware of same by having served or received the relevant notice;
162.4
the
evidence of the chairperson of the disciplinary inquiry was largely
not challenged pertaining to his finding that he was satisfied
that
the Applicants were duly notified of the disciplinary inquiry;
162.5
during the
appeal proceedings, the Applicants did not raise any objection
pertaining to the fact that they were totally unaware
of the
disciplinary proceedings which preceded their dismissals.
[163]
I therefore
find that the Respondent followed a fair disciplinary process and
that the Applicants were given notice of the disciplinary
inquiry
which preceded their dismissals. The Applicants at their own
peril decided or were advised, unfortunately so, not
to attend the
disciplinary inquiry which their union was well aware of same and no
formal postponement application was not even
pursued before the
chairperson of the disciplinary inquiry.
[164]
Furthermore,
all the Applicants were afforded a right to appeal. They
participated through their union in the appeal process.
There
is no challenge advanced pertaining to the fairness or otherwise of
the appeal process. The appeal body after having
considered all
relevant information arrived at a decision it did having regard to
the statements and submissions made on behalf
of the Applicants.
[165]
The
Applicants’ dismissals were procedurally fair.
Was
the dismissal substantively fair
[166]
What the
Applicants cannot challenge is the fact that the unprotected strike
cost the employer serious damage. This evidence
was not, at
all, challenged in any significant manner.
[167]
The
Respondent lost significant amounts of money as a result of an
unprotected strike which could have been avoided had the Applicants
respected the bargaining processes and respected the already existing
collective agreement.
[168]
The
misconduct charges which led to the Applicants being dismissed are of
a serious nature, as Mr Matthee testified that the unprotected
strike
was marred with violence, lawlessness and seizure of massive
earth-moving machinery. In addition, he testified that
the
unprotected strike was marred with violence.
[169]
In fact,
all the parties in their written submissions acknowledges the fact
that the strike was marred with acts of intimidation,
threats and
violence. This is also evident from the cross-examination of
the Respondent’s witnesses.
[170]
The
Respondent suffered losses amounting to R140 million per day as the
operations of the mine totally stopped.
[171]
There were
two court interdicts which the Applicants simply undermined and
proceeded with an illegal and unprotected strike.
[172]
The
Applicants defied their own union as they chase the union officials
away from the employer’s premises when the union sought
to
intervene.
[173]
The
Applicants persisted with their unlawful conduct even during the
circumstances when their federation (COSATU), sought to intervene
in
order for the employees to be granted amnesty which the Respondent
was willing to entertain and has offered to the employees.
[174]
The trust
relationship and the employer/employee relationship was broken down
irretrievably as a result of this illegal, unreasonable
and most
damaging unprotected strike which the Applicants participated in
under circumstances where a collective agreement was
already, in
place.
[175]
The
Applicants sought to deny even obvious facts that they were engaged
in an unprotected strike. The Applicants demonstrated
contempt
on the court orders made by this court pertaining to their illegal
conduct.
[176]
The
Respondent despite the damages it has suffered, it sought to
accommodate the Applicants by offering them amnesty without having
to
dismiss any of them as participants in an illegal strike. The
Applicants still persisted with their illegal and unjustifiable
conduct.
[177]
Furthermore,
I am not persuaded that there is any merit in the case advanced by
the Applicants that their dismissals constituted
an inconsistent
application of a rule, policy or code of the Respondent. There
is no evidence advanced supporting such a
conclusion.
[178]
I therefore
find that the Applicants’ dismissals were substantively fair
and that the sanction of dismissal was reasonable
in the light of the
circumstances of this case and the evidence adduced by the parties
during these proceedings.
[179]
As a
result, I make the following order:-
179.1
the
dismissals of the Applicants are procedurally fair;
179.2
the
dismissals of the Applicants are substantively fair;
179.3
each party
to pay its own costs.
_____________________
MOKOENA
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the 18 Applicants: Adv M.Z. Makoti and Adv S. Kunene
Instructed
by: Mothobi Attorneys
For
the 91 Applicants: Adv L.S. Tutubalang
Instructed
by: Mathibane Mere Attorneys
For
the Respondent: Adv A. Mosam and Adv R. Itzkin
Instructed
by: Edward Nathan Sonnenbergs Attorneys
[1]
NUM
obo
18
Applicants’ heads of argument, p. 4, para 8; the rest of the
Applicants’ heads of argument, unnumbered pages, paras
5 and
6.
[2]
Pleadings
bundle,
Vol.
1, Applicants’ statement of case, p. 4, para 12.
[3]
Pleadings
bundle,
Vol.
1, Applicants’ statement of case, p. 7, para 15.
[4]
Pleadings
bundle, Vol. 1
,
Respondent’s statement of defence, p. 35, paras 65.1 –
65.4.
[5]
Ouwehand
v Hout Bay Fishing Industries
[2004] 8 BLLR 815
(LC); See also
CWIU
v Johnson and Johnson (Pty) Ltd
[1997] 9 BLLR 1186
(LC)
[6]
Transcript of 1 December 2014, p. 14, line 1 – p. 23, line 2.
[7]
Transcript of 1 December 2014, p. 25, line 10 – p. 27, line
17.
[8]
Transcript of 1 December 2014, p. 30, line 20 – p. 33, line
13.
[9]
Transcript of 1 December 2014, p. 35, line 17 – p. 36, line
25.
[10]
Transcript of 1 December 2014, p. 39, line 11 – p. 40, line
25.
[11]
Transcript of 1 December 2014, p. 43, line 9 – p. 44, line 25.
[12]
Transcript of 1 December 2014, p. 45, lines 10 – 19.
[13]
Transcript of 1 December 2014, p. 47, line 20 – p. 50, line
24.
[14]
Transcript of 1 December 2014, p. 51, line 1 – p. 53, line 14.
[15]
Transcript of 1 December 2014, p. 53, line 15 – p. 55, line 4.
[16]
Transcript of 1 December 2014, p. 57, lines 1 – 24.
[17]
Transcript of 1 December 2014, p. 71, line 9 – p. 74, line 23.
[18]
Transcript of 1 December 2014, p. 76, line 3 – p. 78, line 19.
[19]
Transcript of 1 December 2014, p. 78, line 20 – p. 80, line 3.
[20]
Transcript of 1 December 2014, p. 81, line 2 – p. 82, line 24.
[21]
Transcript of 2 December 2014, p. 96, line 12 – p. 97, line 4;
see
also
p. 98, lines 10 – 24; p.
108,
lines 3 - 23
.
[22]
Transcript of 2 December 2014, p. 102, line 7 – p. 105, line
5.
[23]
Transcript of 2 December 2014, p. 111, line 7 – p. 112, line
25.
[24]
Transcript of 2 December 2014, p. 114, lines 18 – 24.
[25]
Transcript of 2 December 2014, p. 134, line 10 – p. 135, line
10.
[26]
Transcript of 3 December 2014, p. 214, lines 2 – 20.
[27]
Transcript of 3 December 2014, p. 214, line 10 – p. 218, line
21.
[28]
Transcript of 3 December 2014, p. 214, line 10 – p. 218, line
21.
[29]
Transcript of 3 December 2014, p. 236, line 18 – p. 237, line
16.
[30]
Transcript of 3 December 2014, p. 238, line 20 – p. 239, line
20.
[31]
Transcript of 3 December 2014, p. 239, line 21 – p. 241, line
5.
[32]
Transcript of 4 December 2014, p. 254, lines 1 – 25.
[33]
Transcript of 4 December 2014, p. 256, line 3 – p. 257, line
15.
[34]
Transcript of 4 December 2014, p. 258, lines 4 – 20.
[35]
Transcript of 4 December 2014, p. 259, line 14 – p. 260, line
13.
[36]
Transcript of 4 December 2014, p. 262, line 19 – p. 271, line
7.
[37]
Transcript of 4 December 2014, p. 272, lines 10 – 17;
see
also
p. 273, line 1 – p. 274, line 10; p. 275, line 17 – p.
276, line 19.
[38]
Transcript of 4 December 2014, p. 293, line 1 – p. 295, line
20;
see
also
p. 297, line 20 – p. 299, line 25.
[39]
Transcript of 4 December 2014, p. 307, line 20 – p. 311, line
21;
see
also
p. 314, line 2 – p. 315, line 4.
[40]
Transcript of 4 December 2014, p. 323, lines 14 – 20.
[41]
Transcript of 29 June 2015, p. 337, line 14 – p. 338, line 20.
[42]
Transcript of 29 June 2015, p. 339, lines 5 – 18.
[43]
Transcript of 29 June 2015, p. 339, line 19 – p. 340, line 12.
[44]
Transcript of 29 June 2015, p. 340, line 21 – p. 341, line 7.
[45]
Transcript of 29 June 2015, p. 341, lines 8 – 25.
[46]
Transcript of 29 June 2015, p. 342, line 20 – p. 343, line 10.
[47]
Transcript of 29 June 2015, p. 344, lines 4 - 24.
[48]
Transcript of 29 June 2015, p. 346, lines 3 – 11.
[49]
Transcript of 29 June 2015, p. 347, lines 6 – 25.
[50]
Transcript of 29 June 2015, p. 348, lines 3 – 23.
[51]
Transcript of 29 June 2015, p. 349, lines 2 – 18.
[52]
Transcript of 29 June 2015, p. 352, lines 2 – 17.
[53]
Transcript of 29 June 2015, p. 353, line 2 – p. 354, line 3.
[54]
Transcript of 29 June 2015, p. 355, lines 10 – 12.
[55]
Transcript of 29 June 2015, p. 356, lines 15 – 16;
see
also
lines 20 - 22.
[56]
Transcript of 29 June 2015, p. 359, line 8 – p. 360, line 13.
[57]
Transcript of 29 June 2015, p. 360, lines 14 – 25.
[58]
Transcript of 29 June 2015, p. 363, line 20 – p. 367, line 20.
[59]
Transcript of 29 June 2015, p. 368, lines 6 – 11;
see
also
p. 368, line 20 – p. 370, line 4.
[60]
Transcript of 29 June 2015, p. 371, line 2 – p. 372, line 12.
[61]
Transcript of 29 June 2015, p. 379, line 12 – p. 382, line 3.
[62]
Transcript of 29 June 2015, p. 413, lines 1 – 24.
[63]
Transcript of 29 June 2015, p. 414, lines 1 – 19.
[64]
Transcript of 29 June 2015, p. 416, lines 3 – 20.
[65]
Transcript of 29 June 2015, p. 417, line 5 – p. 418, line 3.
[66]
Transcript of 30 June 2015, p. 428, lines 15 – 20.
[67]
Transcript of 30 June 2015, p. 428, lines 10 – 14.
[68]
Transcript of 30 June 2015, p. 429, lines 1 – 13.
[69]
Transcript of 30 June 2015, p. 429, lines 17 – 18.
[70]
Transcript of 30 June 2015, p. 429, line 17 – p. 430, line 5.
[71]
Transcript of 30 June 2015, p. 431, lines 10 – 21.
[72]
Transcript of 30 June 2015, p. 431, line 21 – p. 432, line 3.
[73]
Transcript of 30 June 2015, p. 433, lines 6 – 13;
see
also
p. 433, line 19 – p. 434, line 12.
[74]
Transcript of 30 June 2015, p. 444, line 13 – p. 445, line 4.
[75]
Transcript of 30 June 2015, p. 445, line 14 – p. 446, line 4.
[76]
Transcript of 30 June 2015, p. 446, lines 10 – 25.
[77]
Transcript of 30 June 2015, p. 447, line 14 – p. 448, line 5.
[78]
Transcript of 30 June 2015, p. 448, lines 12 – 25.
[79]
Transcript of 1 July 2015, p. 456, lines 4 – 24.
[80]
Transcript of 1 July 2015, p. 459, lines 3 – 17.
[81]
Transcript of 1 July 2015, p. 460, lines 5 – 8.
[82]
Transcript of 1 July 2015, p. 462, lines 2 – 9.
[83]
Transcript of 1 July 2015, p. 463, line 1 – p. 465, line 4;
see
also
p. 466, line 19 – p. 467, line 23.
[84]
Transcript of 1 July 2015, p. 468, line 21 – p. 469, line 14.
[85]
Transcript of 1 July 2015, p. 469, line 23 – p. 470, line 9.
[86]
Transcript of 1 July 2015, p. 470, lines 20 – 25.
[87]
Transcript of 1 July 2015, p. 474, line 24 – p. 476, line 5.
[88]
Transcript of 1 July 2015, p. 477, lines 13 – 25.
[89]
Transcript of 1 July 2015, p. 478, lines 18 – 22.
[90]
Transcript of 1 July 2015, p. 484, lines 2 – 19.
[91]
Transcript of 1 July 2015, p. 487, lines 10 – 19.
[92]
Transcript of 1 July 2015, p. 487, lines 1 – 9.
[93]
Transcript of 1 July 2015, p. 488, lines 5 – 10.
[94]
Transcript of 1 July 2015, p. 491, lines 11 – 20;
see
also
p.
491, line 21 – p. 492, line 2.
[95]
Transcript of 1 July 2015, p. 495, line 12 – p. 500, line 23;
see
also
p. 500, line 25 – p. 501, line 7; p. 502, line 24 – p.
506, line 19 (“
Yes,
I see that, hence I said that I am not happy with the Minutes and
also some things that comes from that …
”
).
[96]
Transcript of 1 July 2015, p. 508, lines 3 – 4.
[97]
Transcript of 1 July 2015, p. 509, lines 6 – 20.
[98]
Transcript of 1 July 2015, p. 510, lines 2 – 23.
[99]
Transcript of 1 July 2015, p. 516, lines 2 – 25.
[100]
Transcript of 2 July 2015, p. 520, lines 1 – 8.
[101]
Transcript of 2 July 2015, p. 520, lines 11 – 14.
[102]
Transcript of 2 July 2015, p. 521, lines 14 – 18.
[103]
Transcript of 2 July 2015, p. 523, lines 15 – 19.
[104]
Transcript of 2 July 2015, p. 538, line 13 – p. 539, line 6.
[105]
Transcript of 2 July 2015, p. 541, lines 1 – 10.
[106]
Transcript of 2 July 2015, p. 541, lines 11 – 18.
[107]
Transcript of 2 July 2015, p. 543, line 20 – p. 547, line 11;
see
also
p. 547, lines 12 – 23.
[108]
Transcript of 2 July 2015, p. 555, lines 2 – 5.
[109]
Transcript of 2 July 2015, p. 555, lines 6 – 10.
[110]
Transcript of 2 July 2015, p. 556, lines 4 – 5.
[111]
Transcript of 2 July 2015, p. 560, lines 5 – 8.
[112]
Transcript of 2 July 2015, p. 560, line 10 – p. 562, line 19.
[113]
Transcript of 2 July 2015, p. 563, lines 11 – 23.
[114]
Transcript of 2 July 2015, p. 564, line 10 – p. 567, line 21;
see
also
p.
568, line 20 – p. 570, line 5; p. 570, line 6 – p. 571,
line 20.
[115]
Transcript of 2 July 2015, p. 579, line 10 – p. 580, line 13.
[116]
Transcript of 2 July 2015, p. 583, line 20 – p. 585, line 9;
see
also
p. 585, line 21 – p. 586, line 16.
[117]
Transcript of 2 July 2015, p. 588, lines 1 – 9.
[118]
NUM obo 18 Applicants’ heads of argument, p. 8, para 19 –
p. 10, para 19.11;
see
also
Respondent’s heads of argument, p. 4, para 11 – p. 6,
para 21; Heads of argument of the 91 Applicants represented
by Adv
Tutu, paras 2.1, 2.6, 3.2 and 4.5.