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 387
|
|
SACCAWU obo Ramonthle and Others v Sun City (JS1116/2013) [2017] ZALCJHB 387; (2018) 39 ILJ 436 (LC); [2018] 2 BLLR 198 (LC) (19 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JS 1116/2013
In the matter between:
SACCAWU obo RAMONTHLE AND 13
OTHERS
Applicant
and
SUN CITY
Respondent
Heard:
21 – 25
August 2017, Heads of argument submitted on 1 September 2017
Delivered:
19 October 2017
Summary:
Participation in unprotected strike action
.
Defence that it was in response to the employer’s unjustified
conduct has no merit. Strike action was in response to conduct
of the
Gupta family and their guests at a wedding hosted at Sun City and not
the conduct of the employer. Strike was in breach
of Court order and
the employees were aware of the existence of Court order. Dismissal
was fair.
JUDGMENT
PRINSLOO
.
J
Introduction
[1]
Before
I deal with the pleadings, evidence or merits of the case, it is
necessary to set out who the
dramatis
personae
are.
[2]
SACCAWU
on behalf of 14 members approached this Court for relief, claiming
that they were unfairly dismissed. Before the commencement
of the
trial the Respondent and the following individuals entered into a
full and final settlement agreement: Sithembiso Radebe,
Margaret
Kapari, Archiebald Bogopane, Elias Modieginyana, Lydia Mohlakane,
Rhina Mokua, Emeldah Dipale, Oageng Ramadie and Luckyboy
Mankwe and
Clive Ramokgadi.
[3]
The
four individuals who elected not to settle the matter and in respect
of whom the trial proceeded are Clifford Ramonthle (Clifford),
Koki
Khojane (Koki), Donald Magano (Donald) and Sam Botlhale (Sam).
[4]
It
appears from the pleadings that there were three material incidents
that played a role in the dismissal of the said individuals
namely: 1
May 2013, 3 May 2013 and 11 May 2013.
[5]
The
incident of 1 May 2013 gave rise to a charge of absenteeism and
insubordination. Donald and Koki were charged for failing to
report
for duty on 1 May 2013, not advising management of non-attendance at
work and insubordination in that they failed to adhere
to a lawful
instruction issued on 28 April 2013 to ensure that they attended work
on 1 May 2013. It is evident that the charge
relating to the incident
of 1 May 2013 relate to misconduct in respect of absenteeism and
insubordination, which falls squarely
within the confines of section
191(5)(a)(i) of the Labour Relations Act
[1]
(the Act) and the fairness of the dismissal in that regard should be
decided by way of arbitration. Donald was dismissed only for
misconduct relating to his absenteeism and insubordination on 1 May
2013 and no other charges of misconduct were levelled against
him.
[6]
Mr
Molebaloa for the Applicants and Mr Ngcukaitobi with Mr Navsa for the
Respondent conceded in their argument that this dispute
falls outside
the jurisdiction of the Court and submitted that Donald’s
dispute should be referred for arbitration. Section
158(2) of the Act
provides that if it becomes apparent that a dispute referred to this
Court ought to have been referred to arbitration,
this Court may stay
the proceedings and refer the dispute to arbitration.
[7]
I am
inclined to refer the dispute in respect of Donald Magano to the
Commission for Conciliation, Mediation and Arbitration (CCMA)
to be
arbitrated.
[8]
It
follows that this judgment would deal with the three remaining
individuals namely Clifford, Koki and Sam (collectively referred
to
as the employees).
[9]
The
incident of 3 May 2013 gave rise to a charge of inciting and
intimidating employees. Clifford and Koki were charged with inciting
and intimidating employees at Sun City on 3 May 2013 by causing them
to participate in work stoppage, resulting in disruption and
financial loss.
[10]
Mr
Molebaloa submitted that the charges in respect of 3 May 2013 relate
only to incitement and intimidation of employees and not
participation in protest action on 3 May 2013. Mr Molebaloa conceded
that incitement and intimidation constitute misconduct that
would
also fall within the jurisdiction of the CCMA and that this Court
should confine itself to the incident of 11 May 2013.
[11]
I
agree with Mr Molebaloa’s submission and this judgment will be
limited to the events of 11 May 2013.
The pleadings
and pre-trial minute
[12]
In
their statement of case the Applicant challenged the procedural and
substantive fairness of the individual employees’ dismissal
for
participating in strike action. At the commencement of the trial Mr
Molebaloa indicated that the Applicant was not persisting
with the
challenge in respect of procedural fairness and that the only
remaining challenge was in respect of substantive fairness.
This
challenge is now limited to the incident of 11 May 2013.
[13]
In
the pre-trial minute it was recorded that the strike action was
unprotected, but it was provoked by the Gupta family who refused
to
be served by black members of staff and the Respondent did not
support the employees and did not stop the humiliation caused
by the
Guptas. The strike was not premeditated but was the result of the
humiliation of employees in the hands of the Gupta family.
[14]
Mr
Molebaloa conceded at the onset that the protest action of 11 May
2013 was unprotected and unauthorised, but submitted that it
was in
response to unjustified conduct by the Respondent.
[15]
The
Applicant’s case is that even though the strike was
unprotected, it was in response to the employer’s unjustified
conduct and that the sanction of dismissal is too harsh and not
appropriate for mainly two reasons. Firstly, the trust relationship
is not broken and secondly other employees who were found guilty of
the same misconduct were not dismissed, thus discipline was
not
applied consistently.
The evidence adduced
[16]
The
Respondent called Sir Richard Hawkins (Hawkins) to testify in respect
of the events of May 2013. Hawkins explained that Sun
International
has two divisions namely gaming and hospitality and the resorts fall
under the hospitality division. Sun City is
part of Sun
International’s resorts portfolio and it operates in the
hospitality industry that is guest focussed and orientated.
[17]
Hawkins
occupied the position of Sun City’s operations executive from
January to August 2013 and in that capacity he had full
control over
Sun City’s operations, which included the four hotels and all
ancillary activities such as the Valley of the
Waves, the conference
centre and golf course.
[18]
The
prominent Gupta wedding ceremony took place at Sun City between 30
April 2013 and 3 May 2013. On 3 May 2013 Hawkins and other
Sun
International staff members had a meeting with COSATU, SACCAWU and
the shop stewards to address a matter relating to Koki and
his
ill-health. During this meeting Mr Phetoe (Phetoe), a COSATU
representative, raised the issue of SACCAWU members’
unhappiness
about the Gupta wedding that took place between 30 April
and 3 May 2013 and allegations of racism were made in respect of the
Gupta
family and their guests.
[19]
The
issues relating to racism raised were that the Gupta family only
wanted white drivers and waitrons, that the Guptas were allowed
to
bring their own vehicles onto the Respondent’s premises and
that a female employee of the spa concessionaire was sexually
harassed.
[20]
Hawkins
testified that he addressed the concerns raised and that he asked
COSATU and SACCAWU to submit evidence to support their
claims that
there had been acts of racism at the Gupta family’s behest.
[21]
Hawkins
explained that the spa is run by an independent concessionaire and
the employee reported the incident to the concessionaire
and she was
afforded the required assistance and support. From Sun City’s
side, the guest involved in the sexual harassment
of the spa employee
was removed from the premises straight away.
[22]
In
respect of the drivers, Hawkins explained that Sun City does not
tolerate racism and he disputed that all the drivers were white.
He
testified that he saw the drivers hired by the Guptas and that they
were of mixed race.
[23]
The
other allegations of racism that were raised related to the
allegation that black staff members were removed from the kitchen
and
that the Guptas brought their own chefs to Sun City. Hawkins
explained to the meeting that every employee who was rostered
to
work, worked and that none of the employees were displaced or missed
a shift that they were supposed to work because of the
Guptas. He
explained that the Guptas required their own specialist chefs for the
wedding as they wanted a unique cuisine from a
specific region in
India to be prepared and Sun City did not have chefs available to
prepare the required cuisine. The Sun City
kitchen staff worked with
the chefs brought by the Guptas and Hawkins denied that any of the
Respondent’s kitchen staff had
been removed from the kitchen.
There was no evidence adduced by the Applicant to support these
allegations.
[24]
Hawkins
explained that the number of waitrons was increased for the Gupta
wedding and they were all black individuals and no waiter
employed by
Sun City was removed from his or her duties and no waiter lost out on
a shift they were rostered to work.
[25]
In
cross-examination it was put to Hawkins that the Applicant’s
case is not that the employees were prevented to serve or
work in the
kitchen by the Respondent, but by the Guptas and this frustration was
made known to the employer.
[26]
According
to Hawkins the issues raised at the meeting of 3 May 2013 regarding
the drivers, kitchen staff and sexual harassment were
addressed and
Phetoe and the shop stewards requested an opportunity to address the
staff on the responses arising from the meeting
and to give feedback
to them. Hawkins acceded to the request for a meeting and the Sun
City Hotel theatre was provided as a venue
and the employees were
relieved from duty in order to attend the meeting. It was agreed that
the meeting would take place from
16:30 - 17:30 on 3 May 2013.
[27]
After
the conclusion of the meeting the SACCAWU members left the theatre in
a group singing and chanting and they did not resume
their duties and
the group of employees made their way through the entertainment
centre towards the Palace. This conduct caused
a disruption and the
guests were unsettled and had to clear the way for the protesting
group. Hawkins approached the leaders of
the group and asked them to
stop the protest. He testified that Clifford and Koki were there and
he spoke to Clifford to desist
from the protest but they failed to do
so and instead encouraged employees to participate in the protest.
[28]
This
event resulted in the charge relating to 3 May 2013 that was levelled
against Koki and Clifford. As the charge relates to incitement
and
intimidation, it falls outside the jurisdiction of this Court and it
is not necessary to decide the charge. The version in
respect of the
events of 3 May 2013 is included in this judgment only insofar as it
provides background and context to the events
of 11 May 2013.
[29]
On 7
May 2013 COSATU addressed a letter to Sun City and Hawkins regarding
a request to receive a COSATU memorandum on 11 May 2013
at 15:30 at
Sun City’s main gate. The reason for the planned march was
explained as “
to
demand answers from Sun City over the Guptas wedding arrangement and
racial treatment meted out to our members by both Sun City
and their
rich friends (Guptas).”
[30]
Hawkins
explained that 11 May 2013 was an important date for the Respondent
as the South African Music Awards (SAMA) event was taking
place on
that day at Sun City. The SAMA event is an important event for Sun
City as it gives exposure as the event is broadcasted
on national
television and because it brings business for the Respondent.
[31]
On 8
May 2013 Sun City issued a press release and it was circulated to all
the Respondent’s e-mail users. In the press
release the
Respondent stated that the issues were addressed on 3 May 2013 and
the responses were reiterated in the press release.
It was stated
that Sun City employs a diverse complement of staff of all races and
did not deviate from the usual staff roster
during the period of the
Gupta wedding. Sun City had to hire additional temporary staff to
assist with the additional work created
by the large scale and
complex event, which was done through a service provider, Instaff.
Sun City further explained that the Gupta
family hired their own
support staff, mostly chefs specialising in Indian cuisine, private
security to act as body guards for certain
VIP guests and drivers to
chauffeur the Gupta guests around in privately hired vehicles. The
allegation of rape was not substantiated
but was found to be a case
of inappropriate sexual advances which was dealt with by Sun City and
the employee involved indicated
that she was satisfied with the
procedures followed and did not want to pursue the matter any
further.
[32]
Also
on 8 May 2013 Sun City responded to COSATU’s letter of 7 May
2013 stating that feedback was provided on 3 May 2013 and
that COSATU
was requested to furnish the Respondent with the details, proof and
evidence of the allegations made in respect of
racism so that the
Respondent could act accordingly, but to date Sun City did not
receive anything from COSATU, SACCAWU or the
employees who were
allegedly racially mistreated. The Respondent made it clear that the
employees who would be participating in
the COSATU march instead of
working will be participating in an unprotected and unauthorised
strike action and that the march is
not lawful in terms of the
provisions of the Act.
[33]
The
Respondent specifically called on COSATU to provide a written
undertaking that SACCAWU and its members would not be participating
in the march of 11 May 2013. It was also mentioned that approval for
the march had not been obtained from the relevant authorities.
COSATU
was asked to provide the written undertaking by 10:00 on 9 May 2013,
failing which Sun City would approach this Court for
relief on an
urgent basis. In the same vain SACCAWU was asked to provide an
undertaking that its members who were scheduled to
be on duty on 11
May 2013 would not participate in the march as it would constitute
unauthorised and unprotected strike action.
[34]
As no
undertaking was provided, Sun City approached this Court on an urgent
basis on 10 May 2013 at 14:00 for an order
inter
alia
declaring
the strike action unprotected and interdicting and restraining COSATU
and SACCAWU from inciting and encouraging the unprotected
strike
action and picketing at the Respondent’s premises and
interdicting and restraining the employees from participating
in the
unprotected strike action and picketing. A Court order was issued on
10 May 2013 wherein the strike action and picketing
had been
interdicted and restrained and SACCAWU and its members were
interdicted and restrained from gathering at the Respondent’s
premises until they have complied with the provisions of the
Regulations of Gatherings Act
[2]
.
[35]
Hawkins
testified that he instructed the human resources department to
distribute a copy of the Court order and to place it on the
notice
boards.
[36]
In
terms of the Court order the strike action and protest had been
interdicted and COSATU and the SACCAWU members were prohibited
from
gathering at the entrances of Sun City and they were restricted from
approaching the Respondent’s access gates within
100 metres.
[37]
Hawkins
testified that the Court order was brought to the attention of all
the employees and that he saw it being put up on the
notice boards.
In cross-examination he testified that on 10 May 2013 after the
Respondent received the Court order he went around
to see that it was
put up on the notice boards and bus stops.
[38]
In
cross-examination it was put to Hawkins that the employees’
version is that they did not see the Court order at the bus
stop and
only learned about the Court order when they were inside the
Respondent’s premises and on their way to the main
gate, to
which he responded that he would be very surprised if that is the
case as the Court order was put up on the notice boards
and at the
bus stops.
[39]
On 11
May 2013 the South African Police Service (SAPS) was at Sun City’s
premises and they marked the 100 metre mark, as per
the Court order.
As a bus with COSATU and SACCAWU supporters was approaching, SAPS
proposed that the Respondent relaxed the 100
metre mark to 50 metres
as it would be a positive gesture and would appease the employees.
[40]
In
the afternoon of 11 May 2013 employees gathered outside the
entertainment area and prepared to join the proceedings outside Sun
City’s main gate. The employees requested a vehicle to take
them to the gate and Hawkins agreed to make a bus available to
take
the employees to the gate. This he did because SAPS advised him to do
so as it would calm the situation down. Once the bus
was made
available, the SACCAWU members refused to use the bus and instead
they walked to the gate and in the process they passed
the venue
where the SAMA event was taking place.
[41]
Hawkins
testified that the situation was very tense and he took advice from
SAPS to relax the 100 metre mark and to provide transport
to the
gate.
[42]
In
cross-examination it was put to Hawkins that when he made a bus
available to the employees to be transported to the main gate,
the
employees understood that they were released to attend the rally. The
employees’ version is that they participated in
the rally as
they thought that the Respondent was okay with them participating
when a bus was made available to transport them,
despite the fact
that there was a Court order to the contrary. Hawkins responded that
he never communicated that to the employees
and that it was a bad and
an incorrect assumption.
[43]
Hawkins
explained that when the employees learned of the existence of the
Court order on their way to the gate, they should have
stopped any
further participation in the strike and protest action that had been
interdicted by a Court order.
[44]
Hawkins
referred to photographs where Clifford, Koki and Sam were visible and
he testified that they gathered in breach of the Court
order.
Employees left their work station and walked to the main gate to
participate in an event that was interdicted.
[45]
Hawkins
explained that dismissal was the culmination of the situation and
that the relationship with the employees was harmfully
damaged and it
was worse since Clifford, Koki and Sam were individuals in leadership
positions as shop stewards and they ignored
a Court order and
violated the law. They marched to the main gate and sat down at the
entrance of the property in violation of
the Court order.
[46]
On
the issue of consistency Hawkins testified that the employees’
circumstances should be considered and as shop stewards
in leadership
positions, they were more accountable than other employees who did
not hold leadership positions. In cross-examination
it was put to
Hawkins that Peter Mojawesi, who is a full time shop steward and who
was at the Sun City gate on 11 May 2013 was
not dismissed. This was
not disputed. It was further put to Hawkins that M Mathibe, W Molepe,
J Khumalo, D Ntladi and R Malefetsa,
all shop stewards were at the
main gate on 11 May 2013 and they were not dismissed. Hawkins
responded that he did not know the
employees.
[47]
It
was put to Hawkins that the trust relationship cannot be said to have
broken down as Sun City is able to continue with an employment
relationship with Mojawesi and other shop stewards who participated
in the strike action on 11 May 2013 and for this reason Sun
City
should be in a position to work with the employees as well. Hawkins
disagreed and insisted that dismissal was an appropriate
sanction in
respect of Clifford, Koki and Sam.
[48]
In
cross-examination it was put to Hawkins that room service waiters
took food to a room of the Gupta guests and they were prevented
from
taking the food into the room but instead the food was taken into the
room by a white body guard. Hawkins explained that if
an individual
requested to bring a body guard, such request is accommodated and
Hawkins said that the fact that room service waiters
were not allowed
to enter certain Gupta rooms was never brought to his attention. The
issues that were brought to his attention
were taken seriously and
dealt with.
[49]
The
Respondent’s second witness was Mr Sidney Seakamela (Seakamela)
who was Sun City’s employee relations manager from
1 May 2013
for a period of six months. He testified that after the Court order
was obtained on 10 May 2013 he was given a copy
of the order at
around 16:00 and he was instructed as to what he should do with the
order.
[50]
Seakamela
deposed to a service affidavit in the urgent Labour Court application
and he explained that after the Court order was
received, he effected
service thereof on 10 May 2013 at around 16:30 by placing copies
thereof on various notice boards at the
entertainment centre
executive offices, the Palace Hotel, the Cabanas Hotel, the Cascades
Hotel, the Sun City Hotel, the vacation
club, staff entrance, front
entrance, resort bus stops, repairs and maintenance workshop, Gary
Player Lost City golf course and
the canteen notice boards at the
casino, Sun City Hotel, entertainment centre, the transport section
and Valley of Waves. He deployed
the services of the security
department and other staff members to assist him to place a copy of
the Court order on the said notice
boards and he explained that he
had resources at his disposal that he used to make sure that the
Court order was communicated.
[51]
Seakamela
testified that on 10 May 2013 at around 17:00 he went to the SACCAWU
office, which was in the same block as his office
and he met Clifford
and another shop steward, Johannes Khumalo (Khumalo), there and he
wanted to hand Clifford a copy of the Court
order but he refused to
accept it. Clifford called Seakamela names and made derogatory
remarks. Seakamela told Clifford to take
the Court order as it was
proper service but Clifford left and locked the office and went to
the canteen, where after Seakamela
told him that he would make sure
that the Court order was served by pushing a copy of the Court order
under the office door of
SACCAWU.
[52]
In
cross-examination it was put to Seakamela that Clifford’s
version is that he never met Seakamela and that he was never
given a
copy of the Court order, which Seakamela disputed and insisted that
he met Clifford and Khumalo and that he tried to serve
the Court
order on them.
[53]
The
Applicant’s first witness was Mr Mokokeng who testified that he
is a room services waiter. He testified that he was around
during the
time of the Gupta wedding because he was rostered to work and he
served the Guptas and their guests. He testified about
two occasions
when he was not allowed to take food that was ordered into the rooms
and he felt frustrated by this and regarded
it as unacceptable.
[54]
This
witness did not contribute to the Applicant’s case and his
testimony did not assist at all in respect of the issues this
Court
has to decide.
[55]
The
fact that a room service waiter is not allowed to enter a guest’s
room does not
per
se
constitute
an act of racism as there may be a number of reasons why a guest
would not want a waiter to enter his or her room, which
may be
personal or security or other reasons not related to race.
In
casu
no
case was made out that Mofokeng was not allowed to enter certain
rooms because of his race and on Mofokeng’s own version
he
never reported this to Hawkins.
[56]
The
Applicant’s second witness was Clifford Ramontle who testified
that he was a full time shop steward at Sun City since
2011. On 1 May
2013 he received reports that the Guptas were treating employees
unfairly and he was told about a case of sexual
harassment of a
female employee, room service waiters who were not allowed to go into
the guests’ rooms and the fact that
the Guptas came with their
own drivers. SACCAWU viewed this a discrimination based on race.
[57]
On 3
May 2013 a meeting was held with the Respondent, COSATU and SACCAWU
regarding Koki’s health and at this meeting they
discussed the
issues relating to racial discrimination and the Guptas. Hawkins
asked them to provide evidence of the alleged conduct.
In respect of
the issue of sexual harassment Clifford testified that Hawkins never
informed them that the culprit guest was removed
from the premises
and they did not know that action was taken in that regard.
[58]
Clifford
testified that at the conclusion of the meeting there was tension at
Sun City and it was caused by the racial discrimination
and treatment
employees received from the Guptas. They requested permission to meet
with the employees at Sun City on 3 May 2013
and Hawkins agreed to
this request and the meeting with the employees indeed took place.
The employees wanted to remove the Guptas
from the premises but
COSATU and SACCAWU intervened and they told the employees that the
Guptas would not be removed. After the
meeting the leadership
remained behind to have further discussions when they were called and
found that the employees were singing
and chanting outside and that
they were moving from the main reception at the hotel and moving in
the direction of the Cascades.
Clifford explained that the employees
were uncontrollable and that he tried to calm them down, but without
success and from there
the shop stewards accompanied the employees to
make sure that they do not cause damage and to monitor the situation.
Clifford conceded
that this protest action was unprotected but denied
that he instigated and intimidated employees to participate in the
strike.
[59]
On 11
May 2013 Clifford did not work as he did not work on Saturdays, but
he went to the bus stop where employees assembled to hand
over the
COSATU memorandum. He explained that the employees assembled at the
bus stop as they wanted to use a bus to go to the
main gate. Hawkins
made a bus available for the employees to be transported to the main
gate, but they did not use the bus as the
employees chose to walk and
the shop stewards had to accompany them to make sure that they do not
damage anything. Clifford was
unable to provide any reason as to why
the employees would ask for a bus to go to the main gate and once it
was provided to them,
chose not to use it but to walk instead.
[60]
Clifford
testified that when the employees gathered at the bus stop, Peter
Mojawesi, another shop steward, phoned one of the employees
and told
them about the Court order and they discovered that the Respondent
obtained the Court order on 10 May 2013. The employees
nonetheless
proceeded with the strike action which was prohibited by the Court
order because Hawkins made a bus available to transport
them to the
gate and they thought that by making a bus available, Hawkins allowed
them to participate and to go to the march. Clifford
however conceded
that Hawkins did not explain to him the circumstances under which the
bus was released.
[61]
In
cross-examination Clifford conceded that they were informed about the
Court order when they were still at the bus stop and they
were told
that the Court order interdicted the strike and the march and despite
knowledge of the Court order, they proceeded with
the strike action
and march on 11 May 2013.
[62]
Clifford
testified that he never met Seakamela on 10 May 2013 and he was never
handed a copy of the Court order on that date.
[63]
In
respect of inconsistency Clifford testified that other employees
participated in the event of 11 May 2013 and they were not dismissed
and there was still an employment relationship ongoing between Sun
City and those employees and Sun City cannot claim that the
trust
relationship was destroyed because of the events of 11 May 2013.
[64]
In
cross-examination it was put to Clifford that all the employees who
were identified from photographs taken of the events of 11
May 2013
were charged for the incident of 11 May 2013. Clifford conceded that
others who participated were not in the photographs
and that the shop
stewards who appeared in the photographs, were all charged.
[65]
Clifford
conceded in cross-examination that he was upset and still is upset
about the Guptas and the way they treated the Sun City
employees and
he is not satisfied with the explanation given by the Respondent as
he is still of the view that Sun City did not
do enough.
[66]
The
Applicant’s last witness was Mr Koki Kojane. He testified that
he did not see the Court order on 10 or 11 May 2013 on
any notice
board. On 11 May 2013 he went to the bus stop to participate in the
COSATU event. He conceded in cross-examination that
whilst they were
at the bus stop they received a call from Majowesi and they were
informed about the Court order that prohibited
the strike and the
march and despite knowing that the strike and the march had been
prohibited by a Court order, he continued with
the strike action.
[67]
Koki
confirmed that despite the fact that the Respondent made a bus
available to transport them to the main gate, the bus was not
used
and the employees instead marched to the gate. He explained that the
bus was not used as the employees were angry.
[68]
Koki
conceded in cross-examination that he was upset and is now even more
upset about the Guptas and the way they treated the Sun
City
employees.
The issues this Court has to
decide:
[69]
Koki
was charged for the incidents of 1 May 2013, 3 May 2013 and 11 May
2013. Clifford was charged for the incidents of 3 May 2013
and 11 May
2013 and Sam only for the incident of 11 May 2013.
[70]
Mr
Molebaloa conceded that this Court should confine itself to the
incident of 11 May 2013 and submitted the misconduct related
to
absenteeism (1 May 2013) and incitement and intimidation (3 May 2013)
should be dealt with by the CCMA. Even if the events of
3 May 2013
may be related to strike action, the charge levelled against the
employees in respect of 3 May 2013 was “
inciting
and intimidating employees at Sun City Resort by causing them to
participate in work stoppage..”
and it was not for participation in unprotected strike action. A
dismissal for an act of misconduct relating to incitement and
intimidation would be a dismissal relating to conduct which is to be
determined by arbitration.
[71]
The
question is whether this Court should refer Clifford and Koki’s
dispute about the fairness of their dismissal in respect
of the
charges of absenteeism, incitement and intimidation to the CCMA.
[72]
The
incident of 11 May 2013 related to participation in an unprotected
strike and resulted in the dismissal of Clifford and Koki
and is a
dispute this Court has jurisdiction to adjudicate. As the said
misconduct was considered by this Court and in view of
the findings
of this Court, which are discussed
infra,
it
would make no sense to refer another unfair dismissal dispute to the
CCMA. Once the dismissal is found to be fair, there is no
basis for
another tribunal to consider other acts of misconduct and to
determine whether dismissal was fair and appropriate. In
view of my
findings on the incident of 11 May 2013 I am not inclined to refer
the dispute about the fairness of Clifford and Koki’s
dismissal
in respect of the charges of absenteeism, incitement and intimidation
to the CCMA.
[73]
Clifford,
Koki and Sam were charged and dismissed for participating in an
illegal work stoppage in that they on 11 May 2013 participated
or
joined an illegal protest, which resulted in the disruption of the
Respondent’s business.
[74]
The
charge levelled against the employees in respect of 11 May 2013 was:
“
Participating
in an illegal work stoppage, in that, on 11 May 2013 they
participated or joined an illegal protest, which resulted
in the
disruption of business, affecting customers and normal course of
business.”
[75]
The
issue to be decided is whether the employees’ dismissal for
participation in illegal strike action on 11 May 2013 was
substantively fair. The challenge in respect of procedural fairness
had been abandoned.
[76]
The
Applicant conceded that the strike action of 11 May 2013 was
unprotected and unauthorised.
[77]
The
Applicant’s case is that although the strike was unprotected,
the employees did not deserve dismissal as the protest action
was in
response to unjustified conduct by the Respondent. In the event that
the employees are found guilty of participating in
illegal strike or
protest action, there are strong mitigating factors that render their
dismissal unfair.
[78]
The
two main issues in the Applicant’s case that have to be
determined is firstly whether their participation in the unprotected
strike or protest action was in response to unjustified conduct by
the employer and secondly whether the sanction of dismissal
was
appropriate.
The applicable legal principles
[79]
The
legal principles to be applied in a dispute concerning a dismissal
for participation in an unprotected strike are well established.
Item
6(1) of the Code of Good Practice contained in Schedule 8 of the Act
(the Code) reads as follows:
‘
Dismissals
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
these 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 made to comply with this Act; and
(c)
whether or not the strike was in response to unjustified conduct by
the employer.’
[80]
Item
6(1) of the Code provides that the substantive fairness of dismissal
in the event of participation in unprotected strike action
must be
determined in the light of the facts of the case, including the
seriousness of the contravention of the Act, attempts made
to comply
with the Act and whether or not the strike was in response to
unjustified conduct by the employer.
[81]
The
distinction between a protected and unprotected strike is not an
academic one. It is one that ought to have consequences. The
Act
establishes dispute resolution procedures that are inexpensive,
expeditious and efficient. If the employees felt aggrieved,
they
could have and should have explored legitimate remedies to address
their concerns.
[82]
The
Labour Appeal Court in
NUMSA
v CBI Electric African Cables
[3]
observed
that it is clear from the provisions of section 68(5) of the Act that
a Court called upon to determine the fairness of
a dismissal effected
on the ground of participation in an unprotected strike should
consider, in addition to Item 6 of the Code,
the provisions of Item
7.
[83]
Item
7 regulates dismissal for misconduct more generally and as
participation in unprotected strike action is misconduct, it should
logically be applied. Item 7 requires the determination of whether
dismissal was an appropriate sanction for contravention of the
relevant rule or standard.
[84]
The
determination of the substantive fairness of a strike related
dismissal must therefore take place in two stages. Firstly, under
Item 6 when the strike related enquiry takes place and secondly under
Item 7.
[85]
It is
undisputed that the employees embarked on an unauthorised and
unprotected strike or protest action on 11 May 2013 and that
there
was no attempt to comply with the provisions of the Act.
Was the strike action in response
to the employer’s unjustified conduct:
[86]
The
first issue to be decided is whether the employees’ strike or
protest action was in response to unjustified conduct by
the
employer.
[87]
The
Applicant’s pleaded case is that on 3 May 2013 they protested
in response or in reaction to the Gupta family who displayed
racism
and discrimination towards the employees and that the protest was
triggered by the behaviour of the Guptas. In respect of
the events of
11 May 2013 the Applicant’s pleaded case is that they
demonstrated with the intention to put more pressure
on the
Respondent to deal with the Gupta saga as it was the Applicant’s
view that Sun City failed to act after the demonstration
of 3 May
2013.
[88]
The
employees’ defence for participation in unprotected strike
action was that it was in response to unjustified conduct.
What
became clear at trial is that the offensive conduct complained of was
not perpetrated by the employer but that the issues
that gave rise to
the strike action arose from the conduct of a third party, the Guptas
and their guests.
[89]
In my
view a clear distinction is to be drawn between the events of 3 May
2013 and 11 May 2013. The protest action of 3 May 2013
was on the
Applicant’s own version was triggered by the conduct of the
Guptas and such protest action was not in response
to the conduct of
the employer.
[90]
Item
6 of Schedule 8 of the Act clearly articulates that the unjustified
conduct must be on the part of the employer and there is
no
indication that the conduct could extend to third parties.
[91]
The
protest action of 11 May 2013 was to put more pressure on the
Respondent to deal with the Gupta saga as it was the Applicant’s
view that Sun City failed to act after the demonstration of 3 May
2013.
[92]
The
issues in respect of the Guptas were raised with the Respondent on 3
May 2013 and the question is how or to what extent did
Sun City fail
to act after the issues were raised and whether the alleged failure
to act constituted unjustified conduct that justified
the strike
action.
[93]
This
certainly raises the question as to what Sun City was expected to do
after 3 May 2013. The evidence was that the Gupta wedding
took place
from 30 April 2013 until 3 May 2013 and SACCAWU reported the
complaints and allegations of racism to the Respondent
on 3 May 2013,
when the wedding was almost done.
[94]
The
Applicant’s case is that the Respondent did not do enough in
respect of the issues raised regarding the Guptas. The Applicant’s
witnesses testified that the Respondent should have investigated the
issues but did not elaborate on what else should have been
done and
in clarification I asked Clifford what else did they expect the
Respondent to do. Clifford responded that the Respondent
should not
have entered into an agreement with the Guptas and should not have
agreed to the Guptas’ requests and the Respondent
should have
communicated the agreement it had with the Guptas to the workers.
Clifford also said even if it was communicated to
them that the
waiters would not be allowed in the rooms or that the guest who was
accused of sexual harassment was removed from
the premises, they
would still have problems. It is evident that Clifford would not have
been satisfied with any response or action
taken by the Respondent.
[95]
I
also asked Koki what he expected the Respondent to do and he
responded that the Respondent failed to respond to the issues
timeously
as the ill treatment of employees started before 3 May 2013
as it started when the Guptas arrived.
[96]
Sun
City’s version that the person accused of sexual harassment had
been removed from the premises immediately and that the
issue was
dealt with to the satisfaction of the involved employee was
undisputed and I have no reason not to accept that the Respondent
dealt with the serious allegation of sexual harassment on 3 May 2013.
The fact that the trade union or employees did not know that
the
issue was dealt with and that the guest was removed from the premises
does not mean that the issue was not dealt with, but
is rather
indicative of poor communication between the parties.
[97]
Hawkins
testified that he requested proof of the allegations made in respect
of racism so that the issues could be investigated.
This is a sound
approach when allegations are made and when there is a need to
investigate those based on facts or evidence produced.
He testified
that at no stage did SACCAWU or the employees provide any proof of
the allegations they made. Unfortunately, Hawkins’
request for
proof of the allegations made was interpreted and understood by
SACCAWU and the employees to indicate that he was not
taking their
concerns or the allegations seriously.
[98]
I
observed Hawkins as a witness and from his testimony it was clear
that he agreed with the employees that any act of racism was
unacceptable and should not be tolerated and his request for proof of
allegations made was to gather information on the issues
to be
investigated and was not to disregard the complaints or to sweep the
issues raised under the carpet. The fact that the employees
understood his request for proof in the manner they did, is once
again rather indicative of poor communication between the parties.
[99]
It is
evident from the evidence adduced that the employees were and still
are angry about the manner in which they were treated
by the Guptas
and their guests. The employees experienced the treatment they
received as racist and discriminatory. The feelings
of anger and
frustration are understandable and justified in a democracy where the
Constitution
[4]
provides that the Republic of South Africa is founded on values
including
inter
alia
human
dignity and non-racialism. Sun City contracted to host the Gupta
wedding and acceded and agreed to specific requests from
the Guptas
in relation to the provision of private security and body guards,
chefs and drivers. I have no reason to find that at
the time Sun City
agreed to host the wedding and to accommodate the specific requests
made by the Guptas, it was done with the
intention to host an event
where racist or discriminatory practices would be displayed towards
the Sun City employees. In any event
there was no evidence adduced
that Sun City displayed racist or discriminatory conduct towards its
employees. The only ‘sin’
Sun City committed is to do
business with the Guptas.
[100]
Sun
City’s evidence that it does not practice or tolerate racism
was undisputed. In fact, Hawkins agreed with the employees
that any
racist conduct displayed towards them was unacceptable.
[101]
This
is a case where employees proverbially cried at the wrong funeral.
[102]
The
employees were angry and disgruntled because of the manner in which
the Guptas and their guests treated them and they took out
that anger
and frustration on their employer, who did not act in a racist or
discriminatory manner. The alleged acts of racism
on the part of the
Guptas and their guests cannot be attributed to the employer.
[103]
The
question remains: was the strike action justified because the
employer did not do enough. The answer to this question is no
for a
number of reasons. The issues were reported to Sun City on 3 May
2013, when the wedding was almost done. It is not clear
from the
Applicant’s pleaded case or evidence what they expected the
employer to do in respect of the issues raised regarding
the chefs,
drivers, body guards etcetera after the event was almost done. It is
undisputed that Sun City took action on 3 May 2013
in respect of the
allegations of sexual harassment.
[104]
The
complaint that the issues were not investigated must be seen in light
of the request to provide proof, which was never provided
and even if
the Respondent acted slowly in investigating the issues it did not
constitute unjustified conduct that justified unprotected
strike
action.
[105]
The
employees’ version on what the employer should have done more
is to be rejected. Clifford expected the Respondent not
to have
entered into an agreement with the Guptas and not to have agreed to
the Guptas’ requests, which expectation is unrealistic
and
immature as the Respondent operates in the hospitality industry and
could not have foreseen the conduct of the Guptas when
it agreed to
host the wedding. Koki’s evidence was that the Respondent
failed to respond to the issues timeously as the ill
treatment of
employees started before 3 May 2013 but started when the Guptas
arrived. I find this expectation difficult to accept
as the
undisputed evidence was that the issues were raised with the
Respondent in a meeting on 3 May 2013. There was no evidence
adduced
to show that the issues the Applicant had with the Guptas were raised
with the Respondent or Hawkins before 3 May 2013
or when the Guptas
arrived on 30 April 2013.
[106]
The
Applicant’s case that the strike action on 11 May 2013 was
justified because the Respondent did not do enough is without
merit.
The complaint that the employer did not do enough is a vague and
unsubstantiated allegation and did not justify strike action.
[107]
Sun
City issued a press release on 8 May 2013 wherein the issues raised
with management were addressed and responded to. The issues
were
further addressed in subsequent correspondence and meetings with the
union.
[108]
Evidence
before this Court showed that Sun City addressed the union’s
concerns, albeit not to the satisfaction of the union.
However, the
employees were unable to provide any practical or reasonable
suggestions on what the employer could have or should
have done
differently.
[109]
SACCAWU
knew as early as 3 May 2013 that the conduct complained of was not
that of the employer, but a third party. The issue was
raised with
the employer on 3 May 2013 and Sun City has taken steps to address
the issues and even if the steps taken were not
to the satisfaction
of the union, it was grossly disproportionate to instigate strike
action and to participate in a protest against
the employer.
[110]
The
evidence before this Court does not support the case that the
Respondent’s conduct was unjustified and that the strike
was in
response to such conduct.
Was the sanction of dismissal
appropriate?
[111]
The
second issue to be decided is whether dismissal was an appropriate
sanction. The Applicant’s case is that the sanction
of
dismissal is too harsh and not appropriate because the trust
relationship is not broken and discipline was not applied
consistently.
[112]
Item
7 of the Code provides that:
‘
Any
person who is determining whether a 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 work-place; 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 with an appropriate sanction
for the contravention of the rule or standard.’
[113]
The
employees participated in an unprotected strike action and such
participation constitutes misconduct. The Labour Appeal Court
[5]
approved the view
that Item 6 is neither exhaustive nor rigid and that other factors
are also relevant. Therefore, I have
to consider not only the
provisions of Item 6 and 7 of the Code, but also other relevant
factors to determine the fairness of the
strike related dismissal.
[114]
Firstly,
I have to consider the timing of the strike. The employees commenced
strike action on 11 May 2013, the day the prestigious
SAMA event was
hosted at Sun City. The chronology of events shows that by 11 May
2013 the Respondent had a meeting with the Applicant,
issued a press
release on the issues raised and that the Guptas had left the Sun
City premises and the conduct they displayed towards
the employees no
longer existed or continued. There was no need to embark on protests
action specifically on 11 May 2013 and the
only reason to strike and
protest on 11 May 2013 was because of the SAMA event and the media
coverage the event enjoyed. The timing
of the strike and protest
action was aimed to cause the most disruption and embarrassment
possible to the employer. The strike
was planned at a time that would
harm the employer most and that was critical to its business
operations.
[115]
The
legitimacy of the strikers’ demands is another consideration.
The intention of
the employees was to put pressure on the Respondent to deal with the
Gupta saga and effectively the demand was
for the employer to deal
with the issues. At that point the issue of sexual harassment had
been dealt with and the other issues
were either responded to or were
still to be investigated, an aspect I fully dealt with
supra.
As
at 11 May 2013 there was no legitimate reason to resort to
unprotected strike action.
[116]
Another
pertinent factor is the conduct of the employees. It is undisputed
that Sun City obtained a Court order on 10 May 2013 that
interdicted
the strike or protest action on 11 May 2013. Sun City adduced
evidence that the Court order was put up and displayed
at various
points on the premises and that there was an attempt to serve a copy
on the SACCAWU shop stewards. The employees denied
that they saw the
Court order or that it was served on the shop stewards. The issue
whether the employees saw the Court order or
whether it was served on
the shop stewards on 10 May 2013 becomes irrelevant in view of the
employees’ evidence that they
knew that the strike was
interdicted before they commenced participation in the unprotected
action.
[117]
Clifford
testified that when the employees gathered at the bus stop, Peter
Mojawesi phoned and told them about the Court order and
they
discovered that the Respondent obtained the Court order on 10 May
2013. Clifford conceded that they were informed about the
Court order
when they were still at the bus stop and they were told that the
Court order interdicted the strike and the march and
despite
knowledge of the Court order, they proceeded with the strike action
and march on 11 May 2013.
[118]
Koki
conceded that whilst they were at the bus stop they received a call
from Majowesi and they were informed about the Court order
that
prohibited the strike and the march and despite knowing that the
strike and the march had been prohibited by a Court order,
he
continued with the strike action.
[119]
It is
evident from the employees’ own concessions that on 11 May
2013, whilst they were still gathering inside the Respondent’s
premises and before they commenced their strike and protest action,
they knew about the Court order and the fact that it prohibited
the
strike and protest action.
[120]
Notwithstanding
their knowledge of the Court order, the employees proceeded with the
strike action which was prohibited by the Court
order.
[121]
Section
165(5) of the Constitution provides that: 'An order or decision
issued by a court binds all persons to whom and organs of
State to
which it applies.
It
is not for a party to litigation unilaterally to elect whether or not
to comply with orders of court. In the absence of an application
for
rescission or appeal, court orders must be complied with.
[122]
In
complete defiance of the Court order, the employees commenced with
their strike action and at that point their participation
was
deliberate and calculated in contravention of a Court order. The
employees’ defence is that notwithstanding their knowledge
of
the Court order, they proceeded with the strike action because
Hawkins made a bus available to transport them to the gate and
they
thought that by making a bus available, Hawkins allowed them to
participate and to go to the march. Clifford however conceded
that
Hawkins did not explain to him the circumstances under which the bus
was released. Hawkins testified that he made the bus
available as the
employees demanded a bus and the SAPS advised him to make the bus
available to calm the situation down. He expressly
stated that the
employees were wrong in assuming that they had permission to
participate in the protest action simply because a
bus was made
available. The bus was made available to avoid mayhem and in an
attempt to calm the situation down in view of the
ongoing SAMA event.
[123]
The
employees’ defence is far-fetched and opportunistic. In
circumstances where they demanded a bus and a bus is made available
to them they are not entitled to interpret that to mean that they
have the employer’s blessing and permission to participate
in
strike and protest action, the same strike action in respect of which
the employer obtained an interdict. The employees should
at least
have enquired from the employer whether they had permission to
participate in the strike action, especially after they
became aware
of the fact that the employer obtained a Court order interdicting the
same strike and protest action.
[124]
The
employees are adults and shop stewards and as such they should not
have acted on assumptions but should have clarified the employer’s
position before embarking on strike action they knew was unprotected
and interdicted by an order of Court. To make matters worse
for the
employees, the bus they demanded and that the employer made available
was not used and the employees instead marched to
the gate and in all
probability this was done for effect and to cause maximum disruption.
[125]
This
should serve as a stern warning to employees who act in contravention
of Court orders:
An
order or decision issued by this Court binds all persons to whom it
applies and if employees consciously, deliberately and knowingly
act
in contempt of such order, they should not expect sympathy or mercy
from this Court. They should not expect this Court to reward
their
contemptuous conduct and it is a factor to be considered when the
issue of relief is decided. Effectively the employees are
seeking
relief from the same Court they disrespected and whose orders they
breached.
[126]
Where
an employer obtained a Court order that interdicts certain conduct
and such Court order is deliberately breached by employees,
it does
not only constitute contemptuous conduct, but it undermines the rule
of law which cannot be tolerated or condoned.
Inconsistency
[127]
The
Applicant challenged the fairness of the employees’ dismissal
on the ground that the Respondent acted inconsistently in
dismissing
the employees as other workers who participated in the strike or
protest action on 11 May 2013 were not dismissed.
[128]
On
the issue of consistency, it was put to Hawkins that Peter Mojawesi,
who is a full time shop steward and who was at the Sun City
gate on
11 May 2013 was not dismissed. This was not disputed. It was further
put to Hawkins that M Mathibe, W Molepe, J Khumalo,
D Ntladi and R
Malefetsa, all shop stewards were at the main gate on 11 May 2013 and
they were not dismissed. Hawkins responded
that he did not know the
said employees.
[129]
In
respect of inconsistency Clifford testified that other employees
participated in the event of 11 May 2013 and they were not dismissed.
[130]
The
Respondent’s case is that it was clear from the photographic
evidence available that the employer took action against
all the shop
stewards that were identified therein.
[131]
In
cross-examination it was put to Clifford that all the employees who
were identified from photographs taken of the events of 11
May 2013
were charged for the incident of 11 May 2013. Clifford conceded that
others who participated in the march were not in
the photographs and
that the shop stewards who appeared in the photographs, were all
charged.
[132]
In
CEPPWAWU
v National Bargaining Council for the Chemical Industry
[6]
employees
were dismissed for committing misconduct while participating in a
lawful strike after the employer charged the ones it
was able to
identify in photographs. The Labour Appeal Court held that in
cases of collective misconduct an employer can
only act against those
employees it can prove to have committed the misconduct complained of
and an employer is obliged to charge
only those employees against
whom it has evidence. The Labour Appeal Court held that:
‘
Hence,
where there has been collective misconduct and the employer only
charges some of the employees because it only has evidence
against
them and from amongst those charged some are found to have committed
the wrong and are dismissed and a few acquitted, it
does not and
cannot follow that the dismissal was unfair because of any selective
application of discipline. An employer can only
be accused of
selective application of discipline if, having evidence against a
number of individual employees, it arbitrarily
selects only few to
face disciplinary action.
An
employer is also not obliged to investigate the identity of each and
every employee who may have participated in a wrongful activity
and
then proceed to take disciplinary measures against all the
wrongdoers. An employer need only proceed against those it has
evidence against’.
[133]
In
Mabinana
and others v Baldwins Steel
[7]
the Labour Appeal Court held that while only a handful of employees
were dismissed despite the large number of persons who had
participated in the unlawful act, their dismissal was not unlawful as
the employer is not obliged to ensure that it has identified
all the
perpetrators.
[134]
In
casu
Clifford
conceded that the employees who participated but were not charged
were not in the photographs and that the shop stewards
who appeared
in the photographs, were all charged. It is evident that the employer
took disciplinary action against the employees
it was able to
identify and against whom it had evidence. In
CEPPWAWU
v National Bargaining Council for the Chemical Industry
it was found that such conduct does not constitute the selective
application of discipline and I see no reason why the same does
not
apply
in
casu.
[135]
Be
that as it may, in
Absa
Bank Ltd v Naidu and others
[8]
the
Labour Appeal Court held that:
‘
However,
it ought to be realised, in my view, that the parity principle may
not just be applied willy-nilly without any measure
of caution. In
this regard, I am inclined to agree with Professor Grogan when he
remarks as follows:
'[T]he
parity principle should be applied with caution. It may well be that
employees who thoroughly deserved to be dismissed profit
from the
fact that other employees happened not to have been dismissed for a
similar offence in the past or because another
employee involved
in the same misconduct was not dismissed through some oversight by a
disciplinary officer, or because different
disciplinary officers had
different views on the appropriate penalty.'
[136]
Consistency
is but an element of fairness. There was no evidence or argument that
the Respondent acted capriciously or with bias
in dismissing the
employees. The argument is that the Respondent applied discipline
inconsistently and therefore the employees’
dismissal was
unfair.
[137]
The
fact that others participated in the events of 11 May 2013 but were
not charged and dismissed, does not, in view of the evidence,
the
applicable principles and Clifford’s concession that those
employees who could be identified from the photographs were
charged,
constitute an inconsistent application of discipline.
[138]
The
employees cannot escape the consequences of their misconduct because
of others who escaped the same consequences.
The trust relationship
[139]
The
Applicants’ case is that dismissal was not appropriate as the
trust relationship is not broken. Based on the evidence
adduced in
Court, I am convinced that the trust relationship between the parties
broke down. The fact that others who participated
in the strike were
not dismissed and are still employed by Sun City, does not change the
fact that the relationship between Sun
City and the employees broke
down and a continued employment relationship would be intolerable.
This is evident from the testimony
of Hawkins when he testified that
the relationship with the employees was harmfully damaged and it was
worse since Clifford, Koki
and Sam were individuals in leadership
positions as shop stewards and they ignored a Court order and
violated the law. They showed
disrespect not only to their employer,
but also to the court and the law. The employees on the other hand
held Sun City responsible
for the conduct of the Guptas and they
still do and nothing the employer did or do would change their
attitude. The employees can
hardly dispute the breakdown of the
relationship with the employer based on their testimony in court.
Mitigating factors
[140]
Mr
Molebaloa submitted that even if the employees were guilty of
participating in the unprotected strike action on 11 March 2013,
there are strong mitigating factors that render their dismissal
unfair. Those included the issue of inconsistency and that the
trust
relationship that has not broken down, which I already dealt with
supra.
In
addition to those factors Mr Molebaloa submitted in mitigation that a
bus was made available to transport the employees to the
march and it
had the potential of sending a confusing message which was construed
as permission to attend. The employees were not
informed of the
circumstances under which the bus was made available. The flip side
of this argument is that the employees never
asked about the
circumstances.
[141]
I
already considered this issue and found that the employees’
assumption that they had permission to attend was unreasonable,
more
so where there was an interdict obtained by the employer to prohibit
participation and where the employees made no effort
to ascertain
whether permission was indeed granted. The unfortunate thing about
assumptions is that they are sometimes wrong and
making the
assumption could be fatal. In relying on an assumption or
interpretation about what it meant when busses were made available,
the employees failed to ask certain obvious questions and they acted
on what they thought they knew and not on real information.
[142]
In
mitigation Mr Molebaloa further submitted that Koki and Clifford were
off duty when they participated in the strike action and
march. In my
view this is rather aggravating as it shows that there was no reason
for them to be at the Respondent’s premises
other than to
participate in the strike and notwithstanding knowledge of the Court
order, they proceeded to participate as that
was the reason for them
to go to Sun City and they were intent to do what they came out to
do, no matter what. They always intended
to participate in the strike
action and they had no intention or inclination to act in accordance
with the terms of the Court order,
in fact they took active steps to
disregard the interdict issued by this Court on 10 May 2013.
[143]
Mr
Molebaloa also submitted that the strike action did not take long and
there was no violence or damage to the property. It may
be so that
the strike or protest action was not violent or caused damage to
property and did not take long, but I have to consider
the fact that
it was scheduled on a date and time that would have caused the most
embarrassment and disruption for the employer.
It was deliberately
planned for 11 May 2013, to coincide with the SAMA event which
carries significance as Sun City was hosting
the prestigious event on
that day and it was planned to happen at the main entrance gate where
the guests and media would enter.
Furthermore, it proceeded in direct
violation of a Court order.
[144]
In
mitigation Mr Molebaloa further submitted that the employees at no
stage left their members alone or uncontrolled. In my view
this
ground is also aggravating rather than mitigating. The employees as
shop stewards participated in the strike and march, despite
their
knowledge that it was interdicted. They should have rather advised
their members not to participate and to rather comply
with the terms
of the Court order. They did none of that and to say to this Court
that they did not leave their members alone and
uncontrolled is
opportunistic when what they should be saying in mitigation was that
they tried to stop their members from participating
in the
interdicted strike and protest action.
[145]
Considering
all the factors
supra
,
dismissal was an appropriate sanction for the misconduct committed by
the employees.
[146]
It
follows that the employees’ dismissal was substantively fair.
[147]
Mr
Molebaloa did not make submissions on the issue of costs other than
to submit that the employees should be reinstated retrospectively
and
that the Respondent should be ordered to pay the costs. Mr
Ngcukaitobi with Mr Navsa submitted that the employees’ claim
should be dismissed with costs.
[148]
It is
evident that both parties are seeking an order that costs should
follow the result. I can see no reason to deviate from the
general
rule that the cost should follow the result, more so where no
submissions were made to justify a deviation.
[149]
In
the premises, I make the following order:
Order
1.
The
unfair dismissal dispute of Donald Magano is referred to the
Commission for Conciliation, Mediation and Arbitration for
arbitration;
2.
The
dismissal of Sam Botlhale, Clifford Ramontle and Koki Khojane was
substantively fair;
3.
The
case of Sam Botlhale, Clifford Ramontle and Koki Khojane is
dismissed;
4.
The
Applicant is to pay the Respondent’s costs, including the cost
of one counsel.
_____________________
Connie Prinsloo
Judge
of the Labour Court
Appearances:
For the Applicants:
Mr M S Molebaloa of M S Molebaloa Inc
Attorneys
For the Respondent:
Advocate T Ngcukaitobi and Advocate Z Navsa
Instructed
by:
Bowman Gilfillan Attorneys
[1]
Act 66 of 1995 as
amended.
[2]
Act 205 of 1993.
[3]
(2014) 1 BLLR 31
(LAC).
[4]
The Constitution
of the Republic of South Africa 1996 section 1.
[5]
(2014) 1 BLLR 31
(LAC) at para 30.
[6]
(2010) 31 ILJ 2836
(LAC) para 20.
[7]
(1999) 5 BLLR 453
(LAC) at paras 7 – 10.
[8]
(2015) 36 ILJ 602
(LAC).