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[2017] ZALCJHB 405
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AMCU obo Rantho and Others v Samancor Western Chrome Mines (JS2015/14, JS406/14) [2017] ZALCJHB 405 (8 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 2015/14 &
JS
406/14
In
the matter between
AMCU
OBO L.S. RANTHO & 158 OTHERS
First Applicant
TEBOGO
MOSES MATHIBA
Second Applicant
and
SAMANCOR WESTERN CHROME MINES
Respondent
Heard:
6
November 2017
Delivered:
8 November 2017
JUDGMENT:
POINT
IN LIMINE
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The first applicant, the Association of Mineworkers and Construction
Union (AMCU) approached this Court by way of a statement
of claim to
seek an order declaring the dismissal of its members (the individual
applicants) by the respondent following upon their
participation in
an unprotected strike action by to be procedurally and substantively
unfair.
[2]
In the signed pre-trial minutes, the respondent had indicated its
intention to raise a preliminary point in respect of the procedural
attack on the dismissal of the individual applicants. It contended
that AMCU, by entering into a settlement agreement with it,
waived
its right to challenge the procedural aspect of the individual
employees’ dismissal.
[3]
The second applicant, Mr Tebogo Moses Mathiba was also dismissed
together with the individual applicants and had referred a
separate
claim. That claim under case number JS406/14 was subsequently
consolidated in terms of an order issued on 17 April 2015.
Despite
his substantial interest in the matter arising from the preliminary
issues raised, his counsel Mr. Salojee had declined
to make any
submissions in that regard.
Background:
[4]
AMCU is a registered trade
union in terms of the relevant provisions of the Labour Relations Act
(LRA).
[1]
It approached this Court on its own behalf and on behalf of its
members who were before their dismissal, employed by the respondent
at its’ Mooinooi mining operations. The individual applicants
were dismissed on 13 December 2013 for participating
in an
unprotected industrial action.
[5]
During the period of the industrial action, there were three (3)
recognised trade unions within the Western Chrome, namely,
AMCU, the
Union of Mineworkers (NUM) and the United Association of South Africa
(UASA). On 25 November 2013, the individual
applicants
employed by the respondent embarked on an unprotected industrial
action. Upon the commencement of the industrial action,
the members
of AMCU approached the management of the respondent at both its
Mooinooi and Millsell operations with a list of demands.
[6]
During the course of that day, the representative of the respondent
met with AMCU officials to discuss the list of demands.
It is common
cause that AMCU members failed to tender their services on that day,
and were issued with at least two ultimatums
to return to work.
[7]
The normal working shift ordinarily commences at 06:00 hours
every morning. On 26 November 2013, the members
of AMCU
returned to work at about 06:30. The respondent thereafter elected to
prefer charges of misconduct for
inter alia
participating in
an unprotected industrial action against all its employees, including
the members of AMCU who had not rendered
their services on
25 and 26 November 2013.
[8]
A written notice was forwarded to AMCU and other unions officials
informing them of the charges preferred against the employees.
The
notice was also placed on the respondent’s notice boards on
6 December 2013. The notice
inter alia
recorded the
following:
“…
All employees who are members of a
union will be represented by their appointed union representative at
the hearing and are accordingly
not required to attend the hearing
Those employees who are not members
of a recognised union may amongst themselves elect not more than 4
(four) employees to represent
them at the hearing. Management must be
advised on or before 12h00 on 10 December 2013 whose
representative will be”
[9]
The employees were not suspended pending the commencement of the
internal disciplinary hearing and the outcome thereof. On
10 December 2013, the Secretary General of AMCU, Mr J.
Mphahlele, requested a meeting to be held on 12 December 2013,
in order to discuss the industrial action. On the same day, Mr
Phillip Mntombi a representative of the local branch of AMCU
communicated
with the respondent’s Human Resource Manager, Ms
Anele Janse van Rensburg informing the respondent that the
representatives
of AMCU were not going to be available to attend the
disciplinary hearing scheduled for 11 December 2013. He had
provided
two alternative dates for the hearing. In a response to Mr
Mntombi’s communication, Ms Janse van Rensburg indicated that
all the unions were issued with a 48 hours’ notice of the
disciplinary hearing and as such, the disciplinary hearing would
continue in the absence of AMCU.
[10]
On 11 December 2013, AMCU representatives were not present
at the hearing, the internal disciplinary hearing accordingly
proceeded in their absence. On the same day, the Chairperson of the
hearing sent correspondence to Mr Mphahlele of AMCU, and advised
him
that due to the fact that no application for postponement was made
and that no apologies were received for the non-attendance
by AMCU,
the hearing had proceeded in its absence. Moreover, AMCU was advised
that the outcome of the hearing was to be made available
at the same
venue on 13 December 2013 and further that the parties
would have an opportunity to make representation in
respect of
mitigating and aggravating circumstances.
[11]
On 13 December 2013, AMCU again did not attend the hearing
on the outcome and the sanction. At the conclusion of
the process,
all members of AMCU were found guilty of misconduct and a sanction of
dismissal was imposed. However, the rest of
the other employees,
including members of other unions and non-unionised employees were
found not guilty of misconduct.
[12]
In terms of the respondent’s disciplinary code and procedure,
an employee who is aggrieved by an outcome of an internal
disciplinary hearing, may lodge an appeal within two (2) business
days from the date she/he becomes aware of the disciplinary outcome.
On 13 December 2013, correspondence was forwarded to AMCU
with a list of members of AMCU who were dismissed as a result
of the
internal disciplinary hearing. AMCU was also advised that due to the
impending Christmas break, the period in which to lodge
an appeal
will begin on 6 January 2014 and the deadline for lodging
the appeal would be the 8 of January 2014.
[13]
The representatives of the respondent and AMCU met on 7 January 2014
to discuss the processes of lodging and conducting
the appeal. It was
agreed that the appeal would be held on 22 January 2014 and
23 January 2104. Before the
commencement of the appeal, the
parties commenced settlement discussions surrounding the dismissed
employees, and this had culminated
in a settlement agreement being
entered into.
[14]
In terms of the settlement agreement, it was agreed under clause 2
that;
1)
127 Employees who were on leave on 25 November 2013
would
be reinstated with retrospective effect from the date of dismissal;
(clause 2.1.1)
2)
134 Employees who had reported for work but did not proceed
to their
workstations would be reinstated with retrospective effect from the
date of dismissal; (clause 2.1.2)
3)
365 Employees who did not report for work on 25 November 2013
but were not a valid final written warning as at 25 November 2013
would be reinstated with retrospective effect; (clause
2.1.3)
4)
159 Employees who were dismissed and had valid final written
warnings
for similar misconduct were not to be reinstated, and their dismissal
was effective from 13 December 2013. (clause
2.1.4)
5)
The Union reserved its rights to refer a dispute as provided
for in
terms of the LRA, and the employer would have the same right to
challenge such a referral in terms of the LRA.
[15]
On 31 January 2014, AMCU referred an unfair dismissal
dispute to the Commission for Conciliation Mediation and Arbitration
(CCMA). Conciliation having failed, the matter was referred to this
Court for adjudication.
[16]
The final written warnings
referred to in the settlement agreement were those issued to
employees following upon another industrial
action that took place on
28 and 29 May 2013 at the Moonooi Shaft
[2]
In the parties’ signed pre-trial minutes, and other than the
preliminary issues to be raised, the applicants disputed that;
i.
they were properly issued
with the final written warnings;
ii.
that AMCU was not
properly and timeously informed of the respondent’s intention
to issue its members with final written warnings
iii.
that AMCU was advised
that it was entitled to appeal the final written warnings
iv.
that neither AMCU nor the
individual applicants appealed the final written warnings
v.
that the final written
warnings were properly served on the individual applicants
vi.
that the final written
warnings were still valid at the time of the conclusion of the
settlement agreement.
[17]
In these preliminary proceedings the Court is called upon to
determine:
17.1.
Whether the applicants are bound, in terms of clause 2.1.4.1 of
settlement agreement from
challenging the validity of the final
written warnings which were issued to the individual applicants and
other former employees
during July 2013;
17.2.
Whether the individual applicants are precluded, in terms clause 3.2
of the settlement
agreement from challenging the procedural fairness
of their dismissal on 13 December 2013;
17.3.
Whether this Court should hear evidence of the individual applicants
in order to determine
the preliminary point, whether the individual
applicants are the 159 employees to whom reference is made in clause
2.1.4.1 of the
settlement agreement.
[18]
In regard to the first issue, clause 2.1.4.1 of the Settlement
Agreement states that;
‘
2.1.4.1
By the time the 159 employees where dismissed, as listed in terms of
Annexure ‘E’,
the employees referred to had a valid final
written warning for similar misconduct’ (sic)
[19]
It was submitted on behalf of the respondent that properly
interpreted, clause 2.1.4.1 of the Settlement agreement constituted
an admission by AMCU that the final written warnings related to the
28 and 29 May 2013 industrial action were
issued
for valid reasons and were still effective as at the date of their
application in a further industrial action of 25 November 2016.
[20]
From the documentation before
the Court, I did not understand the applicants’ case to be that
they denied the events of 28 and 29 May 2013.
Correspondence was sent to all the Unions on 7 June 2013
advising them that as a result of the illegal strike activities
that
took place on 28 and 29 May 2013, all employees
who had participated in those activities were to be issued
with Final
Written Warnings. Copies of these warnings issued to the individual
employees are contained in the trial bundle
[3]
.
NUM appears to have lodged an appeal on behalf of its members on the
same date that it was informed of the final written warnings
[4]
.
[21]
In determining whether the applicants are bound in terms of the
provisions of clause 2.1.4.1 of the settlement agreement, it
should
be taken into account that the agreement came about as a result of
the unprotected industrial action embarked upon by the
employees, the
disciplinary process that had led to their dismissal, and the
parties’ intention to resolve disputes surrounding
the
dismissals. It is trite that the court should unless the words in the
agreement are ambiguous, give them their plain, ordinary
and popular
meaning. In certain circumstances, extrinsic evidence may be
permitted to show the intention of the parties.
[22]
I am of the view that upon a full consideration of the context of the
agreement, and the background as illustrated in this
judgment, there
can be no reason to doubt that various considerations were taken into
account by the parties when negotiating that
agreement, including the
employees’ disciplinary records. It was further not in dispute
that a final written warning issued
to an employee remain valid,
i.e
.
live, and on the employee’s employment record for a period of
12 months. Clause 2.1.4.1 properly construed therefore in
line with
the factors taken into account by the parties entails an
acknowledgement on their part that at the time of their dismissal,
the employees had valid final written warnings for similar
misconduct. That similar misconduct in the absence of a denial can
only be in reference to the strike action of 28 and 29 May 2013.
[23]
Mr Redding on behalf of the
applicants had submitted that the issue of previous final warnings
was central to the decision to dismiss
the employees, and that it
could not be divorced from the other issues to be determined in trial
proceedings for the purposes of
convenience. In this regard,
reference was made to
Changula
v Bell Equipment
[5]
for the proposition that an
employer in dismissing the employee on the strength of a prior
warning was wrong in concluding that,
because the employee had
acquiesced in the final warning, there was no need to have regard to
the circumstances which gave rise
to that previous warning. In the
same judgment however, the then LAC had added that;
“…
it
must be emphasised that it is not intended in this judgment to lay
down a general rule that employers when disciplining employees
must
reopen and reconsider previous disciplinary cases against the
employee”
[6]
[24]
A further difficulty with the
applicants’ defence to the preliminary point pertains to the
application of the provisions of
section 186 (2) of the LRA
[7]
.
The dispute resolution scheme in respect of any alleged unfair labour
practice, including the challenge to final written warnings
is
contained in sections 135 and 191 of the LRA. A long line of
authorities in this court hold the view that it is trite
law that
disciplinary steps which are not challenged timeously cannot be
challenged belatedly when the final step of dismissal
is taken
[8]
.
In my view, to therefore allow the applicant to challenge the
previous final warnings issued in June/July 2013 at this stage
of the trial proceedings would be to countenance the circumvention of
the dispute resolution scheme as contained in sections 135
and 191 of
the LRA.
[25]
Clause 2.1.4.3 of the settlement agreement to the extent that it
permitted the applicants to reserve their rights and refer
any
further disputes to this Court cannot be read to include that they
are entitled to approach the Court with a belated challenge
to the
previous final written warnings. It is therefore not correct as
submitted on their behalf that they can challenge anything
to do with
their dismissal in this Court at this stage. To this end, the
applicants are precluded from mounting any challenge to
the validity
or fairness of the previous final warnings issued in respect of the
industrial action of 28 and 29 May 2013.
[26]
In respect of the second preliminary point, clause 3.2 of the
settlement agreement provides that;
‘
The Union has elected not to
exercise the right of the dismissed employees to appeal their
dismissal, and the appeal on behalf of
the dismissed employees is
hereby withdrawn.’
[27]
Mr. Van As’ contention on behalf of the respondent was that by
withdrawing their appeal, the applicants deprived the
respondent of
the opportunity of remedying any defect or even holding a
de novo
disciplinary hearing. Thus, to the extent that the applicants had
failed to attend their disciplinary enquiry and thereafter
withdrawing
their appeal, it was submitted that they had waived or
abandoned their right to challenge the procedural fairness of their
dismissals,
or alternatively, their procedural challenge should be
confined to the reasons for not attending the disciplinary hearings
as scheduled.
[28]
Two central complaints were
raised in regard to the procedural fairness of the dismissal. The
first pertained to whether the respondent
had convened the appeal
proceedings within the time frames stipulated in the disciplinary
code and procedure. This issue can however
be disposed of on the
basis that it was common cause that the appeal proceedings were to
take place over the Christmas period and
the respondent had sent
correspondence to the Union advising it of the postponements. I
further fail to appreciate the vigour with
which this issue is
pursued in view of little or no prejudice having been suffered by the
individual applicants
[9]
.
If there is indeed any prejudice suffered by the individual
applicants, that is an issue that can be determined within the
conclusions
to be made in respect of the second preliminary issue
raised.
[29]
The question as to whether by withdrawing the appeals, the applicants
had waived their rights to challenge the procedural fairness
of their
dismissal in its entirety must be determined within the context
within which the settlement agreement was concluded. Clause
1.3 of
the agreement states that the parties met on 22 and 23 January 2014,
in an attempt to narrow the issues
to be addressed at the appeal
hearing. Having reached settlement, the Union had elected not to
exercise the employees’ right
to appeal, and had withdrawn
those appeals.
[30]
In the light of the above, it would in my view be iniquitous to
conclude that the withdrawal of the appeals should amount to
a waiver
to challenge the procedural fairness of the dismissal without
affording the applicants or the Union an opportunity to
explain the
circumstances which led to it not attending the disciplinary
hearings, and its intention in regard to the withdrawal
of the
appeals in the light of the reservation of its rights under clause
2.1.4.3. It is further trite that the provisions of any
agreement,
whether collective or otherwise, cannot trump an employee’s
constitutional rights to fair labour practices.
[31]
The third and last preliminary point essentially boils down to
whether the 159 employees identified under clause 2.1.4.1 were
so
correctly identified for the purposes of their dismissal on the basis
that they had valid final written warnings on their records.
To
require this Court to go through an elaborate exercise in this regard
is a big ask, as it would require of it to hear evidence
from each
employee as to why they allege that they were not properly
identified.
[32]
I am further of the view that the issue of the identification of the
employees was a matter which should have been dealt with
by the
parties at the time that the settlement agreement was concluded. In
any event, this exercise would negate the conclusions
reached in
regard to the first preliminary issue raised, which was that a valid
final written warning was live at the time of their
dismissal in
respect of all of them. In my view, once the Union had conceded at
the time of the conclusion of the agreement that
indeed these
individual applicants had previous final written warnings, it is not
for this Court in the light of the other numbers
consented to in
reaching settlement to re-look at those numbers.
Order:
[33]
In the premises, the order of the court is as follows;
1.
The respondent’s first preliminary point is upheld,
and the
applicants are accordingly precluded from challenging the validity of
the final written warnings which were issued to them
and other
employees in June and July 2013.
2.
The second preliminary issue is dismissed, and the applicants
are
permitted to challenge the procedural fairness of their dismissals on
13 December 2013.
3.
The third preliminary point is upheld, and the applicants
are barred
from leading evidence to determine whether they are the 159 employees
identified in clause 2.1.4.1 of the Settlement
Agreement
4.
Costs associated with the preliminary points are to be
costs in the
cause.
_____________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the First Applicant:
Adv. A. Redding SC with Adv D. Greyling-Coetzer
Instructed
by:
Harry Dave Attorneys
For
the Second Applicant: Adv Y.F Saloojee
Instructed
by:
Scholtz Attorneys
For
the Respondent:
Adv. M.J Van As
Instructed
by:
Solomon Holmes Attorneys
[1]
Act 66 of 1995, as amended
[2]
Page 23 of
Vol 1 of Trial Bundle
[3]
Pages 24 –
182 of Trial Bundle. Vol 1
[4]
Page 182
(c) of the Trial Bundle Vol 1
[5]
(1992) 13 ILJ 101 (LAC)
[6]
At page 10
[7]
Which provides that;
` (2)
Unfair labour practice' means an unfair act or omission that arises
between an
employer and an employee involving-
(a) unfair conduct by the
employer relating to the promotion, demotion, probation (excluding
disputes about dismissals
for a reason relating to probation) or
training of an employee or relating to the provision of benefits to
an employee;
(b) the unfair suspension
of an employee or any other unfair disciplinary action short of
dismissal in respect of
an employee;
(c) a failure or
refusal by an employer to reinstate or re-employ a former employee
in terms of any agreement;
and
(d) an occupational
detriment, other than dismissal, in contravention of the Protected
Disclosures Act, 2000
(Act No. 26 of 2000), on account of the
employee having made a protected disclosure defined in that Act.’
[8]
Cliff Choene v Mitsui
& Company Southern Africa (Pty) Ltd Case No: J185/06.
See
also
Shoprite Checkers
(Pty) Ltd v Ramdaw NO & Others
[2001] 9 BLLR 1011
(LAC); NUM &
Another vs. Amcoal Colliery
[2000] 8 BLLR 869
(LAC); Builders Trade
Depot v CCMA & Others [2012] 4 BLLR 343 (LC)
[9]
Rand Water Board v
CCMA (2005) 26 ILJ 2028 (LC)
at
2032