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[2017] ZALCJHB 467
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Public Servants Association of South Africa obo Motapanyane v Premier: Free State Province and Another (JS867/2006) [2017] ZALCJHB 467 (1 December 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JS 867/2006
In the
matter between:
THE
PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA
OBO
OUPA JONAS MOTAPANYANE
Applicant
and
THE
PREMIER: FREE STATE PROVINCE
First Respondent
MEC:
DEPARTMENT OF HEALTH:
FREE
STATE PROVINCE
Second Respondent
Heard
:
27 November 2017
Heads of argument filed: 29
November 2017
Delivered
:
01 December 2017
Summary:
Applicant alleges unfair dismissal following dismissal for
participation in an unprotected strike.
Substantive fairness is the
only issue to be decided. Dismissal was fair.
JUDGMENT
PRINSLOO;
J
Introduction
[1]
The Applicant (PSA) on behalf of its
member, Mr Motapanyane (the employee) approached this Court for
relief after he was dismissed
for participation in unprotected strike
action. The employee claimed that his dismissal was substantively and
procedurally unfair.
[2]
The Respondents opposed the matter.
[3]
Before turning to the merits of the case,
it is necessary to give a brief overview of the pleadings, the
pre-trial minute and the
issues for the Court to decide.
[4]
At the commencement of the trial Mr Venter
for the Applicant abandoned the challenge in respect of procedural
fairness and indicated
that the only issue to be considered and
decided is the substantive fairness of the employee’s
dismissal.
The pleadings and pre-trial minute
[5]
It is common cause between the parties that
the employee was employed by the Department of Health, Free State
(the Department) at
the Katleho District Hospital in Virginia. The
employee was employed as an administrative clerk and was dismissed on
6 April 2006
pursuant to a disciplinary hearing where he was found
guilty of misconduct for participation in unprotected and unlawful
industrial
action at the Katleho District Hospital on 14 November
2005. The employee’s dismissal was confirmed in May 2006
when
his internal appeal was dismissed.
[6]
The employee was a member and shop steward
of the PSA at the Katleho District Hospital.
[7]
In the statement of case the Applicant’s
pleaded case is that the unions jointly wrote a letter to the Premier
of the Free
State on 10 November 2005 wherein they demanded a meeting
with the Premier before 14 November 2005.
[8]
Also on 10 November 2005 the unions
addressed a ‘notice of action to be taken on 14 November 2005’
to the Head of the
Department (HOD). This notice informed the HOD
that action would be taken at the Katleho Hospital on 14 November
2005.
[9]
The Department responded to the notice on
10 November 2005 and advised the unions that industrial action would
be unprocedural and
unlawful as the Department is designated as an
essential service and the contemplated industrial action was viewed
in a very serious
light as it may compromise and disrupt essential
services and result in loss of life. Upon receipt of this letter the
PSA responded
that it distanced itself from any illegal and
prohibited action and that its members should refrain from such
action.
[10]
The Applicant’s case on substantive
fairness is that the employee did not participate in the unprotected
strike action, whereas
the Department’s case is that he
participated in the strike action on 14 November 2005.
[11]
The issue this Court is required to
determine is whether the employee participated in the strike action
on 14 November 2005 and
whether dismissal was an appropriate
sanction.
[12]
The delay in this matter is a cause for
concern. The employee was finally dismissed in May 2006 and his
statement of case was filed
on 15 December 2006. A first pre-trial
minute was filed on 8 November 2012, almost 6 years later. The first
pre-trial minute was
defective and in January 2013 this Court issued
a directive for the parties to file a supplementary pre-trial minute.
The supplementary
pre-trial minute, which still does not comply with
the provisions of Rule 6(4)(b) or paragraph 10.4.2.2 the Practice
Manual for
the Labour Court, was filed in September 2013. It appears
that the Court file was archived at some point due to the delay and
it
contributed significantly to further delays and difficulties to
proceed with the matter. The matter was eventually enrolled for
trial
in April 2017.
[13]
Mr Venter for the Applicant conceded that
there was no active effort to pursue the matter to trial since the
statement of case was
filed in December 2006 and the first pre-trial
minute was filed in November 2012. The challenges and prejudice in
proceeding to
trial in respect of a dismissal that took place more
than 11 years ago are obvious.
The evidence adduced
[14]
The Respondents called two witnesses. The
first witness was Mr Jacob Rakatsinyana (Rakatsinyana) who testified
that he has been
employed by the Department for 35 years and in
November 2005 he was employed at the Katleho Hospital. He knows the
employee as
he was employed by the Department and was his subordinate
at the hospital where the employee was responsible for admissions and
accounts.
[15]
Rakatsinyana testified that he saw the
employee participating in the strike action on 14 November 2005. The
witness described the
events of 14 November 2005 as that 40 –
50 people were singing and chanting in front of the administration
building and the
employee was one of them. He further testified that
when he went to the employee’s office, he was not there as he
was outside
singing with the striking employees.
[16]
Rakatsinyana testified that the employee
was supposed to be in his office performing his duties for the day,
which included the
admission of patients and receipt of admission
fees but on 14 November 2005 the employee was not in the office and
he did not perform
those duties. Rakatsinyana explained that on 14
November 2005 he had to perform some of the employee’s
functions and when
the cash up was done between 15:30 and 16:00, the
employee was not there to do it. The employee should have been in his
office
from 07:30 until 16:00 but on 14 November 2005 he was not in
his office as he was singing with the strikers.
[17]
In respect of the employee’s version
that he did not participate in the strike action, but merely went
there to tell the PSA
members not to participate, Rakatsinyana was
adamant as to what he saw and he reiterated that the employee was
amongst the strikers
and he was singing with them. If the employee
went to call the PSA members, he could have done so and went back to
work, which
he did not do. This version Rakatsinyana also disputed in
cross-examination and he testified that the employee did not go back
to the office to the extent that Rakatsinyana had to do the cash up
at the end of the day.
[18]
In cross-examination it was put to
Rakatsinyana that a union management meeting was scheduled for 14
November 2005 at 10:00 and
if the employee was not in his office on
14 November 2005, it was because he was attending the said meeting.
Rakatsinyana disputed
this and testified that he saw the employee
with the strikers from 09:30 – 13:00. Rakatsinyane explained
that he was not
in his office the entire duration of the strike
action as he had to take care of other duties in the administration
department
to ensure that the services were running smoothly.
[19]
It was also put to Rakatsinyana that the
PSA distanced itself from the strike action on 14 November 2005.
Rakatsinyane agreed that
the PSA did not participate in the strike
action but he insisted that the employee and other PSA members indeed
participated.
[20]
Rakatsinyana testified that his office was
next to the area where the striking employees were singing and he
could see them from
his office as his office window faced in the
direction of the parking area where the strikers were.
[21]
The Respondent’s second witness was
Ms Moletsane (Moletsane) who testified that she worked at the Katleho
Hospital in November
2005 as a patient care manager. She explained
that she started to work at 07:00 and her duty was
inter
alia
to get reports from the nurses. On
14 November 2005 whilst she was busy to receive reports from the
nurses, she heard noise outside
and when she investigated, she found
that the hospital staff members were singing and dancing. She checked
the wards and the patients
and found that many nurses were no in
their allocated wards but that they were participating in the singing
and dancing. She went
back to her office to write down the names of
the nurses who were supposed to report for duty but failed to do so.
Moletsane testified
that she saw the employee as he was part of the
group singing and dancing.
[22]
In respect of the employee’s version
that he was only there to stop the PSA members from striking,
Moletsane conceded that
she could not say what he had said to the
strikers, but she insisted that he was participating in the strike
and that she saw him
singing and dancing.
[23]
In cross-examination Moletsane testified
that she was unable to state the exact time she saw the employee
singing with the striking
employees, but she estimated that it was
around 07:45 and she explained that she saw the strikers as she
passed them as she went
to and from her office. It was put to
Moletsane that Rakatsinyana testified that the strike only commenced
at 09:30. Moletsane
could not explain that and responded that she
could only state the facts that she knows.
[24]
It was also put to Moletsane that the PSA
did not participate in the strike action on 14 November 2005.
Moletsane testified that
she was not aware that the PSA did not
participate in the strike action but insisted that she saw that the
employee indeed participated.
[25]
Mr Venter posed questions to Moletsane
about Rakatsinyana’s office and his ability and the possibility
to see the employee
from the said office. Moletsane testified that it
would be possible to see the strikers from the said office but that
it would
not be possible to identify the employee from Rakatsinyana’s
office.
[26]
The employee testified that on 10 November
2005 the unions demanded a meeting with the Premier before 14
November 2005 and he was
a signatory to the letter.
[27]
He also testified that a union management
committee meeting was scheduled for 14 November 2005 but this meeting
however never took
place.
[28]
The PSA’s position was that its
members should not participate in the strike as the strike was
illegal. On the day of the
strike the employee went to the group of
striking employees and called the PSA members to tell them that their
conduct was unlawful
and he had to shout because the employees were
singing.
[29]
The employee testified that he did not sing
with the strikers. When he realised that the employees were singing
outside he called
the PSA’s Mr Victor Nqanda (Nqanda) who said
he would send one Judy, a full time shop steward to assist the
employee to make
sure that the PSA members did not take part in the
strike action.
[30]
The employee was asked whether it was
possible to see the strike from Rakatsinyana’s office and he
responded that it was not
possible as it was too far and because the
windows faced in another direction. This version was however not put
to Rakatsinyana
and Rakatsinyana’s evidence that he could see
the strikers from his office and that his office windows faced in the
direction
of where the strikers were, was not challenged.
[31]
In respect of Rakatsinyana’s evidence
that the employee was not in the office the whole day the employee
testified that he
was in the office the whole day and he only went
out to speak to Judy outside his office. The difficulty with this
version is twofold.
Firstly, it was not put to Rakatsinyane. The
version put to Rakatsinyane was that if the employee was not in his
office on 14 November
2005, it was because he was attending the union
management committee meeting which was scheduled for 14 November
2005. Secondly,
on the employee’s own version the union
management committee meeting did not take place on 14 November 2005
and he was not
attending such a meeting.
[32]
The employee seeks re-instatement.
[33]
In cross-examination Ms Britz for the
Respondents took the employee through his entire working day on 14
November 2005. In summary
the employee testified that he arrived at
work at 07:30 and started with his normal duties to fetch the
admission fees and place
it in the store room. This task was
completed by 08:00. The employee heard people singing at the
admission block and he phoned
Nqanda and had a five minute
conversation with him. Nqanda said he would phone Judy to assist the
employee to ensure that PSA members
do not participate in the strike.
Judy arrived approximately an hour and a half later and when she
arrived, they went to the strikers
to tell the PSA members not to
participate in the strike as it was unprotected. They approached the
striking employees somewhere
between 09:30 and 09:45 and it took them
approximately 10 minutes to address the PSA members.
[34]
The employee testified that while he was
waiting for Judy, he carried on with his normal duties.
[35]
The employee testified that there were 4
PSA members who participated in the strike but after the employee and
Judy spoke to them,
they listened to them and they abandoned the
strike.
[36]
Afterwards the employee and Judy went back
to his office to observe how long the singing would continue and to
ensure that the PSA
members do not return to join the strike. Judy
left at 13:30 when the singing stopped.
[37]
The employee testified that after Judy left
he was back in his office and proceeded with his daily tasks until
16:00 when he knocked
off. The employee disputed that Rakatsinyana
had to do the cash up on 14 November 2005.
[38]
Subsequent to his dismissal the PSA in a
notice of appeal made representations on behalf of the employee to
the Department. It was
put to the employee that the same
representations that were made in respect of other PSA members who
participated in the strike
were made on his behalf and there was no
difference in the submissions. Ms Britz stated that this was so
because the employee participated
in the strike and the PSA knew
that, because if that was not the case the PSA and more specifically
Judy and Nqanda would have
informed the Department that the employee
did not participate in the strike but he went there on instruction
and to stop PSA members
from participating in the strike. The
employee conceded that he has nothing in writing from Judy or Nqanda
to support his version
and they were also not going to testify for
him in this trial.
[39]
It was put to the employee that no
different submissions were made on his behalf and no explanation was
tendered to the employer
because the version presented by the
employee never happened. If it happened the employee and his union
would have told the Department
about the fact that the employee was
instructed to address the striking PSA members and that he did not
participate but merely
spoke to the employees for approximately 10
minutes.
[40]
Ms Britz referred to the employee’s
testimony that on 14 November 2005 he arrived at work at 07:30,
waited for Judy to arrive,
that he addressed the workers with Judy
and went back to his office with reference to his pleaded case and
specifically paragraph
9 of his statement of case. In the said
paragraph the employee pleaded that on 14 November 2005 a union
management committee meeting
was scheduled and when he saw officials
from other unions entering the office of the chief executive officer
at the hospital, he
also entered the office under the impression that
it was to have the scheduled meeting and he then heard that the other
unions
were proceeding with the strike action. This meeting never
took place and the employee never testified that he attended such
meeting
or went to the chief executive officer’s office on 14
November 2005, despite being asked specifically to describe his
working
day of 14 November 2005. In fact, in evidence in chief the
employee’s version was that he was in his office the entire
day,
except when he went to address the striking PSA members.
[41]
The employee conceded that he had no
problems with Rakatsinyana or Moletsane and he could not provide any
plausible reasons as to
why they would come to Court and testify that
they saw him participating in the strike action.
[42]
The employee testified that he was the only
PSA member who was dismissed. The other four members who participated
in the strike
was suspended without pay for a month.
Arguments and analysis
[43]
The first question to be considered in
determining the substantive fairness of the employee’s
dismissal is whether he took
part in unprotected strike action on 14
November 2005.
[44]
On the evidence before me, there are two
conflicting versions.
[45]
On the one hand the employee’s
pleaded case is that he did not participate in the strike at all on
14 November 2005. His pleaded
case is that he wrongly attended a
union management meeting and that he proceeded to ensure that the PSA
members do not embark
on strike action.
[46]
His evidence before Court was that he was
in his office the entire day on 14 November 2005, executing his
duties except when he
addressed the striking PSA members and advised
them not to participate in the strike action.
[47]
On the other hand, the Respondents’
case is that the employee participated in the strike action, which he
knew was unprotected,
when he joined the strikers in singing and
dancing and that he was not in his office and did not execute his
duties on 14 November
2005.
[48]
In
Stellenbosch
Farmers’ Winery Group Ltd and another v Martell et Cie and
others
[1]
the proper approach to the resolution of factual disputes was
explained by the Supreme Court of Appeal (per Nienaber JA) in the
following terms at para 5:
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on
(a)
the credibility of the various factual witnesses;
(b)
their
reliability; and
(c)
the probabilities. As to
(a)
, the
court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary factors, not necessarily
in order of importance, such as (i) the witness' candour
and
demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, (v) the
probability or improbability of particular aspects of his version,
(vi) the calibre and cogency of his performance compared to that of
other witnesses testifying about the same incident or events.
As to
(b)
, a witness' reliability will depend, apart from the other
factors mentioned under
(a)
(ii), (iv) and (v) above, on (i)
the opportunities he had to experience or observe the event in
question and (ii) the quality,
integrity and independence of his
recall thereof. As to
(c)
, this necessitates an analysis and
evaluation of the probability or improbability of each party's
version on each of the disputed
issues. In the light of the
assessment of
(a)
,
(b)
and
(c)
the court will
then, as a final step, determine whether the party burdened with the
onus of proof has succeeded in discharging
it. The hard case, which
will doubtless be a rare one, occurs when a court's credibility
findings compel it in one direction and
its evaluation of the general
probabilities in another. The more convincing the former, the less
convincing will be the latter.
But when all factors are equipoised
probabilities prevail.'
[49]
In casu
it
is common cause that there was strike action on 14 November 2005 and
that it was unprotected. What is disputed is whether the
employee
participated or not.
[50]
Mr Venter for the Applicant submitted that
the evidence the employer adduced to show that the employee committed
misconduct by participating
in the strike action was not credible as
it was contradictory.
[51]
The first aspect Mr Venter referred to is
Rakatsinyana’s evidence that the strike commenced at 09:30
versus Moletsane’s
evidence that she heard the strikers singing
shortly after she reported for duty at 07:00. The employee testified
that he arrived
at work at 07:30 and he fetched the admission fees
and placed it in the store room, which took him approximately 30
minutes. He
then heard people singing at the admission block and
phoned Nqanda around 08:00 to report this.
[52]
I am alive to the fact that the strike
happened in 2005 and that the witnesses have to rely on their
memories in respect of an event
that happened more than 12 years ago.
On the evidence before me and on the versions presented by Moletsane
and the employee I accept
that the strike action commenced somewhere
between 07:00 and 08:00 on 14 November 2005.
[53]
Rakatsinyana testified that he saw the
employee participating in the strike action at 09:30 and Moletsane
testified that she saw
the employee participating at around 07:45. Mr
Venter submitted that this is a material discrepancy. In my view this
is not a discrepancy
as the witnesses testified independently and in
respect of different occasions when they saw the employee.
Rakatsinyana did not
testify that he was with Moletsane or vice versa
when they observed the employee participating in the strike. They
testified as
to their own observations and recollections of when they
saw the employee. It would have been a discrepancy if the
Respondents’
version was that Rakatsinyana and Moletsane were
together when they observed the employee and there was a material
difference in
the time, but that is not the case
in
casu.
[54]
Mr Venter further submitted that
Rakatsinayana testified that he was able to see the striking
employees from his office and to identify
the employee and the
discrepancy is that Moletsane testified that it would not have been
possible to identify individuals from
Rakatsinyana’s office.
The difficulty with this submission is that Rakatsinyana was called
as a witness and his direct evidence
was that his office was next to
the place where the employees were singing and his office windows
faced in that direction. The
questions posed to Moletsane about
whether Rakatsinyana was able to identify the employee from his
office should have been posed
to Rakatsinyana and I cannot attach
much weight to Moletsane’s evidence in this regard. These
issues were not canvassed with
Rakatsinyana during his
cross-examination and it can hardly be said that there is a material
contradiction in the evidence when
it was never put to Rakatsinyana
that he was not able to see or identify the employee from his office.
[55]
Mr Venter further submitted that the
employee testified that that the strikers could not be noticed from
Rakatsinyana’s office.
The difficulty here is that this version
was never put to Rakatsinyana during his evidence and Rakatsinyana
was never afforded
the opportunity to respond to that. I cannot
attach much weight to a version that was not put to the pertinent
witness, Rakatsinyana,
in respect of an aspect Rakatsinyana had
direct and personal knowledge of.
[56]
Mr Venter submitted that Moletsane
testified that she noticed that the employee was part of the group of
striking employees but
she was not sure whether he was merely present
or part taking and that she conceded that it is possible that he was
there to remove
striking PSA members. Mr Venter argued that the
employee’s version must be favoured because Moletsane explained
that it was
possible that the employee ‘merely assisted PSA
members.’
[57]
This argument holds no water for a number
of reasons. Firstly, Moletsane testified specifically that she saw
the employee participating
in the strike and in cross-examination
when it was put to her that the employee did not participate but went
there to stop the
PSA members from participating in the strike, she
re-iterated that she saw him participating as he was singing and
dancing with
the strikers. What she conceded was that she was unable
to say what the employee said as it was noisy and that she did not
hear
him say anything to the strikers. Upon the question whether it
was possible that the employee went to the strike to stop the PSA
members from striking, Moletsane’s response was that she did
not know.
[58]
Secondly, the employee’s version was
that he was in his office the entire day, except for the
approximately 10 minutes when
he went out to address the strikers
with Judy at around 09:30. This version was not put to Moletsane who
testified that she saw
the employee participating in the strike at
around 07:45, instead the proposition was put to Moletsane that the
employee went to
the strikers to stop the PSA members from striking.
By placing reliance on Moletsane’s evidence in support for his
case that
he merely went to stop the PSA strikers, the employee is
effectively accepting that Moletsane saw him at the strike, but his
version
is that it was not to participate. This is in conflict with
the employee’s own version that he only went to address the
strikers
at 09:30.
[59]
Mr Venter further took issue with the fact
that Moletsane testified in the disciplinary hearing where she made
no mention of the
employee, yet she is now able to identify the
employee as a striker. Moletsane explained in her testimony that she
was responsible
for the nurses and when the strike commenced, she
wrote down the names of the nurses who participated. She testified in
respect
of the nurses as she only concentrated on the nurses as they
were her responsibility and the employee was not a nurse. I accept
this explanation as reasonable and plausible. Rakatsinyana who was in
charge of the administration department testified as to the
employees
who participated in the strike he was able to identify in the
disciplinary hearing and it was evident that those all
fell under his
supervision in the administration department. Apart from this
Moletsane testified that she knows the employee and
I accept that as
she knows him, she would be able to identify the employee and the
fact that she focussed on the nursing staff
who fell under her
supervision at the time of the disciplinary hearing, does not affect
her ability to identify the employee and
not much turns on the fact
that she did not identify him in the disciplinary enquiry. It was
never put to Moletsane that she could
not or was unable to identify
the employee.
[60]
Mr Venter submitted that the probabilities
favour the employee because the PSA indicated that it would not
participate in the strike
and this was communicated to the employee
who, as a shop steward, was well aware that the PSA was not part of
the strike. Judy
assisted him to ensure that PSA members did not
participate.
[61]
In my view this is not sufficient to
sustain an argument that the probabilities favour the employee. The
employee is well aware
of the fact that the Respondents’ case
is that he participated in the strike and his case is that he did not
participate
but went to the strikers with Judy for 10 minutes to
ensure that PSA members do not strike. The obvious thing to do was to
call
Judy to testify and to corroborate this version. This Court is
not told why Judy is not called as a witness and I am left with no
explanation and no option but to make a negative inference from the
fact that Judy, a crucial witness, is not called to support
the
employee’s version.
[62]
Mr Venter argued that the employee’s
version was credible and most probably the preferred version. The
employee was present
when the strike took place but this was because
he was sent to collect the PSA members from the strike. He had no
intention to
strike and his specific task was to ensure that the PSA
members did not participate in the strike.
[63]
There are a number of factors I have to
consider in determining the probabilities of the versions presented.
One such factor is
the credibility of the various factual witnesses
and in deciding this, I have to consider contradictions in the
evidence in what
was testified and what was put and pleaded as a
version.
[64]
The Respondents’ witnesses both
testified that they saw the employee participating in the strike
action on 14 November 2005
by singing and dancing with the strikers.
The employee testified that he had no issues with Rakatsinyana or
Moletsane and that
they had no issues with him or scores to settle.
Rakatsinyana and Moletsane both observed the employee participating
in the strike
and they had no reason to testify to that effect other
than that it was what they indeed observed. They had no issue with
the employee,
they displayed no bias or prejudice towards the
employee, they do not stand to gain or lose anything by testifying
against the
employee and throughout their testimony they stood by
their version that they saw the employee participating in the strike
action.
I find Rakatsinyana and Moletsane to be credible witnesses
and their testimony to be reliable. I accept their testimony that
they
saw the employee participating in the strike on 14 November 2005
as probable.
[65]
The employee’s version on the other
hand had many contradictions. His pleaded case is that that on 14
November 2005 a union
management committee meeting was scheduled and
when he saw officials from other unions entering the office of the
chief executive
officer at the hospital, he also entered the office
under the impression that it was to have the scheduled meeting and he
then
heard that the other unions were proceeding with the strike
action. According to the notice of the union management meeting the
meeting was scheduled for 10:00 on 14 November 2005. In
cross-examination it was put to Rakatsinyana that a union management
meeting
was scheduled for 14 November 2005 at 10:00 and if the
employee was not in his office on 14 November 2005, it was because he
was
attending the said meeting.
[66]
The employee’s own version however
was that the said meeting never took place and he never testified in
accordance with what
his pleaded case was or in accordance with his
version as was put to Rakatsinyana. In fact, in evidence in chief the
employee’s
version was that he was in his office the entire
day, except when he went to address the striking PSA members with
Judy at around
09:30.
[67]
It is evident that there are material
contradictions in the employee’s pleaded case, his version as
put to the Respondents’
witnesses in cross-examination and his
own testimony. His version varied from he was in his office the
entire day and when he was
not there, it was because he attended the
union meeting at 10:00 to a version that the union meeting never
happened and he was
in his office the entire day except for the 10
minutes he went to address the strikers with Judy at around 09:30.
[68]
The employee’s version that he was
instructed by Nqanda to go to the strike and to address the strikers
and that he was accompanied
by Judy is not corroborated to any
extent. Rakatsinyana testified that he did not see the full time shop
steward on 14 November
2005 assisting the employee in ensuring that
PSA members did not participate. Neither Nqanda nor Judy was called
as witnesses to
corroborate this version. The appeal notice filed on
behalf of the employee after his dismissal also did not mention the
fact that
he was instructed by his union to go to the strike and that
he was accompanied by Judy. In fact, the appeal submissions are
exactly
the same as the submissions filed on behalf of the other PSA
members who participated in the strike.
[69]
In my view it is telling that the
employee’s own union did not present the version he seeks to
introduce in Court namely that
he was instructed to go to the strike
and that he was accompanied by Judy. The PSA treated the employee’s
case exactly the
same as it treated the cases of its other members
who participated in the strike action and the PSA at no point sought
to differentiate
the employee’s situation or the merits of his
case from that of the members who participated in the strike action.
[70]
I find it improbable that the union would
not have put forward the version that the employee was instructed to
go to the strikers
and that he was assisted by Judy if that indeed
happened and where such an explanation could have exonerated the
employee. Instead,
the PSA treated the employee’s case the same
as the case of the other strikers and made no effort to file a
statement or
call a witness in support of the employee.
[71]
Considering the inherent probabilities of
the versions presented, I find the Respondents’ version to be
more probable for
the reasons I dealt with
supra.
I have considered the fact that the
Respondents bear the onus to prove that the employee was indeed
guilty of misconduct by participating
in unprotected strike action
and I am satisfied on the facts before me that the Respondents
discharged this onus.
Was the dismissal substantively
fair:
[72]
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) provides as follows in
respect of substantive
fairness:
‘
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.
[73]
The distinction between a protected and
unprotected strike is not an academic one. It is one that ought to
have consequences. Be
that as it may, I have to consider the factors
as aforesaid.
[74]
The contravention of the Act is serious
where the employer is an essential service and participation in
strike action is prohibited
by section 65 of the Act. There was no
attempt to comply with the provisions of the Act, in fact the strike
action was in direct
contravention of the provisions of the Act.
[75]
Item 7 of the Code regulates dismissal for
misconduct more generally and as participation in unprotected strike
action is misconduct,
it should logically applies. Item 7 requires
the determination of whether dismissal was an appropriate sanction
for contravention
of the relevant rule or standard.
[76]
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.
[77]
The employee participated in unprotected
strike action and it constituted misconduct. The employee was aware
that the strike was
unprotected and that he should not participate.
[78]
The only remaining issues to be decided
therefore are whether discipline was consistently applied and whether
dismissal was an appropriate
sanction.
[79]
The employee challenged the fairness of his
dismissal on the ground that discipline was applied inconsistently in
that there were
other employees who participated in the strike who
were not dismissed but who received lesser sanctions.
[80]
The Respondents submitted that
shop
stewards of unions who participated in the unprotected strike action
were dismissed and the others who were only union members
and not
shop stewards received lesser sanctions. The rationale behind this
decision was that shop steward should set an example
and were
therefore not treated the same as normal union members when an
appropriate sanction had to be determined.
[81]
In
SA
Commercial Catering and Allied Worker’s Union and others v
Irvin and Johnson Ltd
[2]
the
LAC held that:
In
my view too great an emphasis is quite frequently sought to be placed
on the 'principle' of disciplinary consistency, also called
the
'parity principle' (as to which see eg Grogan
Workplace
Law
(4 ed) at 145 and Le Roux & Van Niekerk
The
SA Law of Unfair Dismissal
at 110). There is really no separate 'principle' involved.
Consistency is simply an element of disciplinary fairness (M S
M
Brassey 'The Dismissal of Strikers' (1990) 11 ILJ 213 at 229). Every
employee must be measured by the same standards (
Reckitt
& Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union &
others
(1991)
12 ILJ 806 (LAC)
at
813H-I). Discipline must not be capricious.
[82]
In
Absa
Bank Ltd v Naidu and others
[3]
the
LAC 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.'”
[83]
The
Labour Appeal Court in
Bidserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and others
[4]
held
that:
This
court sounded a warning on approaching the question of inconsistency
in the application of discipline willy-nilly without any
measure of
caution. Inconsistency is a factor to be taken into account in the
determination of the fairness of the dismissal but
by no means
decisive of the outcome on the determination of reasonableness and
fairness of the decision to dismiss. A generalised
allegation of
inconsistency is not sufficient. A concrete allegation identifying
who the persons are who were treated differently
and the basis upon
which they ought not to have been treated differently or that no
distinction should have been made must be set
out clearly.
[84]
Consistency is but an element of fairness
and not decisive of the outcome on the determination of the fairness
of a dismissal. There
was no evidence or argument that the Respondent
acted capriciously or with bias in dismissing the employee. The
argument is that
the Respondents applied discipline inconsistently by
not dismissing the other PSA members who participated in the strike
action
and therefore the employee’s dismissal was unfair.
[85]
In casu
discipline
was not consistently applied. Whether that renders the employee’s
dismissal unfair is a separate question.
[86]
In my view dismissal was an appropriate
sanction for the misconduct committed by the employee and he cannot
escape the consequences
of his misconduct because others who
participated in the strike received lesser sanctions.
[87]
The Respondents’ provided a
justification for imposing a lesser sanction for union members and a
more severe sanction for
shop stewards who participated in the same
unprotected strike action. This differentiation was valid as the
employee in his capacity
as a shop steward, who knew that the strike
action was unprotected, was expected to assume a leadership role and
set an example
and not participate in the strike action.
[88]
It follows that the employee’s
dismissal was substantively fair.
Costs
[89]
Costs should be considered against the
provisions of section 162 of the Act and according to the
requirements of the law and fairness.
[90]
Mr Venter made no submissions on the issue
of costs and Ms Britz submitted that the Applicant’s case be
dismissed with costs
but no specific submissions in respect of costs
were made.
[91]
This Court has a very wide discretion in
awarding costs. In his testimony the employee stated that he was
unemployed since the date
of his dismissal and that he was funding
his own litigation.
[92]
In my view this is a matter where the
interest of fairness will be best served by making no order as to
costs.
[93]
In the premises, I make the following
order:
Order
1.
The Applicant’s case is dismissed;
2.
There is no order as to costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
Advocate P M Venter
Instructed by
Lovius Block Attorneys
For the Respondent:
Advocate C Britz
Instructed by State
Attorney Bloemfontein
[1]
2003
(1) SA 11 (SCA)
[2]
(1999)
20 ILJ 23-2 (LAC).
[3]
(2015)
36 ILJ 602 (LAC).
[4]
(2017)
38 ILJ 860 (LAC)