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[2017] ZALCD 3
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National Union of Metal Workers of South Africa (NUMSA) and Others v Transvaal Pressed Nuts Bolts and Rivets (Pty) Ltd (D212/14) [2017] ZALCD 3 (31 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Not Reportable
CASE NO:
D212/14
In
the matter between:
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA
(NUMSA)
First Applicant
ABEDNEGO
MCHUNU & 80 OTHERS
Second and Further Applicants
and
TRANSVAAL
PRESSED NUTS BOLTS
AND
RIVETS (PTY)
LTD
Respondent
Heard
:
15 December 2016
Delivered
:
31 January 2017
Summary:
unfairly dismissal claim - for participation in an
unprotected strike - applicants admit that work stoppages took
place, which
were not in accordance with Section 64 of the LRA and
that ultimatums were issued – strike was in response to
unjustified
conduct by the employer except for second applicant whose
dismissal was fair – limited back-pay ordered with
reinstatement.
JUDGMENT
Cele
J
Introduction
[1]
In this claim the Applicants contend that the Second and further
Applicants, hereafter referred to also as employees, were unfairly
dismissed by the Respondent for participation in an unprotected
strike. The Applicants admit that work stoppages took place, which
were not in accordance with Section 64 of the Labour Relations Act
[1]
and that ultimatums were issued, but they contend that the sanction
of dismissal was inappropriate and unfair. They seek reinstatement
in
the employ of the Respondent with full retrospective effect,
alternatively, compensation and costs of suit. The Respondent opposed
the claim on the simple basis that dismissal was the appropriate and
fair sanction for the admitted misconduct in this case.
Factual
Background
[2]
The pleadings and the trial commenced with quite a number of facts
placed in dispute between the parties. At the end of the
trial, a
number of such facts admittedly became common cause or remained
undisputed. My gratitude goes to representatives of the
parties for
furnishing me with a summary of the facts that was consistent with
the transcribed record. I adopted that factual outline.
[3]
The Respondent operates a manufacturing plant in Ladysmith where the
second to further applicants were employed in the production
of
bolts, nuts, and rivets. There were about 170 employees. The
Respondent had its head office in Alberton, which is its
administrative
centre, but all manufacturing was done in Ladysmith.
From 2012 through to May 2013 Sergio Mr Sergio Cerrai was the
Director in
charge of production with his co-director Mr Paulos
Cerrai. Mr Sergio Cerrai’s father and his uncle were the
founders of
the Respondent which was run by the next generation,
being Mr Sergio Cerrai’s brothers, sister, himself and also his
cousin,
Mr Paulos Cerrai, who recently retired.
[4]
Mr Cerrai initially handled most labour relations. However, as he
felt that his responsibilities were increased, and as the
labour law
to him became more complicated, the Respondent employed an employer’s
organisation called Full Range Employer’s
Organization
(“FREO”), to assist it as regards labour matters. The
person at FREO who Mr Cerrai would deal with was
Mr Stefan van der
Westhuizen. He was to deal with the workforce and report back to Mr
Cerrai. The First Applicant is a union operating
in the workplace of
the Respondent, with the second and further Applicants having been
its members. There was also another union
called NUWASA. Over the
years the ongoing relationship between the employer and Numsa was
rocky and in other times it was good.
Employees complained, inter
alia, about bad language that was allegedly used by management in the
factory and about the manner
in which disciplinary processes were
handled. There were unprocedural strikes taking place in 2012 which
did not last that long
but led to some dissatisfaction with the way
in which the processes were not being followed.
[5]
On 4 April 2012 a racial slur was allegedly directed toward one of
the employees by Andre Van Wyk who is said to have referred
to such
employee as a “
stupid baboon
”. News of the insult
spread through the factory that day and the following morning
employees refused to work in response
to Mr van Wyk’s insult.
The union organiser, Mr Hlatshwayo, attended at the Respondent’s
premises and persuaded the
employees to return to work on the basis
that he would take the matter up with Mr Cerrai. In the subsequent
meeting held by Messrs
Hlatshwayo and Cerrai, Mr Cerrai complained
about the fact that he was being approached instead of the complaint
being given to
Mr van Der Westhuizen. Much of the further conduct of
the meeting was devoted toward explaining to Mr Cerrai that the
workers complaints
and HR issues in general were not being adequately
dealt with by, Mr van Der Westhuizen. Part of the minutes of that day
read:
“…
enough
is enough with having Stephan representing you because he is not
honestly representing you because in any meetings that have
been
taking place he does not come back he promises that he will come
back
”
.
[6]
On 12 April 2012 the Respondent instructed its attorneys to send a
letter to the local office of the First Applicant:
Ø
complaining about the work stoppage on 5
April 2012;
Ø
accusing Hlatshwayo of being complicit in
the work stoppage;
Ø
demanding a written explanation for the
reasons for the work stoppage despite the fact that the Respondent
was, according to the
Applicants well aware of the reasons;
Ø
demanding a written undertaking that no
recurrence would occur, failing which legal action would be
instituted;
Ø
informing the First Applicant that the
Respondent would not entertain any further meetings with the First
Applicant of the shop
stewards without prior, written request,
setting out in detail the matters to be discussed; and
Ø
despite the representations made to Mr
Cerrai on 5 April, instructing that such request should be sent
directly to Mr van der Westhuizen.
[7]
On 8 May 2013 there was an unprotected strike at the
workplace and the workforce, who had previously not really exhibited
a strong violent streak, on this occasion, was quite aggressive.
Within the first little period of this strike they were toy-toying,
singing and dancing as a collective. The group rushed down and
assaulted one of the Senior Managers, Mr Ian Thurlow, employed as
an
Industrial Engineer, to set up systems to improve productivity in the
work place, to save money and to make the company more
productive. He
reports directly to the directors, more particularly Mr Sergio
Cerrai. Mr Thurlow did not deal much with the general
work force and
had no altercations with any member of work force. He joined the
Health and Safety Committee in an advisory capacity
and had a good
relationship with the employee representatives on that committee.
[8]
The siren went off as usual at 7 am on 8 May 2016. Mr Thurlow was at
his desk in his office when someone came into his office
and made “a
broad statement” that the work force had not come out of the
change room. Mr Thurlow walked across Section
A to the first opening
in Section H and saw a number of people standing around. The
workforce was singing in the change room. He
then met Mr Bongani
Mchunu, a Numsa shop steward, at the entrance to Section H. Mr Mchunu
mentioned to Mr Thurlow that the workers
were very unhappy because
they had not received feedback to “some or other grievance”.
Mr Thurlow had not been directly
involved in relation to the
grievances. However, the sealed letter containing the grievances had
been handed to his office a few
weeks prior. The letter had been
taken straight up to senior management and he had no idea what was in
the letter. He mentioned
to Mr Mchunu that the present industrial
action was “unfortunate” because the employees were not
following normal procedure
– whereas, if the employees had come
to the senior managers earlier, management might have been able to
“do something”
or at least make representations to the
senior directors.
[9]
Somewhat later in the morning Mr Thurlow was in his office with Mr
Mike Swan when Mr Andre van Wyk came in to update what was
going on
with the workforce. He informed them that Mr Thurlow was going to be
“targeted”. Mr Thurlow had it in his
mind that he “was
going to be blamed for delaying a grievance or something like that”.
At about 8h30 Mr Thurlow became
concerned about an intern working by
herself on the other side of the factory. This was a young woman of
17 or 18 years of age
who had just left school. Mr Thurlow knew her
father. He decided that he would find her and bring her back to the
office block.
He could hear the striking employees toy-toying but
could not see them from his office. He got to the door of Section H
and looked
for the work force. They were at the top of the road
near the office block. He then thought that he would have ample
time to get across the road to the other factory. He walked
diagonally across the road with his back to the striking employees.
[10]
As he got into the factory he heard the sound of fast running feet
behind him. He was then four or five metres into the factory.
As he
turned around he got tackled from behind the neck and pulled onto the
floor. He received a blow to the face. He did
not fight back
but remained on the ground and protected his head. As he lay on the
ground there “was punching, kicking, moving,
tugging and so
on”. All of a sudden it stopped and there were two people
helping him to stand up. They found his glasses
and helped him
to the clinic where he received first aid before being taken to La
Verna Hospital. His nose was fractured
and he suffered cuts and
abrasions. His jacket was soaked in blood as a result of the assault.
He identified the photographs showing
his injuries in the bundle of
documents.
[11]
Mr Thurlow agreed that he was sympathetic with the African workers in
respect of the bad language that was being used in the
factory and he
confirmed that, as a matter of principle, he was against bad
language. He did not, however, concede that the problem
was worse at
Respondent’s workplace than at other places where he had
worked, saying “factory language is factory language”.
He
also agreed that he had advised the employees to lodge a grievance
and, for that reason, the envelope had been handed to him.
He
testified that his advice to the employees was that they had to stick
to the LRA. As regards the assault on him it was faintly
suggested
that Mr Thurlow might have made a gesture to the striking employees
with his middle finger. He strongly disputed
the insinuation.
[12]
Mr Cerrai was not present in Ladysmith on 8 May 2013 but was
travelling to Respondent’s head office in Alberton.
Soon
after 11:00am he received three to four telephone calls from
Ladysmith, including calls from his co-director, Mr Paulos Cerrai,
and the factory managers. He was informed that Numsa aligned
employees had not come into the factory to work after 7:00am. He
telephoned Mr Stefan van der Westhuizen and asked him to attend to
the factory. Later he asked Mr van der Westhuizen to prepare
an
ultimatum to get the workers back to work. Thereafter he was
informed, telephonically, about the assault on Mr Ian Thurlow and
that the situation at the factory was “quite tense”. He
then gave the instruction that the factory should be closed
so that
no one else would get hurt. He then abandoned the rest of the
meetings that were to be held in Alberton and travelled
back to
Ladysmith. He arrived back in Ladysmith late on Wednesday 8 May 2013
and was back at the factory on Thursday morning 9
May 2013.
[13]
The factory had remained closed but meetings were arranged with Numsa
and their shop stewards to discuss the violence. These
meetings took
place on 9 and 10 May 2013 at the offices of FREO. At the first
meeting, Mr Duke Louw, Respondent’s attorney,
was present as
were Messrs Stefan van der Westhuizen and Cerrai. Numsa was
represented by its local organiser, Mr Phumlani
Hlatswayo, and three
shop stewards – including Mr Mchunu. At this meeting, Mr Cerrai
made it clear that the factory was to
be shut to protect the property
and people. Respondent wanted assurances that there would be no
further violence once the factory
opened. Mr Cerrai explained that
the assault on Mr Thurlow had to be viewed in a serious light. If
Respondent could not guarantee
the safety of a senior manager, such
as Mr Thurlow, it would become extremely difficult to apply
discipline and to expect junior
managers to apply their authority.
[14]
The Numsa representatives were told that Mr Phillip Zungu had been
identified as one of the assailants and that he would be
suspended.
They were assured that their grievance letter would be investigated
as would the assault on Mr Thurlow and that the
investigation would
be done as speedily as possible. The union representatives did not
take too kindly to the idea of Mr Zungu
being suspended. That then
became a sticking point. Towards the end of the meeting Mr Hlatswayo
undertook to guarantee that there
would be no further violence.
However, when the Numsa delegation was leaving, Mr Mchunu commented
that it may not be possible to
give any guarantee regarding violence
while Mr Zungu remained on suspension. Once the Numsa delegation had
left the room, Respondent’s
management considered their options
and decided to accept Mr Hlatswayo’s undertaking of no
violence.
[15]
On the next day, 10 May 2013, most of the employees came back to
work, but the Numsa employees did not come back into the factory.
The
shop stewards requested an opportunity to report back to their
members and this was granted to them. At about 7:30am, the shop
stewards reported that their members were prepared to come back to
work, provided that Mr Zungu accompanied them. Mr Cerrai did
not
agree to this proviso and the second meeting was arranged to be held
at the offices of FREO. As a concession it was agreed
that Mr Zungu
could come into the work place, provided that he was accompanied by
the three shop stewards who would be responsible
for him. The
employees were given an ultimatum accompanied with an assurance that
the Respondent would investigate the matter.
The ultimatum was given
on Friday 10 May 2013 and required the employees to return to work by
Monday 12 May 2013. A formal
written ultimatum was typed out
and given to Mr Hlatswayo. There was a further meeting on 10 May
2013. At this meeting Mr Hlatswayo
requested more time in order to
get legal advice from Durban and he requested that the ultimatum be
extended to the morning of
Tuesday 13 May 2013 at 7:00 am. Mr
Hlatswayo was given the extension but requested to reply by 12 noon
on Monday. He asked
that the extension be kept confidential. He
would then prevail upon the employees to comply with the initial
ultimatum, which
he eventually succeeding in doing. Consequently, all
Numsa employees came back to work on the Monday morning. Mr Zungu
remained
on suspension and the factory came back into operation.
[16]
The Respondent then commissioned an investigation into the events
pertaining to the assault. This was performed by a Mr Derrick
Kerr
who is a service provider to SOFESA. The investigation took
three days and on the afternoon of the third day Mr Kerr
recommended
that Mr Zungu, who was identified as one of Mr Thurlow’s
assailants, be disciplined. Mention was also made of
Mr Mchunu who
had also been identified on the video as having played a specific
role in the assault. Steps were then taken to discipline
Mr Mchunu. A
letter dated 23 May 2013, was addressed to Mr Mchunu and served on
him on 24 May 2013 to inform him that there would
be a full
disciplinary enquiry into his transgression namely that:
“
During
the unprotected strike on 8 May 2013 he incited violence by pointing
in the direction of Ian Thurlow and shouting “nango”
thereby precipitating the assault on Ian Thurlow.”
[17]
Mr Mchunu was not suspended, but the enquiry was scheduled to take
place at 09h30 on 31 May 2013. There is a live dispute
on
whether the Respondent notified Numsa of the proposed disciplinary
hearing against Mr Mchunu as he was a senior shop steward.
According
to the Respondent such notification was done by means of a letter
dated 24 May 2013. According to the Applicants, no
such notification
was issued and such failure was responsible for the strike of 27 May
2013.
[18]
Just after 12h30, the factory manager, Mr Eros Jannon, reported to Mr
Cerrai that the Numsa members had not come into the factory
and that
they were sitting in the change rooms. They had, therefore, not
returned to work after their lunch break. Two shop stewards,
Messrs
Hadebe and Ngwenya came and saw Mr Cerrai in his office to inform him
that the employees wanted the disciplinary action
against their shop
steward to be withdrawn. The employees were then issued with a verbal
ultimatum to return to work by 13h00 but
they did not comply with
that ultimatum. However Mr Hlatswayo arrived at 13h00 for the
scheduled meeting which was then used
to discuss the illegal strike
that had just occurred. A second ultimatum was issued requesting the
employees to return to work
by 14h00. The parties did not, at that
stage, discuss the proposed disciplinary action against Mr Mchunu.
[19]
By 14h00 the employees had still not returned to work. Mr Cerrai then
went to the change rooms to call the shop stewards. He
communicated
his intentions by tapping his watch, opening and shutting the fingers
of his right hand, to signify talking and gesturing
outside with his
thumb. The shop stewards understood and arrived for the meeting
shortly after. A third ultimatum was issued for
the employees to
return to work by 15h15 on that day. By 15h15 the employees had still
not reported for work. They were then issued
with a letter informing
them that the Respondent would take disciplinary action. The letter
was faxed to the union shortly before
the work shut-off on Monday.
By 16h15 everyone had disbursed.
[20]
On 28 May 2013, a Tuesday, Numsa members came into the factory
premises at 7h00 but did not return to their work stations.
Mr Cerrai
was in his office and a member of the SAPS was there who had been
sent to keep an eye on the situation. Mr van
der Westhuizen
arrived shortly after 7h00 and met Mr Cerrai to discuss options on
how to proceed. There was commotion and the members
of Numsa came out
of the change rooms, started singing, chanting and toy-toying on the
main road of the factory.
[21]
It was then decided, after consulting the co-directors in Alberton,
to dismiss all the employees, subject to each employee’s
right
to pursue an appeal against his or her dismissal. Dismissal letters
were handed to the shop stewards and faxed to the union.
Employees
were informed of their right to lodge an appeal on an individual
basis within four days. The employees appealed as a
collective
represented by the union. Respondent was represented in the appeal by
Mr van der Westhuizen and the employees were represented
by Mr
Hlatswayo. The appeal was heard by Mr AS Mengel. It confirmed
the dismissal. An unfair dismissal dispute arose which
was
unsuccessfully referred to conciliation and thereafter to this Court.
Most of the employees involved in the strike had long
service records
and specialised skills gained over years of employment with the
company. More than 40% of the employees had in
excess of fifteen
years of service, with some as much as 30 to 35 years.
The
issue
[22]
While it was admitted that at the Respondent’s
workplace, work stoppages by second and further Applicants took
place, which
were not in accordance with Section 64 of the LRA and
that ultimatums were issued, it is to be determined whether the
sanction
of dismissal was in the circumstances appropriate and fair.
A series of events leading up to 28 May 2013 have thus become
relevant
to the inquiry. A large bulk of evidence has become common
cause. The remaining disputed evidence shall now be summarized. In
this
regard Court has to consider evidence relevant, inter alia, to:
1)
the seriousness of the contravention of the Act;
2)
attempts made to comply with the LRA and
3)
whether or not the strike was in response to unjustified conduct
by
the Respondent, as the employer.
Respondent’s
version
[23]
Mr Ricardo Cerrai (Ricardo to avoid confusion with Mr Sergio Cerrai)
who was the son of Mr Sergio Cerrai was employed by Respondent
as a
fitter and turner apprentice. On 8 May 2013 he was at work from 7:00
am. He was asked to take a video of the strike activities
from the
vantage of the offices. He took the video from his personal cellular
telephone. He took two videos on the day. The
first video was
played in court and he confirmed this to be the video that he took.
He identified Mr Phillip Zungu on the video
whom he said, was, at the
time, a welder employed by Respondent. He also identified Mr Bongani
Mchunu. He identified the direction,
in which the employees he said
were led by Mr Zungu are shown on the video to be running towards, as
being “from the main
gate in towards the factory”. Some
of the striking employees were entering the building through an
entrance on the side.
Ricardo identified this as being the entrance
into the factory by the furnace and stores.
[24]
Ricardo testified that he could see and hear that just before the
crowd began to run someone shouted the words “Nango!
Nango!”
He identified the person, on the video as being Mr Bongani Mchunu. He
said that the video and cellular telephone
had not been tampered
with. He downloaded the video from the cellular telephone onto a
computer and then copied the original clip
from the computer onto a
memory stick. The cellular telephone was put into a safe and is
available for inspection. He identified
the voices heard on the
video, that is, the voices of the persons who were with him in the
offices, as being those of Messrs van
der Westhuizen and Leanne
Rostow (Mr Sergio Cerrai’s personal assistant). The latter was
in telephonic contact with the stores.
Her voice is heard on
the video asking what happened and acknowledging a report that Mr Ian
Thurlow had been assaulted and had
been taken to stores which is
closer to the clinic. Ricardo also said that he took a video
recording on 28 May 2013, commencing
at 08:07.
[25]
Mr Peter Lansdale testified that is employed by Respondent as a
Production and Logistics Co-ordinator and that he has been
so
employed since 2002. On 8 May 2013 he reported for work at 7:00am.
About three quarters of the work force were not at their
work
stations. UWASA aligned employees was not on strike and only the
NUMSA employees were in the change rooms. He met up with
Mr Andre van
Wyk and both met the shops stewards, Messrs Mchunu and Ngwenya. At
this stage Mr Mchunu told them that Mr Thurlow
was “going to be
f.. up”. Mr Lansdale told Mr Mchunu to “choose his words
carefully”. Mr Mchunu then answered
that Mr Thurlow was going
to be “targeted”. Mr Lansdale went to look for Mr Mike
Swan but could not find him. Mr van
Wyk found him and reported to him
what they had heard about Mr Thurlow.
[26]
Mr Lansdale witnessed the assault on Mr Thurlow. He saw Thurlow lying
curled up “in a baby position” with his hands
behind his
head and Mr Zungu holding him down onto the grounds with his left
hand. Mr Lansdale brought it to the end by “shoulder-charging”
Mr Zungu off Mr Ian Thurlow. After the assault, Mr Mchunu asked the
rest of the striking employees to get outside of the factory.
Mr
Lansdale “followed Mr Zungu with his eyes” to ensure that
he left. He said that he believed that Mr Thurlow was
resented by the
workforce because he came to implement new strategies that required
stream lining and cumbersome paper work.
Applicants’
version
[27]
Mr Mchunu testified that he was first employed by Respondent in 2002
as an Operator. He became a Numsa shop steward around
2005 and a
Chairperson of the shop stewards from 2009. He said that he has
undergone shop steward training and that he knows how
disputes are
processed in matters of mutual interest. He stated that he was the
Deputy Chair of the shop steward’s council
for the Ladysmith
district and that he held this position since 2012. He knew that
disputes were required to be referred to the
Bargaining Council
before employees could go on a protected strike. He was also aware
that it amounted to misconduct to go on an
unprotected strike, this
being misconduct for which employees were liable to be dismissed. He
accepted that, as a shop steward,
he was in a position to explain
this to Numsa members.
[28]
Regarding the work stoppage on 5 April 2012 he said that the
employees were angered by an incident where one of the employees,
Mr
Thembelani Ngwenya, had been called “a baboon” by Mr van
Wyk. Mr Mchunu had approached and reported the incident
to Mr Mike
Swan and Mr van Wyk had then offered an apology. Nonetheless
the employees were very angry in that they were being
insulted and
nothing was being done about it. Employees were also dissatisfied as
regards various other issues such as promotion
and the perception
that Whites and Indians were receiving preferential treatment and
that procedures were not followed before warnings
were issues. Mr
Mchunu spoke to the managers about the employees’ unhappiness
and, when he spoke to Mr Thurlow, he was advised
to record the
complaints in writing. As at 10 April 2013, the employees were still
unhappy that the issues have not been addressed.
They expected Mr van
der Westhuizen to get back to them within a week but he did not.
They spoke to other managers including
Messrs Swan, Eros Jannon and
Lansdale. The matter was also reported to Ms Leanne Ristow. However
she was unable, at the time, to
locate Mr van der Westhuizen.
[29]
On 8 May 2013, Mr Mchunu arrived at work, Messrs Swan and Paulos
Cerrai came to the window where he was working and asked why
the
employees were not at their stations. Mr Mchunu then called the other
two shop stewards and they went to speak to the employees.
They were
told that the employees wanted answers regarding the grievances that
had been lodged and that they wanted to be addressed
by Mr van der
Westhuizen. There was conversation with management but he could not
recall whether Mr Thurlow was a part of this.
Mr Mchunu
testified that there was only one such discussion. He disputed that
there was a separate exchange between himself, Messrs
Lansdale and Mr
van Wyk during which he could have said that Mr Thurlow would be
targeted or “f… up”. He was
not aware of any
unhappiness in the work force as regards Mr Thurlow.
[30]
According to Mr Mchunu the shop stewards then left the employees and
discussed the matter as shop stewards “to find solutions”.
They stood in a position where they knew that Mr van der Westhuizen
was going to walk past. They then heard a commotion and saw
that the
employees were now outside the change rooms, singing and
demonstrating. They approached them and went to join them.
[31]
As regards the charge on Mr Thurlow, Mr Mchunu testified that he did
not hear the word “nango!” and that he did
not shout such
words. According to Mchunu, the noise level in the crowd was high. He
heard a commotion behind him from the direction
that he was not
facing and he heard noise from a different side a distance from where
he was standing. Employees were scattered
around so he heard noise
from that direction. Then he realised that all the employees that he
was standing with were running towards
that direction. Because he was
standing close to the door, he went into the building and did not
follow those employees. When he
went in there, there was a space of
about twenty metres, but a long space next to the furnace. There he
saw Messrs Zungu, Thurlow
and Lansdale lying down.
[32]
He was then requested by Mr Lansdale to tell the employees to vacate
the premises so that it could be closed off. Thereafter
the police
arrived. After 13 May 2013, he had no further interaction regarding
the events of 8 May 2013, except for one conversation
that he had
with the investigator Mr Kerr, during which Mr Kerr wrote down his
statement. Then, on 24 May 2013, he received the
letter informing his
about disciplinary action to be taken against him. He had not
received any prior indication that he might
be disciplined in
relation to the events of 8 May 2013. He reported the matter to the
union, to the other shop stewards and to
the employees. On 27 May
2013, Numsa employees went on strike after their lunch break. They
wanted feedback from Me van der Westhuizen
about their grievances and
they also wanted the charges against the shop stewards to be dropped.
[33]
At about 15h30, after the final ultimatum had expired, the employees
were handed letters from Mr van der Westhuizen indicating
that they
were to be disciplined. On 28 May 2013, the employees arrived at work
and waited in the changing rooms for their disciplinary
hearings.
They waited for about an hour and then the employees walked out of
the changing rooms singing. The shop stewards then
saw Mr Cerrai at
the offices and were handed dismissal letters. Numsa employees then
left the workplace.
[34]
Mr Phumlani Hlatswayo testified that he was a Numsa official dealing
with the Ladysmith area since 2011. He said that it was
his function
to advise the employees, inform them of the law and the consequences
of not following correct procedures. He said
that the union did not
support unprotected wildcat strikes. He said that the strike in April
2012 concerned the baboon insult.
The situation was hostile and the
employees were furious. Other grievances at that stage included the
fact that employees were
not getting feedback from Mr van der
Westhuizen, that employment equity was not properly applied and that
the company favoured
White and Indian employees. When he heard about
the grievance letter dated 2 April 2013 he was pleased that the shop
stewards were
attempting the resolve the matters internally. He was
not involved in the events of 8 May 2013, but became involved on 9
May 2013
when he attended the meeting with management. Because
the situation was volatile he had requested the company to put on
hold
their intentions of suspending Mr Zungu and first to appoint an
external investigator.
[35]
At the meeting Mr Hlatswayo attempted to persuade the Respondent that
the focus should not only be on the strike but also on
what was
causing the strike. After receiving the ultimatum and an extension
thereof, he requested the shop stewards to convey the
message to the
employees that they must come back to work on Monday. He also
requested one of the shop stewards to arrange a meeting
with Mr Zungu
where Mr Zungu was told that in view of the difficult situation, he
was to encourage any employee who contacted him
to return to work and
inform them that his (Mr Zungu’s) issue would be dealt with by
the union
[36]
Mr Hlatswayo was not involved in the matter between 13 and 24 May
2013. On 24 May 2013, Mr Mchunu was handed a disciplinary
notice. Mr
Hlatswayo was in Durban at the time but was telephoned late in the
day by Mr Mchunu who told him that he was also going
to be charged.
Mr Hlatswayo arranged for a letter to be sent to Respondent
requesting a meeting for the following Monday.
A meeting was arranged
for 27 May 2013 at 13h00. When Mr Hlatswayo arrived at Respondent’s
premises he was met by Mr van
der Westhuizen at the gate who informed
him that the Numsa members were on strike.
[37]
At the subsequent meeting, he was informed of the two ultimatums and
realised that Mr Cerrai was only interested in getting
the employees
back at work. He was not going to entertain discussions pertaining to
the employees’ concerns. Mr Hlatswayo
was, however, given an
opportunity to speak to the employees. He and the shop stewards then
had a discussion with the employees.
They requested them to terminate
the strike because the situation was no longer safe. They would,
thereafter, discuss the issues
with the employer. While they were
having these discussions and replying to the employees’
questions, Mr Cerrai came in.
His entrance was perceived to be rude
and disruptive as he gestured about time shortage. A further meeting
was held with management.
Mr Hlatswayo then saw that it was going to
be very difficult to convince the employees to terminate the strike
by 15h10 or 15h15
because, even prior to the interruption by Mr
Cerrai, there had been many unanswered questions.
[38]
He still went back to the employees and pleaded with them to go back
to work. However, the situation had become worse,
since the
employees were angered by Mr Cerrai’s interruption. Hlatswayo
had to plead with the workers for fear of worsening
the situation. He
then went back to his office to draft a request for an extension so
that he could have proof of this request.
He also wanted to get help
from his seniors. He said that although he intended this letter to go
through on the 27 May 2013 it
was not electronically transmitted and
only went through on the 28 May 2013.
[39]
He testified that he explained to the employees that there are lawful
mechanisms available for resolving disputes. As he put
it: “from
our teaching and instructions” the employees “reached a
situation” where they were aware of the
possible consequences
of their actions. After the employees were dismissed they were all
squeezed into the board room and Mr Hlatswayo
could then see that
they wanted to return to work, however by then, the “doors were
already closed”.
Evaluation
[40]
The Code of Good Practice
[2]
deals with dismissals based on unprotected strikes and it provides
that participation in a strike that does not comply with the
provisions of Chapter IV is misconduct. Commenting on the provisions
of the Code the Labour Appeal Court in
National
Union of Metal Workers of SA and Others v CBI Electric African
Cables
[3]
said:
“
In
his work, Grogan expresses the view that item 6 of the Code is not,
and does not purport to be, exhaustive or rigid but merely
identifies
in general terms some factors that should be taken into account in
evaluating the fairness of a strike dismissal. He
therefore opines
that in determining substantive fairness regard should also be had to
other factors including the duration of
the strike, the harm caused
by the strike, the legitimacy of the strikers’ demands, the
timing of the strike, the conduct
of the strikers and the parity
principle. I agree with this view as the consideration of the further
factors ensures that the enquiry
that is conducted to determine the
fairness of the strike related dismissal is much broader and is not
confined to the consideration
of the factors set out in item 6 of the
code.
”
[41]
In terms of the Code, prior to dismissal the employer should:
At
the earliest opportunity, contact a trade union official to discuss
the course of action it intends to adopt;
Issue
an ultimatum in clear and unambiguous terms that should state what
is required of the employees and what sanction will be
imposed if
they do not comply with the ultimatum;
Allow
the employees sufficient time to reflect on the ultimatum and
respond to it, either by complying with it or rejecting it.
However,
if the employer cannot reasonably be expected to extend these steps
to the employees in question, the employer may dispense
with them.
[42]
The participation in the unprotected strike on 27 May 2013 by the
second and further applicants was certainly misconduct. The
employees
refused to return to work after their lunch break. It was not cleared
when their lunch break would end. They had already
worked at least
half of the day. The halting of production was therefore limited to
the remaining hours of the day. From 12h30,
when Mr Eros Jannon,
reported to Mr Cerrai that the Numsa members had not come back to
work from their lunch till 13h00, the Respondent
had already issued
the first ultimatum. Employees were to return to work by 13h00. They
were given just about half an hour or less
to consider their
position. The second ultimatum gave them another hour, up to 14h00.
The third and final ultimatum gave them one
hour and ten minutes, up
to 15h10. In all it was up to two hours and forty minutes.
[43]
The Respondent was obliged to allow the employees sufficient time to
reflect on the ultimatum and respond to it, either by
complying with
it or rejecting it. It gave employees very limited time. The
respondent justified the short time given to the employees
by
reference to the ultimatums given on previous occasions. The
Respondent assumed that all that was discussed would be about a
return to work to the exclusion of the very issues for which the
strike was about. That was an incorrect assumption on the Respondent.
One sees this attitude throughout the minutes held with Mr Cerrai.
Not once did he bother to ascertain the cause of the problem.
He used
the union officials and shop stewards to get workers back at work
with no hint at all to get to the bottom of the problem.
It was
common cause that there were serious challenges which cried out for a
listening ear. Mr van Wyk was reportedly used to indulging
in insults
and getting away with it. No such ear was seen be listening to
serious affronts. Transparency in resolving work problems
was called
for here.
[44]
The Respondent did not at the earliest opportunity contact a trade
union official to discuss the course of action it intends
to adopt.
The first ultimatum was issued without contact being first made with
the Numsa. No explanation was ever forthcoming for
that failure. The
arrival of the union official, Mr Hlatshwayo at the workplace, to
meet with Mr van der Westhuizen was rather
opportunistic, as he came
for a completely different meeting and not upon invite of the
Respondent to discuss the course of action
it intended to adopt. He
came there to discuss Mr Mchunu’s pending disciplinary action.
He had to be given sufficient time
just to understand what the
issues were, to formulate his strategy on the way forward and then to
convince strikers that
the route they took was not worth the risk. Mr
Cerrai merely assumed that Mr Hlatshwayo had to immediately stop the
strike with
no tangible plan on how the concerns raised would be
resolved on the face of management who were perceived to be
non-committal
on problem resolution. Issues of promotions are known
to be problematic in the workplace and need to be seen to be attended
to
in time.
[45]
An indebt investigation was to have been undertaken after Mr Thurlow
had been assaulted. It had to look into who the culprits
were and to
establish the reason for dissatisfaction in the workforce. All it did
was to establish the identities of the culprits
and not the root
cause of the problem. The manner in which the Respondent ran its
affairs left an impression that the Respondent
was a company that was
very sensitive towards its senior management while it did not care at
all about its junior employees. There
was talk that if junior
employees took seniors on in affront usages, juniors were reminded of
the whereabouts of the gate.
[46]
The assault perpetrated on Mr Thurlow was a very serious act of
misconduct. Those involved had to be found, subjected to disciplinary
measures of the company and if found guilty, no doubt, they had to
face dismissal. The withholding of labour by the employees while
they
used themselves as shields to protect Mr Mchunu from discipline was
unreasonable and improper in the circumstances. Having
viewed the
video recording in this matter, I did see and hear Mr Mchunu
pronouncing: “Nango! Nango!”. His denial of
these
utterances made him an untruthful witness. The Respondent had a right
to subject him to its disciplinary measures, provided
it acted
fairly. It did not lie in the employees having to ascertain that
fairness. The LRA has established institutions whose
function is to
do just that. However, the same disciplinary approach should have
been adopted after an employee was called a stupid
baboon, knowing
the history this Country has just come out of. This
Court
has consistently refused to endorse the fairness of dismissals in
respect of strikes which have been prompted by objectionable
behaviour by employers.
[4]
[47]
Mr Hlatshwayo deserves to be commended for the sterling work he did
on 9 May 2013. He averted what was an explosive situation
from
materializing. Had the Respondent given him time and space on 27 May
2013, he probably could have diffused the situation with
no loss of
jobs. Th
e strike of the third and
further Applicants on 27 May 2013 was in response to unjustified
conduct by the Respondent. The behaviour
of the second Applicant on 8
My 2013, in pointing out Mr Thurlow, leading up to him being
assaulted, exonerated the Respondent
from its unjustified conduct on
27 May 2013.
[48]
I accordingly find that:
48.1
The dismissal of the second Applicant by
the Respondent in this case was substantively and also procedurally
fair.
48.2
The dismissal of the third and further
Applicants by the Respondent in this matter was substantively unfair.
[49]
As a consequence:
49.1
The Respondent is ordered to re-instate the
third and further Applicants to their employment with effect from the
date of dismissal
but with limited back-pay of twelve (12) months.
This payment is to be made within twenty (20) days from the date of
this order.
49.2
The Respondent is ordered to pay the costs
of this matter for the third and further Applicants. No costs order
is made against the
second Applicant.
_____
Cele
J.
Judge of the Labour
Court of South Africa.
APPEARANCES:
FOR
THE APPLICANT: Adv.P Schumann
Instructed by:
Brett Purdon Attorneys
FOR
THE RESPONDENT: Adv. M Pillemer SC and Adv.D Crampton
Instructed by:
Maree & Pace,Mpulo
[1]
Act Number 66 of 1995, hereafter referred to as the LRA.
[2]
Schedule 8 of the LRA.
[3]
(2014) 35 ILJ 642 (LAC) at para 30.
[4]
See
SACTWU
v Mediterranean Textile Mills (Pty) Ltd
(2010)
31 ILJ 2694 LC
NUMSA
v Pro Roof Cape (Pty) Ltd
(2005) 26
ILJ 1705 LC.