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[2017] ZALCD 4
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National Union of Metal Workers South Africa (NUMSA) and Others v Transnet National Ports Authority (D694/15) [2017] ZALCD 4 (31 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Not Reportable
CASE
NO. D694/15
In
the matter between:
NATIONAL
UNION OF METAL WORKERS
SOUTH
AFRICA
(“NUMSA”)
First
Applicant
PHAKAMANI
KHANYILE & 28 OTHERS
Second
& Further Applicants
and
TRANSNET
NATIONAL PORTS
AUTHORITY
Respondent
Heard:
4
November 2016
Delivered
:
31 January 2017
Summary
:
claim of unfair dismissal - due to alleged participation in an
unprotected strike – strike participation in dispute -
version
of the applicants rejected as being improbable against the credible
version of the respondent – collective disciplinary
action -
no
obligation in law to conduct a formal disciplinary enquiry - what is
required is an opportunity for the individual applicants
to state
their case – such opportunity granted – dismissal fair.
JUDGMENT
Cele
J
Introduction
[1]
This is a claim of unfair dismissal of the second to further
Applicants by the Respondent due to their alleged participation
in an
unprotected strike. The Applicants deny such participation but also
aver that even if they are found to have taken part,
dismissal was
too harsh a sanction in the circumstances. The claim is opposed by
the respondent on the basis that the second to
further applicants
took part in an unprotected strike while they were on a final written
warning.
Factual
Background
[2]
The respondent is responsible for the management and administration
of South Africa’s ports. The second to further applicants,
hereafter referred to as employees, are employed as Marine Shore
Hands at the Berthing Services Department of the Marine Services.
Their functions were essentially to tie up the vessel when it was
alongside the quay. Their role was part of a chain of events
that
took place in the piloting of cargo vessels.
[3]
On
24 April 2015 at about 06h00 the C – shift was due to commence
duties. It comprised of employees from the “tug pool”
and
employees from the “berthing services”, amongst whose
number all the individual Applicants were employed. The Marine
Resources Manager, Ms Bekiswa received a telephone call when she had
landed at Durban airport at approximately 07h00 on that morning
from
the Tug Masters who was reporting that, the tug crews were not
reporting for duty. At the time that, she originally spoke
to the Tug
Masters, the tug crews were “at the turn stiles”, to the
tug basin. It later transpired that the tug crews
had later made
their way to the building which is referred to in these proceedings
as the “berthing mass”. This is
a purpose built structure
for the berthing crews. It is a double storey structure, the bottom
floor comprises of a kitchen and
mass room with chairs and tables,
outside seating, and on the top floor, male and female rest rooms.
The office of the Berthing
Supervisor, Mr Shange is located at that
top floor. It appears that the actions of the tug pool were
unannounced.
[4]
Ms Bekiswa made her way to the berthing mass with an HR officer, Mr
Mark Olmesdahi where they found a number of people, including
the tug
crew. She addressed these individuals. Messrs Lekala and Motlohi also
came to the premises and addressed the workers.
Together
they attempted to ascertain why the employees were not working. They
informed the employees that they could not just stop
working.
They
were told by the assembled employees that two letters had been sent
to the company. One of them was a letter which the company
was aware
of and was busy responding to. The company said it was not aware of a
second letter having been sent. The employees could
not produce a
copy of this second letter. The employees said that the second letter
had given an ultimatum for the company to respond
within three days,
which expired on the previous day. That was why they had stopped
working. The approach of Ms Bekiswa and Mr
Olmesdahl at that stage
was to request the employees to provide them with a copy of the
second letter and to give them three days
from that day, 24 April
2015, to respond to it. The employees were to go back to work
in the interim. The employees refused
to co-operate, and said that
company management should in any event be aware of what the issues
were that had been raised in the
second letter, even if no copy of it
could be produced.
[5]
Also at approximately 06h00, the Senior Berthing Supervisor, Mr
Shange dispatched two work gangs (Gangs Four and Five) amongst
whom
are five of the Individual Applicants to Berth 108 to perform duties.
When these work gangs arrived at the berth, there was
no sign of the
tugs which meant that they could not perform their duties. It is
indeed a feature of these proceedings that without
the tug crews
performing their duties, the land based crew, amongst whom are all
the Individual Applicants, cannot perform their
duties. Contact was
established with Mr Shange who undertook to establish from Port
Control what the issue was. He reported back
to them that there was a
meeting with the tug crew and that they were reluctant to return.
[6]
All
workers
on the shift gathered at the berth centre, collectively, communicated
to management their refusal to work, and they
persisted with
this stance until 16h00 on that day, when they finally agreed to
return to work. By then it was too late for
them to move any
ships before the end of the shift. Some seventeen ships should have
been moved, in or out of the port, on that
day. Only four ships were
moved, and this was due to contingency arrangements made by Ms
Bekiswa at around 13h00, after the management
team had failed to
procure a return to work. The commercial implications of the strike
action for Transnet, the broader shipping
community, and the economy
as a whole were very serious.
Evidence
Respondent’s
version
[7]
Three witnesses were called by the respondent, being Mr Motlohi,
Captain Lekala and Ms Bekiswa. Ms Bekiswa testified saying
that at
her arrival at the berthing centre, the gathering comprised both tug
staff and berthing staff. She said that one of the
berthing staff
present initially stated to them that the berthing employees were not
on strike, but that it was the tug crews that
were on strike. That
employee referred to the fact that he had been among those who had
gone to the vessel at berth 108, and when
tugs had not arrived they
came back. In response to that, Ms Bekiswa asked the berthing staff
to leave the room. She said to the
employees gathered
“
can
we then remain in the mass room with the tugs people who seemed to
have a problem and we can have a discussion with them?”
[8]
The request was declined as employees said that they wanted to be
there as others were their colleagues and they wanted to be
part of
the discussions.
Mr
Motlohi, the Port Manager, arrived at this meeting sometime after 8
o’clock and he attempted to persuade the employees
to nominate
four representatives to speak to management while the rest returned
to work. The employees’ response was that
management was well
aware of the issues raised by employees. Their response was
that management should go and discuss the
issues and revert to the
employees. In the meanwhile, they were going nowhere. Management
there present then decided to give workers
15 minutes to caucus and
decide whether or not they would accept the proposal made by Mr
Motlohi. During the 15 minutes caucus
Captain Lekala, the Chief
Harbour Master, arrived and joined the management team.
[9]
When management went back into the meeting, the employees
communicated to them that it was unnecessary for them to appoint
representatives to explain what the issues were because as far as the
employees were concerned management knew what the issues were.
Captain Lekala asked the employees assembled whether everyone in the
room shared the same sentiments, that they were not going
to work,
and that they were all together in the work stoppage. He stated
that nobody should say afterwards that he or she
was not party to the
work stoppage but was not asked. Captain Lekala asked them “is
everyone saying here they are not
going to work?” In fact,
Captain Lekala asked this question two or three times. Workers
responded through one representative
that they were used to threats.
He said that if Captain Lekala wanted to fire them, he could:
“
fire
all of them and they will go sit at home and [Captain Lekala] can
then go and employ the people that he wants to sort of exploit
them
because they are not going to work like the way the company’s
saying they must work”.
[10]
Mr Motlohi begged and pleaded with the workers, encouraging them to
go back to work. He emphasised the fact that most
of them were
sitting with final writing warnings, and pleaded with them to say
“
can
they please think of their families; can they please think of their
kids because the decisions that might have to be taken afterwards
will not be favourable
”
.
Mr Motlohi also explained the economic situation and the relationship
that Transnet was having with clients, and how clients are
feeling
towards the Port because this was not the first stoppage it had had.
In response, employees simply said that they were
not going to
provide the representatives as proposed by Mr Motlohi. When
asked whether there was any indication that they
were prepared to go
back to work, Ms Bekiswa gave evidence that all in one voice, said
none of them was prepared to return to work.
She reiterated
that in response to Captain Lekala asking a similar question, the
employees had collectively responded:
“
We’re
a part of this. We are all in this together”.
Applicants’
version
[11]
Three witnesses testified for the Applicants. Mr Elton Gordon, the
First Applicant’s (Numsa’s) Organiser was the
first of
Applicants’ witnesses.
He
said that Numsa began organizing in Transnet after the 2013 Special
National Congress took a decision to extend the registered
scope of
the Union. He testified that the Individual Applicants amongst other
Transnet employees joined Numsa in 2014. He testified
about the
difficulties that Numsa had in acquiring organizational rights within
the Respondent. He said that it was dishonest of
the Respondent to
contend that there were only four Numsa members when one hundred and
thirty five forms had been submitted. During
the previous work
stoppage of January 2015 Numsa received a letter from the
Respondent asking for Numsa’s intervention.
He then contacted
the Regional Secretary of Numsa and asked him to intervene. There was
such intervention. Mr Gordon
testified
that Numsa did not condone an unprocedural strike and had it been
brought to their attention that their members were involved
in same
they would have intervened.
[12]
Ms Thobile Mpungose testified that she was Applicant number 11 in
these proceedings. They worked in groups called gangs with
numbers.
She was in gang one and her work duties were to physically tie up a
ship alongside when they moored it at the Durban Harbour.
[13] On
24 April 2015, she started work at 06h00. The work-gangs would go to
the Berthing Masters who would instruct them where
they would be
working. She was not called to perform any duties in the morning.
Gang Four and Five were instructed to go to Berth
108. The rest of
the gangs remained behind in the resting rooms. Before the gang
returned from Berth 108, they were joined by employees
of the Tug
Department. She did not know why those employees were joining them.
She then left and went to the female rest area until
approximately
13h00. She was not part of any meeting on that day.
[14] She
testified that later in the day around 13h00 to 13h30 Gangs one and
two were called by Mr Shange to report at his office.
She and her
colleagues went to Mr Shange and asked him how safe it was for them
to resume their duties taking into account that
there were still
other people who were holding a meeting. He instructed them to return
to their rest room and he would come back
to them once the problem
had been resolved. He never came back to them. She further testified
that it was not possible for any
of the land crews to do their work
if the tugs were not working. When it was put to her that she was on
strike together with the
tug crew, she said that she was not at the
meeting at all. She
accepted
that no ships had moved that morning because no tug crews were
working, but then insisted that there was no work stoppage.
She
agreed that the tug crews had stopped working but stated that the
berthing staff had not stopped working.
[15]
Ms
Mpungose denied that she had been presented with disciplinary
documents. When asked why she had signed the collective
representations at page 7 of the bundle, in which a statement was
made by all signatories that all workers categorically state that
there was no industrial action on 24 April 2015, Ms Mpungose
testified that she had not read the document and did not recall the
circumstances in which she had signed it. She also stated that
she had not talked to anybody else who had signed the document,
stated that she was not aware that any disciplinary action was
pending or that any of those involved in the work stoppage on 24
April 2015 were facing disciplinary action, and when asked why she
had signed the document said
“
Some
things at work we sign because we are asked to sign; not because we
know what exactly we are signing for”.
[16]
Ms
Mpungose was asked in specific terms whether her contention was that
she should be dealt with differently from the collective
because,
whereas others had been involved in a work stoppage, she personally
had not been involved. Her response was unequivocal
and clear, that
she should be treated in the same way as all other workers in the
group.
[17]
Mr Dumezweni Mbatha testified as the last witness for the Applicants,
saying that he had twenty six years of service with the
Respondent
and was applicant number 5 in the Court list. He was in Gang Five of
the berthing crew. He had not been aware that 24 April 2015
would be any different from any other day and was not a part of any
plan to stop work. He arrived at work at 05h45, changed and
went to
the kitchen area where the Berthing Master came to check if all were
present. There was announcement on the PA system by
Mr Shange for the
crew to go to Berth 108. He went to the vehicle that departed to the
area. They arrived at Berth 108 and waited
in the vehicle. No tug
crew arrived. Mr Shange told them to wait and would ask Port Control
as to what was going on. Mr Shange
passed on a message that Port
Control had apologized as they did not know that the tug crew were
having a meeting and the berthing
crew were requested to go back. He
did not notice what time it was then. When they came back they found
that the tug crew and other
berthing staff were present at the
Berthing Staff Mass. It was unusual to see the tug crew there. Nobody
instructed him to go back
to work. He insisted that he was not part
of the meeting as he was outside.
[18]
When
written
documents and representations concerning disciplinary matters that he
had signed were presented to him, Mr Mbatha said that
he was
illiterate and had been unable to read any of them. He denied that
anybody had even spoken to him about the meaning of those
documents,
and he could not explain why he had agreed in those circumstances to
sign the collective representations.
He did not know what
that document meant and he denied any knowledge either of industrial
action or of the consequences of the
representations that he had
made. When asked whether he wished to be dealt with differently from
the collective, Mr Mbatha similarly
answered that he did not.
[19]
In the course of conducting an investigation on the events of 24
April 2015, Mr Shange submitted two written statements dated
10 May
2015 and 18 May 2015. He confirmed the convergence of two gangs at
Berth 108 to cast off a vessel but that it could not
be done as the
Pilot and the tug crew were not present at the working station. He
concluded the first statement by saying:
“
The
meeting was held at the Berthing Staff, since the meeting was at
Berthing Staff, so they were part and parcel of the meeting
when they
came back. But after the first job that was given, no job was refused
by the berthing staff because they were at the
meeting.”
[20]
The second statement purport to be a correction of some of things
said in the first statement and it concludes by saying:
“
In
correcting also about these, two gang was called to sail E –Shad,
and the gangs said they are scared to go to vehicles
because all
people was watching them. So By that they called on the unprotected
strike because they never go to that job.”
(Sic)
[21]
Neither the Respondent, by whom Mr Shange was employed as its Senior
Berthing Master, nor the Applicant employees for whom
he was a
Supervisor, called Mr Shange as a witness in the trial. Whatever he
said in the two statements could not be clarified
further or tested
by cross-examination. For instance, it remains unclear if he ever
attended at the Berthing Staff Mass so as to
know who was and who was
not present there. When he said that the gangs said that they were
scared to go to vehicles because all
people were watching them,
again, one cannot tell who exactly he is talking about. This could
mean one or two berthing crew members,
a larger part of that crew or
all members of gangs four and five. The only evidential value to give
to these statements must therefore
be limited to facts which are
common cause. For any party to rely on the contents of the statements
when such suit that party and
to reject those contents that are
incriminatory, would be self-serving, improper and against the Law of
Evidence dealing with the
admissibility of evidential material.
Evaluation
[22]
The dismissal of the second and further Applicants by the Respondent
on allegations of taking part in an unprotected strike
was common
cause. Therefore the Respondent had to prove, on a balance of
probabilities, the fairness of such dismissal. The Applicants
not
only denied the second and further Applicants having taken part in
the strike, they also challenged the fairness of the procedure
leading up to their
en masse
dismissal.
[23]
It remained common cause that on 24 April 2015 the usual work that
was supposed to be done by the birthing and the tug crews
at the
Durban Harbour was not done or was not timeously executed. A group of
employees gathered at the Birthing Staff Mass for
the better part of
that day. Management asked them to identify at least four
representatives who were to discuss the concerns of
the employees
with management while the rest of the employees continued with their
normal jobs. The suggestion did not meet a favourable
response from
the employees for the better part of that day. The employees
accordingly refused to tender their services while they
were making
some demands which they wanted management to meet. The employees were
accordingly on strike.
[24]
The next probe turns on whether the 17 remaining applicant employees
took part in that strike. Mr Gordon, the Numsa Organiser,
was not
present on 24 April 2015 at Respondent’s workplace and was
unable to deal with any of the evidence given by the Respondent’s
witnesses in relation to what transpired on that day. The two other
applicant employees who testified spoke about their personal
experiences on the day. Their evidence failed to give an account of
the whereabouts of each of the other 15 applicant employees.
Yet Mr
Mbatha did say that w
hen
they came back from berth 108 they found that the tug crew and other
berthing staff were present at the Berthing Staff Mass.
That
was the evidence led by Ms Bekiswa. She said that at her arrival at
the birthing centre, the gathering comprised both tug staff
and
berthing staff when one of the berthing staff present initially
stated that the berthing employees were not on strike, but
that it
was the tug crews that were on strike. She asked for a meeting with
the tugs people who seemed to have a problem but her
request was
declined as employees said that they wanted to be there as others
were their colleagues and they wanted to be part
of the discussions.
When the evidence of the 15 applicant employees is pitted against
that of the Respondent, the latter version
is found to be
overwhelmingly probable as the former amounts to basically nothing.
[25]
The evidence of the whereabouts of Mr Mbatha after he came back to
the
Berthing
Staff Mass is riddled with inconsistences as it fails to explain
exactly where he was and what he was doing for that long
period until
13h00. His is a version of unexplained loneliness in the multitude.
Ms Mpungose said that b
efore
the group four and five gangs returned from Berth 108, she together
with those she was with, were joined by employees of the
Tug
Department. She did not know why those employees were joining them.
She then left and went to the female rest area until approximately
13h00. She was not part of any meeting on that day.
[26]
Ms Mpungose’s version is yet another story of unexplained
loneliness in the multitude. For no apparent or explained reason
she
leaves her colleagues to go and be alone in some rest room at a time
she did not know why others were joining her. It was work
time and
yet she chooses to go and rest. Surely she did not travel from her
home to come to the work place to rest, for no apparent
reason. The
version of the Respondent was clearly much more probable than that of
the two employees who testified. The version
of the Applicants is
accordingly rejected as being improbable against the credible version
of the Respondent. I accept that it
has been proved on a balance of
probabilities that all 17 applicant employees took part in the strike
of 24 April 2015 at the workplace
of the Respondent.
[27]
It remained common cause that on 24 April 2015 the respondent did not
interpose the strike with the issuance of any ultimatum.
Neither was
the union, Numsa contacted, as it had been done in January 2015.
Admittedly, Numsa had recently submitted applications
for union
membership to the Respondent, nationally and locally at the beginning
of April 2015. The Respondent had elicited the
intervention of Numsa
with positive results in the January 2015 unprotected strike.
[28]
I am in agreement with submissions of Mr Todd for the Respondent in
finding that, the issuing of an ultimatum was not an invariable
requirement in itself as was held in.
Mndebele
and others v Xtrata
[1]
.
A failure to issue an ultimatum did not in itself constitute
procedural unfairness. The facts of this case demonstrate, in any
event, that the Respondent expended considerable efforts throughout
the duration of the unprotected strike to engage with the strike
participants and convince them to return to work, failing which it
would be left with no option but to take disciplinary action
against
them. The evidence led clearly establishes that:
Ø
Management made
concerted attempts to explain the consequences of their conduct to
the individual applicants. It was made clear
that their conduct
constituted an unprotected strike.
Ø
They were requested and instructed, on
numerous occasions, to return to work.
Ø
In a display of reasonableness,
management proposed that the employees elect four representatives to
engage with them whilst the
others returned to work.
Ø
Even though representatives were later
elected and engaged with management, the individual applicants
refused to return to work.
Ø
The repeated refrain from the
collective was that they were all in it together.
[29]
It is true indeed that even though the Respondent did not issue an
ultimatum in the formal sense, the individual applicants
received the
full benefit of management’s engagements with them, which they
elected to disregard. Mr Motlohi begged and pleaded
with the workers,
encouraging them to go back to work. He emphasised the fact that most
of them were sitting with final writing
warnings, and pleaded with
them saying that they were to think of their families and their
children because the decision that might
be taken was not likely to
be favourable. The employees did not want to take heed of that
advice.
[30]
In
Mndebele
and others v Xtrata
[2]
,
the LAC held that regardless of its form, an ultimatum, when
required, would suffice if it served the purpose for which the law
required an ultimatum to be issued. In that respect it held that:
“
[T]he
appellants were issued with an ultimatum that served the purpose for
which the law requires an ultimatum to be issued. The
appellants were
cautioned in clear language and were specifically informed of the
consequences of their failure to heed the warning.
They were
accordingly given an opportunity to reflect on their conduct and to
desist from it”.
[3]
[31]
On Saturday, 9 May 2015, the Respondent issued the individual
employees with disciplinary notices under the heading: Notice
of
intention to apply collective discipline. The notice indicated, inter
alia, that:
“
The
sanction proposed for the misconduct was (i) a final written warning
valid for 12 months for those employees who had a clear
disciplinary
record and, (ii) dismissal for those employees who were already on a
final written warning for participation in an
unprotected strike”
(of January 2015).
[32]
The notice invited all employees who participated in the strike to
make representations regarding the intention to apply collective
discipline and the sanction imposed. There are employees who made
individual representations. A number of them elected to submit
a
collective response, without the assistance of any union. Then on 22
May 2015 the individual applicants were issued with notices
of
disciplinary action for collective misconduct. This certainly
constituted
an
inherently fair procedure as all of the individual applicants were
afforded an opportunity to be heard by means of written
representations.
From 9 May 2015 to 22 May 2015 the employees
had enough time to reflect on the proposed disciplinary action. I
n
Modise
& others v Steve’s Spar Blackheath
[4]
,
Court was explicit in holding that the
audi
alteram partem
rule
must be observed but that its form should vary depending on the
context. The key enquiry is whether the strikers or their
representatives were given a fair opportunity to address two
essential questions: whether they were engaging in an illegal strike
and whether dismissal is an appropriate sanction.
[33]
Again and as correctly pointed out by Mr Todd, there is no obligation
in law to conduct a formal disciplinary enquiry, as the
Applicants
wrongly suggests. What is required is an opportunity for the
individual applicants to state their case. The principle
has been
clearly established, in the context of individual discipline. In
Avril
Elizabeth Home for the Mentally Handicapped v CCMA & others
[5]
,
the
point is made clearly as follows:
“
When
the Code refers to an opportunity that must be given by the employer
to the employee to state a case in response to any allegations
made
against that employee, which need not be a formal enquiry, it means
no more than that there should be dialogue and an opportunity
for
reflection before any decision is taken to dismiss.”
[6]
[34]
This is precisely the opportunity that was given to the individual
applicants. They dealt with the question by choosing, deliberately
and collectively, to deny that any strike action had taken place at
all. Even on their version at the trial, this was false.
They
cannot complain that they were denied a fair opportunity to state
their case collectively. In
Modise
& others v Steve’s Spar Blackheath
[7]
the
LAC held that
"
It
has also been said that, because strikers act collectively when they
go on strike, an employer is entitled to respond collectively…That
an employer is entitled to respond collectively means nothing more
than that he can deal with the strikers as a group and not as
individuals. The employees' collective action does not give the
employer a licence to disregard the audi rule altogether. There
is no
reason why the employer cannot comply with the audi rule by calling
for collective representations why the strikers should
not be
dismissed
."
[8]
[35]
In the present matter the Respondent complied with the audi rule when
it issued a notice of 9 May 2015 and only thereafter
acted on 22 May
2015. In my view, the procedure followed by the Respondent was fair.
Even when the employees had an opportunity
to consult with their
union they chose not to. They were properly found guilty. The
progress sanction imposed on them was similarly
fair in the
circumstances.
[36]
I accordingly issue the following order, having reflected on the law
and fairness in relation to costs:
1.
The
dismissal of the 17 Applicant employees by the Respondent was
substantively and procedurally fair.
2.
The
claim of the Applicants is dismissed.
3.
No
costs order is made.
________
Cele
J.
Judge
of the Labour Court of South Africa.
APPEARANCES:
FOR
THE APPLICANTS: Mr B Purdon
Instructed
by: Brett Purdon Attorneys.
FOR
THE RESPONDENT: Mr C Todd
Instructed
by: Bowman Gilfillan Inc.
[1]
Mndebele
and Others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys
(Rustenburg Plant)
(JA57/12)
[2016] ZALAC 28
(unreported)
[2]
Mndebele
and Others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys
(Rustenburg Plant
)
(JA57/12)
[2016] ZALAC 28
(unreported)
[3]
At
paragraph [28].
[4]
[2000]
5 BLLR 496 (LAC).
[5]
[2006]
9 BLLR 833 (LC).
[6]
At
page 841.
[7]
[2000]
5 BLLR 496 (LAC).
[8]
At
paragraph [76].