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[2018] ZALCJHB 3
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Mashaba v Telkom South Africa (JR375/12) [2018] ZALCJHB 3; (2018) 39 ILJ 1067 (LC) (11 January 2018)
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THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JR 375/12
In
the matter between:
EZEKIEL
MASHABA
Applicant
and
TELKOM
SOUTH AFRICA
Respondent
Heard:
2 and 3 November 2017
Delivered:
11 January 2018
Summary:
Automatically unfair dismissal -
section 187(1)(d) of the LRA – executing
activities as a union official –
the
manner in which union activities are carried out is immaterial to the
decision as to whether they are in fact trade union activities,
save
in cases where it can be shown that the way in which they are carried
out is such as to be in bad faith or carried out for
some other
organisation or cause so as to remove them from the scope of what can
properly be called trade union activities.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
In
this matter, the applicant (Mr Mashaba) alleges that he was
victimised and dismissed for undertaking his duties as a shop steward
and
as
deputy secretary of the
of
the Communications Workers Union (the
CWU)
Tshwane Central Local (the Tshwane Local)
by
distributing a
document
referred to as the ‘dossier’ which contained the
allegations of irregular conduct by the respondent’s
(Telkom)
executives
as
per the instruction by the CWU provincial secretary (Mr Lepheane).
His main claim is that his
dismissal
was automatically unfair
in terms of
section 187(1)(d) of the Labour Relations Act (the LRA).
[1]
[2]
Mr
Mashaba also pleaded that his dismissal was automatically unfair
in terms of
section 187(1)(h) of the LRA as he had made a protected
disclosure in terms of the Protected Disclosures Act (PDA)
[2]
.
However, this was abandoned in evidence when Mr Mashaba explicitly
stated that he was not purporting to be making a protected
disclosure
when he distributed the dossier. Despite, his counsel submits in her
closing heads of arguments that the Court should,
alternatively, find
that he had made a protected disclosure.
Background
facts
[3]
Mr Mashaba had been in the employ of Telkom from
1990 until September 2011 when he was dismissed after a disciplinary
hearing which
found him guilty of the following charge:
‘
Misconduct in that you did not
act in Telkom’s best interest by circulating a damning dossier
to the individuals (Telkom and
non-Telkom’s persons) of which
the contents of the dossier can or would have the potential to incite
other employees against
the company as well as tarnish the image of
the company and bring it into disrepute.’
[4]
On 15 November 2010, Mr Mashaba, acting in his
capacity as the Deputy Secretary of the CWU Tshwane Central Local,
sent a memorandum
to the Telkom’s Employee Relations (ER)
department. The memorandum raised a number of grievances as well as
allegations about
alleged corruption by some of Telkom’s senior
executives. These included alleged irregularities in relation to
Multilinks,
a Nigerian subsidiary of Telkom. The memorandum called
for Telkom to address the alleged grievances and irregularities.
Telkom,
through its investigation department, TARPS, responded to
this memorandum on 2 December 2010 and stated, in relation to alleged
irregularities at Multilinks, that it was awaiting a directive from
its Board of Directors (the Board) on how to deal with them.
[5]
Mr Mashaba was never disciplined nor threatened
with any disciplinary action for sending this memorandum. In fact, he
acknowledged
that sending the above memorandum to the Telkom’s
ER department was the appropriate way of bringing any concerns that
the
CWU might have had to the attention of Telkom. Mr Mashaba also
acknowledged that the company forum created by the Recognition
Agreement
(the RA) was the proper forum to table the CWU concerns.
[6]
On 25
November 2010, an email was sent from
-[l...]
to Mr Thabang
Motheo (Mr Motheo), a Telkom employee, a member of CWU and an
office-bearer of its Tshwane Central Local, Mr Mutuku,
the then
Telkom’s ER Manager and Roche Grebe, a Telkom employee and
member of the CWU. The email was copied to Mr Thabiso
Dakeda, of
Telkom’s ER department, and Mr Jeffrey Herdberg, Telkom’s
then Acting Chief Executive Officer (ACEO). Attached
to the email
were two documents.
6.1 The
first document, which is undated, was prepared by a Mr Lionel
Shunmugam, Telkom’s employee,
seemingly addressed to the Public
Protector of South Africa (the PPSA) and intended to be a protected
disclosure of alleged irregular
conduct by Telkom’s executives
in respect of one of Multilinks contracts. It called for an
investigation to be conducted
into these alleged irregularities.
6.2 The
second document, dated 24 November 2010, a 25 page-long document,
commonly referred to as
“the dossier”, was purportedly
from ‘Concerned Citizens’ and was addressed to,
inter
alia
, the PPSA, Minister of Finance, Minister of Communications,
Standing Committee on Public Accounts (the SCOPA) and the Telkom’s
Board. The document purported to disclose irregular conduct by some
of Telkom’s senior executives in relation to,
inter alia
,
Multilinks, contracts awarded by Telkom, alleged kick-backs and
unfair treatment of some of Telkom’s employees. It called
for
an investigation into the allegations, none of which had been tested
or proven. Some of these allegations were the same as
those contained
in the memorandum that Mr Mashaba had sent to the Respondent’s
ER department on 15 November 2010.
[7]
It is common cause that Mr Mashaba was not a
recipient of the email, either directly or by carbon-copy.
[8]
On 26 November 2010, Mr Motheo sent an email to
South Africa Press Association (the SAPA) and the CWU GP (the Gauteng
Provincial
Office email address), headed ‘Unprecedented High
Level Corruption in Telkom’, attached thereto was the dossier.
The
email stated,
inter alia
,
that the CWU had received information about corruption in Telkom.
Once more, Mr Mashaba was not a recipient of the email, nor
was he
carbon-copied.
[9]
In response, on 2 December 2010, Telkom addressed
a letter to Mr Mothelo in which it condemned the distribution of the
dossier through
media as its contents contained untested and unproven
allegations which were potentially defamatory of Telkom’s
employees
mentioned. As a result, Mothelo was suspended.
[10]
On 3 December 2010, Mr Mashaba sent an email
containing the dossier that had been put on the CWU’s
letterhead to the CWU’s
National Spokesperson, Mantakana
Mothapo, using his Gmail address. The email was carbon-copied to CWU
GP where Mr Lepheane was
based.
[11]
4 December 2010, Mr Mashaba, sent an email to
some individuals with CWU email addresses and carbon-copied to other
individuals,
including the Congress of South African Trade Unions
(the COSATU), the union federation, officials or office bearers and
respondent’s
employees. Attached to the email was the dossier,
the memorandum that Mr Mashaba had sent to Telkom’s ER
department on 15
November 2010, the letter dated 2 December 2010 from
Telkom’s Mrs Ouma Rasethaba addressed to Mr Mothelo and a
communication
from Telkom to its employees concerning the dossier.
The subject of the email was ‘Issues which led to the immediate
suspension
of Mr Thabang Mothelo’ and in the opening paragraph
he states the following:
‘
This email serves as clarity or
to inform the beloved progressive labour movement leadership of CWU
National, Provincials and Gauteng
locals about the critical issue
which led to the immediate suspension of Tshwane Central Local Sector
Coordinator Mr Mothelo. It
appeared that his suspension emanated from
the whistle blowing document attached…’
The
evidence
[12]
Mr Mashaba’s evidence is essentially that
he received a telephone call from Mr Lepheane, enquiring about the
dossier. He was
on leave at the time. As a result of this request and
because he did not have access to his emails, he returned from leave
to look
for the dossier. Whilst waiting to send the dossier to Mr
Lepheane, Mr Mothelo was suspended.
[13]
He had access to the dossier because Mr Mothelo
had sent it to the CWU National Spokesperson on 26 November 2010 and
carbon copied
to the CWU GP office where Lepheane was based.
[14]
Mr Lepheane instructed him to send the dossier to
the CWU or executive members of the CWU and COSATU leadership, which
he did on
4 December 2010. He was merely complying with an
instruction from his union senior, Mr Lepheane who had sternly warned
him of serious
repercussions for noncompliance. Mr Lepheane denied
having threatened Mr Mashaba.
[15]
Mr Mashaba was categorical that when he was
distributing the dossier on 4 December 2010 he did not purport to be
making a protected
disclosure in terms of the PDA.
[16]
Mr Mashaba
conceded during cross examination that the original email of 25
November 2010 that had been sent from
[l...]
email address to
which the dossier was attached was addressed to the relevant persons
and entities in so far as it was intended
to be a disclosure in terms
of the PDA and it would have taken time to investigate the
allegations. He was also forced to conceded
that he was aware that
Telkom was against the distribution of the dossier and had suspended
Mr Mothelo for distributing it to the
media.
[17]
Mr Lepheane was called to testify on Mr Mashaba’s
behalf and he was adamant that he did instruct Mr Mashaba to
distribute
the dossier. Since Mr Mashaba was about to submit his
Tshwane Region monthly report, he, Mr Lepheane, instructed him to
include
the dossier. All the recipients of Mr Mashaba’s email
were the union officials within the CWU and COSATU structures.
However,
he was forced to concede during cross examination that some
of the recipients of Mr Mashaba’s email had already received
the dossier from Mr Mothelo.
[18]
Mr Lepheane further testified that, on 3 December
2010, the CWU Head Office had issued a directive wherein it took
responsibility
for the contents of the dossier and all related
matters. Henceforth, the dossier was the CWU’s organisational
document. There
were other documents attached to Mr Mashaba’s
email other than the dossier. Mr Mashaba was not acting as an
employee of Telkom
but as a union official when he distributed the
dossier. As such, he did not contravene any Telkom policy as they
were not applicable
him at that time. He denied that he had access to
the dossier prior to 4 December 2010.
[19]
Ms Abigail Manzi, Telkom’s Senior Manager
ER and Telkom’s only witness, testified that Mr Mashaba and all
shop stewards,
including Mr Lepheane who was a fulltime shopsteward
at that time, are bound by Telkom’s Code of Business Ethic
which stipulates
that:
‘
Clause 5.1. Respect for the
individual
a.
Mutual understanding is built on respect for the individuals’
rights, dignity,
aspirations and interest. We therefore treat each
other with respect and dignity, whilst valuing diversity…
b.
…
Clause 5.8 Improper conduct
a.
Employees are required to behave
properly, respectfully and with the appropriate diligence towards
customer, competitors or anybody that may have an interest in
engaging the company irrespective of the forum where representation
takes place. Appropriate conduct is corner stone of the Respondents
value system and any transgression is therefore viewed as a
serious
breach.’
[20]
The relationship between Telkom and the CWU is
regulated by the Recognition Agreement concluded in 2004 and the
following are the
pertinent clauses thereof:
‘
5.5.1 Recognition
of Shop stewards
(a)
the Company recognises Shop stewards, elected in terms of the Union’s
constitution,
to represent employees who are members of the Union
within the Bargaining Unit and to make representation on their
behalf, in accordance
with the law and the terms of this agreement.
(b)
the company undertakes that no shop steward shall be victimised
as
a result of exercising his/her right as a shop steward in good faith
and in pursuance of his/her duties as a shop steward in accordance
with this agreement, and neither will the company victimised
any
employee by virtue of his Union membership.
5.5.3 Rights and duties of
shopstewards
(a)…
(b)
The Parties accept that Shopstewards are employees
bound by the
Company’s rules and regulations prevailing from time to time
.
Their rights should be exercised as laid down in this Agreement and
any other agreement entered into by the Parties.’
(Emphasis
added)
[21]
Telkom views the
conduct of Mr Mashaba seriously as the allegations contained in the
dossier tarnished its reputation. Mr Mashaba
as an employee of Telkom
had to comply with its policies. He showed no remorse whilst his
conduct damaged the employment relationship
irretrievably.
Legal
principles in relation to
automatically
unfair dismissals
[22]
In order to determine whether the dismissal was
automatically unfair, one must establish the real reason for Mr
Mashaba’s
dismissal. In terms of section 187(1)(d) and (h) of
the LRA, a dismissal is automatically unfair if the employer, in
dismissing
the employee, acts contrary to section 5 or, if the reason
for the dismissal is:
‘
(a)-(c) …
(d)
that the employee took action, or indicated an intention to take
action, against the
employer by –
(i) exercising any
right conferred by this Act; or
(ii) participating in any
proceedings in terms of this Act.’
(e)-(g) …
(h)
a contravention of the
Protected Disclosures Act, 2000
, by the
employer, on account of an employee having made a protected
disclosure defined in that Act.’
[23]
Ordinarily,
where it is common cause that there was a dismissal, the employer
bears the onus to prove that the dismissal was for
a fair reason
permitted in
section 188
of the LRA. However, where an employee
alleges that a dismissal was automatically unfair, it is incumbent
upon that employee to
demonstrate,
prima
facie
,
the said claim.
In
Kroukam
v SA Airlink (Pty) Ltd,
[3]
the LAC as per
Davies AJA, as he was then, stated that:
‘
In my view,
s 187
imposes an
evidential burden upon the employees to produce evidence which is
sufficient to raise a credible possibility that an
automatically
unfair dismissal has taken place. It then behoves the employer to
prove to the contrary, that is to produce evidence
to show that the
reason for the dismissal did not fall within the circumstance
envisaged in
s 187
for constituting an automatically unfair
dismissal.’
[24]
When
examining whether an automatically unfair reason was the “dominant”
or “more likely” reason for the
dismissal of the
employee,
the
test is one of causation. Both factual and legal causation must be
satisfied.
[4]
Analysis
[25]
Applying
the test of factual causation (the 'but for' test) in this case, to
succeed in his claim, Mr Mashaba must at least show
that he was
victimised for exercising any right to participate in the CWU’s
lawful activities in contravention of
sections 4
and
5
of the LRA.
[5]
[26]
The courts
have tritely recognised that the shop stewards do indeed enjoy some
indemnity from discipline for the conduct ancillary
to the exercise
of their functions as representatives of a union.
[6]
Parallel to that is a stern warning that such a privilege must not be
allowed to operate as a canopy or an excuse for conduct which
ordinarily would justify dismissal.
[7]
In essence, the right to take part in the affairs of the trade union
must not be obstructed by too easily finding acts done for
the
purpose to be a justification for dismissal. As such, robust union
activism is acceptable.
[27]
The marks
are easy to describe, but the channel between them is difficult to
navigate, especially in borderline cases such as this
one. In
NUM
and Others v
Black
Mountain Mining (Pty) Ltd
[8]
,
referred by Telkom in its submissions, faced with the same challenge
the court remarked as follows:
‘
It is, therefore, in the
borderline situations (excluding obviously situations which involve
violence, intimidation or racism) involving
insolent or even
disrespectful behaviour that it is left to the court or to the
arbitrator to make a value judgment between what
is considered to be
tolerable conduct during negotiations (especially during a strike
situation as in the present case) and what
is not. In making this
value judgment, all the circumstances of each particular case will
have to be taken into account. This was
recognised by the LAC in
Adcock
as follows:
“
[17]
It may be accepted that an employee enjoys greater
leeway than normal when he acts as a negotiator. This
flows from his
dual capacity (as an employee and as negotiating representative). But
it would be wrong to lay down that he has
free rein to do or say
whatever he wants. He remains an employee, and that relationship has
to be taken into account as well.”’
[9]
[28]
Telkom’s attorney, Mr Maserumule, submitted
that Mr Mashaba was enjoined by the Recognition Agreement to exercise
his rights
as a shop steward in good faith. To respect fellow
employees’ dignity and treat then with respect as required by
the Business
Code of Ethics.
Where there are
allegations of wrongful activities the Whistle Blowing Policy must be
followed in bringing same to the attention
of management or use PDA.
[29]
Mr Mashaba acknowledged that the contents of the
dossier made defamatory statements against the employees named
therein, who had
not yet been given an opportunity to respond
thereto, it simply is untenable that the Mr Mashaba can claim to have
been acting
as a shop steward when he distributed the dossier. Even
if he was, he could not have been acting in good faith as required by
the
Recognition Agreement, so it further submitted on behalf of
Telkom.
[30]
On the other hand, Mr Mashaba’s counsel, Ms
Mankge, submitted that the CWU, through Mr Lepheane, issued an
instruction to
him to distribute the dossier as part of his monthly
report. The dossier and the suspension of one of its shopstewards, Mr
Mothelo,
were the issues that directly affected the members of CWU
hence there was a need for engagement within the structures. The CWU
took ownership of the dossier and in distributing it, Mr Mashaba was
performing his functions as a union official.
[31]
I have perused the ruling by the chairperson of
the disciplinary hearing and it is clear that he rejected Mr
Mashaba’s version
of defence mainly on the basis that there was
no evidence before him that the CWU had taken ownership of the
dossier. As such,
Mr Mashaba breached Telkom’s rule in terms of
the Business Code of Ethics.
[32]
In these proceedings, it is not in dispute that
the CWU took ownership of the dossier. In fact, that happened on 3
December 2010,
a day before Mr Mashaba circulated the dossier. By the
time Mr Mashaba sent the email with various attachments, including
the dossier,
the dossier was the CWU organisational document as
testified by Lepheane. Also, it was not disputed that the recipients
of Mr Mashaba’s
email were persons within the organisational
structures of the CWU and COSATU.
[33]
In my view, Mr Mashaba was indeed exercising his
trade union duties when he circulated the dossier to his fellow CWU
and COSATU
officials as part of the internal communication,
particularly since a fellow shop steward, Mr Mothelo had been
suspended for the
very same dossier. The opening paragraph of Mr
Mashaba’s email is instructive:
‘
Comrades
This email serves as clarity or to
inform the beloved progressive labour movement leadership of CWU
National, Provincials and Gauteng
locals about the critical issue
which led to the immediate suspension of Tshwane Central Local Sector
Coordinator Mr Thabang Mothelo.
It appeared that his suspension
emanated from the whistle blowing document attached. The document was
also submitted by e-mail
to Mr Ouma Rasethaba acting GCEO as Jeffrey
Hedberg is on leave. There has been a telephonic discussion between
Mrs Ouma Rasethaba
and Mr Mothelo prior to the [sic] Mr Thabang
Mothelo’s suspension.’
[34]
I am not, however, asserting that every such act
is protected. In fact, I acknowledge that the contents of the dossier
may have
been defamatory against Telkom’s senior executives as
contended by Mr Maserumule. However, for the union activities to
constitute
a ground of dismissal which would not be automatically
unfair, it must, at least, be shown that the manner in which they are
carried
out is such as to be in bad faith, or carried out for some
other organisation or cause so as to remove them from the scope of
what
can properly be called trade union activities.
[35]
However, given the context of this case (the
seriousness of the allegations contained in the dossier, the CWU
document, which had
already been published by the media) the internal
union communication could not have been injurious to Telkom. As
correctly submitted
by Ms Mankge, the CWU and members had an interest
in the contents of the dossier and so, I would imagine, was COSATU.
In fact,
the CWU clearly took the dossier seriously and tabled it for
discussion in a meeting with the then Minister of Communications, the
late Mr Roy Padayachie, held on 17 December 2017. In any event, even
if the distribution of the dossier by Mr Mashaba
was done
in bad faith, Telkom’s recourse could not have been against Mr
Mashaba, but the CWU since it had taken ownership
of the dossier.
[36]
Nothing turns on the manner in which the trade
union activities were carried out as that is immaterial to the
decision as to whether
they are in fact trade union activities, save
in cases where, as stated above, it can be shown that the way in
which they are carried
out is such as to be in bad faith or carried
out for some other organisation or cause so as to remove them from
the scope of what
can properly be called trade union activities. In
this case the converse is true and for that reason the judgment in
Black Mountain Mining,
relied
upon by Telkom, is distinguishable.
[37]
In view of the above, Mr Mashaba successfully
discharged the evidential burden by placing sufficient evidence to
show that the dominant
or more likely reason for his dismissal was
consequent to the exercise of his duties as a shop steward of the CWU
in contravention
of section 4 and 5 of the LRA and as such
automatically unfair in terms of section 187(1)(d) of the LRA. Put
differently, it is
clear that ‘but for’ exercising his
union activities and distributing the dossier, Mr Mashaba would not
have been dismissed.
[38]
Given the findings that I have come to above, it
is not necessary to deal with Mr Mashaba’s alternative claim
that his dismissal
amounts to an occupational detriment in terms of
PDA and therefore automatically unfair in terms of section 187(1)(h)
of the LRA.
In any event, this claim had been abandoned by Mr Mashaba
in evidence.
Relief
[39]
Mr Mashaba seeks retrospective reinstatement and
compensation for loss of salaries and benefits for the periods of
dismissal. On
the other hand, Telkom submitted that the employment
relationship it had with Mr Mashaba has been irretrievably damaged.
Mr Mashaba
showed no remorse.
[40]
In
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others,
[10]
the Constitution Court reaffirmed reinstatement as ‘the primary
statutory remedy in unfair dismissal disputes…aimed
at placing
an employee in the position he or she would have been but for the
unfair dismissal… by restoring the employment
contract…The
extent of retrospectivity is dependent upon the exercise of a
discretion by the court or arbitrator. The only
limitation in this
regard is that the reinstatement cannot be fixed at a date earlier
than the actual date of the dismissal. The
court or arbitrator may
thus decide the date from which the reinstatement will run, but may
not order reinstatement from a date
earlier than the date of
dismissal.’
[41]
The
awarding of compensation over and above an order of reinstatement as
sought by Mr Mashaba is impermissible. In
Equity
Aviation
[11]
,
the
Constitutional Court stated further that ‘…the sum of
money paid to an unfairly dismissed employee subsequent to
an order
of reinstatement with retrospective effect is not compensation as
contemplated in section 193(1)(c) or section 194. The
remedies in
section 193(1)(a) are thus in the alternative and mutually
exclusive.’
[42]
Having
found that Mr Mashaba’s dismissal was automatically unfair,
there are no compelling reasons proffered by Telkom to
strip Mr
Mashaba of the primary remedy reinstatement. I endorse the following
pertinent sentiments expressed by the LAC in
Kroukam
[12]
that:
‘
To accept an argument that
reinstatement was an inappropriate remedy because of a broken working
relationship would, in the circumstances
of this case, work
significantly to the prejudice of appellant who had been
automatically unfairly dismissed. No compelling reasons,
other than a
broken relationship caused by factors which did not relate to
appellant's proficiency as a pilot, were offered by
respondent as to
why this Court should not order reinstatement. In short, on the
evidence, the working relationship had broken
down because of
activities of appellant which are statutorily protected in terms of
section 187 of the Act; hence reinstatement
was clearly an
appropriate remedy in this case.’
[43]
Regrettably, there has been a delay of almost 6
years in the finalising of this case, an issue that is not addressed
in pleadings
nor in evidence. However, from the perusal of the file,
one gathers that at some stage Mr Mothelo was a co-applicant and on
19
February 2014, by agreement between the parties, Prinsloo J
ordered a withdrawal of that application and that the applicants file
a new statement of claim using the same case number. The statement of
claim was delivered on 11 June 2014, with Mr Mashaba as the
only
applicant. On 17 February 2015, the parties appeared before
Gush J for a pre-trial conference and were ordered to file
a
pre-trial minute by 27 February 2015. There was another set down for
a pre-trial conference before Van Niekerk J on 12 November
2015. The
matter was removed from the roll on 20 May 2016 and postponed by
agreement between the parties on 2 March 2017.
[44]
Clearly, the delays in this case cannot be blamed
on the Court. In the absence of any submission as to which of the
parties is responsible
for the delays, the blame must be apportioned
between the parties. However, Mr Mashaba must take more
responsibility as
dominus litis
.
He ought to have ensured that his claim is prosecuted expeditiously
especially since he has been unemployed for the past 6 years
or so.
[45]
Having considered the above delays and the fact
that Mr Mashaba has been out of employment for the past 6 years or
so, I deem it
just and equitable to order a reinstatement with a
backdated period of 24 months from the date of this judgment.
Conclusion
[46]
It follows that Mr Mashaba’s dismissal is
automatically unfair in terms of section 187(1)(d) of the LRA.
[47]
A reinstatement with a backdated period of 24
months from the date of this judgment is accordingly a just and
equitable order.
Costs
[48]
In her order dated 9 February 2014, Prinsloo J
ordered,
inter alia,
as per the agreement between the parties, that ‘in the event
that the applicants [Mr Mashaba] are successful in the proceedings,
that parties agree that the applicants [Mr Mashaba] will only be
entitled to the costs from the initiation of trial proceedings’.
Clearly, the parties unreservedly accepted that costs would follow
the result.
[49]
In the
circumstances, I make the following order:
Order
1.
The dismissal of the
Mr Mashaba on 21 September 2011 is declared to be automatically
unfair in terms of section 187(1)(d) of the
LRA.
2.
Mr Mashaba is
reinstated in his employment with Telkom with effect from 11 January
2016.
3.
Telkom is ordered to
pay the costs from the date of the initiation of these proceedings.
__________________
P.
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr P Maserumule
Attorney
from:
Maserulule Attorneys
For
the Respondents: Advocate
TM Mangke
Instructed
by:
Ramphele Attorneys
[1]
Act 66 of 1995, as amended.
[2]
Act 26 of 2000.
[3]
(
2005)
26 ILJ 2153 (LAC) at para 28.
[4]
SA Chemical Workers Union
and others v Afrox Ltd
(1999)
20 ILJ 1718 (LAC) at para 32.
[5]
Section 4(2)(a) states that every member of a trade union has the
right, subject to the constitution of that trade union to
participate in its lawful activities. Section 5(1), on the other
hand, states that no person may discriminate against an employee
for
exercising any right conferred by the LRA.
[6]
Kroukam
supra
n
2;
Adcock Ingram
Critical Care v CCMA and Others
[2001] 9 BLLR 979
(LAC);
BIFAWU
and another v Mutual and Federal Insurance Company Ltd
[2006] 2 BLLR 118
(LAC);
CEPPWAWU
and others v Metrofile (Pty)
Ltd
[2002] ZACC 30
;
[2004] 2 BLLR 103
(LAC);
NUM
and others v Black Mountain Mining (Pty) Ltd
[2010] 3 BLLR 281
(LC
);
Mondi Paper Co Ltd v Paper Printing Wood and Allied Workers Union
and Another
(1994) 15 ILJ
778 (LAC).
[7]
Adcock
at
para 15;
v Black Mountain
Mining
at paras 42 and 43.
[8]
[2010] 3 BLLR 281 (LC).
[9]
Black Mountain Mining
at para 43.
[10]
[2008] ZACC 16
;
[2008] 12 BLLR 1129
(CC);
2009 (1) SA 390
(CC);
(2008) 29 ILJ 2507 (CC);
2009 (2) BCLR 111
(CC) at para 36.
[11]
Supra.
[12]
Supra
at para 41.