About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 176
|
|
WBHO Civil Construction (Pty) Ltd v Hlatshwayo NO and Others (JR2578/14) [2018] ZALCJHB 176 (10 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR2578/14
In
the matter between:
WBHO
CIVIL CONSTRUCTION (PTY) LTD
Applicant
and
THEMBA HLATSHWAYO
N.O.
First Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
NUM
obo MVELASE & OTHERS
Third Respondent
Heard:
1 September 2017
Delivered:
10 May 2018
Summary:
Reasonableness
review – commissioner finding employees not guilty of
intimidation of sub-contractors and reinstating them
– although
finding of not guilty unreasonable, outcome of award nevertheless
reasonable – review application dismissed,
save that award of
back-pay set aside
JUDGMENT
MYBURGH,
AJ
Introduction
[1]
This is a
section 145 review application, with the primary issue for
determination being whether the commissioner’s award
passes the
Sidumo
test. It is a hard case with a long record, involving a dismissal
that took place a long time ago.
[2]
Following
their participation in a three-week protected strike in the
construction industry, the 41 individual respondents returned
to work
on Friday, 13 September 2013, but were not allowed to work their
Saturday overtime shift the next day, despite sub-contractors
being
entitled to work. Aggrieved by this, the individual respondents came
to work on the Saturday – the events of which
resulted in them
being charged and subsequently dismissed (on 8 November 2013) for the
“
intimidation
of sub-contractors and management and / or engaging in undesirable
activities leading to the shut-down of the site
on 14 September
2013
”.
[3]
The ensuing
CCMA arbitration, which ran for 12 days, culminated in the
commissioner issuing an award on 4 November 2014, in which
he found
the dismissal of the individual respondents substantively unfair
(because of an absence of guilt) and awarded them retrospective
reinstatement. The company now seeks to set aside the award on
review.
[4]
In what
follows, I deal with the following topics in turn: background and
chronology of events; an overview of the evidence at the
arbitration;
the commissioner’s award; relevant legal principles; an
assessment of the reasonableness of the award; and other
grounds of
review.
Background and
chronology of events
[5]
The company
is a well-known construction firm, with this matter relating to its
Lynwood Bridge project (outside Pretoria), which
involved the
building of an office complex on behalf of Atterbury Developers (“the
site”). At the site, the company
employed a group of
construction workers (including the individual respondents) and
engaged a number of sub-contractors.
[6]
The
individual respondents lived in a company hostel situated in
Germiston and were transported to the site by way of a company
bus
(although some used their own transport). They generally worked 11
shifts per fortnight: Monday to Saturday (07h00 to 17h00)
in week
one, with the Saturday being an overtime shift; and Monday to Friday
in week two, with the Friday (ending at 12h00) being
the fortnightly
pay day. The week in which the individual respondents worked on
Saturday was referred to as a “
Mampara
week
”.
(The evidence produced something of a dispute about whether the
Saturday overtime shift was voluntary or compulsory.)
[7]
In August /
September 2013, a three-week protected strike took place in the
construction industry, which the individual respondents
participated
in. During the strike, the company was forced to obtain an interdict
from this court relating to intimidation / violence.
It appears that
after this, some sub-contractors worked during the strike (some of
whom did the work performed by the strikers),
while others did not
work. Following a collective agreement having been concluded, the
strike came to an end on Thursday, 12 September
2013.
[8]
On Friday,
13 September 2013, the company came to learn of the settlement at
about 08h00. The individual respondents returned to
the site at about
11h00, and commenced their duties after lunch (at 12h45). At this
point, they worked side-by-side with sub-contractors,
and continued
doing so until knocking off at 17h00.
[9]
Although
the exact time is in dispute (either 15h00 according to the company
or 16h45 according to NUM), during the course of the
afternoon, Kobus
Kotze (the site manager) met with Isaiah Motsatse (a shop steward and
one of the individual respondents). At this
meeting, Mr Kotze advised
Mr Motsatse that the individual respondents would not be allowed to
work the Saturday overtime shift
because work had not been planned
for them, but that sub-contractors would work. Mr Motsatse contested
the instruction. Mr Kotze
further instructed Mr Motsatse to convey
the instruction to the workforce. According to Mr Kotze, he also
advised his site engineers
(Louis Welman
[1]
and Stefan Nel) to tell the foremen (there being six of them) to
relay the instruction to the workforce, and spoke to some of the
foremen himself, including Rudi Williams. There is a dispute about
whether it was appropriate for Mr Kotze to have required a shop
steward to convey a work-related instruction of this nature to the
workforce. But what is not really in dispute is that the instruction
was not conveyed to the workforce by the foremen, at least not to the
majority of the workforce (the company not having established
this in
evidence).
[10]
While
travelling on the bus back to the hostel after the shift had ended at
17h00, Mr Motsatse sought to convey the instruction
to those of the
individual respondents on board the bus. They questioned how he (as
opposed to the foremen) could give them work-related
instructions,
and effectively laughed him off. It was in these circumstances that
Mr Motsatse told the bus driver that he should
collect the individual
respondents the following day from the hostel and take them to work.
According to Mr Kotze, he received
a call from the bus driver (Koos
Khumalo) at 19h30, who informed him that he had been intimidated
(which Mr Motsatse disputed)
and told by Mr Motsatse to bring the
individual respondents to work the next day. In response, Mr Kotze
told Mr Khumalo that he
should not place his safety at risk, and that
he should do as required.
[11]
Turning to
Saturday, 14 September 2013, the events and timeline were as follows:
a)
Mr Kotze
arrived at work at about 06h15 and went to the site office, which is
about 100 metres away from the entrance gate to the
site.
b)
The
individual respondents arrived at the site at about 06h40 and
proceeded through the entrance gate and onto the site, where they
clocked in – it being common cause that all the individual
respondents did so. From there they moved as a group to the vicinity
of the storerooms.
c)
A notice
was posted at both the gate and on the notice board in the vicinity
of the clocking station advising that no work was to
be performed on
the Saturday (although the precise wording of the notice is in
dispute). The notice came to the attention of the
individual
respondents.
d)
By this
time, some sub-contractors were already on site.
e)
At about
07h10, and having clocked in, the individual respondents turned
around and proceeded back outside the entrance gate, with
the
sub-contractors being together with them (see further below).
f)
Mr Kotze
witnessed things as he was moving back to the site office, and was
about 50 metres away.
g)
Mr Welman
walked through this group of workers while he was on route from the
entrance gate to the site office. In the process,
he took some video
footage on his cell phone.
h)
The
individual respondents then assembled outside the entrance gate,
which they closed – the result being that access to the
site
was blocked.
i)
Apparently
before this, Mr Motsatse and other individual respondents went to the
site office and asked that the drawing clerk (Mrs
Alphina), who was,
like the individual respondents, a fortnightly-paid general worker,
should leave the site. She did so. In the
process, there was no
intimidation of the members of management present in the site office,
including Mr Kotze.
j)
At some
point, Mr Welman left the site office and made his way to the
Glenfare Shopping Centre, which is across the road from the
site. He
took further video footage (using a video camera) there.
k)
At about
08h00, and having placed calls to management advising that they could
not gain access to the site, the sub-contractors
started leaving.
l)
At about
08h30, Messrs Nel and Williams, who had also been in the site office,
proceeded to the entrance gate to see what was going
on.
m)
When at the
gate, they were told by an individual that management should leave
the premises.
n)
At about
09h00, and after Messrs Nel and Williams had reported back to the
site office, they together with Mr Kotze left the site
by exiting
through the entrance gate. Mr Williams went home, while Messrs Kotze
and Nel joined Mr Welman at the shopping centre.
o)
At about
09h15, and after having been called by Mr Kotze earlier in the
morning, the SAPS arrived at the site. (Mr Motsatse’s
evidence
was, however, that this occurred before 09h00, because, as far as he
was concerned, the individual respondents ultimately
left the site at
around 09h00.)
p)
After the
SAPS had engaged them for about five minutes, the individual
respondents moved back inside the site premises as required
by the
SAPS – and thus off the road / pavement.
q)
In the
process of liaising with the SAPS, Mr Kotze was advised that the SAPS
would wait on site until 12h00 to monitor the situation.
The SAPS
also advised Mr Kotze that management should not aggravate the
situation by returning to the site, or allowing sub-contractors
to be
on site.
r)
At about
10h00, and some ten minutes after this engagement with the SAPS, Mr
Kotze received a telephone call from a member of the
SAPS advising
that the individual respondents had boarded the bus and left the
site. (As stated above, according to Mr Motsatse,
this would have
occurred closer to 09h00 than 10h00.)
s)
No work was
performed at the site, with all six / seven sub-contracting firms
(employing some 50 employees) who were scheduled to
work either
having left the site or not having gained entry to the site.
According to Mr Kotze, losses to the company ran to some
R80 000.
[12]
On Monday,
16 September 2013, the individual respondents worked normally until
16h30, when they engaged in a 30-minute overtime
ban until 17h00.
(Apparently, the last 30 minutes per day is paid at overtime rates.)
Although they were not charged with this,
the company contended that
the individual respondents engaged in removing sub-contractors from
work at this time.
[13]
On 17 and
18 September 2013, the individual respondents were suspended pending
a disciplinary inquiry. In the process, the company
alleged that they
threw back their notices of suspension at management.
[14]
On 19
September 2013, the individual respondents were charged with these
three charges of misconduct:
“
(1)
Refusal to obey a legitimate instruction in that you proceeded to
clock-in for unauthorised overtime
on 14 September 2013 despite being
instructed not to do so by management.
(2)
Intimidation of sub-contractors and management and/or engaging in
undesirable activities
leading to the shut-down of the site on 14
September 2013.
(3)
Gross insubordination and making a mockery of the employer’s
disciplinary processes
on 17 September 2013 when the suspension
letters were being handed out.”
[15]
On 26
September 2013, the disciplinary inquiry commenced and appears to
have been concluded on 22 October 2013. The written findings
of the
chairperson reflect that he found the individual respondents not
guilty of charges 1 and 3, but guilty of charge 2, and
that they were
dismissed on that basis. The actual date of dismissal appears to have
been 8 November 2013.
The arbitration: an
overview of the evidence
Introduction
[16]
At the
arbitration, the company called four witnesses: Mr Kotze; Mr
Williams; Tony Faria (of Alberton Contractors, a sub-contractor);
and
Mr Welman. NUM, in turn, called three witnesses: Samuel Moagi (an
individual respondent who was a crane operator); Alfred Mvelase
(an
individual respondent); and Mr Motsatse (an individual respondent who
was also the shop steward).
[17]
It warrants
mention at the outset that this evidence is missing from the
transcript: the cross-examination and re-examination of
Mr Welman
(although I have watched the video footage that his evidence is based
on); the evidence of Mr Mvelase; and the evidence-in-chief,
the last
portion of the cross-examination
[2]
and the re-examination of Mr Motsatse. Given that NUM made no issue
of this in its answering affidavit or heads of argument, I
do not
intend to consider the possible refusal of the review on this basis
alone. Instead, I intend to rely on the commissioner’s
summary
of the evidence – which is detailed and generally undisputed –
where evidence is missing from the transcript.
That said, as
reflected below, the company’s failure to take steps to
reconstruct the missing part of the transcript
[3]
has some negative consequences for it.
[18]
Another
concerning introductory issue is this. From the outset of the
arbitration, the company presented its case on the basis that
the
individual respondents were found guilty of all three charges that
were brought against them. Having covered charges 1 and
3 in
evidence, it was revealed for the first time by the company’s
attorney at p 693 of the record that the individual respondents
had
been found not guilty of charge 1 and at p 854 of the record that the
individual respondents had been found not guilty of charge
3, and
thus that the arbitration should be confined to charge 2 alone. This
is unacceptable.
The company’s
case: the events of the Saturday
[19]
To begin
with the evidence of Mr Kotze, he testified that at around 07h00, he
heard loud voices (shouting at the sub-contractors)
and saw people
walking back towards the entrance gate, and “
some
of the sub-contractors … leaving the site
”.
Later on, he said that he saw the WBHO workers walking behind the
sub-contractors, thus forcing them out of the premises.
He went on to
testify that Mr Welman had reported to him (upon his arrival at the
site office after having walked through the group
of workers without
being intimidated) that the WBHO workers had told the sub-contractors
that they would not be allowed to work
if the WBHO workers were not
allowed to work. Mr Kotze had also received telephone calls from
sub-contractors advising that the
entrance gate was blocked and
wanting to know what was going on, with his response being that they
should just wait it out. In
other calls, it was alleged that
sub-contractors were being threatened outside the gate. He had also
received calls from Mr Welman
(after he had gone to the shopping
centre) to the effect that some of the WBHO workers had trapped him
inside the shopping centre.
Upon their return from the gate, Messrs
Nel and Williams appeared shocked and reported to him that they had
been threatened at
the gate and told that management must leave
immediately. Upon doing so, he witnessed the WBHO workers in a group
blocking entrance
through the gate, but the three of them walked
through the group without being intimidated. By the time the SAPS
arrived, the WBHO
workers were just standing in front of the gate and
there was no intimidation going on anymore; no arrests were made. As
far as
he was concerned, he had expected the shop steward to come to
the site office to discuss the matter with him. (Although Mr Kotze
took the commissioner through the video evidence, this was ultimately
left for Mr Welman to present as he was the videographer
– see
further below.)
[20]
Turning to
the evidence of Mr Williams, he arrived at work at 07h00, and first
saw the WBHO workers at the time that they were clocking
in. He
witnessed them singing, chanting and shouting at the sub-contractors,
and “
chasing
all the people off site
”,
which caused them to “
walk
as quickly as they could … outside
”.
At this point, the WBHO workers were not carrying anything in their
hands. Once everyone had left, the WBHO workers stood
outside the
entrance gate and made sure that nobody could come on site. Later on,
he went to the entrance gate with Mr Nel to see
what was happening.
In the process, Phillip Madudijabe opened the gate and approached
them some ten metres inside the premises,
stating that “
it
is better for us … to leave the site and that we should call
the people inside
”.
He felt threatened by this; some individuals had bricks in their
hands and the group was mumbling, and “
it
felt to me they agreed with what he said
”.
Having returned to the site office, he then left the site together
with Messrs Kotze and Nel. Different to Mr Kotze, he
testified that
when exiting the gate and walking through the group of workers,
“
there
were things said in their language
”
which came across as threatening. But he accepted that nothing
physical happened to them. Asked why he thought the WBHO
workers
behaved as they did, he testified that “
maybe
they felt it was unfair for them not to work on that Saturday and the
sub-contractors could work
”.
[21]
This brings
one to the evidence of Mr Faria, who runs a plastering business and
was the only sub-contractor to testify. He sought
to enter the site
at about 07h30 in a vehicle he was driving with 12 of his employees
onboard, but came across the WBHO workers
in front of the entrance
gate, which was closed. Having parked the vehicle about 100 metres
down the road, the occupants were approach
by three individuals who
“
advised
my staff not to go [in] because they had locked out the site and
[were] not allowing anybody to work on that specific day
”.
This was not intimidatory, but the scene at the gate was “
quite
hectic
”,
with WBHO workers carrying sticks, pieces of rebar or bricks and
chanting words to the effect that they “
do
not want rats
”
(Mr Faria having been told of the translation), which he found
intimidatory. Upon phoning Mr Kotze, he was asked to hold
on and give
management an hour or so to resolve the issue. When the entrance was
not cleared after an hour, Mr Faria and his employees
decided to
leave. Before doing so, Mr Faria’s foreman (August Langa)
approached some of the individuals at the gate and asked
if they
could collect their overalls so that they could take them home to be
washed. This was agreed to, with three of the individuals
having
accompanied three of Mr Faria’s employees onto the site to
collect the overalls. Mr Faria and his employees then left
at about
09h00. Significantly, Mr Faria testified that, during the course of
his interaction with Mr Kotze (on the day in question
and / or on the
Friday), Mr Kotze had advised him that a notice had been published
advising that “
there
was no overtime until further notice
”.
As far as Mr Faria was concerned, the WBHO workers were aggrieved by
this.
[22]
Turning
finally to the evidence of Mr Welman, it warrants mention that it was
interposed after the evidence of Mr Moagi (see below).
Mr Welman
arrived at work at about 06h55. According to him, after the WBHO
workers had clocked in, he “
saw
all the sub-contractors walking out and being chased out by a group
of WBHO workforce
”.
Some of the WBHO workers were carrying pipes, sticks and rebars, with
the group being unhappy about the fact that the sub-contractors
were
working, when they were not. Mr Welman immediately took out his cell
phone and started videoing the scene. After having done
so, he went
to the site office, and was given a video camera by Mr Kotze at about
07h30. It appears that he then went to the shopping
centre across the
road from the entrance to the site, where he videoed the scene at the
entrance gate, and interviewed some sub-contractors.
They told him
that they were chased out by the WBHO workers, and that if they went
to work, their cars would be burnt. While at
the shopping centre, Mr
Welman was approached by certain WBHO workers who asked him to
accompany him, which he refused to do. He
was then told to delete
some of his video footage, and (cunningly) deleted one of the videos,
which satisfied them. He then remained
at the shopping centre.
[23]
Mr Welman
presented the video evidence to the commissioner, with his commentary
being as follows in summary:
a)
Video 1
(07h05): capturing sub-contractors walking towards the entrance gate
followed by a group of WBHO workers, some of whom were
carrying
rebars or plastic pipes; only these workers could be identified –
Samuel (presumably Moagi), Pule Mathikhe, Modisadife,
Modisadife’s
cousin (unnamed), Philemon, and Joseph (aka Zulu).
b)
Video 2
(08h35): capturing Mr Welman speaking to a foreman employed by one of
the sub-contractors at the shopping centre; two of
the individual
respondents are seen approaching him.
c)
Video 3
(time not stated): the transcript reflects that the evidence was not
transcribed because of “
noisy
background
”,
but Mr Welman appears to go on to state that it reflects interviews
conducted at the shopping centre.
[24]
As stated
above, the cross-examination and re-examination of Mr Welman is
missing from the record, with the result that I am constrained
to
rely on the commissioner’s rendition thereof. These portions of
the commissioner’s summary of Mr Welman’s
cross-examination appear material:
“
4.201
It was agreed by Louis that the passage [leading
to the gate] was
about 4m wide and 60m long where the workers were walking and he
walked beside them.
4.202
The WBHO workers walked behind the sub-contractors
and there was no
one speaking in respect of the fact that there was intimidation.”
“
4.209
Many propositions were made to Louis regarding
the fact that he
walked amongst the workers in the passage and there was nothing that
evinced intimidation.”
“
4.211
The [NUM] representative put it to him that it
would have been
impossible for the workers of WBHO to have walked side by side with
the contractors given the size of the passage.
Louis affirmed.
4.212
The [NUM] representative made propositions
that in all video footage
Louis started the conversation and directed it to where he wanted it
to go. Louis disputed that.
4.213
Many propositions were made regarding the
fact that workers did not
show any sign of intimidation except the narration tendered by Louis.
He affirmed.”
[25]
Turning to
the commissioner’s summary of Mr Welman’s re-examination,
these portions appear material:
“
4.216
The re-examination raised new matters pertaining
to the fact that
video footage does not show all the incidents which took place. Louis
related that he was confronted and threatened
though that was not
captured in the video.
4.217
I raised a concern that the version was
not mentioned in evidence
in-chief and therefore there was no cross-examination thereon.”
“
4.219
Louis gave an account of his whereabouts as he
was taking the video
footage. Louis claimed that he was afraid and chose to go to the
shopping [centre] where there were people
likely to protect
him.”
[26]
Having
viewed the video footage, my own observations are as follows:
a)
Video 1: it
captures workers wearing blue WBHO overalls, and others in different
overalls or casual clothes, walking through a tunnel
towards the
entrance gate – there being a bunch of workers in WBHO overalls
at the back; a few workers wearing WBHO overalls
are carrying things
in their hands; there is little if any singing and chanting going on;
laughter can be heard; and from an overall
perspective, the footage,
in itself, does not establish the company’s contention that the
sub-contractors were being chased
out of the premises by the WBHO
workers in a threatening and intimidatory manner.
b)
Video 2: it
captures an interview by Mr Welman of a sub-contractor at the
shopping centre; he states that the WBHO workers had said
that the
sub-contractors had to go and they cannot work on Saturdays.
c)
Video 3: it
captures another interview by Mr Welman of a sub-contractor at the
shopping centre; he states that the WBHO workers
had chased them out
of the premises, that they do not want them to work, and that they
had threatened to burn their cars; a discussion
then ensues between
the sub-contractor, Mr Welman and the sub-contractor seen in video 2
about whether it will be possible to work
that day, with Mr Welman
saying that it would be; a WBHO worker then arrives on the scene –
he takes exception to Mr Welman
“
shooting
”
him (with his video camera) in a shopping centre.
NUM’s case: the
events of the Saturday
[27]
To begin
with the evidence of Mr Moagi, he appears to have been one of two
crane operators employed by the company, the other being
one Carter.
According to Mr Moagi, he and Carter were specifically asked by Mr
Kotze the previous day to come to work on the Saturday
(but this had
not been put to Mr Kotze). On the Saturday, he arrived by bus at the
site at around 07h00; he saw a notice at the
gate, but did not read
it; he clocked in and then saw a notice in the vicinity saying that
there was no work that Saturday, but
it did not involve him; the
workers became confused; he and Carter ultimately waited in the
vicinity of their cranes, but no one
arrived; and the two of them
then subsequently joined the WBHO workers outside the entrance gate.
Mr Moagi denied having seen that
sub-contractors were chased off the
site, or that he was one of a group of WBHO workers “
who
walked behind the sub-contractors, intimidating them and forcing them
out
”,
but he accepted that he had seen Mr Welman “
taking
the pictures
”
and had walked alongside him together with Pule Mathikhe. As far as
Mr Moagi was concerned, “
the
sub-contractors may have seen the WBHO workers not working then they
said if the WBHO workers are not working we better also
not work
”;
“
it
was their own decision that they decided that they cannot work if the
company is not working … it was their own decision
”.
He also contended that the sub-contractors may have understood the
notice to also apply to them, because “
it
was not selective
”
(i.e. did not identify who it applied to).
[28]
Turning to
the evidence of Mr Mvelase, as stated above, it is entirely missing
from the transcript. The commissioner’s summary
of his evidence
in-chief about the events of the Saturday is as follows:
“
4.228
The WBHO workers reported for work on 14 September
2013 based on the
fact that they did not believe the shop steward.
4.229
On reporting for work he went to clock
in and the workers spoke about
the paper pasted on the notice board regarding the fact that the
workers were not to work overtime.
4.230
A discussion ensued about the notice regarding
the fact that they
were not to work overtime.
4.231
The workers also spotted another notice
by the gate regarding the
fact that they were not to work.
4.232
WBHO workers were milling around the containers
on site prior to them
leaving site. As the WBHO workers left site the sub-contractors
walked amongst them and between them.
4.233
A total of five workers were identified
as workers from various
sub-contractors by Alfred intermingling with WBHO workers.
4.234
Version of the [company] was put to him
relating to the fact that the
workers intimidated management and the sub-contractors. Alfred
disputed the version.
4.235
Another version was put to him in respect
of the fact that the
workers were armed with weapons for purposes of intimidation. Alfred
disputed the version.
4.236
Alfred pointed [out] some workers from
sub-contractors carrying tools
of the trade.
4.237
Alfred admitted that the WBHO workers were
carrying an assortment of
instruments for work. There was, according to him, no intimidation.
4.238
Alfred contended that if they were violent
or prone to intimidation
then the sub-contractors would not have walked amongst them.
4.239
Alfred made a point regarding the fact
that some of the
sub-contractors wore WBHO overalls
[4]
though most would be in their casual wear, whereas the WBHO [workers]
would be in overalls as they were from hostels.”
[29]
The
relevant extract from the commissioner’s summary of Mr
Mvelase’s cross-examination is this:
“
4.244
The attorney made many propositions regarding
the fact that the
workers identified belonged to RMS being a sub-contractor; however
his brief was that those workers were closely
related to the WBHO
workers.
4.245
Alfred contended that they were nevertheless
sub-contractors on site.
The five persons identified by Alfred were conceded to be
sub-contractors.
4.246
The assortment of instruments of trade
was identified carried by some
sub-contractors.
4.247
Propositions were made by the attorney
in respect [of] a steel pipe
measuring plus / minus 2m carried by a WBHO worker as an instrument
utilized for intimidation.
4.248
The assertion was disputed by Alfred. He
further contended that there
was no intimidation captured on the video footage as workers walked
leisurely.
4.249
Alfred went on to point out other workers
intermingling with the WBHO
workers.
4.250
Propositions were made by the attorney
in terms of the fact that
Alfred was around the area for about two or so hours.
4.251
Alfred stated that he did not check for
how long they were around on
site. Alfred outlined events as he recalled them; arrived on site,
clocked in and subsequent thereto
met as WBHO workers to formulate
how they were to engage management.
4.252
The attorney made propositions regarding
the fact that they finally
did not engage management.
4.253
Alfred conceded that they did not secure
an audience with management
premised on the advice of the police.
4.254
Alfred was quizzed on why the police arrived
on the scene. He stated
that the police were called by management alleging that the WBHO
workers blocked the road.
4.255
Police called for a shop steward whom the
police advised not to gain
entry on site as they would be perceived to be trespassing.
4.256
WBHO workers resolved to leave site though
there were some
sub-contractors on site.
4.257
Propositions were made regarding the fact
that the WBHO workers were
frustrated by not working on the Mampara week. Alfred stated that, on
the contrary, they were very happy
as they had time to relax.”
[30]
Turning
finally to the evidence of Mr Motsatse, as his evidence in-chief is
missing from the transcript, I again quote from the
commissioner’s
award in relation to what Mr Motsatse said about the events of the
Saturday:
“
4.264
[WBHO workers were] walking in the narrow passage
and intermingling
with the sub-contractors.
4.265
Isaiah pointed out a number of sub-contractors
in the WBHO midst
carrying some instruments of work.
4.266
The sub-contractors were pointed out walking
with their hands in
their pockets and folding arms as well as chatting with the WBHO
workers.”
[31]
As stated
above, the last portion of Mr Motsatse’s cross-examination is
not contained in the transcript. What is contained
in the transcript
about the Saturday is this evidence: Mr Motsatse arrived at work
before 07h00; all of the individual respondents
attended work and
clocked in; he saw a notice on the notice board in the vicinity of
the clocking station, which stated (although
he could not recall the
exact wording) that workers were not to work; he thus sought to
engage his colleagues, with the decision
being that they should
return to the hostel; in his evidence in-chief he had stated that he
had told the WBHO workers to go and
stand at the gate with a view to
seeking clarity; at the point that the SAPS arrived (which was before
09h00) they “
were
talking about going to see management … and then the police
advised me that … I should not go speak to management
in line
with the notice, just as they had been phoned by management that we
should not have access or come into the site or work
area
”.
[32]
To this
should be added this part of the award, setting out that portion of
Mr Motsatse’s cross-examination which is not contained
in the
transcript:
“
4.272
Reference was made to the video footage and Isaiah
pointed out more
sub-contractors intermingling with the WBHO workers and rebutted the
version of intimidation.
4.273
Concession was made by the [company] regarding
the fact that the
sub-contractors were viewed on the video intermingling with the
workers because they were closely related to
WBHO workers.
4.274
Isaiah contended that if there was intimidation
then the
sub-contractors would not have intermingled with them.
4.275
There was no notice presented before me
regarding the prevention of
WBHO workers to work overtime. Isaiah’s recollection of the
notice corroborated the account of
both Samuel and Alfred in respect
of the content.
4.276
The content of the notice was that the
workers were not to work
overtime until further notice.
4.277
Numerous propositions were made regarding
the fact that the workers
intimidated management and sub-contractors despite there being no
evidence captured on the video footage.”
The commissioner’s
award
[33]
In what
follows, I reproduce the
ratio
of the commissioner’s award arranged under various topics that
I have formulated.
[34]
Regarding
the process followed by Mr Kotze in giving Mr Motsatse (the shop
steward) the instruction on the Friday that the individual
respondents should not work the Saturday overtime shift:
“
5.10
The [company’s] case was that there was no formal and
prescribed way of communication on
site. It was however practice for
the foremen to communicate to their respective teams whatever
management’s instruction.
5.11
The [NUM’s] case was that there was a prescribed way of
communication and the shop
steward did not feature in the prescribed
communication line except in matters whereupon the union had an
interest.
5.12
In this respect I am persuaded to accept the version of the WBHO
workers regarding the
fact that the shop steward was not an integral
part of the communication line to filter instructions from management
to WBHO workers.
5.13
I am mindful of the fact that Kobus [Kotze’s] assertion was
that the shop steward
was previously used in such a manner with
significant success.
5.14
The previous incident was not presented to me and therefore the [NUM]
could not comment
thereon except to refute such an assertion.
5.15
In the absence of such evidence I accept the version of the [NUM] as
the most probable
version. It therefore follows that [their] version
… stands unchallenged in this regard.
5.16
The [NUM’s] version was that the instruction was given at 16h45
whereas Kobus asserted,
to the contrary, that he gave the instruction
regarding the fact that the WBHO workers were not to work overtime at
15H00.
5.17
If I were to accept the version of Kobus: I would have to take into
account that he admitted
that the shop steward was not told how to
address the workers given the fact that there were time constraints.
5.18
It follows that in whatever way one looks at the matter: the shop
steward was not bound
to succeed to effectively cascade the
instruction to WBHO workers at that given time.
5.19
The nature of the instruction itself was controversial and
contentious considering that
the workers were generally allowed to
work overtime on a Mampara week.
5.20
The shop steward undertook to relay the message as Kobus put it as an
instruction, Kobus
did not give the WBHO workers any choice save to
comply with the instruction.”
And further in this
regard:
“
5.41
The manner in which Kobus issued the instruction was bound to cause
confusion on site. The effective
communication line was through the
foremen.
5.42
Rudi [Williams’] WBHO workers were not on site as he was made
the integral part of
communicating the instruction to his workers.
5.43
Motsatse was the shop steward and he liaised with management on
matters pertaining to the
union and the [company’s]
relationship.
5.44
WBHO workers’ view was that it was unprecedented for a shop
steward to be utilized
as a conduit pipe of communication.
5.45
Motsatse the shop steward held that it was indeed unprecedented
whereas the [company] asserted
that there was a precedent however
this incident was not outlined to me.
5.46
I therefore prefer the version of the WBHO workers that it was
unprecedented for a shop
steward to filter down the work related
instruction to WBHO workers.”
[35]
Regarding
the motivation for and rationale behind the instruction that the
individual respondents were not allowed to work the Saturday
overtime
shift:
“
5.21
If regard be had to the prevailing situation when the instruction was
given: I have to take into
account that the workers were from a
national strike affecting the construction industry.
5.22
The [company’s] version was that the workers commenced work
during the course of
the day on a Friday without prior planning.
5.23
The working relations were therefore still strained and parties
should have had time to
rebuild and strengthen their working
relationship particularly as they were parties bound by the
collective agreement.
5.24
Kobus’ version was that he realized that there was a need to
plan the work for the
workers to work overtime on 14 September 2013
on a Saturday.
5.25
The strike was called off on 12 September 2013 and the WBHO workers
resumed work on 13
September 2013. There was no need then by the
[company] to plan work for the WBHO workers.
5.26
This lends support to the WBHO workers’ assertion was that
there was no planning
required for them to work overtime.
5.27
In view of the fact Samuel [Moagi] demonstrated what has to be done
prior to him commencing
with his work in respect of risk assessment
and inspection of his machine.
5.28
He was also allocated to work with an independent sub-contractor
regarding ferrying of
steel in order to help those sub-contractors
working on columns.
5.29
Samuel worked across the board in that he worked with sub-contractors
and amongst the WBHO
workers.
5.30
Samuel was fetched by a bakkie unlike all the other workers and he
clocked in ready to
assist in the recovery plan.
5.31
I am persuaded to accept his version as the most probable version
regarding the fact that
he was called to assist with the recovery
plan particularly that both crane drivers were on strike.
5.32
If I accept that there was no need for management to plan work for
the WBHO workers then
it follows that Kobus was malicious when he
refused the WBHO workers to work overtime on 14 September 2013.
5.33
This view is strengthened by the account of Tony [Faria] in respect
of why the WBHO workers
were not to work overtime. Kobus told him
that the WBHO workers were not to work overtime until further
notice.
5.34
Regard must be had to the account of Rudi as the foreman on site he
was also not told by
Kobus why the WBHO workers were not to work
overtime on 14 September 2013 whereas this was a Mampara week.
5.35
Mampara week was defined as the alternate week on which the WBHO
workers were not paid.
It was however compulsory for the WBHO workers
to work overtime.
5.36
Tony asserted that he was of the view that the WBHO workers denied
his workers the right
to earn a living. I am persuaded to accept that
this applied to Kobus’ intention when refusing the WBHO workers
to work overtime.”
[36]
Regarding
the state of “
confusion
”
on the Saturday:
“
5.37
It cannot be denied that confusion reigned supreme on the day in
question.
5.38
The notice declining the WBHO workers to work overtime was not
presented before me. The
WBHO workers held that the content related
to the workers being prohibited to work overtime.
5.39
There was no differentiation of who actually was prevented to work
overtime. I surmise that
the sub-contractors who intermingled with
the WBHO workers perceived themselves as victims of management.
5.40
It is against this backdrop I have to deal with the ensuing
intimidation. I have already
accepted that Kobus wanted to
short-change the WBHO workers.”
[37]
Regarding
the issue of intimidation on the Saturday:
“
5.49
The video footage evidence was presented by Louis [Welman] and
captured scenes around the site
on the day in question.
5.50
Rudi’s account was that he was also threatened by the WBHO
workers carrying bricks
as they marched through the passage of 4m by
60m.
5.51
The version presented was that the WBHO workers marched the
sub-contractors out of site.
5.52
The WBHO workers showed, to the contrary, that they marched behind
the sub-contractors
because their containers on site were far behind
those of the sub-contractors.
5.53
The WBHO workers further pointed out sub-contractors in the video
footage who belonged
to RMS and other sub-contractors.
5.54
There was no visible account of intimidation shown on video footage
and Louis’ account
was that the video footage captured snippets
of events. He was however intimidated and asked to delete some part
of the video footage
which was not depicted in the video footage.
5.55
Louis’ account in terms of evidence in-chief did not mention
the incidents which
were mainly dealt with under re-examination
regarding why he went to the shopping centre.
5.56
I will therefore not offer much probative value on the video footage
evidence tendered
by Louis.
5.57
It must however be stated that the WBHO workers demonstrated that the
sub-contractors intermingled
with them.
5.58
The sub-contractors pointed out by the WBHO workers were conceded by
the [company] to be
sub-contractors with whom WBHO workers had a
close relationship. This however renders the assertion of
intimidation enfeeble.
5.59
Louis’ account was presented in a manner that I gained the
impression that the WBHO
workers marched out the sub-contractors. The
video footage evidence did not sustain this assertion.
5.60
In the video footage some WBHO workers carried the tools of trade and
so were some of the
sub-contractors.
5.61
There was therefore little, if anything, to go by in terms of
intimidation in respect of
video footage.
5.62
There were voices made out in respect of the interview conducted by
Louis from some sub-contractors
whereupon the sub-contractors were
saying they were threatened: much more as a response to the question
posed by Louis.”
[38]
Regarding
the issue of derivative misconduct:
“
5.63
The [company] had asserted that the matter before me should be dealt
with in terms of a derivative
misconduct.
5.64
Derivative misconduct is premised on the collective responsibility
that the workers have
in respect of either safe guarding or securing
a property.
5.65
The phenomenon is rife in the retail sector whereupon workers would
be called upon to disclose
who was involved in the commission of
misconduct in the face of an ultimatum given.
5.66
Failure to do so, within the ultimatum assumes that they are all
dishonest and thereby
undermining their contract of employment with
the [company].
5.67
In the matter at hand there was no collective responsibility
regarding not to report for
overtime as already alluded to above.
5.68
WBHO workers were not viewed on the video footage and then called
upon by the [company]
to disclose what transpired on the day in
question in respect of intimidation.
5.69
It should be borne in mind that Kobus spoke to [Koos] Khumalo
regarding the WBHO workers
having to report for duty in order [to]
safe guard the life of Khumalo, the bus driver.
5.70
It follows that the reporting of WBHO workers for overtime was not in
itself a transgression
as the [company] did not find them guilty
thereof.
5.71
‘Collective guilt’ as a principle is repugnant in our law
and is not encouraged
as espoused by Grogan who is a staunch
protagonist of derivative misconduct.
5.72
Rudi, Louis and Rudi [sic] told the sub-contractors to hang in the
face of the confusion
and when the confusion was not abetting,
sub-contractors left as testified by Tony.
5.73
Some sub-contractors left at the instruction of Rudi and Louis, the
WBHO workers wanted
to engage management but abandoned the idea
premised on the advice of police.
5.74
Given the submissions made before me, I conclude that the matter
before me does not fall
within the meaning of derivative misconduct.”
[39]
The
commissioner thus concluded:
“
5.75
The WBHO workers were, accordingly not viewed intimidating the
sub-contractors as per the video
footage evidence as they were shown
intermingling with some sub-contractors carrying an assortment of
instruments of trade.”
“
6.1
I find that the WBHO workers did not intimidate the sub-contractors
and accordingly
their dismissal by the [company], WBHO, was
substantively unfair.”
[40]
In the
result, the commissioner awarded the employees reinstatement
retrospective to the date of their dismissal on 8 November
2013.
Relevant legal
principles
[41]
In an
often-quoted passage, Murphy AJA said this in
Mofokeng
:
[5]
“
However, sight may not be lost
of the intention of the legislature to restrict the scope of review
when it enacted s 145 of the
LRA, confining review to 'defects' as
defined in s 145(2) being misconduct, gross irregularity, exceeding
powers and improperly
obtaining the award. Review is not permissible
on the same grounds that apply under PAJA.
Mere
errors of fact or law may not be enough to vitiate the award.
Something more is required
.
To repeat: flaws in the reasoning of the arbitrator, evidenced in the
failure to apply the mind, reliance on irrelevant considerations
or
the ignoring of material factors etc must be assessed with the
purpose of establishing whether the arbitrator has undertaken
the
wrong enquiry, undertaken the enquiry in the wrong manner or arrived
at an unreasonable result. Lapses in lawfulness,
latent or
patent irregularities and instances of dialectical unreasonableness
should be of such an order (singularly or cumulatively)
as
to result in a misconceived enquiry or a decision which no reasonable
decision maker could reach on all the material that was
before him or
her
.” (Own emphasis.)
[42]
In short,
errors or misdirections, in themselves, do not give rise to a review
for want of reasonableness; they only do so if the
“
distorting
effect
”
is the production of a substantively unreasonable outcome.
[6]
So where on all the material before the commissioner, the result is
reasonable, errors and misdirections on the part of the commissioner
in arriving at his or her conclusion are really of no consequence.
[43]
As to when
a decision will be unreasonable, it will only be so if it is one that
a reasonable decision-maker could not arrive at.
[7]
It must thus fall outside of a notional range of reasonable decisions
that could be reached on a given set of facts.
[8]
It will fall outside this range if the decision is not “
capable
of justification
”
[9]
(i.e. justifiable) or, put differently, cannot “
plausibly
be reached on the material evidence
”.
[10]
This will be the case if the award is “
entirely
disconnected with the evidence
”
or is “
unsupported
by any evidence
”
and involves “
speculation
by the commissioner
”.
[11]
“
It
follows from this that [a commissioner’s] award will be
reasonable when there is a material connection between the evidence
and the result, or, put differently, when the result is supported by
some [material] evidence.
”
[12]
In short, a wrong award is not, in itself, reviewable; to be so, it
must be so wrong (“
obviously
wrong
”
[13]
)
as to be unreasonable. The result of this is that there will be many
awards where this court differs with the decision of the
commissioner
– awards that might rightly be described as unsatisfactory or
poor – but where the result is, nevertheless,
not unreasonable,
and the award thus not reviewable.
[14]
[44]
There is
another point that needs to be made for present purposes, which
arises from the fact that reasonableness is a result-based
review
test. If the company in this matter establishes that the
commissioner’s decision to acquit the employees of misconduct
(and thus find the dismissal substantively unfair) was unreasonable,
that does not mean it will necessarily succeed in assailing
the award
of reinstatement on review. In order to do so, it must go further and
establish that, assuming the employees were guilty
of misconduct (as
contended), the commissioner could not reasonably have found the
dismissal substantively unfair on account of
the sanction of
dismissal having been unfair, and reinstated the employees on that
basis.
[15]
This is in line
with the principle applicable to reasonableness review that the
reasonableness of an award can be defended for
reasons (or grounds)
not considered by the commissioner.
[16]
An assessment of the
reasonableness of the award
[45]
In the
portion of the
ratio
of the award quoted in paragraphs 34-36 above, the commissioner makes
three main findings (which I paraphrase and then expand on)
in favour
of the individual respondents that serve to contextualise (or
mitigate) their conduct on the Saturday.
a)
Firstly,
Mr Kotze went wrong in issuing the instruction to Mr Motsatse that
the Saturday overtime shift would not be worked.
The
reasoning (or sub-findings) being that: it was inappropriate and
unprecedented for Mr Kotze to have required a shop steward
(as
opposed to the foremen) to convey the work-related instruction to the
individual respondents; in any event, Mr Motsatse was
not afforded a
proper opportunity to address the workforce having regard to the time
constraints; in these circumstances, and given
the controversial /
contentious nature of the instruction, the communication thereof was
bound to be unsuccessful; and the manner
in which the instruction was
issued (i.e. to Mr Motsatse) was bound to cause confusion.
b)
Secondly,
the alleged rationale for the instruction – i.e. that
management did not have time to plan – was without merit.
The reasoning (or
sub-findings) being that: the relationship was strained in the light
of the strike; the individual respondents
had returned to work and
had worked on the Friday without any planning on the part of
management; this supported their case that
planning was not required
for the Saturday overtime shift; three other things also supported
their case, namely what occurred in
relation to Mr Moagi (i.e.
Samuel), Mr Faria’s evidence that Mr Kotze had told him that
overtime would not be worked “
until
further notice
”,
and Mr Williams’ evidence that he (as a foreman) was not even
told of the rationale for the instruction; and accepting
that there
was no need to plan work, it followed that Mr Kotze was “
malicious
”
in refusing the individual respondents work, and “
denied
[them] the right to earn a living
”
on the Saturday.
c)
Thirdly,
“confusion reigned supreme” on the Saturday.
The reasoning (or
sub-findings) being that: the notice posted on the gate and notice
board (which was not produced by the company
during the arbitration)
advised of the stopping of overtime; the notice made no distinction
between WBHO workers and sub-contractors;
those sub-contractors who
intermingled with the WBHO workers might have considered the notice
as applying to them; and (as already
mentioned above) the manner in
which the instruction was issued (i.e. to Mr Motsatse) contributed to
the confusion.
[46]
Insofar as
the company attacks the reasonableness of these three findings, I do
not consider any of them to constitute a finding
that a reasonable
decision-maker could not arrive at.
a)
Regarding
the first finding, the evidence produced a dispute about the
propriety of issuing a work-related (overtime) instruction
to a shop
steward (instead of the foremen) – it being Mr Kotze’s
evidence that this had been done before, and Mr Motsatse’s
evidence that it was unprecedented. The commissioner’s finding
in favour of Mr Motsatse’s version was by no means
unreasonable. And as for the balance of the commissioner’s
sub-findings, the reasonableness thereof is borne out by the fact
that it was the evidence of both Messrs Mvelase
[17]
and Motsatse that workers on board the bus effectively laughed off Mr
Motsatse’s attempt to convey a work-related instruction
to them
– this because it was abnormal for him to do so.
b)
Regarding
the second finding, in circumstances where it was properly supported
by at least three of the four factors relied on by
the commissioner,
it is justifiable and thus reasonable. (I disregard what occurred
with Mr Moagi in the absence of his version
having been put to Mr
Kotze under cross-examination.) The same applies to the inference
that the commissioner then drew from the
finding that the need for
planning was not actually the rationale for cancelling the shift,
namely that the decision was, in effect,
mala
fide
.
Indeed, Mr Faria’s evidence alone served as a plausible and
justifiable basis for this finding – the company had decided
to
stop overtime indefinitely, for reasons that it chose not to explain.
The commissioner may well have been wrong in finding
mala
fides
,
but the finding is supported by material evidence, and is thus not
unreasonable.
c)
Regarding
the third finding, in failing to produce the notice at the
arbitration, the company paved the way for the commissioner
to accept
the evidence of NUM’s witnesses about what it said, and about
how the sub-contractors may have interpreted it –
it having
been Mr Moagi’s evidence that they could have assumed that it
also applied to them. And as already found above,
the relaying of the
instruction to the shop steward – which was rejected out of
hand by the workers – also contributed
to the confusion on the
Saturday. In these circumstances, the commissioner’s finding
was by no means unreasonable.
[47]
The
upholding of the reasonableness of the three findings analysed above
has important consequences for the review of the balance
of the award
– it being accepted (because the findings are reasonable, not
necessarily right) that it was inappropriate for
the instruction to
have been issued to the shop steward and that it was bound to
miscarry; that the rationale for the instruction
was without merit
and that the decision to cancel the Saturday overtime shift was
mala
fide
;
and that confusion reigned supreme on the Saturday. This then is the
background against which the ensuing events, and the commissioner’s
findings in relation thereto, stand to be analysed
[48]
Turning
then to the reasonableness or otherwise of the commissioner’s
findings quoted in paragraph 37 above to the effect
that there was no
intimidation on the Saturday, my assessment of the findings is as
follows:
a)
All the
quoted paragraphs from the award (save for paragraphs 5.50, 5.55,
5.56 and 5.62, which I deal with separately below) deal
by and large
with video 1 – and the commentary thereon provided by Mr Welman
and NUM witnesses. Having evaluated video 1
(see paragraph 26(a)
above), I am of the view that the commissioner’s conclusion
that it does not establish that the WBHO
workers marched out (or
chased out, as the company’s witnesses put it) the
sub-contractors from the site or intimidated them
in the process, is
reasonable. The same applies to the commissioner’s reasoning
and each of his sub-findings, which are all
supported by plausible,
material evidence. In truth, video 1 did little to advance the
company’s case.
b)
In relation
to paragraph 5.50 of the award, the commissioner incorrectly records
Mr Williams’ version. He did not testify
that he felt
threatened in the tunnel / passage, but rather that he felt threated
later on when he went to the entrance gate with
Mr Nel (when some
workers were carrying bricks). But, in itself, this error is not
material.
c)
In relation
to paragraphs 5.55 and 5.56 of the award, the findings accord with
the commissioner’s rendition of Mr Welman’s
re-examination (not contained in the transcript) reproduced in
paragraph 25 above. In the circumstances, the findings are not
unreasonable.
d)
In relation
to paragraph 5.62 (dealing with videos 2 and 3), while it is so that
Mr Welman may be accused of having posed the equivalent
of leading
questions, the commissioner may well have misdirected himself in
ignoring what the interviewees said on this basis alone.
But, again,
this is not material because, in the absence of the interviewees
having given evidence for the company at the arbitration
and been
subjected to cross-examination, the commissioner could, in any event,
have reasonably disregarded what they said in the
videos (which is
what he did).
[49]
The above
notwithstanding, it does seem to me that the manner in which the
commissioner determined the issue of whether the individual
respondents engaged in intimidation on the Saturday is open to
criticism in three main respects.
a)
Firstly,
the commissioner focused extensively on video 1, to the exclusion of
the eyewitness testimony of Messrs Kotze, Williams
and Welman, who
all testified that the WBHO workers chased the sub-contractors out of
the site. (This also appears from paragraph
5.75 of the award quoted
in paragraph 39 above.)
b)
Secondly,
the commissioner focused extensively on whether the sub-contractors
were intimidated, to the exclusion of an inquiry (or
a proper one)
into whether management
[18]
was intimidated (this also being evident from paragraph 6.1 of the
award quoted in paragraph 39 above). Of the members of management
who
testified, Mr Kotze did not contend that he was intimidated; Mr
Williams contended that he was threatened at the time of being
told
by Mr Madudijabe to leave the site and upon doing so together with
Messrs Kotze and Nel; and Mr Welman appears to have contended
in
re-examination that he was threatened.
c)
Thirdly,
the commissioner did not consider the events at the entrance gate
after the WBHO workers and the sub-contractors had left
the site,
which required as assessment of, in particular, the evidence of Mr
Faria.
[50]
While it
can fairly be said that the commissioner misdirected himself in these
three respects, as the authorities make clear, the
question is
whether – despite such misdirections – the conclusion
reached by the commissioner that the dismissal of
the individual
respondents was substantively unfair is, nevertheless, capable of
reasonable justification. Put differently, is
the distorting effect
of the misdirections the production of an unreasonable outcome, or is
the outcome reasonable, despite the
misdirections? In addressing this
question, I deal with each of the three misdiretions in turn below.
[51]
In relation
to the first misdirection, while the commissioner did not consider
this particular evidence, given that it is materially
at odds with
video 1, it could thus reasonably have been rejected.
[52]
In relation
to the second misdirection, as dealt with above, the commissioner’s
rejection of Mr Welman’s evidence of
intimidation given under
re-examination was not unreasonable. That leaves the evidence of Mr
Williams. The first leg of his evidence
about feeling intimidated at
the time of being told by Mr Madudijabe to leave the site, could
reasonably be rejected insofar as
he sought to attribute this to all
of the individual respondents. Likewise, the second leg of Mr
Williams’ evidence about
being intimidated upon leaving the
site together with Messrs Kotze and Nel, could reasonably be rejected
on the basis that it is
entirely in conflict with the evidence of Mr
Kotze, who made no mention of any intimidation at this point.
[53]
The third
misdirection is, however, more problematic.
a)
On the
evidence presented, WBHO workers gathered outside the entrance gate
for at least some two hours (from after 07h10 to about
09h00, on Mr
Motsatse’s version). For at least a portion of this time, WBHO
workers blocked the entrance and thus prohibited
sub-contractors from
entering the site. In the process, WBHO workers carried what I
loosely refer to as weapons, and chanted words
to the effect that
they “
do
not want rats
”.
This was clearly intimidatory, and struck fear into at least Mr Faria
and his work crew. At the same time, restraint was
demonstrated by
WBHO workers who (in close proximity) allowed three of Mr Faria’s
employees to access the site to collect
overalls, and three of the
company’s managers (Messrs Kotze, Nel and Williams) to egress
the site – all of this without
incident. And by the time the
SAPS arrived, calm had been restored, with WBHO workers cooperating
with the SAPS – entering
the site and then leaving on the bus
without delay.
b)
During the
arbitration, NUM did little to rebut the adverse facts traversed
above, with it seemingly having put its eggs in the
basket of the
company having been unable to identify who exactly participated in
the intimidation of sub-contractors at the entrance
gate. To my mind,
this is misconceived. In the peculiar circumstances of this matter,
the company establish at least a
prima
facie
case that all the individual respondents were present outside the
entrance gate at the material times and were party to the events
that
occurred there. If any of the individual respondents wished to
contest this, it was up to them to do so. None of them did
so.
Instead, it was accepted that the evidence of NUM’s witnesses
(Messrs Moagi, Mvelase and Motsatse) would stand as the
evidence of
all of the individual respondents, with none of NUM’s witnesses
having disputed their presence and participation
in the events at the
gate.
c)
In these
circumstances, a reasonable commissioner would, in my view, have
found that the individual respondents were guilty of having
intimidated sub-contractors outside the entrance gate. It follows
that I consider the commissioner’s award that “
the
WBHO workers did not intimidate the sub-contractors
”
(see paragraph 6.1 of the award quoted in paragraph 39 above) to be
unreasonable.
d)
But, as
dealt with above, this, in itself, does not render the commissioner’s
conclusion that the dismissal was substantively
unfair and award of
reinstatement reviewable. In order to succeed with a reasonableness
review, the company must go further and
establish that, if the
commissioner had found the individual respondents guilty as he ought
to have, he could not reasonably have
avoided finding that the
sanction of dismissal was fair and appropriate. Because if he could
have, then the outcome of the award
– a finding of substantive
unfairness and reinstatement – is reasonable, and thus not
reviewable.
e)
The
question then is this – had the commissioner found the
individual respondents guilty in the terms described above, could
he
reasonably have found that dismissal was not warranted? To my mind,
the answer is in the affirmative. Although the misconduct
of the
individual respondents was serious, there are material mitigating
factors in their favour. To begin with, as reasonably
(not
necessarily correctly) found by the commissioner: (i) it was
inappropriate for the shift cancelling instruction to have been
issued to the shop steward and it was bound to miscarry; (ii) the
rationale for the instruction was without merit and the decision
to
cancel the shift was
mala
fide
;
and (iii) confusion reigned supreme on the Saturday. Each of these
factors is compelling. In addition, the individual respondents
had
just returned from a protracted protected strike and were, no doubt,
suffering the financial consequence thereof, with the
cancellation of
the overtime shift being a blow. The fact that sub-contractors were
allowed to work – some of whom were performing
the work of the
individual respondents – and that overtime might have been
perceived as having been put on hold indefinitely,
would also have
understandably perturbed the individual respondents. Also mitigatory
is the fact that the individual respondents
exercised restraint in
allowing some entry to and egress from the site, and cooperated with
the SAPS. There was also no evidence
of a prior disciplinary record.
When all these mitigating factors (some being unique and peculiar)
are balanced up against the
severity of the misconduct, it seems to
me that a reasonable decision-maker could readily have come to the
conclusion that the
sanction of dismissal was too harsh, and
accordingly that the dismissal was substantively unfair.
[19]
And for as long as that is the case, the commissioner’s finding
of substantive unfairness and award of reinstatement (albeit
for
different reasons) was not unreasonable, and thus not reviewable.
f)
That said,
if they had been found guilty of the intimidation of sub-contractors
(as they ought to have been), I do not believe that
a reasonable
commissioner would have reinstated the individual respondents
retrospectively to their date of dismissal, i.e. with
full back-pay.
Instead, as a mark of his disapproval of the individual respondents’
misconduct, a reasonable commissioner
would have reinstated them
without back-pay.
[54]
Turning to
the balance of the commissioner’s
ratio
,
given the findings that I have made above, it is unnecessary to deal
with the commissioner’s findings on derivative misconduct
quoted in paragraph 38 above, which are somewhat confusing.
Other grounds of
review
[55]
The company
advanced two other grounds of review. The first is that the
commissioner miscalculated the back-pay awarded to the individual
respondents by effectively doubling their earnings. The second is
that the commissioner was guilty of a reasonable perception of
bias
arising from the manner in which he conducted himself during the
arbitration.
[56]
Given the
order that I intend to make, the first mentioned ground need not be
dealt with. Insofar as the second ground is concerned,
it was not
advanced with much vigour in the company’s heads of argument,
and was not mentioned at all in its written address
to the court. In
circumstances where there are significant portions of the transcript
missing, it is not possible for me to undertake
a full assessment of
the commissioner’s conduct. However, on what I have read, I
have not detected any conduct on the part
of the commissioner that
would sustain this ground of review, which is thus rejected.
Summary
[57]
In summary:
a)
The
commissioner’s finding that the individual respondents were not
guilty of intimidating sub-contractors was unreasonable.
They were
guilty of intimidating sub-contractors while outside the entrance
gate after they (i.e. the individual respondents) had
left the site.
b)
Despite
this, the commissioner’s decision that the dismissal of the
individual respondents was substantively unfair and award
of
reinstatement stands, because it could reasonably have been found
that the sanction of dismissal was unfair in the peculiar
circumstances of this matter. This would have justified the aforesaid
decision and award.
c)
But the
commissioner’s award of back-pay stands to be reviewed and set
aside because, in circumstances where the individual
respondents were
guilty of intimidating sub-contractors, a reasonable decision-maker
would have deprived them of back-pay as a
mark of disapproval of
their misconduct.
Order
[58]
In all the
circumstances, the following order is made:
a)
The review
application succeeds only in relation to the issue of back-pay;
b)
The relief
granted by the first respondent in paragraphs 6.2 to 6.6 of his
arbitration award is replaced with an order that the
third respondent
employees are reinstated with effect from the date of the award (4
November 2014) and not the date of their dismissal
(8 November 2013);
c)
There is no
order as to costs.
________________________________
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the applicant:
Adv W Hutchinson (instructed
by Fluxmans Inc)
For the third
respondent: Adv E Masombuka (instructed by Finger
Phukubje Attorneys)
[1]
Incorrectly spelt Welma in the
award.
[2]
Although the transcript contains 75
pages of his cross-examination.
[3]
See in this regard,
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v
Commission for Conciliation, Mediation & Arbitration
&
others
(2003) 24
ILJ
931 (LAC). I should mention that the review record contains a
transcription of the commissioner’s bench notes, but it ends
at the conclusion of the evidence of Mr Faria. It thus does not
cover the missing evidence.
[4]
This appears to relate to a
sub-contractor known as RMS.
[5]
Head of Department of Education v
Mofokeng & Others
(2015) 36
ILJ
2802 (LAC) (“
Mofokeng
”)
at para 32.
[6]
Mofokeng
at para 33.
[7]
Sidumo & another v Rustenburg
Platinum Mines Ltd & others
(2007) 28
ILJ
2405 (CC) at para 110.
[8]
Sidumo
at paras 109 and 119.
[9]
Anglo Platinum (Pty) Ltd (Bafokeng
Rasemone Mine) v De Beer & others
(2015) 36
ILJ
1453 (LAC) at para 12.
[10]
Hillside Aluminium Ltd v Kuppusami
and Others
[2014] ZALCD 62
at para 15.
[11]
Herholdt v Nedbank Ltd (Congress
of SA Trade Unions as Amicus Curiae)
(2013) 34
ILJ
2795 (SCA) at para 13.
[12]
Anglo Platinum
at para 11.
[13]
Goodyear SA (Pty) Ltd v CCMA &
others
(2004) 1 BLLR 7
(LAC) at para 6.
[14]
Shoprite Checkers (Pty) Ltd v
Ramdaw NO & others
(2001) 22
ILJ
1603 (LAC) at para 101.
[15]
See in this regard,
Goodyear
at para 6.
[16]
Fidelity Cash Management Service v
Commission for Conciliation, Mediation & Arbitration &
others
(2008) 29
ILJ
964 (LAC) at para 102.
[17]
Award: paras 4.225 - 4.227.
[18]
It will be recalled that the charge
referred to the “
intimidation
of sub-contractors and management
”.
[19]
This is not to say that if I was
called up to decide upon the penalty of dismissal, I would have come
to this conclusion. What
I am saying is that such a conclusion falls
within a range of reasonable decisions.