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[2018] ZALCJHB 201
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NEHAWU obo Skhosana and Others v Department of Health: Gauteng (JS903/15) [2018] ZALCJHB 201 (24 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS903/15
In the matter between:
NEHAWU OBO SKHOSANA
AND OTHERS
Applicant
and
DEPARTMENT OF HEALTH:
GAUTENG
Respondent
Heard:
5
to 8
February
2018
Delivered:
24 May 2018
Summary:
Dismissal for participating in an
unprotected
strike – appropriateness of the sanction – shop
stewards not immune from discipline for misconduct
committed during
an unprotected strike.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
The
applicant has instituted these proceedings on behalf of its members
who were dismissed by the respondent mainly for participating
in an
unprotected strike and related acts of misconduct. It seeks an order
of reinstatement. The respondent is defending its decision.
[2]
For
convenience, the particulars of the applicant employees are as
follows:
1.
Ms Thoko
Skhosana (Ms Skhosana), a Chief Administration Clerk employed on 15
April 1994;
2.
Mr Jimmy
Masilela (Mr Masilela), an Administration Clerk employed on 15 April
1994;
3.
Mr Vusi
Boikhutso (Mr Boikhutso), a Groundsman employed on 15 September 1994;
4.
Ms
Precious Mdhluli (Ms Mdhluli), an Administration Clerk employed on 12
August 1992;
5.
Ms Aurelia
Mahlangu (Ms Mahlangu), an Administration Clerk employed on 25 August
1992;
6.
Ms
Sibongile Nhlengethwa (Ms Nhlengethwa), a Cleaner employed on 26
October 1992;
7.
Mr Jeremiah
Tshabalala (Mr Tshabalala), a Store Assistant employed on 1 May 1993;
8.
Mr Solomon
Nkomo (Mr Nkomo), an Administration Clerk employed on 1 December
1998;
9.
Aubrey
Visagie, a Cleaner employed on 14 April 2008; and
10.
Ms Nomsa
Vilakazi, a Cleaner employed on 1 June 2006.
[3]
Mr Nkomo
was initially represented by the applicant. However, he subsequently
launched his own application and distanced himself
from the other
applicant employees. Mr Nkomo was assisted by a yet to be registered
trade union called Bridge of Hope Union. They
allegedly briefed a
firm of attorneys to appear on his behalf. At the commencement of
these proceedings, Mr Nkomo’s legal
representative disappeared
in the corridors of the Court. It was only the next day that an
official from Bridge of Hope appeared
in Court and mentioned that the
attorney they had briefed had a personal emergency to attend to and
was no longer available. The
details of the attorney were never
divulged. The same union official disappeared without trace.
[4]
It became
apparent that Mr Nkomo’s union and legal representatives had
bailed out on him. I requested him to indicate whether
he would
prefer that his matter be separated from the rest of the applicant
employees in order to allow him time to seek legal
representation. He
preferred to abandon his individual claim and re-join the applicant’s
case. The applicant had no problem
with including Mr Nkomo as part of
its case. Similarly, the respondent had no qualms with the turn of
events.
Issues
for determination
[5]
The
applicant is only challenging the substantive fairness of the
applicant employees’ dismissal. The applicant has since
abandoned its claim that the applicant employees did not participate
in an unprotected strike. Accordingly, there are two issues
for
determination; firstly, whether the respondent applied disciplinary
measures inconsistently, and secondly, whether the dismissal
was an
appropriate sanction.
Background
[6]
The
applicant employees were all employed at OR Tambo Memorial Hospital
(the hospital), a secondary healthcare facility located
in Boksburg,
Ekurhuleni in Gauteng Province. It provides a 24-hour healthcare
services to the underprivileged, critical and chronically
ill
patients. Also, it is a referral centre for the surrounding health
institutions such as clinics, district hospital and community
health
centres.
[7]
On
Thursday, 22 October 2009, there was an incident concerning Ms
Matshidiso Mokoena (Ms Mokoena), who had been appointed and placed
as
an intern. The applicant and its members were not happy with her
appointment and placement. There were allegations that she
had
falsified her personal details and colluded with one of the officials
at the hospital in order to be appointed. The applicant’s
shop
stewards reported these allegations to Dr Naidoo, the Chief Executive
Officer of the hospital. Dr Naidoo agreed to release
Ms Mokoena and
together with the shop stewards they escorted her out of the
premises.
[8]
On
Saturday, 24 October 2009, Ms Mokoena returned to the hospital to
fetch her personal belongings. The applicant’s members
were not
happy to see her and called Ms Nhlengethwa, one of the applicant’s
shop stewards, who in turn reported the incident
to Ms Mdhluli, the
applicant’s regional shop steward. Ms Mdhluli contacted Dr
Naidoo who agreed to meet with the shop stewards
on Monday, 26
October 2009. Ms Mokoena was again escorted out of the hospital
premises by security.
[9]
On Monday,
26 October 2009, a group of about 60 employees, most of whom were
applicant’s members, stopped working and approached
the
hospital management’s offices. They demanded answers on Ms
Mokoena’s issue. Dr Naidoo and his management team were
escorted out of the hospital premises. The patients were told to
return home as no services would be provided.
[10]
Dr Naidoo
and the management team returned to the hospital the next day,
escorted by the police. The applicant employees were charged
and
dismissed for participating in an unprotected strike and various
transgressions emanating from the unprotected strike incident.
[11]
The
applicant challenged its members’ dismissal at the
Public
Health and Social Development Sectoral Bargaining Council (the
PHSDSBC).
It
disputed that the incident that led to their dismissal amounted to an
unprotected strike. Commissioner Serero issued a ruling
that the
PHSDSBC
had no jurisdiction. The
ruling was successfully reviewed and set aside. The matter was
remitted back to the
PHSDSBC
.
The second ruling by commissioner Ferreira confirmed that the
PHSDSBC
had no jurisdiction to
arbitrate that matter as the applicant employees were dismissed for
participating in an unprotected strike.
In these proceedings, the
applicant conceded that this Court has jurisdiction since the
dismissal of the applicant employees emanated
from an unprotected
strike and related incidences.
The
respondent’s case
[12]
The
respondent led the evidence of the following witnesses:
1.
Dr Naidoo;
Chief Executive Officer.
2.
Ms Precious
Molefe (Ms Molefe), Chief Administration Clerk;
3.
Mr Emmanuel
Ngcobo (Mr Ngcobo), Director: Supply Chain Management at that time;
and
4.
Ms Lindiwe
Ndlovu (Ms Ndlovu), Executive Manager: Administration at that time.
5.
Mr Julius
Sadiki, Buyer who has since left. His evidence was irrelevant.
[13]
The crux of
the hospital’s case is that the applicant employees were part
of a group of employees who participated in an unprotected
strike. Dr
Naidoo testified that the applicant employees where easily identified
as they played a prominent role during the strike.
On 26 October
2009, he was in his office preparing for a hand over round with the
Senior Executive Management when he was informed
that Ms Skhosana was
on a loudhailer next to the Patient Admission Area urging patients to
leave the hospital premises as there
was no management and healthcare
services. This was subsequently confirmed by Dr Anastasia
Christoforou, Senior Clinical Manager
and Mrs Thoko Moloko, Deputy
Nursing Manager.
[14]
Soon
thereafter, a group of striking employees approached the management
offices. Mr Masilela, Ms Skhosana, Ms Mdhluli and Mr Boikhutso
(the
key shop stewards), stormed into Dr Naidoo’s office. The
purpose was not to discuss any issue but to demand that Misses
Ndlovu
and Molefe be dismissed. When Dr Naidoo refused, the key shop
stewards demanded that all the members of the hospital management
should vacate the hospital premises with immediate effect or would be
forcefully removed or ‘caterpillared’. They made
it clear
that ‘there would be blood on the floor’ if their demand
was not acceded to. Dr Naidoo was prevented from
making calls.
[15]
He gave an
ultimatum to the key shop stewards to call off the unprotected strike
and return to work but they refused to do so. They
continued
harassing him and the other Executive Managers until they acceded to
their demand.
[16]
Thereafter,
all the Executive Managers and Middle Managers who were present were
frog-marched through the Patient Admission Area
situated in the
Administration Block to the garage where some parked their motor
vehicles. The striking employees damaged the garage
gate as they
escorted the hospital management out of the premises through the main
entrance. Theirs cars were banged and insults
hailed at them on their
way out. The hospital management lingered at the visitors’
parking outside the premises. In effect,
the hospital was managed
from the parking area that day.
[17]
The
intervention by the respondent’s regional office did not bear
any fruit. The applicant’s members, led by the
key shop
stewards, were not indulgent and harassed Mr Paul Musa from the
respondent’s Labour Relations Directorate. At about
15:00 the
hospital management was released to go home. The next day they
entered the hospital premises under escort by the
police.
[18]
During
cross examination, Dr Naidoo was adamant that, given the fact that
the hospital provides an essential service, interruption
of
administration and cleaning services would have adverse effect to the
provision of health care to patients. Also, the conduct
of the key
shops stewards in his office was abusive and aggressive to the extent
that they feared for their lives. Mr Masilela
shook Dr Naidoo’s
chair, refused him to allow him to make calls and threatened that
there would be blood on the floor if
they (hospital management)
refused leave the premises. Mr Boikhutso, on the other hand,
threatened to use a caterpillar to remove
the Executive Management.
In the end, the key shop stewards were acting in cahoots in insulting
and Executive Management.
[19]
Dr Naidoo’s
evidence was corroborated by Ms Ndlovu, in so far as the incident
that took place in his office. All the respondent’s
witnessed
confirmed the incidents that took place as they were escorted.
[20]
Ms Molefe
testified that she was in a meeting in Ms Ndlovu’s office,
situated not far from Dr Naidoo’s. In attendance
was Mr Ngcobo,
amongst others. It was the applicant employees who were leading the
striking employees who were singing insulting
songs and one of the
songs was directed at her in person. They demanded that she and Ms
Ndlovu should leave the hospital premises.
All who were in the
meeting were frog-marched out of the hospital premises. These
incidents were confirmed by Mr Ngcobo.
[21]
Ms Ndlovu
testified that the cleaning component was essential to patient care
without which disease and infection would be prevalent
causing harm
and death to patients and the hospital being sued. The hospital
management was insulted and humiliated by the striking
employees as
led by the key shop stewards. They all feared for their lives. Mr
Masilela wrote a letter to the Labour Relations
Personnel, demanding
that the hospital management should not be allowed back into the
premises. The applicant employees were the
only ones that could be
identified amongst that crowd because they played a leading role.
The
applicant’s case
[22]
The
applicant called only three witnesses (Mr Tshabalala, Mrs Mariam
Mtshweni (Mrs Mtshweni) and Ms Buhle Sibisi (Ms Sibisi).
[23]
Mr
Tshabalala testified that he was never part of the group that
participated in the unlawful strike. He had been identified as
one of
the striking employees because he was on the way to deliver
medications to the wards and met the crowd next to the admission
area. He conceded under cross examination that he did not testify
during the disciplinary hearing.
[24]
Ms Mtshweni
testified that she is the one who saw Ms Mokoena on 24 October 2009.
She then informed Ms Nhlengethwa. The workers were
incensed by her
presence at the hospital. She conceded under cross examination that
there was nothing untoward with Ms Mokoena’s
presence since she
had authority to collect her personal belongings. However, it was her
presence that triggered the strike.
[25]
Ms Sibisi
testified that she was part of the striking employees but still in
the employ of the hospital. She testified that Ms Ndlovu
told her
that the reason she was not identified as one of the striking
employees and dismissed is because she, Ms Ndlovu, knew
her mother.
However, she conceded under cross examination that this version was
never put to Ms Ndlovu. She was also adamant that
it was the members
of the applicant who instigated the strike and the shop stewards
intervened in order to defuse the situation
as the striking employees
were threatening the hospital management. She also conceded that the
striking employees were singing
derogative songs which according her
were struggle songs that are typified by insults.
Legal
principles
[26]
The
applicant concedes that the conduct of its members on 26 October 2009
constitutes an unprotected strike. By the same token,
it disputes
that its members were rendering essential services. Section 64 of the
Labour Relations Act (‘LRA’)
[1]
provides:
‘
(1)
Every employee has the right to strike and every employer has
recourse to lock-out if –
(a)
the issue in dispute has been
referred to a council or to the Commission as required by this Act,
and –
(i)
a certificate stating that the
dispute remains unresolved has been issued; or
(ii)
a period of 30 days, or any
extension of that period agreed to between the parties to the
dispute, has elapsed since the referral
was received by the council
or the Commission; and after that –
(b)
in the case of a proposed
strike, at least 48 hours’ notice of the commencement of the
strike, in writing, has been given
to the employer, unless –
(i)
the issue in dispute relates to
a collective agreement to be concluded in a council, in which case,
notice must have been given
to that council; or
(ii)
the employer is a member of an
employers’ organisation that is a party to the dispute, in
which case, notice must have been
given to that employers’
organisation; or
(c)
in the case of a proposed
lock-out, at least 48 hours’ notice of the commencement of the
lock-out, in writing, has been given
to any trade union that is a
party to the dispute, or, if there is no such trade union, to the
employees, unless the issue in dispute
relates to a collective
agreement to be concluded in a council, in which case, notice must
have been given to that council; or
(d)
in the case of a proposed
strike or lock-out where the State is the employer, at least seven
days’ notice of the commencement
of the strike or lock-out has
been given to the parties contemplated in paragraphs (b) and (c).’
[27]
Section
65(1)(d)(i) of the LRA limits a right to strike by proscribing
persons engaged in an essential service from taking part
in a strike.
Section 213 of the LRA defines essential service as ‘a service
the interruption of which endangers the life,
personal safety or
health of the whole or any part of the population’.
[28]
On 1
September 1997, the Essential Service Committee (the ESC) designated
the services rendered by different units of the hospital
essential
services.
[2]
The services
declared essential included services in support of emergency health
services and the provision thereof the community
or part thereof,
nursing, medical and premedical. The designated support services
include catering, medical records, porter, reception,
laundry and
waste removal. In January 2016, the ESC dismissed the applicant’s
application to vary or rescind the 1997 determination.
[29]
Even though
the general cleaning service is not designated as essential, the
applicant’s witnesses conceded that its disruption
would have
dire consequences on patient care and health services.
Inconsistency
[30]
It is
common cause that the respondent did not pursue the other striking
employees. The applicant employees were the only ones identifiable
because they played a leading role during the strike and they
committed various acts of misconduct, so went the respondent’s
evidence.
[31]
The
applicant, on the other hand, disputes that the applicant employees
played a prominent role during the strike. Ms Sibisi testified
that
it was the ordinary members who started the strike. On 26 October
2009, they called the shop stewards to account for Mr Mokoena’s
presence at the hospital on 24 October 2009. The shop stewards
intervened in order to dissuade them from striking. There are serious
discrepancies in Ms Sibisi’s evidence. Although she testified
that she could easily identify all employees who participated
in the
strike, she could hardly recall who exactly were the shop stewards
she had seen escorting the hospital management. Also
she failed to
avail the list of the employees who participated in an unprotected
strike to the respondent or assist the applicant
to identify them as
part of its defence.
[32]
What is
clear from the respondent’s uncontested evidence is that the
key shop stewards led the unprotected strike. In the
process, they
committed acts of intimidation and forcefully removed the hospital
management from the premises. The other applicant
employees were
identified simply because they associated themselves with the key
shop stewards. Contrary to Ms Sibisi’s evidence
that the shop
stewards were protecting the hospital management, Mr Masilela, the
chairperson of the applicant’s branch at
the hospital, and his
deputies, addressed a letter dated 26 October 2009 to the
respondent’s labour relations office and
the contents are as
follows:
‘
RE:
REQUEST FOR CONTROL OF MOVEMENT
We kindly request you to give
directives to the security to control the movement of the following
officials who are on the alleged
misconduct till everything resolved
with the MEC:
1.
DR NAIDOO
2.
MS LINDI NDLOVU,
3.
MR NDUNYELAWA MS ELIZABETH
MOLEFE
NB: The following officials they
voluntarily left the institution,
1.
CHRISTOFOROW
2.
MATRON MOLOKO
YOUR ASSISTANCE IN THIS REGARD WILL BE
HIGHLY APPRECIATED.’
[3]
[33]
Clearly,
the contents of this letter corroborates the respondent’s case
that the hospital management was forcefully removed
and locked out
under the leadership of the key shop stewards. It is curious that the
timing of the strike coincided with the morning
management meeting as
testified by Dr Naidoo.
[34]
Tritely,
parity of treatment in the circumstance of an unprotected strike
entails that disciplinary rules should be applied
consistently and
like cases should be treated alike.
[4]
Item 3(6) of the LRA
Code of Good Practice: Dismissal (‘the Code’)
provides:
‘
The employer should apply the
penalty of dismissal consistently with the way in which it has been
applied to the same and other
employees in the past, and consistently
as between two or more employees who participate in the misconduct
under consideration.’
[35]
Employees
participating in an unprotected strike should accordingly be treated
similarly when it comes to discipline and sanction.
There
is one caveat, though
;
consistency is an element of disciplinary fairness and is not a rule
unto itself.
[5]
In
SACAWU
and Others v Irvin & Johnson Ltd,
[6]
the Labour Appeal Court (the LAC) stated:
‘‘…
In my view too
great an emphasis is quite frequently sought to be placed on to the
“principle” of disciplinary consistency,
also called the
“parity principle”.. There is really no separate
“principle” involved. Consistency is simply
an element of
disciplinary fairness… Discipline must not be capricious. It
is really the perception of bias inherent in
selective discipline
which makes it unfair. Where, however, one is faced with a large
number of offending employees, the best that
one can hope for is
reasonable consistency. Some inconsistency is the price to be paid
for flexibility, which requires the exercise
of a discretion in each
individual case. If a chairperson conscientiously and honestly, but
incorrectly, exercises his or her discretion
in a particular case in
a particular way, it would not mean that there was unfairness towards
the other employees. It would mean
no more than that his or her
assessment of the gravity of the disciplinary offence was wrong. It
cannot be fair that other employees
profit from that kind of wrong
decision.
In a case of a
plurality of dismissals, a wrong decision can only be unfair if it is
capricious, or induced by improper motives
or, worse, by a
discriminating management policy… Even then I dare say that it
might not be so unfair as to undo the outcome
of other disciplinary
enquiries. If, for example, one member of a group of employees who
committed a serious offence against the
employer is, for improper
motives, not dismissed, it would not, in my view, necessarily mean
that the other miscreants should escape.
Fairness is a value
judgment. It might or might not in the circumstances be fair to
reinstate the other offenders. The point is
that consistency is not a
rule unto itself’
.
(Emphasis added)
[36]
In the
present case, the applicant employees were the only employees that
the respondent’s witnesses could identify among
a group of
about 60 striking employees. The respondent’s evidence that the
situation had degenerated into rowdy, hostile
and intimidating, hence
its witnesses could not identify all the striking employees, was
never challenged.
[37]
Messrs
Tshabalala and Nkomo were identified by Ms Ndlovu despite disputing
that they were part of the strike. Ms Ndlovu testified
that Messrs
Tshabalala, Nkomo, Visagie and Misses Mahlangu and Vilakazi, even
though they were not shop stewards, they associated
themselves with
the shop stewards and were conspicuous as they played some role in
signing and swearing at the hospital management.
The rest of the shop
stewards were identified by all the respondent’s witnesses as
instigators and leaders of the strike.
That evidence stands
unchallenged.
[38]
The
applicant, despite having the details of the other striking
employees, failed to come forward with their identity during the
disciplinary hearings nor at any other time before these proceedings.
Nine years later, Ms Sibisi opportunistically identified
herself as
one of the striking employees and also claimed to have knowledge of
other striking employees. As correctly conceded
by Ms Sibisi, it is
typical that employees would not voluntarily identify themselves as
transgressors, especially within the context
of a collective
misconduct, for fear of being dismissed. However, there is nothing
sinister or untoward in pursuing the applicant
employees as they had
been identified as transgressors. Notably, there is no evidence that
the respondent acted capriciously or
was induced by improper motives
when it identified the applicant employees.
[39]
Therefore,
the applicant employee’s claim that discipline was
inconsistently applied is untenable.
Appropriateness
of the sanction
[40]
Item, 6(1)
of the Code provides that participation in an unprotected strike
constitutes misconduct. Yet , as is the case with all
other forms of
misconduct, it does not justify dismissal as a matter of course.
[7]
In
SACCAWU
obo Bonolo Mokebe and 71 Others v Pick ń Pay Retailers,
[8]
relied
on by the applicant, the LAC referred with approval to the judgment
in
Hendor
Steel Supplies v National Union of Metalworkers of SA and Others,
[9]
where the sanction of dismissal of employees who embarked on an
unprotected strike for seven weeks was found to be to be
disproportionate
to the misconduct and accordingly unfair. The LAC
stated:
[10]
‘
[34]
The Court in
Hendor
held as follows in relation to the principle of proportionality:
‘
Dismissal is manifestly the
sanction of the last resort (WG
Doney
(Pty) Ltd v National Union of Mineworkers of SA
(1999) 20 ILJ 2017 (SCA) at paragraph 18). Hence there is a need to
examine the arguments of both parties as to the matter and
conduct of
the strike to test whether dismissal was proportional to the
misconduct.’
It went on to hold that:
‘
In summary, the use of the most
extreme sanction, dismissal in this case was manifestly
disproportionate to the "misconduct"
of the second and
further respondents.’
[35] The
principle that was established in
Hendor
is not that the
dismissal of employees because they were on a short duration strike
will inevitably be found to be disproportionate
and thus
substantively unfair. Rather, the principle established there is that
when determining whether the dismissal of striking
employees is
proportional to the misconduct, a court must examine the conduct of
both the employer and employees “as to the
matter and conduct
of the strike”.
[36]
This Court has, in the past, confirmed the sanction of dismissal in
relation to employees who
had participated in a short duration
strike.
National Union of Metalworkers of South Africa (NUMSA) v
CBI Electric African Cables
, (CBI) is one such case where it was
found that the dismissal of employees, who had engaged in a two-hour
strike (while on a final
written warning) in response to the employer
short paying them their wages, was substantively fair because the
employee’s
decision to strike was:
‘
[D]eliberate and calculated. It
undermined the process of collective bargaining as a tool to resolve
industrial disputes. When [the
employees] reported for their shift
they were appraised of the nature of the problem regarding short
payment of their wages and
were told that it was being attended to by
the respondent’s management. They were told to report for their
shift and warned
that if they failed to do so they faced the risk of
dismissal. They were given an ultimatum which they ignored. They
decided to
walk off at 22h00 to show solidarity with the day shift.
Their collective decision to walk off at 22h00 was taken before they
filed
any grievance. There was no attempt at all on their part to
comply with the provisions of the Act regarding the handling of
grievances.
The employee’s contention that they were justified
in leaving their shift early because of the [employer’s]
failure
to pay them correctly, is accordingly rejected.’’
[41]
In the
present case, the unprotected strike lasted for almost the whole day.
There was no attempt to comply with the provisions
of the LRA or
discuss the grievances with the hospital management. Despite Ms
Sibisi’s evidence that the shop stewards were
not part of the
strike but were trying to stop the group of employees from attacking
the hospital management, all the positive
facts and the respondent’s
undisputed evidence points otherwise.
[42]
All the
applicant employees were found guilty of the following charges:
42.1
Charge one
– participating in an unprotected and unlawful strike.
42.2
Charge two
– singing next to the Admission Area and Administration
Department, urging patients to leave the hospital and interrupting
the Executive and Administration management meetings.
42.3
Charge
three – forcefully removing management from the hospital.
[43]
It is
common cause that a group of about 60 employees participated in the
strike, chanting insulting songs next to the Admission
Area and
Administration Department. However, it was only the key shop stewards
who took the centre stage. The respondent’s
evidence also
locates them in Dr Naidoo’s office where they interrupted the
Executive Management meeting and committed various
acts of
misconduct, including forcefully removing the hospital management
from the premises.
[44]
To my mind,
since all other employees who participated in the unprotected strike
could not be identified and be brought to book,
the hospital could
not justify the dismissal of the applicant employees in respect of
charge 1. A less drastic sanction could have
sufficed in the
circumstances. Dr Naidoo conceded under cross examination that, even
though the hospital services were interrupted,
there were no
fatalities as a result of the unprotected strike.
[45]
I now turn
to the acts of misconduct committed by individual applicant employees
during the unprotected strike.
[46]
With regard
to charges 2 and 3, there was no evidence linking Mr Tshabalala, Ms
Nhlengethwa, Mr Nkomo, Ms Vilakazi, Mr Visagie and
Ms Mahlangu to
charge to these charges. Even though they were part of the group of
employees, they were following their leaders,
the key shops stewards.
Ms Molefe testified that Ms Skhosana and Mr Boikhutso came to Ms
Ndlovu’s office where they were
holding a meeting and went
outside to tell others that she was in. They then proceeded to Dr
Naidoo’s office and when they
come back the key shop stewards
demanded that all of the managers who were in Ms Ndlovu’s
office to move out as well.
[47]
Clearly,
the key shop stewards where in control of the whole incident; they
interrupted the hospital management meetings and forcefully
removed
the hospital management. I am not convinced that Mr Tshabalala, Ms
Nhlengethwa, Mr Nkomo, Ms Vilakazi, Mr Visagie and Ms
Mahlangu were
guilty of charges 2 and 3. Even if I am wrong, I am of the view that
their role was not instrumental as they were
part of the group of the
striking employees who were following their leaders, the key shop
stewards. Therefore, their conduct could
not have warranted a
sanction of dismissal.
[48]
Ms Mahlangu
was also found guilty of charge 6, i.e. banging hospital management
cars. Since she was a first offender with 17 years
of service,
dismissal was very harsh, I recon.
[49]
When it
comes to the key the shop stewards (Mr Masilela, Ms Skhosana, Mr
Boikhutso and Ms Mdhluli), they were collectively accused
of serious
acts of aggression and threats to the life and safety the Executive
Managers who were in Dr Naidoo’s office. The
respondent’s
undisputed evidence is that the hospital management acceded to the
demand to leave the premises because they
had to protect themselves
as the shop stewards were aggressive and not indulgent.
[50]
The key
shop stewards treated the Executive Management of the hospital in an
abusive and demeaning manner unprovoked. Dr Naidoo
had agreed to meet
with the shop stewards to discuss Ms Mokoena’s issue. Instead
of engaging in a meaningful discussion,
they frog-marched the
hospital management out of the hospital premises and locked them out
for the whole day. Ms Ndlovu testified
that they had to hand over
their office keys to Mr Masilela.
[51]
Clearly,
they were not concerned about the effect of their conduct to the
rendering of the essential services when they forcefully
took over
the hospital management. Dr Naidoo testified that they had to run the
hospital from the visitors parking for the whole
day.
[52]
Dr Naidoo
testified that he was always approachable and indulgent to the
applicant’s shop stewards. When confronted with Ms
Mokoena’s
issue, he did not hesitate to acceded to the shop steward’s
demand and released her in order to maintain
harmony. Therefore,
there was no justification for the key shop stewards’ their
behaviour on the day in question. They were
expected to display
leadership and engage the hospital management, given the parties
historical collective bargaining relationship,
but they dismally
failed. Oddly, not even a single key shop steward was willing to take
a stand and challenge the respondent’s
evidence.
[53]
The Courts
have tritely recognised that shop stewards do indeed enjoy some
indemnity from discipline for the conduct ancillary to
the exercise
of their functions as representatives of a union.
[11]
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.
[12]
[54]
In
NUM
and Others v Black Mountain Mining (Pty) Ltd
(Black
Mountain),
[13]
faced with a
similar situation, the court remarked as follows:
‘
It thus appears that the
legislature (and the LAC in
Adcock
Ingram supra
) recognizes
that there must be a balance between the right of shop stewards to
exercise their functions as representatives of a
union (and of its
members) and the right of employers to discipline shop stewards even
when exercising their duties as shop stewards
for acts of misconduct.
On the one hand it is thus recognized that employers cannot abuse
their position to badger shop stewards
into submission. On the other
hand, it is also recognized that employees who abuse their position
as shop stewards may be subjected
to disciplinary action by their
employers. The LAC further recognized that judges and arbitrators can
scrutinize such abuse. What
should also not be left out in the
equation is the fact that once negotiations end, the employment
relationship resumes. The “
anything
goes
”-approach can
therefore not be accepted at face value and employers must have the
right to take disciplinary action against
employees who brandish
weapons, threaten management or make false allegations of racism to
exert their will during negotiations.
It is, however, accepted that
employers are expected to tolerate a certain level of insolence on
the part of shop stewards and
even a degree of disrespectful
behaviour on the part of shop stewards especially during negotiations
during a strike which otherwise
may have been regarded as
unacceptable.
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.”
’
[55]
In
Adcock
Ingram Critical Care v CCMA
(Adcock),
[14]
referred to with approval in
Black
Mountain
,
the LAC upheld the dismissal of a shop steward who had uttered
threats directed at management during a meeting which was discussing
the possible end to a strike. Again in
Mondi
Paper Co Ltd v PPWAWU and Another
,
[15]
a shop steward was dismissed for deliberately disrupting a meeting
with management. The LAC remarked as follows:
‘
No doubt a shop steward should
fearlessly pursue the interests of the members he represents, and he
ought to be protected against
being victimized for doing so. However,
this is no license to resort to defiance and needless confrontation.
I do not agree with
the view of the court a quo that the fact that he
is acting in his capacity as a shop steward serves to ‘mitigate’
conduct which objectively is unacceptable. Notwithstanding the
position to which he has been elected, a shop steward remains an
employee, from whom his employer is entitled to expect conduct that
is appropriate to that relationship.’
[56]
In the
present case, I have seriously considered the fact that the key shop
stewards had 15 and 17 years of service respectively.
Also, all had a
clean disciplinary record. However, they have not been open with the
Court nor showed any remorse. The respondent’s
evidence on the
gross acts of misconducts remains unchallenged. That conduct cannot
be condoned. It is clear from the authorities
mentioned above that
the key shop stewards are employees and, like any other employee, are
bound by the rules of discipline. Therefore,
they could not be
allowed to do or say whatever they want with impunity. In this
instance, the key shop stewards threatened to
harm, verbally abused,
humiliated, fog-matched and locked out the Executive Management of
the hospital that renders essential services.
They even refused to
engage with the officials from the Regional Office.
[57]
Clearly,
they exceeded the acceptable bounds of robustness expected of shop
stewards within the context of collective bargaining.
In fact, the
key shop stewards impenitently shunned joint problem solving process
inherent in a collective bargaining relationship
and opted for
hooliganism. Regrettably, the sacrifice of courtesy and restraint at
the altar of strike related hooliganisms among
the trade union shop
stewards and members is becoming an order of the day. This Court must
begin to show its repulse at this conduct
as it does not only destroy
the trust relationship, but offends one of the core objects of the
LRA which is the creation of labour
peace through orderly collective
bargaining.
[16]
[58]
I’m a
persuaded that the key shop steward, other than charge 1, are guilty
of all the other charges, individually and collectively.
They,
essentially, incited other employees to join the unprotected strike,
urged patients to leave the hospital, interrupted of
the management
meetings, acted in an insolent manner, intimidated, verbally abused
and forcefully removed the hospital management.
[59]
In the
circumstances, I am of the view that the sanction of dismissal in
relation to the key shop stewards is merited.
Relief
[60]
The
applicant seeks the primary remedy of reinstatement. In
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others,
[17]
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.’
[61]
There is no
evidence that militates against reinstating Mr Tshabalala, Ms
Nhlengethwa Mr Nkomo, Ms Vilakazi, Mr Visagie and Ms Mahlangu.
In
deciding the date from which their reinstatement would run, I have
considered the fact that nine years have passed since the
dismissal
of the applicant employees. The delay is attributed to the applicant
as it persistently denied that the applicant employees
had
participated in an unprotected strike. It referred the matter to the
PHSDSBC
and refused to accept the
first jurisdictional ruling. Instead, it was challenged successfully
in this Court but was confirmed by
another commissioner in the second
jurisdictional ruling.
[62]
Accordingly,
I deem it just and equitable to order reinstatement of Mr Tshabalala,
Ms Nhlengethwa Mr Nkomo, Ms Vilakazi, Mr Visagie
and Ms Mahlangu with
a backdated period of 12 months.
Conclusion
[63]
It follows
that the dismissal of Mr Tshabalala, Ms Nhlengethwa, Mr Nkomo, Ms
Vilakazi, Mr Visagie and Ms Mahlangu is substantively
unfair. They
stand to be with a backdated period of 12 months.
[64]
On the
other hand, the dismissal of key shop stewards, Mr Masilela, Ms
Skhosana, Mr Boikhutso and Ms Mdhluli, is substantively fair.
[65]
To the
extent that I proceeded to deal with the allegations of misconduct
committed during the unprotected strike, which must ordinarily
be
adjudicated by the
PHSDSBC,
I do so in terms of
section 158(2)(b) of the LRA and, given the history of this matter,
it is also expedient.
[18]
Costs
[66]
Owing to
persisting relationship between the parties and the fact that both
are partially successful, I make no order as to costs.
[67]
In the
circumstances, I make the following order:
Order
1.
The
dismissal of Mr Masilela, Ms Skhosana, Mr Boikhutso and Ms Mdhluli is
substantively fair.
2.
The
dismissal of Mr Tshabalala, Ms Nhlengethwa Mr Nkomo, Ms Vilakazi, Mr
Visagie and Ms Mahlangu is substantively unfair.
3.
Mr
Tshabalala, Ms Nhlengethwa Mr Nkomo, Ms Vilakazi, Mr Visagie and Ms
Mahlangu are reinstated with a backdated period of 12 months
from the
date of this order.
4.
There is no
order as to costs.
___________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the
applicant:
Mr YF Saloojee
Instructed
by:
Thaanyane attorneys
For the
respondent:
Mr R Ram
Instructed
by:
MNS Attorneys
[1]
Act 66 of 1995 as amended.
[2]
Notice 1216 published in the Government Gazette 188276 dated 12
September 1997.
[3]
See page 201 of the respondent’s bundle.
[4]
Member of the Executive Council:
Department of Health, Eastern Cape Province v Public Health and
Social Development Sectoral Bargaining
Council and Others
[2016]
6 BLLR 621
(LC);
ABSA Bank
Ltd v Naidu
[2015] 1 BLLR
1
(LAC)
;
National Union
Metalworkers of SA v Haggie Rand Ltd
(1991)
12 ILJ 1022 (LAC);
Cape
Town City Council v Mashito and others
(2000)
21 ILJ 1957 (LAC);
SACCAWU
v Irvin & Johnson Ltd
(1999)
20 ILJ 2302 (LAC),
[4]
[1999] 8 BLLR741 (LAC).
[5]
See H Cheadle
at
al,
Strikes
and the Law
, LexisNexis
(2017) at pages 210 to 2011.
[6]
Supra
n
4 at para 29.
[7]
Item 6(1) provides, also, that ‘[t]he
substantive fairness of dismissal in these circumstances must be
determined in the
light of the facts of the case, including –
(a)
the seriousness of the
contravention of this Act;
(b)
attempts made to comply with
this Act; and
(c)
whether or not the strike was
in response to unjustified conduct by the employer.’
[8]
[2017] ZALCJHB 345 at paras 33-36.
[9]
(
2009)
30 ILJ 2376 (LAC).
[10]
Supra
at
paras 32-36.
[11]
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).
[12]
Adcock
at
para 15.
[13]
Black Mountain
at
paras 42 and 43
.
[14]
Adcock
supra
n 10.
[15]
(1994) 15 ILJ 778 (LAC)
at
780.
[16]
Section 1 of the LRA provides that
it’s
the
primary objects include
:
‘
(c)
to promote-
(i)
orderly collective bargaining;
(ii)
collective bargaining at
sectoral level;
(iii)
employee participation in
decision-making in the workplace; and
(iv)
the effective resolution of
labour disputes.’
[17]
[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.
[18]
Wardlaw v Supreme Mouldings (Pty)
Ltd
(2007) 28 ILJ 1042
(LAC) at paras 18 and 19.