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[2018] ZALCJHB 342
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Phora and Another v MEC Department of Health Gauteng (JS587/14) [2018] ZALCJHB 342 (12 October 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 587/14
In
the matter between:
KM
PHORA
First
Applicant
DM
TLADI
Second
Applicant
and
MEC:
DEPARTMENT OF HEALTH:
GAUTENG
Respondent
Heard:
11 June 2018
Delivered:
12 October 2018
Summary:
Dismissal for participating in an
unprotected
strike – inconsistent application of discipline.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
In these proceedings the first and second
applicants (Messrs Phora and Tladi) are challenging their dismissal
for participating
in an unprotected strike and related acts of
misconduct. They seek an order of reinstatement.
[2]
The issues for determination are as follows:
2.1 Whether the dismissal
of the applicants was substantively and procedurally fair;
2.2 Whether the
respondent was consistent in issuing a sanction of dismissal in
respect of participating in an unprotected strike;
2.3 Whether the
respondent complied with the Labour Relations Act
[1]
(LRA) Schedule 8 Code of Good Practice: Dismissal when it summarily
dismissed the applicants.
Background
[3]
The applicants were employed by the Department of
Health: Gauteng (the department) which is headed by the respondent as
the political
head. They were stationed at Masakhane Laundry and Cook
Freeze (Masakhane) in Pretoria.
[4]
On 5 August 2014, a group of about 84 employees
embarked on an unprotected strike. The strike was triggered by the
outcome of the
investigation on allegations that some employees were
involved in nepotism and selling of posts when recruiting new
employees.
It was reported to the grievant employees who called
themselves ‘the concerned Workers Group’ that their
allegation
could not be proven as none of the implicated employees
were found to have committed the alleged transgressions.
[5]
The department issued an ultimatum dated 8 August
2014. It was followed by a lockout invoked on 11 August 2014 and,
inter alia
, suspending
all the talks with employee leaders at Masakhane. On 17 August 2014,
the department and relevant trade unions (HOSPERSA,
PSA, NUPSAW and
NEHAWU) representing the striking employees concluded a settlement
agreement. In terms of the settlement agreement,
all the striking
employees, save for the applicants, were to receive final written
warnings for participating in an unprotected
strike and resume work
on 22 August 2014.
[6]
Clause 7 of the settlement agreement specifically
states that ‘the two summarily dismissed employees [the
applicants] will
not be allowed to enter the premises to resume
duties; they must follow due process. They remain dismissed.’
[7]
The applicants were summarily dismissed on 8
August 2014 but only became aware of their dismissal on 19 September
2014 as the letters
of dismissal were sent via registered post.
[8]
Mr Phora was dismissed for the following charges:
8.1 Blowing a whilst and
thereby inciting staff to leave their workplaces and for preventing
other workers to do their work, thereby
preventing hospitals to
render requisite health care; and
8.2 Participating in an
unlawful strike and further ignoring the ultimatum to return to work.
[9]
Mr Tladi, on the other hand, was dismissed for
the following charges:
9.1 Intimidating workers
to leave work and go on a strike;
9.1 Switching off the
iron machine, preventing other workers from doing their work, and
preventing hospitals to render requisite
health care; and
9.3 Participating in an
unlawful strike and further ignoring the ultimatum to return to
work.
Legal
principles and application
[10]
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’.
[11]
The
Essential Service Committee 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 to the community
or part thereof, nursing, medical and premedical. The designated
support services include catering, medical records, porter,
reception,
laundry
and waste removal. Even though the general laundry service is not
designated as essential, it is not disputed that its disruption
would
ordinarily affect the provision of health care services by hospitals.
Inconsistency
[12]
The department clearly chose to enter into
negations with the trade unions instead of charging the striking
employees, save for
the applicants. The deal that was struck with the
unions representing the other striking employees ignored the fact
that the strike
at Masakhane interrupted provision of essential
services by hospitals. The other striking employees were allowed to
resume their
duties with final written warnings.
[13]
It is trite that
the employees participating in an unprotected strike should be
treated the same when it comes to discipline and
sanction. I am,
however, not oblivious to the authorities that state that consistency
is an element of disciplinary fairness and
is not a rule unto
itself.
[3]
[14]
In the present case, the applicants were already
dismissed when the negotiations that led to the lenient sanction for
participating
in an unprotected strike took place. However, there is
no reason provided for not extending the indulgence to the
applicants, especially
since their dismissal was not preceded by
disciplinary hearings. In my view, therefore, the decision to isolate
and dismiss the
applicants for participating in an unprotected strike
was capricious and therefore unfair.
[15]
In respect of allegations misconduct, Mr Phora
denied that he had blown the whistle or incited other staff members
to join the unprotected
strike on 5 August 2014. He testified that it
was practice at Masakhane to blow the whistle when calling the
employees to meetings.
He was a shop-steward at that time and the
purpose of the meeting was to give the employees feedback on the
allegations of nepotism
and selling of jobs. It was the employees, in
their own volition, who had refused to go back to work, demanding a
written response
to their grievances. He was surprised he had been
issued with a final written warning before.
[16]
The department’s witness, Mr Mboyane,
testified that he saw Mr Phora blowing a whistle, calling other
employees to a meeting.
He however conceded in cross examination that
blowing a whistle only called employees to a meeting. He also
conceded that there
were other employees on final written warning
that benefited from the negotiated deal by escaping dismissal.
[17]
With regard to Mr Tladi, he conceded that he did
switch the ironing machine off as it was malfunctioning and he did so
as instructed
by his supervisor, Mr Lethole. He, however, denied that
he intimidated and prevented the other employees from working. He
also
conceded that his pension fund withdrawal was classified as
retirement and he did so as he needed money to pay off his house.
[18]
Mr Tladi’s evidence was, to a great extent,
unchallenged. Mr Mboyane conceded that he could not say much about
what happened
at section B Factory as he was the Manager for Section
A. However, he was adamant that Mr Tladi was a senior supervisor at
the
receiving unit and had nothing to do with the ironing unit.
[19]
The Department bears the onus to show that the
applicants are guilty of transgressions that are a misconduct in
terms of its policies.
No evidence was, however, led in this regard.
To me, the blowing of the whistle and switching off of the ironing
machines could
not have instigated the strike. The applicants’
evidence that the decision to embark on a strike was taken by the
group of
employees during the meeting on 5 August 2014 in protest of
the outcome of their grievance was never challenged. Also,
there
is no iota of evidence to prove that the other striking
employees had been coercion by the applicants to participate in an
unprotected
strike.
[20]
It is common cause that the applicants’
dismissal was not preceded by disciplinary hearings. There is no
explanation given
for the respondent’s failure to hold
disciplinary hearings nor can it be inferred from the circumstances
of this case. Nothing
turns on Mr Tladi’s subsequent withdrawal
from the pension fund that was labelled as a retirement. It does not
change the
fact that he was dismissed nor does it affect
reinstatement as a form of relief.
Relief
[21]
The
applicants seek the primary remedy of reinstatement. In
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others,
[4]
the Constitutional 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.’
[22]
There is no evidence that militates against
reinstating the applicants. In deciding the date from which their
reinstatement would
run, I have considered the fact that four years
have passed since the dismissal of the applicants. The delay is
considerably attributed
to the department as it relentlessly defended
the dismissal on the charge of participating in an unprotected strike
despite having
issued the other striking employees with final written
warnings. As a result, the bargaining council ruled that it has no
jurisdiction
to deal with the matter. Accordingly, I deem it just and
equitable to order the applicants’ reinstatement with a
backdated
period of 24 months.
Conclusion
[23]
In all the circumstances, I am convinced that the
dismissal of the applicants was procedurally and substantively
unfair. They stand
to be reinstated with a backdated period of 24
months. Put differently, the applicants’ date of reinstatement
is 10 October
2016 with full back payment.
[24]
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
bargaining
council,
I
do so in terms of section 158(2)(b) of the LRA and, given the history
of this matter, it is also expedient.
[5]
Costs
[25]
Costs do not necessarily follow the result in
this Court. However, the respondent was evidently ill-advised in
defending this lawsuit.
[26]
In the circumstances, I make the following order:
Order
1.
The dismissal of Messrs Phora and Tladi is
substantively and procedurally unfair.
2.
Messrs Phora and Tladi are reinstated with a 24
months back payment from the date of this order.
3.
The respondent is ordered to pay the applicants
costs.
___________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
P Govender
Instructed
by:
Macgregor Erasmus Attorneys
For
the respondent:
Advocate: X Matyolo
Instructed
by:
Msikinya Attorneys
[1]
Act 66 of 1995 as amended.
[2]
Notice 1216 published in the Government Gazette 188276 dated 12
September 1997.
[3]
See
SACCAWU and Others v
Irvin & Johnson Ltd
(1999)
20 ILJ 2302 (LAC) at para 29; see also H Cheadle
at
al,
Strikes
and the Law
, LexisNexis
(2017) at pages 210 to 2011; .
[4]
[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.
[5]
Wardlaw v Supreme Mouldings
(Pty) Ltd
(2007) 28 ILJ
1042 (LAC) at paras 18 and 19.