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[2018] ZALCJHB 420
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Association of Mineworkers and Construction Union and Another v Metal and Engineering Bargaining Council and Others (JR729/16) [2018] ZALCJHB 420; (2019) 40 ILJ 1262 (LC) (13 December 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR729/16
In
the matter between
:
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION
First Applicant
BC
MASHOLOGO
Second Applicant
and
THE
METAL AND ENGINEERING BARGAINING
COUNCIL First
Respondent
D
MASENYE
N.O
. Second
Respondent
MURRAY
AND ROBERTS POWER AND ENERGY
Third Respondent
Heard:
21 November 2018
Delivered:
13 December 2018
Summary:
Section 186(2) – sanction short of dismissal for participating
in an unprotected strike – it is incumbent upon
each employee
to dissociate him/herself from the striking employees and communicate
that decision to the employer in no uncertain
terms.
JUDGMENT
Nkutha-Nkontwana.
J
Introduction
[1]
The first
applicant, Association of Mineworkers and Construction Union (AMCU),
acting on behalf of the second applicant, Mr BC Mashologo
(Mr
Mashologo), seeks an order reviewing and setting aside the
arbitration award issued by the second respondent, Mr D Masenye
(arbitrator), under case number CDR/MM15/186 dated 8 March 2016. The
arbitrator found that the third respondent, Murray & Roberts
Power and Energy (Murray & Roberts), did not commit an unfair
labour practice and that the sanction of final written warning
and
peace agreement issued against Mr Mashologo was fair.
[2]
The
application is only opposed by Murray & Roberts which raised a
point
in
limine
to the effect that the matter has since become moot.
Is
the matter moot?
[3]
Mr
Pretorius, Murray & Roberts’ attorney, submitted that Mr
Mashologo is no longer in the employ of Murray & Roberts
consequent to a retrenchment. Also, that the final written warning
lapsed after a year from the date which it was issued and that
Mr
Mashologo never signed the Peace Agreement.
[4]
AMCU, on
the other hand, is adamant that the dispute is not moot as Mr
Mashologo’s employment record has been tainted by a
finding of
guilty for participating in an unprotected strike and that he was
never paid for the days he was not at work.
[5]
In
South
African Transport and Allied Workers Union v ADT Security
(Pty) Ltd,
[1]
confronted with the question of mootness of the matter, the Labour
Appeal Court s (LAC) stated that:
‘
[4]
The principles relating to mootness have been well established in
National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (1) BCLR 39
(CC) in
which the Constitutional Court said:
“
A
case is moot and therefore not justiciable, if it no longer presents
an existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law.”
(At 54 footnote 18).
[5]
In
Independent Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001
(9) BCLR 883
(CC), the Constitutional Court held that, where there
was no live controversy between the parties, and, in the absence of
any suggestion
that any order might have an impact on the parties,
the disputes between the parties were moot especially since future
cases inevitably
presented different factual matrixes and hence no
purpose would be served in resolving the dispute. See also
Radio
Pretoria v Chairman of the Independent Communication Authority of
South Africa and Another
[2004] ZACC 24
;
2005 (3) BCLR 231
(CC).’
[6]
In the
present case, it is evident that there is still a live controversy
between the parties. Even though Mr Mashologo has since
been
retrenched, he seems to be of the view that if he is successful in
this application, he will be entitled to monetary relief
and
reimbursement monies deducted as a result of Murray & Roberts
enforcing a principle ‘no work no pay’.
[7]
Accordingly,
the point
in
limine
is untenable.
Factual
background
[8]
Murray &
Roberts is a construction and/or a subcontractor in relation to
construction and engineering works performed at the
Medupi Power
Station Project (Medupi Project) in the area of Lephalale in the
Limpopo Province. It is one of many contractors and
sub-contractors
engaged by Eskom to build the power station at the Medupi Project.
[9]
There are
two collective agreements that were concluded in respect of the
Medupi Project pertinent in this matter, firstly, the
Project Labour
Agreement (PLA) and the Final Partnership Agreement (FPA). These
collective agreements were intended to create consistency
of approach
with regard to labour management matters at the Medupi Project. The
parties to the collective agreement committed themselves
to the
promotion of co-operation, industrial peace and harmony and to ensure
that fair and proper channels, practices and policies
and procedures
are followed proactively to resolve differences between and amongst
all of them. The collective agreements accord
with section 213 read
with section 23 of the Labour Relations Act
[2]
(LRA).
[10]
The
collective agreements regulate,
inter
alia
,
the site specific terms and conditions of employment, including the
minimum wages to be paid to the employees working at the Medupi
Project; the Industrial Relations Procedures and Practices which are
to be adhered to; the reciprocal rights and obligations of
the trade
unions, employees and contractors, and the dispute resolution to be
followed in respect of disputes arising at the Medupi
Project.
[11]
On 25 March
2015, there was an unprotected strike in support of the following
demands:
11.1.
Unit six
uncompleted bonus;
11.2.
Removal of
expatriates;
11.3.
Abolishment
of hostels; and
11.4.
A food
allowance.
[12]
AMCU
asserts that it was not part of the unprotected strike and was, in
any event, not a recognised trade union and/or a signatory
to the
collective agreements. The employees were not required to be at work
at 12h00 on 28 March 2015 to 7 April 2015. When the
employees resumed
work on 8 April 2015 they continued with the unprotected strike. On 9
April 2015, there was violence and intimidation
and the route leading
to the workplace was blockaded. The buses that transport employees to
work were forced to turn back with
employees.
[13]
Murray &
Roberts used Short Message Service (SMS) to communicate with its
employees. On 9 April 2015, it sent an SMS stating
that the bus
services would not run due to continued intimidation and violence. On
17 April 2015, the contractors and subcontractors
at the Medupi
Project approached this Court for an urgent interdict as their
employees were involved in the unprotected strike.
The interdict was
granted. Murray & Roberts sent its employees, including Mr
Mashologo, SMS informing them of the court order
and where the copies
could be accessed. The order had little effect as no one returned to
work.
[14]
Murray &
Roberts issued SMS ultimatums to employees, including Mr Mashologo,
to report for induction between 22 and 28 April
2015. The buses were
arranged to pick up employees from the hostels. Mr Mashologo did not
attend the induction.
[15]
Murray &
Roberts decided to take disciplinary action against all employees who
were involved in the unprotected strike and/or
committed acts of
misconduct, intimidation and violence. The employees were grouped
into the following categories:
15.1.
Group A
comprised of the employees who allegedly reported for duty for the
whole period of the unprotected strike;
15.2.
Group B
comprised of employees who allegedly committed minor offences and
were offered as a settlement a Peace Agreement, which,
by accepting
its terms, they almost immediately returned to work. The terms of
Peace Agreement are as follows:
‘
As
a result of unprotected and unlawful strike action that occurred at
the Employers’ Medupi Power Project… which commenced
on
25 March 2015 and the resultant Court interdict obtained on 17 April
2015, the
Employer has set
the following terms for allowing employees to return to work as
below
:
1.
The Employee will return to
work
as per the
notification by the employer
.
2.
The employee confirms that he
understands and accepts, without exception, the terms of his/her
return to work as requested by the
Employer as follows:
2.1
the Employee unconditionally agrees and undertakes to return to work
when requested by the Employer, and tenders his/her services
in
accordance with his/her contract of employment and the terms of
applicable clauses of the Partnership Agreement (PA), the Site
Specific Agreement (SSA) and Project Labour Agreement (PLA).
2.2
The Employee agrees and accepts that the principle of NO WORK NO PAY
will apply for the period from 27 March 2015 until the
return of the
Employee to the site.
2.3
The Employee further agrees and accepts that all of the accused
Project Bonus from December 2014 to the date of return to the
site
has been forfeited and lost due to his participating in an
unprotected, un-procedural, unlawful and violent strike action.
2.4
Subject to paragraph 4 below, as a result of unprotected,
un-procedural, unlawful and violent strike action which commenced
on
25 March 2015, the Employer reserves the right to implement
disciplinary action against those Employees who participated in
such
strike action and can be identified as having participated in
misconduct which included but not limited to, acts of intimidation,
violence and damages to property.
3.
The employee confirms that the
applicable clauses of the PLA, PA and SSA applies to both the
Employer and Employee and that all
future grievances will be
addressed in terms of the Grievance and/or Dispute Resolution
Procedures and/or any amendments that may
arise thereto.
4.
The Employee acknowledges that
any further unprocedural, unprotected and unlawful strike action
would constitute a breach of contract
of employment and the
provisions of the PA, PLA and SSA. By signing this agreement, the
Employee accepts a Final Written Warning
as a result of his/her
participating in an unprotected strike action and/or failure to
adhere to the stipulation of the Court Interdict.
The Employees
further accepts his/her services being legally terminated (by
following procedures as per the PA, PLA and SSA), SHOULD
he/she
participate in any form of work stoppage, sit down or unprotected
strike action during the duration of the project.
5.
The Employee further accepts
and confirms that the employer will not tolerate circumstances where
employees does not follow procedures
and engages in breaches of
his/her conditions of employment, PLA, PA, SSA and the Labour
Relations Act.
6.
This is the full and final
agreement between the parties and no alterations, variations or
additions will be of any force or effect
unless reduced to writing
and signed by both parties.’
[16]
Group B
included the employees who refused to accept the terms of the Peace
Agreement and were subjected to a disciplinary enquiry
before they
were allowed back to resume work. Whether they were found guilty or
not, they had to sign the Peace Agreement.
[17]
Mr
Mashologo was one of the Group B employees. They were charged as
follows:
‘
Count
1: Participating in an unprotected strike action
‘
It
will be alleged that your members who are in the employ of MRPE on
the list have participated in an unprotected industrial action
and
have failed to render their services in accordance with their
Contract of Employment of the period 25 March 2015 to 17 April
2015.’
Count
2: Participating in an unprotected strike action and failure to
comply with the Labour Court Order served on 17 April 2016.
‘
It
will be alleged that your members who are in the employ of MRPE have
failed to comply with the Labour Court Order served on your
union and
its members who are in the employ of MRPE on 17 April 2015 in that
your members who are in the employ of MRPE have continued
to
participate I an unprotected industrial action and have failed to
render their services in accordance with their Conditions
of
Employment from 17 April 2015 to date.’
Count
3: Continued refusal to follow a direct and lawful instruction
‘
It
will be alleged that your members who are in the employ of MRPE have
ignored the ultimatum issued on your union and the members
who are in
the employ pf MRPE on 23 April 2015 and again on 25 April 2015 in
that your members failed to present themselves for
duty to render
their services on 28 April 2015, despite a final ultimatum being
issued to your union and its members who are in
the employ of MRPE
instructing them to report for duty.’
[18]
Mr
Mashologo was one of the two employees’ representatives during
the disciplinary proceedings. They were found guilty as
charged and a
sanction of a final written warning and Peace Agreement was mitted
out to them. AMCU referred a dispute to the first
respondent, the
Metal and Engineering Industries Bargaining Council (MEIBC),
challenging both the finding of guilty and the sanction.
The
arbitrator found in favour of Murray & Roberts.
Evaluation
[19]
Tritely,
failure by a commissioner to apply his or her mind to issues which
are material to the determination of a case constitutes
a reviewable
irregularity. But, to result in the setting aside of the award, it
must, in addition, reveal a misconception of the
true enquiry and/or
result in an unreasonable outcome.
[3]
[20]
There is an
obsession by the litigants to deal with the adequacy of reasons as in
a manner that seem to advocate that a reviewing
court must undertake
two separate analysis, one for the reasons and another one for the
result. In my view, the reasons must be
read together with the
outcome and serve the purpose of showing whether the result falls
within the range of reasonable outcomes.
To me, this accords with the
review test professed in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
and succinctly expounded
in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others.
[5]
[21]
It was
Murray & Roberts’ undisputed evidence that the demands that
were the subject matter of the unprotected strike pertained
to all
employees at the Medupi Project. Even though, Mr Mashologo was at
work on 25,27 and 28 March 2015 and 8 April 2015, he never
reported
for duty from 9 to 17 April 2015. It is instructive that, despite his
defence that there was no transport to go to work
as the bus services
had been suspended, he conceded that there were employees who did
report for duty using other means, including
their own motor
vehicles.
[22]
Mr
Mashologo, further conceded that he never attempted to get to work
after receiving the SMS that the bus services were suspended
due to
violence and intimidation even though he did not experience any
intimidation or violence himself. It was his evidence that
his fright
was informed by what he was told by the employer and other people. As
a result, he ignored the SMS’s informing
him about this Court’s
interdictory order and the ultimatum to attend the statutory
induction for purposes of returning to
work.
[23]
Mr
Mashologo’s defence, like a proverbial goal post, kept on
shifting. He testified that the buses did not arrive to pick
up the
employees to the induction venue. Nonetheless, he would not have used
the buses as he was afraid to wear his PPE and, in
any case, he did
not now the venue. Murray & Roberts led evidence that the buses
were available and even though the employees
had to wear their PPE as
they were going to resume with duties after the induction, some
employees came in private clothes in order
not to be easily
identifiable. The venue was not disclosed for security reasons. This
evidence was not seriously controverted.
[24]
To my mind,
if indeed Mr Mashologo was not involved in the unprotected strike and
did not report for duty simply because there was
no transport, he
ought to have been the first one to avail himself to the resumed bus
services and attended the induction.
[25]
It will be
an arduous burden to expect employers faced with an unprotected
strike to deal with minute details of each employee who
did not
report for duty. It is incumbent upon an individual employee to
dissociate him/herself from the striking employees and
communicate
that decision to the employer in no uncertain terms. In the present
case, the arbitrator correctly found that Mr Mashologo
failed to
demonstrate an intention to return to work.
[26]
I now deal
with the sanction. AMCU’s qualm with the sanction is mainly the
Peace Agreement. Ms Collet, counsel for AMCU, submitted
that it was
unfair to force employees to admit to being part of an unprotected
strike and to,
inter
alia
,
concede to matters of mutual interest on a full and final basis.
There is no merit in this submission.
[27]
Mr Van Wyk
testified that employees who made attempts to come to work, contacted
their supervisors and attended the induction when
instructed to do
so, were also offered the Peace Agreement instead of dismissal. In
fact, even in instances where employees were
found not guilty of
participating in an unprotected strike because their superiors
vouched for them, they still had to accept the
Peace Agreement.
[28]
Most
essentially, there is nothing fractious about the Peace Agreement. Mr
Mashologo had already been found guilty of participating
in an
unprotected strike. I accept Murray & Roberts submission that the
Peace Agreement was a condition imposed by Eskom which
sought to
ensure a commitment from employees to comply with the terms of their
employment contracts and the relevant collective
agreements that were
also binding to the members of AMCU even though it was not a
recognised trade union. Also, the principle of
‘no work no pay’
in the context of a strike situation is a fathomable reality that
need no validation.
[29]
In my view,
the arbitrator is not required to make an explicit finding on each
constituent element, however subordinate, leading
to his/her final
conclusion. Put differently, if the reasons provided enables the
Court to understand why the arbitrator made his/her
decision and to
determine whether the conclusion is within the range of reasonable
outcomes, the
Sidumo
test is met.
Conclusion
[30]
In all the
circumstances, I am satisfied that the award is reasonable and
therefore irrefutable. The application stands to be dismissed.
Costs
[31]
AMCU was
flagrantly ill-considered in launching this application. Mr
Mashologo, like all other employees of Murray & Roberts
who were
found guilty of participating in an unprotected strike, some of whom
were AMCU members, was treated in an indulgent and
objective manner.
It is, therefore, equitable that costs should follow the result.
[32]
In the
premises, I make the following order:
Order
1.
The review
application is dismissed with costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicants:
Advocate S Collet
Instructed
by:
Larry Dave Incorporated
For
the second respondent:
Mr D Pretorius
From:
Fluxmans Incorporated
[1]
South African Transport and Allied
Workers Union v ADT Security
(Pty) Ltd
[2011] 9 BLLR 869
(LAC); (2011) 32 ILJ 2112 (LAC) at paras
4 - 5.
National Employers
Association of South Africa (NEASA) v Metal and Engineering
Industries Bargaining Council (MEIBC) and Others
[2015] ZALAC 11
; (2015) 36 ILJ 2032 (LAC) at paras 6 - 7.
[2]
Act 66 of 1995 as amended.
[3]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC)
; Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA); Gold Fields Mining South Africa
(Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation
and Arbitration and
Others
[2013]
ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at paras
14 to 16 and
Department of
Education v Mofokeng Head of the Department of Education v Mofokeng
[2015] 1 BLLR 50 (LAC).
[4]
Sidumo, supra.
[5]
Goldfield, supra.