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[2018] ZALCD 6
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Tropic Plastics and Packaging Industry (Pty) Ltd v National Union of Metal Workers of South Africa (NUMSA) and Others (D02-17) [2018] ZALCD 6 (29 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
Not
Reportable
Case
no: D02-17
In
the matter between:
TROPIC
PLASTICS AND PACKAGING INDSUTRY (PTY)
LTD
Applicant
and
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA
(“NUMSA”)
First
to Twenty
Seventh
Respondents
COMMISSIONER
LEON PILLAY N.O.
Twenty
Eighth Respondent
STATUTORY
COUNCIL FOR THE PRINTING,
NEWSPAPER
AND PACKAGING INDUSTRIES
Twenty
Ninth Respondent
Heard:
7 March 2018
Delivered:
29 June 2018
JUDGMENT
WHITCHER
J
[1]
In the award under review, the Commissioner upheld the dismissal of
eleven employees – but reinstated with retrospective
backpay
the second to twenty seventh respondents and granted limited
compensation to a deceased employee, Thulani Gwala (“the
respondents”).
[2]
The respondents and the eleven employees were charged with:
“
Gross
misconduct in that on 29 May 2015, the employees wrongfully and
unlawfully and in breach of the picketing rules issued by
the CCMA
congregated outside the factory of Tropic Plastic and:
1.
threw
rocks;
2.
blocked
traffic;
3.
burnt
tyres;
4.
placed
objects on the road;
5.
prevented
the ingress and egress of traffic to Tropic Plastic Factory; and
6.
prevented
employees who wished to work during the strike from entering the
Tropic Plastic Factory.”
[3]
To first give orientation to different points in the area, the front
entrance to the applicant’s premises is in Chamberlain
Road,
Durban with a back entrance in Balfour Road. Chamberlain Road has a
northern and southern bound carriage way. A grass island
between the
carriageways on Chamberlain Road was demarcated by the applicant as
the picketing area. At the corner of Phillip Frame
Road and
Chamberlain Road is a small retail shop known as the Wentex Tearoom
[“the Wentex area”].
[4]
At the arbitration, there were essentially three parts to the charge,
which is described in this review as (i) the burning of
tyres and
placement of obstructions in front of the applicant’s premises;
(ii) breach of the picketing rules; and (iii) the
“rushing”
of a taxi ferrying workers.
[5]
To establish the charges, the applicant relied to a large extent on
videographic evidence (which I have viewed).
The
burning of tyres and placement of obstructions in the road
[6]
The Commissioner found that the eleven employees who had set fire to
tyres and otherwise placed obstructions in the roadway
outside the
applicant’s premises at approximately 06h00 in the morning on
the 29
th
May 2015 [before any picketing for the day had
started and before the general body of the strikers had arrived],
were guilty of
gross misconduct and their summary dismissal was
warranted.
The
case of the respondents
[7]
In relation to the respondents, the Commissioner found that they
could not be held liable for the actions of the eleven employees
as
there is no evidence that there were more than the eleven employees
present at the time of the specific misconduct and no evidence
that
the respondents had associated themselves with the unlawful conduct.
[8]
On the charge of intimidation [the rushing of the taxi], he found
that this charge was not proved.
[9]
On the respondents’ role in the other events of 29 May 2015
(breach of the picketing rules) he found that they did breach
the
picketing rules but that the nature and extent of their actions did
not warrant their dismissal.
[10]
He dismissed a claim that the respondents were guilty of derivative
misconduct.
[11]
The review is aimed at these findings and the relief granted to the
respondents.
The
respondents’ breach of the picketing rules
[12]
I see no reason to interfere with the findings of the Commissioner.
On my evaluation, the applicant failed to demonstrate that
the
Commissioner overlooked material evidence which had the obvious
potential to materially affect his finding and the outcome
of the
arbitration.
[13]
It is evident from the video evidence that the initial group of
eleven employees were responsible for the placement of the
dangerous
obstructions on the roadway outside the applicant’s premises.
[14]
The video footage does show, in separate and later incidents, another
employee kicking a water bucket into the road, and another,
a [not
substantial] tree branch. But, both employees are identified by the
applicant and are not among the list of respondents.
[15]
The respondents’ disruption to the flow of traffic in the area
around the factory was not sustained for a long period
of time.
[16]
According to the video footage, in the period 07h01 to about 07h08, a
group of strikers, taking up both lanes of the northern
bound
carriageway of Chamberlain Road, can be seen proceedings in a
southerly direction to the Wentex area. It seems the strikers
usually
met and gathered in this area, which is away from and not in front of
the applicant’s premises.
[17]
A group can also been seen occupying the southern bound carriageway
of Balfour Road and then proceed to the Wentex area.
[18]
The video footage shows the strikers gathered in the Wentex area at
about 07h23.
[19]
Not long thereafter the SAPS, who had blockaded the area from about
07h00, ordered the strikers to disperse. When they refused
to do so,
claiming they had a right to protest as they were on a protected
strike, a stun grenade was thrown into the crowd of
strikers at about
07h33. They were then effectively boxed in by police vehicles and
moved along Chamberlain Road northwards
to the designated grass
island.
[20]
At about 07h43, the police threw a second stun grenade into the crowd
of strikers and shot at them with paintball pellets.
On the video
evidence, there was no good reason for this since the strikers were
in the demarcated picketing area [the grassy island].
[21]
It was the evidence of W/O Robin from the SAPS that the first stun
grenade did not have the desired effect of
dispersing
the
strikers, hence the second one. The purpose of the second stun
grenade was to disorient the strikers and then arrest them for
failing to
disperse.
[22]
It is evident from the police witness that the instructions given to
the respondents by the police were not to picket within
the
designated area (the grass island) but rather to disperse, and their
failure to
disperse
was the offence on which their arrests
were based.
[23]
The police seemed to be in total control throughout of the situation
in the area around the applicant’s premises and
they had
successfully caused the strikers to move to the designated grass
island when the strikers were arrested and removed from
the area.
[24]
No evidence whatsoever was led regarding the claim that the strikers
blocked persons who wished to enter the premises. Even
the
chairperson of the disciplinary enquiry found no evidence was led of
any interference with customers or service providers.
[25]
And, as discussed below, it was the applicant’s security guards
who stopped the taxi ferrying workers from entering the
applicant’s
premises from Chamberlain Road.
[26]
The applicant contends that it is shown in the video footage and
still images that the respondents
wielded
sticks and
knobkerries.
[27]
I saw that some of the strikers did carry sticks and what looked like
knobkerries but I did not observe any “wielding”
of such.
The Commissioner found that the strikers had carried sticks and
knobkerries in breach of the picketing rules. He, however,
makes the
valid point that the carrying of sticks and knobkerries is not part
of the charge and the strikers who did so were not
specifically
identified anyway on the basis that the carrying of sticks and
knobkerries was the basis for the dismissal.
[28]
A breach of picketing rules may in certain circumstances amount to
misconduct justifying dismissal, but same is not axiomatic
and there
is considerable discretion vested in the Commissioner to determine
the extent of the breach of the rules. It therefore
follows that less
serious breaches of the rules should not be regarded as dismissible
misconduct.
The
rushing of the taxi
[29]
It is alleged that while the strikers were moving down Chamberlain
Road [to give a time perspective, just before the first
stun grenade
was launched], they surged towards a taxi ferrying workers, who were
to be dropped off in Chamberlain Road outside
the applicant’s
premises.
[30]
Khan, the driver, testified that when he entered Chamberlain Road, he
noticed a group of about 40 to 50 striking employees
in the Wentex
area about 80 to 100m
from the factory entrance. The security
guards stationed outside the applicant’s premises prevented the
vehicle from entering
the premises. They gestured that he should make
a U-turn. According to Khan, the “mob” surged forward
when they saw
his vehicle. The situation was scary and the passengers
screamed. He continued driving and dropped the passenger off at the
back
gate of the factory in Balfour Road.
[31]
On his way out, in Balfour Road, he observed about 6 people who he
assumed were strikers. They threw rocks at his vehicle,
which caused
damages totalling R3500.00.
[32]
The arbitrator found that the video evidence did not show the
strikers surging towards the staff taxi. He found that Khan and
his
passengers may have felt frightened when they saw the strikers moving
along Chamberlain Road, but they were never in any danger
from these
strikers.
[33]
The applicant contends that this finding is patently unreasonable in
light of Khan having indicated his fear of the striking
employees and
the video evidence. In their view it is patently obvious from the
videographic evidence that “the mob of dismissed
employees
surged towards the taxi”. They contend that the video moreover
shows an SAPS vehicle attempting to intercept the
strikers as they
“surge” towards Khan’s vehicle.
[34]
To my mind, there is sufficient evidence on record (the video
evidence evaluated with the evidence of Booysen [who appeared
to be
in charge of the private contingent of armed security guards employed
by the applicant], W/O Robins and Ngirazi) to justify
the
Commissioner’s finding.
[35]
It is common cause that long before Khan entered Chamberlain Road, a
contingent of armed police officers and private security
guards had
stationed themselves in Chamberlain Road and would have been clearly
visible to Khan and his passengers. The armed security
guards were
stationed in front of the applicant’s premises – at the
very entrance the taxi would have entered.
[36]
What can be gathered from the video and the testimony of W/O Robins
and Ngirazi, is that around the time that Khan entered
Chamberlain
Road, the police were in the process of herding the strikers to the
grass island [that is down Chamberlain and in the
direction of Khan].
[37]
It is common cause that not long into the process a stun grenade was
fired into the crowd of strikers. It is significant that
the only
reason given by Robins and Booysen for this was because the strikers
were blocking the road and had refused an order to
disperse. The
police witness never testified that they launched the stun grenade
because the strikers were about to attack the
taxi.
[38]
Booysen testified that when the strikers gathered at Wentex in
Chamberlain Road, the police began putting in place “things
to
effect [the] arrests.”
[39]
This counters the applicant’s claim, which is merely based on
a
perception of the video footage, that the police moved in swiftly
because the strikers were rushing for the taxi.
[40]
Ngirazi’s evidence that the strikers were in the process of
being moved down Chamberlain Road to the island [and thus
in the
direction of the taxi] was not meaningfully disputed. Significantly,
during cross-examination, it was put to him that around
the same time
that the taxi appeared on Chamberlain Road, the first stun grenade
was thrown. It was noted during the cross-examination
of Khan that
Officer Neethling gave similar testimony at the disciplinary hearing.
[41]
This, in my view, would reasonably account for any quick movements on
the part of the strikers.
[42]
On Khan’s version the strikers were about 100 metres down the
road when he pulled into Chamberlain Road. More, significantly,
there
was a large contingent of both police and armed security guards
between him and the strikers. Thus any danger was at the
level of
perception, but not imminent.
[43]
It may also reasonably be inferred, in light of the timing of all of
the events, that when stones were being thrown at Khan
in Balfour
Road, the respondents were in the process of being corralled and
arrested
in Chamberlain Road.
Derivative
misconduct
[44]
The applicant contends that the respondents must have been aware of
all the misconduct committed on 29 May 2015, including
that committed
by the eleven employees, but none of them came forward to offer
assistance to the applicant in bringing guilty employees
to book,
alternatively to exonerate themselves from any wrongdoing. In these
circumstances, the Commissioner should have found
them guilty of
derivative misconduct.
[45]
There is no substance to this ground of review, and I agree with the
following submissions made by Mr Pillemer.
[46]
In a case in which the employer wants to rely on misconduct that is
not directly related to the employee’s own wrongdoing,
but is
based on the employee not providing information that is needed to
identify other wrongdoers in circumstances where speaking
up is
required to maintain the trust relationship, that constitutes a quite
distinct ground of misconduct, applicable in a context
where not
speaking up can destroy an employment relationship. But this has to
be specifically levelled as a charge, which can be
defended.
[1]
[47]
Derivative misconduct, like any other form of misconduct, has to be
alleged and proved and turns on its own evidence and facts.
There may
be circumstances where it is incumbent upon an employee to come
forward and spill the beans on his co-worker who he knows
is
stealing, is guilty of sexual harassment and so on, but to suggest
that it applies to every employee engaged in strike action
is taking
the concept too far and, in the present case, there is no evidence
(which has to be established on a balance of probabilities)
that the
respondents had such knowledge or even what information that it is
alleged they were required to provide under threat
of dismissal for
misconduct if they failed to do so, and why it was required by the
employer or why they would believe that there
was a duty on them to
provide such information, since it is by no means obvious.
[48]
There is no proof or even any evidence that the employer expected
them to provide information as part of the employment relationship.
If the employer’s complaint was that they failed to provide
such information and it was this failure that had caused the
relationship to break down, then it is inexplicable that this was not
the basis of the charge that they faced.
[49]
The employer had the video footage and witnesses available to it
anyway. There is no reason to believe that the workers
in
question would be of the opinion that it was incumbent upon them in
terms of their employment relationship to provide information
on
their colleagues and if they failed to do so they were destroying the
employment relationship. The employer never asked them
to provide the
information either.
[50]
The Commissioner dealt with the question of derivative misconduct
briefly but adequately and his finding that it did not apply
in the
present case is a finding that is reasonable. The claim of derivative
misconduct had not featured in the charges, at the
disciplinary
hearing or at the arbitration until the stage of argument. There is
also no evidence to support it anyway.
The
relief awarded
[51]
I do not accept that the Commissioner failed to reasonably exercise
his discretion in this regard.
[52]
The awarding of backpay is at the discretion of the Commissioner’s
reasonably held conclusion that the transgression
of the picketing
rules was not serious enough to warrant that the respondents be
re-instated with no back pay.
[53]
The Commissioner found that the sanction of dismissal was not
justified. It thus follows that had a lesser sanction been applied,
that is, a final written warning, it would not have deprived the
respondents of their income for this period. It is evident in
his
findings that the Commissioner duly considered this.
An overview of the
award
[54]
In relation to the respondents, the Commissioner had to make findings
and come to a value judgment based thereon as to whether
their role
in the events of 29 May 2015 as testified to or depicted in video
evidence and which led to their respective summary
dismissals was
such as to establish that the dismissals were fair.
[55]
A judge determining the review on the other hand has to decide, not
whether the dismissal was fair or not, but only whether
the
Commissioner’s finding is a decision to which no reasonable
arbitrator could have come on that evidence.
[56]
As the cases in the footnote indicate
[2]
reasonable arbitrators can and do make decisions which involve them
having made mistakes and there may well be imperfections in
their
assessment of the evidence or understanding or application of the law
and they exercise a value judgment on which another
reasonable
arbitrator may differ.
[57]
The Commissioner in this case has provided a full reasoned award that
covers all aspects of the case before him.
[58]
He went through each of the charges and weighed up the evidence and
how it implicated the various applicants before him.
[59]
On every aspect, he provides reasons for his findings and that
reasoning is substantively sound and borne out to a large extent
by
the video evidence and the applicant’s own witnesses.
[60]
On my evaluation, in relation to the charges, the applicant failed to
demonstrate that the Commissioner overlooked material
evidence which
had the obvious potential to materially affect the outcome of the
arbitration.
[61]
In relation to the relief sought, the Commissioner exercised his
discretion and his reasons for providing the full relief sought
is
evident from the award and not inconsistent with the law.
[62]
The applicant has failed to establish that the award is such that it
could not have been made by a reasonable arbitrator on
the evidence
before the Commissioner, or any other ground of review.
Order
[63]
In the premises, the following order is made:
1. The review application
is dismissed.
2. The applicant is
ordered to pay the first to twenty seventh respondents’ costs;
such costs to include the costs of senior
counsel.
________________________________
B
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: A.T. Myburgh SC with C.B. Edy, instructed by Norton
Rose Fulbright Attorneys
For
the First to Twenty
Seventh
Respondents: M Pillemer SC, instructed by Brett Purdon Attorneys
[1]
Western
Platinum Refinery Ltd v Hlebela and others
(2015)
36 ILJ 2280 (LAC) at para 20. See also
Chauke
& Others v Lee Service Centre CC t/a Leeson Motors
(1998) 19 ILJ 1441 (LAC)
[2]
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28 ILJ 2405 (CC) at para 110;
Gold
Fields Mining SA Pty Ltd (Kloof Gold Mine) v CCMA & Others
(2014) 35 ILJ 943 (LAC) para 16;
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
2013
(6) SA 224
(SCA); (2013) 34 ILJ 2795 (SCA) at 2806 para 25;
Shoprite
Checkers (Pty) Ltd v Ramdaw NO & others
2001
(4) SA 1038
(LAC); (2001) 22 ILJ 1603 (LAC) at 1636 para 101;
Palaborwa
Mining Co Ltd v Cheetham & others
(2008)
29 ILJ 306 (LAC) at 317 para 13;
Bidserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others
(2017)
38 ILJ 860 (LAC) at para 16 and 36.