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[2019] ZALCJHB 20
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Rasenyalo v Moqhaka Local Municipality (JS424/14) [2019] ZALCJHB 20 (5 January 2019)
in
the labour court of South Africa, JOHANNESBURG
Not
Reportable
case
no: JS 424/14
In
the matter between
DIKOLE
MOSES RASENYALO
Applicant
And
MOQHAKA
LOCAL MUNICIPALITY
Respondent
Delivered:
5 January 2019
JUDGMENT
MAHOSI
J
Introduction
[1]
The
respondent referred a dispute of an alleged dismissal in terms of
section 191(5)(b)(iii) of the Labour Relations Act (LRA),
[1]
the second reason for his dismissal having arisen from participating
in an unprotected strike.
[2]
The parties agreed that this Court may also assume jurisdiction in
terms of section
158(2)(b) of the LRA in order to determine the
dispute of alleged unfair dismissal relating to misconduct and make
an appropriate
order which the commissioner would have been entitled
to make with regard to the first reason for the applicant’s
dismissal
which reason arose from the acts of misconduct that were
committed during the unprotected strike.
[3]
This matter was heard from 5 February 2018 until 9
February 2018. At the end of the
trial, both parties requested to have the record transcribed and also
to submit written heads of
argument which request was granted. The
transcribed record was filed on the 5 April 2018 and the respondent
filed the heads of
argument on 18 April 2018 and the applicant failed
to file the heads of argument. This judgment was made without the
applicant’s
heads of arguments.
Background
[4]
Prior to outlining the applicant’s
case in detail and considering the issues that gave rise to the
claim, it is necessary
to outline the facts that form the relevant
background to the dispute between the parties.
[5]
The applicant was employed by the respondent on 1 August 2005 as a
General Worker.
On 3 September 2012, the respondent appointed the
applicant as a Clerical Assistant in the Occupational Health and
Safety Office
based at its Head Offices in Kroonstad. He earned a
salary of R8 220,00 per month, which amounted to R98 640,00 per
annum.
[6]
On 28 January 2014 the applicant applied for a vacation leave to
commence from 3 February
2014 until 24 February 2014. His immediate
supervisor recommended that the said leave be approved and it was
allegedly approved
on 30 January 2014 by the Departmental Head, Mr
E.M Mthwalo.
[7]
It was common cause that the respondent’s employees embarked on
an unprotected
strike with effect from 6 February 2014 until 17
February 2014, except on 9 and 10 January 2014. However, the
applicant denied
that he participated in the strike.
[2]
[8]
Two ultimata were issued to the strikers on 11 and 12 February 2014
urging them to
resume duties. The applicant denied that he received
any or both of the said ultimata.
[9]
On 17 February 2014, the applicant received a letter of dismissal.
The reasons for the
applicant’s dismissal were stated as follows:
‘
You
are hereby notified that you are in contravention with the High Court
interdict (case 171/2014) in that you interfered with
or obstructed
the Municipal Manager and directors from performing their duties, and
threatened or intimidated the applicant’s
Municipal Manager,
Directors and/or any other employees in its service.
You
also engaged in an illegal, unlawful, unprotected strike and
gathering. Despite two ultimata, dated 11 and 12 February 2014,
you
also did not return to your work station as previously notified and
instructed. In view of your actions your services have
been
terminated with immediate effect.
[10]
Aggrieved by the respondent’s decision, SAMWU then referred an
unfair dismissal dispute
to South African Local Government Bargaining
Council (SALGBC) on behalf of the applicant and other employees. The
matter was conciliated
unsuccessfully on 4 April 2014 and a
certificate of non-resolution was issued on the strength of which the
matter was referred
to the Labour Court for adjudication.
[11]
The issues, as reflected in the pre-trial minute, the Court has to
determine are:
11.1
Whether the applicant’s dismissal was substantively and
procedurally fair;
11.2
Whether the applicant complied with the two (2) ultimata given by the
respondent;
11.3
Whether the applicant did engage in and participated in the illegal
and/or unprotected strike as well as
committed an act of misconduct
that was in breach of the court order granted in favour of the
respondent by the Free State High
Court on 17 January 2014;
11.4
If the applicant’s dismissal is found to have been unfair, to
determine the appropriate relief.
Preliminary
issue
[12]
On 9 February 2018, the applicant made an application for me to
recuse myself as a presiding
judge on the basis of alleged biasness
and pre-judgment of the matter. To this effect, the applicant
contends that his legal representative
informed him that from the
discussions I had with both legal representatives in chambers it was
clear that I had prejudged the
matter. The respondent opposed this
application on the basis that the allegations were factually not
true.
[13]
The principles that govern the allegations of bias, were set out by
the Constitutional Court
in
Bernet
v ABSA Bank Ltd (Bernet
)
[3]
as follows
:
‘
It
is, by now, axiomatic that a judicial officer who sits on a case in
which he or she should not be sitting, because seen objectively,
the
judicial officer is either actually biased or there exists a
reasonable apprehension that the judicial officer might be biased,
acts in a manner that is inconsistent with the Constitution. This
case concerns the apprehension of bias. The apprehension of bias
may
arise either from the association or interest that the judicial
officer has in one of the litigants before the court or from
the
interest that the judicial officer has in the outcome of the case. Or
it may arise from the conduct or utterances by a judicial
officer
prior to or during proceedings. In all these situations, the judicial
officer must ordinarily recuse himself or herself.
The apprehension
of bias principle reflects the fundamental principle of our
Constitution that courts must be independent and impartial.
And fundamental to our
judicial system is that courts must not only be independent and
impartial, but they must be seen to be independent
and impartial.
The
test for recusal which this Court has adopted is whether there is a
reasonable apprehension of bias, in the mind of a reasonable
litigant
in possession of all the relevant facts, that a judicial officer
might not bring an impartial and unprejudiced mind to
bear on the
resolution of the dispute before the court. [Footnotes omitted]’
[14]
Having had regard to the parties’ submissions, I dismissed the
application as the applicant
failed to make a case for my recusal in
that his apprehension of bias was not based on correct facts. This
was confirmed by Mr
Lebea who was present during the meeting. In
addition, to have the matter started
de novo
before the Judge
President or the senior judge would have the effect of prejudicing
both parties given that the trial was almost
complete.
[15]
The trial was set down for three days, but it became apparent on the
third day that the matter
was not going to be concluded. Labour court
being a continuous court, the matter proceeded on the fourth day. At
the end thereof,
I invited the parties to my chambers to discuss the
timeframes. During the discussions, Mr Mokhele disclosed that he
could not
be available the following day as he was booked in for an
epilepsy operation. It was at this point that I proposed that the
parties
should have a discussion to see if the parties could settle
the dispute.
[16]
The legal representatives were clearly informed that I have neither
prejudged the matter nor
formed a
prima
facie
view. It is normal for judges to
encourage parties to settle disputes amicably if that would lead to a
cheaper and faster dispute
resolution. This is in line with the
spirit of the LRA and the Constitution. There was, therefore, nothing
that could have given
the applicant a reasonable apprehension of
bias.
Evidence
adduced
[17]
The applicant led evidence in support of his case and five witnesses
led evidence for the respondent.
The
respondent’s case
[18]
Mr Sekaledi Jeremiah Tsibulane testified on the role he played during
the unprotected strike.
He was a constable employed by SAPS in the
Public Order Policing Unit and between the period of 22 February 2014
to 22 February
his role was that of a video operator. He identified
the applicant as an employee who attempted to attack him for taking
the video
on the January 2014. The applicant was further identified
on the video footage of 17 February 2014 when the dismissal letter
was
read to all the employees.
[19]
Mr Nicolus Willem Christoffel Van Zyl, the respondent’s Chief
Security Service Officer,
testified that he witnessed the applicant
participating in the strike from 6 January 2014 until 17 February
2014. Further that
the applicant participated in the forceful removal
of the Chief Financial Officer and other respondent’s senior
managers
on the January 2014.
[20]
Mr Eric Mthunzi Mthwalo, the respondent’s Director of Corporate
Services, testified that
on 13 December 2014, the applicant was part
of the group of strikers who invaded his office, threatened him and
forced him to leave
his office. He confirmed that although the
applicant had been granted leave, he was at work and he participated
in the unprotected
strike. Further that the applicant failed to obey
the ultimata as he failed to return to work.
[21]
Ms Tshabalala, the respondent’s Director of Community Services,
testified that on 6 January
2014, at the invitation of the Municipal
Manager, she attended a meeting at Allen Rautenbach Hall where all
employees of the respondent,
including the applicant, were gathered.
The meeting was chaired by Mr Thebe Morena who read a memorandum of
demands in terms of
which the Municipal Manager and the directors
were called to resign with immediate effect. The Municipal Manager
informed the employees
that their demand would not be adhered to
because he and the directors were not appointed by employees but by
the Council. This
led to the beginning of shutdown and the Municipal
Manager and the managers were accosted and directed to immediately
leave the
respondent’s workplace.
[22]
Ms Tshabalala’s house was under SAPS guard, which caused a lot
of anxiety trauma and stress
to herself and her family leading to her
admission to Bloemfontein Care. In addition, the parental home of one
of the employees
who were not on strike was petrol bombed and the
ratepayers were victimised and prevented from paying their rates and
taxes.
[23]
Ms Connie Mazibuko, the respondent’s security officer,
testified that she saw the applicant
at the meeting that was held on
6 January 2014 at Allen Rautenbach Hall after which the employees,
including the applicant,
forcefully remove
the Chief Financial Officer and other respondent’s senior
managers
. She further testified that she
saw the applicant participating in the unprotected strike from 6
January 2014 until the 17 February
2014 with the exception of 9 and
10 January 2014. Some of the illegal acts that the employees,
including the applicant, participated
in included gathering outside
the main entrance of the respondent’s main building where they
chanted and sang struggle songs
after which they would enter the
building in order to forcefully remove the Municipal Manager,
directors and other managers.
The
applicant’s case
[24]
The applicant testified that he did not attend the meeting on 6
January 2014 and that he worked
as usual and only took his lunch
break at 13h00 after which he returned to work until 16h30. He was
aware of the meeting that was
held at Allen Rautenbach Hall, but he
did not attend as he was not invited. At around 16h55, as he was
going to the parking lot,
he noticed employees who were talking to
the CFO. He could not hear what the employees were saying to the CFO.
Subsequently, he
saw the CFO driving out of the respondent’s
premises.
[25]
The applicant denied that he participated in the unprotected strike
and testified that he went
on leave on 31 January 2014. He further
denied participating in Mr
Mthwalo’s
eviction on 13 December 2013.
Although he
heard about the progressive group, he did not know its members and
what they did. He attended a meeting on 22 January
2014 where they
were informed about the strike but denied that he attempted to
assault Mr
Tsibulane.
[26]
On 17 February 2014, Mr Mathe (the shop steward) called the applicant
to attend a meeting at
the respondent’s premises where they
were to receive their dismissal letters. The applicant attended the
said meeting and
he was duly served with the dismissal letter.
Further that he was never served with ultimata.
[27]
The applicant confirmed that all Mr Van Zyl, Ms Mazibuko and Ms
Tshabalala knew him very well
and further that they would not mistake
him for anyone.
Did
the applicant participate in an unprotected strike?
[28]
The applicant’s case was that he never engaged in, embarked on
or participated in an unprotected
or illegal strike during the period
between 6 January 2014 until 17 February 2014. However, prior to the
trial, the parties entered
into an amended pre-trial minute in terms
of which it was common cause that the strike that was embarked upon
by the respondent’s
employees was indeed unprotected. The first
issue to be determined is therefore whether the applicant
participated in the unprotected
strike.
[29]
The evidence of the respondent’s witnesses, namely Mr Van Zyl,
Mr Mthwalo, Ms Mazibuko
and Ms Tshabalala, supported its case and
have all placed the applicant at the scene of the unprotected strike
as from 6 January
2014 when the strike commenced until 17 February
2014 when all the employees who participated in the unprotected
strike were dismissed.
In fact, the applicant also testified that the
respondent’s witnesses knew him very well and that they could
never mistake
him for anyone else.
[30]
Mr Muthwalo’s evidence was that the applicant was part of the
group thatforcefully evicted him
from his office on 13 December 2013.
However, the applicant denied his involvement and testified that he
would not have been able
to have seen the incident as his office was
on a different floor from that of Mr Muthwalo. Again, this is despite
his testimony
that Mr Muthwalo would not mistake him for anyone else.
[31]
The applicant was further placed in the meeting of the 6
th
January 2014 after which the respondent’s employees, including
the applicant, forcefully removed the respondent’s management.
He denied that he attended the meeting and based his reason for not
attending on the fact that he was not served with a notice
of the
meeting by e-mail. However, during cross-examination, he could not
explain why he attended the meeting of22 January 2014
on the
invitation of Mr Mathe who did not send a notice of the meeting by
e-mail but just telephoned him.
[32]
Going back to the video footage of 06 January 2014, the applicant is
shown directing the actions
of the employees who were on strike and
talking on his cellphone. Under cross-examination, the applicant
testified that he went
out of his office to use a bathroom, but ended
going outside the building as he was not sure if the employees were
approaching
him to attack him. This is despite his testimony that
around 16h55, he went to the parking where he
noticed employees who were talking to the CFO after which the CFO
left as usual. He
conceded though, under cross-examination, that it
was not normal for the CFO to be escorted and/or accompanied by a
number of employees
to his vehicle.
[33]
The video footage of 22 January 2014 also placed the applicant within
the group of the employees
who were on strike. The applicant could
not deny that it was himself on the footage, he simply denied that he
threatened and attempted
to assault Mr Tsibulane and argued that the
video footage was taken after hours.
[34]
The applicant was further placed at the workplace with the employees
who were on strike on 17
February 2014 when the letters of dismissal
were served on them. In the statement of claim, the applicant
submitted that after
having been on leave, he reported for duty on 25
February 2014 on which date he was denied access to the workplace. It
was on this
day that he was allegedly served with the dismissal
letter. However, in the amended pre-trial minute, the applicant
changed his
version and admitted that he was on the respondent’s
premises on 17 February 2014 and that he was personally served with
the dismissal letter by the sheriff.
[35]
During the examination-in-chief, the applicant testified that he was
telephoned by Mr Mathe at
approximately 12h20 who informed him to
collect his dismissal letter from the respondent’s premises. He
further testified
that he left his home at 12h30 and that the
travelling time between his home and the respondent’s offices
was one hour. When
it was put to him under cross-examination that he
would then have arrived at the respondent’s premises at 13h00,
he added
another five minutes walk which meant that he arrived at
work at 13h05. This is despite the fact that the sheriff’s
return
shows that the applicant was served at 12:30 which was the
time he claimed to have left his home.
[36]
In my view, the evidence is compelling
that,
although the applicant was on leave,
he participated in the unprotected strike and that the reasons for
his dismissal related to
his participation therein. Therefore, it is
not necessary to decide the fairness of the dismissal for reasons
related to other
misconducts. The next issue to be decided is whether
his dismissal was substantively and procedurally fair.
Legal
principles and analysis of evidence
[37]
In the amended pre-trial minute, the parties recorded that the
applicant'’sdismissal does
not constitute an automatically
unfair dismissal as defined in section 187 of the LRA. Section 188 of
the LRA provides as follows:
‘
(1)
A dismissal that is not automatically unfair, is unfair if the
employer fails to prove -
(a)
that the reason for dismissal is a fair reason -
(i)
related to the employee’s conduct or capacity; or
(ii)
based on the employer‘s operational requirements; and
(b)
that the dismissal was effected in accordance with a fair procedure.
(2)
Any person considering whether or not the reason for dismissal is a
fair reason or whether
or not the dismissal was effected in
accordance with a fair procedure must take into account any relevant
code of good practice
issued in terms of this Act.’
[38]
Section 68
(5) of the LRA provides
that the participation in a strike that does not comply with the
provisions of this Chapter, or conduct
in
contemplation
or in furtherance of that strike, may constitute a fair reason for
dismissal and further that in determining
whether
the dismissal is fair, the Code of Good Practice Dismissal in
Schedule 8 must be taken
into account.
Item
6 thereof provides as follows:
‘
Dismissals
and industrial action
(1)
Participation in a strike that does not comply with the provisions of
Chapter is misconduct.
However, like any other act of misconduct, it
does not always deserve dismissal. The 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.
[39]
Having found that the
applicant participated in the unprotected strike and that the reasons
for his dismissal related to participation
in the unprotected strike,
the issue is whether the respondent discharged the
onus
of establishing both substantive and procedural fairness.
Substantive
fairness
[40]
In
National
Union of Metalworkers of South Africa (Numsa) and Others v CBI
Electric African Cables,
[4]
the LAC stated as follows:
‘
[29]
In my view the determination of substantive fairness of the
strike-related dismissal must take place
in two stages, first under
item 6 when the strike-related enquiry takes place and secondly,
under item 7 when the nature of the
rule which an employee is alleged
to have contravened, is considered. It follows that a strike-related
dismissal which passes muster
under item 6 may nevertheless fail to
pass substantive fairness requirements under item 7. This is so
because the illegality of
the strike is not “
a
magic wand which when raised renders the dismissal of strikers
fair
” (
National
Union of Mineworkers of SA v VRN Steel
(1991)
12 ILJ 577 (LAC)). The employer still bears the
onus
to
prove that the dismissal is fair.
[30]
In his work Grogan expresses the view that item 6 of the Code is
not, and does not purport
to be, exhaustive or rigid but merely
identifies in general terms some factors that should be taken into
account in evaluating
the fairness of a strike dismissal. He
therefore opines that in determining substantive fairness regard
should also be had to other
factors including the duration of the
strike, the harm caused by the strike, the legitimacy of the
strikers’ demands, the
timing of the strike, the conduct of the
strikers and the parity principle. I agree with this view as the
consideration of the
further factors ensures that the enquiry that is
conducted to determine the fairness of the strike-related dismissal
is much broader
and is not confined to the consideration of factors
set out in item 6 of the Code.’
[41]
The substantive fairness of the dismissal related to a strike must,
therefore, be determined
under Item 6 and Item 7. As aforesaid, item
6 requires that the substantive fairness of dismissal in an
unprotected strike action
be determined in the light of the facts of
the case, including the seriousness of the contravention of the Act,
attempts made to
comply with the Act, and whether or not the strike
was in response to unjustified conduct by the employer.
[42]
In the current matter, it is apparent from the evidence that the
applicant and his fellow strikers
had no intention to comply with the
provisions of the Act prior to engaging in or participating in the
strike and the strike had
all the hallmarks of a violent strike and
was protracted. From the wording of the memorandum dated 6 January
2014 addressed to
the Municipal Manager and the directors,
[5]
it is clear that the strikers’ intention was to render the
respondent ungovernable, to shut down all its services to its
customers and to proceed with the unprotected strike until their main
demand of forcing the Municipal Manager and all the directors
to
resign was met.
[43]
It was not the applicant’s case that the illegal strike was in
response to unjustified conduct
by the respondent. In fact, there was
no evidence of unjustified conduct on the part of the respondent that
was adduced. Instead,
the applicant denied that he participated in
the unprotected strike during the period between 6 January 2014 and
17 February 2014.
[44]
Regarding the steps taken by the respondent to persuade the strikers
to end the strike and resume
their duties, the evidence is that the
respondent allowed COGTA and SALGA officials to attempt to resolve
the matter amicably through
mediation and two ultimata were issued
which were clear as to what was required of each of the strikers and
consequences for failure
to comply therewith. In addition, letters
were sent on 13 February 2014 to both SAMWU and IMATU to which IMATU
responded by advising
its members to resume their duties, which
advice was not heeded. It was common cause that SAMWU, a trade union
of which the applicant
was a member, failed to respond to the said
letter.
[45]
In relation to the trust relationship, Mr Mthwalo testified that it
has been irretrievably broken
down and that continued relationship
has also become intolerable given the acts of misconduct that the
applicant committed. The
applicant has not explained his actions or
rebutted the respondent’s version.
[46]
Item 7 of the Code outlines the
guidelines
applicable in cases of dismissal for misconduct and it
provides
as follows:
‘
(a)
Whether or not the employee contravened a rule or standard regulating
conduct in or of relevance
to, the workplace; and
(b)
If a rule or standard was contravened, whether or not-
(i)
The rule was a valid or reasonable rule or standard;
(ii)
The employee was aware, or could reasonably be aware of the rule or
standard;
(iii)
The rule or standard has been consistently applied by the employer;
and
(iv)
Dismissal was an appropriate sanction for the contravention of the
rule or standard.’
[47]
To an extent that I already found that there was an unprotected
strike which itself constitute
misconduct, the issues under Item 7
enquiry are whether the discipline was consistently applied and
whether the dismissal was an
appropriate sanction.
[48]
The applicant has not pleaded inconsistency in his statement of claim
and the pre-trial minute.
The allegation of inconsistency was only
introduced during the cross-examination of Mr Mthwalo when it was
suggested that Mr Lejage
and Mr Tatsanyane were not dismissed. Mr
Mthwalo testified that the employees who were dismissed were only
those who failed to
comply with the ultimata. Not only was the issue
of consistency, not the applicant’s pleaded case, but there was
no factual
or legal basis in support thereof. From the evidence
before this court, I am not convinced that the discipline was
inconsistently
applied.
[49]
The remaining issue is whether the dismissal was an appropriate
sanction. Considering all the
evidence before the court, including
the seriousness of the misconduct (namely, the violent and
unprotected strike), the conduct
of the applicant, the refusal to
comply with the ultimata, the effect of his conduct on the trust
relationship, the trauma that
the Municipal Manager and the managers
were subjected to and the applicant’s lack of remorse, I am
convinced that the dismissal
was an appropriate sanction
Procedural
fairness
[50]
Section 188(1)(b) of
the LRA states that a dismissal is unfair if an employer fails to
adhere to fair procedure.
[51]
It is common cause
that the respondent did not hold a pre-dismissal hearing prior to
dismissing the applicant. Mr Mthwalo testified
on reasons why the
pre-dismissal hearing could not be held and stated that the strike
which was still on-going made it not feasible
and/or practical to
hold the hearing, the authority and legitimacy of the Municipal
Manager and the directors were not recognised,
the Director Corporate
Services was chased out of the respondent’s premises and could
not arrange the disciplinary hearings
and Ms Irene Selebogo who was
the assistant Human Resource Manager was also on the unprotected
strike.
[52]
In support of its submissions on problems if was faced with in taking
disciplinary steps against
the strikers, the respondent referred the
Court to an extract from Collective Labour Law
[6]
where John Grogan stated as follow:
‘
The
ultimatum serves the same function in the strike context as it does
in diplomacy; to warn the recipient that the time is running
out and
that, unless they desist from their conduct within specified time,
unpleasant consequences will follow. In strikes, the
most unpleasant
consequence allowed by law is dismissal, of which the ultimatum is a
formal warning.’
[53]
Item 6(2) of
Code of Good Practice
Dismissal in Schedule 8 deals with the requirements of the ultimatum
and it provides as follows:
‘
Prior
to dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of action
it
intends to adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of
the employees
and what sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient
time to reflect
on the ultimatum and respond to it, either by complying with it or
rejecting it. If the employer cannot reasonably
be expected to extend
these steps to the employees in question, the employer may dispense
with them.’
[54]
In
SAMWU
obo Salemane and Others v Moqhaka Local Municipality
[7]
which
involved the applicant’s fellow strikers judgment of which
formed part of the record of the current matter, the individual
applicants conceded that they received letters of ultimatum dated 11
and 12 February 2014.
[8]
Having
found that he participated in the strike, the applicant being a SAMWU
member would have been aware of the ultimata. In any
event, the
evidence shows that the applicant was duly served with the two
ultimata.
[55]
As aforesaid, the amended pre-trial minute recorded that SAMWU did
not respond to the letter
in terms of which it was notified of the
strike and requested to intervene by the respondent. In addition, the
applicant did not
challenge the respondent’s evidence that the
ultimata were clear and unambiguous and that it specified what
sanction would
be imposed if the ultimatum was not complied with. The
applicant’s only version was to deny participation in the
strike and
claimed that he was on leave. However, the respondent’s
evidence placed him at the scene of the unprotected strike during
the
entire period of the said strike. The applicant has not given the
explanation of why he and his fellow strikers did not comply
with the
two ultimata and why SAMWU failed to respond to the respondent’s
letter inviting it to intervene.
[56]
Although Item 6(2) of the Code requires the
discussion with the union and the issuance of the ultimatum
by the
employer, it is trite the employer is required to take a further
procedural step in a form of a hearing. In
Modise
and Others v Steve's Spar Blackheath
[9]
The
Court held as follows:
‘
…
in our law an employer is
obliged to observe the
audi
rule
when he contemplates dismissing strikers. As is the case with all
general rules, there are exceptions to this general
rule. Some of
these have been discussed above. There may be others which I have not
mentioned. The form which the observance of
the
audi
rule
must take will depend on the circumstances of each case including
whether there are any contractual or statutory provisions
which apply
in a particular case. In some cases a formal hearing may be called
for. In others an informal hearing will do. In some
cases it will
suffice for the employer to send a letter or memorandum to the
strikers or their union or their representatives inviting
them to
make representations by a given time why they should not be dismissed
for participating in an illegal strike. In the latter
case the
strikers or their union or their representatives can send written
representations or they can send representatives to
meet the employer
and present their case in a meeting. In some cases a collective
hearing may be called for whereas in others -
probably a few -
individual hearings may be needed for certain individuals. However,
when all is said and done, the audi rule will
have been observed if
it can be said that the strikers or their representatives or their
union were given a fair opportunity to
state their case. That is the
case not only on why they may not be said to be participating in an
illegal strike but also why they
should not be dismissed for
participating in such strike.’
[57]
In
Diane
D Karras t/a Floraline v South African Scooter and Transport Allied
Workers Union and Others,
[10]
the Court confirmed its decision and held as follows:
‘
[26]
I also think that the provisions of sec 188(1)(b) support the view
that an employer is obliged to observe the
audi
alteram partem
rule when it
contemplates the dismissal of employees irrespective of what the
reason is for the contemplated dismissal; in other
words even if the
reason for dismissal is participation in a strike - including an
unprotected strike. Sec 188(1)(b) provides that
a dismissal that is
not automatically unfair as contemplated in sec 187 is unfair if the
employer fails to prove “
that
the dismissal was in accordance with a fair procedure.”
There
can be no basis for any suggestion that, when the reason for
dismissal is conduct other than participation in a strike,
the
requirement of a fair procedure in sec 188(1)(b) means the observance
of the
audi
rule
but when the reason for participation in a strike, the same
provisions mean something different, namely, no observance
of
the
audi
rule
at all - in whatever form. I would rather say sec 188(1)(b) requires
the observance of the
audi
rule
but the form which that observance of the
audi
rule
may take in a strike dismissal context need not be the same as in the
case of a single employee who is facing the prospect
of losing his
job because of individual misconduct.’
[58]
It is clear from the LAC’s judgments that the general rule is
that
audi alterem partem
rule
should be observed prior to the employer dismissing the striking
employees unless there are exceptions. The respondent’s
case
was that given the striker’s conduct, it was impractical to
hold disciplinary hearings at the time and further that
if
the applicant was indeed on leave he should have exercised his right
to appeal the dismissal in terms of SALGBC Disciplinary
Procedure
Collective Agreement.
There is no
evidence that the respondent attempted to afford the applicant the
opportunity to state his case and to provide reasons
why he should
not be dismissed for participating in the unprotected strike. This
could have
been done either
prior to or post his dismissal.
[59]
On the conspectus of all the evidence
, the
respondent failed to
prove
compliance with
the
audi
alterem partem
rule which renders the
applicant’s dismissal procedurally unfair.
Relief
[60]
The remaining issue to be considered is the relief to be granted to
the applicant. According
to Section 193 of the LRA, the primary
remedy in instances where the Court found the dismissal to be unfair
is reinstatement or
re-employment. The Court must require the
employer to reinstate or re-employ the employee unless where the
employee does not wish
to be reinstated, or where continued
employment is intolerable, or it is not reasonably practicable for
the employer to reinstate
or the dismissal is unfair only because the
employer did not follow a fair procedure.
[61]
Having found that the applicant’s dismissal was procedurally
unfair, only compensation
will be the competent relief.
[11]
Section 194(1) of the LRA requires compensation to be just and
equitable in all circumstances but not more than 12 months
remuneration.
[62]
Considering all the evidence and the surrounding circumstances, I
hold the view that the applicant
must be compensated two months’
remuneration calculated at the rate of his remuneration on the date
of his dismissal.
Costs
[63]
With regard to costs, I am of the opinion that the requirements of
law and fairness dictate that
there should be no order as to costs.
[64]
In the premises, I make the following order.
Order
1. The applicant’s
dismissal was substantively fair but procedurally unfair.
2. The applicant is
awarded compensation in the sum equivalent to two (2) months’
salary calculated at the rate of remuneration
on the date of his
dismissal.
3. There is no
order as to costs.
D.Mahosi
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR
THE APPLICANT:
Mr Mokhele of L.M
Mokhele Attorneys
FOR
THE RESPONDENT:
Mr Lebea of Lebea and Associates
[1]
Act
66 of 1995, as amended.
[2]
Amended
pre-trial minute
[3]
[2011]
4 BCLR 329
(CC) at paras 28-29.
[4]
(2014) 35 ILJ 642 (LAC)
[5]
Respondent’s
bundle of documents, Page 6.
[6]
Collective
Labour Law, Second Edition at page 365.
[7]
JS
413/2014.
[8]
Respondent’s
bundle of documents, Page 186.
[9]
[2000]
5 BLLR 496 (LAC).
[10]
(JA78/99)
[2000] ZALAC 21
(17 October 2000).
[11]
Mzeku
and Others v Volkswagen SA (Pty) Ltd and Others
(2001)
22 ILJ 1575 (LAC).