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[2019] ZALCJHB 1
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Food and Allied Workers Union and Others v Earlybird Farm and Another (JS1076/2013) [2019] ZALCJHB 1 (9 January 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JS1076/2013
In
the matter between:
FOOD
AND ALLIED WORKERS
UNION First
Applicant
KHUMALO,
S AND OTHERS Second
to further Applicants
and
EARLYBIRD
FARM First
Respondent
PHAKISA
CORPORATE SERVICES (PTY) LTD Second
Respondent
Heard:
21 to 25 May 2018, and 29 June 2018
Delivered:
9 January 2019
JUDGMENT
MABASO,
AJ
Introduction:
[1]
The applicants declared an unfair dismissal dispute against the
respondents ,in terms of section 191(5)(b)(iii)
[1]
of the Labour Relations Act
[2]
(LRA), claiming that the second to further applicants respectively,
were dismissed by the respondents, therefore, asking this Court
to
make an order declaring such dismissals to be substantively and
procedurally unfair. Consequently, that an order be made that
the
respondents reinstate all those individual applicants that were
dismissed by them, alternatively that the respondents be ordered
to
pay the individual applicants a just and equitable compensation. This
trial lasted for six days, with the last day reserved
for closing
arguments.
Background
facts
[2]
It is common cause that on 24 April 2013, the individual applicants
were involved in an unprotected industrial action
[3]
which lasted for less than three hours.
[4]
However, I have to take into account that the determination herein is
the fairness of the dismissal and I prefer to use the dictum
in
Transport
and Allied Workers Union of South Africa obo Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd Limited
[5]
as a yardstick in this matter,where the majority held thus, in
respect of sanction where a strike was unprotected,
“
Dismissal as a
sanction for misconduct is a sanction of last resort. It has
sometimes been referred to as the “death
penalty”.
This is said in the light of the harsh consequences it may have on an
employee who is dismissed. For
that reason,
dismissal
is only appropriate as a sanction for dismissal in those cases where
the misconduct of which the employee is guilty is
one that at least
the employer considers to render a continued employment relationship
intolerable or unacceptable
.”
(Own emphasis)
[6]
[3]
This
dictum
,
reminds me that security of employment is a human rights issue, thus
for employers to impose dismissal as a sanction, such should
be done
where the issue of trust has been properly considered.
[7]
The
Parties:
[4]
The first applicant is Food and Allied Workers Union (the union), the
Second to Further applicants (individual applicants) are
the members
of the union and were employed by the first and second respondents
respectively, the first respondent is Earlybird
Farm (Standerton) a
division of Astral Operations Limited (the first respondent), the
second respondent is Phakisa Corporate Services
(Pty) Ltd (the second
respondent). The latter provides the former with labour, therefore,
is classified as a Temporary Employment
Services (TES) .
The
issues to be decided:
[5]
Following the exchange of the pleadings between the parties, they
proceeded to file the pre-trial minutes wherein it was agreed
that
this Court is required to determine the following issues:
5.1 Whether the strike
was as a result of unjustified conduct on the part of the first
respondent in allegedly failing to
adequately
address and investigate
[8]
the
various allegations of intimidation and victimisation perpetrated
against the union’s members by individuals within
the
management structure of the first respondent (
Issue
A
);
5.2 Whether the second
respondent dismissed 110 employees for participating in the strike
(
Issue B
);
5.3 Whether the dismissed
employees, by the second respondent, were members of the first
applicant.
[9]
5.4 Whether the
respondents failed to issue ultimatums which are in compliance with
item 6 (2) of the Code of Good Practice of the
LRA;
[10]
(
Issue
D
)
;
5.5 Whether the first
respondent failed to contact an official of the union at the earliest
opportunity to discuss the cause of
action ii intended to adopt and
refused to afford the union official an opportunity to advise the
individual applicants on the
contents of the ultimatum and to
encourage them to return to work;
(Issue E)
;
5.6 Whether the
respondents did not give the individual applicants a fair
disciplinary hearing (
Issue F
);
5.7 Whether the sanction
of dismissal imposed on the individual applicants who were dismissed
was the appropriate sanction
(
Issue G
),
and
5.8 If the dismissal is
found to be unfair, what is an appropriate sanction
(
Issue
I
)?
The
pleadings and evidence:
Issue
B
[6]
The second respondent, in the statement of response, denied that it
dismissed 110 of the individual applicants. In the pre-trial
minutes,
parties agreed that the second respondent was to state as to which
individual applicants were not dismissed. During the
first day of the
trial, the second respondent, submitted the list (their names are:L
Lephoto, N.E .Moloi,V Masango,L Mofokeng,L
Mazibuko,P Motaung, Z
Msomi,M Ndaba,M Nhlapho,S Radebe,S Sauhatsi, L Shabangu, N Shabangu,
P Tsotetsi, T Tsotetsi, F Xolani, G
D Tsotetsi, and Z I Dhlamini.) of
all the individual applicants which dismissal was in dispute. The
representative for the union
and individual applicants, Mr Kuane,
promised to take instructions on this issue and counter it by calling
them as witnesses.
[7]
In any dismissal disputes, if the dismissal is in dispute, the first
question to be determined is whether an employee was dismissed
or
not. In terms of section 192(1)
[11]
of the LRA, the onus of proof is upon such employee to establish the
existence of the dismissal. If such employee fails to show
that there
was a dismissal, then the court will not have jurisdiction to
adjudicate the dismissal dispute of such employee.
[8]
In
casu
, at the commencement of the trial, Mr Kuane had made
an undertaking to secure the presence of all those in the list as
they are
based in Standerton in the Province of Mpumalanga, to
confirm that they were indeed dismissed. However, on day three, this
Court
was advised by Mr Kuane that he was unsuccessful in locating
them. Therefore, without the evidence of those individual applicants,
I conclude that this Court has no jurisdiction to hear their claim.
[9]
The following facts, are common cause based on the evidence adduced
before this Court.
The
first unprotected strike
[10]
In February 2013, the union addressed a petition to the first
respondent wherein accusations of
inter
alia,
a
lack of the safety of the employees and prioritising production
instead of the safety of the employees were made against Messrs
Heinrich Steinbach (Mr Steinbach) and Jaco Herbst (Mr Herbst). The
latter worked as a shift manager.
[12]
The first respondent’s Human Resource Managers were being
accused of failing to resolve grievances which have been outstanding
throughout the year.
[13]
Other
allegations, including that of discrimination against the individual
managers were made. In the petition, the union on behalf
of the
employees, concludes by, saying:
“
all employees
demand that all the managers mentioned [in the petition] must go
within seven days unless [the individual applicants]
take action.
Enough is enough”
[11]
On 28 February 2013, the Human Resource Executive, Mr Fredrick
Michiel Snyman (Mr Synman) responded to the petition acknowledging
that the allegations were serious, however, said they were
unsubstantiated, and asked that any aggrieved employee should submit
evidence by following internal grievance and disciplinary procedures
to allow the first respondent to investigate and if necessary
take
corrective action. The union was urged to support the allegations.
None of these demands, in the petition, were referred to
either the
Commission, for Conciliation, Mediation and Arbitration (CCMA) or
this Court for arbitration and/or adjudication taking
into account
that they are unfair labour practice
[14]
and discrimination
[15]
related
matters.
[12]
On 22 March 2013, the individual applicants embarked on an
unprotected strike. Three ultimatums were issued directing the
individual applicants to return to their workstations, but they
failed to heed to this call Mr Phillip Nkosi a union official
[16]
attended at the first respondent’s premises to engage with the
union members who were on strike. Initially they refused to
go back
to work, and later, about three hours later, agreed to return to work
but put forth
inter
alia
, a
condition that no employee will be disciplined for participating in
the unprotected strike, and that no further instances of
intimidation
and/or victimisation of the employees will occur. Indeed, the first
respondent did not institute disciplinary proceedings
against the
individual applicants.
Engagement
after the first unprotected strike and the second unprotected strike
[13]
On 3 April 2013, the official had a meeting with the representatives
of the first respondent, which included Mr Sandile Bande
(Mr Bande)
to discuss the petition. Later on, an investigation into the contents
of the petition was conducted by Mr Snyman who
then issued a report
in that: the allegations in the petition had no merits, suggesting
that the allegations as contained were
baseless, as some of them were
previously addressed by the first respondent and/or alternatively
resolved. It was common cause
between the parties that, in reaching
the conclusion that he reached, Mr Snyman did not interview any of
the first applicant’s
members who had made the allegations, but
only “
raised
the allegations with those who were directly or indirectly implicated
by the grievances in the petition
.”
[17]
[14]
On 18 April 2013, a meeting was held between the representatives of
the union and the first respondent. During this meeting,
the official
advised Mr Snyman that he was biased on his findings, therefore, its
members “
will do what they need to do”
.Heretofore
these utterances, the union had written a letter to the first
respondent indicating that its members were “
ready for
action”.
[15]
As a result of this utterance, the first respondent warned the
official of the consequences of the possible unprotected strike.
Between 18 and 24 April 2013, the first respondent sent
correspondence to the union alerting it that it has been brought to
its
attention that there is a second unprotected strike that is
planned by the individual applicants and warned it of the
consequences
thereof. In total, there are seven letters sent to the
union by the first respondent between the date of the Synman’s
report
and the date of the strike. A day before the second strike
commenced, on 23 April 2013, the first respondent, through its
attorneys
of record, sent another letter warning the union of the
consequences of an unprotected strike action. The relevant excerpts
from
the latter letter are as follows:
“
our client is in
possession of information evidence which indicates that you and your
members planning to embark upon unprotected
strike action on
24
April 2013.
”
And
“
our client is
furthermore in possession of information which indicates that
[the
official]
this is an actual fact involved in the planning of the unprotected
strike and is inciting your members to embark on the unprotected
strike action.”
[18]
[16]
On the eve of the second strike, on 24 April 2013 at 7:42 am , Mr
Snyman sent an SMS to theofficial partly reads thus, “
[the
official] we have again received information that your members intend
proceeding with the unprotected strike this morning at
10 AM
Standardton
. Please be sure to advise your members against
breaking the law and to instead referred their disputes to the
relevant forum as
is required.Your urgent assistance herein would be
appreciated…”(Own emphasis)
The
second strike
[17]
Indeed, on 24 April 2013 around 10:00, approximately three hours
after the SMS to the official, the individual applicants who
were
working day shift, based at the Further Processing Plant left their
workstations and proceeded to congregate at an open field
within the
premises of the first respondent. Their manager issued an ultimatum
to return to work by no later than 11:30, but they
refused to do so,
which then resulted in them being suspended. At the Primary
Processing Plant, the individual applicants based
there also left
their workstations.
[18]
At approximately 10h00, some of the individual applicants who were
employed by the second respondent left their workstations
and
embarked on an unprotected strike. At approximately 10h30, the first
ultimatum advising them to return to work by no later
than 12h15 was
issued. This ultimatum warned those employees that they might be
disciplined which might result in dismissal. However,
they failed to
comply with the ultimatum.
[19]
The official responded to the SMS by attending at the first
respondent's premises , at the Primary Processing Plant, and spoke
with Mr Bande . The latter informed the official that he could
not be allowed onto the premises as Mr Snyman’s authorisation
was required and he had not received same. The official contacted Mr
Snyman asking that he be allowed onto the premises in order
to
address employees and to provide advice on their action, but Mr
Snyman did not allow him to do so. Instead, Mr Bande allowed
the
official to meet with the shop stewards at the gate. Meaning
the official was not allowed onto the premises to directly
address
the individual applicants, who were still within the premises. The
official after engagement with the shop stewards communicated
with Mr
Snyman that:
“
proposed that an
independent investigator be appointed by company in order to arrive
at an unbiased outcome in the investigations
to the allegations
against the first respondent’s managers. Synman indicated to
Nkosi that the outcome was final and that
the matter would not be
revisited.”
[19]
[20]
The nightshift workers commenced their shift at 17h15, some of the
individual applicants who were on duty stopped working at
approximately 20h00 and congregated at the open space area.
Again the official was contacted by Mr ande, and he proceeded
to the
first respondent’s premises but was once again refused access
inside the premises. Around 20h15, Mr Bande attempted
to issue an
ultimatum to all employees which they refused to take. The ultimatum
ended up being read out to the employees and
they were informed
that they were expected to return to work within 10 minutes failing
which, action was to be taken against them.
However, the employees
failed to comply with the ultimatum and were later suspended. These
individual employees were involved in
the strike for less than 40
minutes before they could be suspended.
[21]
On the same date, the individual nightshift applicants, less than
three hours after reporting for duty, left their workstations
and
stopped working. At approximately 17h30 they were issued with an
ultimatum that they must return to work by 18h00, however,
these
employees did not return to work. Their reason for stopping work was
to “
show solidarity with the day shift which had been
suspended earlier that day”.
At around 19h10 the second
respondent issued a notice of lock out, and at approximately 19h45,
the employees were then issued with
suspension letters.
[22]
It is not in dispute that the dismissal relates to unprotected strike
action and that the notice to attend the hearing was
issued. The
disciplinary hearings took place on 6, 7, 20 and 21 May 2013. Those
who were found guilty were dismissed.
Viva
voce
evidence
[23]
The first witness for the first respondent was Mr Bande, whose
evidence is summarised as follows: He worked for the first respondent
as a Human Resource Manager, his responsibilities included general
human resource functions such as industrial relations, recruitment
and employment equity matters. He confirmed that the first respondent
is a designated employer who regularly submitted the Employment
Equity Reports to the Department of Labour. He draws this Court
attention to a letter dated 16 January 2013 from the Department
of
Labour confirming that the first respondent submitted its final
report for the year 2012. He also contended that the union was
aware
of this compliance. Moreover, there was no complaining that at some
stage the first respondent failed to comply with this
regulation. He
rejected the allegations of discrimination and nepotism within the
first respondent as alleged by the individual
applicants in the
petition.
[24]
He confirmed that one of the former shopstewards of the union, Mr
Johnny Nkosi was dismissed by the first respondent having
been found
guilty of malicious damage to the property of the first respondent as
he had removed security cameras that had been
installed in the
changing room in order to avoid stock theft which was in high
volumes at the time. Mr Nkosi declared an
unfair dismissal dispute to
the CCMA and following arbitration, his dismissal was found to be
procedurally and substantively fair.
The union approached the Human
Rights Commission relating to the issue of cameras.
[25]
Mr Bande testified that the same applicants before this Court are the
ones that participated in the first unprotected strike
on 23 March
2013.
[26]
The union, after the first strike, submitted a detailed petition to
the first respondent. This latter petition had grievances
that had
been launched. The first respondent communicated with the union
proposing a meeting which was to take place on 18 April
2013. The
union confirmed its availability by way of a letter. In the same
letter, the union states:
“
4.Whatever,
you come up with be informed that we are not going to tolerate any
biased if any
5. Our members made it
clear that on the 18
th
April 2013 is the final if not
resolved they are ready for any action.”
[28]
Mr Bande further testified that a report by Mr Snyman was issued and
concluded that following an in-depth investigation to
the allegations
made by the union, there were insufficient grounds to suspend any of
the managerial team alleged to be involved
in the allegations. The
Snyman report was communicated to the union on 18 April 2013, as
scheduled. According to the pre-trial
minutes, the official informed
Mr Snyman that he was biased and its members “
will do what
they need to do”.
The union was warned that should the
union members engage in any further unprotected strike action they
will be disciplined. Mr
Bande testified that during this meeting, the
official was extremely annoyed and unhappy, and according to the
minutes of this
meeting, the official even said: they are not scared
of anything. Following this meeting, he sent a letter to the union
again notifying
it of the rumour that an unprotected strike action
was planned.
[29]
It was his evidence further that in March/April 2013 the first
respondent was not doing well financially as in the previous
year,
the employees got zero increase on their salaries, and the state of
poultry industry was not good as their competitors such
as Rainbow
were retrenching.
[30]
During cross-examination by Mr Kuane, it was put to Mr Bande that
one of the issues raised by the petition was that one
of the
applicants, Ms NR Radebe (Ms Radebe) submitted doctor’s notes
from a medical practitioner which among other things
confirmed that
she has nervous lesions which strive under moist conditions and
increase in size and number and the doctor requested
the first
respondent to “
consider urgently changing the environment
and allowing this patient to work in the dry environment”.
She was moved to a suitable area, but despite this, Mr Herbst advised
Ms Radebe to report back to a place which is considered not
suitable
and that should she fail to do so, she was not to be paid.
[31]
In the statement of case, the individual applicants among other
things, stated that members of the union were ill-treated by
the
first respondent’s management and victimised. It is common
cause between the parties that in March 2012 an email correspondence
was sent to other managers by the Production Manager, Processing
Plant, where Ms Radebe had been transferred, and part of this
email
read thus:
“
After her first
hearing Sandile Bande made the decision to transfer her to another
department.
From
there [Ms Radebe] went all over the show
.
The third and last hearing she was found guilty on all three charges
by the chairman made
the
mistake
to give
[Ms Radebe] another opportunity to shunt us around.
Sholay I honestly think that we have to take the final root (sic) and
that is incapacity. I sent her home in order to be back at
your
office at 9:00. Jaco said that he will speak to Antonia about her.
I
sincerely hope that we can get rid of [Ms Radebe] this time.”
[20]
[32]
Another example of a grievance launched, is one of Mr Mhlinza who
submitted it to Human Resource on 25 May 2012 wherein he
alleged that
he approached Mr Linden Ross for a signature and the response of the
latter was an insult where Mr Ross said “
voetsek”.
Moreover, Mr Bande confirmed that that grievance was not attended to.
[33]
Mr Bande further confirmed that the grievance that was lodged by one
Zondo on 20 December 2012 was not attended to, and he
could not give
any reasons as to why this was not attended to. When he was asked as
to whether he still believes that there was
nothing wrong with the
conduct of the first respondent, his answer was that,
“
we employed almost
over 1000 employees and then we are citing three grievances, that
definitely yes, does not look like they were
attended, yes So I don’t
think would change my response as to say the conduct of the employer
was unbecoming ”.
This
answer by Mr Bande simply means that the concerns of three people are
not important.
[34]
The next witness was Mr Snyman and in his evidence he confirmed that
it was brought to his attention that the individual applicants
had
intended to embark on an unprotected industrial action and this
resulted in the dispatching of the SMS referred to above. He
confirmed that the reason for sending the SMS was that he wanted the
official’s intervention. During the meeting that was
held on 18
April 2013, the official had indicated that he was not satisfied with
the outcome and proposed that an investigator
be appointed and this
was not accepted by him.
[35]
Mr Heinrich Steinberg denied the individual applicants accusations
against the first respondent. This witness was not cross-examined.
[36]
Mr Clement Magcai, testified for the second respondent. He confirmed
that the second respondent is a TES. None of the second
respondent’s
employees complained to him about any allegations of ill-treatment
from the first respondent.
[37]
Mr Pieter Nienaber, another witness for the second respondent, whose
evidence can be summarised as follows: He confirmed that
the night
shift started at 16h30 and they went on the work stoppage at 17h20,
the morning shift started at 6h30. At approximately
10am, the
individual applicants in that shift left their workstations as
mentioned above. He personally issued ultimatums
to the day
shift employees directing them to return to their workstations. Once
he had handed out the ultimatums to the employees
, they threw them
in the air and started dancing on them. It was his evidence further
that even if the employees were given more
time, they had no
intention of abandoning their action. He confirmed that both
individual applicants employed by the first and
second respondents
stood together at the two respective plants (PPP and FPP). When he
was asked whether there was any demand caused
by the individual
applicants to the second respondent’s property on the day of
the strike, he said that the employees were
not satisfied with the
outcome “from the petition” This evidence confirms that
the issue was about the Synman’s
report.
[38]
Mr Mosotho Enoch Matshami’s evidence was that in 2013 he was
the Managing Director of the second respondent, however,
he was never
notified of any problems between its employees and the first
respondent.
[39]
Ms Nomsindiso Mlanzi (Ms Mlanzi) testified for the individual
applicants. Her evidence was that there was a practice of
discrimination
at the first respondent, for example, employees
were working in different sites based on their race. She denied that
the
strike was premeditated. During cross-examination when it was put
to her that the only demand that was put forth by employees was
that
managers should be dismissed, she answered that it was one of the
demands. Moreover, she said that for them to return to work”
we
were demanding the dismissal of the managers, however, we
also wanted the employer to look at whatever was contained in that
particular
petition.”
[39]
Ms Mlanzi confirmed that the Snyman report further advised that the
employees have a right to refer the dispute to the CCMA
should they
feel aggrieved by the outcome but said the employees were not aware
of their rights to approach the CCMA. During cross-examination,
she
was not asked any questions relating to the evidence which Mr Bande
made concessions on, that is, the instances relating to
Ms Radebe and
Mr Zondo.
[40]
The official testified that he works as a Provincial Organiser within
the union, was servicing union’s members
of the first
respondent. The issues contained in the petition were raised during a
general workplace meeting by the members.
[41]
Mr Nkosi, further testified that the first respondent failed to take
action against the employees within seven days after the
submittal of
the petition. He further stated that he submitted a second petition
on 22 March 2013. On 17 April 2013 he sent a letter
to the first
respondent confirming the meeting that was to take place the
following day, and in this letter, at paragraph 5 he
says that the
members were “ready for any action”. He testified that
the reason for him to write this type of the letter
was because the
employees’ grievances were not attended to and they did not
know what else they could do.
[42]
On 18 April 2013, he attended the meeting where Mr Snyman had to give
them a report. According to him, this report is not answering
the
grievances of the employees from the initial petition. After the
outcome, a debriefing took place with the employees, in this
meeting
the tripeptide alliance of the ruling political party in this country
and community members were present. There was outrage
as a result of
the Snyman report. However, there was no resolution that was made
that the employees will partake in an unprotected
strike action. I
must mention that this was not on a par with the submission by Mr
Kuane during cross-examination on Mr Bande,
where it was put to him
that a resolution to strike was made. According to him, he was not
aware that the employees were to embark
on an unprotected strike on
24 of April 2013.
[43]
On 24 April 2013, he received an SMS from Mr Synman about a planned
strike. He then proceeded to the first respondent, when
he arrived he
found Mr Bande at the gate, but he was not allowed to get inside the
premises ,meaning he was denied access to see
the employees and Mr
Synman also denied him access. He ended up speaking to the shop
stewards.
[44]
During cross-examination when he was asked as to what he meant by
saying “
enough is enough”
, he answered that he
referring to his intention to refer the dispute to the CCMA.
[45]
Ms Nomsa Mbele testified that she was employed by the second
respondent working at the first respondent. She confirmed that
she
attended the meeting on 21 April 2013 where the Snyman report was
discussed. According to her, the resolution of the meeting
was that
both delegates from COSATU and ANC were to accompany the employees to
the first respondent in order to try to resolve
those issues. During
cross-examination, when a question was posed to her as to why the
issues that were of their concern were not
referred to the CCMA, she
started crying. When I inquired as to why she was crying, she said
the questions reminded her of a certain
incident where at one stage
they were made to wash their faces where boots are normally washed.
This part of the evidence was not
put to any of the witnesses of the
respondents.,
Evaluation
and applicable legal principles
Issue
A
[46]
Section 213 of the LRA defines a strike as:
“
the partial or
complete concerted refusal to work, or the retardation or obstruction
of work, by persons who are or have been
employed by the same
employer or by different employers
, for the purpose of remedying
a grievance or resolving a dispute in respect of any matter of mutual
interest between employer and
employee and every reference to ‘work’
in this definition includes overtime work, whether it is voluntary or
compulsory.”
[47]
In the opening statement, it was submitted on behalf of the
applicants that the second respondent supplies the first respondent
with labour and the management of the first respondent supervises and
manages the employees of the second respondent. In the pre-trial
minutes, the parties agreed that the second respondent’s
business is the provision of labour related solutions including
the
provision of employees to the first respondent. Moreover, the
evidence of Mr Pieter Nienaber, which I have dealt with
supra
,
was that the individual applicants stated that their concern was
about the Synman report. The afternoon shift employees went on
strike
in solidarity with the day shift employees. Clearly, there was one
purpose which was to remedy the concerns that had been
raised by the
first respondent’s employees. It is not in dispute that the
employees of the first respondent on behalf of
the individual
applicants delivered a petition wherein they asked the first
respondent to remedy their grievances and as a result
of the Snyman
report all the individual applicants reported for duty on 24 April
2013 but later withdrew their services as a result
of this report.
The night shift employees stopped working as they were in solidarity
with the day shift employees. Furthermore,
on the pleadings before
me, parties are not in dispute that all the remaining individual
applicants embarked on an unprotected
strike. I am satisfied that
there was a strike which did not comply with the requirements of the
LRA. Therefore, the individual
applicants committed acts of
misconduct.
[48]
The Code of Good Practice, items 6(1) is applicable herein. It is
common cause between the parties that the individual applicants
were
involved in the strike which was not in compliance with the
requirements of the LRA. As the action of the individual applicants
is an unlawful withdrawal of services that they were employed for, it
is therefore up to the employees to give an explanation for
their
unlawful conduct. This in short means the employees must show that
the first respondent's conduct was unjustifiable. However,
despite
the misconduct been committed it is not automatic that the dismissal
of this nature would be regarded as fair. What needs
to happen is to
determine the substantive fairness of the dismissal, which includes
the seriousness of the contravention of the
LRA, and whether there
was any attempt made by the individual applicants to comply with the
LRA.
[49]
The employer will still have the onus to prove that the dismissal was
fair. As it was pointed out by the Labour Appeal Court
(LAC) in the
matter of
National
Union of Mine Workers of South Africa
(
NUMSA)
and Others v CBI Electric African Cables
[21]
that:
“
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.”
[50]
As this Court has been asked to decide whether or not there is
substance in allegations of intimidation and victimisation against
the individual applicants which have been perpetrated by certain
individuals within the management of the first respondent. I deem
it
prudent at this stage to define the word intimidation in terms of
Intimidation Act
[22]
. This
word is defined as “
without
lawful reason and with intent to compel or induce any person or
persons of a particular nature, class or kind, or persons
in general,
to do or to abstain from doing any act or to assume or to abandon a
particular standpoint”.
The LAC in
Adcock
Ingram Critical Care v CCMA and Others
[23]
,
quoted
with approval and expanded the definition of intimidation as:
“
In the Shorter
Oxford English Dictionary “intimidate” is defined as
“Terrify, overawe, cow. Now esp. force to
or deter from some
action by threats or violence.”
[51]
Whereas the definition of victimisation is action of making somebody
suffer unfairly because one does not like something that
such person
has done.
[52]
In
casu,
Ms Radebe exercised her rights by approaching a
medical practitioner after feeling that her health was not okay. She
submitted
a medical report to the management of the first respondent
about her conditions which the doctor proposed that she must be moved
from the area that she was working at to a different area due to her
medical condition. She was moved to a conducive environment
as per
the doctor’s medical report, but later without any medical
report suggesting that her condition had changed, Mr Herbst
wanted
her to go back to the old position which the doctor had recommended
that was not conducive for her health, and was told
that failure to
go back to this position would result in her not to be paid. Clearly
this was intimidation. She lodged a grievance
against Mr Herbst on 15
May 2012 as a result of this threat. This grievance relates to
threats allegedly made by Mr Herbst
against her and among other
things that she was told that failure to return to the previous
position would carry disciplinary consequences.
The first
respondent’s approach was the one of making her to suffer
instead of accommodating her and attending to her grievance.
[53]
Unfortunately, this grievance was not attended to as confirmed by Mr
Bande. The email correspondence referred to
supra
is a clear
indication that there was a plot to get rid of her, as the email ends
by saying “
I sincerely hope that we can get rid of her this
time”.
The first respondent has not presented any evidence
as to what Mr Herbst was suggesting when saying that Ms Radebe had to
be “
rid of”
. Looking at the entire email, clearly,
there is only one answer which is that she was being victimised for
not complying with the
instruction and a plot to dismiss her was
being perpetuated by management. Moreover, no explanation was
tendered as to why her
grievance was not attended to despite being
delivered in May 2012 until the date of the strike.
[53]
Mr Mhlinza’s grievance relating to an insult hurled at him by
Ms Linden Ross after asking for a signature, was also not
attended
to. I am therefore satisfied that Mr Mhlinza was being victimised.
[54]
In respect of accusations of racial discrimination as contained in
the petition, and Ms Mbele’s testimony of ill treatment
mentioned
supra,
have no
substance, being guided by the principle in
President
of the RSA and others v South African Rugby Football Union and
Others
[24]
, as no compelling evidence was presented during the trial
bywitnesses (Ms Nomsidiso Mlanzi (Ms Mlanzi); the official and Ms
Nomsa
Mbele,)for the individual applicants despite the first
respondent accused of racial discrimination. No version of racial
discrimination was put to the witnesses of the respondents during
cross examination. For example, Ms Mlanzi makes allegations that
Mr
Herbst was harassing her, the environment within the first respondent
was discriminatory in that white employees work upstairs
.This
version was also not put to the witnesses of the respondents to
comment on, for example, Mr Herbst was accused of discrimination
but
was not even cross examined.
[55]
However, it is my view that for a party who has a burden of proof, in
this case the individual applicants, to show the requirements
of 6(1)
(c) of the Code of Good Practice on strike, does not have to prove
all the allegations levelled against the employer, the
first
respondent herein, if some are shown to have merits then the conduct
of the first respondent can be classified as “unjustified
conduct”.
[56]
However, Mr Bande acknowledged that there were grievances that were
not attended to despite being acknowledged by the Human
Resource
Department. For example, when Ms Mhlinza approached Ms Ross to sign
off documents she was told to “
voetsek”
. This
grievance was received by the Human Resource Department on 25 May
2012 but was not attended to. Mr Zondo’s grievance
lodged on 20
December 2012, was not attended to. Mr Bande confirmed that it was a
concern that these grievances were not immediately
or ever attended
to at all. Although according to him this was a drop in the ocean as
he said there were too many grievances out
of more than 1000
employees.
[57]
It is my view that as much as the first respondent regarded this
grievance as a drop in the ocean, to the individual applicants
clearly, this was not the case hence they lodged a petition and
incorporated therein the same issue .Taking these into consideration
and the fact that Mr Snyman also failed to do a proper investigation
as he did not even interview Messrs Mhlinza, Radebe and Zondo
despite
having all the information with him, rendered the individual
applicants rejection of his report justifiable.
[58]
As I have indicated above, there were some valid concerns raised by
the individual applicants. I now need to determine what
was the
demand by the individual applicants which led to the strike. Simply
put: was the demand only that management should be
dismissed. In
paragraph 83.1 of the individual applicants' statement of case, it is
stated that “
the strike was in response to unjustified
conduct on the part of the company in failing to
adequately
address
and investigate the various allegations of intimidation
and victimisation, perpetrated against the union’s members by
individuals
within the management structure of the company”.
I
have further taken into account what the official told Mr Snyman as
stated above the evidence of Ms Mhlinza and the evidence of
Mr Pieter
Nienaber and conclude that the demand was not only about the
dismissal of the management but the individual applicants
wanted
issues in the petition to be adequately investigated as Mr Snyman had
failed to do that.
[59]
During cross-examination by Mr Kuane, the issues revolved around the
failure to properly attend to the issues raised in the
petition
however, the issues that he pressed on were the ones that are
mentioned in this judgment above which Mr Bande conceded.
However,
during the examination in chief of the witnesses of the applicants
which some of them testified that there were other
issues such as the
one of the “
hole
in the toilet”
and that individual employees were asked to wash their faces where
gumboots are normaly washed , they cannot be accepted, since
such
versions were not put to the witnesses of the respondents.
[25]
[60]
Therefore since most of the evidence of the first respondent was not
disputed nor put to the witnesses during cross-examination
I,
therefore, conclude that the only issues that the individual
applicants were challenging which were justifiable were the ones
that
were conceded by Mr Bande. The demand for the dismissal of certain
individual managers of the first respondent was not a valid
demand,
as those managers have rights too.
Issues
D and E, and whether the strike was premeditated
[61]
Item 6(2), for the sake of brevity I quote it as follows,
‘
(2) 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
.’
[62]
Landman J, in
National
Union of Mine Workers and Others v Gold Field Security Limited
[26]
emphasizing
the need to engage an outsider or a union official, during an
unprotected strike said this,
“
The Code’s
insistence on a union representative is a concrete illustration of
the principle that outside intervention is most
desirable. This is so
because the protagonists in the heat of a strike are often unable to
appreciate precisely the consequences
of their action or what the
right thing to do may be. A dose of reality may be required, and as
this, at least from the employer’s
perspective, is not being
exhibited within the group, it must be injected from outside. Who
better than a trusted union official
or indeed office-bearer?
Sometimes the group might not even have the presence of mind or think
it necessary to invoke the assistance
of a higher level of the union.
Mr Matsotso was in contact with Mr Mohlaba, the regional organiser,
but he did not think to discuss
the crisis with him”.
[63]
Turning to the issue of the ultimatum, and whether the individual
applicants were afforded sufficient time, the Constitutional
Court by Minority in
South
African Transport Workers Union obo Ngedle and Others v Unitrans Fuel
and Chemical (Pty) Ltd
[27]
summarised the principle of sufficient time in strike-related matters
and held that:
“
The time period
conferred by an ultimatum must be viewed in the context of whether
the ultimatum provided an adequate opportunity
for the workers
involved to engage with its contents and respond accordingly. This is
in line with item 6(2) of the Code encompassing
the audi alteram
partem principle, which extends into the terrain of unprotected
strike action.
Further, the importance of conferring an
adequate period of time for both parties to the dispute to “cool-off”
must
be emphasised
.
An adequate cooling-off period
ensures that an employer does not act in anger or with undue haste
and that in turn the striking
workers act rationally having been
given the opportunity to reflect
.”
[64]
I am aware that each case has to be decided based on its facts and
circumstances, and what this Court said in
NUMSA
and others v Pro Roof Cape (Pty)
Ltd
[28]
and the LAC’s decisions in
Plaschem
(Pty) Ltd v CWIU
[29]
in
respect of the period of time. However, the circumstances of this
case and those authorities are not the same as I have highlighted
above and below.
[65]
One of the contested issues in this matter is whether the strike was
pre-meditated or not. The respondents argued that the
strike was
pre-mediated and on the other hand the applicants are saying the
negative. In determining this issue, I need to apply
an inference
principle, taking into account that the appropriate assessment is one
of the balance of probabilities, and not a reasonable
doubt (which is
applicable in criminal cases). The elementary logic herein is that
the inference sought to be drawn must be more
probable than any
other.
[30]
In my view, if
there is an issue in dispute, and one party presents facts in support
of that issue whereas the other party merely
denies the opponent’s
evidence but fails to place evidence before the court runs a risk of
an adverse finding against him.
[66]
In
casu
, the respondents presented evidence that on 18 April
2013, the meeting was held between the official and Mr Snyman wherein
the
latter presented his report, and the official not being pleased
with the outcome said the union members “
will do what they
need to do
”. On 21 April 2013, the meeting was held between
the individual applicants, the officials of the union, the ANC,
COSATU,
SACP and SANCO where this issue was discussed. During
cross-examination, the union representative put it to Mr Bande that
the decision
was taken there to embark on strike action. On the eve
of the strike, it was brought to the first respondent’s
attention
that the strike was to take place on the same date, this
resulted in Mr Snyman sending an SMS to the official as mentioned
above.
It is common cause that the individual applicants abandoned
their work stations on 24 April 2013.
[67]
Based on these uncontested facts, I conclude that the only inference
to be drawn is that the strike was premeditated, as the
individual
applicants presented no evidence to counter these facts. I have also
taken into account, that during cross-examination,
Mr Van der Merwe
on behalf of the second respondent asked the witness for the
applicants if they are allowed to enter with cell
phones in the
plants and the witness answered ‘no’. Therefore, the
question is how did it happen that both plants decided
at the same
time, in the morning, to go on strike? The answer is that this can
only happen if the strike was pre-planned. The night
shift was also
following the same plan, taking into account the version that was put
that the strike was planned during the tripartite
alliance meeting on
21 April 2013.
[68]
As I have concluded that the strike was premeditated, this was not
the first strike wherein the same individual applicants
were
involved, and there were letters that were communicated to the union
warning them about the consequences of the strike and
encouraging it
to refer the dispute to the relevant forum but it failed to do so.
Without any doubt, the evidence points to the
fact that, the planning
of the strike involved the union, there was an attempt that was made
by Mr Snyman to the official of the
union to meet and discuss the
issues and the latter attended at the first respondent’s
premises and shop stewards did communicate
with the official,
moreover the members were asked to leave the premises which they
should have used that opportunity to communicate
with the union, but
they refused to do so until they were suspended. Therefore, I
conclude that the respondents were justified
in not fully complying
with the requirements of section Code 6(2) of the Code of Good
Practice.
[69]
Be that as it may, I am of the view that the “cooling off
period” given to the employees to reflect on their conduct
was
too short, meaning they were not given a fair opportunity to apply
their mind to the consequences of embarking on an unprotected
strike
action and also, taking into account that the official did not
address them in person but was communicating with the shop
stewards,
therefore giving employees less than an hour and the night shift was
given less than 30 minutes, to apply their mind,
which period is not
enough.
Issues
G and I (Aggravating and mitigating circumstances)
[70]
As I have indicated above, a strike action is not a licence to
dismiss without taking into account the surrounding circumstances.
.A
number of considerations has to be taken into account. Firtstly, the
first respondent, in respect of the issues of Ms Radebe
and Mr
Mhlinza committed acts of victimisation and intimidation; and
secondly, that the cooling off period given to individual
applicants
was not enough, however attempts made to communicate with the union
(which looks like there was only one official who
was assigned to
deal with the first respondent) was enough and the failure of the
respondents to issue ultimatums to the union
after the commencement
of the strike but instead sent them to the individual applicants is
excusable given the circumstances.
[71]
Now I have to determine whether the sanction of dismissal imposed on
the second to further applicants was appropriate considering
the fact
that the strike lasted for less than three hours and the fact that
the strike was not violent.
[72]
At the same time, what aggravates the conduct of the individual
applicants,
inter alia
, is that no attempts were made to
comply with the provisions of the LRA, the employees have not
acknowledged their misconduct,
the first respondent lost R482 000 in
production due to the unprotected strike, this was not the first
unprotected strike by the
individual applicants relating to the same
issues. The strike was well planned by the individual applicants, as
a result of the
conduct of the first respondent and they demanded
that certain managers of the first respondent be dismissed within
seven days.
[73]
I have taken into account the submission by the respondent’s
representatives that because there are allegations of racial
discrimination that were made against the first respondent such
justify dismissal. Mr Boda referred me to authorities both of this
Court and of the LAC in respect of racial discrimination cases. As
this Court is alive to acts of racism within and outside the
employment sphere, my view is that each and every case has to be
determined on its own merits and circumstances. For example, the
argument of the first respondent’s representative is
extinguished by the Constitutional Court in the matter of
Duncanmec
(Pty) Limited v Gaylard NO and Others
[31]
where Jafta J, for the Court said,
“
[48] There is no
principle in our law that requires dismissal to follow automatically
in the case of racism.
And
“
[49] Realising
that the law did not support the proposition that every employee
guilty of racism should be dismissed, Duncanmec’s
legal
representative changed course and urged this Court to lay down such
rule to facilitate the eradication of racism in the workplace.
This invitation should be declined because such a rigid rule would be
inconsistent with the principle of fairness which constitutes
the
benchmark against which dismissals are tested.”
[74]
As much as I conclude that the sanction of dismissal was harsh taking
into account the mitigating factors as mentioned above,
I am of the
view that the reinstatement would not be an appropriate relief under
the circumstances, taking into account that the
two issues that were
presented before me in respect of victimisation and intimidation were
not persuaded by the union and individual
applicants to the relevant
forum such as the CCMA but instead opted to engage in two unprotected
strike actions. I have also taken
into account that looking at the
petition, the number of allegations that were made against the first
respondent are sensitive
but not proven. Furthermore, having heard
the testimony of the witnesses of the applicants, clearly in their
view, this is not
the end of the case as they still believe that the
first respondent has committed a number of discriminatory acts
although most
of the versions were not put to the witnesses of the
respondents, as I have mentioned above. Mr Kuane, on behalf of the
applicants
during opening statements mentioned that the issues
between the parties are dated as far back as 2010. Moreover, the
entire circumstances
of this matter do no support a possibility of a
harmonious working relationship. Therefore, an order of both either
reinstatement
or reemployment will not be proper under the
circumstances. I am of the view that compensation would be an
appropriate relief.
In awarding compensation as I do
infra
, I
have noted that both parties did not approach Court with clean hands.
The actions of the individual applicants are reprehensible,
but
equally so are those of the respondents.
[75]
In the premises, I make the following order:
Order
1. All the individual
applicants whose names are listed in paragraph 6 of this judgment, as
submitted to this Court by the second
respondent, were not dismissed.
2. The dismissal of the
remaining individual applicants by the first and second respondents
was procedurally unfair.
3. The dismissal of the
remaining individual applicants by the first and second respondents
was substantively unfair.
4. The first and second
respondents are ordered to pay each of the dismissed employees
compensation equivalent to four (4) months
salaries calculated at the
date of dismissal.
5. Each party to pay own
costs.
____________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr S Kuane, the union official
Instructed
by: Food and Allied Workers Union
For
the First Respondent: Adv Boda SC
Instructed
by: Werksmans Attorneys
For
the Second Respondent: Advocates H A Ven Der Merwe and M Morake
Instructed
by : Senekal Simmonds Inc.
[1]
(5) If a council or a commissioner has certified that the
dispute remains unresolved, or if 30 days or any further period
as
agreed between the parties have expired since the council or the
Commission received the referral and the dispute remains
unresolved—(b)
the
employee may refer the dispute to the Labour Court for adjudication
if the employee has alleged that the reason for dismissal
is—…the
employee’s participation in a strike that does not comply with
the provisions of Chapter IV…”
[2]
Act 66 of 1995 as amended.
[3]
Pre-trial minutes, page 114, para 2.45.
[4]
Ibid, pages 115 to 124.
[5]
2016 (11) BCLR 1440 (CC).
[6]
At para 173.
[7]
See
Sidumo
and another v Rustenburg Platinum Mines Limited and Others
[2007]
12 BLLR 1097 (CC); 2008 (2) SA 24 (CC) ;(2007) 28 ILJ 2405 (CC);
2008 (2) BCLR 158 (CC).
[8]
Court’s own emphasis.
[9]
This was abandoned by the second respondent during the trial.
Therefore, no pronouncement is made herein. (
Issue
C
).
[10]
Item 6(2) of the Code of Good Practice reads: (2) 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.
[11]
Section
192. Onus in dismissal disputes. - (1) In any proceedings concerning
any dismissal, the employee must establish the existence
of the
dismissal.
[12]
Consolidated Bundle of Documents, page 11(The petition item 1.5).
[14]
191. Disputes about unfair dismissals and unfair labour practices.-
(1) (a) If there is a dispute about… an
unfair
labour practice… the employee alleging the unfair labour
practice may refer the dispute in writing to—
(i)a council, if the
parties to the dispute fall within the registered scope of that
council; or
(ii)the Commission, if
no council has jurisdiction.
(b)
A referral in terms of paragraph (a) must be made within—
(ii) 90 days of the date
of the act or omission which allegedly constitutes the unfair labour
practice or, if it is a later date,
within 90 days of the date on
which the employee became aware of the act or occurrence.
[15]
Employment Equity Act No. 55 of 1998
.
[16]
Reference
to ‘the official’ in this judgment shall be reference to
Mr Phillip Nkosi.
[17]
Pre-trial minutes, at page 112, para 2.36.
[18]
Court’s emphasis.
[19]
Pre-trial minutes, page 116 to 117 at para 2.53.
[20]
Court’s emphasis.
[21]
[2014]
1 BLLR 31 (LAC); (2014) 35 ILJ 642 (LAC) at para 29.
[22]
Act
72 of 1982 as amended.
[23]
[2001] 9 BLLR 979
(LAC).at para 19.
[24]
1999
(10) BCLR 1059 (CC).
[25]
Id
n
24
at
.
paras 59 and 61
.
[26]
(J890/97)
[1998] ZALC 128
(18 December 1998).
[27]
2016
(11) BCLR 1440 (CC); [2016] 11 BLLR 1059 (CC); (2016) 37 ILJ 2485
(CC) at para 65.
[28]
[2005] 11 BLLR 1126 (LC).
[29]
(1993) 14 ILJ 1000 (LAC).
[30]
See
R v
Blom
1939
AD 188.
[31]
2018 (11) BCLR 1335
(CC);
[2018] 12 BLLR 1137
(CC);
2018 (6) SA 335
(CC); (2018) 39 ILJ 2633 (CC).