AMCU obo Rantho and Others v Samancor Western Chrome Mines (JS215/14; JS406/14) [2019] ZALCJHB 85 (17 April 2019)

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[2019] ZALCJHB 85
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AMCU obo Rantho and Others v Samancor Western Chrome Mines (JS215/14; JS406/14) [2019] ZALCJHB 85 (17 April 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JS 215/14 &
JS 406/14
In the matter between:
AMCU obo LS RANTHO &
158 OTHERS

First Applicant
TEBOGO MOSES
MATHIBA

Second Applicant
And
SAMANCOR WESTERN
CHROME MINES

Respondent
Heard:          25,
26, 27, 28 & 29 June 2018 & 23 July 2018
Delivered:    17 April 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
On 13 December 2013, the respondent (Samancor), dismissed
650
employees who are members of AMCU following their participation
in an unprotected strike. Following the dismissals, and in the course

of processing and preparing for appeal hearings, Samancor and AMCU
entered into a settlement agreement on 26 January 2014,
in
terms of which all but 159 employees (The individual applicants) were
reinstated. Under the terms of the agreement, AMCU reserved
its
rights to pursue the dispute concerning those employees who were not
reinstated.
[2]
Following a
referral of a dispute to the Commission for Conciliation Mediation
and Arbitration (CCMA) and failed attempts at conciliation,
the
individual applicants as represented by AMCU approached this Court to
challenge the fairness of the dismissals within the meaning
of the
provisions of sections 186(1) and 186(1)(d) of the Labour Relations
Act (LRA)
[1]
.
[3]
The second applicant (Mathiba) had initially instituted a separate
claim
from the other individual applicants. The claims were
subsequently consolidated by an order of this Court on 17 April 2015.
[4]
Samancor opposed the applicants’ claim and contended that they
were
dismissed for a fair reason pursuant to a procedural compliant
process in which  AMCU was an active participant.
Common
cause facts:
[5]
The individual applicants were employed by Samancor at its Mooinooi
and
Millsell mining operations. The two mines are part of Samancor’s
Western Chrome Mining Division, which is in turn, a division
of
Samancor Chrome Limited
.
[6]
At the time of the strike, Samancor recognised three trade unions
within
the Western Chrome, namely, AMCU, NUM and UASA. The unions had
full-time shop stewards and offices at the sites.
[7]
The strike commenced at the start of the morning shift at Millsell
and
Mooinooi on 25 November 2013. Upon the commencement of
the strike, members of AMCU approached the management of Samancor
at
both its Mooinooi and Millsell operations with a list of demands
(‘AMCU Members Demands’). At some point in the
morning,
the employees submitted a memorandum with further demands.
[8]
During the course of the strike, management had then instructed
non-striking
employees at both mining operations to leave the sites
due to safety concerns. The dismissed employees had failed to tender
their
services on that day, for the morning, afternoon and evening
shifts.
[9]
Several meetings were held between management and AMCU
representatives
during the course of the strike. When the employees
failed to resume their duties, management then issued two ultimatums
imploring
the employees to return to work. The employees resumed
their normal duties on 26 November 2013 at 06h30 instead of
06h00.
[10]
On
6 December 2013, Samancor charged all its employees who had
not rendered their services on 25 and 26 November 2013
with
gross misconduct for participation in an unlawful and unprotected
strike. The notices
[2]
were sent
to all the representatives of the three unions and the disciplinary
enquiries were scheduled to be held on 11 and 13
December 2013. The
notices were also placed on Samancor’s notice boards. The
individual applicants were then dismissed on
13 December 2013, under
circumstances which will be elaborated upon later in this judgment.
[11]
The representatives of Samancor and AMCU met on 7 January 2014
to discuss the
processes of lodging and conducting the appeal. It was
agreed that the appeal would be held on 22 January 2014 and
23 January 2104.
Before the commencement of the appeal, the
parties commenced settlement discussions surrounding the dismissed
employees. This had
resulted in a settlement agreement. Clause 2 of
the agreement provided that;
2.1.1
Employees on leave
2.1.1.1
The Company will reinstate 127 employees, as listed in
annexure B
of this agreement. These employees were identified to have been on
leave or not required to be at work on 25 November 2013.
2.1.1.2
The re-instatement will retrospective to the date of dismissal and
employees will
be paid all outstanding salary due.
2.1.2
Employees who reported for work but did not proceed to their
workstations
2.1.2.1
The Company will reinstate 134 employees, as listed in
annexure C
of this agreement. These employees were identified to have
reported for work, but did not proceed to their workstations.
2.1.2.2
The re-instatement will be retrospective to the date of dismissal and
employees
will be paid all outstanding salary due.
2.1.3
Employees not on a final written warning
2.1.3.1
The Company will re-instate 365 employees, as listed in
annexure D
of this agreement. These employees failed to report for work on 25
November 2013, but were not on a valid final written warning
as at 25
November 2013.
2.1.3.2
The re-instatement will be retrospective to the date of dismissal and
the employees
will be paid all outstanding salary due.
2.1.3.3
The employees, as listed in
annexure D
, will be issued with a
final written warning valid for a period of 12 months. The final
written warning will commence on the date
of the signature of this
agreement.
2.1.4
Employees with prior final written warnings.
2.1.4.1
By the time the 159 employees were dismissed, as listed in terms of
annexure E
, the employees referred to had valid final written
warnings for similar misconduct.
2.1.4.2
The employees, as listed in
annexure E
will not be reinstated,
and their dismissals is effective from 13 December 2013.
2.1.4.3
The Union reserves its rights to refer a dispute as provided for in
terms of the
Labour Relations Act, and the employer will have the
same right to challenge such a referral in terms of the Labour
Relations Act.’
[12]
The final
written warnings referred to in the settlement agreement were those
that were issued to the employees in July 2013,
following upon
their participation in another unprotected industrial action that
took place on 28 and 29 May 2013
at the Mooinooi
Shaft
[3]
.
The
trial proceedings:
[13]
During the trial proceedings two judgments in regards to
interlocutory applications
were
handed
down on 8 November 2017 and 25 June 2018
respectively.
[14]
The first
related to
in limine points
raised by the applicants
.
A judgment was delivered in that
regard on 8 November 2018, in terms of which the Court
ruled that the applicants were
precluded from challenging the
validity of the final written warnings which were issued to them and
other employees in July 2013.
The applicants were however
permitted to challenge the procedural fairness of their dismissals
that took place on 13 December 2013.
They were however
barred from leading evidence to determine whether they were the 159
employees identified in clause 2.1.4.1 of
the Settlement Agreement.
[15]
Subsequent to the delivery of the above judgment, the applicants
brought a further application
seeking rectification of clause 2.1.4.1
of the Settlement Agreement. Upon the hearing of evidence in regards
to the application
for rectification, Samancor sought absolution from
the instance. In a judgment delivered on 25 June 2018, the
Court
inter alia
could not find a
bona fide
mistake,
which was common to the parties, which would necessitate the
rectification of the settlement agreement, in particular
the impugned
clause. The application for absolution in respect of the
rectification application was thus granted.
The
evidence:
[16]
The applicants challenged the substantive fairness of their dismissal
on a variety of grounds,
including that the sanction was harsh and
thus unfair; that Samancor provoked the strike by refusing to accord
AMCU collective
bargaining rights at Western Chrome Mine, and also
allowed one of its Human Resources Official (Francinah Nare) to
recruit members
on behalf of NUM.
They further
challenged Samancor’s conduct of selectively reinstating other
employees to their exclusion.
[17]
The applicants also challenged the procedural fairness of the
dismissals, on the grounds
that the disciplinary chairperson
proceeded with the enquiries in AMCU’s absence, and further
since appeal proceedings instituted
by the employees were postponed
for longer than the two days stipulated in Samancor’s
disciplinary code and procedure.
[18]
Samancor led the evidence of Mr William Smart (Smart), its General
Manager, in regards
to events and the circumstances which led to the
dismissal of the individual applicants. His evidence is summarised as
follows:
18.1
In late May 2013, members of AMCU embarked on an unprotected
industrial action for two days
in support for a demand that it be the
sole recognised union at the Mooinooi and Millsell mines. Flowing
from that strike, all
the employees that had participated in it were
issued with final written warnings in July 2013. A dismissal
could not be considered
at the time due to the volatile conditions
that prevailed at the time, which were exacerbated by trade union
rivalry (mainly between
NUM and AMCU).
18.2
On 25 November 2013, AMCU members embarked on another
unprotected strike, and it was
unclear at the time as to what could
have triggered it. A meeting was convened by Smart with the AMCU shop
stewards and a number
of human resource management personnel.
18.3
In the meeting, a list of demands was handed over to Smart. The
primary demand was that one of
Samancor’s Human Resources
officers, (Ms Francinah Nare) be immediately removed from the
Mooinooi Mine, as she was accused
of having acted in a biased manner
against AMCU and its members in favour of NUM. This was the first
time that such complaint or
demand was brought to the attention of
Samancor.
18.4
Other demands made were that NUM should be removed from the Western
Mines, that AMCU should be
accorded recognition, and that acting
positions should be done away with. The strike according to Smart was
further accompanied
by acts of vandalism of NUM offices.
18.5
The demand for NUM’s removal came about under circumstances
where initial recognition agreements
were entered into with NUM,
Solidarity, NUMSA and UASA in May 2006. When AMCU gained
substantial membership, an addendum to
the recognition agreement was
concluded in February 2013, in terms of which AMCU became party
to that recognition agreement.
18.6
In terms of the recognition agreement, a trade union required 20%
plus 1 to enjoy organisational
rights; 30% plus one for bargaining
rights and 20% plus one for bargaining purposes. In May 2013,
AMCU had 20.5% in the operating
unit.
18.7
As a result of employees changing allegiances from NUM to AMCU, the
latter then demanded that
Western Mines be separated from the Eastern
Mines and to form an independent bargaining unit on its own. The
membership figures
at Western Mines which AMCU sought to make a
separate bargaining unit had not however exceeded 30% plus one.
18.8
The meeting on 25 November 2013 held with AMCU
representatives was concluded at about
15:00. The employees on the
afternoon shift nevertheless failed to return to work after that
meeting. An ultimatum was sent to
the employees via ‘SMS’.
Employees on the night shift of 25 November 2013 failed to
report for duty notwithstanding
the ultimatum. A further ultimatum
was issued to the employees on 26 November 2013, at 05:30
before the commencement
of the morning shift. The further ultimatum
was sent to AMCU via fax. The employees reported for duty at 07:00 on
the morning of
26 November 2013 as opposed to their normal
time being 06:00.
18.9
Employees who were members of other trade unions were also charged
for misconduct for participating
in the unprotected industrial
action. These were however exonerated, as it was established that
they were intimidated into participating
in the unprotected strike.
18.10   Under
cross-examination by Mr Schöltz on behalf of Mathiba, Smart
conceded that the ultimatum issued on 26 November 2013
had
created the impression that those employees who had elected to return
to work would be shielded from dismissal. He however,
testified that
notwithstanding that impression, the employees were still to be
subjected to a disciplinary process, and those that
were previously
issued with a final written warning for similar transgression were
dismissed.
18.11
According to Smart, all those employees who had not presented
themselves for duty were assumed to have participated
in the
industrial action. The employees were nevertheless given a further
opportunity to explain their whereabouts during the unprotected

industrial action. There were about 2 000 employees that had
participated in the industrial action.
18.12   Smart
testified that some of the employees had tendered their services and
proceeded to their workplaces during
the strike. They together with
some independent contractors were however prevented from resuming
their duties by other employees
who had blockaded access to the
surface workplace. The employees were however given a further
opportunity to explain their whereabouts
during the unprotected
industrial action.
18.13   In
respect of Mathiba, the clocking records showed that on
25 November 2013, he went to the change-house
at 07:27 in
the morning. However, the timeline of his movements indicated that he
could not have gone underground because he had
not clocked in.
According to his clocking records, Mathiba was at the main gate at
05:53 and ought to have been at the change-house
by 06:00. As an
underground employee, he was supposed to have proceeded to the
lamp-house to get his underground equipment. At
10:13 he went to the
surface and at 11:27 he clocked in at the post to go underground. He
clocked-out at 11:28 and at 11:59 he
left the premises. The clocking
system was therefore a tool used to determine whether an employee had
in fact clocked in for duty
and rendered his/her services.
18.14   Smart
could not respond to the allegation that Mathiba was instructed
(along with others) by his Foreman (Phindi)
to return to surface. He
was unaware of Mathiba’s union affiliation and could not
comment on his allegation that he had not
participated in the strike.
He was nonetheless advised to attend the internal disciplinary
hearings through multiple notices placed
at the premises. Smart
conceded that other means of notification such as ‘SMS’
were not used to notify employees of
the hearings.
18.15   Under
cross-examination by Mr Redding on behalf of other individual
applicants, Smart further testified that;
18.15.1
During the disciplinary preliminary proceedings, the implicated
employees were divided into two groups,
vi
z, those who were on
leave of absence, and those who had reported for duty but did not
proceed to their work station.
18.15.2
There was a general reinstatement of the employees who participated
in the unprotected industrial action,
with the exception of those
that had a final written warnings on their records.
18.15.3
Following the lodging of appeals, that process was not pursued in the
light of the conclusion of the settlement
agreement. In terms of that
agreement, employees were not taken back based purely on the fact
that they had final written warnings
on their records.
18.15.4
The employees were disciplined notwithstanding assurances contained
in the ultimatum that this would not
be the case should they return
to work on 26 November 2013.
18.15.5
A decision was taken at a management meeting held on 6 December 2016,
that all the employees
who failed to clock-in were to be disciplined
on the charge of  “
gross misconduct in that on
25 November 2016 [they] collectively, and common purpose,
alternatively by association or
making common cause with the
collective participated in an unprotected/unlawful strike
”.
18.15.6
Three separate disciplinary hearings were held in respect of members
of the three different trade unions.
The disciplinary hearings in
respect of UASA and NUM members were held on 11 December 2013.
The members of the two unions
were not found guilty in terms of
findings made on 13 December 2013.
18.15.7
AMCU however did not attend the disciplinary hearings. On
10 December 2013, AMCU sent an email
to Samancor advising
that it was not available to attend the hearings and that it would
only be available on 16 or 21 January 2014.
Samancor’s
response on 10 December 2013 was that the hearings would
proceed as planned and in AMCU’s absence.
18.15.8
The Chairperson of the hearings, Mr Andries Nieuwoudt on
11 December 2013, wrote to the Secretary
of AMCU, Mr
Mphahlele advising him that the hearings had proceeded in AMCU’s
absence; that the decision on the guilt of the
employees was
reserved, and would be handed down on 13 December 2013; and
that he (Mphahlele) should attend on that date
as the employees would
be given an opportunity to plead in mitigation, whilst Samancor would
present its aggravating factors before
a sanction was pronounced.
AMCU however did not attend the hearings on 13 December 2013
.
18.15.9
Smart conceded that Samancor was due for an annual shut-down on
13 December 2013, and that it
could have been possible to
hold the enquiries in the new year. He however denied that the
dismissals were rushed with the objective
of denying the employees
their end of year bonuses.
18.15.10 Smart conceded
that there was no indication that AMCU had no intention of attending
the disciplinary hearings. Its stance
however was that it was not
available on that particular date. He contended that AMCU had not
proffered an excuse or apology for
not attending, and Samancor’s
view was that the hearings should proceed since there were AMCU shop
stewards who could have
represented the other employees.
18.15.11 Smart’s
contention was further that it was not unreasonable for Nieuwoudt to
come to the conclusion that AMCU did
not care to attend the hearings;
that AMCU was arrogant and disrespectful of management authority; and
that the strike was accompanied
by violence.
[19]
Samancor’s Employee Relations Practitioner, Mr Kagiso Rakoma
(Rakoma), testified
in regards to how it was determined which of the
employees had tendered their services; which employees had
participated in the
unprotected industrial action, and which ones
were on a valid final written warnings. His evidence is summarised as
follows:
19.1.
When the employees were charged and had denied having participated in
the unprotected industrial
action, the Human Resource department had
undertaken verification process utilising the clock cards, the
clocking system, the gang
cards and interviews with concerned
supervisors to determine which of the employees were on strike, which
ones were on sick leave
(and/or other form of leave of absence), and
which ones were at training courses and/or medical evaluations.
19.2.
After the verification process was completed, employees’
disciplinary records were also
looked at , particularly after the
appeal process was initiated.
19.3.
He confirmed that an instruction was issued to employees working on
surface employees to go
home at around 12:00 midday on
25 November 2013, but that a similar instruction was not
issued in respect of employees
working underground.
19.4.
In respect of his analysis of the individual employees’
movement on the day of the unprotected
industrial action, Rakoma
testified as follows:
19.4.1.   The
procedure for underground workers is that they should proceed to the
green area, where safety issues were
to be addressed and clocking
cards issued. The employees would then proceeded to the workplace
where a supervisor would mark the
gang card to confirm the employee’s
attendance.
19.4.2.   In
respect of one of the applicants, Ms Elizabeth Matsena (Matsena), the
clock card reveals that at 05:04 she
had entered the main gate and,
had clocked in to be paid and at 05:14 and proceeded to the
charge-house. At 06:03 she clocked in
the lamp-room to receive her
equipment. She then clocked-out at 09:39 and she remained in the
respondent’s premises until
17:34 in the afternoon. Her shift
was scheduled to end at 15:00 that day.
19.4.3.   In
respect of Ms Sylvia Mafaladi (Mafaladi), the clocking system
revealed that she had clocked-in at 05:58 and
entered the
change-house and 07:32, she proceeded to the crush house (green
area). At 07:44, she went underground and at 09:32,
she left the
underground area. It usually takes about one hour 30 minutes for an
employee to leave the underground area through
(entrance/passage)
MG1. She was supposed to proceed to underground between 0600 and
06:15 but she only went there at 07:32 and
thus could not have worked
that day.
19.4.4.   In
respect of Mr Lindile Kubashe (Kubashe), he clocked in at 06:02 at
the mining attendance area which is designated
for underground
employees. However those employees scheduled to undergo training
should not be reporting to that area. Kubashe
was scheduled to attend
training on 25 November 2013 (the day of the unprotected
industrial action). There was a further
obligation on Kubashe to
clock-out but he did not do so.
19.4.5.   It
could not be verified whether Kubashe had attended the scheduled
training through the attendance register,
hence he was included in
the list of employees who had participated in the unprotected
industrial action.
19.4.6.   The
same holds for Mr Mthokozisi Noguda (Noguda) who was equally
scheduled to undergo training on 25 November 2013.
The
clocking records show that he accessed the mine at 05:34 by vehicle
and proceeded to clock-in at 05:38 at the crush area and
accessed the
underground area at 05:39. He then left the respondents premises at
17:36 in the afternoon. An employee scheduled
for training did not
need to go to the crush office as he did not need equipment to attend
the training centre.
19.4.7.
Rakoma confirmed that employees at the training centre were at some
point during the strike instructed to leave
due to the unprotected
industrial action. He however contended that Noguda’s movements
did not indicate that he attended
the training.
19.4.8.   In
respect of the second respondent (Mathiba), he was an underground
employee and the clock system showed that
he accessed the premises
through the main gate at 05:53, and at 07:24 he proceeded to the
changing-house and exited at 07:30. Rakoma’s
view was that it
was impossible to change into the requisite clothing within three
minutes. Moreover, his shift ought to have commenced
at 06:00 and
there is no indication that he went underground. If he had gone
underground, his clocking card would have indicated
as such.
[20]
The evidence on behalf of the individual applicants is summarised as
follows:
20.1.
Mfaladi testified that on 25 November 2013, she arrived at
the workplace at 5:58 and proceeded
to the change-house. At 07:32,
she went to the crush area to pick-up her working equipment for use
underground. She further went
to another area to pick-up material
and/or equipment for use underground.
20.2.
At 07:45 she proceeded to enter the underground section. There are
two shafts being MG1 and MG2 and
those shafts were connected
underground. She proceeded to go to her underground station through
MG1. Upon her arrival, she realised
that there were no other
employees in that section. She testified that employees are generally
not permitted to work on their own,
and she thus proceeded to the MG2
section of the shaft. When she arrived at MG2, there was a crew at
the waiting area having a
safety meeting. The crew, included Matsena,
and they had all signed an attendance register, a copy of which
formed part of the
trial bundle.
20.3.
Thereafter, the team leader allocated work to the employees and they
then proceeded to another work
area. Moments later, another employee
came and informed them that there was a radio communication which
instructed all the employees
to leave the underground area. This was
because they were told there was commotion on surface.
20.4.
At 09:32, Mfaladi and others left the underground area and went to
the crush area. They were then
called to the shift boss’
office, who had instructed them not to leave immediately whilst the
situation was being monitored.
She the clocked-out at the Survey area
where she had earlier clocked-in and left the premises. She contended
that she did not participate
in the strike.
20.5.
Mr Lucas Molaulwa (Molaulwa), testified that he should not have been
dismissed as his name appeared
on the attendance register of the
training course scheduled to be held between 25 to 28 November 2013.
20.6.
He had attended the training course on the day of the unprotected
industrial action, and clocked-in
at 06:22 and proceeded to the
training centre at 07:00. During the course of the training, other
employees who were on strike interrupted
the training and told them
to go and join a march to management to hand in a memorandum. They
were then told to leave the training
centre by the striking
employees.
20.7.
Mr Mphahlele, AMCU’s General Secretary testified in regards to
the circumstances and background
leading to the unprotected
industrial action on 25 November 2013 and the employees’
main demands. He was involved
in the negotiations to return to work
in respect of the 28-29 May 2013 industrial action and
confirmed that the employees
were issued with final written warnings
for their participation in that strike.
20.8.
Central to the employees’ demands was the recognition of AMCU
for bargaining rights, which Samancor
had not agreed to. Samancor had
entered into a recognition agreement with other trade unions in May
2006. AMCU subsequently became
party to the recognition agreement by
signing an addendum to that agreement
in early
2013
AMCU. Obstacles however remained as Samancor contended
that AMCU had not met the threshold for other rights. At the time,
AMCU
enjoyed 20% representation.
20.9.
The obstacles were as a result of recognition agreement having been
designed in such a manner that
the Eastern and Western mines
constituted one bargaining unit, even though the Eastern mine was in
Mpumalanga Province while the
Western mines were in the North-West
Province. He contended that there was no operational interaction
between the two components.
20.10.  AMCU
according to Mphahlele had always disputed the membership figures of
NUM, and it was of the view Samancor refused
to grant it recognition
rights at the mines due to the influence of its Mr Archie Palane, and
his allegiance to NUM. (Palane is
a former NUM official).
20.11.  The
recognition agreement as it stood was to the benefit of NUM which
could organise at the lower levels. The membership
numbers of AMCU
were strong in the Western mines, while the NUM numbers were strong
in the Eastern mines.
20.12.  Mphahlele
further testified that the membership threshold was unfairly
calculated by combining the two mines, leading
to AMCU’s
demands that NUM be de-recognised as holder of bargaining rights, as
it had more membership at the mines, but could
still not negotiate on
behalf of its members.
20.13.  A further
complaint by Mphahlele related to Samancor’s junior officials,
who took time to process AMCU’s
stop-order forms. He confirmed
that the industrial action of May 2013 was in relation to the
recognition agreement, and AMCU’s
stop-orders not being
processed in time.
20.14.  The
employees according to Mphahlele, took it upon themselves to deal
with the issue of the recognition agreement with
the management
directly, as they were of the view that AMCU was slow in resolving
the issue.
20.15.  Mphahlele
had attended at the premises at around midday on 25 November 2013
to attempt to resolve the strike
secure a date for the discussions on
the recognition agreement. Following from his discussions with
management, it was agreed with
Smart that the employees would return
to work the next day, hence the employees did so the following day.
There was no indication
thereafter, that Samancor contemplated taking
disciplinary steps against the employees.
20.16.  When the
disciplinary hearings were scheduled to take place on
11 December 2013 and 13 December 2013,
AMCU had
requested a postponement of the hearings its head of legal, Mr
Phillipus Marais, was not available, and only he would
have dealt
with such complex matters.
20.17.  A further
consideration was that AMCU was due to close down its offices on
13 December 2013. It had requested
a meeting with the
management to be held on 12 December 2013 and had not
received a response in that regard.
20.18.  The
disciplinary hearings according to Mphahlele were a witch-hunt to
weaken AMCU, as there was no need rush the holding
of the
disciplinary hearings in December 2013. He further contended
that the rush to hold the hearings was a further ploy
by management
to avoid paying the employees their end of year bonuses.
20.19.  Under
cross-examination, Mphahlele conceded that he became aware of the
set-down dates for the disciplinary enquiries
after receiving
correspondence in that regard on 6 December 2013. He however
contended that he or AMCU representatives could not
attend the
enquiries to even seek a postponement as he was in constant contact
with management; that AMCU was pressed for time
and short staffed. He
however testified that the Full-Time Shop Steward, Mntombi, attempted
to get a postponement, and that the
matter needed the attention of
AMCU’s head office.
20.20.  Mphahlele
further confirmed that the email from Nieuwoudt was received and that
he had not responded as he did not
ordinarily deal with disciplinary
matters.
20.21.  In regard to
the demand concerning  Nare, Mphahlele confirmed that
management’s response was that the union
should lodge a formal
grievance. He however contended that the demand in respect of Nare
was ancillary.
[21]
Mathiba’s testimony was that:
21.1.
He commenced his employment in August 1994, and at the time of
the dismissal, he was employed as an
electrician. He was previously a
member of UASA and had joined AMCU in September/October 2013.
21.2.
Having arrived at the premises on 25 November 2013, he went
to the change-room, collected his
job card from his supervisor
(Phindile Ngakane), proceeded to the crush area to collect his
equipment, and thereafter went to the
lamp-house. He then clocked-in
and proceeded to underground. In his experience it is possible that
the clocking system may be faulty
fail for whatever reason.
21.3.
Having proceeded underground, he and another employee came across a
miner at the 10
th
level station, who informed them that
the other employees had not reported for duty. They then had to wait
for other employees
to arrive as they could not commence with their
duties before the other employees had cleared the section.
21.4.
Between 10:00 and 11:00, his supervisor called him over the radio and
informed him and others that they
must return to the surface. They
had complied with the instruction. They first went to the lamp-house
and then continued to the
supervisor’s office, who had informed
them that they should remain at the workplace whilst waiting for a
decision by management
about what to do, as there was a strike. At
some point, he and the other employees then left the premises and
came back the following
day after having received an ‘SMS’
from management.
21.5.
Mathiba further testified that he was not aware of the disciplinary
hearings having taken place, and only
became aware of them on
8 January 2014 when he attempted to clock in and was
advised that he was dismissed. He further
testified that other people
(Lucas and David) he was with on 25 November 2013 were
however not dismissed. From his group
that was underground at the
time, he and the miner were dismissed. Following their referral of a
dispute, the miner was subsequently
reinstated.
21.6.
Under cross-examination, reference was made to his clocking
record/card and movements as attested to by
Makoma. Mathiba disputed
the correctness of the records in respect of some of his movements.
When it was put to him that the clock
card did not show that he did
not go underground or the lamp-room, his response was that the
records were not a true reflection
of what took place.
The
legal framework:
[22]
The strike
embarked upon by the employees in this case was unprotected. In
considering whether the dismissals were fair, section
68(5) of the
LRA
[4]
enjoins this Court to
have regard to the provisions of the Code of Good Practice: Dismissal
in Schedule 8.
[23]
Item 6(1) of the Code provides that while participation in an
unprotected strike amounts
to misconduct, a dismissal does not need
to necessarily follow, as the substantive fairness of the dismissal
must be measured against:
(i)
the seriousness of the contravention of the LRA;
(ii)
the attempts made to comply with the LRA; and
(iii)
whether or not the strike was in response to unjustified conduct by
the employer.
[24]
In
Transport
and Allied Workers Union of South Africa obo Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd Limited
[5]
,
it was
held that where striking workers engage in unprotected strike action,
the onus rests on them to tender an explanation for
their unlawful
conduct, failing which their dismissal will be regarded as
substantively fair, provided dismissal was an appropriate
sanction.
[25]
There can
be no doubt that the strike in this case was clearly in serious
contravention of the provisions of section 64 of the LRA,
as no
attempt was made whatsoever  to comply with those provisions. To
the extent that there might have been allegation that
the strike was
provoked, the demands that led to the strike as submitted to Smart on
25 November 2013 were as follows
[6]
;
‘
AMCU MEMBERS
DEMANDS
(Sic)
1.
“
Francinah (Nare) must go now – No Procedure!!
2.
Recognition Agreement date demand
3.
No acting position, RDO’s, T/Leaders etc
4.
Labour Hires signed on
5.
NUM out as AMCU majority
We
want to go underground to perform our duties, so solve this issues .
Now!’
(Sic)
[26]
A subsequent memorandum submitted by the employees as already
attested to by Smart read;
‘
MEMORANDUM.
We
need the separation of Eastern and Western Chrome Mine
NUM
Asiyifuni apha
Willem
Koekemoer and Jimmy Mokoka asibafuni apha’
(Sic)
[27]
Arising from the above, Mphahlele’s contentions were that
central to the demands
of the employees was that the long standing
recognition agreement entered into with the other unions be amended
so as to accord
AMCU recognition for collective bargaining purposes.
The demand went further as the employees wanted NUM to be
de-recognised, that
the two mines be separated, and that individuals
such as Nare, Koekemoer and Mokoka be removed from the workplace.
[28]      The
demands are nonetheless were unlawful and impermissible. If AMCU
sought to have the
recognition agreement amended or NUM be
derecognised for whatever reason, an unprotected strike in pursuit of
those demands was
clearly not the option, as various other legal
options were available to AMCU to achieve those objectives.
[29]
The demand in regards to the removal of Nare and other individuals
was also impermissible,
particularly in the light of Mphahlele’s
concessions that AMCU or its members could have lodged a formal
grievance in that
regard. Not much evidence was led in regards to the
other demands, and I will not burden this judgment with a
determination as
to whether they were permissible or not.
[30]
On the whole however, there is no basis for any conclusion to be
reached that the strike
was provoked or precipitated by any unlawful,
unacceptable or unreasonable conduct on the part of Samancor. The
employees’
demands or grievances could have been addressed by
alternative means other than through an unprotected strike. This was
even moreso
given the fact that the issues surrounding the
recognition agreement had been on-going as evident from the May 2013
unprotected
strike.
The
individual applicants alleged not to have participated in the strike.
[31]
Central to the defence of Mathiba, Mfaladi, Matsena, Molaulwa,
Noguda, and Kubashe, is
that they were not participants in the
strike, and therefore ought not to have been dismissed. It was also
common cause that these
individuals were also issued with final
written warnings previously for similar misconduct.
[32]
It is accepted that AMCU made certain concessions in the pre-trial
minute which impact
on these individuals, including that they had
participated in the strike. An amendment to the statement of claim or
the pre-trial
minutes was also not forthcoming. Fairness however
requires that the evidence in regards to these individuals be looked
at holistically
in determining whether they had participated in the
strike or not. This is so in the light of the criteria agreed to in
the settlement
agreement leading to the selective reinstatement of
other employees.
[33]
The evidence of Rakoma and Smart was that Samancor’s
Human
Resources department had done verification utilising the clock cards,
gang cards and interviews with supervisors to determine
which of the
employees were on strike, which were on sick leave (and/or other form
of leave of absence), or at training courses
and/or medical
evaluations.
[34]
To the extent that there is a claim of selective
non-re-employment/reinstatement, the provisions
of the settlement
agreement leading to the reinstatement of other employees need to be
looked at. In accordance with these provisions,
and for the purposes
of reinstatement, it had to be established whether employees were on
leave on 25 November 2013;
whether they had reported for
work but had however not proceeded to their workplaces; whether even
though they had participated
in the strike, they were not a valid
final written warning as at 25 November 2013, and whether
they had valid final written
warnings as at 25 November 2015.
[35]
As I understood these individuals’ case, it is predicated on
the provisions of Clause
2.1.2 of the settlement agreement, which
provided that;
‘
Employees
who reported for work but did not proceed to their workstations.
2.1.2.1
The company will reinstate 134 employees, as listed in
annexure C
of this agreement. These employees were identified to have reported
for work, but did not proceed to their work stations
2.1.2.2
The re-instatement will be retrospective to the date of dismissal and
all employees will be paid all outstanding salary
due”
[36]
At first glance, these provisions required of an employee to have
reported for work, but
to not have proceeded to the workstation. It
was argued on behalf of Samancor that  mere clocking in did not
equate to reporting
for duty. I agree with this contention, in that
it is not far-fetched to conclude that in the course of a strike,
employees could
simply clock in and thereafter join the strike rather
than proceed to their workplaces.
[37]
In regards to Mfaladi and Matsena, the former had clocked in at the
premises at 05h58,
she then went to the changeroom at 06h03, and
proceeded underground at level 10 at 07h44. She went back to the
changeroom at 10h10
and exited the premises at 10h25. On her
evidence, she found no one at level 10 and proceeded to another
workplace where she found
Matsena and her crew having a safety
meeting. Mfaladi had signed the attendance register together with
Matsena to show that they
had attended the safety meeting. Mfaladi
continued working until 09h30 when she and others were told to return
to surface by the
Miner. She clocked out at 09h32 and left the mine
at 10h25.
[38]
It is further my view that unlike other individuals to be dealt with
shortly, the fact
that Matsena had not testified in these proceedings
did not make her case weaker in the light of it not being disputed
that she
and Mfaladi had indeed reported underground and had signed
the safety meeting attendance register. On Mfaladi’s evidence,

which cannot be said to have been disputed, she and other were
instructed by their Miner to evacuate from underground in the light

of the volatile situation on surface. It was thus common cause that
they did not leave underground on their own volition.
[39]
Further in the light of the provisions of clause 2.1.2 of the
settlement agreement, they
had indeed reported for duty. In the
circumstances, there is no basis for a conclusion to be reached that
Mfaladi and Matsena participated
in the strike. They had reported for
duty and went underground, but could however not carry out their
duties as a result of having
been told to leave underground.
Accordingly, their dismissal was unfair.
[40]
In regards to Molaulwa, his clock card showed that  he clocked
in at 06h22 and an
attendance register shows that he had attended
Basic Rigging Training on 25 November 2013. His evidence
was that the
training was interrupted by
other
employees who were on strike, who told them to go and join a march to
management to hand in a memorandum.
[41]
The fact that Molaulwa had reported for duty and attended the
training in question is not
placed in dispute. Samancor however takes
issue with the fact that having clocked in, he went to the change and
lamp rooms and
thereafter left the premises at 09h54. In my view,
once it is accepted that Molaulwa was scheduled to attend training on
that day,
and that he had signed an attendance register to confirm
that he had indeed attended that training, it follows that he should
not
have been dismissed. His testimony was further that other
employees on strike had ordered them to leave the training and join a

march, which testimony could not be disputed. Rakoma went further and
confirmed that employees on training were told by management
to leave
due to safety concerns. It was therefore unfair for Molaulwa to have
be deemed to have participated in the strike, as
under the
requirements of clause 2.1.2, he had reported for duty (at the
training as scheduled), and  did not leave the training
out of
choice. He therefore ought to have been reinstated.
[42]
Mthokozisi Noguda was equally scheduled to undergo training on
25 November 2013.
The clocking records show that he
accessed the mine at 05:34 by vehicle and had proceeded to clock-in
at 05:38 at the crush area.
He had accessed the underground area at
05:39, and then clocked out or left the premises at 17:36 in the
afternoon.
[43]
Noguda did not testify in these trial proceedings and on Rakoma’s
version, it is
not known the reason he had proceeded underground when
he was scheduled to go for training. His clock record also shows that
having
proceeded underground at 06h39, he accessed and left the crush
area between that time and 09h46. His movements between 09h46 and

when he clocked out and left at 17h36 are unknown.
[44]
To the extent that there is no evidence to support any contention
that Noguda had attended
the training as scheduled (which was the
place he was supposed to have reported to on that day), it cannot be
said under the provisions
of clause 2.1.2 of the settlement agreement
that he had reported for work. Further to the extent that his case
was distinguishable
from that of the other individual applicants,
particularly  Molaulwa, who was also scheduled to attend
training, the onus
was upon him to explain his movements for the day
and the reason there was no evidence that he had attended the
training. In the
absence of any such evidence, there is no reason to
reject Samancor’s version that Noguda had not reported for work
for the
purposes of reinstatement under clause 2.1.2 of the
settlement agreement.
[45]
Kubashe did not also testify in these proceedings. His case is
similar to that of Noguda,
as he was also scheduled to attend
training on 25 November 2015 according to Rakoma. Kubashe
clocked in at 06h02. His
further movements thereafter are unknown, as
the clock card does not record the time that he knocked off or any
further movements.
Rakoma’s view was that Kubashe had an
obligation to clock-out, but that he did not do so.
[46]
According to Rakoma, the only reason that it was concluded that
Kubashe had participated
in the strike was that it could not be
verified whether he had attended the scheduled training, nor could it
be ascertained through
the attendance register that he had attended
the training.
[47]
It is my view that as with Noguda, there was an obligation on Kubashe
to explain his movements
for the day. Clause 2.1.2 cannot be read to
imply that an employee must only clock in, as central to the fairness
of the dispute
is whether an employee participated in the strike or
not. Even if Kubashe was scheduled to attend training, there was
however no
indication that he did so, and again, in the absence of
evidence from him to explain his conduct for the day,  it
follows
that there is no basis for a conclusion to be reached that
his non-reinstatement under the provisions of clause 2.1.2 of the
settlement
agreement was unfair.
[48]
Mathiba’s case is even more curious. He attacked Samancor’s
reliance on his
clock card on the basis that a copy in that regard
was not discovered or used as part of Samancor’s trial bundle.
The copy
however formed part of his own trial bundle. He nonetheless
questioned the accuracy of his clock card, and contended that
Samancor
had initially accepted that he had not participated in the
strike, as was evident from him being paid for the day in question
despite
the principle of ‘no work no pay’ having been
applied.
[49]
Rakoma had testified in regards to Mathiba’s clocking record
and movements for 25 November 2013,
which demonstrated that
even though he had entered the premises at about 05h53, and proceeded
through the main gate and changing
house, there was no record of him
having gone underground, or entering the lamp room.
Smart’s
contention was further that the timeline of his movements indicated
that he could not have gone underground because
he had not clocked
in. As an underground employee, he was supposed to have proceeded to
the lamp-house to get his underground equipment.
At 10:13 he went to
the surface and at 11:27 he clocked in at the post to go underground.
He however clocked-out at 11:28 and left
the premises at 11:59.
[50]
Several difficulties are glaring with Mathiba’s case. His
attack on the accuracy
of the clock card was belated and without
merit, particularly since he had discovered a copy in that regard in
his trial bundle.
Furthermore, to the extent that he had testified
that he had always contested the accuracy of the clock card, and
further that
there were people who were with him at the time that he
was underground, it is my view that since the onus was on him to
fully
explain his conduct during the strike, nothing prevented him
from calling upon those individuals he was allegedly with
underground,
particularly since it was his version that those
individuals have since been reinstated.
[51]
A distinguishing factor with his case as compared to Mfaladi, Matsena
and Molaulwa is that
there was evidence that these other individuals
had clocked in, but could not continue with their normal duties or
activities for
the day due to the strike. As it was already
indicated, it was not sufficient for an employee to simply have
clocked in. To that
end, a mere contention that the clock card was
not accurate is not sufficient for a conclusion to be reached that
Mathiba ought
to have been reinstated in accordance with the
provisions of clause 2.1.2 of the settlement agreement.
Evaluation
of the substantive fairness of the dismissal of the other individual
applicants.
[52]
Item 7 of
the Code, to the extent that participation in an unprotected strike
is viewed as misconduct, provides guidelines and a
consideration of
various factors
[7]
in
determining whether the dismissal was fair.
[53]
In regards to the substantive fairness of the dismissal, it was
submitted on behalf of
AMCU and the individual applicants that
dismissal is a serious sanction which is imposed only as a last
resort, and that the test
is whether the employees’ conduct has
destroyed the necessary trust relationship or rendered the employment
relationship
intolerable.
[54]
It cannot
be doubted that indeed a sanction of dismissal is the most severe
form of punishment. The Constitutional Court in
Transport
and Allied Workers Union of South Africa obo Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd Limited
re-emphasised this point by stating that in determining the
appropriateness of a dismissal as a sanction for the striking
workers’
conduct, consideration must be given to whether a less
severe form of discipline would have been more appropriate, as
dismissal
is the most severe sanction available
[8]
[55]
Reference
was also made to
Sidumo
on behalf of the individual applicants, for the proposition that in
determining the fairness of the dismissal, the court is required
to
consider all the circumstances of the case, including the seriousness
of the alleged misconduct, the harm caused, the employer’s

reason for the dismissal, the alternatives to dismissal and the
effect of the dismissal upon the employee
[9]
.
[56]
In
National
Union of Metalworkers of SA and Others v CBI Electric African
Cables
[10]
,
it was held that;
‘
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’
[57]
As already indicated, it was common cause that the dismissed
employees had participated
in an unprotected strike, and somewhere in
this judgment it has already been stated that no attempts were made
to comply with the
procedural requirements in the LRA prior to
embarking on that strike. It has further been found that there was no
basis for any
conclusion to be reached that the strike was provoked,
particularly in the light of the unlawful or impermissible demands
made
by the employees. On the whole, participation in the strike in
view of these and other factors to be dealt with shortly, constituted

gross misconduct.
[58]
On Mphahlele’s version, the employees took upon themselves to
raise the alleged grievances
with management in the manner that they
did, as they were of the view that AMCU was slow in tackling those
issues. This in a way
confirmed Samancor’s contentions that the
employees embarked on strike, which was a deliberate strategy
albeit
for one day. In my view, even if the strike could be classified
as wild-cat, on the whole however, it appeared to have been
coordinated,
as employees in their individual capacity could not have
woken up on 25 November 2015 and decided to embark on that
strike.
This is particularly so as the issue on recognition had been
on-going.
[59]
It was further common cause that following the strike, at least four
meetings were held
between management and AMCU on 25 November 2013,
with a view of getting the employees to resume their duties.
Samancor’s
contention is that notwithstanding those
discussions, and its understanding thereafter that the employees
would return to work,
they had refused to do so, specifically those
who were supposed to be on the afternoon shift from 14h00, and the
evening shift.
Those on the morning shift started an hour late.
[60]
Mphahlele’s version that he had agreed with Smart that the
employees would return
to work the next day should be rejected as
correctly pointed out on behalf of Samancor, as it was neither
pleaded nor put to Smart
during his cross-examination. The fact that
ultimatums followed after those meetings to implore the employees to
report for work
at certain times further belies Mphahlele’s
contentions, and this Court should accept that flowing from those
meetings, employees
were to resume their normal shifts starting from
the 14h00 shift.
[61]
It was common cause that Samancor had on 25 November 2013,
sent an ‘SMS’
to employees at 18h53, advising them to
report for duty on 26 November 2013 as normal. The ‘SMS’
was followed
by an ultimatum on the same date at 19h58, which
instructed all employees on night shift at Mooinooi and Millsell to
return to
work at the commencement of the next shift on 26 November
at 22h00. Another ‘SMS’ to all employees followed at

19h58 on the same date, instructing the employees to report for duty
‘tonight as normal’. It is common cause that the

employees did not heed the ‘SMS’ as they did not report
for night shift.
[62]
A second ultimatum was issued on 26 November 2013 at 05h30
to all employees on
morning and afternoon shifts, instructing them to
return to work at 06h30 for the morning shift and 14h00 for the
afternoon shift.
Employees did resume their normal duties on
26 November 2013,
albeit
they started their morning
shift an hour later.
[63]
Flowing from the above, it should be concluded that the employees had
not returned to work
after meetings held with Mphahlele which had
ended at about 15h00 on the day in question, necessitating the ‘SMS’
and
the ultimatums. To the extent that the employees returned to work
on 26 November 2013, it can be accepted that they had

heeded the ultimatums, but this does not imply that Samancor was not
within its rights to institute disciplinary proceedings against
them.
After-all, they had participated in an unprotected strike.
[64]
To this end, Mphahlele’s contentions
that
management had not in the meetings
indicated an intention that
disciplinary action would be taken against the employees did not
however imply that management could
not do. The fact that the
employees had resumed their normal duties on 26 November 2013
did not imply that it was the
end of the matter.
[65]       A
decision to discipline employees who had embarked on an unprotected
strike (which
act constitutes misconduct), even if they had agreed to
return to work, remains a management prerogative. Furthermore, the
reliance
by AMCU on ‘ambiguous/confusing’ messages in the
ultimatum as to whether management would take disciplinary action or

not does not assist its case in the light of the prerogative enjoyed
by management. To this end, there is further no merit in the

contentions made on behalf of Mathiba, that Samancor was estopped
from disciplining the employees by virtue of any impression it
had
created through the ultimatums.
[66]
What remains to be determined is whether the dismissals were
appropriate, taking into account
that such a sanction ought to be
reserved for the most serious forms of misconduct.
[67]
It is correct as the applicants had contended, that the dismissals
were in two phases.
In respect of the dismissal of 13 December 2013
following the disciplinary hearings and the sanction, AMCU attacked
Nieuwoudt’s
reasons for confirming their dismissals. Nieuwoudt
had reasoned that AMCU did not care to attend the hearings and thus
not accepted
management authority; that AMCU’s behaviour
suggested that it would participate in an illegal strike again; that
the employees
showed lack of respect for any rule or procedure; and
that the conduct of the striking AMCU members showed lack of respect
for
any company rule or law or society, as they had intimidated other
employees and made themselves guilty of violence and damaged
property.
[68]
It was submitted that Samancor and Nieuwoudt had not approached the
dismissal on the basis
of progressive discipline, as there was
nothing to support the argument that the behaviour of AMCU seemed to
suggest that they
would participate in another illegal strike, or
that the union showed lack of respect for procedures, or that  there
was no
evidence to support the conclusion that any of those who were
dismissed were engaged in or made common purpose with others who
engaged in violence and intimidation. It was submitted further that
by reinstating other employees, Samancor forgave or overlooked
the
misconduct of even those who were actively engaged in the strike
provided that they were on final written warning, and that
on the
whole, Samancor’s reasons for the dismissal were woefully
insufficient and thus not valid.
[69]
It is my view that whether the dismissals of 13 December 2013
were fair needs
to be assessed within the context of the subsequent
events. Upon these dismissal, and whilst the parties were preparing
for an
appeal hearing, a settlement agreement was reached, in terms
of which certain employees were reinstated, whilst others were not.

Central to Smart’s evidence was that employees were not
reinstated due to two main reasons,
viz
, participation in the
unprotected strike action, and the fact that the employees were on
valid final written warnings.
[70]
In my view,
an attack on the reasons cited by Nieuwoudt does not take the matter
any further, particularly since his outcome
[11]
made it clear that  the guilt finding was based on the
employees’ absence from work on 25 November 2013;
that they had made demands, refused to work, and failed to follow
procedures to engage management on the issues or lodge a dispute
with
the CCMA. Effectively, the employees were found guilty on the basis
of participation in the unprotected strike and the final
written
warnings
[12]
. It cannot
therefore be correct as argued on behalf of Mathiba and AMCU, that
the issue of final written warnings did not
play a part in the
justification of the dismissals, or that a distinction between those
on final written warnings and not, was
merely drawn during the
negotiations leading to the settlement agreement.
[71]
The reasons proffered by Nieuwoudt for the dismissal were advanced
within the context of
aggravating and mitigating factors that he had
to consider, but were not in themselves the primary reasons for the
dismissal. AMCU
as shall further become clearer, had not submitted
any mitigating factors as to the reason a sanction of dismissal
should not be
imposed.
[72]
The question that remains is whether the dismissal on account of
participation in the unprotected
strike and the fact that the
employees were on final written warnings was appropriate. It is my
view that questions surrounding
the inter-union rivalry between AMCU
and NUM, or the fact that Samancor’s approach to the
recognition agreement and its amendment
was slow or biased cannot
serve as mitigating factors. Inter-union rivalry as a result of
proliferation of unions at a workplace
will always be unavoidable. It
does not however imply that members of rival unions should not
conduct their affairs with management
and raise grievances in a
peaceful and procedurally permissible manner. Where a union in a
workplace is of the view that it is
entitled to more rights of
engagement with management, legal processes are in place for those
ends to be achieved. If a  union
is of the opinion that
management and/or its senior employees conduct themselves in a biased
manner in favour of its rivals, there
are equally processes and
procedures to be followed, rather than simply making those
allegations and engaging in unprotected industrial
action.
[73]
It was
further submitted on behalf of the individual applicants that the
strike took place on 25 November 2013 as a result
of
spontaneous explosion of frustration by AMCU members. I have already
addressed the issues surrounding alleged frustrations by
the
employees and the rules of engagement in that regard. The fact that
the strike only took one day or that the employees had
offered to
work extra hours to make up for lost production is equally not an
excuse to exonerate the employees. A whole range of
factors need to
be looked at in assessing fairness
[13]
.
In this case it is significant to point out the following;
(i)
The strike was unprotected and unprovoked.
(ii)
In terms of the provisions of Samancor’s disciplinary code,
participation
in an unprotected strike was to be met with a dismissal
even if it was a first offence.
(iii)
The strike was essentially in respect of the same issues that led to
final
written warnings in July 2013, coupled with other
impermissible or unlawful demands.
(iv)
The final written warnings remained valid as at the time of the
unprotected
strike.
(v)
The employees following a meeting between AMCU and management, ought
to
have immediately (at least the afternoon shift) returned to work
and had not done so. Mphahlele’s contentions that there was
an
agreement that the employees would resume work the following day has
been found to be contrived.
(vi)
Aligned to the issues of the gross nature of the misconduct in
question is
the conduct of the employees during the strike. It was
not contested that damage was done to the offices of NUM during the
strike.
The offices were thrashed with damage done to equipment.
Smart had further testified that upon the AMCU members having
thrashed
and vandalised NUM’s offices, they had then marched
the NUM shop stewards off the premises. Mphahlele was hard-pressed to

concede that there was violence on the day of the strike. He could
only admit having seen torn NUM T-shirts, but had denied that
the
strike was accompanied by violent conduct.
(vii)
It can be accepted for the purposes of the determination of this
dispute that Samancor
could not or had not identified the
perpetrators of the violence. At the same time however, in the light
of Mphahlele’s reluctant
concessions, the Court should accept
the evidence of Smart and Rakoma that indeed there was damage to
NUM’s offices and that
some non-striking employees were chased
from their workstations. Any dispute in that regard is put to bed on
the evidence of Molaulwa,
who had testified that their training was
interrupted by striking employees who told them to join a march to
management to hand
in a memorandum of demands. Furthermore, it was
not placed in dispute that some employees on surface were told by
management to
leave the premises in consideration of their safety.
(viii)
Smart had testified in regards to the financial harm caused by the
unprotected industrial
action, which included a loss of R2.3m for the
25 November 2013, and a loss of R1.3 per day per mine on
26 November 2013.
I did not understand AMCU’s case to
be that this financial harm was disputed.
[74]
In the
light of the above factors, I fail to appreciate the reason any
conclusion can be reached that any employment relationship
was not
rendered intolerable. It has been held that whether a relationship is
deemed to be intolerable or irretrievably broken
down can be gleaned
from the gross nature of the misconduct itself, and that it may not
be necessary to lead direct oral evidence
of that breakdown.
[14]
[75]
In this case, I fail to appreciate what other alternatives were
available to Samancor,
in circumstances where the dismissed employees
had failed to heed the final written warnings issued to them two
months earlier,
which ordinarily in terms of Samancor’s
disciplinary code, would have led to a dismissal. Having had regard
to the factors
outlined in paragraph 73 above, it is my view that it
cannot be said that Samancor had other alternatives other than a
dismissal
to consider. The conduct of the individual applicants and
the nature of the strike itself rendered an employment relationship
intolerable,
and accordingly, the sanction of dismissal was
appropriate.
[76]
To round off in regards to the arguments surrounding selective
reinstatement, I have already
dealt with those employees that were
specifically identified as having disputed that they had taken part
in the industrial action.
Other than these employees, it was
contended on behalf of the other individual applicants that their
exclusion from reinstatement
was unfair as the previous strike was
only for two days; that they had undertaken to work overtime to
offset any prejudice to Samancor,
and further that it was
unreasonable to have selected them particularly since Samancor
forgave a majority for their strike action.
[77]
Most of the
arguments as above have been addressed, safe to reiterate that
selective dismissal and re-employment of employees is
not per se
unfair as circumstances may justify such conduct
[15]
.
In
Fidelity
Guards Holdings (Pty) Ltd v Transport and General Workers Union and
Another
[16]
,
it was
held that a duty was upon an employer when selectively taking back
other employees, to demonstrate that a legitimate basis
of
differentiation between those reinstated and those not reinstated
existed. In this case,
it
was argued on behalf of AMCU that the fact that Samancor had
reinstated other employees who were on strike implies that these
were
forgiven. The decision to selectively reinstate other employees was
based on certain criteria that was agreed to by both parties
flowing
from negotiations leading to the settlement agreement. The criteria
as evident from the settlement agreement itself was
inter
alia
whether or not the employees had participated in the strike, whilst
at the same time having valid final written warnings. Those
that were
not reinstated had not only participated in the unprotected strike,
but had also been on valid final written warnings
for similar conduct
in accordance with the provisions of the settlement agreement. It
cannot therefore be correct for AMCU to suggest
that the failure to
reinstate the employees based on the previous final written warnings
was unfair. The distinguishing factors
between those that were
reinstated even though they had participated in the strike was
primarily that they did they have final
written warnings.
Procedural
fairness of the dismissal:
[78]
It was common cause in this case that following four meetings held
between management and
AMCU officials on 25 November 2013,
which were followed by two ultimatums, the employees resumed their
normal duties
with effect from 26 November 2013.
[79]
On 6 December 2013, written notices to attend disciplinary
hearings scheduled
for 11 and 13 December 2013 were then
issued to all the employees who had participated in the strike action
on 25 and
26 November 2013. The written notices were
further sent to all the respective union officials, handed to union
shop stewards
and further displayed on notice boards.
[80]
In regard to representation at the disciplinary enquiries, employees
who were members of
a union were to be represented by their appointed
union representative, whilst those who were not members of a union
were required
to elect not more than four colleagues to represent
them.
[81]
Mphahlele had conceded that he was aware of the notices of the
disciplinary enquiry issued
on 6 December 2013. He had sent
correspondence to Samancor
on 10 December 2013,
requesting a meeting to be held on 12 December 2013
to discuss the ‘strike action’. On the same day, Mr
Phillip
Mntombi a representative of the local branch of AMCU
communicated with Samancor’s Human Resource Manager, Ms Anele
Janse
van Rensburg informing her that the representatives of AMCU
were not going to be available to attend the disciplinary hearing
scheduled
for 11 December 2013. He had provided two
alternative dates for the hearing.
[82]
In a response to Mr Mntombi’s communication, Ms Janse van
Rensburg indicated that
all the unions were issued with a 48 hours’
notice of the disciplinary hearing and as such, the disciplinary
hearing would
continue in the absence of AMCU.
[83]
On 11 December 2013, the representatives of AMCU were not
present at the hearing.
The internal disciplinary hearing accordingly
proceeded in their absence. On the same day, the Chairperson of the
hearing Nieuwoudt,
sent an email to Mphahlele, and advised him that
since no application for a postponement was received, and further
since no apology
was tendered by AMCU for its non-attendance AMCU,
the hearings had proceeded in its absence. AMCU was further advised
that the
outcome of the hearing was to be made on 13 December 2013,
where the  parties would have an opportunity to make
representations in regard to mitigating and aggravating
circumstances.
[84]
Mphahlele did not respond to Nieuwoudt’s email. On
13 December 2013, AMCU
again did not attend the hearing on
the outcome and the sanction. Parties present at those proceedings
had presented mitigating
and aggravating circumstances. At the
conclusion of the process, all members of AMCU were found guilty of
misconduct and a sanction
of dismissal was imposed. However, the rest
of the other employees, including members of other unions and
non-unionised employees
were not found guilty.
[85]
In terms of Samancor’s disciplinary code and procedure, an
employee who is aggrieved
by an outcome of an internal disciplinary
hearing, may lodge an appeal within two (2) business days from the
date she/he becomes
aware of the disciplinary outcome. On
13 December 2013, correspondence was forwarded to AMCU with
a list of members of
AMCU who were dismissed as a result of the
internal disciplinary hearing. AMCU was also advised that due to the
impending end of
the year break, the period in which to lodge an
appeal will begin on 6 January 2014 and the deadline for
lodging the
appeal would be 8 January 2014.
[86]
It is common cause that subsequent meetings between the parties’
representatives
resulted in the settlement agreement in terms of
which other employees were reinstated.
[87]
AMCU contends that since Samancor chose to conduct a formal
disciplinary hearing, there
was no evidence to suggest that a
separate enquiry was conducted in its absence, and that Nieuwoudt
appears to have simply taken
account of the evidence obtained from
the separate enquiries concerning other union members and made a
decision.
[88]
AMCU further contends that the enquiry was procedurally unfair as the
dismissed employees
failed to receive effective representation, and
Nieuwoudt wrongly believed that AMCU had deliberately failed to take
part in the
hearings. It further contended that on the evidence of
Smart, there was no need to rush  to hold the enquiries on 11
and 13 December 2013,
and that Mntombi had specifically on
10 December 2013 requested a postponement and proposed
alternative dates in the
new year, which request was declined by
Samancor without giving reasons. It was submitted that it was clear
that AMCU had not refused
to attend the hearings and had indicated
that it was unavailable on the dates scheduled and proposed
alternative dates.
[89]
Submissions made on behalf of Mathiba were that; he was unaware of
the disciplinary proceedings
conducted in December 2013; that he
only became aware of his dismissal in January 2014 when he
reported for work; that
Samancor by virtue of only affording the
respective unions the right to be heard, effectively deprived Mathiba
and others of their
Constitutional Right to be heard, and that this
came about as a result of AMCU’s non-attendance and Samancor’s
election
to proceed and finalise the hearings in AMCU’s absence
without notifying the affected employees. It was further submitted

that AMCU was not afforded an opportunity to make submissions in
relation to the merits of the matter or to show cause for its

non-attendance at the hearings.
[90]
To the extent that Samancor chose to convene formal disciplinary
enquiries, Item 4(1) of
the Code of Good Practice provides:
‘
Normally,
the employer should conduct an investigation to determine whether
there are grounds for
dismissal
. This does not need to be a
formal enquiry. The employer should notify the
employee
of the
allegations using a form and a language that the
employee
can
reasonably understand. The
employee
should be allowed the
opportunity to state a case in response to the allegations. The
employee
should be entitled to a reasonable time to prepare
the response and to the assistance of a
trade union representative
or fellow
employee
. After the enquiry, the employer should
communicate the decision taken, and preferably furnish the employee
with written notification
of that decision.'
[91]
To the extent that Mathiba was a member of AMCU at the time of the
unprotected strike and
the dismissal, there is no basis for this
Court to treat his case differently from that of others insofar as
his contentions on
procedural unfairness are concerned.
[92]
It can be accepted that flowing from the unprotected strike, Samancor
had cause to convene
disciplinary enquiries in respect of those
employees who were party to the misconduct. It can further be
accepted that the notices
to attend the enquiries as scheduled for 11
and 13 December 2013 were issued on 6 December 2013,
which was
timeous enough for AMCU to prepare for those hearing.
[93]
AMCU however had not attended the hearings leading to a finding of
guilt and the ultimate
sanction on 13 November 2013.
Members of other unions as represented by their officials had
attended those hearings.
Central to this issue is whether AMCU and
the individual applicants had a legitimate reason for absenting
themselves from the hearings,
and whether Samancor or Nieuwoudt had
acted unreasonably and unfairly in proceedings with their hearings in
AMCU’s absence.
[94]
Several explanations were proffered by Mphahlele, which I seek to
swiftly dispose of. Having
conceded that the notices were received
timeously, his explanation for AMCU’s non-attendance was that;
94.1
A postponement of the hearings was sought as AMCU’s head of
legal, Mr Phillipus Marais,
was not available, and was the only one
who would have dealt with such complex matters at the level of head
office.
94.2
AMCU was due to close down its offices on 13 December 2013,
and had requested a meeting
with the management to be held on
12 December 2013 and had not received a response in that
regard.
94.3
Mphahlele or other AMCU representatives could not attend the
enquiries to even seek a postponement
as he was in constant contact
with management.
94.4
AMCU was pressed for time and short staffed. He however testified
that the Full-Time Shop Steward,
Mntombi, attempted to get a
postponement.
94.5
Mphahlele further confirmed that the email from Nieuwoudt was
received and that he had not responded
as he did not ordinarily deal
with disciplinary matters.
[95]
In the light of the above explanations, it is my view that
Nieuwoudt’s contentions
that AMCU did not care to attend the
hearings and defend its members cannot be said to be far-fetched or
unreasonable. In the light
of the number of employees involved and
the likely consequences to follow from the disciplinary proceedings,
surely it was not
sufficient for Mphahlele in particular to simply
wash his hands of the matter on the basis that Marais was not
available. If Marais
was not available for whatever reason, there was
even more of an obligation on AMCU or Mphahlele in particular to
attend the hearings
and put up a case as to the reason a postponement
of the disciplinary proceedings was necessary.
[96]
An excuse that the union’s offices was short staffed or that
they were due to close
at the end of the year is equally not
reasonable. Other Unions had attended to the disciplinary hearings
even if it was the end
of the year as they took the interests of
their members seriously knowing the consequences of non-attendance.
AMCU’s approach
on the other hand was on the whole
laissez-faire
and nonchalant.
[97]
Circumstances would have been different had AMCU made an attempt to
at least attend the
disciplinary proceedings and make out a case for
a postponement before Nieuwoudt. Neither Mphahlele nor the Full-Time
Shop Steward,
Mntombi saw it fit to make such endeavours. As if that
was not enough, Van Rensburg had warned AMCU that the hearings would
proceed
in AMCU’s absence if it did not attend. Following the
disciplinary hearing on 11 December 2013, AMCU was again
implored by Nieuwoudt to attend the disciplinary hearings for the
purposes of delivery of the verdict on 13 December 2013.

AMCU did not bother to respond to Nieuwoudt’s correspondence,
let alone attend the enquiry.
[98]
Any contention in the light of the above circumstances that Samancor
or Nieuwoudt acted
procedurally unfairly clearly lacks merit. The
hearings had proceeded in AMCU’s absence because it failed to
answer to invitations
to attend those hearings. It was not for
Nieuwoudt to simply postpone the proceedings in order to accommodate
AMCU when it had
not sought an indulgence, other than merely sending
correspondence, and further when other unions had attended the
hearings to
defend their members.
[99]
It follows
from the above that through AMCU’s nonchalant approach to the
disciplinary enquiries, it invariably waived its
rights and those of
its members to an opportunity to state their case in respect of the
misconduct in question, the right to place
mitigating factors before
Nieuwoudt, and/or an opportunity to address Nieuwoudt on the question
of an appropriate sanction. As
it was correctly pointed out on behalf
of Samancor, it is a trite principle in our law that a party, who
chooses not to attend
a hearing, does so at his or her own peril, and
is precluded from later complaining about the outcome of the
hearing.
[17]
[100]
AMCU’s arguments that the disciplinary enquiries were rushed in
order to deprive the employees of
their year-end bonus are in my view
a red-herring. The claim is unsubstantiated. It was common cause that
Samancor was due to close
for the end of season on 13 December 2013.
There is no basis for any conclusion to be reached that the hearings
were
rushed for whatever reason, as the employees and their unions
were notified on 6 December 2013 of the hearings to be held

on 11 December 2013. On 13 December 2013,
Nieuwoudt had issued a sanction.
[101]
To repeat, to the extent that AMCU and its members needed the
disciplinary proceedings to be postponed for
whatever reason, all it
needed to do was to attend the hearings as scheduled and make their
case in that regard. To the extent
that they had not done so, any
complaints of the dismissals being procedurally unfair on the grounds
advanced on behalf of AMCU
and Mathiba are unsustainable.
[102]
Any further contentions surrounding the appeal and failure to convene
such hearings within the time limits
provided in Samancor’s
disciplinary code are equally unsustainable. The final decision to
dismiss having taken place on 13
December 2013, which was the last
day of the year for Samancor’s operations, it is apparent that
any appeal could not have
been convened in the remainder of that
month. Furthermore, I fail to appreciate any unfairness pertaining to
appeals, as it was
common cause that the parties met in January 2013
to make arrangements for the convening of appeal hearings. Those
meetings had
resulted in the settlement agreement. The agreement in
turn made any appeal superfluous in the light of its clause 3.2,
which provided
that;
‘
The
Union has elected not to exercise the right of the dismissed
employees to appeal their dismissal and the appeal on behalf of
the
dismissed employees is hereby withdrawn’
[103]
In the light of the above, it is concluded that the dismissal of the
individual applicants, including that
of Mathiba, was procedurally
fair.
Relief
in respect of the other individual applicants and costs:
[104]
It has already been determined that the dismissal of
Mfaladi,
Matsena and Molaulwa was unfair, as the evidence demonstrated that
they had indeed reported for work under the requirements
of clause
2.1.2 of the Settlement Agreement, and ought therefore to have been
reinstated. Under the circumstances, they are entitled
to an order of
retrospective reinstatement from the date of dismissal with full
benefits.
[105]
I have had regard to the requirements of law and fairness in regards
to the issue of costs. There is an
on-going relationship between AMCU
and Samancor, and the latter had agreed that there should be no order
as to costs. In regards
to Mathiba, even though he had decided to
pursue his claim on his own, I see no reason in law or fairness why a
costs order should
be made against him.
[106]
Accordingly, the following order is made;
Order:
1.  The dismissal of
the following individual applicants,
viz
; Ms Sylvia Mfaladi,
Ms Elizabeth Moyahabo Matsena and Mr Lucas Molaulwa was unfair.
2.  The Respondent
is ordered to retrospectively reinstate the individual applicants
mentioned in (1) above into its employ,
on the same terms and
conditions as applicable to their employ prior to their dismissal on
13 December 2013.
3. The Respondent is
ordered to pay to the individual applicants mentioned in (1) above,
back pay retrospective to 13 December 2013.
4. The dismissal of
the other individual applicants represented by AMCU was substantively
and procedurally fair.
5. The dismissal of
the Second Applicant (Mr Mathiba) was procedurally and substantively
fair.
6.  There is no
order as to costs
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the First Applicant:

A. Redding SC with D. Greyling-Coetzer, instructed by Larry Dave
Incorporated Attorneys
For
the Second Applicant:
Mr F. Schöltz
of Scholtz Attorneys
For
the Respondent:

M.J Van As, instructed by Solomon Holmes Attorneys
[1]
Act 66 of 1995 (as amended)
186 Meaning of
dismissal and unfair labour practice
(1)
‘
Dismissal’
means that –
(a)…
(b)…
(c)…
(d)
an employer who dismissed a number of
employees
for the same or similar reasons has offered to re-employ one or more
of them but has refused to re-employ another; or
[2]
Which
read:
“…
All
employees who are members of a union will be represented by their
appointed union representative at the hearing and are accordingly

not required to attend the hearing.
Those
employees who are not members of a recognised union may amongst
themselves elect not more than 4 (four) employees to represent
them
at the hearing. Management must be advised on or before 12h00 on
10 December 2013 whose representative will be”
[3]
Page 23 of Vol 1 of Trial Bundle
[4]
Section 68(5) of the LRA provides that;
‘
(5)
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. In determining whether
or not the
dismissal is fair, the Code of Good Practice: Dismissal in Schedule
8 must be taken into account’
[5]
[2016] 2016 (11) BCLR 1440
(CC);
[2016] 11 BLLR 1059
(CC); (2016) 37
ILJ 2485 (CC) at para 46
[6]
Page
193 – 194 of the Agreed bundle
[7]
Namely,
(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 expected to have
been
aware, of the rule or standard;
(iii)
the rule or standard has been consistently applied by the employer;

and
(iv)
dismissal with an appropriate sanction for the contravention of the
rule or standard.’
[8]
At
para [50]
[9]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405
(CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) at para 78
[10]
(2014) 35 ILJ 642 (LAC) at para 30
[11]
Page
258 Vol 1 of the Trial Bundle
[12]
Email
to AMCU on 13 December 2013 at page 259 of Vol 1 of the Trial Bundle
[13]
County
Fair Foods (Epping), a division of Astral Operations Ltd v Food and
Allied Workers' Union and Others
[2018] 8 BLLR 756
(LAC); (2018) 39 ILJ 1953 (LAC)
[14]
See
Impala
Platinum Ltd v Jansen and others
[2017] 4 BLLR 325 (LAC)
[15]
Rickett
& Colman (SA) (Pty) Ltd v CWIU
1991 12 ILJ 806 (LAC)
[16]
[1998] JOL 3333
(LAC) at para 45.
[17]
The
Foschini Group v Maidi and Others
[2010] ZALAC 5
; (2010) 31 ILJ 1787 (LAC) ;
[2010] 7 BLLR 689
(LAC)