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[2019] ZALCJHB 256
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Nemufulwi and Others v UNICA Iron & Steel (Pty) Limited (JS417/17) [2019] ZALCJHB 256 (13 September 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not reportable
Case
No: JS 417/17
In the matter between:
SAMUEL
NEMUFULWI
First
Applicant
KARABO
MASWANGANYE
Second
Applicant
STEPHEN
TSHABALALA
Third
Applicant
ROBERT
MAKGOBA
Fourth
Applicant
IVAN
MOJELA
Fifth
Applicant
THABISO
MOKONDO
Sixth
Applicant
POLITE
KOLA
Seventh
Applicant
BAITO
ONKONA
Eighth
Applicant
ISSAC
KOTLOLO
MOTSELA
Ninth Applicant
FRANS
SHIKA
Tenth
Applicant
JIM
THLONGWANI
Eleventh
Applicant
and
UNICA
IRON & STEEL (PTY) LIMITED
Respondent
Heard: 29 to 31
October 2018, 03 and 07 December 2018, 25 and 26 March 2019
Delivered:
13 September 2019
JUDGMENT
MABASO, AJ
Introduction
[1]
The applicants approached this Court in terms of Section
191(5)(b)(iii)
[1]
of the Labour
Relations Act
[2]
(LRA),
disputing the fairness of their dismissals by the Respondent. They
ask this Court to declare that their dismissals were
both
procedurally and substantively unfair and be reinstated. They also
sought condonation for the late filing of their statement
of case.
The Respondent opposed both applications. On 31 October 2018, this
Court made the ruling in respect of condonation, and
its reasons are
as set out below.
[2]
The practice in this Court is that a condonation application is
brought
in the form of a notice of motion, which is not what the
applicants did. On the first day of the trial, 29 October 2018, I
directed
the applicants to file a formal condonation application
which complies with Rule 7 of the Rules of this Court and set shorter
time
frames for the matter not to be delayed as it had been set down
for three successive days. Parties complied with this directive.
[3]
The condonation application was argued before this Court on 31
October
2018. I proceeded to grant condonation for the late filing of
the referral in respect of applicants 1, 2, 4, 5 and 6, and this was
after being satisfied with the explanation that was preferred for the
period of delay. Condonation in respect of applicant 3 was
not
granted, as he
inter alia,
could not explain the period of
delay between 18 May 2016 March 2017. Applicants 7, 8,9,10, and 11
the court could not entertain
their claim as it had no jurisdiction,
and Mr Ondendaal correctly conceded this.
[4]
Initially, the applicants were represented by an attorney Mr
Odendaal,
who withdrew as their attorney. This happened after the
Respondent had presented evidence of five witnesses.
The evidence and
applicable principles
[5]
I propose to start with the authoritative Code of Good Practice on
misconduct, which
has to be observed by this Court in deciding the
fairness of a dismissal, which states that:
“
Any
person who is determining whether a dismissal for misconduct is
unfair should consider –
(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
was an
appropriate
sanction
for the contravention of the rule or standard
.”
[3]
[6]
The charges against the applicants, in summary, are: that from 01
February 2016 to
05 February 2016, the applicants participated in an
unprotected strike, committed acts of misconduct in that they
willfully and
negligently caused damages to the property of the
Respondent and displayed conduct which is not expected of an
employee. The applicants
were dismissed following a verdict of guilty
on these charges.
[7]
In the pre-trial minutes, it is common cause between parties that the
applicants embarked
on an unprotected strike. But the applicants’
defence is that the Respondent is inconsistently applying discipline
as they
were not the only employees of the Respondent who were
involved in the unprotected strike. In a misconduct dismissal
dispute, the
onus of proof is on the employer but a burden to present
evidence about inconsistency is on the employee concerned who is
claiming
such.
[8]
Mr Ondedaal briefly cross-examined the witnesses that were called by
the
Respondent. Therefore, most of the evidence of the following
witnesses were undisputed: Mr James Mahumbe, Mr Jacob Mutudi Chauke,
Mr Omar Mohammed, Mr Eric Chauke, Mr Qasim Mohammed, Mr Isaac Mojela,
Mr Abel Njatuna, and Mr David Motshegoa. I now proceed to
summarize
relevant evidence hereinafter.
Mr
Mahumbe
[9]
He was employed as a Training and Development Manager by the
Respondent. At the time
of the illegal strike, he was working as a
Human Resource Officer. On 01 February 2016 before 6:00 am he got a
tip-off that there
would be a possible illegal strike scheduled to
take place that day. He then proceeded to the Respondent’s
premises from
his house, as he was approaching the premises of the
Respondent, he saw some people outside the premises of the
Respondent. He
realized that they were chanting, singing, and the
security had blocked them from entering the premises. He confirmed
that there
was violence committed but was not in the position to
identify the implicated individuals.
[10]
As a result of the violence that was taking place, he had to escape
through the back wall, he testified
that a security officer
identified the applicants as the perpetrators of the misconduct.
[11]
He confirmed that the applicants were dismissed following the guilty
verdict on the charges levelled
against them by the Respondent.
Following their dismissal, the First Applicant( Mr Samuel Nemufulwi)
intimidated him while in the
company of his children. Another
incident of intimidation occurred at Jubilee Mall in Hamaanskraal,
whereby he was approached by
( Mr Samuel Nemufulwi), who was
accompanied by his wife and he "stepped on his foot”. When
he looked at him, he gave
him a gesture of saying "Come here,
I'll show you" .He ignored him, but proceeded to laid criminal
charges against him.
Mr Kusam
[12]
He confirmed that there was an unprotected strike. He asked the
employees who were on strike to send
their representatives to
ascertain as to why they were withholding their services and what
their demands were. The security allowed
those representatives to
enter the premises, and the fifth applicant was one of the
representatives who attended the meeting wherein
Mr Kusam wanted to
ascertain their concerns. Their demand was that they do not want
"
foreign management
"
and one local person, namely Mr Jimmy Matibula, was the one in a
position of management. Mr Kusam advised them that it would
be unfair
to dismiss the middle management because the Respondent would face
litigation.
[13]
Mr Kusam further requested the representatives to provide reasons as
to why they wanted the management
dismissed, and upon receipt of such
reasons, he made an undertaking to investigate and give a response
within 24 hours after the
investigations.
[14]
The second meeting was held wherein feedback from the employees was
communicated. However, he
was not present. He insisted that even on
the third meeting, the employees did not give any other demand except
that of the dismissal
of the foreign nationals and the local person
as previously stated. Mr Kusam advised them that their demand was
unreasonable.
[15]
As a result of what he said, they further advised that they must go
home and come back the following
day. Some employees started to break
the clock machine, throw stones at the security guard and the foreign
nationals compound.
He explained that the
geyser, windows, clocking systems, unit clocks and bio-metrics
machine were damaged as a result of this conduct.
[16]
He stated that he could not identify the perpetrators as could not
properly see from where he
was standing. He denied that the demands
that were put forth by the employees, who were on strike, were a
failure to comply with
the Occupations Health and Safety Act
[4]
,
foreign management employed by the Respondent to govern the
employees' general health and safety or the lack of provident fund
for the employees, as suggested by the Applicants in the pre-trial
minutes.
Mr
Jacob Mutudi Chauke
[17]
He was employed as a security officer. He was present at the
Respondent’s premises between
01 to 04 February 2016. He
identified Applicants 1,2,4, and 5 as those who were throwing stones.
Despite numerous questions being
asked about the perpetrators, he
repeatedly mentioned these applicants. At the tail end of examination
in chief, he mentioned that
Applicant 6 was one of “
those
ones who were breaking the fence
" at UNICA 2. It was common
cause between the parties that one group was at UNICA 1 and the other
at UNICA 2.
[18]
When a question was posed to this witness about
the Applicant's involvement, he confirmed that indeed, he knows them
and even by
their names. During cross-examination, this witness
stated that during the strike, the 1st, 2
nd
,
3
rd
,
and 4th and 11th Applicants were throwing stones, pushing the
gate and causing havoc. And no version was put to this witness,
no
re-examination followed.
Masimane Erick Chauke
[19]
Works as the Respondent’s Health and Safety Officer. He was one
of the delegates that met the
management of the Respondent. He stated
that there was only one demand that was put forth by the employees
who had withheld their
services to the Respondent, which is “
foreign
management must go
". He confirmed
that the strike was violent.
[20]
Mr Odendaal put to this witness that as he was part of the strike why
was he not charged as the Applicants
were. He answered that he
neither damaged property nor intimidated anyone. Further, it was put
to him that the 2
nd
,
4
th
and 5
th
Applicants’ version was that they were part of
negotiations and they “just hang around” but were charged
and dismissed. He answered by saying the violence did not happen
during the negotiations stage. He conceded that he was not charged
despite being part of the strike. And was one of the employees who
participated in the strike.
Mr
Mohammed Aseef Kusam
[21]
He is the Managing Director of the Respondent. He confirmed that a
meeting was held on 01 February
2016 and the demand that had been
placed by the previous witnesses of the Respondent. An ultimatum was
issued, the management decided
that they should not set a wrong
precedent, action had to be taken against the perpetrators of
violence and those who damaged the
company property.
[22]
He testified that the cameras, in the guard room were severely
damaged, printers were stolen and, about
18 to 20 employees were
dismissed. Those employees who were identified as perpetrators were
dismissed. He confirmed that those
who were charged included those
who complied with the ultimatum of going back to work. The reason for
the Applicants to be charged
is because they were involved in acts
violence, damaging company property and intimidation. He stated that
some employees were
not part of the people who committed misconduct
and were sending him messages as they wanted to return to work.
Mr Abel Njatuna
[23]
When this witness testified, Mr Ordendaal had
withdrawn as the Applicants legal representative. This Court
explained to the Applicants
the process that had to be followed and
the importance of cross-examination. Mr Njatuna stated that
Applicants 1, 2, 5 and 6 were
preventing others from going to work
and saw them smashing windows with stones. The
5
th
Applicant cross-examined this witness on behalf of all Applicants. No
version was put, specifically about the identification of
those who
had been accused of acts of violence.
Mr
David Motshegoa
[24]
He presented the following evidence: He chaired the disciplinary
hearing of Applicants 4, 5,
and 6.
The
applicants were informed that they have a right to lead their
evidence and being represented by a union official of their choice,
they were provided with an opportunity to cross-examine the
Respondent's witnesses. The version that was put to him is that a
witness for the Applicants was arrested. Therefore they regarded this
to being deprived of a fair hearing.
The
Applicant’s evidence
[25]
Applicant 5: denied committing acts of violence during the strike.
[
26
]
Applicant 4: confirmed that there were acts
of violence during the strike but denied being one of the
perpetrators. According to
him, the dismissal was also procedurally
unfair because he advised the Respondent that he intended to call
Applicant 5, as his
witness, but the Respondent said he had been
suspended, therefore, cannot be allowed within its premises. He
testified he was not
even given a chance to lead evidence.
[27]
Applicant 4 further stated that: he was challenging both the
procedural and substantive fairness of
their dismissal. He explained
that on 01 February 2016 he was supposed to work the morning shift,
but arrived late at work on that
day and found workers outside the
Respondent’s premises. He asked them why they were outside,
they then raised the issue
of safety, especially coming from the
foreign nationals, confirmed that he was one of those people who were
elected by the employees
to approach management, which they did, and
their intention was to discuss and attempt to reach consensus, but
they failed. He
confirmed that 18 employees were dismissed. He denied
that he was part of the people who committed violence by damaging the
property
of the Respondent. During cross-examination, he confirmed
that there were acts of violence that were committed during the
strike,
but he said he was not part of it as he was not there. He
denied that the chairperson, Ipeleng Motsogai, allowed him to present
evidence.
[28]
Applicant 1: Testified that he thinks the dismissal was unfair
because he went back to work on Monday
and that means he complied
with the ultimatum.
Applicable legal
principles
[29]
I have to be guided by the principle as expounded in
Small
v Smith
[1954]
[5]
and underpinned by the
Constitutional Court in
President
of the RSA and others v South African Rugby Football Union and
Others
[6]
where the Court held thus:
“
It
is, in my opinion, elementary and standard practice for a party to
put to each opposing witness so much of his own case or defence
as
concerns that witness and if need be to inform him, if he has not
been given notice thereof, that other witnesses will contradict
him,
so as to give him fair warning and an opportunity of explaining the
contradiction and defending his own character. It is grossly
unfair
and improper to let a witness’s evidence go unchallenged in
cross-examination and afterwards argue that he must be
disbelieved.
Once a
witness’s evidence on a point in dispute has been deliberately
left unchallenged in cross-examination and particularly
by a legal
practitioner, the party calling that witness is normally entitled to
assume in the absence of notice to the contrary
that the witness’s
testimony is accepted as correct. More particularly is this the case
if the witness is corroborated by
several others unless the testimony
is so manifestly absurd, fantastic or of so romancing a character
that no reasonable person
can attach any credence to it whatsoever.”
[30]
The Applicants are challenging both procedural and substantive
fairness of their dismissal. Before
this Court, evidence was
presented that the Applicants 1,2,4, 5 and 6 were involved in acts of
violence during the strike, and
this was not disputed during
cross-examination by the Applicants representatives, as Mr Jacob
Chauke explicitly stated as to what
role was played by each of
Applicants 1, 2, 4 and 5.
Mr Abel Njatuna
identified applicant 6 as one of those who were preventing others
from going to work and smashing windows with stones.
Further Mr Jacob
Chauke said applicant 6 was breaking the fence. Therefore, I cannot
reject this evidence following the authority
mentioned in the
preceding paragraph. On a balance of probabilities, I accept Mr
Chauke's evidence in respect of this aspect. I
conclude that the
applicants committed acts of violence during the unprotected strike.
[31]
I further conclude that Applicant 1, 2, 4, 5, and 6 committed
misconduct by being involved in the unprotected
strike. In terms of
Schedule 8 Items 6(1) of the Code of Good Practice, provides that
‘
Participation in a strike that
does not comply with the provisions of chapter IV is misconduct.
However, like any other act of misconduct,
it does not always deserve
dismissal
.’ Each case has to be
determined based on its own facts and circumstances. In such cases,
the guidelines, as outlined in
item 7 above, have to be taken into
account. The Applicants in respect of substantive fairness of
dismissal are not only denying
committing offences but contending
that the Respondent did not apply discipline consistently, as per
item 7(b)(iii). The evidence
before this Court by Mr Masimane Chauke
is that he took part in the unprotected strike, like the applicants,
but was not summoned
before the disciplinary hearing to answer to
this charge. And he was not the only one who was not charged.
Therefore, I conclude
that the Respondent in disciplining the
Applicants for being part of the unprotected strike acted
inconsistently.
[32]
Considering that the Managing Director's evidence regarding who was
going to be charged said: "...
we
have to take serious actions against the perpetrators, we have to
take the serious actions against the people who conducted this
violence, have damaged company property, damaged the computers, they
risked our lives"
. He further said
if this was not dealt with, it was going to happen again, and he also
stated that his life was at risk as he was
not feeling safe at work.
[33]
Now clearly the Respondent did investigate as to who was involved in
the acts of violence, further
taking into account that there was
violence and having said that there were other employees who were not
part of this group, the
Managing Director also indicated that those
employees that were not part of this group "...
they
were even sending me the messages, Boss when is the company starting?
When are we coming back to work? They must have known
after that
ultimatum was given they started coming back to work the same day for
night shift
".
[34]
The Respondent, through its evidence, was not primarily disciplining
the Applicants for the unprotected
strike but for the acts of
violence that were committed during the strike. The testimony by Mr
Jacob Chauke, as stated in paragraph
17 above, that he identified all
the Applicants as perpetrators of misconduct during the strike, and
supported by Mr Abel Njatuna.
Considering that such evidence remained
unchallenged, I conclude that applicants 1,2,4,5, and 6 did commit
violence during the
unprotected strike therefore are guilty of those
charges. As concluded that the Respondent did investigate as to who
committed
the acts of violence during the strike, the issue of
inconsistency does not arise as the Applicants presented no evidence
indicating
that there were other employees who committed acts of
violence during the strike, and the Respondent was aware of such but
opted
not to charge them.
[35]
Mr David Motshegoa (Mr Motshegoa), for the Respondent, presented
evidence in respect of the procedure
that was followed by the
Respondent during the disciplinary hearing for applicants 4,5, and 6.
His testimony was not disputed as
he stated the procedure that was
followed. His evidence is accepted. And I do not see any procedural
unfairness thereof as these
Applicants contention was that their
witness was arrested, by members of SAPS, before the start of the
disciplinary hearing. My
view is that the Respondent had no control
over the arrest of their witness.
[36]
In respect of the procedural fairness of the dismissal, the
Respondent insisted that they did comply
with a fair procedure, the
notices that were given to the employees clearly indicate that they
had the right to call their witnesses
and to cross-examine the
witnesses, this Court accepts the evidence of the chairperson of the
disciplinary hearing, Mr Motshegoa,
in respect of applicants 4, 5 and
6 therefore on the balance of probability the Respondent did follow a
fair procedure in their
case. However, in respect of the remaining
applicants, Applicants 1 and 2, no evidence was presented by the
Respondent regarding
the procedural aspect, taking into account that
these applicants have no onus of proof, therefore,I rule in
their favour
that the procedural aspect of dismissal was unfair.
[37]
There is no principle in our law that dismissal automatically follows
a finding of guilt on misconduct
committed during a strike. In
Sidumo
& another v Rustenburg Platinum Mines Ltd and Others
[7]
),
the Constitutional Court held that,
"In
approaching the dismissal dispute impartially, a commissioner will
take into account the totality of circumstances. He
or she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must, of course,
consider the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's
challenge to the
dismissal. Other factors will require consideration. For example, the
harm caused by the employee's conduct, whether
additional training
and instruction may result in the employee not repeating the
misconduct, the effect of dismissal on the employee
and his or her
long-service record. This is not an exhaustive list.
[8]
[38]
In this matter, the applicants have been found to have committed acts
of violence during the
strike, and the Managing Director explained
about safety concerns in working with the Applicants. The
Applicants, committing
acts of violence, have shown no remorse,
and no reasons have been provided as to why they threw stones towards
the residents of
the foreign nations working for the Respondent. And
how would the foreign nationals work with the applicants anymore.
Acts of violence
are serious misconduct, especially in the workplace.
No mitigating factors presented by the applicants. Based on the
evidence before
this Court, it is concluded that dismissal was an
appropriate sanction.
[40]
In the premises, I make the following order:
Order
1.
The dismissal of the applicants 1,2,4,5 and
6 by the Respondent was substantively fair.
2.
The dismissal of the applicants 4,5, and 6
was procedurally fair.
3.
The dismissal of applicant 1 and 2 was
procedurally unfair.
4.
The Respondent is ordered to pay applicants
1 and 2 each compensation equivalent to 2 months of their respective
monthly salaries
as a result of order 3 above.
5.
There is no order as to costs.
_______________________
S. Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicants
Isaac Mojela
For the Respondent:
Bridgette Mokoetle
Instructed
by: SEIFSA
[1]
LRA.
[3]
Court underlining and bolding.
[4]
Act
85 of 1993.
[5]
3
All SA 62 (SWA).
[6]
[1999]
10 BCLR 1059 (CC),
[7]
[2007]
12 BLLR 1097 (CC).
[8]
Para 78.