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[2019] ZALCJHB 271
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National Union of Metalworkers of South Africa (NUMSA) and Others v Mandlakazi Electrical Technologies Holdings (JS599/17) [2019] ZALCJHB 271 (11 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS599/17
In
the matter between:
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA (NUMSA)
First
Applicant
S
MNISI AND 16 OTHERS
Second
to Further Applicants
and
MANDLAKAZI
ELECTRICAL
TECHNOLOGIES
HOLDINGS
Respondent
Heard:
9 to 13
September 2019
Delivered:
11 October 2019
Summary:
Dismissal for participating in an
unprotected
strike – selective discipline and re-employment –
appropriateness of the sanction.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
This matter relates to a dispute that arose on 29 March
2017 when the
second to further applicants (applicant employees) were dismissed by
the respondent, Mandlakazi Electrical Technologies
(MET) for
participating in an unprotected strike. The applicant employees are
members of the National Union of Metalworkers of
South Africa
(NUMSA).
[2]
The fairness of the dismissal is placed in issue. The
applicants are
challenging the procedure that led to the dismissal of the applicant
employees as well as the rationale for the
dismissal.
Pertinent
facts
[3]
The respondent is an electrical infrastructure service
provider and
operates within the purview of the Metal and Engineering Industries
Bargaining Council (MEIBC). The applicant employees
were employed in
various capacities within MET, including electrical assistants,
general workers, linesman and administrative personnel.
Some of them
were field workers, deployed at clients’ sites while others
worked mainly at MET’s workshop.
[4]
It is common cause that MET had been under financial
strain from 2015
to the time of the strike. As a result, it had to implement measures
to alleviate its precarious financial position
by introducing,
inter
alia
, a three days per week short time and applying for exemption
from the MEIBC’s Main Collective Agreement (Main Agreement) and
relevant subsidiary collective agreements on certain extended
benefits to employees, particularly the Leave Enhancement Pay (LEP).
[5]
On 1 August 2016 to 15 August 2016 and 31 August 2016
to 2 September
2016, NUMSA members, including the applicant employees, embarked on
an unprotected strike (first strike) on a demand
that they be paid
the annual wage increase with effect from 1 July 2016 in terms of the
Main Agreement. There were several meetings
between NUMSA and MET
aimed at resolving the impasse. It was in those meetings that NUMSA
was made aware of MET’s financial
predicament and its intention
to seek exemption in respect of annual increases and LEP.
[6]
Subsequent to the marathon consultations, the parties
reached an
agreement ending the first strike on the following terms:
6.1
MET would implement the annual wage increase as per the Main
Agreement effective from 1 July 2016;
6.2
The employees would be paid the back pay for the months of July and
August 2016 by 2 September 2016;
6.3
The three day per week short time would continue;
6.4
MET would not pay the employees for the days in which they
participated in an unprotected strike; and
6.5
The parties undertook to ensure that there is a proper and timeous
engagement, communication and consultation
in order to prevent any
future unprotected strike.
[7]
During the meeting of 4 October 2016, the issue of LEP
was
specifically discussed. Once more, MET informed NUMSA that it was
intending on applying for exemption to pay LEP from MEIBC
due to its
financial challenges. NUMSA acknowledged MET’s right to seek
exemption but was not prepared to support its application.
On 28
October 2016, MET accordingly applied for the exemption.
[8]
The application for LEP exemption had not been finalised
by the MEIBC
when it was due for payment in December 2016. Ms Lindiwe Sibande (Ms
Sibande), the Administration Director, informed
NUMSA members,
through their shop stewards, Mr Katlego Tsotetsi (Mr Tsotetsi) and Ms
Sibongile Mnisi (Ms Mnisi), that the LEP would
not be paid pending
the outcome of the exemption application. The employees received
their payslips before the annual shut down
on 15 December 2016
confirming that LEP had not been paid.
[9]
Upon return from the December shutdown on 16 January
2017, Ms Sibande
was approached by Mr Tsotetsi to enquire about the LEP and informed
her that the employees would embark on a strike
if their LEP was not
paid into their bank accounts by the end of the day. Ms Sibande
explained to him that the MET was still awaiting
the outcome from the
MEIBC and that employees could not embark on an unprotected strike.
Mr Tsotetsi also approached Mr Paul De
Castro (Mr De Castro), the
Operations Director, and informed him about the impeding strike over
the LEP.
[10]
Ms Sibande contacted the MEIBC, in the presence of Mr Tsotetsi, in
order
to establish the progress on the LEP exemption application.
Unfortunately, she could not be helped as the MEIBC official dealing
with the matter was not at work and was due to return on 19 January
2017.
[11]
Ms Sibande sent an email to Mr Mabango Siyenga (Mr Siyenga), NUMSA
official,
seeking his assistance regarding the impending strike. The
next day, 17 January 2017, NUMSA responded to her email, stating that
Mr Siyenga was on leave until 19 January 2017. No one was assigned to
assist in his stead.
[12]
On 17 January 2017, at about 07h00 employees refused to work and
demanded
the payment of their LEP. At about 07h30 MET issued the
first ultimatum to the striking employees directing them to return to
work
by 08h00 and advising them that the strike was unprotected.
[13]
The striking employees failed to return to work. That led to the
issuing
of the second ultimatum at about 08h10, directing the
striking employees to return to work by 08h45 and warned that if they
failed
to adhere to the ultimatum, MET would proceed with
disciplinary action.
[14]
The MET’s senior management (Mr De Castro, Ms Sibande and Mr
Gary
Coetzee (Mr Coetzee), the Managing Director, met with the shop
stewards, Mr Tsotetsi and Ms Mnisi, in an attempt to resolve the
dispute. MET requested the time up until 20 January 2017 in order to
find means of resolving the impasse, including seeking an
overdraft
facility from the bank. The shop stewards communicated MET’s
request to the striking members but was rejected
pronto.
The
striking employees were adamant that they would only return to work
once they had received an SMS confirming that their LEP
had been
paid.
[15]
The striking employees were instructed to leave MET’s premises
and were advised to return back to work the next day, 18 January
2017, whist allowing the respondent time to resolve the issue.
No one
heeded the call. On 19 January 2017, the striking employees were
served with SMS messages notifying them to attend the disciplinary
enquiry on 23 January 2017.
[16]
In response, Mr Siyenga sent an email to Ms Sibande, requesting a
meeting
on 23 January 2017 in order to discuss the strike. On 23
January 2017, the striking employees arrived at the premises of MET
but
did not commence with their duties. The position and mandate that
was articulated by NUMSA during the meeting of 23 January 2017
was
that the striking employees would only return to work if their LEP
was paid that very same day; and that NUMSA officials would
plead
with employees to await the outcome of LEP exemption application from
MEIBC only if MET management would not take disciplinary
action
against the striking employees. MET rejected NUMSA’s proposals
and demanded that striking employees return to work
the next day and
that it would proceed with the disciplinary enquiries.
[17]
The disciplinary enquiry for all the striking employees, save for the
shop stewards, was held on 25 and 26 January 2017. While the shop
stewards’ disciplinary enquiry was held on 24 and 28 February
2017.
[18]
On 7 March 2017, MEIBC accordingly approved MET’s
application
for exemption to pay LEP for the year 2016.
[19]
The striking employees were dismissed on 29 March 2017, having been
found
guilty of participating in an unprotected strike on 17 to 23
January 2017. Subsequently, ten of the striking employees were
re-employed
subsequent to the successful appeals.
Issues
to be decided
[20]
The issues that this Court is called to determine are as follows:
20.1 Whether
NUMSA had been given reasonable time to intervene;
20.2 Whether
the applicant employees had been given sufficient time to comply with
the ultimatums;
20.3 Whether
MET applied discipline consistently; and
20.4 Whether
the dismissal was an appropriate sanction.
Law
and application
[21]
In terms of
section 68(5) of the Labour Relations Act
[1]
(LRA) the employer has a right to dismiss employees who participate
in a strike that does not comply with the provisions of the
LRA.
[2]
In
National
Union of Metalworkers of South Africa (NUMSA) v CBI Electric African
Cables,
[3]
the Labour Appeal Court (LAC) confirmed the principle that illegality
of the strike is not ‘a magic wand which when raised
renders
the dismissal of strikers fair’. Hence it was stated that the
determination of substantive fairness of a dismissal
pursuant to
strike must be undertaken in two stages; firstly, in terms of item
6
[4]
of the Code of Good
Practice: Dismissal, Schedule 8 of the LRA (Code) where a strike
related enquiry takes place and secondly,
in terms of item 7
[5]
of the Code where the enquiry into the misconduct
per
se
takes place.
[22]
In the present case, the applicants took issue with the fact that
NUMSA
was not notified of the course MET was going to take prior to
the issuing of the ultimatums, so as to allow it to intervene. In
this regard, Ms Sibande testified that on 16 January 2017, she sent
an email to Mr Siyenga, seeking his assistance regarding the
impending strike the next day as advised by Mr Tsotetsi. She only
realised the next day, at about 8h30 when she received an email
from
NUMSA stating that Mr Siyenga was on leave up until 19 January 2017.
She responded to that email and requested NUMSA to send
someone else
to assist with the strike that was already underway but to no avail.
This evidence was not disputed.
[23]
Mr Siyenga, on the contrary, testified that he only became aware of
the
strike upon his return from annual leave on 19 January 2017.
However, there was no evidence led as to why NUMSA did not intervene
despite having been informed of the strike on 16 January 2019. Also,
Mr Tsotetsi was made aware as early on 16 January 2017 that
any
strike action by NUMSA members would be unprotected and would result
in disciplinary action been taken against them. His evidence
was that
he was just carrying the employees’ mandate and did not deem it
necessary to advise them on the consequences of
their actions.
[24]
Even though NUMSA was not specifically notified of the impeding
ultimatums,
it was made aware that its members were planning on
embarking on an unprotected strike a day before the strike. Even on
the day
of the strike, NUMSA was also made aware of the strike and
its intervention was once more sought. It is granted that Mr Siyenga
was not on duty. However, the email address that was used to
communicate to NUMSA was for its branch office, hence there was a
reply to Ms Siyenga’s email. Since NUMSA was aware that its
members were on strike, it was incumbent upon it to either inform
Mr
Siyenga of the strike or send someone else in his stead.
[25]
The unprotected strike lasted for about five days (17 to 23 January
2017).
Upon his return from leave on 19 January 2017 and having been
apprised of the strike and the notices for the impending disciplinary
enquiries, Mr Siyenga only sought a meeting for 23 January 2017
without even committing to persuading the striking employees to
return to work. Even on 23 January 2017, NUMSA persisted with the
demand for the immediate payment of the LEP as a condition to
end the
strike. However, the striking employees only returned to work the
next day, 24 January 2017 when it was clear that MET
was not budging
on its decision to proceed with the disciplinary enquiries against
the striking employees.
[26]
In my view, the fact that NUMSA was not notified of the ultimatums is
inconsequential as it was ultimately afforded an opportunity to
intervene and persuade its members to return back to work.
[27]
The applicants impugn that the striking employees had not been given
sufficient time to reflect on the ultimatums is without merit. The
first ultimatum gave them 30 minutes to return to work whilst
the
second one gave them about 45 minutes. Also, it is common cause that
senior management held a meeting with the shop stewards
to request
them to persuade the striking employees to return to work and give
MET an opportunity up until 20 January 2017 to address
their demand.
Still, the striking employees were intractable even though the
contents of the ultimatums had been explained to them
even in
isiSwati. The ultimatums clearly spelt out the consequences that
would follow should they refuse to heed the call to return
to work.
Mr Tsotetsi conceded that they, the shop stewards, did not persuade
the striking employees to return to work as they were
in solidarity
with their plight.
[28]
In a last bid to get the striking employees back to work, Mr De
Castro
testified that the striking employees were also given an
opportunity to reflect on their actions and return back to work the
next
day. This evidence was corroborated by Mr Coetzee and was never
challenged. It is instructive that even after five days of
participating
in an unprotected strike and having consulted with Mr
Siyenga, the striking employees were still intractable.
[29]
In my view, the applicants were given more than sufficient time to
reflect
on the ultimatums and return to work.
[30]
On the issue of inconsistency, the applicants accused MET of unfair
application
of discipline in relation to two employees, Mr Samuel
Mukamu (Mr Mukamu) and Mr Vusi Mnisi (Mr Mnisi) who were not
dismissed even
though they participated in the strike. Ms Sibande
testified that Mr Mukamu was an unemployed learner who did not
receive a salary,
but he received a stipend. Even though he had been
charged, it was later realised that he could not be disciplined as he
was not
employed by MET. She was adamant during cross examination
that Ms Mnisi, the shop steward, could not be compared with Mr Mukamu
as she was not a learner or student but a permanent employee of the
MET. She, nonetheless, conceded that Ms Mnisi’s certificate
of
service erroneously stated that she was an apprentice; an error she
attributed to the pressure she had been put under by the
shop
stewards when the certificates of service were prepared. This
evidence was not seriously challenged. In fact, Mr Tsotetsi
conceded
that Ms Mnisi had been in the employ of EMT for more than four years
and had signed a permanent contract of employment.
[31]
When it comes to Mr Mnisi, the driver, Ms Sibande testified that even
though he initially participated in the strike, he was a driver and
part of the administration. He returned to work when all the
administration staff were sent notices that they could not
participate in the strike. He was subsequently given permission to
leave the workplace after he received a call that his sister was
gravely ill. His sister died on 19 January 2017. Nothing much turns
on the date of her death as the family responsibility leave was
granted on 17 January 2017 due to her illness but was extended
because she did not make it.
[32]
Ms Sibande, also clearly explained that, even though Mr Mandla
Nhlapho
(Mr Nhlapho) was also a part of the administration, he did
not return to work after receiving the SMS from her hence he was also
dismissed. The applicants were not in a position to dispute Ms
Sibande’s evidence in this regard.
[33]
Tritely,
parity of treatment in the circumstance of an unprotected strike
entails that disciplinary rules should be applied consistently
and
like cases should be treated alike.
[6]
Item 3(6) of the Code provides that:
‘
The
employer should apply the penalty of dismissal consistently with the
way in which it has been applied to the same and other
employees in
the past, and consistently as between two or more employees who
participate in the misconduct under consideration.’
[34]
However,
the LAC cautioned in
SACAWU
and Others v Irvin & Johnson Ltd,
[7]
that consistency is an element of disciplinary fairness and is not a
rule unto itself. It was stated that:
‘
Consistency
is simply an element of disciplinary fairness… Discipline must
not be capricious. It is really the perception
of bias inherent in
selective discipline which makes it unfair. Where, however, one is
faced with a large number of offending employees,
the best that one
can hope for is reasonable consistency.
Some inconsistency is the
price to be paid for flexibility, which requires the exercise of a
discretion in each individual case
. If a chairperson
conscientiously and honestly, but incorrectly, exercises his or her
discretion in a particular case in a particular
way, it would not
mean that there was unfairness towards the other employees. It would
mean no more than that his or her assessment
of the gravity of the
disciplinary offence was wrong. It cannot be fair that other
employees profit from that kind of wrong decision.
In a case of a
plurality of dismissals, … Even then I dare say that it might
not be so unfair as to undo the outcome of other
disciplinary
enquiries. If, for example, one member of a group of employees who
committed a serious offence against the employer
is, for improper
motives, not dismissed, it would not, in my view, necessarily mean
that the other miscreants should escape. Fairness
is a value
judgment. It might or might not in the circumstances be fair to
reinstate the other offenders
.’ (Emphasis added)
[35]
In the present case, it is clear that the decision not to dismiss
Messrs
Mukamu and Mnisi was not capricious or induced by improper
motives but justifiable giver their peculiar personal circumstances.
[36]
The last issue to be addressed is the appropriateness of the
sanction.
The basis of the applicants impugn in this regard is that
the dismissal was too harsh. Notwithstanding, the applicant employees
had participated in the first strike four months prior and got away
with impunity as there was no disciplinary action taken against
the
striking employees as per the agreement between the parties. Also, in
terms of the same agreement, NUMSA committed to ensuring
that its
members would embark on consultation processes instead of unprotected
strike.
[37]
Even though the agreement was not signed by NUMSA, Mr Siyenga
conceded
during cross examination that the applicant employees were
bound by its contents, in particular, the undertaking not to
participate
in an unprotected strike in future. Mr Tsotetsi also
conceded that he was aware of the undertaking not to embark on the
unprotected
strike as per the agreement. However, he seemed to take
issue with the fact that it was not signed hence not binding. There
is
no merit in this assertion and it must be rejected in the light of
Mr Siyenga’s concession that it was indeed binding on the
applicant employees.
[38]
Despite, the applicant employees renounced on their undertaking
without
any provocation. The issue of LEP had been discussed in
October 2016. NUMSA was also aware of the application for exemption
and
the fact that no LEP would be paid in December 2016 pending the
decision of MEIBC. Mr Tsotetsi was once again informed on 16 January
2017 that the LEP issue was pending the outcome of MEIBC. It was not
disputed that MET was under financial constraints hence it
applied
for exemption; which was ultimately granted.
[39]
In
CBI Electric African Cables
, the LAC confirmed as
substantively fair, the dismissal of employees who had engaged in a
two-hour strike, while on a final written
warning, in response to the
employer short paying them their wages, because the employee’s
decision to strike was found to
be deliberate, calculated and
undermined the process of collective bargaining as a tool to resolve
industrial disputes.
[40]
Similarly, in the present case, the strike was not an inadvertent act
which was triggered by MET’s irrational conduct. Conversely, it
was concertedly premediated which put further strain to MET’s
dire financial position. All the efforts to get the applicant
employees back to work, including explaining the second ultimatum
in
the language understood by all of them, isiSwati, did not bear any
fruits.
[41]
The applicant employees were intransigent and unreasonable in their
conduct.
They persisted with the unprotected strike despite being
aware of the unlawfulness of their conduct and consequences that
would
follow. Clearly, the unprotected strike undermined the process
of collective bargaining as a tool to resolve industrial disputes,
a
process they had agreed to adhere to after the first strike.
[42]
In the circumstances, I am satisfied that the sanction of dismissal
was
appropriate.
[43]
The applicants seem to also have qualms with the fact that some of
the
striking employees were subsequently re-employed. In this regard
Mr Coetzee, who dealt with appeals, testified that those who
submitted
individual appeals wherein they showed remorse were
re-employed. The applicant employees filed individual appeals on the
similar
technical grounds of appeal and without showing any remorse
hence their appeals were unsuccessful.
[44]
In particular, Mr Coetzee referred to the appeal of Mr Calvin Ngwenya
(Mr Ngwenya) by way of example. His appeal was successful because he
provided the factual information in support to his appeal
and was
remorseful hence he was re-employed. Also Mr Skuta Mkhabela (Mr
Makhubela), Mr Mda Mathanzima (Mr Mathanzima) and Mr Sthembile
Maunye
(Mr Maunye) were some of the employees who we re-employed because
they were apologetic, remorseful and pleaded for their
jobs.
According to Mr Coetzee, the case of ten employees was
distinguishable as they were sincere and honest in their approach.
As
a result, he felt that he could build a future with them.
[45]
Mr Dawie Wicht (Mr Wicht), an official from the employer
organisation,
testified that on 26 May 2017 there was a meeting held
between the respondent and the applicant after conciliation on 17 May
2017
and NUMSA was informed that the applicant employees could still
appeal.
[46]
A letter dated 31 May 2017 was sent to NUMSA containing the appeal
criteria
to be used for appeals, which in essence demanded the
appellants to show remorse like all other re-employed employees. Mr
Wicht
also sent a follow-up letter to NUMSA wherein he emphasised the
appeal criteria and edged NUMSA to forward the offer to all the
applicant employees. However, NUMSA rejected the offer
pronto
.
[47]
It is not clear whether the offer to appeal was ever forwarded to the
applicant employees. However, Mr Siyenga was adamant that it was
never forwarded to them as the union had the mandate to act in
the
interest of its members. On the other hand, Mr Tsotetsi conceded that
he did receive the offer but rejected it.
[48]
Notwithstanding, it was ill-conceived of NUMSA to reject the offer to
appeal the dismissal of the applicant employees and have them
re-employed like the 10 employees who had shown remorse. In fact,
NUMSA ought to have advised its members to take responsibility for
their misconduct and plead for a lenient sanction as soon as
it was
afforded an opportunity to intervene. To simply reject the indulgent
offer by MET, when it had no obligation to do so, was
a serious
disservice to the applicant employees. In my view, it is NUMSA that
must be held accountable for the turn of events.
[49]
Therefore, the applicant’s claim that MET selectively
re-employed
some of the striking employees and excluded the applicant
employees is untenable.
Conclusion
[50]
In all the circumstances, MET successfully showed that the dismissal
of the applicant employees was both procedurally and substantively
fair.
Costs
[51]
Owing to the persisting relationship between the parties, I am not
inclined
to make an order as to costs.
[52]
In the circumstances, I make the following order:
Order
1.The dismissal of the
applicant employees is procedurally and substantively fair.
2.There is no order as to
costs.
___________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
Mr N Masutha, NUMSA Regional Legal Officer
For
the Respondent:
Ms C Lancaster of Lacaster Kungoane Attorneys
[1]
Act 66 of 1995 as amended.
[2]
See:
Vodacom
(Pty) Ltd v CWU
[2010] 8 BLLR 836
(LAC) at pars 10 and 11, where it was held
that despite the procedural compliance with section 64, a strike
will be unprotected
if it is prohibited in terms of section 65
of LRA.
[3]
[2014] 1 BLLR 31
(LAC) at para 29. See also
National
Union of Mineworkers of SA v Tek Corporation Ltd and Others
(1991) 12 ILJ 577 (LAC).
[4]
Items 6 provides:
‘
(1)
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. The substantive
fairness of dismissal in these circumstances must be
determined in
the light of the facts of the case, including -
(a)
the seriousness of the contravention of this Act;
(b)
attempts made to comply with this Act; and
(c)
whether or not the strike was in response to unjustified conduct by
the employer.
(2)
Prior to dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss
the course of action it
intends to adopt. The employer should issue an ultimatum in clear
and unambiguous terms that should state
what is required of the
employees and what sanction will be imposed if they do not comply
with the ultimatum. The employees should
be allowed sufficient time
to reflect on the ultimatum and respond to it, either by complying
with it or rejecting it. If the
employer cannot reasonably be
expected to extend these steps to the employees in question, the
employer may dispense with them.
[5]
Item 7 provides:
Any
person who is determining whether 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; the rule or standard has been
consistently applied by the employer; and
(iii)
dismissal was an appropriate sanction for the contravention of the
rule or standard.’
[6]
Member
of the Executive Council: Department of Health, Eastern Cape
Province v Public Health and Social Development Sectoral Bargaining
Council and Others
[2016]
6 BLLR 621
(LC);
ABSA
Bank Ltd v Naidu
[2015]
1 BLLR 1
(LAC)
;
National Union Metalworkers of SA v Haggie Rand Ltd
(1991)
12 ILJ 1022 (LAC);
Cape
Town City Council v Mashito and others
(2000)
21 ILJ 1957 (LAC);
SACCAWU
v Irvin & Johnson Ltd
(1999)
20 ILJ 2302 (LAC),
[6]
[1999] 8 BLLR741 (LAC).
[7]
Supra
n
4 at para 29.