About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 351
|
|
Matubatuba v Electro Hydro World CC (J1566/16) [2019] ZALCJHB 351 (18 December 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 1566/16
In
the matter between:
ISAAC
MATUBATUBA
Applicant
and
ELECTRO
HYDRO WORLD CC
Respondent
Heard:
22, 23 August 2019 and 13 September 2019
Delivered:
18 December 2019
JUDGMENT
MABASO,
AJ
Introduction:
[1]
The Applicant has approached this Court challenging the fairness of
his dismissal
by the Respondent following a guilty verdict entered
against him on the charges relating to participation in a strike
action that
does not comply with the provisions of the Labour
Relations Act 66 of 1995 (the Act). It is not in dispute that there
was an unprotected
strike on 30 and 31 March 2016, which employees of
the Respondent were involved in. The facts of this case are
straightforward,
as is set out below that most of facts are common
cause. Parties in the pre-trial minutes agreed that this Court has to
decide
both procedural and substantive fairness of the dismissal
based on the following disputed facts:
(a) whether the Applicant
participated in the unprotected strike?
(b) whether the Applicant
had any previous warnings?
Question (b) will only be
relevant if the answer in question (a) is in the affirmative. This
Court has to be guided by items 6 and
7 of the Code of Good Practice,
on dismissals, of the Act.
Evidence
and analysis
[2]
It is common cause that a number of employees of the Respondent
embarked on an unprotected
strike on 30 March 2016 and their demand
was the payment of a portion of the production bonus that had been
withheld by the Respondent.
After the commencement of the strike a
meeting was held between the shaft committee members, shop stewards
and management of the
Respondent to resolve the strike. The meeting
was successful because parties agreed that the bonus was to be paid
and that the
employees were to resume their duties immediately.
However, the employees did not resume their duties as agreed. On 30
March 2016
two ultimatums were issued against the employees to return
to work, but they did not.
[3]
It is not disputed that on 31 March 2016 around 7:00 AM, Mr Moleko
Motaung (Mr Motaung)
issued another ultimatum to direct the employees
to return to work by 8:00 AM but still they did not comply with the
instruction.
He then around 10 AM, directed those employees to leave
the premises of the Respondent because they were not willing to
tender
services. The Applicant was supposed to tender services to the
Respondent on both dates (30 and 31 March 2016), but he did not,
and
evidence shows that on both dates, he was at the premises of the
Respondent.
[4]
Following the strike, the Applicant, along with those employees who
were on unprotected
strike, were issued with a notice to attend a
disciplinary hearing. These charges emanate from the allegations of
being involved
in the unprotected strike. At all relevant times, the
Applicant was a member of a trade union, AMCU, which was consulted
during
the strike and it also represented him during the internal
hearings.
[5]
Following the disciplinary hearing the Applicant was dismissed on 7
April 2016, however,
he proceeded to lodge an appeal wherein he
produced a doctor’s note indicating that he had been booked off
sick from 31 March
2016 to 04 April 2016. It was further common cause
that the Applicant despite being at the premises of the Respondent on
31 March
2016, he did not notify the Respondent that he was not well
and had to go to see a medical practitioner.
[6]
The upshot of this matter is that, since it is common cause that the
Applicant was
required to render services to the Respondent on 30 and
31 March 2016 and he did not do that, despite evidence being
presented
that he was in the premises of the Respondent on both
occasions, it is therefore up to the Applicant to explain the failure
to
tender services which he was employed to do. Despite this burden
to present evidence, it is still up to the Respondent to show that
the dismissal was both procedurally and substantively fair and this
Court has to be guided by items 6 and 7 of Schedule 8 of .the
LRA.
[7]
Both in the statement of claim and the opening statement, the
Applicant disputes that
he was on strike on 30 March 2016 as he
states that when he arrived at work he found that fellow employees
were not working as
per the policy, therefore, he was not supposed to
work alone meaning the circumstances prevented him to do his job.
[8]
In summary, the evidence of the Respondent, through Mr Motaung
was thus: he
was advised in the morning of 30 March 2016 that there
was an unprotected strike, he then proceeded to the boardroom where
employees
had gathered, including the Applicant. He inquired as to
why they were not working, and they stated their demand being the
issue
of the production bonus. The manager, Mr Kobus Van den Berg (Mr
Van den Berg), then arrived and tried to persuade them to go to
work,
however, they refused. He then proceeded to issue the first ultimatum
which he broadcasted in the boardroom and outside the
buildings so
that everyone can see. At that time, all employees were in the
boardroom. However, they still did not comply with
the instruction of
going to work. He stated that the Applicant did not come to him and
say he wanted to tender his services despite
the ultimatums being
issued, directing all employees to work.
[9]
It was confirmed that the supervisors were also on strike, which the
Applicant was
working under one of them. It was put to Mr Motaung
that since the Applicant was an assistant to a supervisor “he
could not
have gone on strike". Mr Motaung confirmed that prior
to starting work, the procedure is to have a safety meeting first,
thereafter,
an employee goes to his supervisor for guidance. He
stressed that on 30 March 2016 there was no safety
meeting, and
the supervisors did not give instructions for the daily
tasks.
[10]
Mr Jansen Van Vuuren (Mr Van Vuuren) stated that employees do not get
instruction daily as they
know their job descriptions and the
Applicant, as he worked as a batch controller operator, is the one
that starts the plant. Therefore,
the Applicant is the first person
that should be busy in the morning, starting to mix cement for
underground workplaces.
[11]
Mr Van Der Berg stated that no meetings were held both on the 30 and
31 March 2016, however,
sometimes no such meetings are necessary as
the employees can continue with their work. He gave an example that
the Applicant has
been working for the Respondent for about 10 years
doing the same job, and he knows his duties and responsibilities.
Therefore
whether a safety meeting has been held or not, the
Applicant was expected to do his work.
[12]
The Applicant testified as follows: he denied that he was part of the
strike. He denied that
he was in the boardroom, where instruction was
given for all employees to resume duties. He insisted that the policy
of the Respondent
is that you cannot work before a safety meeting is
held. In the examination in chief, when Mr Bai asked him about the
incident
of 30 March 2016, he
inter alia
stated that,
“
management
arrived roundabout 10, they had a meeting with AMCU. At three I was
still seated there, and they finished, and I was
with the other
employees, so after three the management told us that they have
agreed that our bonuses were going to be paid to
us. So the strike
was over, and I was supposed to have started work, on the 31
st
."
[13]
Later in his evidence, the Applicant stated that he could not have
been on strike because he
had no query about the bonus.
[14]
At this juncture, I deem it appropriate to highlight that an employee
may be on strike even if
he/she is not directly affected by the
demands of fellow employees who are directly affected. Therefore, an
employee may withhold
services in support of those employees.
In
casu
, despite the contradictions on the evidence of the Applicant
as to whether the Respondent had withheld his bonus or not, this fact
is not important taking into account that he can act in common
purpose with other employees by “
for the purpose of
remedying a grievance or resolving a dispute in respect of any matter
of mutual interest between employer and
employee”
.
[15]
The Applicant was required to work on 30 March 2016, which he did
not. Messrs Motaung and Van
den Berg presented undisputed
evidence that they were at the boardroom where they addressed the
employees to go to work, but employees
refused. Some ultimatums were
issued and placed inside and outside the boardroom persuading the
employees to return to work, but
they still did not. The Applicant
denies that he was at the boardroom and alleges that he was seated
outside. The question that
has to be asked is: if the Applicant was
not in the boardroom then why upon realising that both Mr
Motaung or Mr Van den
Berg were in the premises of the
Respondent on the date in question why did he not approach them and
indicate his intention
that he wanted to work. Subsequent to the
ultimatums that were issued on 30 March 2016, if the Applicant were
seated outside, he
would have seen those ultimatums and then approach
the Respondent and explained that he could not work because there
were no meetings
that were supposed to have taken place.
[16]
It is improbable that the Applicant would continue to sit outside
despite that most workers were
in the boardroom being addressed
by both Messrs Motaung and Van den Berg. Regarding credibility of the
witnesses, I accept
the evidence of the Respondent that the Applicant
was in the boardroom, as I have indicated that it is highly
improbable that a
meeting would be held and an employee who claimed
that had been prevented from working would continue to sit outside
without wanting
to know what was being discussed in that meeting. I
therefore reject the testimony of the Applicant and conclude
that the
Applicant was part of the meeting.
[17]
Therefore, the evidence of the Applicant that on the date in
question, he was prevented by the
circumstances to tender services
cannot succeed. Also taking into account that the Applicant confirms
that he was a member of the
union and that the meeting was held with
the union whereby it was agreed that the workers should resume work,
he should have advised
his union officials that he wanted to work.
Based on this I conclude that the Applicant was on unprotected strike
on 30 March 2016.
[18]
Can an inference be drawn that the Applicant was on strike on 31
March 2016? The SCA
[1]
has
held that, in deciding an issue based on inferences in a civil
matter, the following has to be a guide,
"
in drawing inferences from the proved facts, acts on a preponderance
of probability. The inference of an intention to prefer
is one which
is, on a balance of probabilities, the most probable, although not
necessarily the only inference to be drawn. …If
the facts
permit of more than one inference, the Court must select the most
"plausible" or probable inference. If this
favours the
litigant on whom the onus rests he is entitled to judgment. If on the
other hand, an inference in favour of both parties
is equally
possible, the litigant will have not discharged the onus of proof”.
[19]
It is not in dispute that the Applicant attended the medical
practitioners’ rooms on 31
March 2016. The Applicant presented
evidence that on that day he reported at the Respondent, according to
the statement of claim,
he immediately left so that he could attend
at the medical practitioners’ rooms. However, during the
cross-examination, it
transpired that the Applicant left the premises
of the Respondent around 10 AM. It is improbable that the Applicant
will arrive
around 8:00 AM and then leave around 10: AM, just
to collect a medical card, as he alleges. I say this is because the
10:00
AM time coincides with what Mr Motaung said, that he issued the
final ultimatum earlier, around 8:AM then around 10:00 AM when he
realised that workers were not returning to work as per his
instruction then he asked them to leave the premises.
[20]
The only inference to be drawn is that the Applicant arrived on 31
March 2016 and left the premises
of the Respondent when he was asked,
together with others, to leave the premises because they were on
unprotected strike as they
refused to go back to work despite the
final ultimatum being issued. I say this, in addition, taking into
account that the strike
had already started on the previous day. I,
therefore, conclude that the Applicant was part of the unprotected
strike on
both dates. Therefore, he was guilty of the offences that
led to his dismissal. The evidence that the Applicant went to the
premises
of the Respondent on 31 March 2016 to collect a medical
card, clearly based on the totality of the evidence presented such
evidence
cannot stand. The only inference that can be drawn is that
the Applicant decided to visit a medical practitioner to try to
justify
his conduct as he stated that he saw a doctor around 1 PM.
[21]
Was dismissal an appropriate sanction? Mr Motaung
testified as follows: on 18 March 2016, he issued the
Applicant with
a final written warning in respect of being involved in an
unprotected strike action that took place during the
period of 18 and
23 February 2016. Mr Motaung testified that this final written
warning ended up being signed by Mr Junior Zibila.
This warning was
valid for the period of 12 months. The Applicant refused to
acknowledge receipt of this warning.
[22]
Despite this, the Applicant denied that he was ever involved in an
unprotected strike before
and the knowledge of final written warning.
[23]
Mr Zibila evidence was very brief, as he stated that he signed the
final written warning on behalf
of of the Applicant as he had refused
to accept it. The warning was issued following all the workers being
involved in the strike.
I accept the evidence of the Respondent that
indeed the Applicant had a final written warning, which was valid at
the time when
the unprotected strike took place on 30 and 31 March
2016.
[24]
In respect of procedural fairness, the Applicant
was represented by his union during the disciplinary hearing
and the
appeal hearing. The union decided not to call the Applicant to
testify during these processes, which is understandable
because the
circumstances of the charges emanated from the same unprotected
strike. Further, the issue of the medical certificate
I have dealt
with it above. I conclude that nothing much that revolved around the
procedural aspect of dismissal.
[25]
I have taken into account, among other things,
that the strike lasted for two days, the issue in demand
was resolved
on the first day,the number of years that the Applicant has worked
for the Respondent and that at the time when the
offences were
committed the Applicant was on a final written warning, therefore, I
conclude that the dismissal was an appropriate
sanction.
[26]
In the premises, I make the following order:
Order
1..
The dismissal of the Applicant was both procedurally and
substantively fair.
2.
There is no order as to costs.
____________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr Bayi
Instructed
by: Bayi Attorneys
For
the: Respondent: Mr R J C Orton
Instructed
by: Snyman Attorneys
[1]
Cooper and Another v Merchant Trade Finance Ltd (474/97)
[1999]
ZASCA 97
(1 December 1999)