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[2020] ZALCJHB 6
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Sibeko and Others v CCMA and Others (JR2819/11) [2020] ZALCJHB 6 (21 January 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
numbers: JR2819/11
In
the matter between:
SAKHELE
PETROS SIBEKO & 3 OTHERS Applicants
and
THE
CCMA First
Respondent
CARL
MISCHKE
N.O.
Second Respondent
DUNLOP
BELTING PRODUCTS (PTY) LTD
Third Respondent
Heard
:
14 January 2020
Delivered
:
21 January 2020
JUDGMENT
HARDIE,
AJ
Introduction
[1]
This is an application in terms of which the Applicants seek to
review
and set aside an arbitration award made by the Second
Respondent (the Commissioner) under the auspices of the First
Respondent
on 27 May 2011 under case number GAJB38445-09 in which he
found
inter alia
that the Applicants’ dismissal was
substantively and procedurally fair.
[2]
Arising from certain issues between the parties regarding
inter
alia
the compilation of the record, there were certain delays in
the prosecution of the review, which in the interests of justice, I
condoned at the commencement of the hearing.
Grounds
of review
[3]
The Applicant’s three grounds of review are as follows: (1) the
Third Respondent (the employer) didn’t follow the procedure by
not informing the employees in person to attend the disciplinary
hearing on allegations against them; instead the employer contacted
the union officials as other employees were not members of
the unions
at that time (eg. Mr Sakhele Sibeko); (2) the disciplinary
hearing was only held at Caesars Palace in Kempton
Park but not at
the employer’s premises in Benoni. It was unfair to the
Applicants in that the place was too far and
they had a problem of
transport fees because of being on strike for so long; (3) The
evidence brought by the employer does not
link with the Applicants.
The pictures used by the employer as evidence were not dated so that
one could see which Court
order was not followed by the striking
employees. Even if they broke the picketing rules (or Court
order), it was not prudent
to dismiss the Applicants from work in
jobless South Africa.
[4]
The Commissioner’s findings relating to the grounds of review
contained
above were as follows:
“
Procedural
fairness
There are two aspects of
this case that do, however, require more careful consideration.
The first is the issue of procedural
fairness. It was at no
point disputed that Employer did not hold individual disciplinary
enquiries in respect of the charges
against the Applicants.
They did not receive individual notices of the enquiries. Instead,
the Employer issued a notice,
reflecting the disciplinary charges, to
the trade union, and invited the trade union to attend a mass
enquiry. This, as Mr
van As on behalf of the Employer pointed
out, is the essence of the
Modise v Steve’s Spar Blackheath
approach. It needs to be established, however, whether this
decision of the Labour Appeal Court finds application in this case.
The facts are different:
Modise v Steve’s Spar Blackheath
was decided in the context of employees’ participation in an
unlawful/ unprotected strike. The essence of the
Modise
decision is that the employer must observe the
audi alteram partem
rule before dismissing the strikers engaged in an unprotected
strike. The following passage from the Labour Appeal Court’s
judgement is of some importance in this regard:
“
[44]
Provided that the meeting that the representatives of the workers
refused to attend was a meeting whose
purpose was for the employer to
hear why the workers should not be dismissed, I have no quarrel with
the conclusion that, in such
a case, the strikers cannot be heard to
complain that they were not heard before dismissal. If,
however, they were invited
to a meeting whose purpose did not include
that, then I cannot see how they can be said to have waived their
right to be heard.
They may well be happy not to attend a
particular meeting for whatever reason, good or bad, but they be more
than keen to attend
on the purpose of which is to give them an
opportunity to make representations why they should not be
dismissed…”
In the
Modise
case, the misconduct concerned was the employees’ participation
in an unprotected strike. In this case, however, there
is no
dispute that the strike itself was protected. Does the
Modise
-
principle (holding a mass enquiry in compliance with the
audi
alteram partem
principle) apply in this case? Put
differently: is the
Modise
approach at the disposal of an
employer in response to other forms of misconduct- in this case
intimidation and damage to property?
It would be artificial in
the extreme to draw a distinction, in a case such as this, where the
misconduct concerned clearly has
a collective dimension, between one
form of misconduct (participation in an unprotected strike) and other
forms of misconduct (such
as intimidation and damage to property).
Misconduct is misconduct- and the essence of misconduct remains the
breach of a
rule or standard governing conduct in or of relevance to
the workplace. There is no reason, in principle, why the
Modise
approach cannot be used by an employer in response to other forms of
misconduct that have a pronounced collective aspect, such
as the
facts in this case indicate.
Another decision
mentioned by Mr van As in his closing argument is the
Avril
Elizabeth Homes
decision by the Labour Court. In this
decision the Labour Court states that the core of procedural fairness
is that there
should be dialogue and an opportunity for reflection
before a decision to dismiss is taken. The Labour Court is also
at pains
to emphasise a move to a more informal approach to
procedural fairness.
At the very heart of
procedural fairness lies the opportunity of an employee facing
dismissal to state a case in response to the
allegations and charges
brought against him or her. In this case, the dismissed
employees were indeed given such an opportunity-
off the company’s
premises and chaired by a neutral external chairperson. They
elected (and this must be emphasised)
not to attend these
proceedings.
In this case, it was
clear that the Employer called upon the unions to make
representations, on behalf of the workers, as to why
they should not
be dismissed. It is clear, from the evidence, that Mr Sibheko,
and the other applicants in this case were
aware of the mass
disciplinary enquiry to be held at Caesar’s Palace. Mr
Sibheko, on behalf of the applicants, claimed
that the employer was
under a duty to ensure transport to the venue. It may well be
the case that the applicants, as the
allege, did not have enough
money to travel to Caesar’s Palace. But this issue was
not communicated to the employer-
Mr Sibheko said that he attempted
to contact the Human Resources Manager on this issue, but that he
could not get hold of the Manager.
Why did he leave the matter
there? Why did the applicants not raise the issue with the
Employer after the strike had been
settled? It must be borne in
mind that Mr Sibheko’s evidence on this point was not put to Mr
Visser when he gave evidence,
and therefore stands as a mere
allegation.
If the applicants had
taken up the issue with the Employer after the strike had been
settled, they would have given the Employer
the opportunity to
schedule individual disciplinary enquiries if the Employer found that
they indeed experienced transport problems.
The applicants did
not seek to engage with the Employer about the pre- dismissal
procedures at any time before the arbitration
proceedings.
In light of these
considerations, it is found that the Employer gave the applicants a
fair opportunity to present a response before
a final decision to
dismiss them was taken. Their dismissal are therefore
procedurally fair.”
[1]
[5]
As can be seen from the Commissioner’s finding on procedural
fairness,
and more particularly the highlighted portion thereof, he
dealt thoroughly with the two submissions made by the Applicants in
their
first two grounds of review. And weighing them together
with all other material and relevant evidence, came to the conclusion
that notwithstanding these two complaints about the procedural
unfairness of their dismissals, that the Applicants’ dismissals
were procedurally fair. I am precluded from interfering with these
findings of the Commissioner, because to do so, would be tantamount
to treating these proceedings as an appeal. These two
complaints about the procedural fairness of the dismissal, are
grounds
of appeal dressed up as grounds of review, and do not pass
muster and must fail.
[6]
I now turn to deal with the third ground of review. Again, I
quote
directly from the Commissioner’s findings on substantive
fairness in the award in dealing with this ground, which reads:
“
The evidence
presented by Mr Visser was cogent, coherent, and at all times
supported by photographs and other documents. Mr
Visser was
clear and consistent in his version of the events, and it must also
be borne in mind that he joined the Employer only
a month before the
strike commenced. This means that he did not know the
individual applicants personally (or did not know
them well), and
that it can be hardly be said that he had an axe to grind with any of
the individual applicants. Further
“
The
individual applicants in this case were clearly identified by the
Employer as being part of a group of picketers- the applicants
admitted that they appeared on the photographs submitted by the
Employer.
Using the language of Shai AJ in the Samwu case cited above, the
proven misconduct can be imported on those who the respondent
identified in its evidence.”
[2]
[7]
On a reading of the relevant portion of the transcript of the
proceedings
at the Commission for Conciliation, Mediation and
Arbitration relating to Visser’s identification of the
individual applicants,
it is also instructive that his evidence was
not challenged under cross- examination. It is trite also that where
a credibility
finding is made, as it was in relation to Visser’s
evidence on the identification, it is not within this Court’s
purview
to interfere with that.
[8]
Given the factual finding made by the Commissioner that the
Applicants
were properly identified, and the fact that that finding
was based upon the uncontested evidence of Visser, there is no basis
for
the Applicant’s contention that they were not properly
identified in their third ground of review. Again, this ground
of review must also fail.
Costs
[9]
Turning now to the question of costs. Whilst I believe that this
review
application was ill- conceived, and that in bringing it, the
Applicants were clutching at straws in a last gasp effort to save
their jobs, this is not an appropriate case where a costs order is
appropriate.
[10]
Therefore the following order is made:
Order
1. The Applicants’
review application is dismissed.
2. There is no order as
to costs.
_______________________
S
B Hardie
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr S P
Sibeko (In person)
The
Third Respondent:
Advocate W Hutchinson
Instructed
by:
Fluxmans Inc. Attorneys
[1]
Own emphasis.
[2]
Own emphasis.