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[2020] ZALCJHB 13
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NUMSA obo Dhludhlu and Others v Marley Pipe Systems (SA) (Pty) Ltd (JS878/17) [2020] ZALCJHB 13; (2020) 41 ILJ 2175 (LC) (23 January 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
No:
JS
878/17
In
the matter between:
NUMSA
obo AUBREY DHLUDHLU AND OTHERS
Applicant
and
MARLEY
PIPE SYSTEMS (SA) (PTY) LTD
Respondent
Heard
:
18 to
20 March 2019, 30 September, 1 and 2 October 2019
Delivered
:
23 January
2020
Summary:
Dismissal of employees participating in an unprotected strike action
– substantive and procedural
fairness – just and
equitable compensation in terms of section 68(1) of the Labour
Relations Act, Act 66 of 1995.
JUDGMENT
PHEHANE
,
AJ
Introduction
[1]
The
Court is called upon to determine whether the dismissal of 145
individual employees of the Respondent in August 2017 was
substantively
and procedurally fair. If the dismissal is found to be
procedurally and substantively unfair, the Court is called upon to
reinstate
the individual employees.
[1]
[2]
The
Respondent has launched a counterclaim and calls upon the Court to
order just and equitable compensation to the Respondent for
any loss
attributable to the strike or any conduct in contemplation or in
furtherance thereto, as contemplated in section 68(1)(b)
of the
Labour Relations Act
[2]
(the
LRA). In the alternative, the Respondent claims damages in terms of
section 77 of the Basic Conditions of Employment Act
[3]
(the BCEA)
[4]
.
Brief
factual background
[3]
The
factual background is common cause between the parties as appears
from correspondence exchanged between the parties as well
as internal
memoranda by the Respondent.
[5]
[4]
The
Respondent operates in the plastics industry and falls under the
jurisdiction of the Metal and Engineering Industries Bargaining
Council (the MEIBC). Pursuant to the judgment of the Labour Appeal
Court (LAC) in
Plastic
Converters Association of South Africa (PCASA) obo Members v National
Union of Metalworkers of South Africa and Others
[6]
,
the Respondent is obliged to bargain in the Plastics Negotiating
Forum (PNF), being a recently established collective bargaining
forum
of the MEIBC.
[5]
An agreement relating to wage increases was
concluded in the PNF on 5 May 2017, which was finalized on 13 July
2017 (the PNF agreement).
The wage negotiations pertaining to the
steel industry were ongoing and had not been concluded at this point
in time.
[6]
In terms of the PNF agreement, employers
who are party to the PNF could grant increases in excess of the
minimum that was prescribed
in the PNF agreement.
[7]
The Respondent elected to do this and
proposed a wage increase of 7.5% on condition that if the MEIBC
negotiations resulted in an
increase in the industry in excess of its
proposed 7.5%, then the Respondent would apply that higher wage
percentage increase.
It is common cause that the applicant (NUMSA) is
not a party to the PNF agreement.
[8]
On 5 July 2017 the employees of the
Respondent being NUMSA members, partook in a work stoppage which
resulted in the Respondent
agreeing to await the outcome of the wage
negotiations under the auspices of the MEIBC.
[9]
On 13 July 2017, the management of the
Respondent met with NUMSA shop stewards to communicate the
Respondent’s wage increase
proposal. The proposal was
communicated by the Respondent to its employees on the same date.
[10]
It is common cause that the following three
shifts applied to the operations of the Respondent: 06h00 to 14h00;
14h00 to 22h00 and
22h00 to 06h00. On 14 July 2017, the employees
commenced with strike action shortly before 07h00. The facts of this
case pertain
to the strike action that was embarked on at the Nigel
plant of the Respondent.
[11]
On 14 July 2017 and during the strike
action, the Respondent alleges that Mr Ferdinand Christiaan Steffens
(Mr Steffens), its then
Head of Human Resources, was assaulted by the
employees who were on strike and who acted with common purpose. NUMSA
denies that
Mr Steffens was assaulted.
[12]
On the same day the employees were
requested to leave the Respondent’s premises for safety
reasons. The employees left the
premises at approximately 12h00. The
Respondent obtained an urgent interdict on the same date, in which
this Court, per La Grange
J,
inter alia,
declared the strike action as unprotected and directed that the
employees were interdicted from further engaging in the unprotected
strike action and any conduct in furtherance thereto. A rule
nisi
was issued for 19 October 2017. On this date, the rule
nisi
was discharged with no order as to costs.
[13]
On 17 July 2017, the employees returned to
the premises. The premises was locked and the employees were refused
entry into the Respondent’s
premises.
[14]
During
July to August 2017, a disciplinary hearing was held
[7]
,
in terms of which the individual employees were charged and were
found guilty for having participated in an unprotected strike
action
and for having assaulted Mr Steffens and acting with a common purpose
in perpetrating the assault.
[15]
The individual employees were dismissed
following the said disciplinary hearing. A conciliation hearing was
held under the auspices
of the MEIBC on 29 September 2017, at which a
certificate of outcome of the non-resolution of the dispute was
issued. The matter
now comes before this Court to adjudicate.
Legislative
Framework
[16]
Section 64 of the LRA makes provision for the right to strike
and sets out the jurisdictional grounds for protected strike action.
Our Courts have frowned upon unprotected strike action and any
conduct related thereto which results in violence, loss, destruction
of property and harm to persons.
[17]
Section 68 of the LRA accordingly provides the mechanism for relief
should a strike action
(or lock out) fail to comply with the
provisions of the LRA. One such mechanism is found in Section
68(1)(b) which provides as
follows:
68.
(1)
In the case of any
strike
or lock -out, or any conduct in
contemplation or in furtherance of a
strike
or
lock -out
,
that does not comply with the provisions of this Chapter, the Labour
Court has exclusive jurisdiction-
…
..
(b)
to order the payment of just and equitable compensation for any loss
attributable to the
strike
or
lock-out
, or conduct,
having regard to-
(i)
whether –
(aa)
attempts were made to comply with the provisions of this Chapter and
the extent of those attempts;
(bb)
the
strike
or
lock-out
or conduct was premeditated;
(cc)
the
strike
or
lock-out
or conduct was in response to
unjustified conduct by another party to the
dispute
; and
(dd)
there was compliance with an order granted
in terms of paragraph (a);
[8]
(ii)
the interests of orderly collective
bargaining;
(iii)
the duration of the
strike
or
lock-out
or conduct and;
(iv)
the financial position of the
employer,
trade union
or
employees
respectively.
[18]
Item 6 of
Schedule 8
[9]
of the LRA
provides as follows:
(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.
[19]
Section 193(1) and (2) of the LRA provide for the remedies for unfair
dismissal, which
include re-instatement, re-employment or
compensation, taking into account the considerations mentioned in the
said sub-sections.
Evidence
Was
the strike protected or unprotected?
[20]
The
pleaded case by the Applicant was that the individual employees were
not involved in any strike action
[10]
.
The case of the Applicant during the disciplinary hearing, was that
the employees gathered in the canteen at approximately 06h55
to 07h00
and waited for Mr Steffens to address them on the wage negotiations.
From the canteen, approximately 30 to 40 in number,
the employees
marched, danced and sang towards the security gate. In addition, they
“
went
around the tree just to loosen up
”
and they sat at the trees near the security gate, waiting for Mr
Steffens to address them.
[11]
[21]
The
video footage contained on a USB memory stick is accompanied by an
explanatory list. The USB memory stick and explanatory list
is marked
“Exhibit 5”. “Exhibit 5” is to be considered
together with “Exhibit 1”, entitled
“Summary of
Video Footage”. The video footage
[12]
clearly shows employees, more than 50 in number, marching, dancing,
singing on the premises, towards and in front of the security
gate.
Three placards are seen in the video, carried by the striking
employees. These placards contain the following words: “
Away
with Ferdi we want 15%”
;
“
7.5%
se moer
”;
“
We
want 15% across the board”
.
[22]
The
evidence of Mr Viro Darian Chinner (Mr Chinner), Ms Rosslyn Crowie
(Ms Crowie) and Mr Steffens for the Respondent, was that
none of
NUMSA members were at their workstations on the morning of 14 July
2017 at approximately 06h55 and that they had gathered
in the
canteen
[13]
.
[23]
The evidence of Mr Chinner, Ms Crowie and
Mr Steffens was that the employees, following the gathering in the
canteen, proceeded
to march, dance and sing on the premises.
[24]
Mr
Chinner was the Manufacturing/Production Manager of the Respondent.
Mr Chinner’s evidence was that he prepared and attempted
to
hand over an ultimatum to the striking workers while the employees
were marching on the premises. He handed the ultimatum
[14]
to two striking employees. He asked a striking employee, a shop
steward by the name of Aubrey, as to who was in charge and Aubrey
told him that all the employees were in charge. He was told by Aubrey
to stop handing out the ultimatum.
[15]
[25]
Mr
Chinner’s evidence was that he noticed that the striking
employees were moving towards the administration building. He
tried
to stop them from entering the office and was told “
saubulala
”,
in his interpretation, meaning “
I
will kill you
”.
[16]
[26]
Mr
Chinner’s evidence was that after being told “
saubulala
”,
he retreated as he had been threatened. He later heard that Mr
Steffens was hurt and saw him shaken and being escorted
off the
premises. He asked Mr Steffens if everything was okay, to which Mr
Steffens told him that he was leaving the site.
[17]
[27]
Mr
Chinner stated that after Mr Steffens left the Respondent’s
premises, two employees, named Ralf Sekele (Mosikidi) and Agatha
Tshabalala met with the striking employees and Ms Tshabalala noted
their demands.
[18]
[28]
Ms
Crowie is a team leader in the valves assembly department of the
Respondent. Ms Crowie’s evidence was that she walked to
the
security gate after the striking workers proceeded to the
administration building. She heard glass break and saw the striking
employees throw Mr Steffens on the floor and kicking him.
[19]
[29]
Ms
Crowie is seen in the video footage walking to the security gate. She
disappears behind a tree and later emerges walking away
from the
security gate.
[20]
[30]
Mr
Steffens’ evidence is that he was assaulted at work by the
striking employees on 14 July 2017. Mr Steffens referred to
the
medical examination report pertaining to the injuries he sustained
during the assault.
[21]
[31]
His
evidence was that the striking employees entered the administration
office block. He went out of the office to speak to them
and to
convince them to return to work. He was attacked by a group of
employees. He was pushed to the ground several times and
was pushed
through an office window of an office adjacent to his office. With
the assistance of security officers, he was lifted
to his feet and
managed to exit the premises through the security gate.
[22]
[32]
The
video footage shows Mr Steffens exiting the premises through the
security gate. The striking employees are seen returning from
the
same direction that Mr Steffens came from and are seen dancing and
singing and still carrying the placards.
[23]
[33]
In
his evidence, Mr Ronnie Motebejane (Mr Motebejane), a witness for the
Respondent, who was at the time employed by the Respondent
as the
Head of Manufacturing Operations overseeing all production and
support services including safety and security, confirmed
the
WhatsApp messages on p 273 to 286 of the Respondent’s Bundle
(Bundle 3).
[24]
His evidence
was that following the unprotected strike action and assault, the
employees were requested to leave the site for safety
reasons. He
referred to a memorandum by the Respondent to all staff to leave the
premises.
[25]
[34]
Mr Motebejane further referred to the
strike register that is kept by the Respondent. Extracts appear at p
12 to 14 of the Respondent’s
Bundle (Bundle 3), in which the
unprotected strike action is recorded, the assault by the striking
workers on Mr Steffens, the
window that was broken on the premises by
the striking employees and the locked premises on 17 July 2017 when
the employees returned
for duty and were handed out the Court
interdict (of 14 July 2019).
[35]
Mr
Ledwaba, the only witness for the applicant, made a concession that
the strike was unprotected.
[26]
In view of the afore-going, I find that a strike took place on
14 July 2017 and that the strike action was unprotected.
Was
Mr Steffens assaulted during the strike action?
[36]
The
pleaded case for the Applicant was that no assault took place
[27]
.
The evidence on behalf of the Applicant at the disciplinary hearing
was that Mr Steffens was not assaulted. Further, that the
employees
did not march to the administration building.
[28]
[37]
Counsel
for the Applicant sated that Mr Lodwin Matsheke would come and
testify before this Court that he did not assault Mr Steffens
and
that he did not witness any assault.
[29]
This witness was not called to testify before this Court.
[38]
In
ABSA
Investment Management Services (Pty) Ltd v Crowhurst
[30]
,
the LAC stated that the failure to call an available witness may
result in an adverse inference being drawn, i.e. that the witness
will not support and may even damage that party’s case.
[39]
Mr
Ledwaba’s evidence was that Mr Steffens was not assaulted.
[31]
His evidence was that the employees did not march to the
administration building. His evidence, heard for the first time
during
cross examination, was that the striking employees marched to
an open space where there was a platform that was erected for Mr
Steffens to stand on to address the employees
[32]
,
which platform Mr Ledwaba stated was far
[33]
from Mr Steffens’ office, a distance of about 20 meters
[34]
.
[40]
The evidence on behalf of the Respondent in
relation to the assault of Mr Steffens is dealt with in paragraphs
[28] to [34] above
and in the footnotes referred to in these
paragraphs. As is apparent, these are mutually destructive versions
presented to this
Court regarding the assault of Mr Steffens by the
striking employees.
[41]
When a
Court is faced with two irreconcilable versions, the best technique
to deploy in dealing with a factual dispute was set out
in
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell & Cie SA and
Others
[35]
where the Court described the technique as follows:
‘
[5]
… To come to a conclusion on the disputed issues a court must
make findings on (a)
the credibility of the various factual
witnesses; (b) their reliability; and (c) the probabilities’.
[36]
[42]
On making a finding on the credibility of the witnesses that
testified, the Court in
Stellenbosch supra
stated the
following:
‘…
the
court’s finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary factors, not necessarily
in order of importance, such as (i) the witness’s
candour and
demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or
events.’
[37]
[43]
Thereafter, a Court will make an enquiry into the reliability of the
witnesses that testified.
The Court in
Stellenbosch supra
stated the following:
‘…
a
witness’s reliability will depend, apart from the factors
mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity and independence of his recall thereof.’
[38]
[44]
Once a witness is found to be both credible and reliable, the Court
in
Stellenbosch supra
found that probability usually follows.
It ended the test with the following:
‘…
this
necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will then, as a final step, determine whether the party burdened
with
the onus of proof has succeeded in discharging it ...’
[39]
[45]
I find that the witnesses who testified about the strike action and
the assault on
Mr Steffens, being Messrs Chinner, Steffens,
Motebejane and Ms Crowie were credible and reliable witnesses. Their
versions were
consistent. Further, their versions were consistent
with the video footage.
[46]
Mr
Ledwaba was not a credible or reliable witness. He could not explain
why his version on the strike being protected or unprotected
contradicted the pleaded case of the Applicant. His version is odds
with the employee’s version at the disciplinary hearing
in
relation to whether or not a strike took place. His evidence that the
number of people who participated in the strike were 35
to 40
people
[40]
is at odds with the
video footage.
[47]
Mr Ledwaba’s evidence was fabricated.
He stated that the employees waited at a platform to hear the
expected address by Mr
Steffens. This version was not put to the
Respondent’s witnesses when they testified and neither was it
put before the chairperson
of the disciplinary hearing.
[48]
Mr
Ledwaba’s evidence was that when he noticed the employees
gathering in the canteen after his shift ended (being the third
shift), he was “
curious
”
and he followed the workers to the canteen to find out what was
taking place.
[41]
This
evidence is at odds with the video footage,
[42]
in which Mr Ledwaba is seen leading the crowd of striking workers and
addressing them after Mr Steffens had left the premises.
Mr Ledwaba
is identified in the Respondent’s Additional Identification
Bundle Two.
[43]
He did not
dispute that that was him as identified.
[44]
[49]
I therefore find that the version of Mr
Ledwaba is full of internal and external contradictions, and is
improbable. On a balance
of probabilities, I find that the version of
the Respondent in relation to the assault that took place on Mr
Steffens probable.
[50]
In view of the afore-going, I find that the
dismissal was substantively fair.
Ultimatum
[51]
Mr
Chinner’s evidence as stated above, is that he handed the first
ultimatum to two striking employees and was told to stop
handing out
the rest. The ultimatum
[45]
records that the employees are participating in an unprotected strike
action and the employees are instructed to return to work
by no later
than 08h30; further that the unprotected strike action may constitute
a fair reason for dismissal.
[52]
His
evidence was that the ultimatum was not delivered to NUMSA. This was
his evidence at the disciplinary hearing
[46]
.
Mr Chinner’s evidence was that he prepared a final
ultimatum
[47]
but did not
dispatch it because the strike became violent.
[48]
[53]
The Applicant relies on item 6 (2) of
Schedule 8 to the LRA and contends that the Respondent’s
failure to comply with the
provisions of item 6 (2) renders the
dismissal of the individual employees procedurally unfair.
[54]
The Respondent contends that the dismissal
of the employees was procedurally fair, as firstly, the ultimatum was
issued and Mr Chinner
was prevented from further distributing the
ultimatum by NUMSA’s shop steward; and secondly, that the
Respondent held a hearing
before dismissing the employees.
[55]
On the evidence, I find that the Respondent
issued the ultimatum to the striking employees and was prevented by a
NUMSA shop steward
from further distributing the ultimatum.
[56]
In
NTM
obo Shadrack Molema and 224 Others
[49]
,
the Court stated the following at paragraphs [57] and [58]:
‘
[57]
The ultimate test however is whether the strikers
were given a fair opportunity to state their case before
a decision
was taken to dismiss them. In Karras t/a Floraline v SASTAWU and
others the Labour Appeal Court followed the approach
in Modise and
held that section 188(1)(b) requires the observance of the audi rule
in all instances of dismissal, regardless of
the reason. According to
the Court, the only difference would be that in a case of collective
misconduct, the opportunity to state
a case will ordinarily be given
to the collective, usually the trade union , if one is involved…
[58]
Ultimately, the consideration is whether the
strikers of the union were given a reasonable opportunity
to make
representations before the strikers were dismissed for participating
in an unprotected strike. The circumstances faced
by both the
employer and the employees should dictate what procedural steps are
reasonably practical and fair in the context’.
[57]
The
evidence of Mr Steffens is that it was practically impossible for the
Respondent to hold hearings for the individual employees.
[50]
[58]
During
cross examination, it was put to Mr Chinner that NUMSA had requested
that their members make oral submissions at the disciplinary
hearing.
Further, that NUMSA was denied this opportunity and was restricted to
a maximum of 5 representatives.
[51]
In re-examination, Mr Chinner clarified that NUMSA was limited to
five representatives and not 5 witnesses; further, that NUMSA
did not
request the chairperson to call further witnesses
[52]
.
The evidence was corroborated by Mr Steffens.
[53]
[59]
I find that a disciplinary hearing was held
prior to the dismissal of the employees, at which the individual
employees were represented
by NUMSA and were given the opportunity to
state their version.
[60]
In the circumstances, I find that the
procedure was fair and therefore, I find that the dismissal was
procedurally fair.
Identification
of employees
[61]
The
evidence of Mr Motebejane, Mr Chinner and that of team leaders, Ms
Crowie, Mr Dirk Jansen and Mr Riaan Janse van Rensburg was
that prior
to the disciplinary hearing, an identification of the employees who
participated in the unprotected strike action took
place by means of
viewing the video footage and identifying the persons on video with
team leaders and the confirmation of the
Respondent’s clocking
records.
[54]
Their evidence
was that members of the Union, Solidarity, were at work and assisted
with the switching off of machines that had
been left running.
[62]
Counsel
for the Applicant confirmed the Respondent’s clocking records
indicated that all employees thereon were on site, save
for two,
Sonnyboy Mokoena and Klaas Ledwaba.
[55]
[63]
Mr
Motebejane’s evidence was the Respondent contacted NUMSA and
requested that a drop box be put in place in order for employees
to
confirm whether or not they participated in the strike action and the
assault of Mr Steffens. Only one employee responded to
this offer. He
was not charged with misconduct. No other employee came forward to
distance him or herself from the alleged misconduct.
Mr Motebejane
confirmed that the final list
[56]
of employees charged and dismissed appears at Annexure A and B on p
244 to 247 and p 248 respectively of the Respondent’s
Bundle
(Bundle 3).
[64]
The
Respondent contends that Employees listed in Exhibit 3 or C and
Exhibit 4 did not come forward to state whether or not they
participated in the unprotected strike action and assault of Mr
Steffens
[57]
.
[65]
The
Applicant contends that Sonnyboy Mokoena arrived late and he was not
on duty on 14 July 2017. Further, that Mr Ledwaba knocked
off duty at
06h00 on 14 July 2017.
[58]
In
the circumstances, the Applicant contends that the Court should
conclude that Messrs Mokoena and Ledwaba are not guilty of
participating in the strike action.
[66]
It is astounding that the Applicant
contends that Mr Ledwaba should not be found guilty of participating
in the strike action. Mr
Ledwaba’s evidence places him at the
forefront of the unprotected strike action, which he conceded. In the
circumstances,
I find that there is no basis for reinstating or
compensating Mr Ledwaba.
[67]
Mr
Sonnyboy Mokoena, who is a NUMSA shop steward
[59]
entered the premises at approximately 09h00 on 14 July 2017.
[60]
According to the evidence, this was after the assault on Mr Steffens.
The Respondent contends that Mr Mokoena did not distance
himself from
the events of 14 July 2017 and should thus not be reinstated. Mr
Chinner’s evidence was that Mr Mokoena “
entered
the strike zone, without informing management that he was going to go
and talk to the people. He just entered the strike
zone, becoming
part of the people”
.
[61]
I
find that Mr Mokoena participated in the unprotected strike action,
as he is seen in the video entitled “
Strike
leaders gathering
”
from 10h03.
[62]
This is the
same person identified as being him on p15 of the Additional
Identification Bundle 2. Although not on the scene, in
light of the
decision in
National
Union of Metalworkers of South Africa obo Nganezi and Others v
Dunlop
Mixing and Technical Services (Pty) Limited and Others
[63]
,
I find that he acted with common purpose in the assault of Mr
Steffens.
In
the circumstances, I find no basis for reinstating or compensating Mr
Mokoena.
Common
purpose
[68]
Apart
from the 12 employees who have been identified assaulting Mr
Steffens, the Respondent alleges that the remaining employees
acted
with common purpose in perpetrating the assault on Mr Steffens and
are guilty of derivative misconduct.
[64]
[69]
In
NSCAWU
and Others v Coin Security Group (Pty) Ltd t/a Coin Security
[65]
the
Court held that the doctrine of common purpose applies when two or
more people associate themselves in a course of conduct that
results
in a criminal act by one or more of them, but by chance or design,
the others do not physically perform the actions which
brought about
the result or act. The Court further held that when people actively
associate themselves with the result and share
the perpetrator’s
guilty state of mind, the guilt for the actual perpetrator extends to
them. The Court held that the doctrine
of common purpose should not
be confused with the concept of collective guilt.
[70]
Common purpose needs to be proved, that is,
there must be evidence to show that all the employees associated
themselves with the
conduct of the principal offender or offenders.
It is not sufficient to warrant inference that all who had been
actively participating
in a strike had actively associated themselves
with the few that had caused isolated damage to property during a
strike. The Court
further held that because the employer had chosen
to deal with the matter by means of a disciplinary hearing, that then
presupposed
that the perpetrators of the alleged misconduct had been
identified and linked to the misconduct on a balance of
probabilities.
[71]
In
National
Union of Metalworkers of South Africa obo Nganezi and Others v
Dunlop
Mixing and Technical Services (Pty) Limited and Others
[66]
,
in a majority decision, the Constitutional Court held that it was
unnecessary to place an employee on the scene to prove common
purpose
and indicated that common purpose could be established by inferential
reasoning having regard to the conduct of the workers
before, during
and after the incident of violence.
[72]
The Constitutional Court stated the
following at paragraph [46]:
‘
[46]
Evidence, direct or circumstantial, that
individual employees in some form associated themselves with the
violence before it commenced, or even after it ended, may be
sufficient to establish complicity in the misconduct. Presence at
the
scene will not be required, but prior or subsequent knowledge of the
violence and the necessary intention in relation thereto
will still
be required. And as Grogan aptly remarked in RSA Geological Services
(Arbitration), “[i]n any event, a refusal
to disclose
information relating to an offence can in certain circumstances make
a person an accessory”.
[73]
The
employees acted with common purpose with the perpetrators by
associating themselves actively with their acts and omissions.
[67]
[74]
Before the assault, the individual
employees partook in an unprotected strike action, assembling in the
canteen and marching and
singing on the Respondent’s premises
carrying placards inscribed with words, as stated above.
[75]
During
the unprotected strike action, the employees acted with common
purpose in approaching the administration building offices,
threatening Mr Chinner and assaulting Mr Steffens. Mr Steffens
confirmed
[68]
his evidence at
the hearing regarding the “
mob
attack
”.
Mr Steffens was led to safety by a team leader and security
officer.
[69]
[76]
After
Mr Steffen’s assault and after he had left the Respondent’s
premises, the employees acted with common purpose
by dancing and
singing. The employees continued to do so at the security gate with
the police on the other side of the gate and
continued to assemble
and hear the address of their leaders
[70]
.
[77]
The employees acted with common purpose in
presenting their demands to Mr Mosikidi and Ms Tshabalala.
[78]
The employees acted with common purpose in
offering a bare denial relating to the strike action and assault on
Mr Steffens during
the disciplinary hearing. In their pleadings
before this Court, the employees’ case was with a bare denial
of the strike
action and assault on Mr Steffens, until the concession
made by Mr Ledwaba regarding their participation in an unprotected
strike
action.
[79]
The employees acted with common purpose is
not making use of the opportunities offered by the Respondent to come
forward and distance
themselves from the strike action and assault on
Mt Steffens.
Appropriateness
of the sanction of dismissal
[80]
The individual employees were dismissed for
participating in an unprotected strike action and for acting with
common purpose in
assaulting Mr Steffens.
[81]
In
Scaw
Metals Ltd v Vermeulen
[71]
,
the LAC held as follows:
‘
A
further consideration… weighs with me. We live in a society
wracked by violence. Where an employer seeks to combat that
evil,
even by harsh measures, this court ought not to be astute to find
unfairness’.
[82]
In
Pailprint
(Pty) Ltd v Lyster NO and Others
[72]
,
the LAC held that dismissal is the appropriate sanction where
employees are guilty of assault and intimidation.
[83]
At
the disciplinary hearing, the employer led evidence in relation to
the employment relationship having broken down irretrievably.
This
was also Mr Motebejane’s evidence before this Court.
[73]
[84]
During
cross examination, it was put to Mr Ledwaba, given his serious
accusation against senior management of the Respondent
[74]
i.e. that they were all lying, that the employment relationship had
broken down. Mr Ledwaba was evasive and did not respond to
the
question. I find that given this serious accusation and the evidence
before this Court, the employment relationship has broken
down
irretrievably.
[85]
In the light of firstly, the assault on Mr
Steffens, which is a serious misconduct and the bare denial by the
employees, secondly,
the statement by Mr Ledwaba on behalf of the
Applicant and the individual employees, that senior managers of the
Respondent are
lying in relation to the assault on Mr Steffens,
thirdly, the refusal of the employees to heed to an instruction in
the ultimatum
to return to work and fourthly, the evidence at the
disciplinary hearing that the relationship has broken down
irretrievably, I
find that dismissal is the appropriate sanction.
Counterclaim
[86]
The
Respondent’s counterclaim is for the amount of R18 028 908.00,
for loss in the period July 2017 to October 2017,
claimed as just and
equitable compensation in terms of section 68 (1)(b) of the LRA,
alternatively, the said amount is claimed
as general damages for
breach of contract under section 77 of the BCEA
[75]
.
[87]
In
the further alternative, the Counsel for the Respondent stated that
the Respondent claims R 829 835.00 for loss incurred
on the day
of the strike, 14 July 2017 and the days immediately thereafter.
[76]
The Respondent maintains that the damages in the amount of R18m is
the just figure, as the impact of the strike lasted until December
2017.
[77]
[88]
The
Applicant, in its pleadings, denies that the Respondent is due any
damages, as it denies that that the individual employees
partook in
any unprotected strike action.
[78]
[89]
Mr
Motebejane’s evidence was that the Respondent lost key
customers as a result of the unprotected strike action and that
the
company had to take measures to restore production to its required
capacity.
[79]
He further
confirmed the amounts of loss to the Respondent as claimed.
[80]
[90]
Mr
Chinner’s evidence was that no production occurred on 14 July
2017 as a result of the strike action.
[81]
[91]
The evidence of Mr William Louis Thom, the
financial director of the Respondent, was that he quantified the loss
of the Respondent
as claimed in its counterclaim. This he did,
together with the assistance of the Respondent’s financial
controller and the
source of such calculations was the accounting
system of the Respondent.
[92]
Mr
Thom quantified the loss amounting to R18m from July 2017 until
December 2017, as the warehouse facility in Germiston from which
the
Respondent operated was in place until December 2017.
[82]
Mr Thom further quantified the loss over the period 14 July 2017 and
the days immediately after. The amount of such loss is R829 835.
[83]
[93]
This
evidence is unchallenged. The Applicant states that Mr Thom is an
expert witness and that his evidence amounts to hearsay.
[84]
I disagree that Mr Thom is an expert witness. No notice was served in
terms of Rule 6(10) (a) in this regard. Further, the pre-trial
minute
[85]
states that that
parties do not foresee the need for expert evidence. Mr Thom’s
evidence was based on information extracted
from the Respondent’s
accounting management system. This was unchallenged.
[94]
I have considered Mr Thom’s evidence
including the calculations from p 264 to 272 of the Respondent’s
bundle (Bundle
3), that the major impact on the Respondent’s
business was the reduction in gross profit which was felt in August
2017. I
have considered his evidence that the armed vehicle to secure
the site was paid for until the end of August 2017 and that the
logistical
and rental expenses in relation to the warehouse on
Germiston continued until December 2017. I have considered that the
employees
were dismissed following the conclusion of the hearing in
August 2017.
[95]
I have taken into consideration, that there
were no attempts by the employees to comply with the provisions of
Chapter IV of the
LRA. I find on the evidence, that the unprotected
strike was premeditated given the assembly by the striking workers in
the canteen,
the placards that were carried by the striking workers
during the unprotected strike action with words that related
inter
alia
to Mr Steffens, the assault on Mr
Steffens, the rejoicing when he left the premises and the list of
demands at page 19 of the Respondent’s
Bundle (Bundle 3).
[96]
I find that the unprotected strike action
and assault on Mr Steffens was not in compliance with orderly
collective bargaining. I
have also considered the duration of the
strike, which Mr Chinner stated was 6 hours. I have taken into
consideration the financial
position of the Respondent in light of
the loss suffered by the Respondent as a result of the unprotected
strike action. I have
taken into consideration the return of the
employees on 17 July 2017 and that they were prevented entry onto the
premises in the
light of the court interdict of 14 July 2017.
[97]
In the light of my afore-going
considerations, I find that the just and equitable compensation to
the Respondent is the amount of
R 829 835.00 for the loss
incurred on the day of the unprotected strike action and days
immediately thereafter.
[98]
In the premises, I make the following order:
Order
1.
The
Applicant’s claim is dismissed.
2. The dismissal of
the individual applicants is both substantively and procedurally
fair.
3. Just and
equitable compensation in the amount of R
829 835.00
is awarded to the Respondent, which amount is to be paid by the
Applicants jointly and severally, the one paying
and the other to be
absolved.
4. There is
no order as to costs.
_______________________
MTM Phehane
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: S Mabaso of Mabaso Attorneys
For
the Respondent: F Boda
Instructed
by:
Cliffe Dekker Hofmeyr Inc
[1]
Pleadings,
(Bundle 1), Statement of Case, para 15, p6.
[2]
Act
66 of 1995.
[3]
Act
75 of 1997.
[4]
Pleadings,
(Bundle 1) Counterclaim, p 28 to 30.
[5]
Respondent’s
Bundle (Bundle 3), pp 2 – 6; 21, 22 to 24.
[6]
(2016) 37 ILJ 2815 (LAC). The LAC declared the PNF as the exclusive
negotiating chamber within the MEIBC for the public sector.
[7]
Bundle
4, the transcribed record of the disciplinary hearing.
[8]
Section
68(1)(a)(i) provides for the granting of an interdict or order to
restrain any person from participating in a strike or
lock-out or
any conduct in contemplation or in furtherance of a strike.
[9]
The
Code of Good Practice: Dismissal.
[10]
Pleadings
bundle (Bundle 1), Statement of case, para 13, p6.
[11]
Bundle
4 (transcript of disciplinary hearing), p 262, lines 7 to 29 to
p263, lines 1 to 8; p 271 to 272; and p279 to 280.
[12]
Video
3, entitled “After canteen meeting”, from 07h30; Video
4, entitled “Before the assault”, from 08h30.
[13]
Transcribed
Record, Vol 1, p 173, lines 13 to 25; p174, lines 1 to 20; Vol 4, p
316 to 317 and Vol 4, p 398 lines 1 to 30.
[14]
Respondent’s
Bundle (Bundle 3), p 27.
[15]
Transcribed
record, Vol 3, p 174 to 177.
[16]
Transcribed
record, Vol 3, p 177.
[17]
Transcribed
record, Vol 3, p178 to 179.
[18]
The
demands appear at p 19 of the Respondent’s Bundle (Bundle 3).
See also: Transcribed record, Vol 3, p 183 to 184.
[19]
Transcribed
record, Vol 4, p 320 to 321.
[20]
Video
5 entitled “After assault” from 08h23.
[21]
Respondent’s
bundle (Bundle 3), p 36.
[22]
Transcribed
record, Vol 4, p 399.
[23]
Video
5 entitled “After assault” from 08h23.
[24]
Transcribed
record Vol 1, p 35, lines 10 to 14.
[25]
The
memorandum appears on p20 of the Respondent’s Bundle (Bundle
3).
[26]
Transcribed
record, Vol 4, p 443, lines 1 to 24.
[27]
Pleadings
bundle (Bundle 1), para 13, p6;
[28]
Bundle
4, p 266, lines 1 to 11; p 268, lines 1 to 16 and p 281, lines 1 to
13.
[29]
Transcribed
record, Vol 4, p 421 lines 18 to 21.
[30]
(2006)
27 ILJ 107 (LAC) at para 14.
[31]
Transcribed
record, Vol 4 p443, lines 1 to 24.
[32]
Transcribed
record, Vol 4, p 469, lines 1 to 19.
[33]
Transcribed
record Vol 4, p 473, lines 18 to 20.
[34]
Transcribed
record, Vol 4, p 474, lines 1 to 12.
[35]
2003 (1) SA 11 (SCA).
[36]
Ibid at para 5.
[37]
Id fn 35 at para 5.
[38]
Id fn 35 at para 5.
[39]
Id fn 35 at para 5.
[40]
Transcribed
record, Vol 4, p441, line 1.
[41]
Transcribed
record, Vol 4, p 440, lines 1 to 10.
[42]
Video
3 entitled “After canteen meeting” from 07h30 and Video
4 entitled “Before Assault” from 08h19 and
Video
(unnumbered) entitled “Meeting after assault” from
08h32.
[43]
p1,
as number 2.
[44]
Transcribed
record, Vol 4, p 445, lines 1 to 30.
[45]
Respondent’s
bundle (Bundle 3), p 27.
[46]
Transcribed
record, Vol 3, p218 to 220.
[47]
Respondent’s
bundle (Bundle 3), p 28.
[48]
Transcribed
record, Col 3, p 226 lines 19 to 25 to p227, lines 1 to 7.
[49]
Unreported
decision.
(J1006/2016)
[2019] ZALCJHB 347 (29 November 2019).
[50]
Transcribed
record, Vol 4, p 419.
[51]
Transcribed
record, Vol 3, p 256 to 259 and Respondent’s Bundle (Bundle
3), p55 to 56 and p134 to 135.
[52]
Transcribed
record, Vol 3, p 262 to 263.
[53]
Transcribed
record, Vol 4, p 434.
[54]
Respondent’s
Bundle (Bundle 3), pp 60 to 121.
[55]
Transcribed
record, Vol 4, p 314.
[56]
Transcribed
record, Vol 3, p 166 lines 17 to 21.
[57]
Respondent’s
Main Heads of Argument, sub-paragraph 38.7.
[58]
Applicant’s
Heads of Argument, para 10, p 4 to 5.
[59]
Transcribed
record, Vol 3, p 235, lines 23 to 25.
[60]
Video
entitled “Sonnyboy walking in” from 09h00.
[61]
Transcribed
record, Vol 3, p 260 lines 5 to 7.
[62]
A
still shot of this video appears on p 20 of the Additional Evidence
Identification Bundle Two.
[63]
(2019)
40 ILJ 1957 (CC).
[64]
See
Evidence of Mr Chinner, Transcribed record, Vol 3, p 214.
[65]
[1997]
1
BLLR
85 (IC).
[66]
Id
fn 63.
[67]
S
v Mgedezi and Others
1989
(1) SA 687 (A).
[68]
Transcribed
record, Vol 4, p 407 to 408.
[69]
The
evidence of Mr Chinner, Transcribed record, Vol 3, p 254, lines 2 to
4. Mr Steffens’ evidence is that he was assisted
by two
security officers and an employee – Vol. 4, p 399, lines 20 to
30.
[70]
Video
8 entitled “2
nd
gathering – police arrival” from 09h20 and Video,
unnumbered, 08h30 entitled “Meeting after the assault”.
[71]
[1993]
14 ILJ 672 (LAC) at 675.
[72]
[2019]
10
BLLR
1139
(LAC).
[73]
Transcribed
record, Vol 1, p 99, lines 14 to 23.
[74]
Transcribed
record, Vol 4, p 446 to 448.
[75]
Pleadings,
Bundle 1, paras 22 to 24, p 29 to 30.
[76]
Transcribed
record, Vol 4, p 270, lines 20 to 23.
[77]
Evidence
of Mr Thom, transcribed record, Vol 4, p 270 to 271.
[78]
Pleadings,
Bundle 1, p36.
[79]
Transcribed
record, Vol 1, p 99.
[80]
Transcribed
record, Vol 2, p 104 to 106.
[81]
Transcribed
record, Vol 3, p 239, line 21 to p 240, line 24.
[82]
Transcribed
record, Vol 4, p 258 and 266 and Additional Evidence, Quantification
Bundle, p 1.
[83]
Additional
Evidence – Quantification Bundle, p 1.
[84]
Applicant’s
heads of argument.
[85]
Pleadings,
Bundle 1, Minute of Pre-trial Conference, para 14, p 94.