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[2020] ZALCJHB 233
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Tzaneng Treated Timbers v National Bargaining Council for the Wood and Paper Sector and Others (JR712/15) [2020] ZALCJHB 233 (24 March 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR712/15
In
the matter between:
TZANENG
TREATED TIMBERS
Applicant
And
NATIONAL BARGAINING
COUNCIL FOR
THE
WOOD AND PAPER SECTOR
First
Respondent
M
MASETLE N.
O.
Second
Respondent
CEPPWAWU OBO S
MALATJIE AND 29 OTHERS Third
Respondent
Heard:
12 February 2020
Delivered:
24 March 2020
Summary:
Review – striking employees clocked in while on strike –
prevented from clocking out
at knock off time – charged with
fraudulent clocking – believed would in any event not be paid
because of no work no
pay principle – arbitrator's award that
summary dismissal under the circumstances was unfair is one a
reasonable commissioner
could have made – application dismissed
JUDGMENT
COETZEE,
AJ
Introduction
[1]
The applicant seeks to review and set aside an undated
arbitration award under case number WSB-LP-14-08-1789, which held
that the
employees' dismissals were substantively unfair.
The
second respondent (arbitrator) reinstated the employees but ordered
that re-instatement was not retrospective and no backpay
was payable.
[2]
The applicant failed to comply with clause
11.2.2 of the Practice Manual in filing the transcript of the
proceedings. The applicant
launched an application to revive the
review application. It also asked for condonation for the late filing
of its notices in terms
of Rule 7A.
[3]
The applications for condonation were
unopposed. Having considered the delay and the explanations for the
delay the Court condoned
the non-compliance and reinstated the
review.
[4]
The applicant's business operations concern
the chemical treatment and supply of timber poles for various
industries, but mainly
transmission poles for Eskom. Fifty-seven of
the hundred and forty-seven employees of applicant embarked on a
protected strike
on 4 August 2014.
[5]
Of the 57 union members on strike 30
arrived and clocked in. They are referred to as the individual
respondents or the employees.
They did not proceed to work but left
the premises without clocking out and continued to strike in their
work uniforms. The 30
employees or the individual employees are
represented by CEPPWAWU ("the union").
[6]
At 12:00 the 30 striking employees who did
not clock out attempted to gain access to the premises in order to
collect their lunchboxes.
It is common cause that they did not convey
an intention to clock out. The applicant denied them access for fear
of intimidation
of non-striking employees and damage to company
property.
[7]
At 16H50 the individual respondents
requested access to the respondent's premises to access their lockers
and to clock out. This
is the normal time to knock off had they been
working. Security again denied them access for fear of intimidation
and damage to
property.
[8]
The union at approximately 18:24 on 4
August 2014 sent a letter to the applicant requesting it to allow the
employees to access
their personal belongings in the lockers and
access to facilities such as toilets. It is common cause that
the letter did
not contain a request for access to the clocking
machine to permit the employees to clock out.
[9]
The applicant has a rule on clocking in and
out titled "
Clocking Instructions
"
dated July 2011 and clause 3 provides as follows:
"If
an employee leaves the premises he/she must lock out. Employees
leaving the premises without clocking out will face disciplinary
action."
[10]
After the strike the employees were
suspended following which the employees were charged with fraudulent
clocking:
"Charge
1: Fraudulent clocking in that on 4 August 2014 you clocked in for
duty and left the premises without clocking out.
This is a class 1 –
very serious offence."
[11]
The company's disciplinary code lists what
is called class 1 offences, which are regarded as very serious and
possible sanctions
that may be imposed in the event of a guilty
finding. One of the very serious offences listed is:
"Fraudulent
timekeeping – clocking in for someone else, having someone
clocking for you, clocking without actually working."
[12]
The code further provides that an employee
who committed the above offence would be taken to a formal
disciplinary enquiry and the
sanction of dismissal alternatively
suspension without pay for a limited period may be imposed. The
policy sets out the following
nature of disciplinary action for a
class 1 offence:
"The company will
follow the following disciplinary code:
Class One
-
Very
Serious
First Offence
- Formal
Disciplinary Enquiry
Disciplinary
Action -
Suspension without
pay or dismissal."
[13]
The employer dismissed them for a class I
(serious) offence in that they allegedly acted fraudulently when
clocking in, then leaving
the premises without clocking out and
attempting to clock out at knock off time.
[14]
In
the arbitration Suzette Denton testified on behalf of the company.
She confirmed that on the two occasions, around 12:00 and
16:50 the
individual respondents were denied access to the premises. The union
put it to her that the employees did not clock out
because the
applicant denied them access to the premises. In cross-examination
she said the following
[1]
:
"APPLICANT
REPRESENTATIVE: So if you denied people to clock out, how possible do
you think these people will manage the clock
out in order to comply
with the rules of the company?
RESPONDENT
REPRESENTATIVE: Sir, because even if they were allowed to clock out,
the offence would have been there, and was there,
because they were
not busy working when they were clocking out, they were busy running
and jumping up and down outside the premises.
The offence was already
there. So whether I denied them to come and clock out or not, it's
not the dispute Mr Ndou. The dispute
is the offence was there. They
should never have left the gate. The moment they passed that gate
leaving the premises they committed
the offence.
APPLICANT REPRESENTATIVE:
Are you saying the industrial action was illegal?
RESPONDENT
REPRESENTATIVE: I am not. We are not on the point of the industrial
action Mr Ndou. They were committing an offence.
The strike has got
nothing to do with this. The employees left my premises without
following company rules and regulations, without
clocking out. This
is the misconduct.
COMMISSIONER: Let me come
in. As I understand Mr Ndou, and as per agreement, the employees
committed a misconduct. However, the
defence is that the employer
that is the defence, the employer denied them access.
APPLICANT REPRESENTATIVE:
Yes Commissioner.
COMMISSIONER: Yes, that
is the dispute. But now as I understand during evidence in chief,
this witness testified that the offence
was committed at the time
when they clocked in and left the premises without clocking out.
That's the evidence.
APPLICANT REPRESENTATIVE:
Much as we are proving that they didn't clock out because they were
denied access.
COMMISSIONER: Yes.
APPLICANT REPRESENTATIVE:
And she proves in terms of her response.
COMMISSIONER: Yes, no she
agrees that the access was denied at 12 o'clock and at ten to five.
APPLICANT REPRESENTATIVE:
Commissioner, she used the words the policy regarding clocking out is
regarded as flawed on the time which
has to do with finance, and
obviously the principle of no work no pay has applied, so I don't
know whether that offence could be
classified as a class 1 offence.
Can you explain to us?
RESPONDENT
REPRESENTATIVE: Okay. I can explain to you sir, because how else do
we control the attendance of employees? How else
do we know that
employees are striking or are merely sick, because if they are sick
and they bring in a medical certificate, the
employer acknowledges
that and we have a clocking system where we record the sickness or
the annual leave or anything. So that's
our control measurement. So
how will I know who is striking? Who is on annual leave? Who is
clocked into work? Okay. The rule is
there and for people to clock in
and leave the premises to go on strike does not cancel my rule. That
is the rule of this company
and it is the rules and regulations and
it's the right of this company and any other employer to enforce
rules and regulations
and disciplinary action in the company. Whether
employees are on strike or not on strike. The conduct of employees
must always
be acceptable and this was misconduct and it's
unacceptable."
[15]
She further testified that they could
identify the thirty striking employees who clocked in because they
were the ones that did
not clock out for lunch, clock back for lunch
and clocked out at 17:00. They must have been the ones on strike.
They also had visual
footage of who was on strike. There are
photographs. In addition, they could identify those who were on leave
or had medical certificates.
They then investigated the records of
each and every employee and evaluated their positions and that is how
they arrived at identifying
the thirty employees.
[16]
The individual employees appealed against
their dismissal and one of the grounds of appeal was that the
circumstances leading not
to clock out was caused by the employer's
management as they denied access to the premises. In her view
clocking in for duty without
actually working and leaving the
premises while clocked in constituted fraud. She testified that in
the disciplinary enquiry the
employees acknowledged that they were
fully aware of the clocking rules and consequences should they be
found guilty of such an
offence.
[17]
She also testified that the fact that they
wished to clock out at 16:55 meant that they would have had working
hours recorded for
purposes of claiming payment. On that occasion
they never explained that they had made a mistake by not clocking out
before they
had left the premises.
[18]
Mr Jacques Griesel also testified on behalf
of the company saying that as soon as an employee clocks in and out
he claims payment
for the day. The company would have allowed them to
clock out at say 07:45. In addition there is a remedy for employees
who forgot
to clock out but none of the thirty employees followed the
procedure. There is no need for employees on strike to clock in. If
they clock in they report for duty and not for the strike. According
to him the striking employees did not get paid for the three
days
they were engaged in strike action. The company applied the principle
of "no work no pay". The only way he could
measure that
people were not striking was by looking at the clock cards to see
will clocked in in the morning and who clocked out.
[19]
Mr Letsoalo also testified on behalf of the
company. He conducted the inductions for new employees and he
explained the conditions
and policies to the individuals. He
testified that the purpose of the clocking system is to show that the
person is on duty as
the company pays an individual according to the
clocking system. When a person clocks in the applicant will pay that
person. It
would be possible that the company would pay someone on
strike if that person had clocked in and out because the company pays
according
to the clocking system.
[20]
Mr Ephraim Malemela testified on behalf of
the employees. He confirmed that they went in and clocked in as they
knew that they were
not going to be paid for that day:
"INTERPRETER:
When we clock in it is for the employer to see that a such and such
person is at work even though we are at strike
(inaudible)."
[21]
He conceded that the clock machine
controlled who was at work. He then explained the following:
"RESPONDENT
REPRESENTATIVE: So Mr you take it that was you, you are at work while
you are on strike and you have the right
as an employee to clock
because you are still an employee while you are at work. Explain to
me how do you want the employer to
establish who is on strike and was
at work if we have to allow everybody to clock?
INTERPRETER: They will
see at the machine who has come and who did not come.
RESPONDENT
REPRESENTATIVE: Exactly so when you're on strike are you at work?
INTERPRETER: when I'm at,
when I'm busy on strike is the same as when I'm at work. That is the
same.
RESPONDENT
REPRESENTATIVE: Mr Malemela why did you clock in on the fourth and
the fifth? What is the reason?
INTERPRETER: It, it
showed that I came to work.
RESPONDENT
REPRESENTATIVE: you were fully aware that you are claiming working
hours.
INTERPRETER:
I knew that I was not going to be paid because when we are on strike
you are not paid."
[22]
He denied that he clocked in to claim
payment that he was not entitled to. He then was confronted with the
fact that he was not
supposed to work on 4 August 2014. He was on
night shift and without authority did not work the night shift, but
that morning reported
for the day shift and clocked in.
[23]
Ms Malatji testified on behalf of the
employees. She confirmed that the clocking system is for the company
to see who has clocked
in and is at work so that they can detect from
the clocking system if you are not at work. She also testified that
they clocked
in because they were at work and the strike was legal.
She testified as follows:
"RESPONDENT
REPRESENTATIVE: Okay, so why did you clock in and leave the premises?
INTERPRETER: it's because
I, I, I know that the strike is legally and it's done while we are at
work.
RESPONDENT
REPRESENTATIVE: Okay, so if you are clocking in, what happens to, do
the company pay you?
INTERPRETER: No
RESPONDENT
REPRESENTATIVE: Okay, so why didn't you clock out when you left the
premises, before you left the premises on 4 August?
INTERPRETER: Uhm it's
because I knew I am going to clock, clock uhm to clock in again at 12
o'clock to take my food and again clock
out and then I will go and I
will not go back to the yard.
RESPONDENT
REPRESENTATIVE: Okay, so you are fully aware that you are claiming
payment yet you were not busy with the duties that
you were appointed
for?
INTERPRETER:
What I knew is that when I, I clock, I clock in and I, I did not
work, they are not going to pay me."
[24]
When asked to explain how the company was
going to identify those who clocked in but were on strike she
responded that the company
was going to identify them because all
those who were wearing uniform were outside and Suzette and the
others were going to identify
them. She testified further:
“
RESPONDENT
REPRESENTATIVE: Why was it important for you to clock out?
INTERPRETER: It's because
we wanted to go because already we, we, we clock in, in the
morning.
RESPONDENT
REPRESENTATIVE: I'm putting it to you, you are lying you wanted the
clock machine to register 9 working hours for you.
RESPONDENT
REPRESENTATIVE: So then why clock out?
INTERPRETER:
Because we were on the strike, which was done by the all the workers
who were, by workers who are in that uhm company."
[25]
It was again put to her that they attempted
to be dishonest:
"RESPONDENT
REPRESENTATIVE: Right, I'm putting it to you again that you were
trying to be dishonest to claim payment from the
company while you
are not actually not working and that was the motive for attempting
to clock out.
INTERPRETER: We didn't
want to claim uhm, money we knew that if we did not work we were not
supposed to get money.
RESPONDENT
REPRESENTATIVE: Okay, so why clock?
INTERPRETER: We clocked
because we knew that we are coming to work."
The
award
[26]
The arbitrator determined that dismissal
was not an appropriate sanction. The following are the relevant
observations in the award:
"[61]
The applicants have maintained that the respondent
denied them access to clock out. This was in reference
to the two
requests made by the applicants to the security officer at 12H00 p.m.
and approximately 16H 50 p.m.
[62]
… They signed for those policies understanding fully what they
meant. I therefore find that
the applicants were aware of the
clocking instructions which require them to clock in and proceed to
work. If they wanted to go
out, they should have clocked out.
[63]
However the applicants testified that they clocked in and knew that
the respondent would apply "no
work no pay principle". The
principle was indeed applied by the respondent and the applicants
were punished for not working.
This mitigates the intention to
defraud the respondent. The fact that the applicants embarked on a
protected strike and a misunderstanding
seemed to have prevailed.
[64]
… While the respondent submitted that the applicants should
not have clocked in, the applicants
understood that even if they
clocked in, they knew that the principle of "no work no pay"
would be applied. I am of the
view that there was a misunderstanding
in this regard.
[65]
This is clearly a serious matter for the respondent in terms of its
code. This misconduct is a class
I offence that leads to dismissal in
terms of the respondent's code. However the circumstances under which
the misconduct was committed
and the understanding that prevailed
amongst the applicants is worth considering.
[66]
In Toyota SA Manufacturing (Pty) Ltd v Radebe & Others
(1998) 19 ILJ 1614 (LC), the Court
indicated that dismissal should
not be a "knee-jerk" to all serious offences. There may be
circumstances which have a
tempering effect, not on the seriousness
of the offence as such, but on the severity of the penalty, in this
case, the applicant
submitted that they clocked in and proceeded to
dance in support of the strike because they understood that a "no
work no
pay principle" would be applied. This is so because the
employer in did not pay them for the days that they were on a
protected
strike.
[67]
In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) the Court stated that "in deciding how
commissioners should approach the task of determining the fairness of
the dismissal,
it is important to bear in mind the security of
employment is a core value of the constitution which has been given
effect to by
the LRA. In approaching the dismissal dispute
impartially a Commissioner will take into account the totality of the
circumstances.
[68]
Having regard to the circumstances
surrounding the infringement, I am of the view that dismissal is
not
an appropriate sanction."
[27]
The arbitrator accordingly determined that
the dismissal of the 30 members was substantively unfair on the basis
that dismissal
was not an appropriate sanction.
The
grounds for review
[28]
The grounds for review relate to the
penalty. There are essentially two grounds for review:
28.1
The arbitrator committed a gross
irregularity in that he failed to take relevant evidence into account
in coming to a finding that
the sanction of dismissal was not
appropriate; and
28.2
The arbitrator's finding that the penalty of dismissal was not
appropriate is not rationally connected to
the evidence and is a
decision that a reasonable decision-maker could not have reached.
[29]
The attack on the award is directed at
essentially the following finding:
"This
mitigates the intention to defraud the respondent. The fact that the
applicants embarked on a protected strike and a
misunderstanding
seemed to have prevailed."
Analysis
[30]
The applicant submits that the arbitrator
failed to find that the individual respondents intentionally made a
misrepresentation
that constitutes fraud. The fraud allegedly lies in
the alleged representation that they made that they were at work and
were entitled
to claim payment as they clocked in and would have
clocked out at knock off time.
[31]
The submission is that the arbitrator
failed to appreciate that the explanation of why they clocked in and
left without clocking
out did not make sense and should have been
rejected out of hand. The explanation according to the applicant was
unacceptable and
therefore the inescapable inference is that the
individuals made a misrepresentation with the intention to defraud
the applicant.
[32]
The applicant's submission is that their
version that it was their understanding that they believed that they
were entitled to clock
in and clock out because it was a legal strike
during working time and because of the no work no pay principle they
would not be
paid, should have been rejected out of hand. The failure
of the arbitrator to make a finding rejecting the explanation and not
finding that they acted fraudulently, according to the applicant,
renders the award reviewable.
[33]
The third respondent submitted to the
contrary that the arbitrator made a reasonable finding when the
arbitrator held that their
belief that they were not going to be paid
"
mitigated
against
the intention to defraud the company
".
The submission is premised on the understanding that the Commissioner
made a finding that the conduct of the individual
respondents did not
constitute fraud as this explanation mitigated against an intention
to defraud the company.
[34]
The actual wording of the award is
different: "
This
mitigates
the intention
to defraud the
respondent
(own emphasis)". It is
not clear whether the arbitrator actually found that there was no
fraud or whether the arbitrator found
that the fraud that there was,
was mitigated by the beliefs of the thirty employees.
[35]
What is clear from the award is that the
arbitrator considered, for purposes of sanction, those factors that
may
"… have a tempering
effect, not on the seriousness of the offence as such, but on the
severity of the penalty."
[36]
The two witnesses for the individual
respondents were pressed in cross examination to admit that they
wished to defraud the company.
Both explained that they believed that
because it was a legal strike it was like a working day where they
can clock in and out
without receiving any remuneration as they were
participating in the strike.
[37]
The applicant's code provides for two
different sanctions. The applicant has not tendered any evidence in
the arbitration as to
why the alternative sanction, that of
suspension without pay, was inappropriate.
[38]
The applicant opted for summary dismissal.
It appears to have done so having regard to a consistent application
of discipline in
the past where individuals abused the clocking
system. This is not a comparison that is cast in stone. In this case
the individual
respondents participated in industrial action as a
group. They could never have believed that they would never be found
out and
therefore would get paid if they clocked in and clocked out
as would be the case of an individual. They were just too many. In
addition, they believed that they were not entitled to payment by
reason of the application of the principle of no work no pay.
This is
a reasonable believe. This believe seems to have been irrespective as
to whether they clock in and clock out.
[39]
It is not a clear case where the only
inference to be drawn having regard to the individual respondents'
explanation. is that they
intended a misrepresentation thereby
committing fraud. The explanation is not such that it can be rejected
out of hand.
[40]
The applicant made much of the fact that
their defence was that they were prevented access by the applicant
and therefore could
not clock out. The applicant submitted that that
was not a defence at all and for that reason the inference drawn
should be that
they attempted to defraud the company.
[41]
Having regard to the evidence it is clear
that their understanding was that this was a work-related matter
because it was a legal
strike. This was coupled to their belief that
they would not get paid.
[42]
The arbitrator referred to this as a
misunderstanding. The "misunderstanding" could only have
been that the individuals
believed that because it is a legal strike
they could report as on a normal working day, clock in and clock out
and participate
in the strike action understanding that they would
not be paid by reason of the no work no pay principle.
[43]
These circumstances differ from the other
examples cited in the applicant's disciplinary code, that is clocking
in for somebody
else or having somebody else clock in for you or
clocking in and not working, where there clearly is an intention to
abuse the
system to claim remuneration. In this case the statement by
the individual employees that they knew they were not going to be
paid
creates a different scenario that may be distinguished from the
conduct of an individual abusing the system. In this case the
evidence
of Ms Denton also was that apart from having regard to the
clock cards reflecting that they did not clock out it was possible to
identify the striking employees from photographs and video clips. In
addition the applicant certainly knew that approximately one
third of
its labour force was out on strike.
[44]
The ultimate finding that summary dismissal
was not a fair sanction is one that a reasonable Commissioner could
have arrived at.
Costs
[45]
Having regard to the considerations in
making a cost order it is not appropriate to saddle any party with a
cost order.
[46]
In the premises the following order is
made:
Order
1.
The review application is revived.
2.
The late filing of the applicant's notices
is condoned.
3.
The application is dismissed with no order
as to costs.
_____________________
F. Coetzee
Acting
Judge of the Labour Court of South Africa
Appearances:
For the applicant:
Advocate R. Grundlingh
Instructed
by: Serfontein
Viljoen & Swart.
For
the Third Respondent: M Makhura of Cheadle Thompson & Haysom
[1]
Transcript
at p. 45 line 9.