Public Service Association of South Africa v Member of the Executive Committee- Health Gauteng Provincial Government (JS 589/15) [2020] ZALCJHB 266 (23 April 2020)

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[2020] ZALCJHB 266
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Public Service Association of South Africa v Member of the Executive Committee- Health Gauteng Provincial Government (JS 589/15) [2020] ZALCJHB 266 (23 April 2020)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JS 589/15
In
the matter between:
PUBLIC
SERVANTS ASSOCIATION OF SOUTH AFRICA
Applicant
MALULEKA
AND OTHERS

Second
Further Applicants
and
MEMBER
OF THE EXECUTIVE COMMITTEE: HEALTH,
GAUTENG
PROVINCIAL GOVERNMENT

Respondent
Heard:

18, 20, 21, 22, 25, 26 and 27 February 2019; 01 March 2019;
18, 19, 20, 21, and 25 June 2019. (Written
Heads of
Argument: 24 July 2019 and 01 August 2019)
Delivered:
23 April 2020
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
The Second to Further Applicants (‘the Individual applicants’)

as listed in Annexure A to the Statement of Claim are former
employees of the Gauteng Emergency Medical Services (the EMS or
Employer).
The EMS falls under the authority of the Respondent (the
MEC).
[2]
The individual applicants were based at various sites in Gauteng and
were
employed in various capacities including as Basic Life Support
Attendants, Basic Ambulance Assistants, Emergency Care Practitioners,

and Intermediate Life Supporters. Their main responsibilities
entailed collecting and transferring patients from and between
hospitals,
clinics, or their homes. They were also required to attend
to accident scenes, assist and attend to the injured and transport
them
to hospitals. For reasons that are apparent, the services that
the individual applicants provided are classified as essential.
[3]
The circumstances leading to the dismissal of the individual
applicants
are fairly common cause. They emanate from a dispute
related to their hours of work, and their claim of overtime pay. It
was common
cause that they were required to work 12 hours continuous
shift for four days, and were entitled to be off duty (rest days) for

four days thereafter. The day shifts commenced at 07h00 and ended at
19h00, whilst the night shifts commenced at 19h00 and ended
at 07h00.
The combined shifts ensures that emergency services are rendered
continuously over 24 hours.
[4]
The
individual applicants as supported by the first applicant (the PSA)
held the view that the shift structure was such that effectively,

they worked 48 hours instead of the 40 hours stipulated in the Basic
Conditions of Employment Act
[1]
(the BCEA). Their stance was therefore that they were entitled to
overtime pay in respect of the additional/overlapping 8 hours.
[5]
The dispute
over whether there was an entitlement to overtime pay goes back to
June 2008, and had culminated with a referral
of a dispute in
March 2009 by one of the recognised unions, NUPSAW. The dispute
was referred to the Public Service Co-ordinating
Bargaining Council
(PSCBC) under the provisions of section 24 of the Labour Relations
Act (LRA)
[2]
and in particular,
the interpretation and application of Resolution 1 of 2007. The PSCBC
in an arbitration award issued in August 2009
had dismissed
NUPSAWU’s claim, finding that the nature of the shift system
was such that it did not entitle the employees
to overtime pay.
Subsequent discussions between the EMS and the unions over the issue
of alleged overtime pay since the arbitration
award was issued has
not produced any results.
[6]
Between 13 and 17 October 2014, employees had embarked on
an
unprotected strike at the EMS’ Midrand base in support for
demands related to overtime payments. The Gauteng Department of

Health had approached this Court on an urgent basis under case number
J 2568/14 and obtained a
Rule Nisi
on 17 October 2014,
in terms of which the industrial action was declared as unlawful and
unprotected.
[7]
Various meetings were subsequently held between the recognised unions
(PSA, NEHAWU, and NUPSAWU) and the Employer over the issue of
overtime pay. A multilateral meeting held on 28 October 2014

failed to resolve the dispute. The PSA at that meeting indicated to
the Employer’s representatives that it had a mandate
from its
members to advise that pending further discussions over the matter,
employees who were scheduled to be on duty from 1 November 2014

would work between 07h00 – 15h00 (instead of 19h00), and night
shift between 19h00 – 07h00. In line with this stance,
the PSA
had then on 30 October 2014, issued an ‘
Informus’
,
which is its publication to its members, which relevant portions read
as follows;
‘
Overlapping
hours (Overtime)
o
No agreement
could be reached between labour and the employer on the issue.
o
The employer
has been informed that as from 1 November 2014, EMS staff
will no longer perform overlapping hours.
o
Shifts will
thus as from 1 November 2014 be as follows:
7am –
3pm and 7pm – 7am.’
[8]
The
individual applicants, as further confirmed in their statement of
case
[3]
, indeed worked reduced
hours during their shifts between 1 and 2 November 2014. On
3 November 2014, the CEO
of the EMS, Mr LA Malotana, issued
a memorandum to all staff advising that the practice of working less
hours was unauthorised,
unacceptable, irresponsible and putting lives
of communities at risk. The memorandum further advised that those
employees who participated
in unauthorised shift changes would be
subject to disciplinary action, and that the principle of ‘no
work no pay’ would
apply
[4]
.
[9]
On 4 November 2014, all of the 36 employees the Employer
deemed
to have refused to work their normal shift hours at various
sites of the EMS were issued with generic letters of dismissal which

read;
‘
You Mr/Ms…
an Emergency Care Practitioner, employed by the Emergency Medical
Services of Gauteng Province and therefore being
an Officer of the
Republic of South Africa.
As
an Emergency Care Practitioner, your occupation has been classified
under
essential services.
You are hereby dismissed
from the Gauteng Department of Health (Public Service) and the
reasons for your dismissal are the following;
1.
You breached your contracts of employment
in that you unlawfully
changed your shift without authorisation.
2.
In spite of the warning letter issued
to you in October 2014,
you continued to engage yourself in acts of misconduct by abandoning
your shift from 15hrs to 19hrs
on 2
nd
November 2014.
3.
You violated the Constitutional rights
of the public and endangered
their lives through the above action.
You are hereby Dismissed
with immediate effect, (04/11/2014) from Public Service.
You have five working
days from receipt of this notice to appeal the Dismissal for the
MEC’s consideration. Your appeal documents
must be submitted to
the Human Resource Management, Midrand office, Corner Old Pretoria
and Tonetti Street, for attention:
The Chief Executive Officer:
Mr. LA Molotana Emergency Medical Services
’
[10]
Some of the
individual applicants had lodged individual appeals whilst the PSA
had lodged a generic appeal on behalf of all its
dismissed members.
The grounds set out in the appeal
[5]
by the PSA are significant insofar as the versions of the individual
applicants in these trial proceedings are concerned. In the
appeal,
the PSA raised concerns surrounding the procedural fairness of the
dismissals, and the alleged violation of the rights
of its members.
Of further importance is that;
10.1
The PSA acknowledged that it had issued the ‘
Informus’
on 30 October 2014 advising its members that the Employer
was informed that as from 1 November 2014, staff
would no
longer be performing the overlapping hours.
10.2
The PSA contended that the Employer was aware that the contents of
the ‘
Informus’
arose out of the multilateral
meeting of 28 October 2014, and further that NEHAWU and the
Employer’s representatives
had agreed to its (PSA’s)
proposal.
10.3
Thus to the extent that the Employer had not responded to the
‘
Informus
’, or alleged that the contents of the
‘
Informus’
were incorrect, or instructed its
members to continue working the normal hours, its members had no
issue with working less hours.
10.4
In a nutshell, the PSA contended that it was as a result of the
‘
Informus’
that its members did not remain at the
workplace between 3pm and 7pm.
10.5
The PSA denied that the employees had abandoned their shifts, and
contended
that the employees had merely thought that they were acting
upon an agreement reached between the Employer and the PSA.
[11]
It is common cause that other than lodging an appeal, the PSA had
also approached this
Court under case No J 2753/13 with an urgent
application to set aside the dismissals. That application was struck
off the roll
on account of lack of urgency in terms of a judgment
delivered on 28 November 2014.
[12]
For reasons that are not clear, the then MEC for Health, Ms Qedani
Mahlangu only responded
to the appeals in an outcome issued on
29 July 2015, some eight months since dismissal. In her
outcome, the MEC stated
that upon a consideration of the appeal, the
employees were summarily dismissed for serious misconduct, and that
since no disciplinary
hearings were held, she lacked the necessary
jurisdiction to consider the appeal. According to the MEC, the
appeals could only
be considered where the dismissals were preceded
by a disciplinary hearing.
[13]
At the time that the MEC responded to the appeals, the PSA had
already referred an alleged
unfair dismissal dispute to the Public
Health and Social Development Sectoral Bargaining Council (PHSDSBC)
on behalf of the individual
applicants. A certificate of outcome was
issued on 22 February 2015.
[14]
With this claim before the Court, the PSA represents 28 individual
applicants that remained
dismissed. In challenging the dismissals,
the PSA contends that none of the individual applicants or
alternatively, all, had participated
in any alleged industrial
action. In the alternative, it was submitted that in the event that
it is found that any of them did
in fact participate in the strike
which was unprotected, the sanction of dismissal was unfair and
unreasonable.
[15]
It was further submitted on their behalf that the Employer applied
the sanction of dismissal
inconsistently and arbitrarily, as a large
number of employees who had participated in the alleged misconduct
were not disciplined
or dismissed. The individual applicants seek an
order of retrospective reinstatement with no loss of salary or
benefits, as they
contend that their dismissal was procedurally and
substantively unfair.
[16]
The Employer’s contention on the other hand was that the
dismissal of the individual
applicants was procedurally and
substantively fair based on the nature of the conduct in question,
the essential nature of the
services required to be rendered, and the
consequences of lack of services to communities as a result of the
conduct in question.
[17]
The issues for determination are;
(i)
Whether the individual applicants participated or engaged in any
unprotected strike and/or breached
their contracts of employment by
unlawfully changing their shifts without authorisation, jointly or
severally, despite a letter
issued to them in October 2014;
(ii)
Whether the individual applicants jointly and severally violated the
constitutional right of the public and/or
endangered their lives
through their action;
(iii)   Whether
the individual applicants were bound to render their services to the
Employer at all material times, notwithstanding
the fact that the
Employer had at all material times, locked its premises, thereby
denying the individual applicants access to
render their services;
(iv)   Whether
the individual applicants who finished their shifts on the morning of
2 November 2014 participated
in the strike;
(v)
Whether the dismissals were substantively and procedurally fair
(vi)   Whether
the Employer applied its disciplinary code and/or procedure
discriminately, inconsistently and thus unfairly.
[18]
Prior to dealing with the evidence and my conclusions in that regard,
a worrisome argument
was raised on behalf of the Employer that the
matter was
res judicata
in the light of the judgment of this
Court delivered on 28 November 2014. To recap, upon the
individual applicants having
been dismissed, the PSA had approached
the Court on an urgent basis under case number J 2753/14 to have the
dismissals set aside.
The Court had struck off the application from
the roll on account lack of urgency.
[19]
Much was
made of certain findings in the judgment, which it was submitted on
behalf of the Employer, were final and binding pronouncements
on the
merits. This contention is in my view baseless. It was common cause
that the matter was merely struck off the roll on account
of lack of
urgency, and not dismissed as alleged in the written heads of
argument submitted on behalf of the Employer
[6]
.
This meant that the PSA was entitled to re-enrol the matter. It
however chose to bring this claim, and correctly so in the light
of
the disputes of fact arising as can be gleaned from the pleadings.
The mere fact that the Court made certain findings on the
papers in
regards to the conduct of the individual applicants when striking the
matter off the roll cannot give rise or sustain
an argument that the
matter is
res
judicata.
This
argument is indeed opportunistic, and is put to rest by what was
stated in
PT
Operational Services (Pty) Ltd v RAWU obo Ngwetsana
[7]
as follows;
“
Although
I agree that the appropriate order in a matter where urgency has not
been shown should be striking the matter from the
roll, it seems to
me that even where the word “dismissed” is used it does
not necessarily mean that the dismissal amounts
to a final order. One
will still have to enquire, where there is doubt, whether the matter
was dismissed on the merits or not.
If not, then it so not final. A
finding that a matter is not urgent does not mean that there are no
merits in the applicant’s
case. Even if a matter is dismissed
for lack of urgency it can and should be re-enrolled. To reason
otherwise would be to allow
form to triumph over substance.”
The
legal framework:
[20]
In accordance with the provisions of section 188(1)(i) and (b) of the
LRA, a dismissal
that is not automatically unfair, is unfair if the
employer fails to prove that the
reason
for a dismissal is a
fair reason
related to the employee’s conduct or
capacity, and that the dismissal was effected in accordance with a
fair procedure. Under
section 188(2) of the LRA, any person,
including this Court, considering whether or not the
reason for
dismissal is a fair reason
, or whether or not the dismissal was
effected in accordance with a fair procedure must take into account
any relevant code of good
practice issued in terms of the LRA. The
enquiry therefore is into both the substantive and procedural
fairness of the dismissal.
[21]
An enquiry
into substantive fairness requires an examination of what the essence
of the charges proffered against the applicant
entailed. Thus, the
question to be answered is which rule(s) (if any) is the employee
alleged to have breached
[8]
.
This approach had long been stated in
Fidelity
Cash Management Service v CCMA
[9]
as follows;
“
It is an
elementary principle of not only our labour law in this country but
also of labour law in many other countries that the
fairness or
otherwise of the dismissal of an employee must be determined on the
basis of the reasons for dismissal which the employer
gave at the
time of the dismissal
.”
[22]
In this case, and notwithstanding the Employer’s deliberate
refrain from specifically
mentioning in the letters of dismissal that
the individual applicants were dismissed for participating in an
unprotected strike,
the essence of the evidence led on its behalf,
was that the conduct in question and the incidents of 2 November 2014
were viewed as continuous from the strike of 13 –
17 October 2014. In the written heads of arguments on
behalf
of the Employer, it was further submitted that the dismissals
occurred as a result of the individual applicants having embarked
on
an unprotected industrial action which commenced on 13 –
17 October 2014 and continued on 2 November 2014.
[23]
The reason that led to the dismissal of the individual applicants is
that as specifically
set out in the letter of dismissal,
viz
,
that they had breached their contracts of employment in that they
unlawfully changed their shifts without authorisation. To be
more
precise, the allegation is that the individual applicants had engaged
in acts of misconduct by abandoning their shifts from
15h00 to 19h00
on 2
nd
November 2014. The third charge, which
related to alleged violation of the Constitutional rights of the
public and endangering
their lives through the conduct complained of,
is merely related to the consequences of the conduct complained of.
[24]
For all
intents and purposes, it can be accepted that notwithstanding the
formulation of the reason for the dismissal in the letters
issued to
the individual employees, the alleged conduct of the individual
applicants on 2 November 2014, and further
in the light of
the demand for overtime pay, falls squarely within the definition of
a strike as contemplated in section 213 of
the LRA
[10]
.
To the extent that this is what the parties had pleaded, the dispute
before the Court entails a dismissal based on participation
in an
unprotected strike.
[25]
In the light of the above, the principal issue before the Court
(
i.e
., the substantive fairness) is whether the Employer has
discharged the onus placed on it under the provisions of section 192
of
the LRA, to prove that indeed the individual applicants
breached
their contracts of employment by abandoning their shifts between
15h00 and 19h00 on 2 November 2014
,
i.e.
,
embarked on an unprotected strike during the period in question.
Equally relevant for the purposes of determining the fairness
of the
dismissal is the warning letter issued to the employees in
October 2014, which it is alleged was ignored.
[26]
The bulk of
the evidence led on both sides consisted of material disputes of
fact, with various versions presented by or on behalf
of both sides
being diametrically opposed. To the extent that this was the case,
this requires of the Court to resolve mutually
destructive versions
by conducting a qualitative assessment of the inherent probabilities
that arise from all the oral and documentary
evidence and of the
truth of the oral evidence of the witnesses, and to determine which
of the two versions is more probable. Courts
embark on this exercise
by assessing which of the two versions is more logical, coherent,
cogent, plausible and credible because
it is supported by or
consistent with admitted and objective facts such as documents, the
evidence assessed in its entirety, and
the probabilities
[11]
.
The
evidence:
[27]
At a general level, it can be accepted as common cause that the
events of 2 November 2014
were preceded by an unprotected
industrial action that took place at most of the Employer’s
sites between 13 and 17 October 2014.
It can also be
accepted as common cause that flowing from the Court interdict and
subsequent multilateral meetings between the
Employer and the
recognized unions, and in particular the meeting of 28 October 2014,
the parties could still not agree
on the issue of overtime pay.
[28]
To the extent that there was no agreement reached at the last
multilateral meeting, there
was therefore no basis for the PSA to
have assumed for the purposes of the appeals that any such agreement
was reached that employees
can work less hours. Thus, the information
contained in the ‘
Informus’
was merely a
restatement of the PSA’s position at the multilateral meeting
that its members would not work the normal hours.
In fact, it is
specifically stated in the ‘
Informus’
that no
agreement was reached with the Employer.
[29]
In these proceedings, the individual applicant however sought to
distance themselves from
the grounds of appeal relied upon by the
PSA, which effectively were that they had acted in accordance with
the ‘
Informus’
. Similarly, they sought to distance
themselves from paragraph 25 of their statement of claim, in which it
was stated that in accordance
with the ‘
Informus’
,
they had reverted to work less hours. As the evidence shall
demonstrate, in certain case, the individual applicants denied having

worked less hours, whilst in some instances, they had conceded that
they did, but proffered a variety of explanations, varying
from site
to site.
[30]
For the sake of expedience, I intend to first deal with the overall
or general evidence
led on behalf of the Employer in regards to the
reasons that led to the dismissals. I will thereafter deal with the
specific evidence
led in respect of each site, and end with
evaluations and conclusions in respect of each site.
[31]
In opposing the claim, the Employer’s case was that in 2014, it
had in its employ,
1222 employees, and that 600 of them had
participated in the strike action between 13 and 17 October 2014.
During the
course of the strike, internal
memorandums/directives/warnings were issued imploring the employees
to return to work.
[32]
Upon the strike interdict having been obtained, and at the
multilateral meeting held on
28 October 2014, another
ultimatum was issued to the employees and their unions, advising that
should any further strike
action take place, consequences would
follow. Further as a result of the strike, final written warnings
were issued to the employees
between 30 and 31 October 2014.
Since some of the employees had not reported for duty or were on
their off days on the
days that the warnings were issued, copies of
the final written warning were then served on them upon their return.
[33]
According to the Employer, after the ‘
Informus’
of
30 October 2014 was issued, 36 employees had not worked
their full hours between 1 and 2 November 2014.
That
conduct was viewed as a mere continuation of the strike action of 13
– 17 October 2014, hence the decision
to dismiss.
[34]
Dr Richard Lebethe, the Deputy Director General in the Department had
issued the letters
of dismissal. He justified the dismissals on the
basis that the individual applicants did not complete their shifts,
and thus left
communities without the essential service during the
gap between the two shifts.
[35]
Lebethe had further testified that prior to the letters of dismissal
being issued, the
employees were also previously warned of
consequences of embarking on industrial action, and were also issued
with final written
warnings. In total, 600 employees were issued with
final written warnings for taking part in the unprotected strike.
[36]
In regards to advising the dismissed employees to lodge appeals to
the MEC, Lebethe conceded
that the advice was incorrect, but that he
had only issued it upon being informed by the Labour Relations
Department of the Employer
that employees were entitled to appeal to
the MEC. He further conceded that to the extent that the MEC had
declined to assume jurisdiction
over the appeals, there were no
disciplinary enquiries or appeal hearings held prior to the
dismissals.
[37]
The evidence of Mr Lesiba Malotana, the CEO of Gauteng EMS was that
at the time of the
strike between 13 and 17 October 2014,
he had issued a memorandum on 14 October 2014 to all
personnel, advising
that the strike in an essential service was
unprotected, and that any staff member participating in the action
faced disciplinary
action. Copies of the memorandum were placed on
notice boards at the various sites and after employees had seen them,
some of them
had positively responded and resumed their duties. As a
result of the industrial action, final written warnings were issued
to
employees on 31 October 2014.
[38]
Mr Selwin Nkomo, the Employer’s Director: Human Resources who
is based at its Head
Office testified that the industrial action
embarked upon by the employees affected emergency services throughout
Gauteng. He reiterated
that the shift cycle the employees were
complaining of complained was based on the 24 hour service provided
in the contracts of
employment.
[39]
Nkomo emphasised that there was no agreement reached at the last
multilateral meeting of
28 October 2014, and the PSA had
nonetheless advised its members to work reduced hours. He further
testified that to
the extent that the individual applicants had
alleged that they had not worked their full hours out of fear for
their safety, or
that they were threatened or intimidated at the
time, these were matters that i ought to have been reported to
management.
[40]
Nkomo further conceded that some of the dismissed employees may not
have received letters
of final written warning prior to the
dismissal. He however contended that it did not imply that those
warnings were not issued.
[41]
Mr Gerald Papo, the Employer’s Labour Relations Officer
testified that all the employees
that had participated in the
unprotected strike were issued with final written warnings. He denied
that any employee was discriminated
against since all of those who
took part in the strike were issued with some form of sanction
including suspensions without pay.
[42]
Papo also testified that to the extent that the dismissed employees
had raised concerns
about their safety or felt threatened or
intimidated on the days in question as they had alleged, those were
issues that ought
to have been brought to the attention of the
supervisor or manager at the base at the time, before the employees
decided leave
before the end of their shift. He however testified
that no such reports were received by or from the base managers. Papo
further
denied that any of the bases were closed by managers as a
result of threats or intimidation, to prevent access to the dismissed

employees to carry out their duties.
[43]
According to Papo, the letters of dismissal were prompted by the
duration of the strike
and its impact. He contended due to the
seriousness of the conduct in question, convening disciplinary
hearings would not have
made a difference, as not only would such
processes have taken long, but also that there was a breakdown of a
working relationship
with the employees. He conceded that some of the
final written warnings were handed out to the employees
simultaneously with letters
of dismissal.
[44]
Mr Johannes von Benecke, the Deputy Director, Communication testified
in regards to the
impact of the strike on emergency services and on
the main centre. The procedure for responding to calls at the time
was that once
a call was received by the call centre in Midrand, it
was then re-routed to a despatcher in a regional office, who would
then sent
it to a base for a response to be effected. An automated
report calls system referred to had revealed that calls were not
responded
to at various bases between 16h50 and 19h00 on 2 and
3 November 2014.
[45]
According to Von Benecke, the calls not responded to related to
serious motor vehicle accidents
and cases of serious assault. On
3 November 2014, two patients that were not attended to had
died as there was a backlog
in response.
[46]
Under cross-examination, Von Benecke conceded that it was difficult
to determine as to
who was responsible for not responding to calls,
other than to identify the bases, which were CTC/Prinshof, Themba,
Odi, Cullinan
and Motsweding.
[47]
Von Benecke’s evidence was to a large extent corroborated by
that of Ms Yvonne Flavello
who was based at the Cullinan site and on
the night shift on 2 November 2014. She confirmed that she
had to respond to
an emergency call at about 24h00 in respect of a
motor vehicle accident that took place in Ekurhuleni, as none of the
usual emergency
services had responded to the call in the area.
(i)
The evidence led in respect
Dewagensdrift Base
:
[48]
The evidence on behalf of the Employer was led by Mr Raymond Lebese
and Ms Suzan Lukhele.
Lebese’s testimony was that;
48.1   In
November 2014, he was the Acting Station Manager at
Dewagensdrift, where three of the individual applicants,
viz
Messrs Morris Matika, Jonas Mthombeni and Vincent Tshikhudo, were
based.
48.2   The
three individuals were on their rest days until 1 November 2014
and were expected to return to work
on 2 November 2014 for the 07h00
– 19h00 shift. When they returned however, Mthombeni, Tshikhudu
and Matika worked until
17h00 instead of until 19h00. The following
day, Mthombeni had knocked off at 15h00, and on both days he had not
obtained permission
to leave early.
48.3   Only two
other employees, the late BA Ubisi and Suzan Lukhele had remained for
the remainder of the shift. The
other three individual applicants
were also issued with their letters of final written warning upon
their return from their rest
days and subsequently issued with
dismissal letters on 4 November 2014 for working less
hours.
48.4   Under
cross-examination, Lebese confirmed that he did not know whether
Mthombeni was issued with a copy of the
final written warning. When
it was put to him that Mthombeni had left early because of security
concerns or a ‘riot’
at the workplace, he denied that
Mthombeni had informed him of his reasons for leaving early, and
testified that he was not aware
of any security concerns or ‘riot’
at the time. Furthermore, Ubisi and Lukhele had worked their full
hours despite
the alleged safety concerns raised by the other
employees. His contention was that Mthombeni left early because of
the ‘
Informus’
, and not for any other reason.
[49]
Ms Suzan Lukhele, who is employed as a Basic Ambulance Assistant, had
reported for duty
on 2 November 2014 on the same shift as
Morris Matika, Jonas Mthombeni and Vincent Tshikhudu. Her testimony
was that
Mthombeni was the shift supervisor and had called all the
employees at the start of the shift, and informed them that he had
received
the ‘
Informus’
advising the employees to
knock off earlier. She testified that notwithstanding what was stated
in the ‘
Informus’
, she had worked the full shift
and knocked off at 19h00. Lukhele denied that there were any concerns
about her safety for working
the full hours, and contended that she
had not experienced any form of intimidation from any source, nor was
anyone on that shift
threatened with any harm for working the full
shift.
[50]
The evidence of Mr Morris Matika, was that he had reported for the
morning shift on 2 November 2014
and knocked off at 19h00
as expected. He confirmed having seen a copy of the ‘
Informus’
but had ignored it and worked until 19h00. His partner on that shift
was Mthombeni, who had however knocked off at 15h00 as he
had a
family emergency to attend to. The other employees had ‘given
Mthombeni permission to leave early’. He denied
having received
or seen copies of the final written warning or ultimatum.
[51]
Mr Jacob Tshikhudu’s evidence was slightly different to that of
Mthombeni;
51.1
He had
relied on the attendance registrar which reflected that he had indeed
worked the full hours. He testified that he was partnered
with the
late Mr Bongani Ubusi on 2 November 2014 and did not
receive any calls throughout the shift. He made reference
to the
attendance register
[12]
that
reflected that he had worked the full 07h00 – 19h00 shift, and
contended that all the other employees on that shift
had worked full
hours.
51.2   Under
cross-examination, Tshikhudu denied knowledge of any dispute related
to overlapping hours and overtime. He
disputed Lebese’s version
that all the employees, except Ubisi and Lukhele did not complete
their shift and contended that
he (Lebese) was not even on duty on
2 November 2014.
51.3   He
testified that only Mthombeni left at 17h00, and denied that the
latter had circulated the ‘
Informus’.
He contended
that he did not see a copy of the ‘
Informus’
hence
he and others had worked the full hours.
51.4   He
further denied that the employees who had left early had deliberately
recorded incorrect clocking out times
in the attendance registrar as
alleged by Lebese, and reiterated that he had worked the full hours.
[52]
Mr Jabulani Mthombeni confirmed that he was the shift supervisor on
the 07h00 -19h00
shift on 2 November 2014. He conceded
that he knocked off at 17h00, but contended that this was due to
having to attend
to a family emergency. He denied that the other
employees on the shift left at 15h00 as alleged or that he had
instructed them
to leave early. In the same token, he conceded that
the employees had acted in accordance with the contents of the
‘
Informus’
. He further denied having received
copies of the final warning or ultimatums from the Employer.
Evaluation
(
Re: Dewagensdrift):
[53]
In regards to
Mthombeni
, it was submitted that even on the
Employer’s version the reasons for dismissing him were bad in
law. This argument was advanced
in view of the fact that the evidence
led on behalf of the Employer was that Mthombeni had left at 15h00,
when he had on his own
version left at 17h00. This argument in my
view elevates form over substance. The fact remains that Mthombeni
had not completed
his shift on 2 November 2014. Whether he
left at 15h00 or 17h00 is immaterial, as the clock out time remained
as 19h00.
[54]
Whilst Mthombeni’s version and explanation was that he had left
in order to attend
to a family emergency, at the same time, two
versions destructive to his case were put to Lebese by the
applicants’ counsel
during his cross-examination. The first was
that he (Mthombeni) had left due to some ‘riot’ or some
unknown security
concerns. It is either Mthombeni had left without
completing his shift because of security concerns or because he had a
family
emergency to attend. It could not have been due to both
reasons.
[55]
If he had left due to a family emergency to be attended to, there is
no evidence to suggest
that he had obtained permission from Lebese,
even if the latter was off the site at the time. He could not have
obtained such permission
from his crew as Matika had suggested, as
the crew members had no authority to grant such permission. On the
other hand, if he
had left because of some security concerns, again,
Lebese was not informed of those concerns, and if indeed there were
such concerns,
the question remained why Ubisi and Lukhele had
remained until the end of their shift. On Lukhele’s version,
there was no
reason to believe that the employees were intimidated or
under some form of threat, necessitating that they should end their
shift
prematurely.
[56]
A second version put to Lebese by the applicants’ counsel was
that Mthombeni had
asked him about the ‘
Informus’
,
and his (Lebese’s) response was that it was a legitimate
document, which appears to suggest that Mthombeni had acted in

accordance with the ‘
Informus’
by leaving early.
[57]
In the light of the contradictions in Mthombeni’s versions
related to the reasons
he had left early and the various versions put
to the Employer’s witnesses which were at odds with his own
version, it follows
that his entire version ought to be rejected as
lacking in credibility. The invariable probabilities therefore favour
the Employer’s
version that indeed Mthombeni had left early in
compliance with the ‘
Informus’
issued by the PSA,
and not for any other reason.
[58]
Mthombeni’s conduct of leaving early in my view should further
be viewed in even
more serious light, taking into account the fact
that he was the shift supervisor at the time. He had clearly
abandoned his shift
and crew, and instead of taking responsibility
for his actions, his versions or those put up on his behalf were
clearly designed
to mislead the Court.
[59]
In regards to,
Tshikhudu,
it needs to be stated that his
denials in regards to his knowledge of any strike action, or the
‘
Informus’
and/or any disputes related to the
overtime pay were clearly bare in the light of the overall evidence
led. It is indeed improbable
that to the extent that he was a member
of the PSA, he could not have had any knowledge of the dispute
related to overtime or the
strike that took place between 13 and
17 October 2014.
[60]
Lebese’s testimony in regards to
Tshikhudu
and
Matika
was that they had not completed their shifts on 2 and
3 November 2014. Taking into account that the individual
applicants
were dismissed for their conduct on 2 November 2014,
it is significant to note that Lebese had conceded that on
2 November 2014,
he was not on duty. Lukhele could not shed
light in regards to the time that Matika and Tshikhudu had left, and
on her own version,
she could not recall who was still on duty at the
time that she knocked off at 19h00.
[61]
In the absence of any evidence to suggest that the attendance
register relied upon by Matika
and Tshikhudu was manipulated as
suggested by Lebese without any form of corroboration, it is my view
that their versions that
they had completed their shift ought on a
balance of probabilities, be given the benefit of the doubt. To that
end, I am not satisfied
that the Employer had discharged the onus
placed on it to demonstrate that Matika and Tshikhudu had indeed left
early on 2 November 2014.
Accordingly, there was no fair
reason for them to be dismissed.
(ii)
The evidence in respect of
Cullinan Base
:
[62]
The following individual applicants,
viz
Duduzile Skhosana,
Precious Nkosi, Sylvia Mmeti, Richard Nkosi, Brian Mabiletja, Granny
Mashishi, Joseph Kakole, Donald Nchabeleng
and Kgotleng Jack Shilakwe
were based at Cullinan.
[63]
Mr Mandla Kgomo, who is currently a Station Manager in the Tshwane
district was at the
time of the industrial action, based at Cullinan.
His testimony on behalf of the Employer was that;
63.1
Final written warnings were issued to employees who took part in the
13 – 17 October 2014
strike. On 2 November 2014
he was off duty and the late Ms. Sibanda was the standby manager at
the base. Kgomo came back
on 3 November 2014 and found a
report compiled by Sibanda, in which she had recorded that;
(i)
Skhosana, Granny Mashishi, Joseph Kakole and Richard Nkosi,
did not
complete their shift on 2 November 2014, and had left early
without permission.
(ii)
Mabiletja, Mmeti, Nkosi and Nchabeleng had remained at the workplace

until the end of their shift, but had however refused to respond to
emergency calls.
(iii)
Only two other employees, M Tshita and Setladi had remained for the
remainder of the shift.
[64]
Jack Shilakwe was the shift supervisor on the 07h00 – 19h00
shift on 2 November 2014.
His testimony on behalf of the
other individual applicants at Cullinan was that;
64.1   At
between 14h30 and 15h00 whilst on duty, he had received no less than
four threatening telephone calls from unknown
persons, warning him
and his crew not to work beyond 15h00 on that day.
64.2   He
subsequently called the crew members to a meeting to discuss the
threatening phone calls. He also called Ms
Sibanda, who was at the
time, off the base, and informed her of the threatening calls.
Sibanda had said that she was also afraid
that she may attacked if
she came to the base, and told Shilakwe that all staff members should
park the ambulances, hand over all
the ambulance keys with security
officers on duty, and leave the premises.
64.3   He had
then reported back to the crew what Sibanda had said, and all the
employees except him had left as two crew
members, Setladi and
Mashishi, had not returned from attending to their earlier calls.
64.4   Sibande
had at a later stage called him to find out what their situation was,
and undertook to convey a message
to the senior manager, Lebethe,
that employees had to leave early as a result of the telephone
threats they had received. When
Setladi and Mashishi came back at
about 15h10 without having attended to their call, they all left
immediately thereafter.
64.5   Under
cross-examination, Shilakwe confirmed that he did not verify where
and from whom the threatening calls came,
nor did he make any
assessment of any potential threat at the base upon receipt of the
alleged calls. He however insisted that
all the employees on shift at
the time left around 15h00 upon being given permission by Sibande.
64.6   When it
was pointed out to him that it was never at any stage put to the
Employer’s witnesses that Sibande
had given the employees
permission to leave early or that the latter was concerned about
their safety, he (Shilakwe) conceded that
he did not have a response
as to the reason his version was not put to the Employer’s
witnesses, especially to Kgomo.
64.7   Shilakwe
further conceded that as a shift supervisor, he failed to record the
alleged threats in the Occurrence
Book that the employees, or the
fact that the employees had received permission from the late Sibanda
to leave early as a result
of the alleged telephone threats.
64.8   Shilakwe
further confirmed that he never received similar threatening calls on
3 November 2014, and that
none of the other employees were
threatened or had received similar calls.
[65]    Ms
Granny Mashishi’s testimony was that;
65.1   On 2
November 2014, she had reported for duty and attended to calls. The
last call that she and her partner, Setladi
had responded to was at
about 14h45. When they came back to base at about 15h20, they
discovered that all the crew members had
left.
65.2   She then
called Shilakwe who informed her that the other employees left early
because they saw the ‘
Informus’
directing them to
end their shift at 15h00, and further that he had received
threatening calls. He also informed her that he had
called Sibande
about the threatening telephone calls, and that the latter told the
employees to leave the premises.
65.3   Mashishi
further testified that she had simply followed Shilakwe’s
instructions to lock up and leave the
premises. She left at about
16h20 after cleaning the ambulance allocated to them, and also due to
safety concerns.
65.4   She
conceded however under cross-examination that there was no threat to
her that she was aware of other than what
Shilakwe had said. She
further testified that she did not see a copy of the ‘
Informus’
until after her dismissal, even though she was told to leave early
because of it and the telephone threats.
[66]
Mr Donald Nchabeleng was also a PSA shop steward. His testimony was
that;
66.1   He did
not receive a copy of the final written warning issued in
October 2014 or any other ultimatums or warnings
issued by the
Employer. He confirmed that he left at 15h00 instead of 19h00 on
2 November 2014 due to the alleged threatening
telephone
calls received by Shilakwe, and as a result of the alleged permission
by the late Sibande.
66.2
Nchabeleng conceded that he was aware of the ‘
Informus’
as at 2 November 2014. In the same token, he denied that he
knew of it and contended that he only became aware of it
on
5 November 2014 after his dismissal. He also conceded that
he did not verify the threats, and had merely acted on
what Shilakwe
had said. He also confirmed that he did not call Sibande to confirm
whether indeed they were granted permission to
leave early.
66.3
Nchabeleng further complained that other employees, Ms Maria Tsita
and Setladi, who were on their shift, were not
dismissed despite also
leaving early. This was despite the fact that Kgomo had recorded that
both employees did not leave early
like the rest of the crew.
[67]
Mr Richard Nkosi was also based at Cullinan. His testimony was that
he was on the 19h00
– 07h00 shift that started on
1 November 2014, and had knocked off at 07h00 on
2 November 2014. He was
on that shift together with
Mabiletja and Mmeti. The three of them took their four days of rest
after their shift on 2 November 2014,
and came back on
6 November 2014 only to be issued with letters of
dismissal.
[68]
After Nkosi had finalised his examination in chief, the Employer’s
counsel did not
proceed with any cross-examination as he sought to
take further instructions. The evidence of Nkosi however remained
unchallenged.
Evaluation
(Re: Cullinan Base):
[69]
The evidence of Shilakwe, which was equally applicable to Duduzile
Skhosana, Richard Nkosi,
Granny Mashishi, Joseph Kakole, and Donald
Nchabeleng is indeed extraordinary, and so improbable that it ought
to be rejected on
the following grounds;
69.1
Shilakwe’s version that he had
received the threatening phone
calls between 14h30 and 15h00 on 2 November 2014, or that
he and the other employees were
granted permission to leave early by
Sibande was neither pleaded nor put to any of the Employer’s
witnesses. The attempts
therefore by Shilakwe to rely on the alleged
permission granted by the late Sibande is indeed opportunistic in the
extreme.
69.2
Even if the late Sibande was made
aware of the alleged telephone
threats or had given the employees permission to leave early, it is
inexplicable that she would
omit to mention such an important matter
in her report which she had left for Kgomo.
69.3
The fact that Shilakwe as the shift
supervisor failed to make any
entries in regards to the alleged threats and permission in the
Occurrence Book is even more fatal
to his and other individual
applicants’ case. This omission was not simply an error on his
part as he alleged.
69.4
In regards to Nchabeleng and Mashishi,
they had simply left early on
the alleged threats they had heard about from Shilakwe, without
making any attempts to independently
verify the veracity of the
alleged threatening calls or permission granted by the late Sibande.
There was no evidence to suggest
that they had also for some reason,
personally felt threatened upon coming back to the base.
69.5
In the same token they had made
no attempts whatsoever to
assess whether the threats were real, nor had they personally felt
threatened. On the contrary, and despite
the alleged threats,
Mashishi only left at about 16h20, and only after cleaning the
ambulance allocated to her.
69.6
If Setladi, who had partnered Mashishi
had stayed for the duration of
the shift as there was no discernable threats to her safety, it can
only be concluded that the rest
of the crew left for reasons other
than concerns surrounding their safety. In the end, the allegation
that Shilakwe and his crew
left early because of unknown telephone
threats is rejected as lacking any credibility, and the only
conclusion is that the alleged
threats and permission from the late
Sibande were made were up .
[70]
The circumstances surrounding the dismissal of
Richard Nkosi
,
Brian Mabiletja
and
Sylvia Mmeti
are however different
from those of Shilakwe and the other individual applicants in
Cullinan. It was not in dispute that they had
commenced their shift
at 19h00 on 1 November 2014, which ended at 07h00 on
2 November 2014. They had thereafter
taken their four days
of rest and came back on 6 November 2014.
[71]
Richard Nkosi’s testimony in regards to the three of them
having completed their
shift was unchallenged, and despite counsel
for the respondent having sought an indulgence to seek instructions
in regards to the
evidence led by Nkosi, nothing came of it, other
than a general allegation that reports were received that the three
did not respond
to calls between 3h00 and 7h00.
[72]
Yvonne Flavello’s evidence was that she was on the 19h00 -
07h00 shift on 2 November 2014,
and confirmed that
telephone calls at Cullinan were not responded to. Her evidence
however does not take the Employer’s case
against Nkosi,
Mabiletja and Mmeti any as it pertains to events that took place
after the three had completed their shift.
[73]
Furthermore, the general allegation that the three did not answer the
calls cannot be sustainable
in the light of Von Benecke’s
concessions that it was difficult to ascertain which individuals at
which base had not answered
calls. In the light of the general and
unsubstantiated allegation that calls were not answered between 03h00
and 7h00 on 2 November 2014,
it should be concluded that
there is no basis for the Court to reject Nkosi’s evidence that
the three of them had worked
and completed their shifts, and it
follows that there was no reason to dismiss them.
(iii)
The evidence in respect of
Themba Base
:
[74]
The following individual applicants,
viz
, Sydney Mthombeni,
Lismos Lekalakala, Victor Sape, and Jeffrey Maluleka, S.M. Matjila,
V.S. Mabokela, J.T. Mohomotsi, and Patricia
Mokwatlo were based at
Themba.
[75]
The evidence of Ms Linah Bosielo on behalf of the Employer was that;
75.1   She had
reported for the day shift (07h00 – 19h00) on 2 November 2014.
The late Mr Thomas Tshabalala
was the shift supervisor at the time.
Between 14h00 and 15h00 she and her partner, Mabunda had attended to
an emergency call. Upon
their return to base, after 15h00, they found
Tshabalala who was by himself, and who had informed them that the
other employees
had knocked off early at 15h00 before the end of
their shift. Tshabalala advised them to attend to all the emergency
calls.
75.2   Bosielo
denied that there was any form of intimidation or threats from any
source against the employees on duty
until the end of her shift at
19h00. She contended that the individual applicants at the base left
due to having received and read
the ‘
Informus’
,
which was handed to their shift by other employees from the previous
shift.
75.3   Upon
reading the ‘
Informus’
, it had occurred to her
that it was not official communication from the Employer, and she had
ignored it. Bosielo further testified
that she was aware that as
employees rendering an essential service, they were prohibited from
taking part in strikes. All employees
had committed themselves to the
HPSHA rules of conduct, and were aware of the consequences of
breaching those rules, which included
a dismissal. Her contention was
that it was wrong to abandon one’s duties and obligations.
75.4   Under
cross-examination, Bosielo reiterated that upon her return to base at
15h00, Tshabalala had informed her
and her partner that all the
employees had left, and that the other available ambulances did not
have drivers. He had also informed
them that one of the managers had
said that if the employees did not feel safe for whatever reason, the
SAPS should be contacted.
Bosielo’s contention however was that
she did not understand why the manager was concerned about their
safety as they had
no reason to.
[76]
Ms Lisa Mabunda’s testimony on behalf of the Employer largely
corroborated Bosielo’s
version. She added that the contents of
the ‘
Informus’
were discussed by all the employees
on the shift, and it was left to individuals to make choices. She
further confirmed Bosielo’s
version that they went out to
answer a call and when they came back to base, they only found the
supervisor, the late Mr Tshabalala,
as the other employees had left
early. She also confirmed that there was no threats made to them or
the whole crew, nor did they
experience any intimidation from any
source throughout the shift
[77]
Ms Violet Mabokela’s testimony on behalf of the other
individual applicants deployed
at Themba was that;
77.1   She was
on the 07h00 – 19h00 shift on 2 November 2014, and partnered
with J.T. Mogomotsi. Upon reporting
for her shift, the employees on
the previous shift told her about the ‘
Informus’
from PSA which she did not see.
77.2   She had
attended to her calls during her shift and came back at about 14h00.
Just before 15h00, the crew had ‘overheard’
the late
Tshabalala responding to a threatening call on his cell phone.
Tshabalala had called them and informed them of unknown
threatening
telephone calls he had received, and informed them that they should
leave if they did not feel safe.
77.3   At the
same time, there were other threatening calls to her coming from
other sites enquiring about whether the
crew was going to stay until
19h00. As a result of these threats, all the crew members except
Bosielo and Mabunda who had at the
time responded to a call, were
then asked by Tshabalala to hand over ambulance keys if they felt
unsafe . They then left at about
15h30 after handing over the
ambulance keys to Tshabalala.
77.4   She and
the other employees did not however immediately go home. They went to
a hospital adjacent to their base
where they could feel safe whilst
waiting for calls on their cell phones. No calls came through and
they had left at 17h45 and
went home.
77.5   Under
cross-examination, Mabokela could not explain the reason the evidence
of Bosielo that all the crew members
had left at 15h00 was not
challenged, nor the reason her version that the employees had
received threatening calls and that the
late Mr Tshabalala had given
them permission to leave early, was not put to the Employer’s
witnesses.
77.6   She
confirmed that she did not tell Tshabalala about the personal
threatening calls she had also received. Furthermore,
despite making
an allegation that she had also received threatening calls from other
bases, she could not state how she knew that
those calls were from
other bases.
77.7   Mabokela
could further not explain the reason why Bosielo and Mabunda had not
felt threatened after the alleged
threatening calls were received,
nor could she explain the reason why despite having stayed at the
hospital for safety, calls were
not answered, nor why she and others
allegedly left the hospital at 17h45.
[78]
Mr Jan Tidimalo Mogomotsi was partnered with Mabokela, and his
testimony was that at about
15h00, the employees had gathered to
discuss the ‘
Informus’
. Following the discussions,
he was ‘scared’, ‘confused’ and ‘fearful’
as he did not know what
would happen to them.
[79]
Under cross-examination, he testified that the alleged threats came
about as a result of
the telephone calls Tshabalala had received, and
how the latter had spoken to the individuals who made the threatening
calls. He
contended that it was only thereafter that they were told
to leave if they did not feel safe. According to Mogomotsi, all the
employees
then handed over the ambulance keys to Tshabalala and went
to the nearby hospital where they waited to receive calls as they
felt
it was safer. In his view, despite leaving the workplace, he
considered himself to still have been on duty as he could receive
calls, which he did not. He left the hospital premises and went home
at 18h00, as he used public transport and was concerned about
his
safety.
[80]
Following the above evidence, the parties agreed to file a stated
case in respect of the
remainder of all the individual applicants,
who had made common cause with the evidence of Mabokela and
Mohomotsi.
Evaluation
(Re: Themba Base)
[81]
As was the case with Cullinan, the individual applicants at
Themba sought to rely
on the alleged permission of a deceased person
(Tshabalala) to leave the workplace before the shift ended. The
evidence led on
behalf of all the individual applicants at Themba by
Mabokela and Mogomotsi however does not make any sense. As with
Cullinan,
the versions put up in respect of Themba are equally
manufactured with the sole purpose of misleading the Court, and ought
to be
rejected for the following reasons;
81.1
On the individual applicants’ version, the shift went smoothly
until just about 15h00 when
they ‘overheard’ threatening
telephone calls made to the late Tshabalala, and his responses to the
unknown persons
making those calls. In the light of the PSA’s
stance in the ‘
Informus’
, clearly the timing of
the so-called threatening calls to Tshabalala and the latter’s
permission for the employees to leave
early appears to convenient.
81.2
It is not known who had called Tshabalala nor the nature of the calls
beyond that they were threatening.
As to how the whole crew could
have conveniently overheard the telephone calls to Tshabalala and
suddenly got scared, fearful and
confused is perplexing. By some
strange coincidence, Mabokela also received similar threatening phone
calls from unknown persons.
As to the reason she failed to advise
Tshabalala that she got similar threatening calls or how she knew
that those calls were from
other sites as she alleged is unknown.
81.3
As was the case with the individual applicants at Cullinan, the
version of Mabokela and Mohomotsi
was neither pleaded nor put to the
Employer’s witnesses. Bosielo and Mabunda’s testimony was
that upon their return
to base at about 15h00, the base was deserted
other than Tshabalala who was by himself, and who had informed them
to attend to
all the calls. Surely if Tshabalala had reason to be
concerned about the safety of the crew, there was no reason for him
to nonetheless
keep Mabunda and Bosielo on duty.
81.4
The other individual applicants’ case at Cullinan got even more
ridiculous with their assertion
that out of concern for their safety,
they went to seek refuge at the nearby hospital premises, where they
had waited for the calls.
This makes their evidence that they were
concerned about their safety even more ludicrous, as it is
inexplicable as to how they
would still have under the circumstances,
responded to the calls off the base. Responding to calls meant having
to go back to the
base to fetch the ambulance and all the necessary
equipment to carry out their tasks. How they could have done that
when they were
concerned about their safety remained unexplained.
[82]
In the end, the evidence led on behalf of the individual applicants
based at Themba by
Mabokela and Mahomotsi as to the reason they did
not complete their shift on 2 November 2014 lacks
credibility, is so
conjured up and lacking any semblance of truth
that it ought to be rejected. As was the case in Cullinan, the
individual applicants
were opportunistic, and sought to take
advantage of the demise of Tshabalala, by making allegations that he
gave them permission
to leave early. However their own version of
events lack any credibility. In the circumstances, the Employer has
indeed discharged
the onus placed on it to demonstrate that the
individual applicants at Themba abandoned their shift on
2 November 2014.
(iv)
The evidence in respect of
CTC/Prinshof Base
.
[83]
The following individual applicants were at Prinshoff Base,
viz
,
Khensani Marylene Mboweni, T.M. Dlamini, P. Katane, X.Z.P. Nkosi,
B.E. Mkhondo, S.L Ledwaba, C. Ngwetjana and S.T. Mokgosana.
[84]
Ms Patricia Kekana, who was also based at Prinshoff as Supervisor on
the 06h45 –
18h45 on 2 and 3 November 2014 shifts,
testified that;
84.1
There were 16 employees who were under her supervision. When she
knocked off at 18h45, all the
members of the shift were still present
at the workplace.
84.2
Even though the employees were present throughout the shift on
2 November 2014, they
had however refused to take calls
after 15h00. She knew of this because the Despatcher from Control
Room had called her to complain
about calls not being responded to
after 15h00.
84.3
As a result of the employees on duty refusing to respond to calls,
another base, the City of
Tshwane, was called in to assist in
attending to the calls. In the end, all the calls that would
ordinarily have been responded
to by the crew at Prinshof were
diverted to the City of Tshwane site after 15h00.
84.4
On 4 November 2014, letters of dismissal were then issued
to the individuals who had
refused to answer calls after 15h00. She
further confirmed that all the employees at the base that had
participated in the unprotected
strike were issued with warnings.
[85]
Ms Mboweni’s testimony on behalf of the other individual
applicants was that;
85.1
She and her partner, T.M. Dlamini
were on the 07h00 – 19h00
shift on 2 November 2014 and had attended to their calls
throughout the day, until they
came back to base at 15h20. They found
the supervisor, Sibande issuing out letters of warning to the
employees. Mboweni had refused
to accept a copy of the final written
warning as she did not take part in the industrial action of 13 –
17 October 2014.
85.2
Under cross-examination, Mboweni insisted
that contrary to Kekana’s
version, she had worked her whole shift on 2 November 2014
despite having heard rumours
of threats made to the employees. She
also heard rumours about the ‘
Informus’
, but
testified that since she did not see it.
[86]
Ms Priscilla Katane was also based at Prinshof. The other individual
applicants based at
Prinshof formed common cause with her evidence
which was that;
86.1   She had
reported for duty on 2 November 2014 on the 07h00 –
19h00 shift and was partnered with
Xolisile Nkosi. Upon their return
from responding to calls, they were issued with copies of written
final warnings by Sibande.
She had accepted a copy of the warning
without signing acknowledgement of receipt. Although she was
dismissed on 4 November 2014,
she had continued to report
for work until 6 November 2014.
86.2   She
denied that she and Nkosi and others did not work their full shift,
or that they had refused to respond to
calls after 15h00. She
testified that since they came back from their last call, they did
not receive any further calls, and were
later advised by Kekana that
the control room had advised that all calls should no longer be
directed to Prinshof. She denied when
it was put to her in
cross-examination that she had worked lesser hours because of the
‘
Informus’
, and contended that she knew nothing
about it.
[87]
Mr Lesetja Ledwaba’s testimony was similar to that of Katane.
After attending to
his last call, he did not receive any further
calls and he had stayed until 19h00. He confirmed receipt of the
final written warning
even though he did not sign acknowledgement of
its receipt. He denied having seen a copy of the ‘
Informus’
or the internal memorandum issued by the Employer on 3 November 2014.
Evaluation
(Re: Prinshof)
[88]
To the extent that it was common cause that the individual applicants
at Prinshof had stayed
at work until 19h00, the only issue is whether
they had between 15h00 until the end of shift, responded to the
emergency calls
(i.e., rendered a service). As Von Benecke had
correctly pointed out, it is immaterial whether the employees had
stayed at work
until the end of their shift if they did not render
any service. Thus, where employees are found to have stayed until the
end of
shift but had nonetheless not answered the emergency calls,
their position is no different from those other employees that had
left before the end of the shift.
[89]
Kekana’s version was that the individual applicants did not
render any service or
respond to calls after 15h00. Von Benecke had
referred to the Employer’s Automated Report which captured
incidents, calls
and responses. It was conceded on behalf of the
individual applicants that it can be accepted from the Automated
Report that some
of the electronically captured calls were not
attended to.
[90]
The Automated Report as explained by Von Benecke reflects that from
15h00 until 20h00 on
2 November 2014, there were about
eight calls that were not serviced in Prinshof, Themba, Cullinan and
Dewagensdrift,
leading to the call centre experiencing a backlog.
[91]
Von Benecke as already pointed out could not identify any individuals
who were responsible
for not responding to the calls. However, to the
extent that not much challenge was posed to the contents and details
of the Automated
Report, this evidence is assessed against Kekana’s
version that other than the fact that the individual applicants had
failed
to respond to answer the calls after 15h00, the despatcher had
confirmed that calls were not being attended to, necessitating that

such calls be diverted to other bases.
[92]
Katane had confirmed that Kekana had advised her that calls were
being diverted to other
bases. Inexplicably, she did not seek an
explanation from Kekana as to why calls were being diverted. Clearly
the answer to that
would have been obvious. In the light of the
Automated Report and the fact that Kekana had confirmed that calls
were being diverted
to other bases, it follows that the only reason
that calls were being diverted was that despite the individual
applicants being
on duty, they were not rendering any services and
responding to emergency calls.
[93]
The individual applicants’ refusal to respond to calls was in
line with the PSA’s
stance in the ‘
Informus’
,
which they all denied knowledge of. To this end, the individual
applicant’s contentions that they had worked the full shift
is
found to be improbable, and to that end, the Employer discharged the
onus of proving that indeed they had abandoned their shift
between
15h00 and 19h00 on 2 November 2014, despite having been at
their base until 19h00.
The
appropriateness of the sanction of dismissal:
[94]
From an evaluation of the evidence presented per base, it has been
concluded that the Employer
did not discharge the evidentiary burden
placed on it to demonstrate that Morris Tshikhudu and Morris Matika
from the Dewagensdrift
Base, and Richard Nkosi, Brian Mabiletja and
Sylvia Mmeti from Cullinan Base, had not completed their shifts or
answered emergency
calls after 15h00 on 2 November 2014.
[95]
To the extent that it was found that the other individual applicants
from various bases
were correctly found to have abandoned their
shifts between 15h00 and 19h00 on 2 November 2014, a
further issue to be
considered is whether the sanction of dismissal
was appropriate.
[96]
It was submitted on the individual applicants’ behalf that
having regard to the facts
and circumstances of this case, the
sanction was not appropriate. It is however my view that the facts
and circumstances of this
case indicate that the dismissal was the
most appropriate sanction in the light of the following
considerations;
96.1
The conduct of the individual applicants
in not completing their
shifts, or at most, being at work but not attending to the emergency
calls was clearly in breach of their
contracts of employment, and at
worst, conduct that constituted a strike as defined in section 213 of
the LRA.
96.2
There was no evidence to suggest that
the strike or conduct of the
individual applicants as triggered by the ‘
Informus’
was justified or provoked by any form of conduct on the part of the
Employer. On the contrary, the individual applicants’
conduct
was deliberate and calculated. That conduct was preceded by another
unprotected one that took place between 13 and 17 October 2014,

which was interdicted. To this end, it cannot be doubted that the
individual applicants and the PSA were fully aware that any action
in
pursuance of the overtime claim was unlawful.
96.3
It was further not in dispute that
the individual applicants rendered
essential services, and that they were bound by their terms and
conditions of employment and
most importantly the code applicable to
health workers in general. Bosielo was aware that all employees as
essential service were
prohibited from taking part in strikes, or
that they had committed themselves to the HPSHA rules of conduct. She
was further aware
of the consequences of breach of those rules, which
included a dismissal. She had further testified that it was wrong for
employees
to abandon their duties and obligations. In these
circumstances, I fail to appreciate how the other individual
applicants could
on the other hand, not have been aware of these
basic rules and standards they were expected to adhere to.
96.4
The essential nature of the services
rendered and the importance in
ensuring that emergency situations were promptly attended to cannot
be emphasised, and this was
clearly obvious to the individual
applicants. The Employer did not even have to present any evidence
beyond proving that indeed
shifts were abandoned, and emergency calls
were not attended to demonstrate the net effect of the impugned
conduct. The individual
applicants were therefore completely aware of
the consequences of their conduct on communities they served,
especially on the vulnerable
ones, which entirely depended on their
service.
96.5
The PSA, contrary to its assertion
that there was an agreement
resulting from the multilateral meeting of 28 October 2014,
had issued the ‘
Informus’
, which despite the
individual applicants’ denials, they had nonetheless acted
upon. This was despite the fact that at that
meeting, and on the
evidence of Papo and Nkomo, the Employer had specifically warned that
disciplinary action would follow should
any further unprotected
action be embarked upon by the employees. In one way or the other,
the PSA through the ‘
Informus’
, dared the
Employer.
96.6
What makes the sanction of dismissal
even more appropriate is that
other than the daring and gross nature of the individual applicants’
conduct, none of them
(
i.e
., those correctly found to have
abandoned their shift or refused to take emergency calls), had shown
any contrition or owned up
to the consequences of their actions.
96.7
In my view, a measure of sympathy
would have been shown towards the
individual applicants’ case, had they simply owned up for their
actions and aligned themselves
with the PSA’s explanation that
their conduct was in line with the ‘
Informus’
.
Instead, they chose either to disavow or deny the existence of the
‘
Informus’
, and unnecessarily over a period 13
trial days, took this Court through a wild goose chase, beset by
fabricated tales.
96.8
What is even more disconcerting and
utterly unconscionable is that in
the process of presenting concocted versions, the individual
applicants sought to implicate and
blame deceased persons for their
conduct, with the expectation that those versions would stick in the
absence of any other evidence.
This approach or strategy was
shameless in the extreme.
96.9
In the end, an overall assessment
of the competing versions led to an
inescapable conclusion that the applicants’ version were so
lacking in credibility and
reliability, that it ought to be rejected.
Furthermore, the individual applicants through their conduct appeared
to have forgotten
why they were employed in the first place. If it
was so easy for them to abandon their shifts and thereafter lie to
seek justification
for their conduct, clearly there is merit in the
Employer’s contentions that it would be unreasonable to expect
it to have
a sustainable employment relationship with them, which
relationship is based not only trust, but also on a firm commitment
to service
communities and citizens in distress.
Procedural fairness of
the dismissal:
[97]
Item 6(2) of the Code of Good Conduct provides that prior to a
dismissal for participation
in unprotected strike action:
“
The employer
should, at the earliest opportunity, contact the 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 to
respond to it, either by complying with it or rejecting it. If the
employer cannot reasonably be
expected to extend the steps to the
employees in question, the employer may dispense with them”.
[98]
Flowing
from the provisions of the Code as above, and further in line with
the principles set out in
Modise
& others v Steve’s Spar Blackheath
[13]
,
the main intention of an ultimatum is to “give the workers an
opportunity to reflect on their conduct, digest issues and,
if need
be, seek advice before making a decision whether to heed the
ultimatum or not”
[14]
.
[99]
The Labour Appeal Court had accepted that there were exceptions where
the
audi
principle may be dispensed with. In this regard, it
was held that;
“
The
only situation which I am able to envisage where it can be said that
an employer’s failure to give a hearing may be justified
on the
basis that a hearing would have been pointless or utterly useless is
where either the workers have expressly rejected an
invitation to be
heard or where it can, objectively, be said that by their conduct
they have said to the employer: We are not interested
in making
representations on why we should not be dismissed. The latter is not
a conclusion that a court should arrive at lightly
unless it is very
clear that that is, indeed, the case. However, in my view, the latter
scenario falls within the ambit of
a waiver. Accordingly, the normal
requirements of a waiver must be present. What I say in this
judgement about the “
pointless
” approach
and the “
utterly
useless”
approach
must be understood subject to what I have just said. There is no
justification for creating an additional exception
to the
audi
rule in order to escape the normal consequences attendant upon a
failure to meet the requirements of established exceptions to
the
audi
rule e.g. waiver I can see no difference between
this “
pointless
” approach
and the “
no
difference
” approach.
Cameron rejected the “
no
difference
”
approach in the same article. The “
pointless
” approach
seems to be the same approach as the “
utterly
useless
”
approach. Sometimes the pointless or utterly useless approach is
applied where it is thought that the employer was in possession
of,
information relating to, or, knew, why the employees were striking
(see
McCall
J in Plascon Ink & Packaging Coating (Pty) Ltd V Ngcobo &
others
(1997) 18 ILJ 327 (LAC) at 339I - 340G
).
The utterly pointless useless approach is one where it is said that,
an employer is not obliged to afford workers the benefit of
being
heard where a hearing would have been utterly useless. I think the
reasoning adopted by the Appellate Division in rejecting
the no
difference approach would justify the rejection of the “
pointless
”
or “
utterly
useless
”
approach.”
[15]
[100]
It was submitted on behalf of the individual applicants that their
dismissal was procedurally unfair as
no charges were brought against
them; that no disciplinary hearings were held, and/or that some of
them were dismissed in absentia.
[101]
It is common cause that the individual applicants were summarily
dismissed on 4 November 2014.
The evidence on behalf of the
Employer through Lebethe was that the dismissals followed upon
previous warnings and ultimatums having
been ignored. Malotana on the
other hand had confirmed that he had issued a memorandum on
14 October 2014 to all personnel,
advising that the strike
in an essential service was unprotected, and that any staff member
participating in the action faced disciplinary
action. That
memorandum was followed by final written warnings issued to employees
on 31 October 2014. Mr Selwin Nkomo
conceded that some of
the dismissed employees may not have received letters of final
written warning prior to the dismissal. He
however contended that it
did not imply that those warnings were not issued.
[102]
Mr Gerald Papo’s evidence however is even more telling. Other
than also contending that final written
warnings were issued to the
employees, he had justified the summary dismissals on the basis that
convening disciplinary hearings
would not have made a difference, as
not only would such processes have taken long, but also that there
was a breakdown of a working
relationship with the employees.
[103]
The Court should accept that flowing from the unprotected industrial
action of 13 – 17 October 2014,
memoranda warning the
employees against similar conduct were issued, and that at the
multilateral meeting of 28 October 2014,
the unions were
again warned that should any further unprotected action take place,
consequences would follow.
[104]
To the extent that the Employer had alleged that final written
warnings were issued to the 600 employees
that took part in the
unprotected industrial action, the Court is further prepared to
accept that such warnings were issued,
albeit
haphazardly.
Some of the individual applicants had conceded having been issued
with these warnings even though they did not sign
acknowledgement of
receipt, whilst Papo had confirmed some of the individual applicants’
version that some of the final written
warnings were handed out to
them simultaneously with letters of dismissal.
[105]
Whilst it is accepted that the employees were warned against
embarking upon similar unprotected industrial
action, it is equally
accepted that insofar as the events of 2 November 2014 were
concerned, the subsequent summary dismissals
were not preceded by any
ultimatum or disciplinary process. On the Employer’s own
version, it was able to identify the 36
employees who had abandoned
their shift on 2 November 2014. To the extent that it was
common cause that these individuals
could be identified by their
sites and the conduct complained of, surely the contention that
holding disciplinary enquiries would
have been time consuming or
serve no purpose as contended by Papo can hardly be viewed as
convincing nor rational basis for dispensing
with such a hearing.
[106]
It is not clear as to the reason the Employer could not issue an
ultimatum in circumstances where the abandonment
of the shift took
place over a period of four hour across the bases. Be that as it may,
even if could have been argued that the
circumstances did not permit
for the ultimatum to be issued, in the light of the number of
identified employees, it was even more
appropriate to convene a
disciplinary hearing. The contention therefore by Papo that such an
exercise would not have made a difference
or that it would have been
a laborious one, in my view elevated expedience over fairness.
[107]
To the
extent that in this case it has already been found that there was no
basis to dismiss some of the individual applicant, this
further
demonstrates that a disciplinary process would have served a purpose,
and that there were no exceptional circumstances
prevailing at the
time to dispense of hearings. The aim of due process as stated in
Modise
and Others v Steve's Spar Blackheath
is
inter
alia
,
to afford employees an opportunity to state not only on why they may
not be said to have participated in an illegal strike, but
also to
state why they should not be dismissed if they had indeed
participated in such strike
[16]
.
The individual applicants in this case, were without just cause,
denied any form of opportunity to be heard before they were
dismissed.
[108]
In
Karras
t/a Floraline v S.A. Scooter & Transport Allied Workers Union &
Others
[17]
it was held that exceptions could be made in instances of collective
misconduct, in which case the opportunity to state a case
will
ordinarily be given to the collective, usually the trade union, if
one is involved. In this case however, no such opportunity
was even
afforded to the PSA. The appeals which were lodged by individuals or
the PSA on behalf of the collective as per the advice
of Lebethe were
only considered by the MEC some eight months after the dismissal.
Even then they were not considered in the real
sense as the MEC had
concluded that she had no jurisdiction to do so. Thus, the lodging of
appeals turned out to be a futile exercise.
[109]
In a nutshell, the individual applicants were dismissed without being
afforded any opportunity whatsoever
to make any representations in
line with the
audi alterem partem rule
. Equally so, the PSA
was also not afforded any opportunity to make representations on
behalf of its members before their dismissals
were confirmed.
Ultimately, the dismissals were indeed precipitous, thus making them
procedurally unfair.
[110]
The only
issue that remains in the light of the procedural unfairness as
established above is whether the individual applicants
are entitled
to any form of compensation. The provisions of section 194(1) of the
LRA dictates that any compensation to be awarded
must be just and
equitable in all circumstances. The factors to be considered in
awarding compensation are those as set out by
the Labour Appeal Court
in
Kemp
t/a Centralmed v Rawlins
[18]
.
In the end, the interests of both parties, the requirements of
fairness, and the circumstances of each case would dictate whether

compensation ought to be awarded or not.
[111]
In this case, a variety of factors are taken into account including
the nature of services the individual
applicants were required to
render, the nature of their gross conduct on 2 November 2014,
the impact of their conduct
on communities they were meant to serve,
and the fact that the conduct in question undermined the operations
of the Employer. These
factors are also considered within the overall
context of the conclusion the nature and extent of the deviation from
the procedural
requirements by the Employer was equally gross. In the
light of these considerations, and further having balanced the
interests
of both parties, compensation equal to three months’
salary to each of the individual applicants as a result of procedural

unfairness is deemed to be fair and equitable.
[112]
I have further had regard to the requirements of law and fairness in
regards to the issue of costs. The
first day of the trial proceedings
was not fully utilised in view of a postponement being sought on
account of the Employer’s
counsel not being initially
available. After the request was declined and following a ruling in
that regard, the Court had proceeded
to hear the matter in default.
By some miracle, Mr Dlamini, counsel for the Employer made an
appearance in the course of the hearing
of Mr. Matika’s
evidence. Following discussions in chambers, it was ultimately agreed
that the Employer should be afforded
an opportunity to oppose the
matter, resulting in my earlier ruling on a postponement being
rescinded. The day however was not
fully utilised, and fairness
dictates that the Employer should be burdened with the costs of the
first day of the trial proceedings.
Other than other costs agreed to
or tendered between the parties in the course of the trial
proceedings, there is no basis in law
or fairness to make any other
order in regards to costs.
[113]
In the circumstances, the following order is made;
Order:
1.
The dismissal of Messrs Vincent Tshikhudu, Morris Matika, Richard
Nkosi, Brian
Mabiletja, and Ms Sylvia Mmeti was substantively and
procedurally unfair.
2.
The Respondent is ordered to reinstate the above-mentioned
individuals in its
employ with retrospective effect, and on terms and
conditions no less favourable than those as applicable to their
employ on 4 November 2014.
3.
The dismissal of the other individual applicants as identified in
Annexure ‘A’
to the Applicants’ Statement of Case,
was substantively fair but procedurally unfair.
4.
The Respondent is ordered to pay to each of the individual applicants
as in (3)
above, compensation equal to three months’ salary
calculated at their rate of pay as applicable on 4 November 2014.
5.
The Respondent is ordered to pay the costs of the first day of the
trial proceedings
on 18 February 2019.
6.
No further order as to costs is made.
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants:  Adv. A. R. S Nxumalo, instructed by Thabang
Ntshebe Attorneys
For
the Respondent:
Adv. M. W Dlamini, instructed by the State Attorney, Johannesburg
[1]
Act
75 of 1997
[2]
Act 66 of 1996
[3]
Paragraph
25 of page 7 of the Statement of Case.
[4]
Page
71 of Bundle P
[5]
Page
51 -56 of Bundle ‘B’
[6]
At
para 33.3 of the Written Heads of Argument
[7]
[2013] 3 BLLR 225
(LAC); (2013) 34 ILJ 1138 (LAC) at para 35
[8]
Stokwe
v Member of the Executive Council: Department of Education, Eastern
Cape and Others
(2019)
40 ILJ 773 (CC);
2019 (4) BCLR 506
(CC);
[2019] 6 BLLR 524
(CC)
at
para 57
[9]
(2008) 29 ILJ 964 (LAC) para [32]
[10]
“
strike”
means
the partial or complete concerted refusal to work, or the
retardation of obstruction of work, by persons who are of have
been
employed by the same employer or by different employers, for the
purpose of remedying a grievance or resolving a
dispute
in respect of any matter of mutual interest between employer and
employee
,
and every reference to ― work in this definition includes
overtime work, whether it is voluntary or compulsory’
[11]
See
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
2003
(1) SA 11
(SCA) at para 5, where it was held;
‘
On
the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So too on a number of peripheral

areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual
disputes
of this nature may conveniently be summarised as follows. 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. As to
(a), 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. As to (b), 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. As to (c), 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. The hard
case, which will doubtless be the rare one, occurs when a court's
credibility findings compel it in one direction and its evaluation
of the general probabilities in another. The more convincing
the
former, the less convincing will be the latter. But when all factors
are equipoised probabilities prevail."
[12]
Page
5 of Bundle ‘D’
[13]
[2000]
5 BLLR 496 (LAC)
[14]
Ibid
at
para 73
[15]
At
para 53
[16]
Supra
at
para 96
[17]
(2000) 21 ILJ 2612 (LAC)
[18]
[2009] 11 BLLR 1027
(LAC); (2009) 30 ILJ 2677 (LAC) at para [20]
where it was held;
“
There
are many factors that are relevant to the question whether the court
should or should not order the employer to pay compensation.
It
would be both impractical as well as undesirable to attempt an
exhaustive list of such factors. However, some of the relevant

factors may be given. They are:
a)    the
nature of the reason for dismissal; where the reason for the
dismissal is one that renders the dismissal
automatically unfair
such as race, colour, union membership, that reason would count more
in favour of compensation being awarded
than would be the case with
a reason for dismissal that does not render the dismissal
automatically unfair; accordingly, it would
be more difficult to
interfere with the decision to award compensation in such case than
otherwise would be the case;
b)
whether the unfairness of the dismissal is on substantive or
procedural grounds or both substantive and procedural
grounds;
obviously it counts more in favour of awarding compensation as
against not awarding compensation at all that the dismissal
is both
substantively and procedurally unfair than is the case if it is only
substantively unfair, or, even lesser, if it is
only procedurally
unfair;
c)
in so far as the dismissal is procedurally unfair, the nature and
extent of the deviation from the
procedural requirements; the minor
the employer’s deviation from what was procedurally required,
the greater the chances
are that the court or arbitrator may
justifiably refuse to award compensation; obviously, the more
serious the employer’s
deviation from what was procedurally
required, the stronger the case is for the awarding of
compensation;
d)    in
so far as the reason for dismissal is misconduct, whether or not the
employee was guilty or innocent of
the misconduct; if he was guilty,
whether such misconduct was in the circumstances of the case not
sufficient to constitute a
fair reason for the dismissal;
e)    the
consequences to the parties if compensation is awarded and the
consequences to the parties if compensation
is not awarded;
f)
the need for the courts, generally speaking, to provide a remedy
where a wrong has been committed
against a party to litigation but
also the need to acknowledge that there are cases where no remedy
should be provided despite
a wrong having been committed even though
these should not be frequent.
g)    in
so far as the employee may have done something wrong which gave rise
to his dismissal but which has been
found not to have been
sufficient to warrant dismissal, the impact of such conduct of the
employee upon the employer or its operations
or business.
h)    any
conduct by either party that promotes or undermines any of the
objects of the Act, for example, effective
resolution of disputes.”