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IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D26/2021
Not Reportable
In the matter between:
FAWU OBO SIFISO ZULU AND 11 OTHERS Applicant
and
HILDA GROBLER N.O. First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
UNILEVER SOUTH AFRICA Third Respondent
Heard: 13 June 2024
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time for handing-down is deemed 1 2h00 on 4 April 2025
JUDGMENT
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ALLEN -YAMAN J
Introduction
[1] An arbitration award unfavourable to the applicants (referred to herein as
‘FAWU ’ and ‘the employees ’ where it is necessary to distinguish them) having been
published on 3 December 2020, the applicants applied to this court for its review.
This application was initiated outside the permissible six week time period and they
accordingly applied for condonation for the delay.
[2] The third respondent delivered answering affidavits in opposition to both the
applicant’s application for condonation for the late institution of their review
application as well as the review application itself, whilst the applicants delivered notices of objection to the late delivery of both the aforementioned affidavits, which resulted in the third respondent applying for condonation therefor.
[3] At the outset of the hearing the parties resolved these interlocutory issues as
follows :
- The third respondent withdrew its opposition to the late delivery of the
applicant’s review application; and
- The applicant withdrew its objection to the late delivery of the third
respondent’s answering affidavit in the review application.
[4] With this, the only interlocutory issue which remained to be determined on an
opposed basis was the application initiated by the applicant s for the reinstatement of
their review application, the record having been delivered outside of the permissible
period of 60 days, and not all the documentation necessary for the prosecution of the
review having been delivered within a period of one year from the date on which the review application had been launched. In the event that such an order is granted, the
applicant’s application for condonation for the late delivery of its review application is to be decided on an unopposed basis.
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Background
[5] On 3 December 2020 the first respondent issued an award in which she
dismissed the applicants’ referral, having found that the dismissal s of the employees
had been substantively and procedurally fair. The applicants were dissatisfied with
the outcome of the arbitration and, on 27 January 2021, initiated their review application.
[6] The second respondent delivered a Notice in terms of R7A( 2)(b) read with
R7A(3) on 9 February 2021 which led this court to transmit its Notice in terms of R7A(5) to the applicants one week later, on 16 February 2021. The applicants were
thereby notified that the first respondent ’s handwritten notes, a bundle of documents
and a mechanical recording w ere available for collection.
[7] It subsequently transpired the mechanical recording was not a complete
recording of the arbitration which had been conven ed over a number of sittings,
having commenced in February 2020 and having concluded on 26 November 2020.
The particularity of the issues experienced by the applicants in obtaining a complete
recording and the steps taken by them in that process will be considered hereafter.
The recordings which had not been provided by the second respondent were ultimately furnished to the applicants by the third respondent’s attorney in June 2022 which enabled the applicants to deliver the complete record by 18 July 2022.
[8] The delay in the delivery of the record resulted non- compliance by the
applicants with the provisions of clauses 11.2.2 and 11.2.7 of the Practice Manual,
which necessitated the initiation of the applicants’ application for reinstatement.
Analysis
[9] This court’s Notice in terms of Rule 7A(5) having been furnished to the
applicants on 16 February 2021, the record was required to have been delivered on or before 17 May 2021. Having been delivered on 18 July 2022, the length of the
delay was approximately fourteen months.
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[10] Notwithstanding that the applicants had appointed FAWU’s Johannesburg
branch as the address at which it required notices and proceedings to be delivered
to it in its Notice of Motion in the review application, this court transmitted its Notice
in terms of R7A(5) to the telefax number of its Durban branch, as was the second
respondent’s Notice in terms of R7A(2)(b) read with R7A(3) . Mr Sello Kuane, the
FAWU legal officer who was responsible for the prosecution of the review
application, explained that the transmission of the notification that the record had
been filed with this court to Mr Siphiwe Dlomo, FAWU’s provincial secretary for
KwaZulu -Natal , caused the first of the del ays as Mr Dlomo had been wholly
uninvolved in the review application or, for that matter, any other Labour Court
litigation.
[11] Not having received any notification that the record had been made available
by March 2021, Mr Kuane attempted to contact FAWU’s organiser at the third
respondent , Ms Abigail Diko . He was then unable to reach her as she had been
placed on incapacity leave. On 29 March 2021 he transmitted an email to the second
respondent to which a letter was attached in which the second respondent was
reminded of the need on its part to deliver the record. He received no response to his
email and so attempted thereafter to reach an official of the second respondent telephonically, which attempts were unsuccessful until the middle of April 2021. He
was then advised by one of the second respondent’s case management officers, Ms Kirsty Payne, that the second respondent did not have the electronic record of the proceedings , however s he advised him that she would contact the first respondent to
locate it.
[12] This she must have done for, on 21 April 2021, the first respondent addressed
an email to both Mr Kuane and the third respondent’s attorney, Mr Brian Denny, in which she requested their assistance regarding the recordings of the arbitration
proceedings ,
‘Could you perhaps assist by providing me with copies of the recordings in KNDB10415 -19 on the following days: 27 – 30 October 2020?
I made the recordings on my cell phone at the time. Unfortunately I did not
keep a copy of the recordings for myself in a separate file, and when my cell
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phone was damaged beyond repair in December 2020, I lost those
recordings.
I would appreciate it if you are able to assist by sending me the requested recordings via WeTransfer to my email address.’
[13] Mr Kuane had not himself made any recordings but, on the basis that Mr
Denny had been able to provide transcriptions of the proceedings throughout the arbitration, believed that Mr Denny would be able to assist the first respondent. In the
circumstances, a short while later he requested a local organiser, Mr Thembinkosi
Ngubo, to contact the second respondent to establish whether the further recordings had been made available. Mr Ngubo subsequently advised him that he had been
informed that recordings had been filed with the Labour Court. Upon request by Mr
Kuane, Mr Ngubo attended at the Labour Court and uplifted the record which had been made available. This was conveyed to Mr Kuane who requested Mr Ngubo to
convey the recording to Ms Diko, in order that she could facilitate the transcription thereof. That she was not then back at work, and that Mr Ngubo had then been
unable to comply with Mr Kuane’s request, was not conveyed to him.
[14] One of the employees, Mr Phumlani Ndumo, contacted Mr Kuane to ascertain
the status of the review application in May 2021. Mr Kuane requested he direct his
enquiry to Ms Diko, at FAWU’s Durban branch. Ms Diko, then wholly unaware of the
matter, requested Mr Ndumo to revert back to Mr Kuane, which he did. It was only
then that Mr Ngubo informed Mr Kuane that he had been unable to ask Ms Diko attend to the transcription of the recording which he had uplifted, as she had been on
leave at the time, and that he had left the recording with an administrator. It was also
then that Mr Kuane became aware that no steps had been taken to have the recordings transcribed. He issued an instruction to Ms Diko to send the recording to
Sneller as a matter of urgency, to have the recording transcribed, in response to which he was informed that the recording had since been lost.
[15] This led Mr Kuane to requesting Mr Ndumo to attend at the offices of the
second respondent to download the recordings on a memory stick and to take the recording directly to Sneller, which he did. A quotation was provided by Sneller on 2
June 2021, and payment was approved by FAWU’s Head Office on 25 June 2021.
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Transcription of the recording was completed by 2 August 2021 and transmitted to
Mr Dlomo, who in turn forwarded it to Mr Kuane on 3 August 2021. He did not
immediately have the capacity to consider the transcriptions, but was able to do so towards the end of August 2021.
[16] Upon consideration of that which had been provided to him, he realised that
the transcription was incomplete, and he requested Mr Dlomo to make enquiries
from Sneller as to the cause thereof. The email transmitted by Mr Dlomo to Sneller
on 31 August 2021 did not appear to convey Mr Kuane’s request clearly. He stated,
‘Kindly receive our humble request for the first copy of this matter which you have transcribed for us last year not the arbitration award you made two months ago. Our colleague from legal department have missed placed it. You
may have emailed to both M […] and or myself. We still have the recording of
the same and only the transcribed document that we don’t have.’
What previous transcription was then being referred to is unknown, however the response from Sneller the following day indicated that no transcriptions other than those which had recently been completed had ever been done.
[17] After a number of attempts by Mr Ndumo, he was given what he was led by
the second respondent to believe were further recordings on 18 September 2021. By
21 September 2021 these had been delivered to FAWU’s Durban branch and one of its employees, Mr Mpilo Makhathini was dispatched to deliver the recordings to Sneller. En transit , Mr Dlomo addressed an email to Sneller alerting it to the
impending arrival of the recordings, and requesting a quotation for payment.
Subsequent consideration thereof by Sneller revealed that the most recent recordings which had been provided were those which had already been transcribed.
This caused Mr Kuane to believe that Mr Dlomo must have conveyed the incorrect recording to Sneller, and his request that Mr Dlomo ensure that a complete set of recordings be sent to Sneller. Mr Ndumo went again to Sneller and provided it with
that which he had obtained from the second respondent. On 3 December 2021 Mr
Dlomo once again requested Sneller to provide a quotation which was again met with the response by Sneller that the recordings provided had already been
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transcribed. It was then that Mr Kuane discovered that the recordings provided by
the second respondent remained incomplete.
[18] In consideration of the efforts which had by then been expended by FAWU
and the employee, Mr Ndumo, to obtain the recordings, and the failure on the part of the second respondent to have provided the complete recordings, he then formed the view that a reconstruction exercise would be necessary and, to that end, he would be required to travel to Durban.
[19] No further attempts were made by Mr Kuane, or anyone else in the employ of
FAWU, to secure the outstanding portion of the record until May the following year.
In February 2022 FAWU’s Deputy General Secretary requested all its Provincial Secretaries to provide the details of all outstanding Labour Court matters to the National Office . Mr Dlomo’s response included reference to the present matter and
the need on the part of the local office for assistance.
[20] In April 2022 that Mr Kuane and Mr Dlomo met with a number of the
applicants in Durban where the status of the review application was explained to them, and they were advised that a reconstruction exercise was required to be undertaken in order to further prosecute the review application.
[21] Mr Kuane expressed this belief to Mr Denny when he encountered him in
Durban whilst attending to another matter in the week of 23 May 2022. It was this
encounter which led to the applicants being able to deliver the complete record, for it was subsequently established that Mr Denny did, indeed, have either or both the recordings and/or the transcriptions of those portions of the arbitration which the applicants had not been able to obtain from the second respondent. Mr Kuane
obtained permission to instruct attorneys in the matter, pursuant to which the applicants’ attorneys liaised with Mr Denny during the month of June 2022 who provided the applicants with those portions of the record which had been missing, thereby enabling them to deliver the complete record by 18 July 2022.
[22] Insofar as their prospects of success are concerned, the applicants raised a
number of issues which were intended to be addressed in the review application.
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[23] The dismissal of the applicants had occurred as a result of their participation
in a protected strike. Pursuant to a picketing agreement having been concluded,
conduct by certain of the third respondent’s striking workers led to it having
approached this court on 17 February 2019 to interdict such conduct. An order was
obtained that day, in terms of which FAWU and the striking workers were interdicted from perpetuating certain violent conduct in breach of the picketing rules. Despite the
interdict, the violent actions ensued the following day. The employees were
dismissed pursuant to a disciplinary enquiry which was subsequently convened, the allegations of misconduct having been that they had each participated in having thrown glass bottles and/or stones at security officials and third party contractors, and/or having rolled rocks onto the road outside the third respondent’s premises in order to impede access.
[24] The first respondent having found each of their dismissals to have been
substantively fair, it was t he applicants’ case that she had committed a number of
gross irregularities in the arbitration proceedings. These issues were asserted to
have the likely result of the award being reviewed and corrected in due course.
These concerned (1) the first respondent’s conclusion that the employees had made
material concessions from which it could be discerned that they had each committed the misconduct in question; (2) her acceptance that an employee, Mr Powerman
Ngcobo, had been positively identified by the third respondent and had faced disciplinary action, despite the fact that it had been only Mr Denny’s assertion to this effect; and (3) her failure to have taken into account certain of the applicants’
evidence that a number of other employees had been identifiable as having committed misconduct, yet were not disciplined by the third respondent. The third
respondent, on the other hand, denied that the award was reviewable.
[25] Self-evidently, the degree of delay is significant. It is also apparent from
explanation provided that the fault therefor lies with both the second respondent and a number of FAWU’s officials.
[26] The details of the delays in the production of the record have been set out
above and will not be repeated. Considered holistically, the first period which
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covered almost the entirety of 2021 was as a result of the failure on the part of the
second respondent to have unequivocally advised the applicants that a portion of the record was unavailable. When it became apparent to the first respondent and
officials of the second respondent that certain of the recordings had become
irrevocably lost, the only step taken by them was to send an email to the parties in
which a request for assistance was conveyed. When that was not forthcoming, the
fact of the i nability on the part of the first and second respondent s to be of any
further assistance was left to the applicants to determine on their own.
[27] Mr Kuane faced, in the course of 2021, the obstacle of having to rely on
individuals who were themselves not familiar with Labour Court processes to assist him. The result of this was that the assistance rendered by the local organisers was
haphazard and not of the standard which he may have been able to have expected had he been able to rely upon another legal officer, locally placed. It is evident that
miscommunications and misunderstandings marred his ability to achieve the end he
sought to achieve, being the production of the complete record.
[28] In this period, from January 2021 until the beginning of December 2021, it is
clear that Mr Kuane made consistent efforts, within his own abilities in consideration of the exceptionally demanding workload under which he laboured, to obtain the records. Given the challenges which he faced, he may be forgiven for the periods of
time in that year in which his attempts to secure the record were left in temporary abeyance.
[29] It does appear, however, that by the beginning of December 2021 his belief
then formed that a reconstruction exercise would be necessary impeded him from
taking any further steps in the matter. Insofar as the second period is concerned, it is
evident that he did nothing to further the matter for a period of almost six months until May 2022. Save for a singular meeting which took place between FAWU
officials and the employees, t his period of time was wholly unexplained.
[30] It was only a chance encounter with Mr Denny, and Mr Denny’s willing co-
operation which ultimately led to the production of the record, rather than any pro-active steps taken by Mr Kuane. It may be noted, however, that despite his failure to
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have done anything in the furtherance of the review application in that six month
period, it was he who raised the issue with Mr Denny, and express ed the belief that a
reconstruction exercise w as necessary . This was itself demonstrative of:
- the bona fides of his belief previously formed that Mr Denny did not have the
further recordings which the first respondent had previously sought;
- the bona fides of his belief that a reconstruction exercise would be
necessary; and
- the fact that the review application remained one which he, as a
representative of FAWU, was intent on pursuing.
[31] Despite the deficiencies in the manner in which the review application was
dealt with by FAWU ’s various officials, it is nonetheless clear that the employees
themselves had no part to play in the delay. It is also apparent that they took an
active interest in the review, their conduct having evinced a continued interest in the
furtherance of the matter . Having made enquiries concerning the status of the
review in May 2021, Mr Ndumo himself took an active part in efforts to obtain the recordings, having attended at the offices of both the second respondent and Sneller
on at least two occasions. Other employees made regular enquiries concerning the
progress of their claim. The last of the interactions between FAWU officials and the
employees took place only one month before Mr Kuane discovered that the
recordings could potentially be obtained.
[32] Whilst there may be circumstances in which the negligence of a litigant’s
representative may be imputed to the litigant itself, this court can conceive of no
reason to do so in the present instance.
[33] As to the issue of the applicants’ prospects of success, t his court is not
required to find in reinstatement applications that these are certain . The applicants
were required to set out facts which, if established in due course, would entitle them
to the relief which they seek in the review application. In consideration of the parties’
respective affidavits read with the award itself, the applicants’ various challenges to the award are compelling.
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[34] Firstly, the applicants were correct in their assertion that the third respondent
bore the onus to establish the fairness of the employees’ dismissals. Despite this,
the singular basis upon which the first respondent appears to have concluded that all
but four of the employees had committed the acts of misconduct for which they were
dismissed was by reason of certain concessions which she found to have been
made by the employees themselves. Any concessions which were made by the
employees that they had taken the actions described in the allegations of misconduct
were required to have been assessed in relation to the categorisation of the actions
by the third respondent as having been ‘wrongful and unlawful’ . It was alleged by the
applicants that, where concessions had been made, it had been their further
evidence that their conduct had been the result of provocation and / or self -defence.
If this is correct, then it would appear that in having found certain of the employees guilty on the basis of their own concessions alone, without contemporaneously
having considered their defences of lawfulness and / or justification, the first
respondent’s finding may be susceptible to review and correct ion.
[35] The further issue complained of by the applicants was that of inconsistency in
the application of discipline, an issue in respect of which the first respondent was alleged to have misdirected herself in relation to her treatment of the evidence relevant thereto.
[36] The first aspect of inconsistency concerned the manner in which the third
respondent had treated another of its employees, Mr Powerman Ngcobo, it having been the applicants’ case that he had been clearly identifiable in the video footage
relied upon by the third respondent and appeared to have participated in the commission of the very same misconduct for which they had been dismissed. The
first respondent’s rejection of the argument that there had been any inconsistency by the third respondent in relation to Mr Ngcobo appears from the award to have been predicated, at least in part, on the reliance placed by her on the statement made by the third respondent’s attorney that Mr Ngcobo had, subsequent to the dismissal of the employees, been positively identified and had been disciplined upon his return to work from paternity leave. This being the case the applicants’ assertion that the first
respondent had relied on a statement not made under oath in having rejected their
claim of inconsistency may well be correct.
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[37] Furthermore, it appears from the award that although a number of the third
respondent’s other employees could be seen participating in the misconduct in question, they were not disciplined for the reason that they had not been identified by
the third respondent. Also f rom the award, the third respondent’s evidence
concerning the i dentification of the employees who were said to have participated in
the misconduc t was given by Mr Ruan Bezuidenhout who,
‘… testified that he did not know any of the applicants and relied on the
assistance and guidance from the respondent’s managers to put names to the applicants who he had identified committing the alleged misconduct.’
[38] That portion of the applicants’ evidence recorded in the award concerning this
aspect evinced that one of the employees, Mr Jabulani Ngcobo testified to the effect that the people in the video footage were clearly visible and, this being the case, they were each perfectly capable of having been identified by the self -same person who
had identified the employees who had been dismissed. The individual or individuals
who had identified the employees, and who relayed this information to Mr
Bezuidenhout, appears not to have testified at the arbitration. Without this evidence,
the first respondent’s conclusion that there had been no inconsistency was based on the evidence of Mr Bezuidenhout who himself had personally been unable to identify any of the employees without the assistance of the third respondent’s management ,
or give any direct evidence concerning the alleged inability on the part of the third respondent to have identified the remaining workers . This finding may also be
reviewable.
[39] The third respondent did not dispute that the employees would be prejudiced
in the event that the review application is not reinstated. In the event that the award
is, indeed, capable of being reviewed and set aside, to refuse to reinstate the application would result in employees who have potentially been unfairly dismissed being denied the opportunity to correct a potential wrong. Conversely, the third
respondent’s c laim that it would sustain prejudice in the event of the converse order
being granted was no more than the statement of such a conclusion without the
assertion of any fact s in substantiation thereof .
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[40] It is clear that both the application to review the award and the reinstatement
application are bona fide attempts to protect the rights of dismissed employees. In
consideration of the factors dealt with herein, this court finds that the interests of
justice require that the review application be reinstated, and that the applicants be
granted condonation for the late delivery of the record.
[41] Insofar as condonation for the late initiation of their review application i s
concerned, in light of :
- the fact that the period of delay was very short, the application having
been launched only 9 days outside the time period allowed;
- the conclusions which have been reached herein concerning the
applicants’ prospects of success and the question of potential prejudice to each of the parties; and
- the withdrawal of the third respondent’s opposition thereto,
there is no reason for this court not to exercise its discretion in favour of granting the applicants the relief they sought.
Costs
[42] The parties were in agreement that regardless of the result of this application,
in view of the ongoing relationship between FAWU and the third respondent, each
party would be responsible for the payment of their own costs.
Order
1. The applicants’ application to review the arbitration award under case
number KNDB 10415- 19 dated 3 December 2020 is hereby reinstated.
2. The applicants are granted condonation for the late delivery of the
record under case number KNDB 10415- 19.
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3. The applicants are granted condonation for the late institution of their
application to review the arbitration award under case number KNDB 10415-
19 dated 3 December 2020.
4. Each party is directed to pay its own costs.
K Allen -Yaman
Judge of the Labour Court of South Africa
Appearances
Applicant:
Ms P Naidoo, Cheadle Thompson and Haysom Inc.
Respondent:
Ms T Moodley, Norton Rose Fulbright South Africa Inc