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[2025] ZALCCT 2
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Association of Mineworkers and Construction Workers Union v Bargaining Council for Civil Engineering Industry (C170/2022) [2025] ZALCCT 2; (2025) 46 ILJ 1339 (LC) (8 January 2025)
FLYNOTES:
LABOUR – Dismissal –
Incitement
–
Company
granted exemption for increases and bonuses – Employee’s
actions caused disruption and workforce not commencing
work –
Failing to inform workers of true state of affairs –
Arbitrator found dismissal substantively and procedurally
fair –
Trying to promote unprotected industrial action was serious
misconduct – Such action plainly contrary
to employer’s
best interests – Application to condone late application for
review dismissed – Review application
dismissed.
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Of interest to other
judges
Case
no: C 170/2022
In
the matter between:
ASSOCIATION
OF MINEWORKERS AND CONSTRUCTION WORKERS UNION (“AMCU”)
First
Applicant
and
THE BARGAINING
COUNCIL FOR THE CIVIL ENGINEERING INDUSTRY (“BCCEI”)
First Respondent
ELVISO
ADAMS (
N.O.
)
Second Respondent
POWER
CONSTRUCTION (PTY) LTD
Third
Respondent
Heard
:
28 March 2024
Delivered
:
8 January 2025
Summary:
(Condonation application for late
filing of review application – delay excessive –
Applicant proceeding at its own pace
without any regard being had to
the need to expedite the application until right at the end of the
process - Explanation not justifying
delay – Sufficient reason
to dismiss the application on that basis alone – Condonation is
not a means to license prolonged
internal decision making processes -
Even if prospects of success considered – no basis for
believing that the fundamental
reason for the applicant’s
dismissal would be set aside or the sanction of dismissal altered)
JUDGMENT
LAGRANGE, J
Introduction
[1]
This is an application to review and set aside an arbitration award
in which the arbitrator upheld the fairness of arbitrator
found that
the individual applicant’s dismissal by the third respondent,
Power Construction (Pty) Ltd (‘Power Construction’)
was
substantively and procedurally fair.
[2]
The review application was filed outside the six-week time period
following the issuing of the award and the applicant
has applied for
condonation for the late filing as well.
Condonation
Delay and explanation
[3]
The award was issued on 14 December 2022 and the review application
was served on 14 April 2022, about 11 weeks late.
It should have been
filed on 25 January 2022. The review took more than three times the
permissible time to be launched and this
is not a ‘slight time
delay’ as stated in the founding affidavit. It is excessive.
[4]
The explanation provided for the delay may be summarised thus:
4.1 The
arbitration award was received by the union’s regional
organiser, Mr M Mashologu (‘Mahsologu’),
on 15 December
2021 but only came to his attention on 17 January 2022 when he
returned from leave;
4.2
Mashologu contacted Simayile about the award on 18 January 2022;
4.3
Mashologu arranged to seem him on 28 January 2022. This was the
earliest opportunity for them to meet as Mashologu
had other CCMA
arbitrations and meetings he had to attend to on his return to work.
Simayile was advised that the consent of the
National Executive
Committee (“the NEC”) was required to take the matter on
review, if the union’s legal department
was of the view there
were prospects of success;
4.4 On
31 January 2022 it was referred to an ‘extremely busy
practitioner’ for an opinion, who delivered
his opinion around
11 February, which effectively said that a review application had
prospects of success
4.5 The
NEC was “involved in a number of high profile litigation
matters” and the next meeting after
11 February 2022 was in the
middle of March 2022;
4.6 The
NEC which convened in March also had a number of cases to discuss and
wanted a more comprehensive opinion
on the prospects of success;
4.7 A
further detailed opinion was required and made available to the NEC
on 24 March 2022, but could only be
considered at the next meeting in
Apil;
4.8 The
NEC met again in the first week of April and the General Secretary
finally instructed that the review
could proceed. The final
instruction was issued on 11 April and AMCU’s attorneys of
record then drafted the application “
as a matter of
urgency”
, serving the application on 14 April 2022.
[5]
Ignoring the initial
delay when the union offices were closed, the rest of the delay is
attributed to internal decision making processes
of the union and the
delays of a busy legal practice. The explanation may be paraphrased
as follows “
We
filed the application when we were ready to, and it took us longer
than it should have because all these internal steps were
necessary
and the lawyer involved was very busy on other important matters.
”
.
Not once in the explanation is there any evidence that anyone
involved gave a moment’s thought to the six-week time frame,
except when the instruction to proceed with the review had been
issued on 11 April 2022. Only then, at the last step, did urgency
enter the picture. Yet, all of those involved, except perhaps
Simayile, must have been aware of the six-week time frame and would
have realised the matter was out of time. Even so, it is inexplicable
why Mashologu would not have explained to him the need for
urgency
when they met on 28 January. It is apposite to cite what this court
said in
Independent
Municipal & Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council & others
[1]
:
“
(T)he mere listing
of significant events which took place during the period in question
without an explanation for the time that
lapsed between these events
does not place a court in a position properly to assess the
explanation for the delay. This amounts
to nothing more than a
recordal of the dates relevant to the processing of a dispute or
application, as the case may be”.
[2]
[6]
The only reasonable
inference to draw from the narrative is that the need to file the
application by the end of the six-week period
was simply disregarded
as an issue until the very last stage. It is well established that a
party seeking condonation must explain
the whole delay. However,
merely because the union can point out the steps that were taken
before it was in a position to launch
the application that does not,
in and of itself, provide a justification for being late. The
explanation is unsatisfactory because
it does not make clear why
there was absolutely no attempt made to expedite matters until a
couple of days before the application
was launched. It is well
established that unions and employers cannot rely on their own
internal procedures as a justification
for delay
[3]
.
Employers and unions need to ensure their internal decision making
procedures are adapted so they can act within the six-week
time-frame
of s 145(1). Parties must adapt their decision making procedures to
the statute: it is not for them to refashion the
time periods set
down in law, to suit their own time tables by abusing the condonation
process. It is important also to remember
that when filing the
founding papers in a review application an applicant party is not
constrained by the grounds of review pleaded
there, because those
grounds can completely altered when they file their supplementary
affidavit. Consequently, an applicant is
not taking any risk, which
could prejudice their case, when pleading the preliminary grounds of
review in the founding application.
Nothing prevents a party from
deciding to provisionally file a review application because they are
free to abandon or modify it.
In this instance it is interesting to
note that it took only one day to file the application after
authorisation to proceed was
given.
[7]
I note also that there was no attempt made to approach the employer
to agree to an extension of time for filing the application
late and
not to oppose the condonation application.
[8]
I believe that the failure to provide a justifiable reason for being
so dilatory in prosecuting the review, is sufficient
reason to
dismiss the condonation application. Notwithstanding this, is there
any reason, why it should nonetheless be allowed
to proceed? In this
regard, I will consider if the prospects of success in the review
might redeem the provisional view that the
condonation application
should be dismissed.
Prospects of success
[9]
In October 2020 the applicant, Mr E Simayile (‘Simayile’)
was subjected to a disciplinary enquiry and found
to have committed
the following misconduct, which led to his dismissal:
“
Allegation 1:
“Incitement – the action of provoking unlawful behaviour
or urging someone to behave unlawfully. On the
1st of October 2020,
you approached the CLO (Andile Dlali) and instructed him that the
site (Farm 694) will be downing tools. Subsequently,
you action /
instruction caused disruption on the site and resulted in the entire
workforce not commencing work”;
Allegation 3: “Negligence
– failure to comply with the standard of care that would be
exercised by a reasonable person.
You reported to (on 1st October
2020) site Farm 694 and sparked employees with misleading facts (such
as making demands that were
previously addressed in a meeting you
were present in at Martin Naude’s site), thus committing gross
negligence of information
shared to you on the 30th of September
2020”.
[10]
Simayile was employed during October 1999. At the time of his
dismissal, he was employed as an L2 tractor driver / machine
operator. Owing to the nature of his job he was not permanently
attached to a particular site but moved from one site to another
according to the company’s needs.
[11]
On 07 September 2020, Power Construction was granted an exemption by
the Civil Engineering Bargaining Council in respect
of increases and
bonuses due for 2020. The employees were informed of the exemption on
14 September 2020. Power Construction maintained
that the union had
agreed to the exemption in the course of retrenchment consultations
as a way of saving about 30 jobs. This caused
dissatisfaction amongst
the affected workers and at two sites they demanded explanations why
they were being deprived of part of
what was due to them. The task of
providing an explanation fell to Mr P Zwanga (‘Zwanga’),
an HR officer, who had to
address workers at different sites who were
demanding clarity. He had to do this at three different sites on 29
and 30 September
and 30 October.
[12]
One such meeting took place on 30 September 2020. Employees at its
Faure Drive site were querying the non-payment of
increases and
bonuses. Subsequently, a meeting was held at the site the same day.
Zwanga addressed employees. Simayile was among
the employees present
in that meeting.
[13]
At the meeting, workers demanded to see a document signed by the
union in which it had confirmed it had consented to
the exemption. It
appears that there was no such document available. Simayile admitted
he had participated in the meeting and had
asked Zangwa to call his
supervisor because he could not provide a satisfactory explanation.
The arbitrator found that Simayile
sought to distance himself from
what transpired at that meeting because it meant he already knew of
the explanation for bonuses
and salary increases not being paid
before he attended the meeting the following day at the Faure Drive
site.
[14]
It is evident from the transcript that the reason for Zwanga having
to address employees at the meeting on 30 September
2020, was to
address their dissatisfaction with the forfeiture of increases and
bonuses in consequence of the exemption flowing
from the retrenchment
consultations and their unhappiness with management’s inability
to produce a document confirming that
the union had agreed to the
exemption. Simayile admitted to participating in the meeting and
suggested Zangwa ought to have brought
other more senior staff with
him to explain the issue in detail because he was not able to do so.
Although he agreed that Zwanga
had said the union was still busy
handling the matter, he did not agree that Zwanga had told workers
that they must use their union
representatives if they wanted to
raise any issues. He claimed that the meeting was chaotic and nothing
was resolved. Although
it was not put to management’s
witnesses, when Simayile testified he denied that Zwanga had
explained that bonuses and increments
were being withheld because of
the exemption. The arbitrator found that he tried to distance himself
from what had transpired at
that meeting because it meant he already
knew of the explanation for bonuses and salary increases not being
paid before he attended
the meeting at the other site on 1 October
2020.
[15]
It was common cause that Simayile came to the Farm 694 site (‘the
farm site’) on 1 October, before work was
due to commence at
07h30. It is also common cause that he entered the office of the
local community liaison officers (‘CLOs’)
and addressed,
Mr A Dlali (‘Dlali’), the CLO of African workers. What
Simayile told him is in dispute. Dlali said that
Simayile told him
there was a meeting outside that he wanted the local workers to
attend. Simayile explained to him that there
would be no work that
day and it would be ‘tools down’ at all Power
Construction sites that day because of the salary
and bonus issue.
His evidence was corroborated by Mr S Zonke, who was present in the
CLO office when Simayile spoke to Dlali. Local
workers were contract
workers employed from the surrounding community. Dlali believed that
Simayile had approached him because
the CLOs oversaw the local
employees and he wanted the go ahead from himself to get the local
employees co-operation.
[16]
Simayile’s version was that when he arrived shortly before
07h30 he saw workers standing around and he approached
them because
he did not know what was happening. As soon as he appeared somebody
“screamed” and asked him to go and
call the CLO because
they wanted him to be present at the meeting. Under cross-examination
he said that it was a group of people
at the front of the gathering
who asked him to do this. Because he was asked he went to summons the
CLO, even though he did not
know the reason why workers wanted the
CLO. He claimed he conveyed this to Dlali, and told him that he also
did not know what was
going to be said but he was also going there to
listen. He claimed it was only after he spoke to Dlali and went to
the gathering
that he learnt that the workers had gathered because of
the bonus and salary increases.
[17]
However, Dlali denied Simayile had claimed to be merely conveying a
message, and because he said that tools would be
downed at all Power
Construction sites, he understood what Simayile said was not a
request but an instruction to him that the local
workers should join
the meeting.
[18]
It was not in contention that after Simayile spoke to Dlali, Dlali
went to the office of the site manager, Mr J Van Zyl
(‘Van
Zyl’) to report what Simayile had told him. Dlali said he only
went to Van Zyl because Simayile spoke of there
being a ‘tools
down’. Van Zyl had testified that Dlali came and told him that
Simayile had said that workers wee downing
tools because of the bonus
and salary issue. He testified that Van Zyl instructed him to go and
tell the local workers to leave
the meeting, while he was busy
phoning head office. Then Van Zyl followed him to where the local
employees were gathered and addressed
them himself. He told them they
were not involved in the issue of the bonuses and increases and they
should go back to work and
they would not be threatened by anyone.
The local employees then left the meeting. Van Zyl then addressed the
permanent employees
who remained behind, telling them that what they
were doing was illegal and that Simayile was aware that the
discussions on the
issue were still in progress. Their response was
they were not ‘toyi toying’, to which Van Zyl responded
that if they
not on strike why were they still gathered at 07h45 when
they should have started work at 07h30. The permanent workers then
left
the meeting leaving only Simayile, Van Zyl and Dlali. This
version was not seriously challenged but when Simayile testified he
gave the impression that Van Zyl left after workers refused to
disperse and, at that point, they spoke with each other and decided
to go back to work and that one of them should go and tell Van Zyl
that they were going to work. This was not put to Power
Construction’s
witnesses.
Arbitrator’s main
findings
[19]
The arbitrator’s main findings are set out in summary below.
[20]
The essence of incitement entailed attempting to influence another to
commit a crime or misconduct, which could be done
in a variety of
ways from a mere suggestion to an exhortation.
[21]
Simayile was wrong to contend that there were no issues dealt with at
the meeting on 30 September 2020. Rather, the issues
plainly related
to the exemption flowing from the agreement during the s 189A process
and inability of management to show a document
that the union had
agreed to the exemption, which entailed forfeiture of bonuses and
salary increases. Simayile admitted to participating
in the meeting
and asking Zangwa to call his supervisor because he could not give
sufficient explanation. The arbitrator found
that Simayile sought to
distance himself from what transpired at that meeting because his
knowledge of that meeting meant he already
knew of the explanation
for bonuses and salary increases not being paid before he attended
the meeting at the farm site the following
day.
[22]
On 1 October the workers at the farm site, some of whom including
Simayile had also been at the meeting at the Faure
Drive site, were
still unhappy because they had not heard what they had wanted to hear
from Zangwa. It was unlikely Simayile did
not know why they had
gathered that day. It was also improbable he would simply have
allowed himself to be ordered to go and call
the CLO when he was not
a regular employee on the site and was a long serving employee. He
found that it was “…
improbable that the applicant
was just an uninformed late arrival who was asked by nameless
employee to go and call the CLO whose
name he did not even know. He
was fully aware of the issues underlying the gathering of unhappy
workers du to the salary increase
and bonus issues being discussed in
the previous day’s meeting.”
[23]
On the question of incitement, Dlali and Zonke were clear that he
wanted local workers to join the meeting and reasons
why there would
be a tools down. At the very least he said there would be no work
because it would be tools down at all Power sites.
In relation to the
conflicting version of what transpired in the CLO’s office, the
arbitrator found Dlali’s evidence
to be more credible than
Simayile’s.
[24]
Simayile’s aim was to draw in the support of local labour for
the permanent workers’ cause. The local labour
force was a
substantial part of the workforce and the permanent workers could not
work if they were not and
vice-versa
. Work did not start at
07h30 when it should have.
[25]
Simayile was not a passive onlooker at the meeting, but it could not
be said he incited the permanent workers because
he answered Zwanga’s
questions in the meeting. His interaction with the CLO showed there
were enough indications he played
a bigger role than that of a mere
interpreter at the second meeting. He found that, given Simayile’s
standing based on his
long service, his statements about ‘tools
down’ in the CLO’s office was tantamount to intimidation.
[26]
Simayile did not act in the best interest of the company, by not
clarifying the situation based on what he already knew
from the
previous day about the reasons for the lack of bonuses and increases.
Although this was insufficient to justify his dismissal
his failure
to act in the employer’s best interest was problematic for the
employment relationship.
[27]
The arbitrator concluded that Simayile had at least incited local
workers to engage in an ‘attempted tools-down’
Whether
there actually was a ‘tools down’ did not matter because
his action amounted to incitement of fellow employees
to commit
misconduct through such intimidating tactics of targeting vulnerable
local contract workers. He acted contrary to the
employer’s
best interests due to his “
failure to inform employees about
the true state of affairs as one would have expected from a loyal
employee.”
[28]
In determining if the sanction of dismissal was appropriate, he
considered the ramifications of the stoppage such as
penalties the
Power Construction could incur for failing to meet its commitments.
He noted that his intervention had prompted one
CLO to write a letter
of complaint to the local ward counsellor. Simayile was unaccountable
and his actions negatively impacted,
or could have, on the firm’s
relationship with the community. As a long serving employee his
conduct was rresponsible. The
misconduct was gross and dismissal as a
sanction accorded with the disciplinary code.
[29]
On procedural fairness he found that it was Simayile’s
responsibility to arrange for his representation in the
disciplinary
enquiry and he did not. Nor did he seek a postponement of the enquiry
if he felt he had insufficient time to prepare
for it. There was no
evidence of bias on the chairperson’s part.
[30]
It was unlikely he would simply have allowed himself to be ordered to
go and call the CLO when he was not a regular employee
on the site
and was a long serving employee. In respect of what happened at the
CLO’s office Simayile was not uninformed
employee who was
merely asked to call the CLO to the gathering.
[31]
On the question of incitement, Dlali and Zonke were clear that he
wanted local workers to join the meeting and gave the
reasons why
there would be a tools down (which incidentally also shows he knew
exactly what the meeting was about?). At the very
least he said there
would be no work because it would be tools down at all Power sites.
[32]
The arbitrator found Dlali’s evidence to be more credible than
Simayile’s.
[33]
Simayile’s aim was to draw I support of local labour in the
permanent workers’ cause. They were a substantial
part of the
workforce and the permanent workers could not work if they werent’
and
vice-versa
. Workers did not commence work at 07h30.
[34]
He was not a passive onlooker at the meeting but it could not be said
he incited the permanent workers because he answered
Van Zyl’s
questions. His role with the CLO showed there were enough indications
he was playing a bigger role than that of
a mere interpreter. He
found that given his long service standing, his statements about
tools down in the CLO’s office amounted
to intimidation.
[35]
Simayile did not act in the best interest of the company by not
rectifying the situation based on what he learnt the
previous day
about the reasons for the lack of bonuses and increases. Although
this was insufficient to justify his dismissal his
failure to act in
the employer’s best interest was problematic for the employment
relationship.
[36]
On the question of an appropriate sanction, he considered that the
potential ramifications of the stoppage made Simayile’s
misconduct gross and disciplinary code listed dismissal as a sanction
for incitement. He was unaccountable and his actions negatively
impacted or could have on the firm’s relationship with the
community. As a long-serving employee he had behaved irresponsibly.
[37]
On the question of procedural fairness he found that it was
Simayile’s responsibility to arrange for his representation
and
he did not. In any event, he did not ask for a postponement. The
arbitrator found there was no evidence of bias.
Grounds of review
[38]
AMCU, on behalf of Simayile, raised a number of grounds or review
essentially attacking the rationality of the arbitrator’s
reasoning and findings. In essence it was argued that there was no
reasonable basis on which the arbitrator could have found him
guilty
of either charge and none of the conduct that could be established
implied he was guilty of any misconduct.
[39]
More particularly, it argued that there was no evidence to contradict
his version that he was asked by some of the workers
assembled before
work at the Faure road site to call the CLO to attend the meeting and
that was the only role he played apart from
acting as an interpreter
for one of the employee representatives when Van Zyl addressed them.
[40]
There was no basis in law for imputing a duty on him to inform
workers at the second meeting, that the issues they were
raising had
already been dealt with at the meeting on 30 September.
[41]
The arbitrator unjustifiably ignored the fact that Simayile had been
treated most unfairly in that other employees who
had been present at
the meeting on 30 September had not been charged with negligence for
not trying to persuade other employees
not participate in a stoppage
on 1 October.
[42]
The arbitrator failed to appreciate that it was common cause that
local workers could not work if permanent workers were
not working
and
vice versa.
Accordingly, there could be no reason to
incite local workers not to work if permanent workers had downed
tools.
[43]
The arbitrator failed to appreciate that the sanction of dismissal
was unjustifiably severe, given that the misconduct
was not serious
because the work disruption would not have amounted to more than 30
minutes and workers were not paid for the time
they did not work.
Moreover, Van Zyl’s ultimatum to the permanent workers to
return to work was heeded. Insofar as the second
charge was
formulated as a charge of negligence, the arbitrator also failed to
consider that the disciplinary code did not recommend
dismissal for a
first offence, but instead recommended that a final warning should be
issued.
[44]
The arbitrator’s finding that Simayile’s conduct had been
intimidatory was unwarranted and did not form part
of the misconduct
he was charged with.
[45]
The arbitrator could not have reasonably concluded that it was
Simayile’s responsibility to arrange for representation
and it
should have arranged for his shop steward based in Sutherland to
appear at the disciplinary enquiry.
Evaluation of prospects
[46]
I have outlined the main issues and grounds of review probably in
more detail than required for the assessment of the
prospects. On a
broad assessment it might be found that some of the arbitrator’s
findings might prove to have been tendentious,
such as his conclusion
that Simayile’s conduct was intimidatory or that he had
directly incited the local contract employees
to support the
permanent workers by downing tools. It is also unlikely that the
second charge of negligence would be found to be
justifiable in the
sense that it implied Simayile had a positive duty to have informed
the local contract employees what had transpired
at the meeting on 30
September. Ultimately, it might also be difficult to sustain the
charge that he was guilty of negligence even
if on 1 October, he had
repeated demands that were already expressed on 30 September. There
was also no evidence of him having
made any misrepresentations about
what had transpired in the meeting of 30 September.
[47]
Nonetheless, the gravamen of the complaint against Simayile was that
he had played an active role in trying to recruit
support for a work
stoppage from the local contract workers by telling their CLO that
tools would be downed at all Power Construction
sites on 1 October.
The arbitrator’s conclusion that the evidence of Power
Construction’s witnesses of what he said
to Diyali was to be
preferred over Simayile’s blander version, on the face of it,
appears to have been perfectly sustainable
on a balance of
probabilities, especially given the undisputed fact that Diyali went
immediately to the site manager to report
the interaction with
Simayile.
[48]
Simayile argued that it was not a crime to incite someone to
participate in an unprotected strike, but that is something
of a red
herring. It is still misconduct to encourage someone to engage in
unprotected strike action and such action is plainly
contrary to the
employer’s best interests. It seems that whatever limitations
some of the arbitrator’s findings had,
no basis has been laid
by Simayile for believing he has a reasonable prospect of setting
aside the finding that he was guilty of
incitement, and that his role
in trying to promote unprotected industrial action was serious
misconduct which warranted his dismissal.
[49]
Accordingly, even if prospects of success on review are considered, I
am not persuaded that that would warrant condoning
the unjustifiably
late launch of the review. There is no additional reason in the
interests of justice to condone the late filing
of the application.
Order
1. The application
to condone the late application to review the arbitration award of
the Second Respondent issued on 14 December
2021 under the auspices
of the First Respondent under case number CCEI 353-20 is dismissed.
2. The
aforementioned review application is dismissed
3. No order is made
as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
For
the Applicant
A L Cook instructed by
LDA Attorneys
For
the Third Respondent
G
Cassells of Maserumule Attorneys
[1]
(2010) 31
ILJ
1413 (LC) at paragraph
13.
[2]
At
paragraph 7
[3]
Steenkamp
& others v Edcon Ltd
(2019)
40
ILJ
1731 (CC) at paragraph
41. See also
National
Union of Metalworkers of SA on behalf of
Thilivali
v Fry's Metals (A Division of Zimco Group) & others
(2015)
36
ILJ
232 (LC) at paragraphs
[29] to [31] and the cases cited thereat.