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[1994] ZASCA 108
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Slagment (Pty) Ltd. v Building Construction and Allied Workers Union and Others (189/92, 720/92) [1994] ZASCA 108; [1994] 12 BLLR 1 (AD); 1995 (1) SA 742 (A); (1994) 15 ILJ 979 (A) (9 September 1994)
Case No 189/92, 720/92
/MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
)
In the matter between
SLAGMENT (PTY)
LIMITED
APPELLANT
- and -
BUILDING CONSTRUCTION AND
ALLIED
WORKERS UNION
FIRST RESPONDENT
FRANS NKADIMENG
SECOND RESPONDENT
PHILEMON MNQUTHENI
THIRD RESPONDENT
CORAM
: HOEXTER, SMALBERGER, F H GROSSKOPF, NIENABER JJA et NICHOLAS
AJA.
HEARD
: 19 May 1994.
DELIVERED
: 9 September 1994.
JUDGMENT
NICHOLAS AJA.
2
NICHOLAS AJA
:
Slagment (Pty) Ltd ("Slagment") manufactures
at
a number of factories, including one at
Vanderbijlpark, a product
which is variously described
as a "cement extender" or "blended
blast furnace
cement". In 1989 the Vanderbijlpark factory
was
experiencing problems in connection with dust
generated
by its operations. Notwithstanding the use of
dust
filters, dust emission from the factory into
the
surrounding atmosphere was above acceptable
levels.
This was due in part to the fact that the two
dust
filter attendants did not perform their
work
satisfactorily, and that Mr Van Eeden, the
production
foreman to whom the attendants were
immediately
responsible, was unable to give sufficient attention
to
their supervision. In consequence there
were
complaints from the occupiers of neighbouring
premises,
and from the Department of Health and the
Vanderbijlpark
3
Municipality. On 16 May 1989 Mr J H Hartzenberg, who was designated as
"the works manager" and was attached to Slagment's head office
with overall
responsibility for the factories, addressed a memorandum to the company's
general manager in which he set out the difficulties
being experienced in the
adequate control of dust emission. He recommended
"... that we employ a dust filter/compressed
air maintenance man (Grade 11). His duties will be complete dust filter
maintenance as well as compressed air reticulation."
The recommendation was approved and Mr Koos Pieterse, a Slagment employee
then working as a miller, was appointed to the new position
by Mr G J Kinnear,
the Vanderbijlpark factory manager. His functions were to supervise the two dust
filter attendants and to perform
all mechanical and electrical work necessary in
connection with the dust filters.
4
Pieterse began work in his new position on the morning of Tuesday 13 June
1989. Problems arose immediately. Mr Frans Nkadimeng and
Mr Philemon Mnqutheni,
who had been employed as dust filter attendants for the previous two years,
refused to work with Pieterse
or to carry out his instructions. They persisted
in this attitude on the following days until the matter culminated in their
dismissal
on Friday 16 June 1989 for gross insubordination and refusal to accept
instructions given by their superiors.
Nkadimeng and Mnqutheni (who will be called "the employees" when jointly
referred to) appealed against the dismissals. Separate appeals
were heard by
Hartzenberg on 28 and 29 June 1989. The appeals failed and the dismissals were
confirmed.
A conciliation board having failed to resolve the dispute, the employees
and their trade union (Building Construction and Allied Workers
Union)
("the
5
applicants") referred it to the industrial court for determination under
s 46(9)(b) of the Labour Relations Act 28 of 1956. In the
applicants' statement
of case there were set out what were said to be the "facts surrounding the
dismissal". It stated that on 13
June 1989 Van Eeden informed the applicants
that Pieterse was "the maintenance man" and instructed them that they were to
work with
him. On the following day Pieterse told Mnqutheni to make him a cup of
tea. Mnqutheni informed him that he was employed as a dust
filter operator and
not as a maker of tea. The relationship between Mnqutheni and Pieterse then
became strained. On the same day
Pieterse entered the word "discharged" in the
book which was kept in the office and related to the cleaning and operation of
the
dust filter room. This indicated that the dust filter room was ready for
operation. The employees were working inside the dust filter
room at the time,
and if another
6
operator had switched on the machine, their lives would have been placed
at risk. The employees reported this action of Pieterse to
Van Eeden, the
foreman, who told them that Pieterse would be reprimanded. There was a
repetition by Pieterse on the afternoon of
Thursday 15 June 1989. The employees
complained again to Van Eeden. The statement of facts then continued:
"20. The Individual Applicants were then summoned to the office of the
General Manager, Mr Van der Merwe. Mr Van der Merwe requested
the Individual
Applicants to sign certain documents. As they were unaware of the contents
thereof, and did not understand the implications
thereof, they refused to sign
the document. They requested Mr Van der Merwe to explain to them the contents of
the said documents
that they were required to sign. Instead, Mr Van der Merwe
hurled abuse at them. He then instructed them to report for work the following
day at 8.00 a.m.
7
21. On the following day, being the 16th June 1989, the Individual
Applicants reported at the office of their Foreman, Mr Van Eeden.
They were then
requested to prepare a statement individually. The impression was created that
they had contravened a rule at the
workplace. The Individual Applicant's
requested clarification and, in particular, stated to Mr Van Eeden as they were
jointly involved,
they wished to prepare a joint statement.
22. To their surprise, they were refused the request and were not
explained the reason why they were required to complete a statement,
but instead
were summarily dismissed by the Manager, Mr G Kinner."
Under the heading "THE DISMISSAL IS UNFAIR" the statement of case
continued:
"24. In the premises, the Individual Applicants submit that there was no
valid and fair reason for their
dismissal.
8
25. The Individual Applicants further state
that they were not
afforded a proper
opportunity to state their case, and
that
their dismissal was unwarranted, unfair
and improper.
26. The Individual Applicants submit
that the conduct of Pieterson was such that they
were required to file a complaint against
Pieterson. Instead,
the Respondent
responded by dismissing the
Individual
Applicants.
27. WHEREFORE the Individual Applicants aver
that the Respondent
committed an unfair
labour practice and pray that they
be
reinstated in their employment on the
same terms and
conditions prior to their
unfair dismissal, and that they be
paid
retrospective to the 16th of June 1989,
or such
other and further relief the
above Honourable Court deems
fit,
inclusive of cost of this
action."
Slagment filed a reply to the
applicants'
9
statement of case which, as will appear from what follows, reflected a
very different picture of the events leading up to the dismissals.
At the hearing the employees gave evidence-in-chief along the lines
foreshadowed in the statement of case.
On behalf of Slagment evidence was given by Hartzenberg, the works
manager; Kinnear, the Vanderbijlpark factory manager; Van der Merwe,
the general
foreman at the factory; Van Eeden, the production foreman; and Koos Pieterse.
The following summary sets out the main
features of that evidence.
Tuesday 13 June 1989
.
When work began on the Tuesday, Van Eeden had Pieterse call the employees
to his office. There Van Eeden explained to them that Pieterse
would thenceforth
be in charge of the dust filter section and
10
that they were to report to Pieterse who would in turn
report
to Van Eeden. The employees flatly refused to
work with Pieterse,
saying that this was not in their
"job description". Although Van Eeden explained that
the job description would be changed, the employees
persisted. Taking up the story, Pieterse said that
when the three of them left Van Eeden's office, the
employees went their own way. When he asked them
questions he was told "Jy moet jou bek hou. Jy moet
loop." He reported to Van Eeden :
"Ja, ek het na CHRIS - na MNR VAN EEDEN toe gegaan en vir horn gaan
sê kyk, die mense weier net volstrek om saam met my te werk.
Ek meen ons
kan nie so aangaan nie. Dit is - dit is ' n heeltemal - dit krap 'n mens - se
program om en jy kan nie - jy kan nie op
'n punt begin en aangaan met die werk
nie, en hulle - hulle - hulle gaan hulle 'way' en ek moet my 'way' gaan, ek meen
dit is nie
hoe ons gevra is om te werk nie."
11
Van Eeden said that he discussed the matter with Van der Merwe:
"Ek het dit met MNR VAN DER MERWE gaan bespreek, toe sê hy vir my ons
moet kyk wat maak hulle vir die dag want hulle was geheel
en al ontwrig en hulle
was, hardekwas gewees, toe sê hy los hulle uit, ons kyk wat maak hulle as
hulle vandag deurgaan, moontlik
kom -kom hulle tot sinne, dan kan hulle aangaan
en die werk doen."
He also said:
"Koos het na my toe gekom twee, drie maal deur die dag en kom kla dat
hulle nie vir horn luister nie. Toe sê ek vir horn KOOS,
probeer net kalm
met hulle saamwerk, probeer vir hulle verduidelik wat gaan aan. Moontlik kom
hulle reg dat hulle saamwerk."
12
Wednesday 14 June 1989
.
On the Wednesday the first thing to be done in the section was to clean
the dust filter of Belt 6. Pieterse called on the employees
to come with
him.
"Hulle het - hulle het daar gestaan en ek - as ek kan reg onthou het ek vir
FRANS geroep, maar FRANS het nie, hy - hy - hy het my
net gewys ek moet loop, hy
gaan nie, en as ek kan reg onthou het ek ook later van - later die oggend het ek
PHILEMON gesoek en toe
kry ek horn wel in die werks - werkswinkel, toe loop hy
uit, en dit is wat ek horn ook geroep het, en hy het ook vir my gewys ek
moet
loop. Hulle - hulle weier net eenvoudig om saam met my te
gaan."
Later in the day he went to the dust
filter of Mill No 3 where the employees were working. He said
"... toe het ek ook daar gekom en ek het vir hulle gesê 'hoor hier,
julle sal moet gou maak want hierdie meul moet vanaand loop',
hulle -
13
hulle moet klaarmaak, toe het PHILEMON en FRANS vir my gesê: 'man,
hou jou bek, ons werk nie saam met jou nie, ons wil niks
met jou te doen he nie
en jy moet ons nou uitlos'."
Van Eeden also gave evidence of an occurrence on the Wednesday.
"Net Woensdagoggend vroeg het FRANS na my
toe
gekom met die vorm wat hulle moet invul as
hulle op
die 'dust filters' werk as hulle
uitsluit, toe vra hy vir my waar
moet hulle
werk? Toe staan KOOS PIETERSE by my in
die
kantoor, toe sG hy vir horn julle moet Belt 6
se
'dust filter' gaan skoonmaak. Toe het hy
KOOS net so op en af gekyk
en hy het horn nie
geantwoord nie. Toe sê ek vir hom, julle
het
nou gehoor julle moet Dust Filter 6 se belt
gaan
skoonmaak, daardie man het mos vir julle
gesê. Hy het my nie
geantwoord nie, toe sê
ek vir horn in elk geval, julle teken
nie meer
die vorms nie, dit is nou PIETERSE
se
verantwoordelikheid. En hy het net omgedraai
en
uitgestap."
14
Thursday 15 June 1989
.
Pieterse said that on the Thursday morning he
was again standing next to Belt 6 dust filter.
"Altwee van hulle het daar laat aangekom, maar eerste was Philemon
[Mngutheni] daar. ... ons was besig om skoon - ek het saam met
horn ook gewerk
en MNR VAN DER MERWE het daar ingekom na ons toe, hy het vir my kom vra 'waar is
FRANS?'. En ek het toe vir PHILEMON
gevra 'waar is FRANS', en hy begin toe in sy
sakke rondkrap en hy - hy het gesê 'ek is nie - ek pas nie vir FRANS op
nie'.
Okay, FRANS het later daar aangekom, en toe is dit - toe -toe ons klaar is
daar op Belt 6 toe loop hulle rond, toe - ek is na MNR
KINNEAR toe en vir MR
KINNEAR gesê ons kan nie so meer werk nie, ek meen hy moet asseblief kyk,
met die mense praat. Ons kan
nie meer so werk
nie."
Van der Merwe referred to this
incident, but said that it happened on the Friday. He testified that at about 8
am he saw Pieterse
and Mnqutheni at a dust point where they were busy cleaning.
He continued:
15
"Toe loop ek oor na MNR PIETERSE toe en ek vra toe vir MNR PIETERSE,
sê vir my, waar is FRANS vanoggend?, waarop MNR PIETERSE
vir PHILEMON
gevra het: 'PHILEMON, waar is FRANS?'. Toe het FRANS horn net - ag, ek meen
PHILEMON horn so in die oë gekyk en
hy het in sy sakke begin krap, toe
sê hy 'hy was nou hierso, en so hoe die hel moet ek weet waar is hy?'.
Terwyl ek nog daar
gestaan het toe het FRANS aangekom en ek het horn toe gevra
'FRANS, waar kom jy nou vandaan?' . Toe se hy vir my hy kom van die toilet
af.
Toe sê ek 'Nou het jy toestemming van MNR PIETERSE gekry?' . Toe sê
hy 'wie is MNR PIETERSE, hy is 'n fokken 'operator',
dit is wat hy is, ek vat
nie instruksies van horn nie, hy bestaan nie'. Daarop het ek vir hulle
gesê maar onthou nou net een
ding, moet nou nie huil as julle seerkry nie.
Toe vra ek eerste vir PHILEMON, 'PHILEMON, met ander woorde jy wil nie saam met
MNR
PIETERSE werk nie'. Toe se hy vir my 'nee, ek werk nie saam met horn nie, hy
kan sy eie 'job' doen.' Ek het vir FRANS dieselfde vraag
gevra en FRANS het weer
vir my gesê dit is 'n 'operator' , hy bestaan nie, hy kan sy 'job' doen,
ek sal my 'job' doen."
16
During the Thursday afternoon management
presented the
employees with an amended job description,
which differed from the
original only in respect of the
person to whom they were to report.
Van der Merwe
described the reaction of the employees: |
"Hulle het so 'n rukkie na die - na die dokument gekyk en PHILEMON het aan
my gevra nou wie het hier geskryf? Toe sê ek dit
is die - dit is die
'works manager', dit was my woorde gewees. Toe vat hy horn, toe sit hy horn voor
my op die tafel neer, toe sê
hy vir my dit is nie sy 'job description'
nie. En die oomblik toe hy dit doen toe vat FRANS syne, toe sit hy dit ook neer.
Toe sê
ek met ander woorde julle weier om dit te teken. Toe sê hulle
vir my ja, hulle teken niks... Ek het opgestaan, ek het na my
direkte baas
gegaan wat MNR KINNEAR op daardie stadium was en ek het horn gesê dit is
steeds negatief, hulle weier om die 'job
description' te
aanvaar."
Kinnear said that during the
Thursday morning he spoke
17 to Mr Duba, the shop steward:
"Ek het ook toe in die voorportaal van die kantore vir MR DUBA uitdruklik
gevra om asseblief vir my 'n antwoord te gee op die nuwe
werksomskrywing wat
hulle gehad het, of FRANS en PHILEMON dit sal aanvaar en of hulle dit nie
aanvaar nie, en ek het hulle 'n tydsper
gegee in daardie stadium van die
Vrydagoggend."
Pieterse gave evidence that
on the Thursday he complained to Van der Merwe and Van Eeden:
"... ek het na MNR VAN DER MERWE toe gegaan en ek het na CHRIS, MNR VAN
EEDEN toe ook gegaan, en ek het gaan kla, die mense wil glad
nie saam met my
werk nie en ek het MNR VAN EEDEN ook ingelig oor die taalgebruik van hulle, hoe
hulle met my praat. Ek meen dit is
- ek het hulle laat weet, kyk, die mense is
besig om ons program om te krap, ons werk nie so nie. Hulle het ook vuil taal
gebruik.
Hulle het gesê 'fok jou', en 'fok off'."
18
Friday 16 June 1989
.
Early on Friday morning,
Hartzenberg had a meeting with Duba. Hartzenberg went through the memorandum of
16 May 1989. He explained
again the motivation for the appointment of Pieterse,
and urged Duba to persuade the employees to accept the amended job description
and to resume work in the normal way.
Nevertheless the employees persisted in their stand. They still refused
to accept the amendment to the job description. When informed
of this. Van der
Merwe reported their conduct to Kinnear. This led to a decision to conduct a
disciplinary hearing. Kinnear issued
an instruction that the employees should be
heard separately. They, however, insisted that there be a joint hearing. In the
face
of this, they were summarily dismissed.
19
The industrial court determination
.
It is the practice of the industrial court
when
called upon to make a determination in a case where
the unfair
labour practice alleged is the dismissal of
an employee, to make a
two-fold inquiry: (1) Was
the dismissal "substantively" fair? (was
it for a valid
and fair reason?); and (2) Was it "procedurally"
fair?
(was it in compliance with a fair procedure?).
That
approach was approved by this Court in Performing
Arts
Council of the Transvaal v Paper Printing Wood
and
Allied Workers Union and Others 1994(2) SA
204(A)
(hereinafter referred to as "the PACT case") where
the
principal issue debated in argument was whether
the
dismissal was in compliance with a fair procedure
(see
215 A). And it was the approach adopted by
the
industrial court in this case.
In its determination the industrial court stated that it was not
altogether happy with the
20
evidence of the employees and that it found the story
told by
Slagment's witnesses to be more probable. The
court found that
-
"... the applicants, for some reason, simply did not accept that Mr Koos
Pieterse was placed in a supervisory capacity over them.
They refused to take
orders from Pieterse on the 13th, 14th and 15th June...
The evidence
...
satisfied the court that the applicants, over the period from the 13th to the
15th June, deliberately refused to obey lawful and reasonable
commands
."
(My emphasis.) In
consequence, the industrial court was not persuaded that the dismissals were
substantively unfair.
However, it did hold that they were procedurally unfair.
Lastly, the industrial court considered what remedy was appropriate in
the circumstances. It concluded -
21
"Evidence was led by Mr Koos Pieterse that the
working relationship between him and the applicants had been unsatisfactory, if
not
openly hostile. In the light of this the court feels that reinstatement is
not the appropriate order, but that three months' salary
would be reasonable
compensation."
(It should be mentioned that the industrial court stated
that
the testimony of Koos Pieterse was particularly
convincing as he
made a very good impression on the
court.)
The employees and the trade union noted an
appeal to the Labour Appeal Court ("LAC") on the
grounds
mainly
(a)
that the
industrial court erred in finding that there were adequate reasons for the
dismissal of the
employees;
(b)
that, having
regard to the conduct of Pieterse in signing off the dust filter machine, the
court ought to have
found
22
that the attitudes of the employees were not wholly unreasonable and that
their conduct did not warrant the ultimate sanction of dismissal;
(c) that Slagment's refusal to grant a joint hearing was a fatal defect in
the proceedings; and
(d) that the court should have ordered
reinstatement.
Slagment noted
a cross-appeal on the grounds mainly
(a) that the court erred in finding that Slagment's refusal to grant a joint
disciplinary hearing was unreasonable, unjustifiable
and unfair; and
(b) that the court erred in awarding compensation to the
employees.
The Labour
Appeal Court decision
.
The appeal in the Labour Appeal Court was heard by GOLDSTEIN J and
assessors. The judgment has
23
been reported
sub nom
Building Construction and Allied Workers
Union and Others v Slagment (Pty) Ltd (1992) 13 ILJ 1168 (LAC) ("the reported
judgment").
It concluded with an order upholding the appeal and dismissing the
cross-appeal, both with costs; deciding that the
dismissal of the employees was an unfair labour
practice; and ordering reinstatement. In the judgment the LAC did not
give separate consideration to the questions of substantive
and procedural
unfairness.
Leave having been granted, Slagment now appeals.
In an appeal from a Labour Appeal Court in an unfair labour practice
case, this Court is required to determine whether, on the facts
found by it, the
Labour Appeal Court made the correct decision and order. If it did, the appeal
must fail. If it did not, then this
Court has power to amend or set aside that
decision or order or make any other decision according to the
24
requirements of the law and fairness. (See National Union of Mineworkers
v East Rand Gold and Uranium Co Ltd 1992(1) SA 700(A) at
723 E-F.)
The many factual disputes on the record of the evidence in the industrial
court were decided by that court in favour of Slagment.
The LAC had no
hesitation in agreeing with this view, which was not attacked in argument before
it. GOLDSTEIN J said that in his
discussion of the facts he would restrict
himself to Slagment's version, save where the evidence of the employees was
unchallenged
(at 1169 G-H of the reported judgment).
In the course of the judgment, GOLDSTEIN J said (at 1172 D-G) that in
answering the question whether the dismissal of 16 June 1989
constituted an
unfair labour practice -
"... a court [is] required to take account of all the
relevant facts and to avoid falling
25
into the trap of narrowing the enquiry to those which led
directly to the practice complained of. The second and third appellants
had a
record of service of about 15 and 10 years respectively. They had functioned
well and had enjoyed a good relationship with
management. They had exercised a
large degree of autonomy and had done important work described in a
not-unimpressive job description.
Now management
,
with whom they had
had a good relationship
,
chose without any consultation whatsoever
,
to introduce into their work situation a superior who would destroy their
autonomy and whose expertise was to be greater than theirs
. The
insensitivity of this act was compounded by a number of self-evident factors.
They were introduced to Pieterse and told about
him in his presence on the
morning of 13 June 1989. They were not afforded the courtesy of an aside
beforehand. Their signing powers
on important documentation were removed from
them.
In my view it was incumbent on the respondent to prepare the ground
sensitively and carefully for Pieterse's appointment
by, for example,
pointing out that a repairman was
26
necessary to maximize the effectiveness of the work on the dust cleaners,
that the volume of such work had increased and that such
a man could lessen the
burden previously carried by the second and third appellants. Respondent did
nothing of the kind."
This passage, and in
particular the parts which I have underlined, is pivotal to the LAC's decision
that the dismissals constituted
an unfair labour practice. Underlying it is the
inarticulate
premise that the conduct of the employees arose from their resentment at
the appointment of Pieterse because it infringed their autonomy
and impaired
their status - resentment which could have been avoided if management had acted
with sensitivity and courtesy.
For the reasons which follow I do not think that the judgment of the LAC
can be sustained.
(a) In my view the point was not one which could
27
properly be considered by the LAC. It was not covered by the pleadings.
It was never the case for the applicants that the behaviour
of the employees
arose out of the insensitive conduct of the Slagment management. In terms of
Rule 5(d) of the Rules of the Industrial
Court it was a requisite that the
document initiating the proceedings should contain a clear statement of the
material facts upon
which the applicants relied. It was not averred in the
statement of case that the dismissals were unfair because management "chose
without any consultation whatever, to introduce into their work situation a
superior who would destroy their autonomy and whose expertise
was to be greater
than theirs". The point was not foreshadowed in counsel's opening in the
industrial court proceedings. It was not
raised in the evidence of the employees
- indeed, their account was inconsistent with it: in their evidence-in-chief,
their complaint
28
against Pieterse was his conduct in noting the
word
"Discharged" in the book which might, they said,
have
resulted in their lives being put at risk;
under
cross-examination both said that they had been ready
to
work with Pieterse. Nkadimeng said that he had
never
refused to work with him; and that his only
problem
with him was that "he started the machines while we
were
working and he will kill us". Mnqutheni likewise
said
that he had worked with Pieterse and that he had
never
said that he did not want to work with
Pieterse.
Consideration of the point by the LAC
involved
unfairness to Slagment. The facts on which
it
depended were not common cause and were certainly
not
clear beyond doubt on the record, and if the point
had
been raised there can be no doubt that
Slagment's
witnesses would have dealt with it in their
evidence.
(b) In any event, I do not think that the validity
29
of the inarticulate premise was established. There was no evidence to
support it. It is clear that the employees resolved at the outset
that they
would not work under Pieterse, and that they obstinately and insolently
persisted in that resolve. But there is nothing
to show that this resolve was
due to their feeling aggrieved because of an infringement of their autonomy or
an impairment of their
status. It was submitted that this was a legitimate
inference. But an inference must be based on facts, and there were none to
support
what was no more than a theory, an hypothesis.
Moreover it seems to me that as a general rule a favourable inference as
to a party's motivation for particular behaviour, will not
be made where that is
not his case and he himself has given false evidence in that regard. The remarks
of MALAN JA in his dissenting
judgment in R v Mlambo 1957(4) SA 727(A) at 738
C-D have frequently been approved and applied in this
30
Court. Although made in a different context, they are
not inapposite to the present case.
"Moreover, if an accused deliberately takes the risk of giving false
evidence in the hope of being convicted of a less serious crime
or even,
perchance, escaping conviction altogether and his evidence is declared to be
false and irreconcilable with the proved facts
a court will, in suitable cases,
be fully justified in rejecting an argument that, notwithstanding that the
accused did not avail
himself of the opportunity to mitigate the gravity of the
offence, he should nevertheless receive the same benefits as if he had
done
so."
(c) GOLDSTEIN J said (at 1173 I of the
reported judgment) that "... management acted here in good faith and at most was
guilty of
insensitivity and errors of judgment". It is therefore implicit in the
LAC's pivotal finding that management should reasonably have
foreseen that
Pieterse's appointment would provoke the
31
reaction which it did. In my opinion there is no basis for so holding.
One cannot apply wisdom which comes after the event. And the
answer to the
question requires some knowledge of the conditions prevailing in the workplace,
and of the personalities of the persons
concerned. The point was not put to
Slagment's witnesses. And the LAC had no knowledge of the employees except what
appears from
the record to have been their lamentable performance as witnesses.
On the face of it one would not, I think, expect a minor administrative
change
such as this to provoke a situation the handling of which would call for
pre-operation preparation and careful nursing treatment.
(d) Even if one were to asume that management was guilty of
insensitivity, its relevance to the fairness of the dismissals would be
questionable.
The employees had been guilty of
sustained
32
disobedience. They had deliberately set themselves on a collision course
with management. They were insubordinate and insulting. Their
conduct was such
as to render a continuance of relationship of employer and employee
impossible.
Counsel for the applicants did not contend that their resentment at
Pieterse's appointment justified or excused their conduct. What
he submitted was
that it was mitigating, and that to dismiss the employees in the light of it was
excessively harsh, unjustified
and unfair.
I do not agree. The recognition agreement between Slagment and the Union
included a section dealing with "Grievance Procedure", which
provided a means
for the communication and settlement of grievances speedily and without
disruption of the work. If the employees
had a grievance, this was the route
which they should have followed.
33
(e) GOLDSTEIN J referred to other facts and
factors which he
regarded as important in deciding the question whether the dismissals
constituted on unfair labour practice.
The first (see 1172 H of the reported judgment) was that the employees
did not stop working.
It is true that between 14 and 16 June 1986 they continued to go about
their work after their own fashion. But they insolently refused
to perform it in
the way required by their employer. As a result, by the end of the Thursday the
work situation was impossible. Because
of the attitude of the employees,
Pieterse was obliged simply to keep out of their way. He did not even know
exactly what work they
were doing.
When he called them to clean the dust filter on belt 6 in order that the
plant would be properly operational for the night shift,
they refused outright
and indicated
34
that he should go away. When he spoke to them about punctual attendance,
they again reacted insolently, one of them saying:
"Jy is nie my baas nie, ek werk nie vir jou nie, ek werk vir SLAGMENT en ek
het dit vir die grootbase ook gese."
The
second was that the employees were dismissed after only three days of
recalcitrance.
(See 1172 I of the reported judgment). During those three days,
management showed exemplary patience in the face of severe provocation.
But
obviously matters could not be allowed to continue in this way. There was an
impasse which had to be unblocked. There was no
way out except the holding of a
disciplinary inquiry, which might possibly result in dismissal.
GOLDSTEIN J referred to a number of other factors (the absence of a
warning that the employees
35
faced dismissal; that the holding of a disciplinary inquiry on the Friday
was premature; and that the management should first have
sought to speak
separately to each of the employees to try to understand their continued
obstinacy). All these, however, relate to
the aspect of procedural fairness
which is dealt with below.
In my opinion the dismissals were not substantively unfair. They were
fully justified.
I turn then to the question of procedural fairness.
The reason for the finding of the industrial court that Slagment's
decision was procedurally unfair was that
"The court feels that the company's refusal to grant a joint hearing was
unreasonable in the circumstances of this case because the
applicants were
thereby not given the opportunity of stating their versions of the
36
dispute."
I do not agree. The employees
were given an opportunity of stating their versions of the dispute, but they
rejected it. It is within
the province of the employer who holds a disciplinary
enquiry to determine its form and the procedure to be adopted, provided always
that they must be fair. Fairness requires inter alia that the employee should be
given an opportunity of meeting the case against
him: the employer must obey the
injunction audi alteram partem. This the Slagment management was ready to do.
Its refusal to allow
a joint hearing was not arbitrary, capricious or
unreasonable: it was anxious to discover the true cause of the employees'
recalcitrance
and suspected that Mnqutheni was exerting undue influence on
Nkadimeng not to co-operate with management in disclosing it; and it
believed
that by interviewing them separately it
37
would have a better chance of discovering the real reason for their
conduct. (Compare the observation of GOLDSTEIN J, referred to
above, that the
management should first have sought to speak separately to each of the employees
to try to understand their continued
obstinacy.) It was the employees who
frustrated a hearing by seeking to impose an illegitimate condition for their
participation
in an enquiry. A joint hearing could not assist them in making
their defence. It would seem rather that their insistance on a joint
hearing was
motivated by the thought that if they did not hang together they would assuredly
hang separately. In consequence they
deprived themselves of the opportunity of
stating their case.
I consider nevertheless that the dismissal was procedurally unfair, but
for different reasons.
Management must have had possible dismissal in contemplation. Dismissal
would be drastic and far-
38
reaching with immeasurable consequences for employees who had records of
service with Slagment of about 15 years and 10 years respectively.
The refusal
of the employees to attend the inquiry except on their own conditions was the
last straw on a pile of provocative incidents.
One readily understands that with
this final provocation Kinnear's patience was exhausted. I agree with the
judgment of the industrial
court that it "is clear from Mr Kinnear's evidence
that when he heard that the applicants insisted on a joint disciplinary hearing,
he had lost his patience and decided to summarily dismiss them." That action,
though understandable, was nevertheless precipitate.
In the PACT case (supra),
GOLDSTONE JA quoted with approval (at 216 C-D) a statement by VAN RENSBURG J in
Plaschem (Pty) Ltd v Chemical
Workers Industrial Union (1993) 14 ILJ 1000 (LAC)
at 1006 H-I:
39
"When considering the question of dismissal it is
important that an employer does not act overhastily. He must give fair warning
or
ultimatum that he intends to dismiss so that the employees involved in the
dispute are afforded a proper opportunity of obtaining
advice and taking a
rational decision as to what course to follow. Both parties must have sufficient
time to cool off so that the
effect of anger on their decisions is eliminated or
limited."
Kinnear's precipitate action had the
result
that the employees were called upon
to face a "drum-head" enquiry on 45 minutes' notice, and even before the charges
against them
had been formulated. They were denied the opportunity of taking
counsel, of reflecting on their conduct, and possibly of having second
thoughts.
Furthermore they were not informed that dismissal was an option which might be
exercised.
It was argued on behalf of Slagment however that any procedural defects
connected with the dismissal
40
of the employees were cured by the appeal hearing before Hartzenberg.
Counsel for the applicants on the other hand submitted that
the fact that there
was an appeal before Hartzenberg in which the employees participated fully and
at which evidence was led could
not -
"... overcome the absence of an initial hearing. The code of disciplinary
procedure the Appellant adopted and which was applicable
to its workforce gave
the Respondents a contractual entitlement to an appeal after the initial enquiry
..."
The question whether it is possible
for an appellate tribunal to correct an administrative decision which is
impeachable on the grounds
of unfairness, is discussed by Baxter, Administrative
Law, at 588-9. The learned author states that in the first place, a complainant
is entitled to fairness at all stages of the
41
decision-making process, and he quotes from the judgment
of
Megarry J in the English case of Leary v National
Union of Vehicle
Builders
[1971] Ch 34
at 49:
"If the rules and the law combine to give the member the right to a fair
trial and the right of appeal, why should he be told that
he ought to be
satisfied with an unjust trial and a fair
appeal?"
Baxter adds that the complainant
has a vested interest in a fair primary decision irrespective of the existence
of a right of appeal.
See Turner v Jockey Club of South Africa 1973(3) SA 633(A)
at 658 G. Cf Council of Review, SADF v Monnig 1992(3) SA 482 at 494
B-G.
It is not possible to lay down a general rule in this connection. In
delivering the opinion of the Privy Council in Calvin v Carr
[1979] UKPC 1
;
[1980] AC 574
(PC)
Lord Wilberforce said at 592:
"... their Lordships recognize and
indeed
42
assert that no clear and absolute rule can be laid down on the question
whether defects in natural justice appearing at an original
hearing, whether
administrative or quasi-judicial, can be 'cured' through appeal proceedings. The
situations in which this issue
arises are too diverse, and the rules by which
they are governed so various, that this must be
so."
See also
Lloyd
v
McMahon
[1987] UKHL 5
;
[1987] AC 625(HL)
at 697, 716.
The above-quoted observation by Megarry J in Leary's case (supra) was
made in the context of
"domestic and administrative two-tier adjudicatory systems" (cf the
remarks of Lord Bridge of Harwich in Lloyd v McMahon (supra) at
708 H.) The
present is not such a case. Here there was no adjudication prior to the
dismissals. The employees were summarily dismissed
without a hearing, the
absence of which was not due to any fault on the part of the employers. It was
the result of the intransigent
attitude of the
43
employees. There is no reason in principle why any unfairness at the
stage of the dismissal should not have been cured by a full and
fair hearing on
appeal.
The recognition agreement between Slagment and the trade union provided
in clause 15.8:
"Avenues of Appeal
Dissatisfaction with the outcome of disciplinary action may not be declared
a formal grievance.
Appeals against Summary Dismissal, Dismissal or Final Warning decisions only
may however be made to the Factory Manager. Said appeals
must be lodged with the
Foreman to whom the employee normally reports, within one working day of the
disciplinary notification ...
The Factory
Manager will review all the evidence and facts pertaining to the matter and
interview all or any parties who in his discretion
may be involved. The Factory
Manager must however allow the employee, assisted by a maximum of two
representatives
44
(refer clause 15.3 above) should the employee so wish, to present his
appeal. In the event of the employee being a Union member, the
representatives
referred to will be the Senior Shop Steward and the Shop Steward for the
constituency in question.
The Factory Manager will inform the employee of his final decision within
five working days of the original disciplinary notification.
This period may be
extended by mutual
consent."
The appeals were
heard on 28 and 29 June 1989
by Hartzenberg. He was the works manager of Slagment, not the
Vanderbiljpark factory manager, who was Kinnear. The latter however
had taken
the decision to summarily dismiss the employees and it would have been irregular
for him to hear the appeals. No objection
was raised at any time to the hearing
of the appeals by Hartzenberg. Hartzenberg described the proceedings in his
evidence in the
industrial court.
45
Nkadimeng was called in first with the two shop stewards and an
interpreter. The Slagment officials who were concerned were called
in
successively. Their statements were read out and Nkadimeng was given, and used,
the opportunity of questioning the officials and
commenting on their testimony.
The questions and answers were recorded. Nkadimeng then made a detailed
statement which was recorded.
The same procedure was then followed in the case
of Mngutheni.
The employees were aware on 16 June 1989 of the reason why they had been
dismissed, namely,
"Gross insubordination - refuses point blank to accept any instruction
given to him by any senior personnel."
Each appealed on the same day. Between 16 June and 28 June 1989 the
employees had full opportunity for taking advice, of reflecting
on their
conduct, and of
46
appraising their position. They were afforded a
full
opportunity of meeting the case against them.
They
were informed that they would be re-employed if they
accepted the amended job description. On this point
Hartzenberg's evidence-in-chief at the industrial court
hearing was not ideally clear. This is the relevant
extract from the record:
"MR PRETORIUS
: And why did you then decide to
uphold the decision to dismiss them?
MR HARTZENBERG
: I would have considered -
I
would have considered a final warning
subject
to these two gentlemen - said that they are
now prepared to - to accept and start work.
Even on the final day I was quite prepared to
waive the dismissal of MR KINNEAR's and give
them a final warning and re-employ them.
MR PRETORIUS
: Provided that they at that
stage ...
MR HARTZENBERG
: Accept ...
MR PRETORIUS
: ... submitted to the
discipline.
MR HARTZENBERG
: Submitted to the
discipline.
MR PRETORIUS
: And they did not do so.
47
MR HARTZENBERG
: No, they refused.
MR PRETORIUS
: And that is the reason
why...
MR HARTZENBERG:
No, they never requested it.
MR PRETORIUS
: And that is the reason why
you dismissed them.
MR HARTZENBERG
: That is why the dismissal
stayed."
The following appears however
from his cross-examination by Mr Cassim who was counsel for the
employees:
"
MR CASSIM:
Now you have also said that had they told you that look,
MR HARTZENBERG, we are terribly sorry, our attitude is not a proper attitude,
we
are prepared to work under MR PIETERSE, you would have been prepared to
reinstate them ...
MR HARTZENBERG:
Yes.
MR CASSIM:
... with a final written warning.
MR HARTZENBERG:
with a final warning ... I asked them ... is that your final decision now, do
you refuse to work with MR PIETERSE and they said yes
... I asked them do they
still refuse, and they said yes, right up to the very last minute as
well."
48
This evidence was not challenged by Cassim nor denied by either of the
employees.
At no time was there any question as to the fairness of
the appeal proceedings. It was only on the merits that Hartzenberg's decision
was challenged. In my opinion, the initial procedural unfairness was overtaken
by the Hartzenberg hearing and it had no influence
on the course of that hearing
or its eventual outcome.
In my view therefore any prejudice which resulted from the procedural
deficiencies which attended their dismissals was cured.
My conclusion is that the LAC erred in finding that the dismissals were
an unfair labour practice and in making the order which it
did.
The appeal is allowed with costs, including the costs of two counsel. The
order of the Labour
49
Appeal Court is set aside and there is substituted therefor the
following:
"(a) The appeal is dismissed with costs.
(b)
The
cross-appeal is allowed with
costs.
(c)
The determination
and order of the industrial court are set aside and the following is
substituted:
'It is determined that the
dismissal of Frans Nkadimeng and Philemon Mnqutheni was not an unfair labour
practice.'"
H C NICHOLAS AJA.
HOEXTER JA)
F H GROSSKOPF JA)
NIENABER JA) CONCUR.
JUDGMENT
SMALBERGER, JA:
I have had the benefit of reading the judgment of my learned brother
Nicholas ("the main judgment"). I agree, for the reasons
2
given by him, that the dismissals of the employees
(Nkadimeng and Mnqutheni) were not substantively unfair. I also agree that they
were procedurally unfair, for the reasons in the main judgment, and for
additional reasons that centre on Kinnear's refusal to conduct
a joint
disciplinary enquiry. The nature and form of any disciplinary enquiry will,
apart from any contractual requirements, depend
upon the exigencies of the
situation
(cf. Administrator, Transvaal and Others v Zenzile and Others
1991(1) SA 21(A) at 40 C-G). In the circumstances that pertained at the time
Kinnear's decision was, in my view, unreasonable and,
in the result, unfair,
thereby depriving the employees of a hearing to which they were entitled. This
failure to afford them a hearing
was, in my view, not cured by the later appeal
hearing before Hartzenberg.
At the time of their dismissals Nkadimeng and Mnqutheni had worked for
Slagment for 15 and 10 years respectively. Both had unblemished
records with no
previous disciplinary infringements or
3
warnings. By all accounts they had been good and
satisfactory workers. According to Van Eeden "[het] hulle goed gewerk en [daar
was]
'n baie goeie verstandhouding met hulle gewees ook". The evidence, in my
view, does not establish that the dust emission problems
experienced at
Slagment's factory were due in part to the fact that the employees did not
perform their work satisfactorily. To the
extent that they were unable to cope,
their failure to do so was not shown to have been due to indolence, inefficiency
or unwillingness
on their part.
The advent of Pieteise brought about a marked change in the employees'
attitude and conduct. Their insolence, insubordination and
recalcitrance were
uncharacteristic having regard to their past behaviour. The true reason for this
change on their part has never
emerged, for both employees clearly lied (indeed,
persistently so) about the reason for their inexcusable conduct. Management was
acutely aware of this change in behaviour and attitude, and was
4
seemingly anxious to discover the true cause of the
employees'
recalcitrance. The envisaged disciplinary hearing was, at
least in
part, intended to get to the bottom of the
problem.
Clause 15.1 of the Recognition Agreement provides:
"The main objective of the Disciplinary Procedure is to provide a formal
vehicle for the systematic, uniform and fair exercise of
discipline by
Management."
Clause 15.2.1 states that "[disciplinary
action should aim to be educational and corrective". The Recognition Agreement
is silent
as to the precise form disciplinary proceedings should take. I accept
that it was management's prerogative to determine that form.
But any decision by
management in this respect had to be taken with due and proper regard to all
relevant circumstances, always bearing
in mind the need to act reasonably and
fairly. Thus in certain circumstances a collective rather than an individual
hearing might
be called for.
I accept that the employees had a duty to participate in
5
disciplinary proceedings. Neither of them declined
to participate outright. Their only objection was to being tried separately.
They
were prepared to participate on the basis of being heard together. Both had
been involved to a more or less equal degree in the events
that had given rise
to the need for an enquiry; both had basically displayed the same attitude and
behaviour; the source of their
discontent was common to both of them; and they
had acted in concert throughout. In the circumstances their attitude was
understandable
and not entirely unreasonable. They were not being deliberately
obstructive. Moreover, as pointed out in the main judgment, they
were called
upon to face an enquiry at 45 minutes notice and before any charges against them
had been formulated. They were denied
a proper opportunity of seeking advice and
were not given sufficient time to reflect upon their conduct. This may have
contributed
to, or strengthened, their resolve to be heard together. Most
important, they were never advised that their
6
refusal to attend individual hearings could, or
would, result in their summary dismissal. Had they been so told, or given more
time
to reflect, they may conceivably have been prepared to accept individual
hearings. Significantly, at the later appeal proceedings
they no longer insisted
upon a joint hearing.
From management's perspective there was no sound reason for insisting
upon separate hearings in the face of opposition thereto by
the employees. One
of the reasons advanced for management's attitude was an apparent belief that
Mnqutheni was unduly influencing
Nkadimeng and that separate hearings were more
likely to lead to the discovery of the root cause of the problem, while at the
same
time affording protection to Nkadimeng. However sincere management's belief
was in this regard, there was no objective factual basis
for it. Nor were
Nkadimeng's interests served by no hearing at all. Management appreciated, or
should have appreciated, that a hearing
was especially important where
the
7
reason for the employees' conduct was not
apparent. A joint hearing would not in any way have prejudiced or inconvenienced
management;
on the contrary, it would have been a more expeditious way of
dealing with the matter. By refusing a joint hearing management effectively
denied the employees a hearing. It may be said that this was the inevitable
consequence of the employees' conduct and that they frustrated
a hearing. But if
management had a genuine desire to establish the reason for the employees'
recalcitrance (as they should have had)
a joint hearing was indicated rather
than no hearing at all.
In the circumstances it was, in my view, unreasonable for Kin near to
have refused the employees a joint hearing. His refusal in this
regard, coupled
with his otherwise precipitate action, resulted in the employees being denied a
hearing and their consequent dismissal
being procedurally unfair. Kinnear would
have done well to have heeded the admonition of Van Rensburg, J, in
Plaschem
8
(Pty) Ltd v Chemical Wor
kers Ind
ustrial Union
quoted in the
main judgment. The denial of a hearing constituted a breach of clause 15.2.2 of
the Recognition Agreement which provides
that "[t]he offender must be given an
opportunity to explain and if necessary defend his conduct.".
The procedural unfairness in relation to the employees' dismissal extends
even further. Not only was their dismissal not preceeded
by any warning, but the
decision to dismiss was reached without any regard to the employees' length of
service and clean record.
This was conceded by Kinnear. One of the important
ingredients of a fair disciplinary hearing is the right to have previous service
(which, in this case, was lengthy and unblemished) considered. Clause 15.7.2 of
the Recognition Agreement in fact required Kinnear
to check the employees'
records before any disciplinary hearing, something he manifestly failed to
do.
The main judgment addresses the question whether any
9
procedural unfairness was overtaken and cured by
the subsequent
appeal hearing before Hartzenberg, and deals with the
relevant legal
principles. The position is well summarized in
Wade
:
Administrative Law: 6th Edition: p 550 as
follows:-
"Whether a hearing given on appeal is an acceptable substitute for a hearing
not given, or not properly given, before the initial
decision is in some cases
an arguable question. In principle there ought to be an observance of natural
justice equally at both stages;
and accordingly natural justice is violated if
the true charge is put forward only at the appeal stage. If natural justice is
violated
at the first stage, the right of appeal is not so much a true right of
appeal as a corrected initial hearing: instead of a fair trial
followed by
appeal, the procedure is reduced to unfair trial followed by fair
trial."
The main judgment proceeds on the premise that
despite procedural unfairness it was the fault of the employees, not management,
that
no initial hearing took place. On the view I take of the matter, the
employees were deprived of a hearing (which the Recognition
Agreement entitled
them to) through Kinnear's unfair
10
conduct in unreasonably denying them a joint
hearing. It may well be that on the approach adopted in the main judgment the
earlier
procedural irregularities were cured by the appeal hearing. It seems to
me that a necessary distinction has be to drawn between,
on the one hand, a
defective hearing or no hearing through the fault of the person whose conduct is
the subject of such hearing and,
on the other hand, the unreasonable denial of a
hearing by a person in authority (as in the present instance), more particularly
where such denial is in effective breach of a contractual obligation. The
procedural unfairness flowing from the latter situation
cannot, in my view, be
cured by a later appeal, save perhaps in very exceptional circumstances (which
is not the case here). The
appeal hearing becomes the only one. The right to
both an initial hearing (whether free from defects or not) and an appeal are
denied.
Moreover, a person in the position of the employees is placed in the
situation where he bears the burden of displacing an adverse
11
decision (his summary dismissal) which for lack of natural justice
(procedural unfairness) ought never to have been reached
(Empangeni Transport
Pty) Ltd v Zulu
(1992) 13 ILJ 352 (LAC) at 358 D-F).
The conclusion to which I therefore come is that the procedural
unfairness surrounding the employees' summary dismissal constituted
an unfair
labour practice entitling them to some form of relief. The nature of that relief
falls to be determined applying the approach
enunciated by GOLDSTONE, JA, in
Performing Arts Council of the Transvaal v Paper Printing
Wood
and
Allied Workers Union and Others
1994(2) SA 204(A) at 219 A-C In the present
case the employees' conduct was so flagrant and their lack of repentance so
manifest
that it would place an intolerable burden on Slagment to order their
reinstatement. I
12
would therefore have restored the order of the industrial court and have
made an appropriate order as to costs.
J W SMALBERGER JUDGE OF APPEAL